W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:
539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application thereof is made by the prosecutor, and
(b) shall, if application thereof is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any newspaper or broadcast before such time as, in respect of each of the accused,
(c) he is discharged; or
(d) if he is ordered to stand trial, the trial is ended.
(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).
(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
(4) In this section, “newspaper” has the same meaning as it has in section 297. R.S., c. C-34, s. 467: R.S.C. 1985, c. 27 (1st Supp.), s. 97.
COURT OF APPEAL FOR ONTARIO
BORINS, SHARPE JJ.A. and WATT J. (ad hoc)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
W. V.
Applicant/Appellant
John Norris and Emily Morton for the appellant
Riun Shandler and Michelle Campbell for the respondent
Heard: June 13 and 14, 2007
On appeal from the conviction entered on October 4, 2001 and the sentence imposed on March 24, 2004 by Justice John R. McIsaac of the Superior Court of Justice, sitting with a jury.
1After a ten-week jury trial, the appellant was convicted of break and enter and commission of sexual assault, forcible confinement, and dangerous operation of a motor vehicle. All offences occurred within a single day and all involved the same complainant, the appellant’s former girlfriend. After a lengthy sentencing hearing, the appellant was declared a long-term offender and sentenced to ten years imprisonment, to be followed by the maximum period of ten years supervision.
2The appellant appeals both conviction and sentence. With respect to the conviction appeal, the appellant submits that:
the trial judge departed from the required procedure for selecting the triers for the challenge for cause;
the trial judge erred in admitting all of the tape of the complainant’s 911 call as part of the res gestae;
the trial judge failed to give the required instructions to the jury on credibility;
the trial judge erred in finding that the appellant had waived his s. 10(b) right to counsel under the Charter; and
the trial judge erred on a Corbett application by refusing to excise certain convictions from the appellant’s criminal record.
3With respect to the sentence appeal the appellant submits that:
the trial judge erred by dismissing a s. 11(b) application to stay the proceedings for delay or give the appellant credit for time spent in pre-sentence custody; and
the trial judge erred by refusing to dismiss the application on the ground that the report of the psychiatric assessment was not filed within fifteen days of the sixty-day assessment period as required by s. 752.1(2) of the Code.
4For the following reasons, I conclude that the trial judge erred by failing to follow the required procedure for selecting the triers for the challenge for cause and that this error cannot be cured by having resort to the curative proviso in s. 686(1)(b)(iv) of the Code.
FACTS
5Given my conclusion that a new trial is required on the ground that the trial judge departed from the required procedure for selecting the triers for the challenge for cause, I offer here only a brief summary of the facts giving rise to the convictions.
6The evidence at trial consisted essentially of two conflicting accounts of the events following the termination of a romantic relationship between the appellant and the complainant.
7The complainant and the appellant first met in September 1999, when the appellant was on parole and residing in a halfway house and working at a distributing company. The complainant was living at the home of her mother and step-father and working at a strip club. They dated steadily for five or six months with periods of break up and reconciliation. In March 2000, the appellant was arrested, his day parole was revoked and he was returned to the penitentiary for eight weeks. The charges leading to the revocation of his parole were later withdrawn and the individual who made the allegations was charged with mischief and perjury. The appellant’s re-incarceration led to the termination of their romantic relationship.
8The appellant’s parole was reinstated and he returned to the halfway house on May 18, 2000. Between May 18 and May 29 the appellant and the complainant met at various times to exchange personal property. While they gave divergent accounts of their relationship during this period, it is common ground that they spent May 23 at a motel having consensual sex.
9On the morning of May 29, the complainant testified that the appellant entered her home and sexually assaulted her. The appellant taunted the complainant about her new boyfriend and told her that he had her boyfriend locked in the trunk of his car. The complainant testified that following the assault, which lasted five to ten minutes, she tried to calm the appellant down. She told the appellant that her step-father would be returning to the house and that they should leave. After about an hour and a half, they drove in separate cars to a coffee shop. According to the complainant, the appellant went in and got her a coffee. They sat in her car talking about the appellant’s problems and then, at her suggestion, went to a pay phone to call the appellant’s mother, who did not answer. When she returned to her car, the appellant became aggressive and she drove off. The appellant followed her in his car and, according to the complainant, he bumped her car several times and tried to force her car into oncoming traffic.
10The complainant testified that while she was driving away from the appellant, she used her cell phone to call her new boyfriend. The call lasted for approximately thirty seconds. She then made a 911 call narrating the car chase as well as the break-in and sexual assault that had occurred earlier in the morning.
11The appellant testified and denied these allegations. He denied being at the complainant’s home that morning but testified that the two had agreed to meet at the coffee shop to exchange personal property. He swore that the complainant became upset and left. The appellant called alibi evidence as to his whereabouts on the morning of May 29 and he denied other allegations made by the complainant, including that he had stalked her and her boyfriend during the days leading up to May 29.
ANALYSIS
Jury selection
- The procedure employed in this case
12The trial judge clearly departed from the statutorily mandated procedure for selecting the triers of the challenge for cause. After the initial triers were replaced as triers by the first two jurors chosen, the trial judge decided to continue with those same triers for the balance of the jury selection process rather than replace them in turn as new jurors were selected, as required by s. 640(2) of the Criminal Code:
640(2) Where the ground of a challenge is one not mentioned in subsection (1), the two jurors who were last sworn, or if no jurors have then been sworn, two persons present whom the court may appoint for the purpose, shall be sworn to determine whether the ground of challenge is true. [Emphasis added.]
13The respondent concedes that the trial judge erred in this regard but submits that the error was a mere procedural defect that occasioned no prejudice to the appellant and that the error can and should be cured by resort to s. 686(1)(b)(iv) of the Criminal Code. The appellant submits that error cannot be cured by that provision.
14There was no issue at trial that a challenge for cause was appropriate. On consent, two questions were put to prospective jurors:
Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the person charged is black?
Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that person charged is black and the complainant is white?
15The trial judge explained the jury selection procedure to the entire panel. Twenty randomly chosen members of the panel left the courtroom and two members of the panel were selected to serve as the initial triers of the challenge for cause.
16The first two jurors were selected and sworn and, in turn, they replaced the initial triers.
17When the third juror was selected and sworn, the trial judge suggested that the first two jurors should continue as the triers for the balance of the jury selection:
THE COURT: Just before we have [juror #3] sit in the jury box, technically he would become a mini-trier, but I am leaving the option open to counsel that we continue with these two, if you are satisfied. Ms. Henschel?
CROWN COUNSEL: I am satisfied with that.
THE COURT: Okay. It just saves switching the hats of each of them as they come forward, and if counsel are content, then I think we can modify the rules a little bit to expedite matters.
DEFENCE COUNSEL: I don’t think there is any impediment, unless I’m…
THE COURT: The Quebec Court of Appeal says there is no impediment, but I don’t know if all the other courts of appeal are in agreement, but counsel are in agreement, so that covers off the situation, okay? So, we will just have him sit in number three. You will stay where you are and we will continue. We will just have the same mini-triers for the balance of the jurors, okay? [Emphasis added]
18The first two jurors continued to serve as the triers for the challenge for cause until the entire jury was empanelled.
19Counsel have been unable to find any decision of the Quebec Court of Appeal or, for that matter, of any other court, to support the procedure adopted by the trial judge. I agree with the submission that the “shall” language of s. 640(2) makes the provision mandatory and the Criminal Code thus requires that the challenge for cause be conducted according to its terms. The trial judge’s failure to follow the statutorily mandated procedure resulted in ten members of the jury being selected by the same two triers who, according to the explicit language of the Criminal Code, were not the individuals who had jurisdiction to make that decision.
2. Jury selection procedures in the Criminal Code
20Certain aspects of the jury selection procedure are directory in nature. Parliament has recognized this in s. 643(3) by describing the procedures outlined in ss. 631, 635, 641 and 643 as being “directions” and stating that the failure to comply with such directions “does not affect the validity of a proceeding.” It is significant that Parliament excluded s. 640 from the list of sections covered by this saving provision.
21It is also the case that trial judges must be afforded some latitude or discretion where the Criminal Code does not specifically address the issue. For example, in R. v. Brown (2002), 166 C.C.C. (3d) 570, this court held, at paras. 17-19, that it is “preferable” to replace one of the initial triers with the first juror sworn rather than wait to replace both initial triers until two jurors have been sworn. Similarly, in R. v. Gayle (2001), 154 C.C.C. (3d) 221, leave to appeal to S.C.C. refused, (2001) 160 O.A.C. 199, this court rejected the contention that the trial judge erred by excusing a potential juror when the two triers could not agree on whether the prospective juror was partial given the permissive language of ss. 632 and s. 640(4).
22On the other hand, trial judges have no inherent authority to modify the codified procedure for jury selection even where it may seem expeditious to do so. In R. v. Gayle, supra, at para. 53, this court stated:
It goes without saying that the statutory provisions governing jury selection must be followed, and that the discretion I am describing is limited to what is conferred on a fair reading of those very provisions.
23As Dickson C.J. stated in R. v. Barrow (1987), 38 C.C.C. (3d) 193 at 206 (S.C.C.), “The selection of an impartial jury is crucial to a fair trial.” Dickson C.J. observed, at pp. 208-209, that the Criminal Code sets out a “comprehensive scheme” and that trial judges have no authority “to upset the balance of the carefully defined jury selection process.” The challenge for cause process may seem “cumbersome, repetitive, and wasteful” to some trial judges, but they must be mindful that looking for ways “to speed it up…can lead to impermissible corner-cutting”: R. v. Douglas (2002), 170 C.C.C. (3d) 126 (Ont. C.A.) at para. 19, per Moldaver J.A. Challenges for cause are vital to ensuring a fair trial by an impartial jury; “The significance of the challenge process to both the appearance of fairness, and fairness itself, must not be underestimated”: R. v. Parks (1993), 84 C.C.C. (3d) 353 at 362 (Ont. C.A.) per Doherty J.A, leave to appeal to S.C.C. refused, (1993) 87 C.C.C. (3d) vi.
3. The application of the curative proviso, s. 686(1)(b)(iv), to errors in jury selection
24The respondent concedes that the trial judge erred by adopting a method of jury selection that did not conform to that prescribed by the Criminal Code. The respondent rests its case entirely on the curative proviso, s. 686(1)(b)(iv):
686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(b) may dismiss the appeal where
(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby
25The respondent argues that as each challenge for cause was decided by two jurors, the spirit, if not the letter, of s. 640(2) was followed. The respondent submits that the failure to follow the dictates of s. 640(2) was a minor procedural irregularity to which the appellant consented and which caused the appellant no prejudice as it cannot be demonstrated that if the proper procedure had been followed, different jurors would have been selected.
26I am unable to accept the respondent’s submission that s. 686(1)(b)(iv) is capable of curing the error at issue on this appeal. In my view, the trial judge’s failure to follow s. 640(2) cannot be described as a minor procedural irregularity. Parliament expressly directed that jurors are to act as triers on the challenge for cause in a rotating fashion. That statutorily mandated procedure specifically assigns jurisdiction to decide the important issue of the impartiality of each prospective juror to a new combination of triers. By requiring that the triers rotate, s. 640(2) has the effect of ensuring, to the maximum extent possible, that the responsibility for determining the challenge for cause is shared by all jurors but the last juror selected. By spreading the authority to decide the challenge for cause in this manner, s. 640(2) guarantees that a variety of views and perspectives will be brought to bear on the fundamental question of how the jury is to be constituted. In my view, a departure from this carefully constructed scheme for deciding who shall sit in judgment of the accused cannot be described as a minor procedural defect, nor is it an error that can be cured by applying s. 686(1)(b)(iv) as that section has been interpreted by this court and by the Supreme Court of Canada. The court that tried and convicted the appellant was improperly constituted. As the trial court never had jurisdiction to try the appellant, s. 686(1)(b)(iv) has no application.
27While there is no case precisely on point, the weight of authority is against the application of s. 686(1)(b)(iv) to cure departures from mandatory Criminal Code provisions relating to jury selection.
28The scope of s. 686(1)(b)(iv) was considered by Arbour J. in R. v. Kahn (2001), 2001 SCC 86, 160 C.C.C. (3d) 1 (S.C.C.). Writing for the majority, at para. 11 Arbour J. adopted the analysis of this court in R. v. Cloutier (1988), 43 C.C.C. (3d) 35:
[T]his subsection expands the remedial powers of courts of appeal by permitting the dismissal of appeals in case of any procedural irregularity previously perceived as having caused a loss of jurisdiction at trial, as long as the accused suffers no prejudice and as long as the trial court maintained its jurisdiction “over the class of offence[s]”.
29As Arbour J. noted, at para. 12, this provision was enacted to extend the curative proviso “to put an end to the jurisprudence holding that procedural errors having caused a loss of jurisdiction in the trial courts could not be cured, even on appeal” and, at para. 13, to overcome a body of case law “replete with complex decisions distinguishing between the various jurisdictional consequences of procedural errors both pre-trial, at trial and post-conviction.” The list included such issues as whether a limitation defence in a summary conviction went to jurisdiction, issues of territorial jurisdiction and challenges to the form of the indictment. While Arbour J. included in her list, at para. 14, “irregularities in jury selection” as an example of the “procedural irregularities which were said to be of a jurisdictional nature” she cited, without any expression of disapproval, R. v. Rowbotham (1988), 41 C.C.C. (3d) 1, a decision of this court made after the proviso was amended to extend to jurisdictional errors. As I will explain, Rowbotham held that certain errors in the jury selection process were not amenable to cure under s. 686(1)(b)(iv).
30Arbour J. summarized the scope of s. 686(1)(b)(iv) at para. 16:
In short, s. 686(1)(b)(iv) of the Code was enacted in the face of a body of case law that was becoming increasingly technical and complex and which had restricted considerably the possibility for appellate courts to conclude that an error at trial was not such that it required a setting aside of the verdict. This provision is rarely invoked, because procedural irregularities that result from an error of law, which is most of them, are properly dealt with under s. 686(1)(b)(iii) of the Code. Prior to the enactment of s. 686(1)(b)(iv) in 1985, some procedural irregularities, although they amounted to errors of law, had been ruled “jurisdictional” and courts had decided that they could therefore not be cured by the proviso since jurisdiction had been lost. In that context it is clear that the new provision was not meant to deal with trivial procedural irregularities which in any event would have been curable under the proviso as long as they constituted errors of law. I agree with Goodman J.A. in Cloutier [supra] that s. 686(1)(b)(iv) was enacted to cure serious procedural irregularities, otherwise amounting to errors of law, in cases where under the then existing case law, jurisdiction over the person, but not over the offence, had been lost. I also agree with Goodman J.A. that under this new subparagraph, since the procedural irregularities in issue would have been serious ones, it is appropriate to infer prejudice without requiring in every case that the accused demonstrate prejudice. The inference may of course be rebutted and the test of prejudice under that subsection should be the same as the no substantial wrong or miscarriage of justice, under s. 686(1)(b)(iii), which has been the subject of extensive pronouncement by this Court.
31In R. v. Rowbotham, supra, the original jury panel was exhausted without a full jury being empanelled. Several prospective jurors from the original panel had been stood aside by Crown counsel. Section 570(1) (now s. 641(1)) required that the stand asides be recalled and sworn unless challenged by either the accused or the prosecutor or unless cause is shown why they should not be sworn.
32After this procedure was followed, a full jury had still not been selected. At this point the trial judge resorted to the jury panel selected for the next week as if it were part of the initial panel, but again, this failed to produce a full jury. Once again, several prospective jurors had been stood aside by the Crown. This time, however, the trial judge ruled that he would not apply s. 570(1) to require the Crown to go to any of the stand asides. The panel selected for the following week was then used to complete the jury selection process.
33This court, per Martin, Cory and Grange JJ.A., allowed an appeal from conviction on the ground that the jury had not been selected according the requirements of the Criminal Code. Rather than resorting to the new panels, the trial judge should have summonsed talesmen to be added to the original panel, pursuant to s. 571 (now s. 641) of the Code. If a full jury cannot be selected even with the talesmen, any talesman stood aside by the Crown must be called again. This court ruled that that the accused was deprived of the right to a trial by a lawfully constituted jury and rejected, at p. 36, any suggestion that this could be cured by s. 686(1)(b)(iv):
It was not suggested during argument that s. 613(1)(b)(iv) [the same provision as the present s. 686(1)(b)(iv)] was applicable in the circumstances here and, in any event, we do not consider it to be applicable to the error which occurred in this case in the jury selection process.
34In R. v. Bain (1989), 47 C.C.C. (3d) 250, rev’d on other grounds (1992), 69 C.C.C. (3d) 481 (S.C.C.), this court set aside an acquittal, holding that the trial judge had erred by refusing to allow the Crown to stand aside potential jurors on the ground that this violated the accused’s right to a fair trial and equality guaranteed by ss. 7, 11(d) and 15 of the Charter. Finlayson J.A., writing for the court, rejected the accused’s submission that the curative provisions of s. 613(1)(b)(iv) (now s. 686(1)(b)(iv)) could cure the failure to follow the procedure mandated by the Criminal Code. Finalyson J.A. noted, at p. 253, that in R. v. Cloutier, supra, at 46, Goodman J.A. had found that:
[T]he words “the trial court had jurisdiction over the class of offence of which the appellant was convicted” in s. 613(1)(b) (iv) make it quite clear that the new provision was intended to give to the Court of Appeal the discretionary power to dismiss an appeal where a court has jurisdiction in the first instance but has lost jurisdiction as a result of some procedural irregularity.
and, at p. 51:
It is my opinion that the wording of s. 613(1)(b)(iv) is such that it clearly indicates that Parliament intended by its enactment to give to the Court of Appeal the right to apply its curative provisions by exercising its discretion in favour of dismissing an appeal in cases where the trial court had jurisdiction over the class of offence of which the appellant was convicted notwithstanding the fact that an error of law had been made by a procedural irregularity which was so serious in nature as to cause a loss of jurisdiction provided that the Court of Appeal is of the opinion that the appellant suffered no prejudice thereby.
35In Cloutier, the loss of jurisdiction arose because the accused had been excluded from the courtroom for a short period during the course of the trial. Finlayson J.A. refused to apply Cloutier, at p. 253:
In this case, we are dealing with a more fundamental matter. If the jury selection process does not comply with the relevant sections of the Code, the court never obtains jurisdiction to proceed to trial. It is not a question of an apparent loss of jurisdiction during the trial because of the temporary absence of the accused. It is rather a question of whether or not the court was properly constituted in the first place.
36Finlayson J.A. went on to observe, at p. 253, that in Rowbotham the failure to follow the jury selection process mandated by the Code was held to be “fatal to the jurisdiction of the court” and that it “cannot be cured by invoking s. 613(1)(b)(iv).”
37Bain was reversed by the Supreme Court of Canada on the issue of whether the Crown’s right to stand aside violated the accused s. 11(d) Charter right to a fair trial. As a result, the two majority judgments (per Cory J., Lamer C.J. and La Forest J. concurring; Stevenson J.) did not consider the application of the curative proviso. The dissenting judgment, written by Gonthier J. (McLachlin and Iacobucci JJ. concurring) would have rejected the Charter challenge to the Crown’s right to stand aside jurors and accordingly had to consider the application of the proviso. Gonthier J. agreed with this court’s reasoning that the defect was fundamental to the jurisdiction of the court and that it could not be cured. He found, at pp. 509-510, that this court had rightly distinguished Cloutier:
Section 686(1)(b)(iv) speaks of a “trial court”. A trial court, for indictable offences, is defined at s. 471 of the Code:
- Except where otherwise expressly provided by law, every accused who is charged with an indictable offence shall be tried by a court composed of a judge and jury.
This definition is repeated in s. 536(2) of the Code, in the address to the accused for his election.
As can be seen from s. 471 of the Code, a jury is more than an incident or a procedural tool in a trial case. The jury is the court, together with the trial judge. If the jury is not constituted according to the rules, the court exists no more than if the judge had been unlawfully appointed. In the case at bar, the problem is not one of application of the jury selection rules, which could have been saved by s. 686(1)(b)(iv) of the Code. The rules were changed. The jury was selected pursuant to other rules than those set out in the Code. There was therefore no trial court properly constituted, and the appropriate sanction is annulment.
This holding does not detract from the classification proposed in Cloutier, supra. In order for the saving provisions of s. 686(1)(b)(iv) of the Code to find application, not only must the court have jurisdiction over the class of offence, but it must also be a court within the meaning of the Code. Any failure with respect to these conditions constitutes an error falling in the first category outlined in Cloutier, supra. [Emphasis added.]
38While this is a dissenting judgment, Gonthier J. was not dissenting on this point. As I have noted, the majority expressed no opinion on this issue as it decided the case on other grounds. Moreover, Gonthier J.’s analysis of the reach of Cloutier and s. 686(1)(b)(iv) was expressly adopted by Arbour J., writing for the majority, in R. v. Kahn, supra, at para. 11.
39These authorities indicate that failure to follow the fundamental rules mandated by the Criminal Code in relation to the jury selection process cannot be cured by the proviso.
40I note that this conclusion is not at odds with R. v. Brown (2005), 194 C.C.C. (3d) 76, where this court held that the trial judge erred by giving both the Crown and the accused an additional peremptory challenge when a sworn juror had to be replaced during the jury selection process, but that this error caused no prejudice to the accused who had actually used the additional challenge. No reference was made to s. 686(1)(b)(iv) and as the error worked to the advantage of the accused, it is difficult to see how it could provide the basis for a successful ground of appeal.
41I view the error at issue here as being at least as serious as those in Rowbotham and Bain and to fall into the category that fatally infects the jurisdiction of the court the try the accused. The impartiality of nine members of the jury was not assessed in the manner prescribed by the Criminal Code. The Code assigned certain individuals the responsibility for making that decision to ensure a fair trial before an impartial jury. To “expedite” the selection of the jury, the trial judge erroneously assigned that very responsibility to someone else. He had no authority to do so and, as a result, the jury was not properly constituted. On the authority of the decisions of this court in Rowbotham and Bain, approved by Gonthier J. in the Supreme Court of Canada in Bain, in turn approved of by Arbour J. in Khan, the curative proviso in s. 686(1)(b)(iv) of the Code has no application to this appeal.
42Accordingly, I would give effect to this ground of appeal.
Other issues
43As I have concluded that the conviction must be set aside and a new trial ordered, it is neither necessary nor desirable for me to deal with the additional issues raised by the appellant. While the other issues were fully argued, it is my view that they are best left to the trial judge to resolve on the basis of the evidence presented at the new trial. The question of the admissibility of the 911 call as part of the res gestae, as well as the issue of the alleged waiver of the appellant’s s. 10(b) rights, both fall to be determined on relatively well-settled legal principles. In both instances, the more difficult question is to assess the evidence and to decide which side of the line it falls on. In both instances, the trial judge ruled in favour of the Crown, but as I would allow the appeal, it goes without saying that I certainly do not consider his rulings to be in any way binding at the new trial. Similarly, the issues of the instruction as to credibility and the Corbett ruling are matters best left to the judge at the new trial to resolve in light of the evidence as it unfolds at the new trial. Finally, as I would allow the conviction appeal, it is unnecessary to deal with the issues raised as to sentence.
CONCLUSION
44For these reasons I would allow the conviction appeal and direct a new trial.
RELEASED: AUG 28 2007 “Robert J. Sharpe J.A.”
S.B. “I agree S. Borins J.A.”
“I agree David Watt J. (ad hoc)”
