Her Majesty the Queen v. Douglas [Indexed as: R. v. Douglas]

62 O.R. (3d) 583

[2002] O.J. No. 4734

Docket No. C29113

Court of Appeal for Ontario

O'Connor A.C.J.O., Weiler and Moldaver JJ.A.

December 11, 2002

Criminal law -- Trial -- Jury selection -- Challenge for cause -- Trial judge permitting accused to challenge prospective jurors for cause on basis of race -- Trial judge not adequately instructing triers on nature of their task or procedure to follow -- Trial judge not instructing triers on applying civil standard of proof or on advising court if unable to agree on prospective jurors within reasonable time -- Accused's appeal from conviction allowed.

Criminal law -- Trial -- Peremptory challenge -- Trial judge standing aside prospective jurors affirmatively responding to question whether they had "any difficulties at all" being on jury -- When stand asides recalled trial judge refusing to inquire into nature of difficulties and requiring counsel to waste peremptory challenges as result of trial judge not fully pre-screening jurors -- Trial judge impermissibly interfering with accused's statutory right to exercise 12 peremptory challenges -- Accused's appeal from conviction allowed.

The accused was convicted of conspiracy to import cocaine. He and his co-accused were permitted to challenge for cause on the basis of race. On appeal from conviction, the accused submitted that the trial judge did not adequately instruct the triers on the nature of their task or the procedure they were to follow in arriving at a decision. He also submitted that the trial judge interfered with his peremptory challenge rights by failing to fully pre-screen prospective jurors.

Held, the appeal should be allowed.

Triers should be given brief legal instructions about the nature of their task and the procedure to be followed. In this case, none of the triers received instruction on the procedure they were to follow in arriving at their decision. Because the triers were provided with no instruction on the standard of proof to be applied, it was conceivable that they applied the criminal standard as opposed to the civil standard. They also received no instruction on the need for unanimity, and may have thought that disagreement should lead to the rejection, or worse yet, the acceptance of a prospective juror. This aspect of the jury selection process was flawed.

At the outset of the jury selection process, the trial judge invited jurors whose names were drawn to let him know if they had a "difficulty of any kind", without telling him the nature of their problem. Individuals who had a problem were to be stood aside, and recalled only if 12 jurors had not been selected from the remainder. Seventy-seven individuals were stood aside, and from the remaining members of the panel, only five jurors were chosen. It became necessary to recall the stand asides. The trial judge declined to ask the prospective jurors about the nature of their problem before embarking on the challenge for cause process and calling upon the parties to exercise their peremptory challenges. Defence counsel used several peremptory challenges on prospective jurors who had passed the challenge for cause process but who had not been questioned by the trial judge about their difficulties. The procedure adopted by the trial judge resulted in a large number of prospective jurors being excused for reasons of personal hardship [page584] or other reasonable cause after they had passed the challenge for cause process and been approved by the parties. It could safely be inferred that, as a result of the procedure adopted by the trial judge, all counsel were forced to waste a significant number of peremptory challenges on prospective jurors who otherwise would have been excused from jury duty by the trial judge. The net effect of this was to render some of defence counsel's peremptory challenges nugatory and thus reduce the number of such challenges afforded to him under s. 634(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge should have completed his vetting before embarking on the challenge for cause and peremptory challenge process.

APPEAL from a conviction for conspiracy to import cocaine.

Cases referred to R. v. Brown, 2002 41937 (ON CA), [2002] O.J. No. 2562 (Quicklaw) (C.A.); R. v. Hubbert, 1977 15 (SCC), [1977] 2 S.C.R. 267, 15 O.R. (2d) 324, 38 C.R.N.S. 381, 15 N.R. 139, 33 C.C.C. (2d) 207, affg (1975), 1975 53 (ON CA), 11 O.R. (2d) 464, 29 C.C.C. (2d) 279, 31 C.R.N.S. 27 (C.A.); R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737, 160 C.C.C. (3d) 493, 47 C.R. (5th) 203 (C.A.); R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509, 73 Man. R. (2d) 161, 122 N.R. 241, 63 C.C.C. (3d) 193, 3 C.R. (4th) 129 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 632(b), (c), 633, 634(2)(b) Authorities referred to Watt, D., Ontario Specimen Jury Instructions (Criminal), CD-ROM (Toronto: Thomson-Carswell, 2002)

Michael Code, Melvyn Green and Vanora Simpson, for appellant. D.D. Graham Reynolds, Q.C., Robin Parker and Xenia Proestos, for respondent.

The judgment of the court was delivered by

[1] MOLDAVER J.A.: -- The appellant and others were tried by a court composed of judge and jury on a multi-count indictment consisting of various drug and drug-related offences. The appellant was convicted of one count of conspiracy to import cocaine into Canada and received a sentence of 13 years. He appeals against conviction only.

[2] The appellant raised many grounds of appeal, one of which related to alleged errors in the jury selection process. As success on that ground would entitle the appellant to a new trial, the panel hearing the appeal decided, with the concurrence of the parties, to hear submissions on the issues arising from the jury selection process first. After hearing submissions from the appellant and the respondent on these issues, the panel concluded that the appeal must succeed and the parties were so advised. Counsel for the appellant were then invited to indicate which of the [page585] remaining issues, if any, they wished to argue. In response, they advised that at this juncture, none of the remaining issues would be pursued. Accordingly, the panel allowed the appeal, set aside the conviction and ordered a new trial, with reasons to follow. These are the reasons.

Background

[3] In view of the panel's conclusion that there must be a new trial because of errors in the jury selection process, I will not detail the facts leading to the appellant's arrest and conviction. Suffice it to say that the evidence led by the Crown at trial placed the appellant at the head of an international organization responsible for the importation of large amounts of cocaine into Canada. For the purpose of this decision, the only other facts of significance are those that relate to the jury selection process and they will be outlined as required.

I

Complaints Arising Out of the Challenge for Cause Process

[4] The appellant and his co-accused were permitted to challenge for cause on the basis of race. By agreement, each prospective juror was asked the following question:

As the judge will tell you, in deciding whether or not the prosecution has proven the charge against the accused, a juror must judge the evidence of the witnesses without bias, prejudice, or partiality. Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that a person charged is not white?

[5] The appellant raises two complaints about the challenge for cause process. First, he submits that the trial judge did not adequately instruct the triers on the nature of their task or the procedure they were to follow in arriving at a decision. Second, he submits that the trial judge, on one occasion, usurped the function of the triers by excusing a prospective juror when the truth of the challenge was in the hands of the triers and had not yet been resolved by them.

Did the Trial Judge Fail to Adequately Instruct the Triers?

The law

[6] Two recent decisions from this court raise a concern that triers may not always be receiving the brief but important legal instructions they require in order to properly fulfill their function of determining whether a prospective juror is or is not a suitable candidate for jury duty. [page586]

[7] In R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737, 160 C.C.C. (3d) 493 (C.A.), the first of the two decisions, the appellant raised a number of issues about the jury selection process. One such issue related to the trial judge's failure to adequately instruct the triers on the nature of their task and the procedure to be followed. In her reasons for the court, Charron J.A. reproduced the brief legal instructions provided to the first two triers and to the jury panel at large and at p. 767 O.R., she explained why the instructions were inadequate:

These instructions, in my view, did not adequately assist the jury in understanding the nature of their task and the procedure they were to follow. The triers were not told that they were to decide the question on the balance of probabilities, that the decision had to be that of both of them, that they could retire to the jury room or discuss the matter right where they were and that if they could not agree within a reasonable time, they were to say so: see R. v. Hubbert (1975), 1975 53 (ON CA), 11 O.R. (2d) 464 at p. 480, 29 C.C.C. (2d) 279 at p. 294 (C.A.), affd 1977 15 (SCC), [1977] 2 S.C.R. 267, 33 C.C.C. (2d) 207. It would also have been preferable if the jury had been provided more assistance in understanding the meaning of partiality or acceptability, and the importance and purpose of the challenge for cause process.

[8] In R. v. Brown, 2002 41937 (ON CA), [2002] O.J. No. 2562 (Quicklaw) (C.A.), the second of the two decisions, the appellant also raised the issue that the triers had not received adequate legal instruction. In his reasons for the court, Goudge J.A. reproduced at paras. 6 and 7 the brief legal instructions provided to the triers and the jury panel at large. At paras. 9-14, he explained why, in his view, the instructions were deficient:

The appellant submits that the instructions given to the triers were deficient. I agree.

There is no doubt that the selection of an impartial jury is crucial to a fair trial. See R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694 at p. 710. The Criminal Code recognizes the importance of the selection process by setting out in detail the procedure to be followed including the use of triers to determine challenges for cause.

It is important that the trial judge give the triers at least a general understanding of the nature of their task and the procedure they are to follow. See R. v. Moore-McFarlane [citation omitted].

As to the nature of their task, the very brief instruction here offered no assistance to the triers in understanding the meaning of partiality or acceptability, nor any explanation of the importance and purpose of the process of challenging for cause on the basis of race. The complete failure to provide the triers with assistance concerning the basic nature of their task is a serious shortcoming. See R. v. Moore-McFarlane, supra.

As to the procedure to be followed, the triers were given equally little help. They were not told that they were to decide the question on the balance of probabilities, that they could discuss the matter right where they were, or [page587] retire to the jury room to do so, or that if they could not agree within a reasonable period of time they were to say so. Again, these are noteworthy deficiencies. See R. v. Hubbert [citation omitted].

In my view, the inadequacy of the instructions to the triers in this case constitutes an error of law and this ground of appeal must succeed.

[9] As both Charron and Goudge JJ.A. have observed, the requirement that triers be given brief legal instructions about the nature of their task and the procedure to be followed is not a new development in the law governing the challenge for cause procedure. On the contrary, it dates back almost 30 years to this court's decision in Hubbert, supra, where, at pp. 479-80 O.R., p. 294 C.C.C., the court stated:

When two triers have been called and sworn, the trial Judge should explain briefly to them what is happening and what their function is. He should tell them they are to decide "whether the challenged juror is indifferent -- that is, impartial -- between the Crown and the accused", that they are to decide the question on the balance of probabilities, that the decision must be that of both of them, that they may retire to the jury-room or discuss it right where they are, that if they cannot agree within a reasonable time, they are to say so.

[10] The Hubbert decision goes on to provide further guidance on the procedure to be followed and the type of instruction to be given to the triers after a prospective juror has been questioned. The relevant portion of the decision is found at p. 480 O.R., p. 295 C.C.C. and reads:

Section 569 [now s. 640] neither provides for nor prohibits addresses by counsel to the triers. The trial Judge may in his discretion permit it; usually there will be no necessity for it. Nor need he make any discursive "charge" to the triers. Usually some words like these will suffice:

As I told you, Mr. X has been challenged on the ground that he is not indifferent -- that is, not impartial -- between the Crown and the accused. You are to decide: is this ground of challenge true, or not true?

In some cases further explanation by the trial Judge may be necessary, and should be given. Ordinarily it will not be necessary to review the evidence, which will usually be short and fresh in everyone's mind.

[11] At the time of its release, Hubbert was significant because it provided much-needed guidance about the challenge for cause process. For present purposes, the value of this decision lies in the fact that it outlines, albeit in general terms, the type of legal instruction trial judges should provide to triers to assist them in their task.

[12] Although Hubbert identifies, in general terms, the type of legal instruction triers should receive, it does not go on to explain why such instructions are important, nor does it address the logistics of the process or the practical considerations involved in [page588] its implementation. I refer to these limitations of the Hubbert decision not by way of criticism, but because they may provide an explanation, in some measure, for the insufficient instructions that have recently come to the attention of this court. With that in mind, I think it would be useful to address these factors and I propose to do so in the context of the case at hand. I begin with the importance of instructing triers about the nature of their task.

The trial judge's instructions

[13] The trial judge did not give a uniform instruction to the triers. In my view, it is unnecessary to recite what was said to each trier. Suffice it to say that most of the triers were told, in one form or another, that it was their duty to determine whether a prospective juror was free of racial prejudice and thus suitable to sit on the jury. In the case of some triers, the link to racial prejudice was omitted but, given the wording of the question asked of the prospective jurors, I think that these triers would have appreciated the nature of their task.

[14] In one instance however, a trier received no instructions as to the nature of his task. That, of course, is unacceptable. Manifestly, if triers are to perform their task properly, they must know what task it is they are required to perform.

[15] Equally unacceptable is the fact that in this case, none of the triers received instruction on the procedure they were to follow in arriving at their decision. Thus, because the triers were provided with no instruction on the standard of proof to be applied, it is conceivable that, as a consequence, they may have applied the criminal standard as opposed to the civil standard before accepting, or worse yet, rejecting a prospective juror. Likewise, the triers received no instruction on the need for unanimity. Again, it is conceivable that, as a result, the triers thought that disagreement should lead to the rejection of a prospective juror, or even worse, his or her acceptance.

[16] In sum, failure to instruct the triers on the nature and importance of their task and the procedure they are to follow in arriving at their decision can have a dramatic impact on the jury selection process. It carries with it the very real risk that suitable jury candidates will be rejected and unsuitable ones accepted. These risks can lead to the selection of a jury that is neither fair nor impartial, thereby defeating the very purpose of the challenge for cause process.

[17] The instructions that must be given to the triers need not be complicated. Indeed, they should be kept simple. In this [page589] regard, the model instructions found at Part I: Preliminary Instructions, ss. 12A-12C, of Justice David Watt, Ontario Specimen Jury Instructions (Criminal), CD-ROM (Toronto: Thomson-Carswell, 2002) are helpful and I would encourage their use, with the minor proviso that they be enlarged to advise the triers of their right to retire to the jury room to deliberate should they wish.

[18] With the foregoing in mind, I turn to the logistics of the process and the practical considerations involved in its implementation.

Logistics of the process and practical considerations

[19] Unquestionably, the prospect of repeating over and over again the same instructions to each new trier is a daunting one. Trial judges can be forgiven for viewing the process as cumbersome, repetitive and wasteful, and it is understandable that they would look for ways to speed it up. Regrettably, in some instances, this can lead to impermissible corner-cutting.

[20] Fortunately, the problem lends itself to a straightforward solution. Neither the Criminal Code, R.S.C. 1985, c. C-46, nor binding jurisprudence requires that new triers receive new instructions. All that is required is that each trier appreciate the nature and importance of the task to be performed and the procedure to be followed. Individual instruction is certainly one way of achieving this, but it is not the only way. Like so many other aspects of the jury selection process, Parliament has wisely left the means by which the necessary information is to be conveyed to the discretion of the trial judge. Accordingly, there is nothing to prevent trial judges from providing it to all potential triers, as a group.

[21] This can undoubtedly be accomplished in a number of ways. One such way would be for the trial judge to alert the panel at large, in general terms, of the nature and purpose of the challenge for cause process. Thereafter, specific instructions could be provided to the first two triers and the initial group of 20 people selected as potential jurors, with the same instructions being given to each additional group of prospective jurors, pending the selection of 12 jurors. As part of this process, in the specific instructions given to the groups of 20 or less, trial judges will likely want to invite the prospective triers to ask questions if, upon becoming a trier, there exists any uncertainty about their role or the procedure to be followed.

[22] The model that I have suggested is but one approach to simplifying the process while ensuring that triers receive the legal instruction to which they are entitled. Undoubtedly, other [page590] equally effective approaches exist. As indicated, what is critical in all cases is that the triers receive the necessary instruction. How this is accomplished is best left to the discretion of trial judges.

[23] Returning to the case at hand, it is my respectful view that the trial judge did not provide the triers with adequate legal instruction. Accordingly, I agree with the appellant that this aspect of the jury selection process was flawed.

Did the Trial Judge Usurp the Function of the Triers?

[24] The appellant submits that in one instance, the trial judge usurped the function of the triers by excusing a prospective juror when the truth of the challenge was in the hands of the triers. The event giving rise to this complaint is reproduced below:

[DEFENCE COUNSEL]: Good afternoon, sir. As the judge will tell you, in deciding whether or not the prosecution has proven the charge against an accused, a juror must judge the evidence of the witnesses without bias, prejudice or partiality. Would your ability to judge the evidence in this case without bias, prejudice, partiality be affected by the fact that a person charged is not white?

PROSPECTIVE JUROR: I am not racially prejudiced, if that is what you are asking.

[DEFENCE COUNSEL]: Thanks very much, sir.

THE COURT: Triers, potential juror acceptable or not?

TRIERS: I don't know.

THE COURT: We will have to call that a no, if that is not acceptable. Thank you.

THE REGISTRAR: Take a seat in the body of the Court, sir.

[25] The appellant submits that, in these circumstances, the trial judge exceeded his jurisdiction in excusing the prospective juror. He bases this submission on the fact that the response from the triers did not indicate that they had decided the issue, but that they were simply unsure about the nature of their task and needed further guidance. That being so, the trial judge had no warrant to excuse the prospective juror and in doing so, he exceeded his jurisdiction by taking it upon himself to decide the disputed issue of partiality contrary to the principles enunciated in R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509, 63 C.C.C. (3d) 193, at p. 535 S.C.R., p. 211 C.C.C.

[26] I would not give effect to this submission because, in my view, it is speculative. No objection was raised with respect to the procedure followed by the trial judge and it is impossible to divine from the record what the triers meant by their response [page591] and, more importantly, how the trial judge perceived it. On its face, it would seem that the trial judge took the response to mean that the triers were not satisfied that the prospective juror was acceptable and that in excusing the juror, he was simply giving effect to their conclusion. Given the lack of objection, it is conceivable that the parties viewed the matter that way as well.

[27] Unquestionably, it would have been preferable had the trial judge elaborated on the reason for his decision to excuse the prospective juror. However, on the basis of the record, I am not persuaded that in excusing the juror in question, he exceeded his jurisdiction. Accordingly, I would not give effect to this aspect of the appeal.

II

Complaint About Interference With the Appellant's Peremptory Challenge Rights

[28] At the outset of the jury selection process, the trial judge recognized that because the trial was going to last six to eight weeks, some prospective jurors would have to be excused under s. 632(c) of the Criminal Code for personal hardship. He further recognized that others might be closely connected to the parties, their lawyers or witnesses, and that they too would have to be excused under s. 632(b) of the Criminal Code.

[29] In an effort to avoid having to deal with prospective jurors who might have a problem, the trial judge decided, with the concurrence of counsel, that he would invite the jurors whose names were drawn to let him know if they had a "difficulty of any kind", without telling him the precise nature of their problem. Those individuals would then be stood aside under s. 633 of the Criminal Code and recalled only if 12 jurors had not been selected from the remainder. The trial judge's instructions in this regard, given to the jury panel at large, are reproduced below:

The case is expected to last between one and a half and two months. We will be shutting down the trial during the spring break, which is the week of March 10. So it is going to be a challenging case and I think an interesting case for the members of the panel to have been eventually selected to sit on the jury. We have to choose twelve of your number to form the jury in this case.

If your name is called and you are brought forward and if you have difficulty of any kind, please tell me, don't tell me what the difficulty is, just indicate that you have a difficulty. What I will do is stand some people aside and we may be able to get twelve jurors selected from among the people who have no difficulty. If you have a difficulty just let me know but don't give me any details at the moment. [page592]

[30] This process resulted in 77 individuals being stood aside. From the remaining members of the panel, five jurors were chosen. Accordingly, it became necessary to recall the stand asides. At the outset of that process, counsel for one of the accused asked the trial judge whether he would "be inquiring as to the nature of the [prospective juror's] problem" before embarking on the challenge for cause process and calling upon the parties to exercise their peremptory challenges. The following exchange then took place between the trial judge and defence counsel:

THE COURT: Well, they will, it [will] be vetted by the triers first and peremptory.

[DEFENCE COUNSEL]: Some of them said they have a problem with the length of time.

THE COURT: Yes. What I am saying is peremptory challenge can be exercised and then at that point, I will decide whether to dismiss them or not.

[DEFENCE COUNSEL]: Could I maybe suggest to the Court that perhaps Your Honour should evaluate the excluded person then we don't have to use up peremptory challenge -- really have very valid reasons for not sitting.

THE COURT: Yes, unless you can find some authority then I am advised to do it that way, that is not the way I intend to do it.

[DEFENCE COUNSEL]: I am not sure this is short, authority -- just experience that I have had because of argument I have just made, it seems unfair to ask counsel and Crown to use up their peremptory challenges for people who would be [dis] charged in any event.

THE COURT: That is the way I propose to do it, . . . unless you can find some authority that can indicate otherwise.

[31] After this discussion, the case was adjourned to the following day and before the selection process started, defence counsel reiterated his objection from the previous day. The trial judge refused to alter his position, despite recognizing that "a [lengthy] trial of this nature does create genuine bona fide difficulty for many prospective jurors."

[32] The selection process recommenced and counsel for the appellant used several peremptory challenges on prospective jurors who had passed the challenge for cause process but who had not been questioned by the trial judge about their difficulty. Significantly, as might be expected and as the record reveals, the procedure adopted by the trial judge resulted in a large number of prospective jurors being excused for reasons of personal hardship or other reasonable cause after they had passed the challenge for cause process and been approved by the parties. From this, it can safely be inferred that, as a result of the procedure adopted by the trial judge, all counsel, including Crown counsel, were forced to waste a significant number of peremptory [page593] challenges on prospective jurors who otherwise would have been excused from jury duty by the trial judge. In the appellant's submission, the net effect of this was to render some of his peremptory challenges nugatory and thus reduce the number of such challenges afforded to him under s. 634(2)(b) of the Criminal Code. [See Note 1 at end of document]

[33] With respect, I believe that the appellant's complaint is well-founded. Having determined, correctly in my view, that this was a case for judicial pre-screening, the trial judge should have completed his vetting before embarking on the challenge for cause and peremptory challenge process. Because he did not, the parties used valuable peremptory challenges on prospective jurors who most likely would have been excused had they been pre-screened by the trial judge. In other words, instead of having the 12 meaningful peremptory challenges to which he was entitled under s. 634(2)(b) of the Criminal Code, the procedure adopted by the trial judge effectively reduced this number in contravention of the statutory regime governing the jury selection process. It follows, in my view, that this aspect of the selection process was flawed.

Conclusion

[34] For the reasons stated, I have concluded that the jury selection process was fatally flawed. The trial judge failed to adequately instruct the triers on the nature of their role and the procedure to be followed in the challenge for cause process, and he impermissibly interfered with the appellant's statutory right to exercise 12 peremptory challenges. In the face of these errors, a new trial is required. Accordingly, I would allow the appeal, set aside the conviction and order a new trial.

Appeal allowed.

Notes

Note 1: Significantly, the appellant had exhausted all of his peremptory challenges by the time nine jurors had been selected.