DATE: 20020702 DOCKET: C34480
COURT OF APPEAL FOR ONTARIO
LASKIN, GOUDGE AND FELDMAN JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Paul Calarco for the appellant
Respondent
- and -
FRITZ BROWN
Bradley Reitz for the respondent
Appellant
Heard: April 26, 2002
On appeal from conviction and sentence imposed by Justice Norman D. Dyson dated October 21, 1999 and October 28, 1999.
GOUDGE J.A.:
[1] Following his trial by a judge and jury, the appellant was convicted of five counts of trafficking cocaine and one count of possession of monies which were the proceeds of crime. He was sentenced to a total of five years in prison. He has appealed both his conviction and his sentence.
[2] As to conviction, the appellant raised a number of grounds of appeal. Principal among them were, first, that the trial judge erred in giving inadequate guidance to the triers charged with determining the challenge for cause of prospective jurors and, second, that the trial judge erred in dismissing the appellant’s Corbett application. For the reasons that follow, I have concluded that these two grounds of appeal must succeed and a new trial must be ordered. It is thus unnecessary to deal with the other issues raised on the conviction appeal or with the sentence appeal.
[3] Because there must be a new trial, I will review the facts only as necessary to provide the broad background and to give the factual context for these two issues.
[4] The evidence for the Crown consisted primarily of the testimony of an undercover officer. He testified that he met the appellant on five different occasions in late 1996 and purchased cocaine from him. The appellant’s convictions resulted from these meetings. The officer said that on a sixth occasion an agreement was made to sell cocaine but the deal was never completed. The appellant was acquitted of this charge. The manner of arranging the meetings was similar in each case. The officer would contact the appellant, place an order for an amount of the drug and later meet with him to consummate the deal. Three other officers testified to seeing the appellant meet with the officer on various of these occasions. The defence challenged both the honesty of the officers and the reliability of their identification evidence.
THE CHALLENGE FOR CAUSE ISSUE
[5] The appellant was arrested and charged on June 4, 1997. Jury selection began on October 13, 1999, immediately following the appellant’s arraignment. The trial judge had previously agreed to permit the defence to challenge for cause by putting the following two questions to potential jurors:
(a) Would your ability to judge the evidence in this case without bias prejudice or partiality be affected by the fact that the person charged is black?
(b) Do you hold any beliefs, opinion, or attitudes about black males and their involvement in the commission of criminal offences, in particular, drug offences, that would affect your ability to judge the evidence in this case without bias, prejudice or partiality?
- [6] Just prior to the appellant’s arraignment the trial judge began his limited explanation of this process by saying the following to the full jury panel:
Also in this case there is going to be a challenge for cause. I don’t know whether you have seen that before, but counsel will be asking a question or 2 of each prospective juror and 2 of you will be triers of the process. The 2 triers will listen to the questions and the answer of the witness and then you will decide whether you 2 triers accept the prospective witness as juror. We are going to call a couple of jurors to be triers initially, and then about 20 people to come up and be herded by the jury box there in a semi-orderly fashion.
- [7] Following arraignment, two members of the jury panel were selected to be triers and were sworn. The trial judge then instructed them as to their duties. The entirety of that instruction is as follows:
Gentlemen, your duties are rather simple. You will listen to the questions being asked by counsel of the respective jurors that come into the box and you have to decide unanimously whether you accept them or reject them as prospective jurors. Once your task is finished, then one juror is picked, that one juror will replace you and both of you eventually will return to the body of the court.
- [8] Defence counsel then proceeded to put the two questions set out above to each prospective juror. Each of the first two prospective jurors answered both questions in the negative. The triers were then asked if they found the potential juror acceptable or unacceptable. Each was found acceptable, but was challenged perempt