Court File and Parties
Court File No.: CRIMJ(F) 1239/15 Date: 2016-05-02
Ontario Superior Court of Justice
Between:
Her Majesty the Queen, Respondent (Thomas F. Dietrich, for the Respondent)
- and -
Ronald Wilkins, Applicant (Edmond Brown, for the Applicant)
Heard: February 5, 2016 at Brampton
Ruling
Justice F. Dawson
[1] I am dealing with this application as a case management judge appointed pursuant to s. 551.1 of the Criminal Code.
The Nature of the Application
[2] The applicant is an English-speaking accused. He is charged with possession of heroin for the purpose of trafficking and simple possession of a drug called buprenorphine. He applies pursuant to s. 638(1)(f) of the Criminal Code to challenge each prospective juror for cause on the basis that they do not speak the official language of Canada in which his trial is to be held. In this case that language is English.
[3] Section 638(1)(f) provides as follows:
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.
[4] Although the accused would be tried in English in this jurisdiction absent an election by him to have his trial conducted in French, he requested and obtained an order pursuant to s. 530(1) of the Criminal Code from the judge presiding at his preliminary inquiry directing that his trial be conducted in English.
[5] An order pursuant to s. 530(1) is mandatory when an application for the order is made within the time requirements of the subsection.
[6] Section 530(1) reads as follows:
530 (1) On application by an accused whose language is one of the official languages of Canada, made not later than
(a) the time of the appearance of the accused at which his trial date is set, if
(i) he is accused of an offence mentioned in section 553 or punishable on summary conviction, or
(ii) the accused is to be tried on an indictment preferred under section 577,
(b) the time of the accused’s election, if the accused elects under section 536 to be tried by a provincial court judge or under section 536.1 to be tried by a judge without a jury and without having a preliminary inquiry, or
(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.
[7] Section 530(2) provides that an accused whose language is not one of the official languages of Canada may, within the same time constraints, apply for an order that his or her trial be conducted in the official language of Canada in which they can best testify or, if warranted, a bilingual trial.
[8] If an accused fails to make application within the time limits established by ss. 530(1) or 530(2) an order can still be obtained but it is not mandatory. Section 530(4) provides the court with the discretion to make a similar order in those circumstances.
[9] Section 530.1 of the Criminal Code sets out the language rights that flow to an accused once an order is made pursuant to s. 530.
[10] The accused submits that because he has obtained an order pursuant to s. 530(1) he is automatically entitled to challenge each prospective juror for cause pursuant to s. 638(1)(f) without showing more.
[11] Alternatively, having filed census data which shows that this region of Ontario is very multicultural and that the “mother tongue” of over 45 percent of the population is neither English nor French, he submits that by that evidence, in combination with the s. 530(1) order, he has shown enough to permit a challenge for cause of each prospective juror in respect of their ability to speak and understand English.
[12] Counsel for the accused proposes to ask each prospective juror the following question:
As the judge 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 to the instructions of the judge on the law, and ultimately decide whether the Crown has proven any of 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?
[13] The Crown is opposed to the application.
Background to the Application
[14] Since at least the year 2000 Mr. Brown, who is representing the accused in this case, has brought similar applications. Most have been in Brampton but at least one has been brought in Toronto. There has been some variation in the applications. For example, in some cases a s. 530 order has not been obtained and counsel has argued that such an order is not a prerequisite to a challenge under s. 638(1)(f); in some cases witnesses have been called regarding the “Questionnaire About Qualification for Jury Service” administered pursuant to the Juries Act, R.S.O 1990, c. J.3 and about other administrative aspects of the pre-selection process; census data from Statistics Canada relating to “mother tongue” has been filed in some cases but not in others. Over the years various questions have been proposed as appropriate to be asked of prospective jurors.
[15] In some cases judges have allowed a question on language abilities to be put by way of challenge for cause to each prospective juror and in other cases they have not. In some cases Crown counsel has consented to the challenge for cause. Many of these previous decisions were referred to by my colleague Justice Wein in R. v. Jimenez-Leon, 2012 ONSC 575. Wein J. also appended a chart to her judgment summarizing the results of previous applications she was able to identify which had been brought in this jurisdiction.
[16] Justice Wein’s ruling dismissing the application before her was appealed to the Court of Appeal. That court dismissed the appeal without resolving the issue that is at the centre of most of these applications because the appellant had not applied in a timely fashion for an order pursuant to s. 530 of the Criminal Code. Had he done so the order would have been mandatory and the Court of Appeal might then have found it necessary to deal with the underlying issue.
[17] It would be fair to say that judges in this jurisdiction are hopeful that this issue may soon be resolved at the appellate level.
Analysis
[18] I previously dealt with the same issue orally in R. v. Richter, (August 4, 2004), Brampton, 7267/04. Because that decision has been frequently referred to by judges dealing with this issue and is difficult to find, I have had it re-released so that it may become available on legal databases. I am advised that due to its age it cannot be assigned a neutral citation.
[19] Having heard full argument in this case I remain in substantial agreement with my conclusion in Richter. I will repeat some of what I said in Richter, adding additional analysis and reference to authority.
[20] In Richter counsel filed charts titled “Population by Mother Tongue, Census, Metropolitan Areas”, which were published by Statistics Canada based on the 2001 census. Mississauga, Brampton, and the Town of Caledon, which make up Peel Region, were not covered in the charts but Toronto was. Counsel has partially remedied that shortcoming in this case. I have received similar material covering the cities of Mississauga and Brampton, which are the largest population centers in Peel Region. However, data has not been provided for the Caledon area. The material I have received is based on the 2011 census.
[21] Important cases dealing with the interpretation of ss. 530 and 530.1 include R. v. Beaulac, [1999] 1 S.C.R. 768, [1999] S.C.J. No. 25 and R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646.
[22] In Beaulac, at paras. 22 – 23, the court held that the purpose of ss. 530 and 530.1 is to ensure “equal access to services of equal quality for members of both official language communities in Canada.” The sections were described as remedial amendments enacted through the Official Languages Act, R.S.C., 1985, c. 31 (4th Supp.) to bring the Criminal Code into line with constitutional requirements. At para. 25 of Beaulac the court held that language rights are to be interpreted purposively. At para. 28 the court noted that the absolute right to equal access to justice in either official language flowing from s. 530(1) is a substantive and not a procedural right, which requires the courts to be “institutionally bilingual”. At para. 31 the court held: “The object of s. 530(1) is to provide an absolute right to a trial in one’s official language, providing the application is timely.”
[23] All of these principles were echoed and applied in Munkonda in the context of a bilingual proceeding. However, neither case dealt with the challenge for cause provision in s. 638(1)(f).
[24] As s. 638(1)(f) makes specific reference to s. 530, the two sections are obviously related in purpose. Indeed, it was held by Garton J. in R. v. Nelson, [2000] O.J. No. 521 (S.C.J.), applying the “ordinary meaning” principle of statutory interpretation, that obtaining an order pursuant to s. 530 is a prerequisite to permitting a challenge for cause pursuant to s. 638(1)(f). No disagreement with that interpretation is taken on this application.
[25] In Richter I held that the purpose of s. 638(1)(f) is complementary to the purpose of ss. 530 and 530.1. I continue to hold that view. Extrapolating from the principles outlined in Beaulac and Munkonda, I conclude that the purpose of the challenge for cause provided for by s. 638(1)(f) is to assist in achieving the objective of equal access to justice in either of the official languages of Canada. It is primarily a language rights provision and any trial fairness considerations are subservient to that purpose. Trial fairness is always important but, as emphasized in Beaulac, language rights rest on a separate foundation and are not to be confused with trial fairness provisions.
[26] On the facts of this case I conclude that the application is animated by concerns about trial fairness and not by concerns about the accused’s right to equal access to justice in the official language of Canada of his choice. This is significant because s. 638(2) specifies that: “No challenge for cause shall be allowed on a ground not mentioned in subsection (1).” A challenge for cause on the basis of language competence does not fit within any of the other clauses of s. 638(1).
[27] Taking a purposive approach and recognizing that language rights are substantive in nature, I conclude that s. 638(1)(f) was enacted to assist in ensuring that an accused having a trial anywhere in Canada has a full opportunity to have their trial conducted in the official language of their choice or, in appropriate cases, a bilingual trial, where that would not occur in the normal course in the jurisdiction where the trial is to be held. In enacting s. 638(1)(f) Parliament recognized that, in circumstances where s. 530 is being put to its intended use, some additional tools must be available to ensure that equality of access to justice in either official language is achieved. Section 638(1)(f) does not authorize a procedure by which an accused, who will have a trial in the official language of their choice in the normal course, may question prospective jurors about trial fairness issues related to their language competence. That is how the accused is trying to use the provision in this case and I conclude that it is a misuse of the provision, although well intentioned.
[28] In this case the accused wants to be tried in English which is by far the more predominant of the two official languages spoken in this area of Ontario. English language competence is routinely dealt with by the judge conducting the jury selection in the early stages of the selection prior to the challenge process. In Ontario, in cases being tried in English, all members of the jury panel are asked by the judge during the selection process to identify themselves and come forward if they do not have sufficient competence in the English language to act as a juror. The judge then hears from those prospective jurors in the presence of counsel and excuses those whom the judge concludes do not have sufficient proficiency in the language of the trial.
[29] In most circumstances this will be adequate to ensure trial fairness. If, after questioning by the judge a prospective juror is not excused, counsel may use what they have learned during the process to assist them in exercising their peremptory challenges.
[30] Where an order pursuant to s. 530 has been obtained in accordance with its intended purpose, it may well be that a challenge for cause of each prospective juror pursuant to this provision will be appropriate. However, as I will explain further, the authorities governing the challenge for cause procedure require that a modest threshold showing be made that there is a need for the proposed challenge before any form of challenge for cause will be permitted. In my view, those requirements apply equally to a challenge pursuant to s. 638(1)(f). In a trial being conducted in French in a part of the province where the predominant official language is English, something of which judicial notice could be taken, that fact alone may be sufficient to persuade the presiding judge to exercise his or her discretion to permit a language based challenge for cause.
[31] The discretion provided for in the jurisprudence may be used appropriately to prevent what I conclude the applicant is attempting to achieve in this case. He is trying to gain access to a challenge for cause procedure designed to promote equal access to justice in either official language when there is no such language rights issue in the case. I turn to that well known jurisprudence now.
[32] In R. v. Hubbert (1975), 29 CCC (2d) 279 (Ont. C.A.), affirmed , 33 C.C.C. (2d) 207, the Court of Appeal held that a trial judge has a wide discretion to control a challenge for cause, to prevent abuse, to ensure that the process is fair and to make sure that the trial is not unnecessarily prolonged. These principles were approved of in a brief judgment by the Supreme Court of Canada upholding the Court of Appeal’s decision.
[33] In R. v. Sherratt, [1991] 1 S.C.R. 509, 63 C.C.C. (3d) 193, the court held that the trial judge must be able to maintain a degree of control over the challenge for cause procedure and that the applicant must establish an “air of reality” to the ground of the challenge. In essence, the court held that a realistic potential for the concern giving rise to the challenge must be established and it must be sufficiently articulated in the application to challenge for cause. The language of “realistic potential” is found in many of the cases cited below.
[34] The principles just referred to were applied in various circumstances in the subsequent cases of R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.); R. v. Williams, [1998] 1 S.C.R. 1128, 124 C.C.C. (3d) 481; R. v. Barnes (1999), 138 C.C.C. (3d) 500 (Ont. C.A.); R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 and R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458. These cases establish that the “air of reality” or “realistic potential” threshold can be met by means of judicial notice, evidence or other circumstances in the record of the case. It is clear from all of these cases that, within appropriate bounds, the judge hearing an application to challenge for cause has a discretion whether to permit it. Justice Binnie’s judgment in Spence provides a good illustration of the nature of that discretion.
[35] In Parks and Williams the court found that the threshold was met. In Barnes it was found to have been met for one area of proposed challenge for cause but not for others. In Find and Spence the threshold was found not to have been met. Find and Spence also discuss the limits on the use of judicial notice to establish the foundation for the exercise of this discretion.
[36] In my view, these principles continue to apply in circumstances where an accused has obtained an order pursuant to s. 530 of the Criminal Code. As the granting of the s. 530 order is mandatory when sought in a timely fashion, this discretion is necessary to ensure that s. 530 is not used inappropriately as a basis for a challenge for cause under s. 638(1)(f) when there is no genuine issue of equal access to justice based on language rights involved.
[37] Applying these principles there are two reasons why I deny the application in this case. First, as I have said, I find that there is no genuine equal access to justice issue based on language rights in this case. The accused wishes to have his trial in English and that will happen. The s. 530 order does not serve any intended purpose in this case.
[38] Second, I am of the view that the record does not support the conclusion that there is an air of reality to the need to challenge for cause on the language issue. Even if I am wrong on the first reason, I would deny the application on the basis of the second reason alone.
[39] As I understand the filed census data, it demonstrates that as of 2011 710,475 people lived in households in the City of Mississauga. Of those, 338,280 described their “mother tongue” as English. French was identified as the mother tongue of 7,400 of them. “Non-official languages” were identified as the mother tongue of 334,060 of them.
[40] At the time of the 2011 census there were 521,690 persons living in households in Brampton. English was listed as the mother tongue of 269,790 of them. French was listed as the mother tongue of 4,375 of them. Non-official languages were identified as the mother tongue of 225,065 of them.
[41] I notice that these numbers do not add up, in the sense that adding together the language sub-groups does not equal the total population reported. I am unaware of the reason for that. It would appear that complete data has not been provided or is not available.
[42] However, the numbers are such that they confirm what all who live or work in the Region of Peel know: it is a very ethnically diverse region. Many immigrants choose to make this region of Ontario their new home.
[43] All criminal jury cases in Peel Region are dealt with, at least initially, in Brampton. It is common that significant numbers of potential jurors come forward during the jury selection process to indicate that they have concerns about their ability to speak English. However, based on considerable experience selecting juries in this jurisdiction, it is apparent to me that those numbers do not come anywhere close to the percentage of individuals who, according to the census data, state that English is not their mother tongue.
[44] Obviously there is no direct correlation between the fact that someone’s mother tongue is not English and their current English language abilities. This is a major impediment to using this data to demonstrate that there is an air of reality to the language concerns raised by the accused. I am simply not satisfied on the basis of the record and submissions of counsel that the required air of reality has been established.
[45] While what I have said is sufficient to dispose of the application I would also note the following points, which are relevant to the exercise of my discretion. First, it will be time consuming to permit a challenge for cause of each prospective juror on this basis. Jury selections in this jurisdiction, which commonly involve a race based challenge for cause, usually take about a day to complete, even in routine cases where only one question is asked. Adding language questions and the associated instructions will significantly lengthen that process. What is proposed would result in numerous potential jurors who speak no language other than English being questioned about their English language abilities. This is not a situation akin to one in which a challenge for cause is permitted in an attempt to uncover racial prejudices. Anyone may harbour such prejudice. However, as the census data establishes, the mother tongue of most households within the major population centers of this region is English. Common sense and experience suggest that many more are proficient in English.
[46] Second, I am concerned that those on the jury panel who are members of visible minorities are likely to feel discriminated against if they are subjected to such questioning. Many of those people will have been born in Canada and English may be their first or only language. They may associate the questioning with their visible minority status.
[47] For all of these reasons the application is dismissed. I observe, however, that should it become apparent during the jury selection process that a particular potential juror has language difficulties that is something that should be taken up with the trial judge. Juror competence in the language of the trial is obviously of significance to a properly constituted jury. The issue here is not whether that competence is important but rather with how that competence is to be determined.
Justice F. Dawson