COURT OF APPEAL FOR ONTARIO
DATE: 20200522 DOCKET: C66068; C66193; C66261 & C66866
Watt, Huscroft and Trotter JJ.A.
DOCKET: C66068
BETWEEN
Her Majesty the Queen Respondent
and
Bryan Poobalasingham Appellant
DOCKET: C66193
AND BETWEEN
Her Majesty the Queen Respondent
and
Brandon Poobalasingham Appellant
DOCKET: C66261
AND BETWEEN
Her Majesty the Queen Respondent
and
Ronald Wilkins Appellant
DOCKET: C66866
AND BETWEEN
Her Majesty the Queen Respondent
and
Teshawndra Thomas Appellant
Counsel: Edmond Brown, for the appellants Bryan Poobalasingham, Ronald Wilkins and Teshawndra Thomas Jill R. Presser and Jeff Marshman, for the appellant Brandon Poobalasingham Leslie Paine and Nicolas Demontigny, for the respondent provincial Crown (C66068 & C66193) Bradley Reitz, for the respondent federal Crown (C66261 & C66866)
Heard: November 7, 2019
On appeal from the convictions entered on March 30, 2018 by Justice Fletcher Dawson (C66068 & C66193); December 7, 2017 by Justice Steve A. Coroza (C66261); and January 22, 2019 by Justice Jennifer Woollcombe (C66866), of the Superior Court of Justice, sitting with a jury.
Watt J.A.:
[1] In a jurisdiction in which trial proceedings are conducted in English and over 95% of the total population asserts knowledge of English, the English-speaking appellants obtained an order under s. 530(1) of the Criminal Code, directing that their trials be held before a judge and jury who spoke English.
[2] At trial, the appellants invoked the orders under s. 530 and applied to challenge each prospective juror for cause under s. 638(1)(f) of the Criminal Code on the ground that the juror did not speak English.
[3] The judge who decided the challenge for cause issue in each case dismissed the application. In the result, no challenge for cause under s. 638(1)(f) was permitted at the appellants’ trials.
[4] The appellants contend that the judges were wrong to deny their applications. They advance no other grounds of appeal.
[5] As I will explain, I have concluded that the judges were right in dismissing the applications under s. 630(1)(f). It follows that I would dismiss the appeals and affirm the convictions entered at trial.
The Background Facts
[6] These appeals originate in three separate prosecutions tried by three different judges of the Superior Court of Justice sitting with juries in Brampton. A brief description of the procedural history of each prosecution will provide the context necessary to resolve the narrow legal issue common to each.
The Orders under Section 530
[7] As noted, each of the appellants obtained an order under s. 530(1) of the Criminal Code. This section authorizes judges and justices of the peace to make orders about the official language in which trial proceedings will be conducted. Some orders are mandatory, others discretionary. Relevant factors include the timing of the application and the language capacity of the applicant.
[8] In these cases, all the appellants self-identify as speaking and understanding one of Canada’s official languages – English. In these circumstances, provided their application was timely, an order directing that their trial take place before a judge and jury who spoke the same official language – English – was mandatory under s. 530(1)(c), as it then appeared. [1]
[9] An accused who fails to apply for a mandatory order under s. 530(1) may apply to the trial court for an order to the same effect: Criminal Code, s. 530(4). However, this authority is discretionary and requires the accused to persuade the trial court that it is in the best interests of justice that the order be made.
R. v. Poobalasingham
[10] Bryan and Brandon Poobalasingham were charged jointly with a third person with counts of aggravated assault and attempted murder. All elected trial by judge and jury and requested a preliminary inquiry.
[11] At the preliminary inquiry, Bryan Poobalasingham sought and obtained an order under s. 530(1)(c) of the Criminal Code that his trial be held before a judge and jury who spoke the same official language of Canada as he – English.
[12] Counsel who represented Bryan Poobalasingham, who is one of his counsel on appeal, did not suggest to the preliminary inquiry judge that the order was necessary to ensure that the judge and jury at the appellant’s trial spoke English, the same official language as the appellant. Rather, counsel told the judge he “always” brings an application under s. 530(1) for the same order.
[13] Neither Brandon Poobalasingham nor the third co-accused applied for the same order or joined in Bryan’s application.
R. v. Wilkins
[14] The appellant Wilkins was charged with two counts of offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He elected trial before a judge and jury and requested a preliminary inquiry. Represented by the same counsel who represented Bryan Poobalasingham, both at trial and in this court, Wilkins sought and obtained an order under s. 530(1)(c) of the Criminal Code that he be tried by a judge and jury who spoke the same official language as he – English.
R. v. Thomas
[15] The appellant Thomas was charged with a single count of importing cocaine. She elected trial by judge and jury and requested a preliminary inquiry. As with the other appellants, counsel sought and obtained an order that Ms. Thomas be tried by a judge and jury who spoke the same official language as she – English.
The Applications to Challenge for Cause under Section 638(1)(f)
[16] At trial, each appellant sought to challenge each prospective juror for cause under s. 638(1)(f). That section reads:
638(1) A prosecutor or an accused is entitled to any number of challenges on the ground that …
(f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 to be tried before a judge and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be.
[17] The question counsel proposed to ask each prospective juror was in these or similar terms:
As His/Her Honour will tell you, it is your duty and responsibility as a juror to listen carefully to the spoken testimony of the witnesses, to examine the evidence in the exhibits filed, to attend diligently to the arguments of counsel and the instructions by the Judge on the law, and ultimately decide whether the Crown has proven the charges against the accused beyond a reasonable doubt. I am asking you, as a potential juror, to make a self-assessment. Do you understand written and spoken English well enough to take on the responsibility and obligations of a juror in this trial?
R. v. Poobalasingham
[18] In support of his application to challenge prospective jurors for cause under s. 638(1)(f), counsel for Bryan Poobalasingham filed a notice of application and a factum, but no extrinsic materials. No evidence was adduced on the application, nor was the judge asked to take judicial notice of any census data, or any other facts, to support the application.
[19] Counsel for Brandon Poobalasingham joined in the motion “in the sense of supporting it”, but made no submissions. Counsel for the third co-accused said she was not part of the motion and would not be making submissions on it.
R. v. Wilkins
[20] The application under s. 638(1)(f) was heard by a case management judge. In support of the application, counsel filed a copy of a sample “Questionnaire about Qualifications for Jury Service”. This document is Form 1 under Regulation 680 made under the Juries Act, R.S.O. 1990, c. J.3. Prospective jurors are asked to indicate their competency in reading, writing, and speaking English. They are also informed that completion of the form is required by Ontario law.
[21] The appellant also filed a copy of a Census Profile for Peel Region in 2011. The document contains data about residents of the Region, including not only Canadian citizens, but also landed immigrants and non-permanent residents. Also included is data about residents’ mother tongue, their knowledge of Canada’s official languages and the language most often spoken at home.
R. v. Thomas
[22] Thomas’ application to challenge prospective jurors under s. 638(1)(f) was also heard by a case management judge. No evidentiary record accompanied the application. Counsel simply sought to pose the single proposed question as of right because of the order under s. 530(1).
The Rulings
[23] In each case, the application under s. 638(1)(f) was dismissed. Common to each decision was a conclusion that the mere existence of an order under s. 530(1), without more, did not entitle an accused to challenge each prospective juror for cause, as of right, under s. 638(1)(f) to determine the juror’s language facility. As under s. 638(1)(b), there must be an air of reality to a proposed challenge for cause. The materials filed by the appellants, if any, did not satisfy that standard.
The Grounds Of Appeal
[24] The appellants advance a single ground of appeal. They say the judges who decided the applications erred in failing to permit them, as beneficiaries of orders under s. 530(1) of the Criminal Code, to challenge prospective jurors for cause under s. 638(1)(f).
The Arguments On Appeal
[25] The principal arguments advanced are common among the appellants on the one hand and between the respondents on the other. The appellants Brandon Poobalasingham and Thomas make additional submissions based on their individual circumstances.
The Appellants
[26] The appellants’ primary position is that, having obtained an order under s. 530(1) requiring that their trials be held before a judge and jury who speak English, they are entitled as of right to challenge each prospective juror for cause under s. 638(1)(f).
[27] In accordance with the modern approach to statutory interpretation, a single condition must be met to engage the challenge for cause for which s. 638(1)(f) provides. That pre-condition, which is met here, is an order establishing the language of trial under s. 530. With an order under s. 530, s. 638(1)(f), a mechanism to ensure compliance with orders under s. 530, is engaged.
[28] The appellants also point to the broader legal context.
[29] Section 530 is a language rights provision. Language rights are fundamental. They must not be approached in an adversarial way since they serve the interests of justice and Canadian unity. The fundamental nature of the right of an accused to be tried by a trier of fact who understands the language of an accused’s choice is underscored by s. 16 of the Official Languages Act, R.S.C., 1985, c. 31 (4th Supp.). This right is substantive, not procedural. The choice of official language for trial is the choice of the person charged made for their own reasons. To exercise this fundamental right of trial in the language of choice, an accused must be able to challenge prospective jurors for cause based solely on a s. 530 order.
[30] The appellants reject any suggestion of a threshold standard as required where the challenge for cause is based on lack of impartiality under s. 638(1)(b). The threshold under s. 638(1)(b) is necessary because of the presumption of impartiality which adheres to each prospective juror. The air of reality standard is put in place to counter this presumption. But there is no presumption of linguistic competence, nor any presumption that a linguistically limited person could set aside their limitations and fulfil their duty as a juror.
[31] The appellants say that by making a s. 530 order a precondition to a challenge for cause under s. 638(1)(f), Parliament ensured that the challenge was available to those with a demonstrated interest in guaranteeing a trial in their official language of choice. As the only precondition to invoking s. 638(1)(f), Parliament ensured that when an accused exercised their language rights, they would not be found to satisfy the challenge on the basis of some case-specific justification. By requiring a case-specific justification, the judge in these cases erred by going beyond the plain, unambiguous and rights-protective language enacted by Parliament.
[32] In the alternative, and in the event that we conclude that a factual basis is required for an accused to gain an entrée into s. 638(1)(f), the appellants say the facts found by the case management judge in Wilkins satisfy the threshold. Indeed, the mere fact that prospective jurors identified language concerns on pre-vetting establishes this. Self-selection and pre-vetting are not sufficient nor do any other reasons mentioned by the judges at first instance warrant their conclusions.
[33] The appellant Thomas adds that s. 16 of the Charter recognizes the equality of Canada’s two official languages. In doing so, it does not assign a lesser place for those whose official language is that of a majority of the population. Whether the official language at issue is that of a majority or that of a minority is of no moment. Jurors must be linguistically competent and impartial. Just as impartiality must be tested on a challenge for cause, so must linguistic competence.
[34] The appellant Brandon Poobalasingham acknowledges that he did not bring a formal application to challenge for cause at trial. Nonetheless, he submits that he should be permitted to advance his case in common with the other appellants. He supported the application at first instance, albeit his counsel made no submissions and filed no material. He was a party to the jury selection process and was bound by any ruling made. The trial judge considered him an applicant and invited submissions from his counsel.
[35] The appellants stand as one on the issue of remedy. A ruling denying them a challenge for cause to which they were entitled meant that the jury, and thus the court, was not properly constituted for their trial. This error resulted in a loss of jurisdiction that is beyond the reach of any curative provision in the Criminal Code. The only remedy is a new trial.
The Respondents
[36] The respondents deny any errors in the rulings below. They say there is not, as the appellants contend, any automatic right to challenge prospective jurors for cause under s. 638(1)(f) simply by virtue of having obtained an order under s. 530 of the Criminal Code. Instead – and consistent with other Criminal Code provisions – a party who invokes s. 638(1)(f) must establish a realistic potential for the challenge. Finally, this realistic potential must be related to specific language rights concerns in the individual case.
[37] This conclusion, the respondents argue, finds support in a purposive interpretation of s. 638(1)(f). The provision was enacted in 1978 along with Part XVII of the Code, which includes s. 530 and imposes constitutional bilingualism on the criminal courts across Canada. As a complement to s. 530, s. 638(1)(f) must be interpreted in accordance with the purpose of that section. And the purpose of s. 530, we know, is to provide equal access to the courts to accused speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity.
[38] Trial fairness and language rights, the respondents continue, are fundamentally distinct although they are sometimes complementary concepts. The right to make full answer and defence is linked with linguistic abilities only in the sense that an accused must be able to understand and be understood at their trial. For their part, language rights are not meant to enforce minimum conditions under which a trial will be considered fair, or even to ensure the greatest efficiency of the defence. To be sure, language rights may enhance the quality of legal proceedings, but their source lies elsewhere.
[39] Issues related to language competency as a function of trial fairness, the respondents say, are properly addressed and more than adequately satisfied by other Criminal Code provisions, as well as the Juries Act. Section 2 of the Juries Act requires that prospective jurors be Canadian citizens. For an adult who is not otherwise a Canadian citizen to become one, the person must have an adequate knowledge of either English or French and pass a test in one of the official languages. A recent amendment requires that every juror be able to speak, read and understand English or French: see Protecting What Matters Most Act (Budget Measures), S.O. 2019, c. 7, Sched. 35, s. 2; Juries Act, s. 2(d).
[40] In addition, under the Juries Act eligible jurors are identified through a questionnaire which asks recipients to certify whether they speak, read and understand English and/or French. The instructions make it clear that to answer “Yes”, the prospective juror must be fluent in the relevant language and understand it well enough to follow a trial where all evidence and legal instructions will be given in that language, without the assistance of an interpreter.
[41] The respondents also point out that s. 632 of the Criminal Code permits the judge presiding over jury selection to vet the panel of prospective jurors in advance of the formal jury selection process. Among the issues routinely explored is the need for fluency in the language of trial. In each of the appellants’ cases, this issue was canvassed and some prospective jurors were excused because of inadequate language competency.
[42] In addition, the respondents say, if during the trial a particular juror’s language fluency comes up short, the presiding judge may discharge that juror to ensure trial fairness under s. 644(1) of the Criminal Code.
[43] The respondents submit that the appellant’s reliance on the Official Languages Act is misplaced. To be sure, that Act imposes certain duties on “federal courts”: see Official Languages Act, ss. 3(2), 16. But the court where the appellants were tried – the Superior Court of Justice – is a creature of provincial statute: see Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 11-17. The Official Languages Act does not apply.
[44] The respondents accept that an order under s. 530 is a necessary condition for a challenge under s. 638(1)(f). But it is not a sufficient one. Like any other challenge for cause available under the provision, s. 638(1)(f) requires that there be an “air of reality” or “realistic potential” for the challenge. An evidentiary foundation – whether satisfied by extrinsic evidence, judicial notice, admission or otherwise – must be established.
[45] And this evidentiary foundation, the respondents continue, must be related to the purpose of s. 638(1)(f): ensuring equal access to justice in either official language. If this were not so, Parliament would not have insisted on a s. 530 order as a condition precedent. And provided the request is timely, the s. 530 order is for the asking. Therefore, absent a requirement that the evidentiary foundation be linked to the purpose of s. 638(1)(f), every accused would enjoy an automatic right to challenge every juror under that provision – even absent any concern related to language rights. No such purpose can be teased out of either s. 530, s. 638(1)(f) or their combination.
[46] The evidence adduced by the appellant Wilkins falls well short of the “air of reality” threshold. The Census Profile is dated and includes among the population, constituents who would not be eligible for jury service because they are under 18 or are not Canadian citizens. The data about a resident’s “mother tongue” is of little value because it lacks any direct correlation to competency in either official language. If anything, the Census Profile undermines Wilkins’ claims: fully 96% of respondents asserted knowledge of English.
[47] In connection with the Poobalasingham appellants, the respondents say Bryan’s materials failed to recite any fair trial or (moreover) language rights concerns. As for Brandon, the interests of justice do not favour granting him leave. He failed to advance the issue at trial. And on appeal, he has failed to point to any negative impact on his rights occasioned by the decision below.
The Governing Principles
[48] Although the issue ultimately requiring decision is a narrow one involving the interpretation of s. 638(1)(f) of the Criminal Code, that decision is informed by several other incidents of the jury selection process. For, as we know, context plays an important role in construing the written words of a statute: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 27.
[49] As is well known, the jury selection process involves two stages.
[50] The first – the pre-trial stage – involves the organization of a panel or array of prospective jurors who are made available at court sittings as a pool from which trial juries are selected. This pool is randomly assembled from the broader community. Governed by provincial legislation (in Ontario, the Juries Act), this stage includes the qualification of jurors; completion of the jury list; summoning of panel members; selection of jurors from the jury lists; and conditions for being excused from jury duty: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at paras. 19-20; Criminal Code, s. 626(1).
[51] The second – the in-court stage – involves the selection of a trial jury from the panel. During this process prospective jurors may be excluded in two ways. Some may be excused by the presiding judge in a preliminary way. Others may be excluded as a result of a successful challenge by the parties: Find, at paras. 19, 21-24. This stage of the process is governed by federal legislation: see Criminal Code, ss. 626-644.
The Pre-Trial Stage of Jury Selection
[52] To be eligible for jury service in Ontario under s. 2 of the Juries Act, a person must reside in Ontario and be a Canadian citizen at least 18 years old. A recent amendment adds a further requirement for eligibility – the juror must be able to speak, read and understand English or French: see Juries Act, s. 2(d).
[53] Any person who is not a Canadian citizen by birth and who is between 18 and 54 years old (inclusive) can only become a Canadian citizen if they have an adequate knowledge of one of Canada’s official languages and can demonstrate in that language an adequate knowledge of Canada and the privileges of citizenship: Citizenship Act, R.S.C. 1985, c. C-29, ss. 5(1)(d) and (e).
[54] The process of compiling a jury list begins with the Director of Assessment mailing out a statutorily prescribed form – a jury questionnaire – to residents of a county, district, regional municipality or city, based on information obtained from the most recent enumeration of inhabitants under the Assessment Act, R.S.O. 1990, c. A.31.
[55] The purpose of the jury questionnaire – to determine eligibility for jury service – is stated on the first page. At the time of the appellants’ trials, the form also provided the following warning:
If you fail to return this form without reasonable excuse within five (5) days of receiving it, or knowingly give false information on the form, you are committing an offence. If convicted of this offence, you may be fined up to $5000.00 or imprisoned up to six (6) months, or both. [Emphasis added.]
[56] Question nine of the questionnaire addresses language competency. Part A asks whether the respondent speaks, reads and understands English. Part B asks the same question with respect to French. The instruction for this question, which the respondent is directed to review, states:
If you are chosen to sit on a jury, the trial will be conducted in either English or French. If indicating a “Yes” response to English or French, you must be fluent in either language and understand it well enough to follow a trial where all evidence and legal instructions will be given in English or French, without the assistance of an interpreter.
[57] When the questionnaires are returned and opened, a jury roll is compiled from those who are eligible to serve as jurors. The jury roll is divided into three parts based on declared language competency: (i) English, (ii) French, or (iii) both English and French.
The In-Court Pre-Selection Procedure
[58] When a jury panel arrives in the courtroom to begin the formal process of jury selection, s. 632 of the Criminal Code authorizes the presiding judge to vet the panel members to determine whether any of them should be excused from jury service. Typically, this involves the presiding judge advising members of the jury panel about some requirements for jury service. This includes an understanding of the language of trial. A representative question on this issue is in these terms:
Our law also requires that each juror be able to understand the language that will be used in the trial. In this case, witnesses will testify and others involved in the case will speak in English. Documents written in English may be made exhibits.
If you have any difficulty understanding English as it is spoken or written, please raise your hand and come to the front of the courtroom.
See Find, at paras. 22-23; R. v. Sherratt, [1991] 1 S.C.R. 509, at pp. 527-28, 534-35. See also R. v. Jimenez Leon, 2012 ONSC 575, 283 C.C.C. (3d) 243, at paras. 11-12, aff’d 2014 ONCA 813; R. v. Smith and Mathers, 2019 ONSC 4816, at para. 11; and R. v. E., 2019 ONSC 3813, at para. 23.
[59] When a prospective juror expresses concern, the presiding judge will make inquiries of the juror to determine their language facility. In some cases, the judge may be aware of the nature of the evidence to be adduced and can formulate their questions accordingly. At the end of the inquiry, the judge will determine whether the prospective juror has the language facility necessary to understand the evidence, submissions and jury instructions at trial: see e.g. Jimenez Leon, at para. 18.
Section 530 of the Criminal Code
[60] Section 530 of the Criminal Code is not part of Part XX, Jury Trials, but rather is contained in Part XVII, Language of Accused. At the time of the relevant proceedings in this case, s. 530(1)(c) of the Criminal Code provided:
530(1) On application by an accused whose language is one of the official languages of Canada, made not later than …
(c) the time when the accused is ordered to stand trial, if the accused
(i) is charged with an offence listed in section 469,
(ii) has elected to be tried by a court composed of a judge or a judge and jury, or
(iii) is deemed to have elected to be tried by a court composed of a judge and jury,
a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.
[61] While the wording has changed since the appellants’ trials, the substance of this provision remains the same: see Criminal Code, s. 530(1). And this language permits of no doubt: an order directing that the trial of an accused be before a judge and jury who speak the official language of the accused is mandatory, provided the accused’s application is timely.
[62] Section 530 is a language rights provision. Section 530(1) creates an absolute right of an accused to equal access to designated courts in the official language which that accused considers their own. It requires that criminal courts be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. The right is substantive, not procedural. It brooks no interference: R. v. Beaulac, [1999] 1 S.C.R. 768, at paras. 23, 25 and 28.
[63] The purpose of s. 530 is to provide equal access to the courts to accused who speak one of Canada’s official languages “in order to assist official language minorities in preserving their cultural identity”: Beaulac, at para. 34; R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646, at para. 49.
[64] Language rights are a particular kind of right. They are distinct from the principles of fundamental justice. Language rights are meant to protect official language minorities and to ensure the equal status of English and French. They are “not meant to support the legal right to a fair trial, but to assist [an] accused in gaining equal access to a public service that is responsive to [their] linguistic and cultural identity”: Beaulac, at paras. 23, 25, 41, 45 and 53; Munkonda, at para. 59; and Bessette v. British Columbia (Attorney General), 2019 SCC 31, 376 C.C.C. (3d) 147, at para. 38.
[65] This court addressed an application under s. 530 by an English-speaking accused in R. v. Leon, 2014 ONCA 813 – albeit in the context of a discretionary order under s. 530(4). This court agreed with the trial judge that “there was no basis to make a s. 530 order, since the accused was already scheduled to have a trial in English”: Leon, at paras. 3-4.
Challenges for Cause and Section 638(1)(f)
[66] The aim of a challenge for cause is to assist in the selection of a jury who will decide the case impartially and base its verdict on the evidence adduced and in accordance with the legal instructions provided by the trial judge.
[67] The ultimate requirement of a system of jury selection is that the system result in a fair trial. A fair trial is not a perfect trial. Nor is it a trial that is the most advantageous from the perspective of the accused: Find, at paras. 26, 28.
[68] The presiding judge has authority to control the jury selection process. To make effective use of court resources. And to ensure fairness to all participants, including prospective jurors: R. v. Husbands, 2017 ONCA 607, 353 C.C.C. (3d) 317, at para. 31, leave to appeal refused, [2017] S.C.C.A. No. 364; R. v. Province, 2019 ONCA 638, at para. 69.
[69] This inherent authority extends specifically to the challenge for cause component of jury selection. It is exercised to prevent an abuse of the challenge for cause process and to ensure fairness to the parties and the prospective jurors: Province, at para. 68. A challenge for cause with no purpose beyond increasing delays or intruding on the privacy of prospective jurors is ripe for extinction in the exercise of this authority: Find, at para. 29; R. v. Hubbert (Ont. C.A.), 29 C.C.C (2d) 279 (Ont. C.A.), at p. 291, aff’d R. v. Hubbert, [1977] 2 S.C.R. 267.
[70] Section 638 of the Criminal Code authorizes challenges for cause. Sections 638(1) and (2) provide an exhaustive catalogue of the grounds upon which a challenge for cause may be advanced. The plain language of s. 638 entitles each party to “any number of challenges” for cause: Criminal Code, s. 638(1); Sherratt, at p. 521.
[71] Section 638 is silent on whether an applicant must meet a particular threshold requirement or preliminary burden in order to challenge a prospective juror on the basis of an enumerated cause. But it follows from the presiding judge’s degree of control over the selection process that some burden is settled on the challenger to ensure that selection accords with the governing principles and that the presiding judge is provided sufficient information so the truth of the challenge is contained within reasonable bounds: Sherratt, at pp. 535-36.
[72] Among the six articulated grounds upon which a prospective juror may be challenged for cause under s. 638(1), the most frequently invoked is s. 638(1)(b) – i.e., that the prospective juror is not impartial as between the Crown and the accused. An accused who seeks to challenge prospective jurors under s. 638(1)(b) must establish a realistic potential for the existence of partiality on a ground sufficiently articulated in the application: Sherratt, at pp. 535-36; Find, at para. 31; R. v. Yumnu, 2010 ONCA 637, at paras. 70, 88, 260 C.C.C. (3d) 421, aff’d 2012 SCC 73, [2012] 3 S.C.R. 777; and R. v. Williams, [1998] 1 S.C.R. 1128, at para. 14. In assessing whether an accused has met this threshold, courts have considered the availability and efficacy of various components of the trial process to serve as antidotes in ensuring impartiality: Find, at paras. 41-42. Only where these components are insufficient to negate a realistic potential of partiality will the challenge be permitted to proceed.
[73] A challenge for cause under s. 638(1)(f) contests the language competency of prospective jurors. The challenge for cause is available only where the accused is required by an order under s. 530 to be tried by a judge and jury who speak the same official language as the accused. The challenge is that the prospective juror does not speak the same official language.
The Principles Applied
[74] Several reasons persuade me that this ground of appeal fails.
[75] First, the circumstances in which the orders under s. 530(1) were obtained.
[76] As we have already seen, s. 530 is a language rights provision. Its purpose is to provide equal access to the courts to accused who speak an official language of Canada in order to assist official language minorities in preserving their cultural identity. An order ensures that an accused will understand and be understood in the proceedings. Language rights are not meant to enforce minimum conditions under which a trial will be considered fair.
[77] The timeliness of the applications under s. 530(1)(c) in these cases dictated that an order would be made in view of the mandatory language in the section. But the application, which counsel said he “always made”, was at best frivolous and at worst abusive. For it had nothing to do with language rights or assisting official language minorities in preserving their cultural identity.
[78] In these cases, as the appellants well knew, their trials would be held in the official language with which they identified – English. No order under s. 530 was required to achieve this result: see Leon, at paras. 3-4. The appellants would understand the language of proceedings.
[79] In addition, the juror qualification requirement under the Juries Act and the pre-vetting of jurors for language competency ensured that the trier of fact would understand the proceedings in their official language. In each of the appellants’ cases, the presiding judge conducted screening for language competency. And in each case, several prospective jurors were excused.
[80] As it would appear to me, counsel sought the order not to enforce language rights, but to secure a foothold to challenge prospective jurors for cause on the ground of language competency in the absence of any warrant for doing so. Indeed, the focus of the proposed question is more directed at the fairness of the trial process than the language in which the trial was conducted.
[81] Second, the interpretation of s. 638(1)(f).
[82] The interpretation of s. 638(1)(f) proposed by the appellants, that the mere existence of an order under s. 530 entitles an accused to challenge the language competency of each prospective juror as of right, would be inconsistent with the threshold requirements for all other challenges for cause – in particular, s. 638(1)(b) – in the absence of any statutory language or principle requiring it.
[83] The threshold to be met under s. 638(1)(b) – a realistic potential for the existence of partiality on a ground sufficiently articulated in the application – does not emerge from the language of the section. Nor can s. 638(1)(b) be distinguished based on the presumption of impartiality in prospective jurors. Indeed, the functional equivalent of a similar presumption – one of language competency – could as easily be grounded on the combination of jury qualification requirements in place under provincial law and the pre-vetting of panel members for language competency by the presiding judge.
[84] Further, a requirement of the threshold showing for each ground of challenge for cause is consistent with basic principles. To take advantage of an entitlement to challenge for cause, one which has the effect of eliminating from the jury as sworn persons not disqualified by the statute under which jurors are selected, a challenger must make a preliminary showing before being allowed to proceed.
[85] Finally, challenges for cause which, as here, serve no useful purpose but to increase delays and intrude on the privacy of prospective jurors must be avoided.
Disposition
[86] For these reasons, I would dismiss the appeals.
Released: “DW” May 22, 2020 “David Watt J.A.” “I agree. Grant Huscroft J.A.” “I agree. Gary Trotter J.A.”
[1] While the structure of s. 530 has changed slightly since the appellants’ trials, its substance remains the same. Accordingly, the expression “as it then appeared” is not repeated in subsequent references to the provision.