CITATION: R. v. Katoch, 2009 ONCA 621
DATE: 20090821
DOCKET: C48116
COURT OF APPEAL FOR ONTARIO
Rosenberg, Simmons and Cronk JJ.A.
BETWEEN:
Her Majesty the Queen
Appellant
And
Amar Katoch
Respondent
Milan Rupic, for the appellant
Mark J. Sandler and Jill R. Presser, for the respondent
Heard: January 22, 2009
On appeal from the acquittal entered by Justice Frank Newbould of the Superior Court of Justice, sitting with a jury, dated November 22, 2007.
Rosenberg J.A.:
[1] The Crown appeals from the acquittal of the respondent, a member of the Toronto Police Service, on charges of assault, attempt to obstruct justice and perjury. These offences arose out of a demonstration by the Ontario Coalition Against Poverty (“OCAP”) in Toronto in November 2003. Police officers were attempting to prevent members of OCAP and their sympathizers from occupying a vacant building. The Crown alleged that the respondent unlawfully assaulted one of the demonstrators, Alex Levant, and then created a false record of the events in his memo book to cover up the assault. Levant was charged with assaulting the respondent as well as assaulting and obstructing another police officer. The Crown alleged that the respondent then perjured himself at Levant’s trial. The incident involving the respondent and Levant was captured on videotape by an independent third person. The videotape appeared to show the respondent punching and then arresting Levant for no reason. When Levant’s defence counsel disclosed the videotape in the course of his trial, the prosecution dropped the charges against Levant. Sometime later, the Crown charged the respondent.
[2] The respondent was tried by Newbould J. and a jury. The principal grounds of appeal concern the jury selection procedure. The Crown submits that the trial judge erred in permitting the respondent to challenge potential jurors for cause based on their affiliation with OCAP. The Crown also submits that the challenge for cause process itself was flawed. In the result, says the Crown, the jury was improperly constituted resulting in serious jurisdictional errors.
[3] For the following reasons, I would dismiss the appeal.
THE GROUNDS OF APPEAL
[4] The appellant’s principal grounds of appeal concern the jury selection process. I will set out below in greater detail the circumstances of the jury selection. In short, the appellant submits that the defence failed to make out a case for challenge for cause; was permitted to ask improper questions as part of the challenge for cause; and the procedure adopted by the trial judge improperly deprived the triers of their role in determining the truth of the challenge.
[5] The appellant also submits that the trial judge erred in refusing to allow Crown counsel at trial to rely on a theory that the respondent was guilty of assault because he used excessive force. Finally, the appellant submits that defence counsel’s jury address was inflammatory and improper.
THE FACTS
The OCAP Demonstration
[6] On November 8, 2003, the complainant, Alex Levant, joined in a demonstration organized by OCAP at an abandoned house on Gerrard St. in the City of Toronto. OCAP intended, if possible, to occupy the house as part of a campaign against homelessness. A number of uniformed police officers, including officers of the bicycle unit, were assigned to prevent the demonstrators from illegally occupying the house. The respondent was a member of the bicycle unit. The officers used their bicycles to form a barrier and then stood behind the barrier.
[7] Just before the incident, the demonstrators were attempting to force their way past the police officers. Many of the officers were using their bicycles to push the demonstrators back. The respondent, however, stepped over his bicycle and pushed Levant, who was carrying a flagpole. Levant in turn put his hand on the respondent’s shoulder. The respondent turned and punched Levant in the head and took him to the ground where he was held and handcuffed by a number of officers.
[8] Levant was arrested and taken to the police station, where he was charged with assaulting the respondent as well as assaulting and obstructing another officer, Constable Melanie Mathieu. The respondent recorded his version of the incident in his police memo book. According to the respondent, he saw Mathieu attempting to arrest a female. He saw a male (Levant) grab Mathieu and pull her back. The respondent therefore went to arrest the male who turned around and punched him. The respondent punched the male, took him to the ground and advised him he was under arrest. The male resisted.
[9] Levant’s trial for the charges of assault police and obstructing police took place on September 23 and 24, 2004. The respondent was a Crown witness and he testified in a manner consistent with the notes in his memo book. During a break in the proceedings while the respondent was being cross-examined, counsel for Levant disclosed the existence of a videotape to counsel for the prosecution. This videotape had been made by a film student who had no association with OCAP or the police. The videotape appeared to be inconsistent with the respondent’s version of events. As a result, Crown counsel asked that the charges against Levant be withdrawn.
[10] The respondent testified at his own trial. He maintained that he saw Mathieu step forward to arrest a female demonstrator. He saw a male grab Mathieu by the right shoulder and yank it. He explained that he stepped over the line of bicycles because he thought Mathieu was in a hostile crowd and in need of assistance. Levant blocked his way, and so the respondent grabbed him by the left side. Levant turned around and punched him in the chest. The respondent then swung at Levant to distract him. Levant started running and so the respondent chased him, took him to the ground, handcuffed him and placed him under arrest. The respondent testified that he punched Levant because he thought that Levant had assaulted both Mathieu and himself and interfered with Mathieu’s arrest of the female demonstrator.
[11] The respondent had suffered an injury about a year before this incident. As a result of the injury, when his left hand was up and his right hand pulled back, he felt a sharp pain in the chest. He testified that when Levant pushed his right arm, he felt a pain in his chest that felt like he had been punched in the chest. He felt that he had to punch Levant immediately to distract him. His training taught him to act swiftly, decisively and with greater force than had just been applied to him to gain control in such circumstances. After viewing the videotape, the respondent agreed that he had been mistaken in his belief that Levant had punched him and pulled Mathieu.
[12] The respondent testified that he believed what he wrote in his memo book was true and that his evidence at Levant’s trial, given without the aid of the videotape, was also true.
The Jury Selection
(1) The Basis for the Challenge for Cause
[13] The defence sought to challenge prospective jurors for cause based on potential partiality relating to their connection to OCAP and to pre-trial publicity. In support of the application, the defence filed various media accounts and materials from the Internet. The materials were of two kinds. One set of materials showed pre-trial publicity about the respondent’s case, including reference to some evidence that the trial judge had ruled to be inadmissible, and opinions from Levant’s criminal and civil counsel characterizing the respondent as being extremely dishonest and involved in a serious abuse of police power.
[14] The other materials related to OCAP and CUPE Local 3903. These materials included articles written by members of and people associated with OCAP, and appeared to demonstrate that OCAP members advocated unlawful action and confrontation with the police, as well as what the defence alleged was a hatred of the police. The materials also showed that CUPE Local 3903 had established a “flying squad” that would participate in various demonstrations, including demonstrations by OCAP. Levant was a member of CUPE Local 3903.
[15] Crown counsel at trial did not file any materials on the challenge for cause issue. With respect to the pre-trial publicity, she submitted that the articles relied upon were dated, the most recent having been published two years earlier. With respect to OCAP and CUPE Local 3903, Crown counsel submitted that there was no basis for a challenge for cause because the defence could not demonstrate bias within the community at large, and it was not sufficient to demonstrate anti-police bias in some members of OCAP or CUPE Local 3903. Further, even if the defence could show widespread bias, it had to show that people with those views would not be able to decide the case fairly by setting aside those views.
(2) The Trial Judge’s Ruling
[16] The proposed challenge for cause questions were as follows:
In this case, Amar Katoch is a police officer with the Toronto Police Service. He is charged with assault, perjury and attempt to obstruct justice in respect of allegations stemming from the Ontario Coalition Against Poverty (O.C.A.P.) demonstrations where O.C.A.P. demonstrators took over a building at 558 Gerrard Street East on November 8th, 2003.
Are you or is any family member or partner a member or former member of O.C.A.P. (The Ontario Coalition against Poverty) or C.U.P.E. 3903?
Have you or any family member or partner provided financial support to O.C.A.P.?
Have you or any family member or partner participated in any demonstrations with O.C.A.P.?
What do you do for a living?
Have you read, seen or heard anything about this case in the newspapers, on radio, television or internet or in any literature or other format?
Have you discussed this case at length with anyone?
As a result of anything you have read, seen, heard, or discussed, or as a result of your support of O.C.A.P., have you formed any opinion as to the guilt or innocence of Amar Katoch?
Having regard to anything you have either read, seen, heard or discussed, or as a result of your support of O.C.A.P. and any opinion you may have formed, do you believe that you can be impartial as between the prosecution and the defence and try this case fairly based solely on the evidence heard at this trial?
[17] The trial judge ruled that the defence could not ask any questions relating to CUPE Local 3903, nor any questions relating to pre-trial publicity. The parties agreed that the question about occupation was unnecessary. In the result, the challenge for cause consisted of the introduction and the following five questions:
Are you or is any family member or partner a member or former member of the Ontario Coalition Against Poverty?
Have you or any family member or partner provided financial support to OCAP?
Have you or any family member or partner participated in any demonstrations with OCAP?
Have you ever formed any opinion as to the guilt or innocence of Amar Katoch?
Do you believe that you can be impartial as between the prosecution and the defence and try this case fairly based solely on the evidence heard at this trial?
(3) The Crown seeks Pre-screening of Jurors
[18] After the trial judge ruled that the defence would be entitled to challenge potential jurors for cause on the basis of their relationship to OCAP, Crown counsel asked the trial judge to pre-screen jurors under s. 632 of the Criminal Code by asking them whether they had any family members who are police officers or who work with the police service. She later narrowed that submission to anyone with an immediate family member who is a member of the Toronto Police Service. Then, just at the conclusion of her submissions, Crown counsel suggested that the question could become part of the challenge for cause, although she maintained it could be done under s. 632. Defence counsel objected to the Crown request on the basis that it could not properly be part of pre-screening and there was no material to support a challenge for cause.
[19] The trial judge ruled that the questions proposed by the Crown could not be posed by way of pre-screening. He did not expressly rule on whether the questions could be asked as part of the challenge for cause.
(4) The Challenge for Cause Procedure
[20] Just before the jury selection was to begin, the trial judge said the following to defence counsel:
I am assuming if the answer to the first three questions is no there is nothing for the triers to decide, correct?
[21] Defence counsel agreed and Crown counsel did not raise any objection. When the first potential juror was challenged for cause, he answered “no” to the first three questions. At this point the trial judge interjected as follows:
THE COURT: There will be no decision to make, triers, because it is only if the answer is yes, then there would be two more questions.
THE REGISTRAR: Triers, have you reached your decision?
THE COURT: There is no decision for the triers. We have agreed, Mr. Registrar, unless there is a yes answer to the first questions, the triers will not have to make a decision. [Emphasis added.]
[22] Crown counsel again did not raise any objection.
[23] Each challenge for cause proceeded in accordance with the procedure outlined above. Defence counsel challenged the prospective jurors for cause by asking the first three questions. All of the first 14 prospective jurors answered “no” to the first three questions, and therefore the triers were not called upon to make a decision. Of the 14, the defence used peremptory challenges on five jurors, Crown counsel used two of hers, and seven jurors were sworn. The 15th prospective juror, in response to the question about financial support to OCAP, said the following:
I know I haven’t. I don’t know that my wife has. She contributes to things like Daily Food Bank and the likes. I am not 100 percent sure.
[24] The prospective juror answered “no” to the other two questions. The trial judge and the parties obviously interpreted the prospective juror’s answer to the financial support question as a “no”, since the other questions were not put to the juror. The defence used one of their peremptory challenges on this juror.
[25] Prospective juror number 16 became the eighth juror. Prospective juror 17 answered that it was possible that her daughter had provided financial support to OCAP or may have participated in a demonstration with OCAP as “she is into things like that”. In the result, the other questions were put to this juror. The triers found her to be acceptable. Defence counsel used another of his peremptory challenges.
[26] The remainder of the jury selection process proceeded uneventfully. All the remaining prospective jurors answered “no” to the first three questions. Defence counsel used four more of his peremptory challenges. The 25th potential juror became the 12th juror. However, the following day, two jurors sent notes to the trial judge which led the trial judge and the parties to agree they should be excused. Since no evidence had yet been heard, the jury selection process continued. The next two prospective jurors answered “no” to the first three questions. They became the last two jurors.
ANALYSIS
The Jury Selection
[27] The Crown alleges five different errors concerning the jury selection and the challenge for cause, and claims that the overall impact of these errors necessitates a new trial. First, the Crown submits that the defence failed to make out a case for challenge for cause. Second, the content of the questions was improper, as they were overbroad, asymmetrically failed to consider possible bias in favour of the police, and constituted an impermissible inquiry into the political opinions and beliefs of potential jurors and their family members. Third, the challenge process provided information to defence counsel, which he then used in exercising his peremptory challenges. Fourth, since the questions only referred to OCAP, the challenge for cause process improperly cast doubt or suspicion on OCAP and its supporters, including the complainant, Levant, which began a process of demonizing OCAP and its supporters. Fifth, the challenge for cause process adopted by the trial judge stripped the triers of their role in determining the acceptability of potential jurors. I will deal with each of these arguments in turn.
(1) Was there a basis for Challenge for Cause?
[28] The Crown submits that the defence failed to demonstrate the existence of a widespread bias that raised a realistic potential for partial juror behaviour. Without any evidence, it was not open to the trial judge to assume that the jury pool included individuals harbouring such bias. Alternatively, the Crown submits that even if there was widespread bias, the defence failed to show that jurors would be unable to set aside their bias and render a true verdict.
[29] In R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 32, McLachlin C.J. explained that s. 638(1)(b) of the Criminal Code, which permits challenges for cause on the basis of a lack of indifference, “generally” requires satisfying the court on two matters:
(1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision.
[30] These two components are directed to the question whether there exists a “realistic potential for partial juror behaviour”: Find at para. 33. The first component, referred to in Find as the attitudinal component, is concerned with the existence of a material bias, that is, a bias that is relevant to the particular case. As it was put in Find, at para. 36: “What must be shown is a bias that could, as a matter of logic and experience, incline a juror to a certain party or conclusion in a manner that is unfair.” At para. 37, McLachlin C.J. gave as examples bias that may flow from a personal interest in the matter to be tried, prejudice arising from prior exposure to the case, and prejudice against members of the accused’s social or racial group. This component involves two elements: the existence of a material bias, and the question whether it is widespread.
[31] In my view, while the defence material might have been more comprehensive, it did establish a basis upon which the trial judge could find as a matter of logic and experience that a bias existed, at least in members of OCAP. The material showed that OCAP advocated unlawful action, confrontation with the police and hatred of the police. The Crown adduced no evidence to show that the defence material portrayed OCAP in a false light or misrepresented the aims of the organization. Given the specific issues in the case, especially the use of force by the police to prevent allegedly illegal action by the OCAP demonstrators, the element of material bias was made out.
[32] The second element of the attitudinal component is that the material bias be widespread. McLachlin C.J. explained this element at para. 39 of Find in these terms:
The second concept, "widespread", relates to the prevalence or incidence of the bias in question. Generally speaking, the alleged bias must be established as sufficiently pervasive in the community to raise the possibility that it may be harboured by one or more members of a representative jury pool (although, in exceptional circumstances, a less prevalent bias may suffice, provided it raises a realistic potential of juror partiality: Williams, supra, at para. 43). If only a few individuals in the community hold the alleged bias, the chances of this bias tainting the jury process are negligible. For this reason, a court must generally be satisfied that the alleged bias is widespread in the community before a right to challenge for cause may flow. [Emphasis added.]
[33] As this excerpt from Find demonstrates, McLachlin C.J. was at pains to point out that proof that the bias is widespread is generally required, and there may be exceptional circumstances where something less will suffice. The passage from R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, referenced by McLachlin C.J., reads as follows:
I add this. To say that widespread racial prejudice in the community can suffice to establish the right to challenge for cause in many cases is not to rule out the possibility that prejudice less than widespread might in some circumstances meet the Sherratt test. The ultimate question in each case is whether the Sherratt standard of a realistic potential for partiality is established.
[34] The trial judge was alive to the question of whether the material bias was widespread. He referred to para. 39 of Find and para. 43 of Williams and concluded that there were exceptional circumstances in this case, “or at least there is such a doubt raised that it is better to err on the side of caution and permit the challenge regarding membership in or support of O.C.A.P.”.
[35] While the trial judge did not explicitly identify the exceptional circumstances, it seems to me that the record supports such a finding. This was an exceptional case in the sense that offences alleged against the respondent arose out of an unusual context. On the material filed, OCAP members supported some unusual beliefs, beliefs that are arguably inconsistent with the rule of law. The respondent was charged as a result of actions he claimed to have taken to uphold the law. Because of the large pool of potential jurors in the City of Toronto, it was unlikely that anyone who was a member of OCAP or supported its goals was in this particular jury array. However, if there was such a person, there was a realistic potential that he or she could poison the process, given the nature of the beliefs held by OCAP members and the particular issues in this case. I pause to add that I should not be taken as accepting that this is an accurate picture of OCAP or its members. However, this was the record presented to the trial judge and, as I have said, the Crown adduced no evidence to undermine its accuracy.
[36] The second component of the challenge for cause test is referred to as the behavioural component of partiality. This component asks whether some jurors will be unable to set aside their bias despite the cleansing effect of the trial process. However, as McLachlin C.J. points out at para. 33 of Find, the attitudinal and behavioural components are not watertight compartments. Rather, they serve as “guidelines for determining whether, on the record before the court, a realistic possibility exists that some jurors may decide the case on the basis of preconceived attitudes or beliefs, rather than the evidence placed before them.” For many of the same reasons that the trial judge could find that the attitudinal component was made out, it was open to the judge to find that the behavioural component was made out.
[37] The trial judge could reasonably infer that supporters of OCAP would have stereotypical attitudes about the police that would be highly resistant to trial safeguards. The Crown submits that the defence adduced no evidence that supporters of OCAP could not be true to their oath. However, the behavioural component may be “a matter of proof, judicial notice or simply reasonable inference as to how bias might influence the decision-making process”: Find at para. 47.
[38] Finally, it must be remembered that the decision of whether to allow a challenge for cause is an exercise of discretion. In Find at para. 45, McLachlin C.J. held that if the trial judge is in doubt, “the judge should err on the side of permitting challenges. Since the right of the accused to a fair trial is at stake, ‘[i]t is better to risk allowing what are in fact unnecessary challenges, than to risk prohibiting challenges which are necessary’: Williams, supra, at para. 22”. In my view, the trial judge did not err. He was well aware of the record, had the benefit of extensive submissions from counsel, and applied the proper test. I have not been persuaded that this court should interfere with his exercise of discretion.
(2) Overbreadth, asymmetry and impermissible inquiry into political beliefs
[39] The Crown submits that even if the trial judge did not err in permitting the defence to challenge for cause, the questions defence counsel were allowed to ask were too broad and represented an impermissible inquiry into the political opinions and beliefs of the jurors. The Crown also points out that there is a lack of symmetry in that the questions focus only on OCAP and do not refer to possible bias in favour of the police. I would first observe that the submission as to the breadth of the questions is raised for the first time on appeal. Crown counsel at trial raised no objection to the scope of the questions, other than arguing that no evidentiary basis had been made out for including membership in CUPE in the challenge. The trial judge accepted that argument and the challenge for cause was limited to OCAP. On that basis alone I would be inclined not to give effect to this submission.
[40] As to the lack of symmetry of the questions, as set out above, the question of possible bias in favour of the police was raised for the first time after the trial judge’s decision on the defence challenge for cause. Crown counsel initially raised the issue on the basis that the trial judge could pre-screen jurors for police affiliation under s. 632 of the Criminal Code. The power under s. 632 is a limited one, designed to deal with cases of obvious partiality. I did not understand Crown counsel on this appeal to argue that the trial judge erred in refusing to use the s. 632 procedure for the purpose of testing pro-police bias. While Crown counsel at trial suggested that questions about relationship to the police could be added to the challenge for cause, that option was not seriously pursued at trial and Crown counsel at trial did not adduce any material to support the position that persons with some relationship with the police would have a material bias in this case.
[41] Finally, I do not accept that the challenge for cause questions constituted an impermissible inquiry into political beliefs. I agree that generally, inquiry into membership in organizations, let alone membership of family members, is impermissible and should not be allowed. However, this was an exceptional case and the questions focused on membership in OCAP, financial support for OCAP and participation in OCAP demonstrations. The questions were directly relevant to the issues in the case which concerned the manner in which an OCAP demonstration was handled by the police and, in particular, by this particular respondent. They were designed to identify potential jurors that might have the material bias in question. Membership and financial support for OCAP, as well as participation in its demonstrations, would provide relevant circumstantial evidence of such bias.
[42] I tend to agree that the questions about activities of family members were unnecessary and should not have been included. However, there was no objection by Crown counsel at trial and I can see no prejudice to the prosecution. To the contrary, it may well be that the experienced Crown counsel at trial was satisfied that an inquiry about the activities of family members was not wholly irrelevant, given that after the trial judge’s ruling on the challenge for cause, she asked the trial judge to pre-screen jurors for “whether or not they have any family members who are police officers or work with the police service”.
(3) Provided information to defence
[43] A challenge for cause strays into illegitimacy “if used merely, without more … as a ‘fishing expedition’ in order to obtain personal information about the juror”: R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at p. 533. However, since I have found that the trial judge did not err in permitting the challenge for cause in this case, it is no objection that the challenge for cause happened to produce information that might have been of use to the parties in exercising their peremptory challenges.
(4) The process of demonizing OCAP
[44] The Crown submits that the challenge for cause began a process of demonizing OCAP and its supporters, including the complainant. I do not accept this submission. The questions cannot reasonably bear that interpretation. Further, in considering this submission it is necessary to have regard to the entire challenge for cause process, which included extensive instructions from the trial judge about the purpose of the jury selection process and which emphasized the importance of impartiality.
(5) The challenge for cause process
[45] The Crown submits that the trial judge erred in withdrawing the decision whether a prospective juror was acceptable from the triers whenever the prospective juror answered “no” to the first three questions. It is submitted that this was a jurisdictional error.
[46] Even though there was no objection at trial, Crown counsel now submits that the procedure followed was fatally flawed. He relies on this court’s decision in R. v. Wade, [1990] O.J. No. 1768, which appears to stand for the proposition that once the challenge is in the hands of the triers, it must be disposed of by them. In Wade, on several occasions, Crown counsel purported to admit the challenge based on the answers from the prospective jurors. On those occasions, the prospective juror was discharged without a decision from the triers. In Wade, the court had to consider its earlier decision in R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 11 O.R. (2d) 464 at p. 479, where the court held that the other party may admit the challenge, in which case the matter is not submitted to the triers. It would seem to follow that the party making the challenge may withdraw the challenge, which was what, in effect, happened in this case. Be that as it may, the court in Wade interpreted Hubbert to the effect that it did not apply “once the trial of the truth of the challenge is in the hands of the triers”, namely, once the questioning of the prospective juror had begun.
[47] As I read this court’s decision in Wade, although it allowed the accused’s appeal because of several other errors in the charge to the jury and in answers to questions from the jury, the error in the challenge for cause procedure was held not to be a reversible error. The court began its brief discussion of that ground of appeal with the observation “[w]e do not think that any prejudice occurred in this case by what was done”. The same can be said here. I can see no possible prejudice to the Crown from the procedure followed. By their answers, the prospective jurors demonstrated that they had no material bias. There was really nothing for the triers to decide. As Mr. Sandler, counsel for the respondent, put it, there was no claim of partiality left: defence counsel was no longer pursuing the claim of partiality in respect of those prospective jurors who answered “no” to the first three questions.
[48] Further, the possible unfairness in allowing the other party to admit a challenge after questioning has begun does not occur where the challenge is simply withdrawn. The problem with allowing the other party to admit the challenge is that, in effect, that party obtains an unlimited number of peremptory challenges which the party can use with the advantage of the information gained from the challenge for cause process: see R. v. Shergill (1996), 1996 CanLII 21282 (ON SC), 4 C.R. (5th) 28 (Ont. Gen. Div.). Where the challenge is simply withdrawn, the parties remain on an equal footing; they can choose to use their peremptory challenges as they see fit. Neither side gains an advantage from the process. There was no unfairness to any party by what occurred in this case.
[49] Moreover, as it was the respondent who had brought the challenge for cause, if any party was prejudiced by the procedure adopted by the trial judge, it was the respondent. It was the respondent who was possibly deprived of a decision from triers that might have excluded a potential juror for cause, and instead forced to use his peremptory challenges. I do not see how it is open to the Crown at this juncture, having raised no objection at trial, to rely upon an error that did not prejudice its interests.
[50] The situation in this case is not unlike what occurred in R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, where the Crown, on an appeal from acquittal, sought to rely on the fact that the accused had erroneously been deprived of the right to challenge a prospective juror peremptorily. The court refused to give effect to this argument from the Crown. As Pratte J. said at p. 725 for the majority of the court:
The prosecution may not complain about the fact that the accused exercised, or failed to exercise, one of his rights of challenge: the interests of the prosecution are not affected in either case. The reason why the accused does not exercise a right of challenge matters little; whether it is the decision of the accused or that of the judge, the situation of the prosecution is in no way altered: it still retains its rights of challenge and standby. If a juror is not acceptable to the prosecution, it should not rely on the accused to challenge him: it must challenge him itself by exercising the rights conferred on it by law. [Emphasis added.]
[51] This court applied Cloutier in R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1. In that case, the trial judge had adopted an unauthorized procedure after the jury panel had been exhausted without a complete jury being selected. The court held that the procedure adopted by the trial judge deprived the accused of a statutory right conferred on them by (what is now) s. 642, and necessitated a new trial. The Crown then argued that the new trial should also be in respect of the counts on which one of the accused had been acquitted. Despite the serious nature of the error, this court held that the verdict of acquittal was not a nullity, and refused the Crown request on the basis that the holding in Cloutier was “conclusive against the Crown’s submissions on this point”: p. 73.
[52] Despite the foregoing, the Crown submits that the failure of the trial judge to strictly comply with the statutorily prescribed challenge for cause procedure amounted to a jurisdictional error, and cannot be characterized as a simple procedural defect that had no prejudicial effect. On this point, the Crown relies both on this court’s decision in R. v. W.V., 2007 ONCA 546 and the Supreme Court of Canada’s decision in R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694.
[53] In W.V., the trial judge had the first two jurors sworn act as the triers for the rest of the jury selection, instead of having each challenge decided by the two most recently sworn jurors, as mandated by s. 640(2). The court held that the trial judge has no inherent authority to modify that procedure, and that it was crucial to the empanelling of an impartial jury. The court further held that the curative provision of s. 686(1)(b)(iv) of the Criminal Code had no application, at para. 26:
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.
[54] In Barrow, the trial judge had potential jurors sworn who he then personally questioned on grounds of partiality. He did so out of earshot of the accused and over the objection of the accused. Dickson C.J., in addressing the effect on the case of a provision of Nova Scotia’s Juries Act, S.N.S. 1969, c. 12, held, at p. 714:
The province cannot give the judge any power to make decision as to partiality and any judge who attempts to participate in such decisions usurps the function of the jurors established by s. 569(2) [now s. 640(2)]. Usurpation of this sort is so severe an error of law by the judge that it mandates a new trial, even if no prejudice to the accused can be shown. The judge’s role is to supervise trials of partiality, not to decide them. [Citation omitted.]
[55] In my view, these cases do not support the Crown’s position. It may well be, following Wade, that the procedure adopted by the trial judge in this case was improper and that he should have let the triers decide the challenge for cause, despite the negative answer to the first three questions. However, that error is of a different nature than that in W.V. The trial judge in W.V. failed to comply with a specific statutory component of the jury selection process. In contrast, the Criminal Code does not expressly prohibit a party from withdrawing or abandoning a challenge for cause, as happened in this case. Additionally, the procedure followed in this case did not undermine the impartiality of the jury.
[56] As to Barrow, Dickson C.J’s statement in that case was said in the context where the judge truly arrogated to himself a power to decide disputed questions of partiality. In this case, there was no longer any dispute about the juror’s partiality once they answered “no” to the first three questions. Defence counsel, whose challenge it was, accepted that to be the fact and Crown counsel did not dispute the point. In my view, what occurred in this case did not suffer the same fundamental defect with which the court in Barrow was concerned.
[57] My conclusion that the lack of prejudice occasioned by the challenge for cause procedure adopted in this case justifies dismissing the appeal gains assistance from the provisions of s. 686(1)(b)(iv) of the Criminal Code, which gives an appellate court the power to dismiss an appeal by an accused where “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”. This provision does not directly apply to Crown appeals. However, in R. v. Vezeau, [1977] 2 S.C.R. 27, the court held that even though (what is now) s. 686(4), which deals with Crown appeals, does not contain a “no substantial wrong or miscarriage of justice provision”, as is found in s. 686(1)(b)(iii) for appeals by accused from conviction, the court nevertheless should apply an analogous test where the Crown appeals from an acquittal. Thus, the court held that in deciding whether to exercise its discretion under s. 686(4) to set aside an acquittal, it would only do so where the Crown established that the verdict would not necessarily have been the same.
[58] At the time Vezeau was decided, s. 686(1)(b)(iv) had not yet been enacted. That provision only came into force in June 1985. In my view, adopting a similar approach to that taken in Vezeau, the court ought not to set aside an acquittal where a procedural irregularity was of a relatively minor nature and caused no prejudice to the Crown. Based on the negative answers given by the jurors to the first three questions, there would have been no evidentiary basis for the triers to find that the potential jurors were partial. Experienced Crown counsel at trial obviously perceived no prejudice at trial since she raised no objection at any time. The only practical result of the process was that the defence was required to use 11 of its 12 peremptory challenges to excuse jurors who hypothetically might have been discharged by the triers. By contrast, Crown counsel only used two of her 12 peremptory challenges. It is pure speculation that the process followed by the trial judge in this case had any impact on the trial. I would not set aside an acquittal on the basis of speculation, nor allow the Crown to take advantage of errors that did not prejudice its interests.
[59] I would not give effect to the grounds of appeal concerning jury selection.
THE OTHER GROUNDS OF APPEAL
[60] In his factum, Mr. Rupic raised other grounds of appeal concerning the Crown’s right to rely on excessive use of force as a basis of liability for assault and defence counsel’s jury address. However, in oral argument Mr. Rupic conceded that if he could not succeed on the jury selection grounds of appeal, these other grounds of appeal on their own would not warrant a new trial. In the circumstances, I need not deal with these other grounds of appeal.
DISPOSITION
[61] Accordingly, I would dismiss the appeal.
Signed: “Marc Rosenberg J.A.”
“I agree Janet Simmons J.A.”
“I agree E. A. Cronk J.A.
RELEASED: “MR” August 21, 2009