Court of Appeal for Ontario

Citation: R. v. Amos, 2007 ONCA 672

Date: 20071002

Docket: C45747

Before: ROSENBERG, GILLESE and MACFARLAND JJ.A.

Between:

HER MAJESTY THE QUEEN Respondent

and

CHARLES AMOS Appellant

Counsel: Charles Amos appearing in person Nicholas A. Xynnis appearing as duty counsel Nick Devlin counsel for the respondent

Heard: September 17, 2007

On appeal from the conviction by Justice Susan G. Himel of the Superior Court of Justice dated June 13, 2006.

ENDORSEMENT

[1] Mr. Amos was found guilty, after trial by jury, of two counts of trafficking cocaine and one count of possession of proceeds of crime. On appeal, Mr. Amos raised two issues. First, he argues that the trial judge breached his Charter rights by refusing to review the exercise by the Crown of one of its peremptory challenges. The appellant contends that the Crown’s peremptory challenge to the only proposed black juror, where there was nothing to suggest that the potential juror was unsuitable, brings the case outside the parameters established by R. v. Gayle (2001), 154 C.C.C. (3d) 221 (Ont. C.A.). Second, the appellant submits that the trial judge erred by failing to properly emphasize, in her charge, that neither the “buy money” nor the drugs were found at the time of the appellant’s arrest.

[2] We see no basis on which to interfere with the trial judge’s ruling that the Crown’s use of a peremptory challenge did not violate the appellant’s Charter rights. In Gayle, this court reiterated that an accused person does not have the right to insist that he or she be tried by a jury that includes one or more individuals who share some particular racial, cultural, ethnic, linguistic or other such characteristic. As the trial judge noted, relying on Gayle at para. 75:

In the multi-racial society in which we live, the random selection of juries cannot be expected to result in panels that include members having specific racial identities. No one can reasonably complain of being tried by a jury that did not happen to be representative in its membership.

[3] The trial judge considered the Crown’s actions when exercising its peremptory challenges. She found no pattern in the Crown’s actions that would suggest the challenges had been exercised in an arbitrary manner nor did she see anything to suggest that the Crown exercised its discretion other than in conformity with Charter principles and values. Accordingly, she saw no basis for reviewing the Crown’s exercise of a peremptory challenge.

[4] After noting that there were persons who were representatives of visible minorities on the panel, the trial judge concluded that there had been no breach of the appellant’s right to a fair and impartial trial when the jury challenge process was considered as a whole, including the process of challenge for cause and peremptory challenge.

[5] We see nothing in the second ground of appeal. There is nothing inadequate or improper in the trial judge reiterating that no buy money or drugs were found on the appellant or located at the scene where the transactions took place in the context of a review of the defence theory.

[6] Accordingly, we would dismiss the appeal.

“M. Rosenberg J.A.”

“E.E. Gillese J.A.”

“J. MacFarland J.A.”