Her Majesty the Queen v. Sinclair

[Indexed as: R. v. Sinclair]

Ontario Reports

Court of Appeal for Ontario,

Goudge, Rouleau JJ.A. and Ray J. (ad hoc)

January 31, 2013

114 O.R. (3d) 284 | 2013 ONCA 64

Case Summary

Criminal law — Trial — Presence of accused — Trial judge meeting with counsel in chambers prior to accused's arraignment to discuss form of Parks challenge for cause questions — Accused not present — Discussion not forming part of trial and not contravening s. 650(1) of Code — Trial judge excusing 11 potential jurors following private discussions with those jurors — Accused not knowing what transpired during those discussions — Discussions contravening s. 650(1) of Code — Curative proviso in s. 686(1)(b)(iv) applying — Accused's appeal from conviction dismissed — Criminal Code, R.S.C. 1985, c. C-46, ss. 650(1), 686(1)(b)(iv).

The accused was convicted of assault causing bodily harm, threatening death, attempted unlawful confinement and weapons offences. Prior to the accused's arraignment, the trial judge met with the Crown and defence counsel in chambers to discuss the wording of a Parks challenge for cause question. The accused was not present. After the accused was arraigned, the trial judge identified for the jury panel the various categories which would exempt a person from serving as a juror and asked any potential juror concerned that he or she might fall into each category to come forward. One of those categories was persons who had been accused of similar offences to those alleged, knew someone who had been accused of offences of that nature, or had been a victim or was otherwise involved in a similar offence. Because of the potentially embarrassing nature of that issue, the trial judge held private discussions with the potential jurors who came forward in that category, and excused 11 potential jurors. The accused did not know what transpired during those discussions. He appealed his conviction, arguing that the in-chambers discussion and the private discussions with potential jurors contravened s. 650(1) of the Criminal Code because he was not present during those discussions.

Held, the appeal should be dismissed.

The in-chambers discussions concerning the form of the Parks question were only preliminary and did not involve any final determination. A summary of the discussion was provided in, and the final wording of the question was finalized in open court in the presence of the accused. The preliminary discussions were not part of the accused's trial for the purposes of s. 650(1) of the Code, and the accused's exclusion from them did not breach s. 650(1).

The screening of potential jurors following arraignment forms part of the trial. The accused had the right to be present. The trial judge's private discussions with potential jurors after the accused was arraigned breached s. 650(1) of the Code. However, the curative proviso in s. 686(1)(b)(iv) applied. Defence counsel was present during the entire jury selection process and raised no objection, which is an important factor when considering the application of the proviso. By proceeding in categories as he did, the trial judge effectively indicated to counsel and to the appellate court the reason for each of the exclusions, thereby minimizing the gaps in the record that s. 650(1) seeks to avoid. There was no reason to [page285] suggest that the process of jury selection was carried out in anything but a manner free from prejudice to the accused. All of the potential jurors who engaged in private conversations with the trial judge were excused. Finally, the exclusion of the accused was inadvertent, as neither the trial judge nor counsel seemed to have considered that the private conversations might engage the accused's right to be present under s. 650(1). If a private conversation with a juror is required to protect the juror's privacy, the discussion should be recorded to facilitate appellate review and to be transparent. An alternative means of preserving a juror's privacy would be to permit the juror to submit the information in writing which would be shown to counsel and retained as part of the record.

Cases referred to

R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, 45 D.L.R. (4th) 487, 81 N.R. 321, J.E. 88-71, 87 N.S.R. (2d) 271, 38 C.C.C. (3d) 193, 61 C.R. (3d) 305, 3 W.C.B. (2d) 205; R. v. Kakegamic, [2010] O.J. No. 5671, 2010 ONCA 903, 272 O.A.C. 205, 265 C.C.C. (3d) 420, consd

Other cases referred to

R. v. E. (F.E.) (2011), 108 O.R. (3d) 337, [2011] O.J. No. 5738, 2011 ONCA 783, 286 O.A.C. 109, 91 C.R. (6th) 200, 282 C.C.C. (3d) 552, 99 W.C.B. (2d) 661; R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 137 D.L.R. (3d) 400, 67 C.C.C. (2d) 510, 7 W.C.B. 478 (C.A.); R. v. Khan, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 2001 SCC 86, 207 D.L.R. (4th) 289, 279 N.R. 79, [2002] 3 W.W.R. 1, J.E. 2002-24, 160 Man. R. (2d) 161, 160 C.C.C. (3d) 1, 47 C.R. (5th) 348, 51 W.C.B. (2d) 446; R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324, [1993] O.J. No. 2157, 65 O.A.C. 122, 84 C.C.C. (3d) 353, 24 C.R. (4th) 81, 21 W.C.B. (2d) 121 (C.A.) [Leave to appeal to S.C.C. refused (1993), 17 O.R. (3d) xvii, [1994] 1 S.C.R. x, 1994 19081 (SCC), [1993] S.C.C.A. No. 481, 72 O.A.C. 159n, 87 C.C.C. (3d) vi, 1994 19087 (SCC), 28 C.R. (4th) 403n]; R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, 269 O.A.C. 359, 263 C.C.C. (3d) 59

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 577, 650(1) [as am.], 686(1)(b)(iv)

Juries Act, R.S.O. 1990, c. J.3, ss. 19 [as am.], 23 [as am.], 24 [as am.]

APPEAL by the accused from the conviction entered by Murray J., 2009 29912 (ON SC), [2009] O.J. No. 2439, 245 C.C.C. (3d) 203 (S.C.J.), sitting with a jury.

Paul Calarco, for appellant.

Andreea Baiasu, for respondent.

The judgment of the court was delivered by

ROULEAU J.A.: —

Introduction

[1] Following an eight-day jury trial, the appellant was convicted of assault causing bodily harm, assault with an imitation firearm, attempted unlawful confinement, using an imitation firearm in the commission of an offence and threatening death, all in relation to his former girlfriend. [page286]

[2] The appellant appeals his convictions on the basis that he was effectively excluded from his own trial when the trial judge engaged in private conversations with potential jurors and, thereafter, excused them without providing any explanations or soliciting any input from counsel. The appellant also argues that the trial judge engaged in private discussions in chambers with counsel for the Crown and the appellant concerning the form of the Parks question [R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324, [1993] O.J. No. 2157 (C.A.), leave to appeal to S.C.C. refused (1993), 17 O.R. (3d) xvii, [1994] 1 S.C.R. x, [1993] S.C.C.A. No. 481]. The appellant submits that, because he was not present during these discussions, this also constitutes reversible error.

[3] For the reasons that follow, I would dismiss the appeal and affirm the appellant's convictions.

Facts

(1) The offences

[4] As the appeal concerns only the jury selection process, a brief summary of the facts of the offences suffices. The charges arose from two incidents between the appellant and his former girlfriend, the complainant. The first assault happened when the appellant put the complainant in a headlock and twisted her body, breaking her ankle. The second incident occurred following their breakup; the appellant accosted the complainant on her way home, threatened her and, using an imitation handgun, tried to force her into his car. The complainant managed to take refuge in a house nearby, called the police and charges were laid.

(2) The in-chambers discussion of the Parks question

[5] Prior to the appellant's arraignment, counsel for the Crown and for the accused met in chambers with the trial judge for preliminary discussions concerning the defence's in-chambers application to challenge potential jurors for cause. Following the in-chambers meeting, the court convened. The discussions which took place were summarized for the record and the wording of the Parks question was finalized in open court with the appellant present. After all counsel agreed upon the appropriate wording for the Parks question, the appellant was arraigned and the jury panel was brought into court. Subsequently, the trial judge issued a written ruling on the appropriate wording for the Parks question. [page287]

(3) The private conversations with potential jurors

[6] After the appellant was arraigned, the trial judge welcomed the jury panel and explained to them the various reasons for which jurors might be excused from serving on the jury. The trial judge proceeded by identifying categories which would exempt a person from serving as a juror and then requesting that any potential juror concerned that he or she might fall into that category to come forward. As each juror came forward with a concern, the trial judge ruled on whether that potential juror should be excused.

[7] The first three categories were as follows:

(1) those who may be related to or closely associated with anyone involved in the case;

(2) those who may be related to or closely associated with any witness scheduled to testify in the case; and

(3) those with personal knowledge of the alleged offences.

[8] As potential jurors came forward, they expressed their concerns on the record and the trial judge made his rulings. The difficulty arose when the trial judge arrived at the fourth category: whether any of the potential jurors had been accused of offences similar to those alleged in the case, knew someone who had been accused of offences of that nature, or had been a victim or was otherwise involved in a similar offence. After setting out the category, the trial judge remarked: "We don't wish to embarrass anyone by asking questions about personal matters. At the same time, we need to know about these things because they may make it difficult for you to perform jury duty in this case. If you come forward, I will discuss your situation with you."

[9] The transcript of the first three potential jurors' discussions with the judge reads as follows:

COURT SERVICES OFFICER: Juror number 956.

THE COURT: Yes ma'am. You can come or if you want it to be personal you can come closer to me. All right. This juror is excused.

COURT SERVICES OFFICER: Juror number 845.

THE COURT: Yes ma'am.

. . . DISCUSSION IN PRIVATE

THE COURT: All right. You're excused.

COURT SERVICES OFFICER: Juror number 3182.

THE COURT: Yes ma'am. [page288]

. . . DISCUSSION IN PRIVATE

THE COURT: You're excused ma'am.

[10] When the fourth potential juror came forward, the following exchange occurred:

COURT SERVICES OFFICER: Juror number 2896.

THE COURT: Yes ma'am.

. . . DISCUSSION IN PRIVATE

THE COURT: Do you mind saying that out loud and I'll ask others if they have submissions? Just the counsel, just tell them what you've said to me and I'll ask them if they have any concerns.

. . . DISCUSSION IN PRIVATE

MS. MACKENZIE: Um, given the circumstances, Your Honour, I'd have some difficulty with this lady sitting as a juror.

MR. GIRVIN: I take no issue.

THE COURT: All right. I think you can take your place in the body of the courtroom. Thank you. Thank you for coming forward.

[11] The fifth potential juror then came forward, explaining her difficulty with English. The trial judge excused her, but explained for the record that she properly ought to have come forward later when that category of concerns was being canvassed.

[12] The process continued for jurors who came forward in this fourth category of English language competency and for the later categories, including Canadian citizenship, medical concerns and personal hardship. A total of 11 potential jurors were excused after speaking privately with the trial judge.

Issues

[13] There are two issues raised in this appeal:

(1) were the in-chambers preliminary discussions concerning the form of the Parks question part of the appellant's trial for the purposes of s. 650(1) of the Criminal Code, R.S.C. 1985, c. C-46; and

(2) can the curative proviso of s. 686(1)(b)(iv), Criminal Code cure the breach of s. 650(1) of the Criminal Code arising from the trial judge's private discussions with potential jurors?

Analysis

[14] The issues raised in this case engage the law governing the right of an accused to be present during the whole of his [page289] trial, as provided by s. 650(1) of the Criminal Code, and the scope of application of the Criminal Code's curative proviso.

(1) Governing principles

[15] Section 650(1) of the Criminal Code provides that an accused must be "present in court during the whole of his . . . trial". In the context of s. 650(1), "trial" carries a broad meaning, although generally the trial proper does not commence until after a plea is entered. Martin J.A. explained the broad interpretation of "trial" for s. 650(1) purposes, at para. 50 of R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 67 C.C.C. (2d) 510 (C.A.):

. . . "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)

In determining whether something which occurred at trial falls within the meaning of "trial" pursuant to s. 650(1), the court must ask whether what transpired involved the accused's "vital interests" (Hertrich, at para. 82).

(2) Application to the case at bar

A. The in-chambers discussion of the form of the Parks question

[16] The appellant does not take issue with the final wording of the Parks question. Rather, he argues that the judge's in-chambers discussion of the wording of the Parks question with counsel, in the absence of the accused, contravened s. 650(1) of the Criminal Code.

[17] I disagree. The in-chambers discussions in this case were preliminary in nature. The trial judge subsequently summarized the nature of these discussions on the record in open court and in the accused's presence. Counsel for both sides were then given the opportunity to comment on the form of the question. The question was changed and finally agreed to by all counsel. Further, all of the foregoing took place before the appellant was arraigned and entered his plea. In R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, this court held that in-chambers discussions which are "of a preliminary nature, [do] not involve any final determination and [are] [page290] recounted in open court in the presence of the accused" (para. 117) do not form part of the trial within the meaning of s. 650(1). In my view, the in-chambers discussion of the form of the Parks question that occurred in this case falls squarely into the category of discussions which are preliminary in nature and the appellant's exclusion from the discussion did not breach s. 650(1) of the Criminal Code.

B. Did the trial judge's private discussions with potential jurors breach [s. 650(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) and, if so, does the curative proviso apply?

(i) [Section 650(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[18] The appellant argues that, by granting potential jurors private audiences, the trial judge improperly excluded the appellant from his trial. In 11 cases, potential jurors were excused following these private discussions and nothing on the record allows the appellant to know what transpired during these discussions or why the potential jurors were excused. This breach was serious. In the appellant's submission, this breach cannot be cured by application of the proviso and necessitates a new trial.

[19] It is conceded by the Crown that the screening of potential jurors following arraignment forms part of the accused's trial and the accused has the right to be present. See Hertrich, at para. 50.

[20] The breach of s. 650(1) in this case has been clearly established. The questioning of the potential jurors took place after the appellant was arraigned and after his plea was entered. In R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, the majority held that, because the questioning of prospective jurors on issues relevant to potential partiality occurred after arraignment and plea, it was part of the trial for purposes of s. 650(1) (then s. 577). As set out by this court in R. v. Kakegamic, [2010] O.J. No. 5671, 2010 ONCA 903 (at para. 29), whether these inquiries occurred with respect to a juror's potential partiality or concerned personal reasons for being excused from the jury is irrelevant. Both engage the accused's statutory right to be present.

(ii) Is the curative proviso applicable?

[21] The Crown submits, however, that this is an appropriate case to apply the curative proviso in s. 686(1)(b)(iv). This provision of the Criminal Code reads as follows: [page291]

686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(b) may dismiss the appeal where

(iv) notwithstanding 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[.]

[22] The Crown submits that the factors identified by this court in R. v. Simon as relevant for the application of the s. 686(1)(b)(iv) proviso establish that the appellant suffered no prejudice from not being able to hear the conversations with some of the prospective jurors.

[23] The Crown's focus in submissions was on the absence of actual prejudice to the appellant. However, in my view the concerns raised by the trial judge's private in-chambers discussions are broader than whether there was actual prejudice. The exclusion of the appellant from discussions held with potential jurors impairs the appearance of fairness, compromises the transparency of the trial proceedings and is at odds with the open court principle. As set out by this court in R. v. E. (F.E.) (2011), 108 O.R. (3d) 337, [2011] O.J. No. 5738, 2011 ONCA 783, at para. 51:

Proof of actual prejudice is not a condition precedent to demonstration of a miscarriage of justice. An appearance of unfairness will suffice.

(Citation omitted)

[24] The Crown submits that, as in Kakegamic, the failure of the appellant's trial counsel to object should weigh strongly in favour of dismissing the appeal. In Kakegamic, this court applied the proviso to cure a breach of s. 650(1) arising from discussions between the trial judge and prospective jurors carried out of earshot of the accused. The present case, however, is more problematic than Kakegamic. In that case, with one exception, trial counsel were able to hear the exchange that occurred between the judge and potential jurors. In applying the proviso, this court held that, to the reasonable observer, the presence of counsel during the conversations 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" (para. 41). The presence of counsel during the communications with the potential [page292] jurors distinguished Kakegamic from Barrow. In Barrow, the trial judge carried out the questioning out of earshot of all counsel as well as the accused and over the objections of counsel for the accused.

[25] Although I view the exclusion of counsel as highly problematic, I am, following a careful review of the record, nonetheless satisfied that in the circumstances of this case, the errors occasioned no prejudice or appearance of unfairness and thus fall within the ambit of the curative proviso. I arrive at that conclusion for several reasons.

[26] First, the appellant's trial counsel was present throughout the entire jury selection process and raised no objection. He did not ask to be included in the exchanges with potential jurors, nor did he ask the trial judge to ensure that the exchanges with the potential jurors be placed on the record. Although the failure to object is not determinative, it is nonetheless an important factor in the assessment of prejudice pursuant to s. 686(1)(b)(iv): R. v. Kakegamic, para. 38; R. v. Khan, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 2001 SCC 86, per LeBel J., concurring, at paras. 85-86; Barrow, at p. 717 S.C.R.

[27] Second, by proceeding in categories as he did, the trial judge effectively indicated to counsel, and to this court on appeal, the reason for each of the exclusions, thus minimizing the gaps in the record that s. 650(1) strives to avoid. I draw some comfort that this indeed was the case from the comments the trial judge made when the fifth potential juror came forward, explaining her difficulty in English. The judge noted that the category of concern over language would be dealt with later, suggesting that he adhered to the procedure he outlined.

[28] Third, there is no reason to suggest that the process of jury selection was carried out in anything but a manner free from prejudice to the accused. As disclosed by the record, when the trial judge was unsure of whether a concern raised by a potential juror justified excusing that juror, he raised it with counsel and sought submissions. Nothing in the trial record or tendered on appeal suggests that any of the prospective jurors were excused improperly.

[29] Fourth, all of the potential jurors who engaged in private conversations with the judge were excused. As a result, we know that no one selected for the jury had engaged in private conversations and neither the Crown nor the appellant's trial counsel used any of their peremptory challenges to challenge a juror who engaged in a private conversation. Further, whenever a potential juror was not excused, the explanation for the trial judge's [page293] decision was placed on the record so that counsel would not be left to guess as to why that potential juror was left on the list.

[30] Fifth, the exclusion of the accused was, in a sense, inadvertent: neither the trial judge nor counsel seems to have considered that the private conversations with the prospective jurors might engage the accused's right to be present under s. 650(1) of the Criminal Code. This inadvertence may be explained, in part, by the fact that the trial took place before this court's decision in Kakegamic. The trial judge's comments on the record indicate that he was motivated by concern that potential jurors not be embarrassed or reluctant to raise personal issues that might impact on their potential jury service.

[31] Although I am satisfied that no prejudice occurred in this case and that the proviso can safely be applied, I should not be taken to condone the practice of trial judges engaging in private conversations with potential jurors. I acknowledge that, as Kakegamic explains, trial judges are properly concerned about the legitimate privacy interests of prospective jurors. A person called for jury duty is carrying out a public duty and should not be required to publicly disclose matters that are highly personal and sensitive. Nevertheless, in Kakegamic, this court explained that the trial judge should strive to ensure that all conversations with prospective jurors are recorded and made part of the trial record. "Recording the conversations enhances the transparency of the proceedings and accountability through appellate review": Kakegamic, at para. 43. In addition, the trial judge should place a brief explanation on the record each time a juror is excused.

[32] In my view, it is also important for the trial judge, prior to undertaking the jury selection process, to place on the record the process he or she proposes to follow and seek comments from counsel on that process. Counsel's concerns may then be resolved and the selection may proceed in accordance with that process. I understand, for example, that certain jurisdictions in Ontario follow a process whereby persons summoned for jury duty who have not been excused from attending (see, for example, ss. 19, 23 and 24 of the Juries Act, R.S.O. 1990, c. J.3) can express their concerns on a written form. If the person's name is called, the person hands the form to the judge presiding over the selection of the jury. The judge reviews it and then states for the record whether the potential juror is excused and, with little or no detail, why. The form, which might contain highly personal information, is available for review by counsel and the accused and, although it is not filed as an exhibit in the trial, is retained and serves as a record of the concern expressed by the potential juror. [page294]

[33] In summary, therefore, I suggest the following steps for the jury screening and selection process as a means by which the rights of the accused and the appearance of the due administration of justice might be preserved while minimizing intrusions into the privacy interests of prospective jurors:

(i) the trial judge would first seek agreement with counsel as to the process to be followed in screening prospective jurors and, if agreement were not forthcoming, would exercise the discretion to decide on the process and advise counsel of it;

(ii) ensuring that a record of the exchange between potential jurors and the trial judge is made and retained; and

(iii) placing a brief statement or other sufficient indication on the record as to the reason for excusing or not excusing a potential juror.

[34] I acknowledge that these steps were not taken in this case. Nonetheless, in the particular circumstances of the present case, no prejudice can be said to have been caused to the appellant or to the appearance of justice. I would therefore apply s. 686(1)(b)(iv) of the Criminal Code.

[35] For these reason, the appeal is dismissed.

Appeal dismissed.

End of Document