CITATION: R. v. Kakegamic, 2010 ONCA 903

DATE: 20101230

DOCKET: C44636

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Oliver Kakegamic

Appellant

Daniel J. Brodsky and Greg Brodsky, Q.C., for the appellant

Elise Nakelsky, for the respondent

Heard: December 3, 2010

On appeal from the conviction entered by Justice Erwin W. Stach of the Superior Court of Justice, sitting with a jury, on October 18, 2005.

Doherty J.A.:

I

[1] The appellant was convicted of first degree murder. The jury found that he sexually assaulted, strangled and killed a sixteen-year-old girl named Jocelyn “Chippy” McDonald.

[2] The appellant raises two grounds of appeal. He submits that he was improperly excluded from the court for part of the jury selection process in contravention of his right to be present at his trial set out in s. 650 of the Criminal Code, R.S.C. 1985, c. C-46. He submits that his exclusion constitutes a miscarriage of justice necessitating the quashing of his conviction. The appellant also argues that the trial judge erred in admitting statements made by him to undercover police officers. The appellant contends that before admitting those statements, the trial judge was required to determine whether they were sufficiently reliable to warrant their admission under the principled exception to the hearsay rule.

[3] I would dismiss the appeal. The procedural error in the course of the jury selection caused no prejudice to the appellant. There is no merit to the evidentiary point raised in the second ground of appeal.

II

[4] Ms. McDonald disappeared in mid-October 2000. Her body was found in March 2001. She was last seen alive at the appellant’s apartment. The Crown’s case relied heavily on statements made by the appellant to undercover officers during what has come to be known as a “Mr. Big” operation. In the course of a relationship cultivated by undercover officers posing as criminals, those officers induced the appellant to tell them about Ms. McDonald’s murder as a means of gaining their trust and confidence. The appellant made statements to the undercover officers in which he provided significant details about the homicide. Unbeknownst to the appellant, those statements were videotaped.

[5] The appellant did not testify.

III

The Jury Selection Issue

(a) The Trial Proceedings

[6] Prior to the attendance of the jury panel, counsel for the appellant indicated that he wished to challenge the jury for cause based on pre-trial publicity. The trial judge dismissed the application holding that the defence had produced no evidence to support the claim of potential bias based on pre-trial publicity. There is no appeal from that ruling. A discussion about the questions to be put to the panel by the trial judge ensued. After a brief recess, the jury panel was brought into the courtroom to be vetted by the trial judge pursuant to s. 632 of the Criminal Code.

[7] The accused was arraigned before the jury panel and pled not guilty. The trial judge addressed the panel. After reading the charge against the appellant, the trial judge told the jury panel that there were various reasons for excusing prospective jurors from jury duty in any given case. He told them that they could be excused if they had any association with persons on a list of names he read to the panel. The trial judge also told the jury panel that they could be excused if they had personal knowledge of the case, or had reached an opinion as to the merits of the case. He next told the jury that prospective jurors could be excused if they had difficulty hearing, other medical problems that would make it difficult for them to sit as jurors, or difficulty understanding the English language. Finally, the trial judge told the panel that they could be excused from jury duty if serving on the jury would impose an “exceptional personal or financial hardship”. The trial judge explained that if any of the jurors had concerns based on what he had said, they should raise those matters with him when they were called forward individually during the jury selection process.

[8] After a further brief adjournment, the selection process commenced with the calling forward of the first group of prospective jurors. When the third juror was called forward, the following appears in the transcript: “Private conversation between the court and prospective juror.”

[9] Following the conversation, which took place in the courtroom, but out of the earshot of everyone except the trial judge and the prospective juror, the trial judge, on the record, indicated the juror had a non-refundable prepaid vacation planned and would be excused.

[10] Counsel for the appellant advised the trial judge that he had not heard the conversation between the judge and the prospective juror. The judge responded:

Indeed some of it is personal in nature and you need to exercise some discretion about that, that is all. If you would like to, next time, a witness [prospective juror] speaks to me, be party to the conversation you may come forward.

[11] Counsel for the appellant indicated that he would avail himself of the trial judge’s invitation. He also suggested to the trial judge that while it may be appropriate that the conversations with the prospective jurors should not be public, they should be recorded as part of the trial proceedings. The trial judge declined to order the conversations recorded.

[12] Counsel for the appellant, who are also counsel for the appellant in this court, did not raise any further objection to the procedure followed thereafter. Counsel did not suggest at trial that they has any difficulty hearing the conversations between the trial judge and the prospective jurors. Significantly, they did not raise any issue about the appellant’s inability to hear the conversations, or suggest that the appellant’s inability to hear those conversations in any way compromised the defence or the appearance of fairness at the trial. These objections were not raised until some five years later on appeal.

[13] The jury selection process continued. Several potential jurors had “private conversations” with the trial judge in the courtroom after their names were called and they came forward from the body of the courtroom. Counsel for the appellant and the Crown were present and heard these conversations. Most, but not all, of the persons who spoke with the trial judge were excused from jury duty. If a juror was not excused, the Crown and the defence were then given the opportunity to exercise their preemptory challenges.

[14] On several instances, persons who were selected for the jury immediately raised problems that could potentially affect their ability to sit on the jury. For example, one juror who had been selected told the trial judge that he was now concerned that he might have employed relatives of the appellant. When a selected juror raised a problem with the trial judge, a “private conversation” followed. Counsel for the Crown and the appellant were privy to these discussions. In each instance, the person who had been selected as a juror was discharged by the trial judge pursuant to s. 644(1.1) and a new juror was selected. None of the 12 persons who eventually tried the case engaged in any of the “private conversations” with the trial judge.

[15] As the process carried on, the trial judge sometimes gave reasons on the record for excusing or discharging a prospective juror. In other instances, the juror was simply excused or discharged without any indication on the trial record of the reason for excusing the juror.

[16] From time to time during the jury selection process, some of the communications between the trial judge and the prospective jurors were recorded by the court reporter. However, many were not recorded or summarized on the trial record. The Crown acknowledges that the appellant was unable to hear the “private conversations” that went on between the trial judge and the prospective jurors.

(b) The Arguments

[17] The appellant submits that the conversations between the trial judge and some of the prospective jurors were part of his trial. He submits that because he could not hear those conversations, he was effectively denied the right to be present at that part of his trial. He contends that this denial contravened s. 650 of the Criminal Code, which provides that he is entitled to be present throughout his trial. The appellant further submits that the absence of any record of the conversations between the trial judge and the prospective juror compromised his ability to demonstrate the prejudice flowing from his exclusion from those conversations. He argues that prejudice resulting in a miscarriage of justice must be assumed in these circumstances.

[18] The Crown does not argue that the conversations were not part of the trial. She submits, however, that the conversations which related exclusively to matters that would justify excusing a prospective juror under s. 632 of the Criminal Code did not affect the “vital interests” of the appellant. She submits that as the appellant’s “vital interests” were not at stake, his failure to hear the conversations did not result in a denial of his right to be present at his trial.

[19] Alternatively, Crown counsel submits that if the accused was denied the right to be present at trial, that error, in these circumstances, constitutes a “procedural irregularity” that occasioned no prejudice to the appellant. She relies on s. 686(1)(b)(iv) of the Criminal Code, the “procedural curative proviso” to support her submission that the appeal should be dismissed.

(c) Analysis

[20] Section 650(1) provides that an accused “shall be present in court during the whole of his or her trial.” In R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, the majority held that a trial judge’s questioning of prospective jurors on issues relevant to potential partiality constituted part of the trial for the purposes of s. 650 (then s. 577). In Barrow, as in this case, the questioning took place after arraignment and plea in the courtroom and out of the earshot of the accused. In Barrow, unlike this case, the trial judge also excluded counsel from the questioning and did so over counsel’s express objection.

[21] Barrow predated the enactment of s. 632. That section specifically gives trial judges the power to excuse potential jurors for the reasons set out in the section (personal interest in the case, relationship with the parties, police, counsel or the judge, personal hardship or reasonable cause). Prior to the enactment of s. 632, trial judges routinely followed a procedure like that set out in s. 632. The trial judge in Barrow did so, although it would appear that his inquiries into partiality went beyond those contemplated by s. 632.

[22] The opening language of s. 632 specifically provides that a trial judge may exercise the powers in that section “before the commencement of trial”. If a trial judge did so, s. 650 would not be engaged, although apart entirely from that section, I would think that an accused has the right to be present during the process envisioned in s. 632. In this case, however, the trial judge chose to arraign the appellant before the jury panel and take his plea before the panel prior to exercising his function under s. 632. The timing of the trial judge’s questioning of the prospective jurors in this case renders it indistinguishable on that ground from Barrow. The questioning of the prospective jurors formed part of the appellant’s trial.

[23] Barrow, at p. 707, also makes it clear that the appellant’s inability to hear the conversations between the trial judge and the prospective jurors must be equated with his absence from the courtroom during those conversations for the purposes of s. 650.

[24] Although the Crown accepts that the questioning of the jury was part of the trial and that the appellant was effectively absent from that part of the trial, she argues that not everything that happens in the course of the trial will be considered part of the trial for the purposes of s. 650 and the accused’s right to be present during his or her trial. She submits that matters that are collateral or incidental to the trial itself and do not involve an accused’s “vital interests” will not be considered part of the trial for the purposes of s. 650 even if those events occurred in the course of the conduct of the trial: R. v. Hertrich (1982), 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.), at pp. 537-38, leave to appeal refused, [1982] 2 S.C.R. x; R. v. Vézina, 1986 CanLII 93 (SCC), [1986] 1 S.C.R. 2.

[25] The distinction between things that occur during the trial and things that are part of the trial for the purposes of s. 650 is alluded to by the majority in Barrow. Dickson C.J.C. notes at pp. 706-707:

A distinction is drawn in the United States, however, between exemptions claimed on grounds of partiality and those claimed on essentially private grounds of hardship, illness, and the like. In the latter instances, the examination by the judge has been held to be outside the scope of the trial (citation omitted).

[26] Dickson C.J.C. goes on to hold that in Barrow, the judge’s conversations with the prospective jurors related in part, at least, to questions of partiality. He said at p. 708: “Any question about the partiality of the jurors individually or the jury as a whole reflects on the substantive conduct of the trial and must be dealt with in the presence of the accused.”

[27] I cannot accept that the trial judge’s communications with the jurors fall into the category of events that while occurring during a trial, do not constitute part of the trial for the purposes of s. 650. The procedures followed by the trial judge in excusing potential jurors and discharging selected jurors are provided for in ss. 632 and 644(1.1). In Hertrich, Martin J.A. said at p. 527:

However, “trial” for the purpose of the principle that an accused is entitled to be present at his trial clearly includes proceedings which are part of the normal trial process for determining the guilt or innocence of the accused such as arraignment and plea, the empanelling of the jury, the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence), rulings on evidence, arguments of counsel, addresses of counsel to the jury, the judge’s charge, including requests by the jury for further instructions, the reception of the verdict and imposition of sentence if the accused is found guilty. [Emphasis added.]

[28] In my view, if a procedure is “part of the normal trial process for determining guilt of innocence” it is unnecessary to engage in an ad hoc inquiry as to the significance of that procedure to the rights of the accused in any given case. Routine jury selection procedures specifically contemplated by the Criminal Code are part of the trial for the purposes of s. 650.

[29] I also have difficulty with the distinction suggested in Barrow between inquiries into a juror’s potential partiality and inquiries into “personal reasons” for being excused from the jury. While many of the prospective jurors’ problems will be personal in nature, some will raise questions of partiality and some will involve both personal matters and questions of partiality. For example, a prospective juror may identify a relationship with someone connected with the case or with law enforcement more generally and be uncertain as to whether that relationship should excuse him from the jury. In raising the question, the juror is raising the possibility of partiality, but may also be raising a personal matter depending on the nature of the relationship. It is difficult and dangerous to try and draw a bright line between the different types of questions that could arise during an inquiry under either s. 632 or s. 644(1.1.)

[30] I am also satisfied that on the “vital interests” test relied on by the Crown the s. 632 and s. 644(1.1) inquiries are matters of “vital interests” to the accused. Section 632 can have a significant impact on the constitution of the group of jurors from which the 12 jurors who will try the case will be chosen. Section 644(1.1) has a direct impact on the constitution of the jury that tries the case.

[31] For the reasons set out above, the “private conversations” between the trial judge and the jurors were part of the appellant’s trial. Absent waiver, he was entitled to hear the conversations between the trial judge and the prospective jurors. The Crown does not suggest that the appellant waived his right to be present.

(d) The Curative Proviso

[32] Section 686(1)(b)(iv) provides that the court may dismiss an appeal where:

[N]otwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby.

[33] Section 686(1)(b)(iv) was not part of the Criminal Code when Barrow was decided.[^1] The section was enacted to empower appellate courts to dismiss appeals despite procedural errors where the appellate court is satisfied that those errors occasioned no prejudice: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 15-16.

[34] In Khan, at para. 16, Arbour J., for the majority, explained:

[Section] 686(1)(b)(iv) was enacted to cure serious procedural irregularities, otherwise amounting to errors of law, in cases where under the then existing case law, jurisdiction over the person, but not over the offence, had been lost. ... [U]nder this new subparagraph, since the procedural irregularities in issue would have to be serious ones, it is appropriate to infer prejudice without requiring in every case that the accused demonstrate prejudice. The inference may of course be rebutted and the test for prejudice under that subsection should be the same as the no substantial wrong or miscarriage of justice, under s. 686(1)(b)(iii).

[35] The jurisprudence relating to the application of s. 686(1)(b)(iv) to situations in which an accused has been improperly excluded from part of the trial was recently and thoroughly canvassed by this court in R. v. Simon, 2010 ONCA 754, at paras. 114-23. That case provides a helpful catalogue of the factors relevant to the assessment of the prejudice, if any, caused by the exclusion of the accused during his trial.

[36] Prejudice in the context of s. 686(1)(b)(iv) refers to prejudice to the individual accused’s ability to properly defend himself and receive a fair trial and prejudice in the broader sense of prejudice to the appearance of the due administration of justice. I see no prejudice in either sense of the word flowing from the appellant’s exclusion from the conversations between the prospective jurors and the trial judge. I reach that conclusion for four reasons.

[37] First, with the exception of the first potential juror who was questioned by the trial judge, counsel for the appellant was privy to all other conversations. He had the opportunity to hear what was said and raise any issues that he felt should be raised to protect the interests of his client. Insofar as the first prospective juror is concerned, it is clear that she was excluded because of her pre-paid holiday plans. There can be no suggestion that her exclusion in any way prejudiced the appellant.

[38] Second, apart from suggestion that the conversations should be recorded, counsel made no objection to the procedure followed by the trial judge. Clearly, he could have done so if he thought that the appellant’s inability to hear the conversations prejudiced the defence in any way. Counsel did tell the trial judge that he could not hear the conversations and the trial judge immediately remedied that problem. I see no reason to think that he would not have done the same had counsel for the appellant indicated that there was any problem arising out of the appellant’s inability to hear the conversations. The failure of the defence to raise any objection at trial is a significant factor in the prejudice assessment: R. v. Khan, per LeBel J., concurring, at paras. 85-86; Barrow, at p. 717; R. v. Ferguson (2006), 2006 ABCA 36, 207 C.C.C. (3d) 157 (Alta. C.A.), at paras. 30-31, leave to appeal refused, [2006] S.C.C.A. No. 121.

[39] Third, there is nothing in the trial record and nothing has been offered by way of fresh evidence on appeal that would lend any substance to the suggestion that any of the prospective jurors who were excused were not properly excused or that anything occurred during those conversations which could have possibly prejudiced the appellant. Nor has the appellant demonstrated any link between his inability to hear those conversations and the manner in which his counsel exercised the appellant’s preemptory challenges. In oral argument, counsel for the appellant did refer to various exchanges between him and the trial judge during the jury selection process. However, he failed entirely to show any connection between those exchanges and any possible prejudice to the appellant flowing from his inability to hear the conversations between the trial judge and the prospective jurors.

[40] Fourth, none of the 12 jurors who actually tried the case were involved in any of the private conversations with the trial judge.

[41] The four reasons set out above address both actual prejudice to the appellant and potential prejudice to the appearance of justice. I would add, however, that insofar as the appearance of justice is concerned, I think the presence of counsel during the conversations is crucial. To the reasonable observer, counsel’s presence ensures that the interests of the appellant are fully protected and erases the appearance that the trial judge is engaged in private conversations concerning matters that are unknown to the accused. The presence of counsel during the communications with the jurors is what makes this case very different from Barrow.

[42] Although I am satisfied that no prejudice occurred in this case, I do wish to comment on the procedure followed by the trial judge. He was quite properly concerned about the legitimate privacy interests of prospective jurors. A person called for jury duty should not be put in the position of being required to speak publically about very personal matters, such as health related issues. A potential juror should be required to share those matters only with those persons for whom knowledge of the potential juror’s concerns is necessary to a proper jury selection process.

[43] The trial judge, however, should have ensured that his conversations with the prospective jurors were recorded and made part of the trial record. That, of course, does not mean that they are available for public consumption. Recording the conversations enhances the transparency of the proceedings and accountability through appellate review. As Chief Justice Dickson said in Barrow, at p. 716, “nothing should be done in private in open court”. The trial judge should also have placed a brief explanation on the record each time he excused a juror.

[44] The valid privacy concerns of prospective jurors cannot trump the trial rights of accused persons, including their right to be present at their trial. For the reasons I have set out above, that right includes the right to be present during the procedures contemplated by s. 632 and s. 644(1.1). That said, counsel and trial judges routinely work out effective procedures to preserve the rights of the accused and minimize the intrusion on the privacy interests of prospective jurors. Certainly, no one, especially an accused, has any interest in unnecessarily embarrassing or aggravating prospective jurors.

IV

The Admission of the Appellant’s Statements to the Undercover Police Officers

[45] Counsel for the appellant did not argue this ground of appeal in oral submissions. Instead, he indicated that while he was not abandoning this ground of appeal, he regarded the issue as having been decided against him by this court in R. v. Omar (2007), 2007 ONCA 50, 84 O.R. (3d) 321 (C.A.), at paras. 52-53, leave to appeal refused, [2007] S.C.C.A. No. 157. He did not offer any basis upon which this court should depart from its holding in Omar. I see no reason to doubt the correctness of that decision.

V

Conclusion

[46] I would dismiss the appeal.

RELEASED: Dec. 30, 2010 “Doherty J.A.”

“DD” “I agree K. Feldman J.A.”

“I agree R.G. Juriansz J.A.”

[^1]: The section was added by the Criminal Law Amendment Act, 1985, R.S.C. 1985 (1^st Supp.), c. 27, s. 145.