R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 SCR 694

R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 SCR 694

A. Irvine Barrow Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. barrow

File No.: 19086.

1987: March 25, 26; 1987: December 17.

Present: Dickson C.J. and Beetz, Estey, McIntyre, Wilson, Le Dain and La Forest JJ.

on appeal from the nova scotia supreme court, appeal division

Criminal law ‑‑ Juries ‑‑ Empanelling ‑‑ Procedure ‑‑ Members of jury array queried following arraignment and plea to determine if they should be excused because of connection to the case or partiality due to pre‑trial publicity ‑‑ Screening conducted privately between judge and juror in open court but accused and counsel unable to hear ‑‑ Accused permitted to challenge for cause the remaining jurors ‑‑ Whether or not procedure improper ‑‑ If so, whether or not appellant's trial vitiated so that appeal from conviction should be allowed ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 110(1)(d), 423(1)(d), 558, 567, 569(2), 573, 577, 598, 599, 600, 613(1)(b)(iii) ‑‑ Juries Act, S.N.S. 1969, c. 12, ss. 1(m), 4(2).

Criminal law ‑‑ Conspiracy to gain contributions for governing party through influence peddling ‑‑ Whether or not political party a "person" ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 2, 110(1)(d).

Criminal law ‑‑ Evidence of conspiracy ‑‑ Hearsay rule and exception in cases of conspiracy ‑‑ Whether or not judge's instructions correct.

Evidence ‑‑ Good character evidence ‑‑ Relevance to decision ‑‑ Whether or not judge's instructions correct.

The judge, at the trial of appellant and two others for criminal conspiracy to raise funds for a political party then in power through their influence with the government, invited members of the jury panel to claim exemptions from jury service on grounds which included partiality as between the Crown and the accused. The claims of the individual claimants were considered in open court but out of the hearing of the accused and his counsel. Thirty‑six exemptions were granted from the eighty‑three member panel; the trial judge indicated that some question existed as to the impartiality of at least four jurors. The jury, selected from the remaining panel, found the accused guilty. The Appeal Division dismissed his appeal from conviction.

The grounds of appeal raised here were: (1) whether or not the Appeal Division erred in holding that the trial judge's examination under oath of members of the jury panel in the absence of the appellant and his counsel did not vitiate the appellant's trial; (2) whether or not the Appeal Division erred in holding that the political party was a "person" within the meaning of s. 110(1)(d) of the Criminal Code; (3) whether or not the trial judge's instructions to the jury referable to the co‑conspirators' exception to the hearsay rule were correct; (4) whether or not miscarriage of justice has been occasioned as a result of the trial judge's failure to instruct the jury as to the use, in law, that could be made of evidence of appellant's good character.

Held (McIntyre and Le Dain JJ. dissenting): The appeal should be allowed.

Per Dickson C.J. and Beetz, Estey, Wilson and La Forest JJ.: Section 577 of the Criminal Code should be given an expansive reading; the words "whole of the trial" mean just that. Because of the fundamental importance of the selection of the jury and because the Criminal Code gives the accused the right to participate in the process, the jury selection should be considered part of the trial for the purposes of s. 577(1). The exemptions granted by the trial judge here did not constitute an in‑court extension of the pre‑trial process contemplated in s. 577(1).

In jury selection, the provincial power for the administration of justice stops and the federal power over criminal procedure begins when the judge's activity is not concerned with the assembly of an array of eligible citizens but rather with the precautions necessary to ensure an impartial jury. The Nova Scotia Juries Act is consistent with this interpretation of the scope of the provincial power. The balance of the Criminal Code's comprehensive scheme, which is designed to ensure as fair a jury as is possible and to ensure that the parties and the public at large are convinced of its impartiality, would be upset by an addition from another source. The province cannot give the judge any power to make decisions as to partiality and any judge who attempts to participate in such decisions usurps the function of the jurors established by s. 569(2). Usurpation of this sort is so severe an error of law by the judge that it mandates a new trial, even if no prejudice to the accused can be shown.

Both the accused and the public must perceive the proceedings to be fair; both would have difficulty seeing a private conference between judge and juror after the charges had been read and a plea entered as an administrative matter that did not affect the accused's right to a fair trial. The decision should not turn solely on the technical definition of when the trial began. Even if the excusal can be seen as a purely administrative act, the public expectation of the judicial role in these circumstances requires the judge to execute the administrative task judicially. The judge must allow counsel to participate and the public to know the reasons for the decision.

Sections 598, 599 and 600 do not apply here. The import of ss. 598 and 599 is that an irregularity of form which does not affect the substance of a trial cannot be used to challenge the result. These sections cannot cure doubts as to the impartiality of the jury and the appearance of justice. Section 569(2) requires all questions of partiality to be decided by the two jurors sworn for that purpose, and accordingly, s. 600 does not authorize the judge to perform this function.

All of the jurors excused on grounds of partiality cannot be assumed to be partial to the Crown. The grounds of partiality the trial judge used to exclude them were not known and could only be a matter of speculation. The trial judge's screening, too, could not be assumed to have helped the accused without impairing the ability to challenge for cause later. It is quite possible that jurors partial to the Crown or accused could have slipped through the screening process.

Per McIntyre and Le Dain JJ. (dissenting): The appellant was not present at the selection of panel members prior to jury selection in that neither he nor his counsel was permitted to hear the examination.

The examination of the panel members claiming exemption was not conducted "during" the trial. While anything that occurs in the course of the courtroom proceedings which could involve the accused's vital interests should constitute part of the trial, not every step in the long process leading to the ultimate verdict will be part of the trial for the purposes of s. 577. The accused's rights under s. 577 of the Criminal Code will be violated if the trial judge examines a juror for partiality in the absence of the accused after the jury has been empanelled. But, the situation is profoundly different if the trial judge examines jurors for partiality prior to the jury selection process under the Code.

There are two distinct steps involved in providing a jury to try an individual case. The first, which involves assembling the jury panel from which individual juries are to be selected, is governed by provincial law. The accused has no interest in the process, save the interest of any citizen in the due administration of the law. The second is governed by ss. 558 to 571 of the Code and involves the selection from the jury panel of a jury to try a particular case. The course taken by the trial judge was quite proper for his inquiry of panel members was part of the first step of the jury process and could not affect the vital interests of the accused touching on the question of guilt or innocence.

The word "person" in s. 110(1)(d) of the Criminal Code must be read in the light of s. 2 of the Code. The Nova Scotia Liberal Association clearly falls within the meaning of "society" found in that section and accordingly is a person for the purposes of s. 110(1)(d).

The evidence directly admissible against each of the three conspirators differed in some particulars. There was evidence upon which the jury could conclude that a conspiracy did exist and much of the evidence, as it would apply to each individual charged, would be hearsay. The hearsay exception was therefore available to the Crown if the jury, on a consideration of the evidence directly admissible against each individual, had reached a conclusion as to membership in the conspiracy in respect of each of the accused. The jury was properly instructed as to their duties in this respect.

Evidence of appellant's good reputation and character was clearly put before the jury and was emphasized and given fair treatment by the trial judge. While not directly stated by the trial judge, the jury must have been aware that they could consider the evidence as relevant to show that the appellant was not likely to have committed the crime with which he was charged. No miscarriage of justice occurred with respect to the charge as a whole because of what at best was a technical non‑direction.

Cases Cited

By Dickson C.J.

Considered: Basarabas and Spek v. The Queen, 1982 CanLII 216 (SCC), [1982] 2 S.C.R. 730; R. v. Hertrich (1982), 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510, leave to appeal refused, [1982] 2 S.C.R. x; Vézina and Côté v. The Queen, 1986 CanLII 93 (SCC), [1986] 1 S.C.R. 2, aff'g 1982 CanLII 3777 (QC CA), [1982] C.A. 419, 3 C.C.C. (3d) 155; distinguished: R. v. Hubbert, 1977 CanLII 15 (SCC), [1977] 2 S.C.R. 267, aff'g (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279; referred to: Guérin v. R., 1984 CanLII 3533 (QC CA), [1984] C.A. 305, 13 C.C.C. (3d) 231; R. v. Varga (1985), 1985 CanLII 3567 (ON CA), 18 C.C.C. (3d) 281; R. v. Battista (1912), 1912 CanLII 615 (QC CA), 21 C.C.C. 1; R. v. Stewart, 1932 CanLII 28 (SCC), [1932] S.C.R. 612; Meunier v. The Queen (1965), 1965 CanLII 1161 (QC CA), 48 C.R. 14, [1966] Que. Q.B. 94n, aff'd 1966 CanLII 50 (CSC), [1966] S.C.R. 399; R. v. Fenton (1984), 1984 CanLII 633 (BC CA), 11 C.C.C. (3d) 109; R. v. Elliot, 1973 CanLII 400 (ON SC), [1973] 3 O.R. 475.

By McIntyre J. (dissenting)

R. v. Lee Kun, [1916] 1 K.B. 337; Basarabas and Spek v. The Queen, 1982 CanLII 216 (SCC), [1982] 2 S.C.R. 730; R. v. Hertrich (1982), 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510; Vézina and Côté v. The Queen, 1986 CanLII 93 (SCC), [1986] 1 S.C.R. 2, aff'g 1982 CanLII 3777 (QC CA), [1982] C.A. 419, 3 C.C.C. (3d) 155; R. v. Fenton (1984), 1984 CanLII 633 (BC CA), 11 C.C.C. (3d) 109; Frisco v. The Queen, 1970 CanLII 1772 (QC CA), [1971] C.A. 176, 14 C.R.N.S. 194; R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279; R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938; R. v. Makow (1974), 1974 CanLII 1423 (BC CA), 20 C.C.C. (2d) 513; R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 31 C.C.C. (2d) 525; Guimond v. The Queen, 1979 CanLII 204 (SCC), [1979] 1 S.C.R. 960; Director of Public Prosecutions v. Shannon, [1975] A.C. 717; R. v. Khan (1982), 1982 CanLII 2225 (ON CA), 66 C.C.C. (2d) 32.

Statutes and Regulations Cited

Constitution Act, 1867, ss. 91(27), 92(14).

Criminal Code, R.S.C. 1970, c. C‑34, ss. 2, 110(1)(d), 423(1)(d), 554, 558, 560(5), 567, 569(2), 572(1), 573, 577, 598, 599, 600, 613(1)(b)(iii), 618(1)(b).

Juries Act, S.N.S. 1969, c. 12, ss. 1(m), 4(1), (2).

Authors Cited

Practice Direction, [1973] 1 All E.R. 240.

APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1984), 1984 CanLII 3574 (NS CA), 65 N.S.R. (2d) 1, 147 A.P.R. 1, 14 C.C.C. (3d) 470, dismissing an appeal from conviction by Burchell J. sitting with jury. Appeal allowed, (McIntyre and Le Dain JJ. dissenting).

Austin M. Cooper, Q.C., and Mark J. Sandler, for the appellant.

Kenneth W. F. Fiske, and John D. Embree, for the respondent.

The judgment of Dickson C.J. and Beetz, Estey, Wilson and La Forest JJ. was delivered by

1. The Chief Justice‑‑The principal issue in this appeal, and the only issue with which I intend to deal at length, is whether the examination under oath of the jury panel by the trial judge in the absence of the appellant and his counsel, respecting potential claims for exemption from jury duty, vitiated the appellant's trial.

2. I have had the benefit of reading the reasons of my colleague, Justice McIntyre, and I agree with his statement of the facts.

I

The Jury Selection

3. At the opening of the trial the appellant was arraigned before an assembled jury panel and entered a plea of not guilty on the charge before the court. The trial judge then, in the following terms, invited the members of the jury panel to claim exemptions on grounds which included potential partiality:

Members of the jury panel, you've just witnessed the procedure under which the two accused persons in this case, have been arraigned and you've heard the charge against them, and you've also heard their pleas of not guilty to the charge, in each case. Now, we will later this morning, be proceeding to select a Jury of twelve, who will try this case, which I may say, is the only case on the docket for which you have been called. It's usual at this time, however, to invite members of the jury panel to come forward and claim exemption if there's any circumstance, such as relationship to one of the accused, or other involvement with the case, that would prevent the Juror from serving impartially in the case. To that usual call for exemption claims, there are several matters I must add in this case. The first is, that there has been in the press and in the broadcast media considerable publicity about this case and I advise you that if exposure to that publicity in your opinion, would operate to prevent you from being impartial in this case, then you should come forward on that ground, as well as others I've mentioned and claim exemption, and the other matter that I want to bring to your attention in inviting claims for exemption, is that it's anticipated that this case will last from four to six weeks and that, in some instances, may create special hardship and that can be a basis on which you may now claim exemption. So with those words of explanation I invite persons claiming exemption in this case, now to come forward. You will be sworn and I will consider the basis of your claim and deal with it. [Emphasis added.]

4. The judge then proceeded to swear the jurors and considered claims for exemption advanced by members of the jury panel in the courtroom but out of earshot of all counsel and the accused. Counsel for Senator Barrow made objection to the procedure in the following terms:

I have just one very respectful submission to make to your Lordship. I realize there may be some very personal claims for exemption that would be none of my business, and I wouldn't want to listen to it, but since your Lordship invited the members of the Jury who might feel that they couldn't be impartial by reason of publicity to claim exemption on that basis, if some claim for exemptions made on that basis, I am wondering whether, my Lord, that shouldn't be a claim that we should be able to listen to. I am in your Lordship's hands as to that. [Emphasis added.]

5. The judge advised counsel that he was prepared to note the grounds of exemption but declined to depart from the procedure adopted. As appears from the judgment of the Appeal Division, the judge considered claims for exemption on behalf of members of the jury panel and granted thirty‑six exemptions. The jury panel had consisted of eighty‑three members. After all exemptions had been granted, the panel had been reduced to forty‑seven persons. The record does not state whether any exemptions were refused.

II

The Judgment of the Appeal Division

6. The decision of the Supreme Court of Nova Scotia, Appeal Division, reported at (1984), 1984 CanLII 3574 (NS CA), 65 N.S.R. (2d) 1, referred to s. 577(1) of the Criminal Code which reads:

7. (1) Subject to subsection (2), an accused other than a corporation shall be present in court during the whole of his trial.

8. The Appeal Division was satisfied that neither Senator Barrow nor his counsel was able to hear the examination conducted by the trial judge and, in such circumstances, Senator Barrow was effectively deprived of his right and duty to be present. Being present included being able to hear the proceedings. The Appeal Division then turned to the question of whether Senator Barrow had been denied the right to be present during his trial. His counsel submitted that the trial commenced with arraignment and plea; the Crown submitted that at the time of the examination the jury of twelve had not been empanelled, the appellant had not been placed in charge of the jury, and the trial had not commenced.

9. The Appeal Division referred to several authorities and concluded that (i) a trial does not commence until after a plea is entered; (ii) the call for exemptions by the judge took place after plea and would therefore seem to be part of the trial proceedings, at least for the purposes of s. 577 of the Code; (iii) it has been the practice in Nova Scotia under s. 4(2) of the Juries Act, S.N.S. 1969, c. 12, to exercise a wide discretion in granting exemptions from jury duty, "at least before arraignment". (Section 4(2) reads: "The judge presiding at a session or the Chief Justice may grant to any person exemption from service as a juror at the whole or part of that session upon application by or on behalf of the person.")

10. The Appeal Division then noted that in this case the trial judge saw fit to examine the jurors out of earshot of all counsel and the accused and in following that process he indeed exempted thirty‑six jurors. It said at p. 10:

If this matter had ended at this point we would have grave reservations as to the validity of the judge's actions.

The Appeal Division continued:

However, following this procedure defence counsel were then given the right to challenge all jurors for cause and all remaining jurors were challenged for cause and underwent a trial by two other jurors to determine their partiality. Consequently, the defence was given every opportunity to explore the question of impartiality with each juror. In these circumstances we cannot see how any possible prejudice could have been suffered by the appellant accused. Indeed his privileges were emphasized both by the court and by counsel. The judge eliminated any juror whom he thought had any semblance of partiality and the appellant accused was able subsequently to further screen the jury by way of challenge for cause to determine whether or not the jurors were impartial. In these circumstances and indeed even giving the liberal construction to the process with respect to s. 577 of the Code recommended by Dickson J. in R. v. Basarabas, supra, we have come to the conclusion that the vital interests of the appellant were never jeopardized and that there was no denial of any fundamental right. In our opinion the practice followed by the trial judge was eminently fair to the accused person. There was no error on the part of the trial judge in examining under oath the members of the jury panel with respect to claims for exemption that would vitiate the trial.

III

10. With the greatest of respect, I disagree with the reasoning of the Appeal Division of the Supreme Court of Nova Scotia. Like the Appeal Division, I have grave reservations about the propriety of the procedure followed by the trial judge. Unlike the Appeal Division, I do not think that the breach of the appellant's right to be present was cured by the later opportunity afforded the accused, pursuant to the Criminal Code, to challenge the remaining jurors for cause. An inquiry of that sort may be appropriate to decide whether, an error having been made, that error can be cured under s. 613(1)(b)(iii). It is not relevant to the determination of whether an error has occurred in the first place. I think there was an error, a breach of s. 577(1), and for reasons which I will make clear, I do not think that the error can be cured by s. 613(1)(b)(iii).

11. Section 577 of the Criminal Code

12. The appellant submits that s. 577(1) of the Criminal Code not only entitles, but requires, an accused to be "present" at his trial for a criminal offence. The right and duty to be present is fundamental. It is further submitted that the examination of members of the jury panel under oath was part of the "trial" for the purposes of s. 577(1) and that the inability of the accused and his counsel to hear the exchanges between the judge and the panel members claiming exemption effectively ensured that the accused was not "present" for that part of his trial. It is therefore necessary to consider whether the trial of the accused had begun at the time the judge examined the jurors.

13. Basarabas and Spek v. The Queen, 1982 CanLII 216 (SCC), [1982] 2 S.C.R. 730, raised a similar question: when does a trial before a jury begin for the purposes of s. 573 of the Code? That section permits a judge to discharge a juror where in the course of a trial the judge is satisfied that a juror should not, because of illness or other reasonable cause, continue to act. At the trial of the two appellants in that case a juror was discharged pursuant to s. 573 after the jury had been empanelled but before the accused had been put in charge of the jury and before any evidence had been called. The Crown contended that the juror was discharged "in the course of" the trial. The accused said that a jury trial did not commence at least until the time at which the accused was put in charge of the jury. This Court held unanimously that (i) the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied; (ii) subject to s. 573, an accused in a criminal jury trial is entitled to be tried by twelve jurors and is entitled to the unanimous verdict of twelve jurors unless and until "in the course of a trial" the judge is satisfied that a juror should not continue to act; (iii) in so far as s. 573 deprived an accused of his common law right to the unanimous verdict of twelve persons, it should be narrowly construed; (iv) the words "continue to act" in s. 573 suggested that the jury had been acting qua jury before the discharge of the juror. In the result, and in the context of s. 573 of the Code, the Court held that the weight of authority supported the position that a jury trial commenced when the accused had been placed in charge of the jury.

14. In the course of the Basarabas judgment, however, reference was made to the section of the Code in issue in the present appeal. After noting that the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied, the Court continued, at p. 740:

Thus, the word "trial" in s. 577(1) which assures the accused the right to be present "during the whole of his trial" will be liberally construed to afford the accused the right to be present during the selection of the jury. In like manner, the word "trial" in s. 566 which denies the prosecutor the right to direct a juror to stand by on the trial of an indictment for the publication of a defamatory libel will be interpreted to embrace the proceedings preceding the empanelling of the jury. In other sections "trial" may have a different connotation depending upon the section of the Code being applied.

14. The reason for varying starting points is that different sections of the Code protect different interests. Section 573 allows the judge to remove a juror who for some reason is unable to continue, but the removal of a juror is a very serious matter. An accused has the right to be tried by twelve jurors (ss. 560(5) and 572(1)) and every effort must be made to avoid a jury of less than twelve members. If the jury has heard no evidence, as in Basarabas, then a juror can be replaced and s. 573 should not be used. "Trial" there refers to the heart of the trial, the presentation of evidence before the trier of fact. Section 577, however, protects different interests and in my opinion should be given an expansive reading. The words "whole of the trial" mean just that, the whole of the trial.

15. In my view the examination of prospective jurors by the trial judge, relating in part to their impartiality and following arraignment and plea, formed part of the trial for the purposes of s. 577. This conclusion is supported by several cases which have emphasized the centrality of an impartial jury to a fair trial.

16. In R. v. Hertrich (1982), 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.), leave to appeal refused, [1982] 2 S.C.R. x, one of the questions raised was whether a judge's examination in chambers of two jurors concerning anonymous phone calls, and with only counsel present, breached the right of the accused to be present and thus vitiated the trial. Martin J.A. delivered the judgment of the Court of Appeal and adverted to the "fundamental principle" of the criminal law that a person charged with an indictable offence is entitled, indeed required, by s. 577 to be personally present at his trial. For the purpose of this principle "trial" means the entire proceedings, including sentence. Martin J.A. continued, at p. 527:

Generally speaking, the trial of an accused does not commence until after plea: see Giroux v. The King (1917), 1917 CanLII 81 (SCC), 29 C.C.C. 258 at p. 268. 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 the imposition of sentence if the accused is found guilty. [Emphasis added.]

The following two passages are also relevant, at p. 537:

The essential reason the accused is entitled to be present at his trial is that he may hear the case made out against him and, having heard it, have the opportunity of answering it: R. v. Lee Kun (1915), 11 Cr. App. R. 293. The right of the accused to be present at his trial, however, also gives effect to another principle. Fairness and openness are fundamental values in our criminal justice system. The presence of the accused at all stages of his trial affords him the opportunity of acquiring first‑hand knowledge of the proceedings leading to the eventual result of the trial. The denial of that opportunity to an accused may well leave him with a justifiable sense of injustice. Indeed, in my view, an examination of the Canadian decisions shows that the latter principle is, in fact, the implicit and overriding principle underlying those decisions.

...the characterization of a proceeding as a part of the trial in relation to the accused's right to be present at the proceeding would seem to depend upon whether his exclusion from the proceeding violates his right to be present so that at all times he may have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests.

17. In the result the Court of Appeal held that the appellants were entitled to be present to hear from the jurors' own lips whether they were affected by those telephone calls and whether the calls prevented them from continuing to discharge their duties as jurors. This conclusion, Martin J.A. said, is consistent in principle with the Canadian decisions, the course followed in the two Australian decisions mentioned by him in the course of his judgment and the weight of judicial opinion in the United States. Martin J.A. found this persuasive, although he added at pp. 539‑40 that "the force of that [American] opinion is somewhat diminished by the fact that the American courts frequently apply the `harmless error rule' where the right of a defendant to be present at all stages of his trial has been infringed. By contrast, s. 577 and the jurisprudence surrounding it precludes the application of any such rule in Canada".

18. In Hertrich, Martin J.A. conducted an admirable survey of the American case law on this subject and concluded that in that country as well the accused has a right to be present during any examination of a juror as to his or her impartiality. 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 (Hertrich, p. 534). Of course, this was precisely the distinction advanced by the defence counsel at the trial of the instant case. He objected to the trial judge's course of action only in the case of jurors claiming exemption on grounds of prejudice.

19. As Martin J.A. suggests, the weight of authority both in Canada and in the United States supports the contention of the appellant that the questioning under oath of jurors as to their possible partiality is a part of the trial. The appellant therefore had a right to be present, a right which must include the right to hear the proceedings.

20. Martin J.A. in Hertrich identified two important principles that underlie s. 577. First, the accused is present to hear the case he or she faces and is thereby able to put forward a defence. Second, the accused sees the entire process by which he or she is tried and is able to see that the correct procedure is followed and the trial fair. For Martin J.A., the second principle was the more important one. I agree with him that this second value is of enormous importance to the perceived fairness of the Canadian criminal justice system. The sight of a judge conferring in private with jurors on issues that go to the partiality of the trier of fact can only prompt cynicism in an accused. It should be avoided.

21. The question of what is included in the trial for purposes of s. 577(1) was also addressed by this Court in Vézina and Côté v. The Queen, 1986 CanLII 93 (SCC), [1986] 1 S.C.R. 2. Justice Lamer for the Court held that the right to be present at trial included the right to be present at an examination of jurors for partiality after the trial had begun. Adopting the reasoning of Martin J.A. in Hertrich, Lamer J. held that the test of what should be included in "trial" was not limited to the presentation of the case against the accused and to matters that directly affected the decision as to guilt or innocence, such as rulings on the admissibility of evidence. For Lamer J., s. 577(1) is triggered whenever the "vital interests" of the accused are at stake, or as Martin J.A. put it in Hertrich, when a decision bears on the "substantive conduct of the trial." 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. The accused has a right to a fair trial as well as a right to hear the case and make a defence. Section 577(1) protects both rights. In both Hertrich and Vézina and Côté, s. 577(1) was infringed when the judge examined jurors for partiality after the trial began and in the absence of the accused.

22. The Crown argues that the trial judge must oversee the jury selection process as part of the duty to ensure a fair trial. Even if the Nova Scotia Juries Act does not authorize the process followed here, the Crown suggests that it was part of the judge's inherent powers under the Criminal Code, continued by s. 600. The Crown cites the case of R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279 (Ont. C.A.); affirmed 1977 CanLII 15 (SCC), [1977] 2 S.C.R. 267. Hubbert raised the question whether a trial judge, when empanelling a jury, might properly ask the panel as a whole whether any member of the panel has any connection with any of the parties. The judgment of the Ontario Court of Appeal reads, in part, at pp. 292‑93:

Turning to the practical consideration of the methods by which the process should be carried out, we deal first with the kind of obvious partiality dealt with in the English practice direction. Some trial Judges make a practice of saying to the jury panel, before the selection process begins, something of this nature:

If there is anyone on this panel who is closely connected with a party to this case or with a witness who is to testify, will you please stand?

(Rarely does anyone respond.) If someone does stand, the trial Judge asks him to come forward (usually to the jury‑box), and inquires further as to that person's connection with the case. To take obvious examples, if the juror is the uncle of the accused, or the wife of a witness, or the brother of the investigating police officer, he ought not to serve.

In our view, the trial Judge on his own should excuse that prospective juror from the case, without more ado. The Criminal Code makes no express provision for it, but it does not expressly or impliedly forbid it either, and in our view it is in the power of the trial Judge as part of his function of ensuring a fair trial. We think the practice of excusing jurors of obvious partiality is a desirable one in all cases.

The Hubbert case was appealed to this Court. The appeal was dismissed orally without calling upon Crown counsel.

23. In Hubbert, the Ontario Court of Appeal and this Court approved the common practice of a trial judge's asking the members of the jury array if any of them had any obvious connection to the case that would disqualify them. There are two differences between Hubbert and the case at bar. The first is that in the procedure recommended by the Ontario Court of Appeal, any member of the array who responds to the initial question answers any subsequent questions from the jury box. In other words, the judge's questions and the juror's responses are heard by everyone in the court, including the accused, and all will know the reason why the juror thinks he or she is not impartial. There is a world of difference between this procedure and a whispered conference between the judge and the potential juror, at the bench. The Hubbert procedure does not violate the accused's right to be present.

24. The second difference is that an initial question by the judge to the jury array is best seen as a summary procedure to speed up the jury selection, done with the consent of the parties. This was the view of the majority of the Quebec Court of Appeal in Guérin v. R., 1984 CanLII 3533 (QC CA), [1984] C.A. 305, 13 C.C.C. (3d) 231. Both Bisson J.A. (at p. 246) and Jacques J.A. (at pp. 248‑49) make the point that when counsel agree to initial questions by the judge there is no violation of the Code procedure. Either side can challenge any juror that the judge does not exclude and obvious cases are decided quickly on consent. Where counsel for either side objects to the process, as in this case, the judge cannot continue with the questions but must leave it to the parties and the jurors, under the judge's supervision.

25. The selection of an impartial jury is crucial to a fair trial. The Criminal Code recognizes the importance of the selection process and sets out a detailed procedure to be followed (ss. 554‑573). Both the Crown and the accused participate in the process, with the right to challenge for cause or peremptorily and, in the case of the Crown, to stand aside potential jurors (ss. 562‑568). The challenge for cause involves trial of the impartiality of potential jurors, with examination by either side. The accused, the Crown, and the public at large all have the right to be sure that the jury is impartial and the trial fair; on this depends public confidence in the administration of justice. Because of the fundamental importance of the selection of the jury and because the Code gives the accused the right to participate in the process, the jury selection should be considered part of the trial for the purposes of s. 577(1).

26. Section 4(2) of the Juries Act

27. The issue in this case is complicated, however, by the relationship between the Criminal Code and s. 4(2) of the Nova Scotia Juries Act which, as noted above, states:

28. ...

(2) The judge presiding at a session or the Chief Justice may grant to any person exemption from service as a juror at the whole or part of that session upon application by or on behalf of the person.

"Session" is defined in s. 1(m) of the Act as including any convening of the Trial Division of the Supreme Court for the purpose of one or more civil matters or one or more criminal matters. It is not readily apparent why the word "session" is used rather than the word "trial". The record is silent on the question of whether Burchell J. had convened the Trial Division of the Supreme Court of Nova Scotia and was therefore presiding at a "session" as well as at a trial. I do not make anything of the point as it was not advanced before us.

27. In the present case, as I understand its position, the Crown argues that even if the word "trial" in s. 577(1) includes the selection of the jury, the examination of jurors claiming exemptions is not part of the jury selection process. It occurs before the commencement of the jury trial and is part of the pre‑trial process of assembling a jury array of qualified, non‑exempt jurors. Crown counsel contends that the jury selection process under the Criminal Code had not yet begun. The judge was using his authority under s. 4(2) of the Juries Act to provide an eligible array, after which selection of the jury would begin under the Code. It is asserted that the exemptions granted by the trial judge in this case "merely constituted an in‑court extension" of the pre‑trial process contemplated in s. 577(1). Since by this argument the trial had not yet begun, s. 577(1) did not yet apply and the accused had no right to attend or to participate. Neither did he have a right under s. 4(2) of the Juries Act to participate in the exemption process. Once the judge began the jury selection process under the Code he allowed full participation by counsel for the accused. The Crown thus concludes that there was no breach of s. 577(1).

28. I am firmly of the view that these submissions cannot be sustained. First, s. 4(2) of the Juries Act relates specifically to exemption before formal court proceedings. How can it be said that proceedings in court after arraignment and after a plea has been entered are not formal court proceedings? Secondly, the pre‑process exemptions must be intended to allow persons who would suffer serious inconvenience from serving on any jury during the session to petition for a discretionary order to allow them to avoid that inconvenience. Some of the exemptions granted in the present case related not to inconvenience, but to prejudice. The considerations must surely be different.

29. Constitutional Considerations

30. The Crown's arguments also fail when set against the principles of the division of powers under the Constitution Act, 1867, the nature of the power conferred on the judge by s. 4(2) of the Juries Act, and the jury selection process in the Code. The Juries Act does not authorize the judge to screen the panel in secret after charges have been read out and plea entered. Even if it did, the appearance of justice and the need for a fair trial suggests that the power could not be exercised in the way the trial judge did in the case at bar.

31. It is undoubtedly the right and the duty of the Nova Scotia Legislature to pass a law for the gathering of the jury array. Section 92(14) of the Constitution Act, 1867, enables the province to legislate for the administration of justice within the province so long as it does not infringe on matters of criminal procedure, reserved to the federal government by s. 91(27). Part of this provincial power includes the assembly of an array of potential jurors for the courts of criminal jurisdiction to use in accordance with the Criminal Code. This power, however, is largely an administrative task, as s. 92(14) itself implies. In the case of jury selection, the provincial power for the administration of justice stops and the federal power over criminal procedure begins when the judge's activity is not concerned with the assembly of an array of eligible citizens, but with the precautions necessary to ensure an impartial jury. The Nova Scotia Juries Act is consistent with this interpretation of s. 92(14). The Act as a whole sets out the procedure to assemble the jury panel by the time court sessions begin. It states who will make up the jury committee for each municipality, how and when they will go about the task, and how the judiciary shall supervise it. The emphasis in the Act is to gather as random a sample of eligible jurors as possible, with no discussion of partiality. Significantly, s. 4(1) sets out certain categories of people who cannot serve on a jury because of their occupation. Subsection 4(2) seems to be a general clause to enable the judge supervising a session to exempt people who have personal reasons not to serve on a jury yet do not fit into the specific exemptions. Neither subsection is directly concerned with the partiality of potential jurors.

32. This interpretation of s. 4(2) of the Nova Scotia Juries Act is strengthened by a survey of the jury acts in the other Canadian jurisdictions. In every other province and in both territories there is a provision similar to the disqualification in s. 4(1) of a broad range of people by occupation, notably those connected with the justice system. No other jurisdiction has a provision similar to s. 4(2), with its unqualified reference to "exemptions". In every other jurisdiction but Nova Scotia, the legislature provides that exemptions are available only if the applicants meet certain criteria. These criteria vary from the laconic "for a good cause" in the territories, to "hardship" in some provinces, to more detailed criteria of hardship, age, religious belief, or similar factors in some provinces. Every other jurisdiction recognizes that its authority over the jury pool is limited to eligibility and personal matters unconnected with the criminal case to be tried. In spite of its apparently broad phrasing, the Nova Scotia provision should be interpreted as similarly limited, to maintain its constitutional integrity.

33. The Code sets out a detailed process for the selection of an impartial jury. It gives both parties substantial powers in the process and sets up a mechanism to try the partiality of a potential juror when challenged for cause. The trier of partiality is not the judge but a mini‑jury of two potential or previously selected jurors (s. 569(2)). Overall, it is a comprehensive scheme designed to ensure as fair a jury as is possible and to ensure that the parties and the public at large are convinced of its impartiality. Any addition to this process from another source would upset the balance of the carefully defined jury selection process. This is especially the case of any attempt to add to the powers of the judge. Parliament has decided that the issue of partiality is a question of fact that must be decided by two of the jurors themselves, not by the judge. The province cannot give the judge any power to make decisions as to partiality and any judge who attempts to participate in such decisions usurps the function of the jurors established by s. 569(2). Usurpation of this sort is so severe an error of law by the judge that it mandates a new trial, even if no prejudice to the accused can be shown (Guérin v. R., supra). The judge's role is to supervise trials of partiality, not to decide them.

34. The Appearance of Justice

35. The argument of the Crown in this appeal does not address what may be the most important aspect of the case, namely, the appearance of justice. Even if the two‑stage analysis of the empanelling process is a legally accurate description of the interplay of the Criminal Code and the Nova Scotia Juries Act, it leaves out of account the effect of the proceedings in this case as they would appear to the average citizen: prospective jurors were able to speak to the judge in private, albeit in open court, and be excused from jury duty with no reason given. The problem arises because the Nova Scotia Juries Act gives an administrative duty to the judge: the power to exempt potential jurors for personal reasons unconnected with the facts of a particular trial. This administrative duty concerns a particularly sensitive point of a trial and closely resembles the judicial duty of examining jurors for partiality, a fundamental part of the duty to provide a fair trial. The average citizen watching would not likely appreciate the legal categorization of the judge's power to excuse for personal reasons, and it would be difficult for the accused, who is particularly sensitive on this point, to see a private conference between judge and juror after the accused's name was called out, the charges read and a plea entered, as an administrative matter that did not affect his right to a fair trial. The decision should not turn solely on the technical definition of when the trial began. I think that an accused who appears before a judge in a courtroom with his counsel, hears the charge read, and pleads to the charge, would think it very strange to be told that his trial had not begun. He would, I think, find it equally strange that almost half of those called for jury duty were relieved of that duty after whispered goings on with the presiding judge.

36. What of the public perception? This is a case where the public perception of the fairness of the proceedings is crucial. A judge sitting in open court embodies the judicial role in the public mind, a role different from that of the administrative officer who assembles the array initially. The same act, excusing a juror for personal reasons, will be seen in a different light when done by the drafters of the jury list as part of the first stage of assembling an array of potential jurors and when done by a judge in open court once the accused is charged and plea entered. Even if the excusal can be seen as a purely administrative act, the public expectation of the judicial role in these circumstances requires the judge to execute the administrative task judicially. The judge must allow counsel to participate and the public to know the reasons for the decision. Nothing should be done in private in open court.

37. Again, a comparison to the statutes of the other jurisdictions is illuminating. In most of them, a person who wishes to be exempted from the jury list applies to the official who drew up the list, the sheriff (in New Brunswick, the Jury Board). If the exemption is refused there is either a right of appeal to a superior court judge or the person can make a new application to a judge, as specified by the statute. (In Newfoundland the application is to a provincial court judge, with appeal from a refusal to a supreme court judge. In Prince Edward Island the application is directly to the judge at trial.) These provisions show that other jurisdictions consider exemptions for personal reasons to be administrative issues for court officials to decide, subject to the review and supervision of the judiciary. Such review of administrative decisions normally includes the duty to act judicially, with due regard for the appearance of justice.

38. Sections 598, 599 and 600

39. It was suggested that even if the trial judge erred in his questioning and exemption of the jurors, that error could be cured by the application of ss. 598 or 599. It was also questioned whether the screening was authorized by s. 600. In my opinion, none of these provisions applies in this case.

40. Section 598 provides that irregularities in the summons of the jury or in its membership cannot be used to attack a verdict, while s. 599 states that failure to follow precisely the rules for jury selection does not warrant setting aside a verdict reached subsequently. The import of these two provisions is that an irregularity of form which does not affect the substance of a trial cannot be used to challenge the result.

41. The right to be present is a fundamental right of the accused. Exclusion of the accused from part of the trial, especially part of the selection of an impartial jury, is not an irregularity of form. It casts into doubt two of the most basic aspects of a fair trial, the impartiality of the jury and the appearance of justice. Sections 598 and 599 do not cure the defect. As the late MacKinnon A.C.J. held in R. v. Varga (1985), 1985 CanLII 3567 (ON CA), 18 C.C.C. (3d) 281, when one of the parties is denied a right in the jury selection process given by the Criminal Code, prejudice can be inferred and these sections are of no assistance.

42. There is another reason why the sections are inapplicable. The Quebec Court of King's Bench (Appeal Side), held in R. v. Battista (1912), 1912 CanLII 615 (QC CA), 21 C.C.C. 1, that the predecessors of the two sections apply to objections to the jury selection raised for the first time after verdict. The Supreme Court of Canada considered and approved this decision in R. v. Stewart, 1932 CanLII 28 (SCC), [1932] S.C.R. 612, saying that the situation is entirely different when the objection to the jury selection is taken at trial. Defence counsel here objected to the judge's actions from the beginning.

43. As for s. 600, it is a provision to carry forward any common law power of the judge in relation to the jury selection process that is not «...expressly altered by or is inconsistent with this Act.» Whether or not a judge ever had the power to examine jurors for partiality need not be decided. The Criminal Code has eliminated any power of the judge to decide issues of partiality. By section 569(2), all questions of partiality are to be decided by the two jurors sworn for that purpose. Section 600 therefore does not authorize the judge to perform this function.

44. Section 613(1)(b)(iii)

45. It is no doubt true, as the respondent Crown submits, that the accused retained his right to challenge any prospective juror for cause even after the trial judge had excluded thirty‑six members of the panel. It is suggested that this possibility wiped out any prejudicial effect on the judge's secret questioning. The Appeal Division would appear to have held that view. The response to this assertion is that, as a matter of authority, this Court has already held that the denial of the right under s. 577 is "fundamental", requiring the setting aside of the conviction. The curative provisions of s. 613(1)(b)(iii) are innately inapplicable: Meunier v. The Queen (1965), 1965 CanLII 1161 (QC CA), 48 C.R. 14, [1966] (Que. Q.B.) 94n, affirmed 1966 CanLII 50 (CSC), [1966] S.C.R. 399. Since the decision in Meunier, it has been the rule that no breach of the right to be present can be cured by s. 613(1)(b)(iii) as the absence of the accused deprives the court of all jurisdiction.

46. In R. v. Hertrich, supra, at p. 527, Martin J.A. followed Meunier and the other authorities mentioned in the passage following and concluded that the curative provisions of s. 613(1)(b)(iii) were not applicable if the accused is deprived of his right to be present at his trial in contravention of s. 577:

The law is settled that depriving an accused of his right to be present at his trial in contravention of s. 577 is the denial of a fundamental right requiring the setting aside of the conviction, and the curative provisions of s. 613(1)(b)(iii) are inapplicable: see Meunier v. The Queen (1965), 1965 CanLII 1161 (QC CA), 48 C.R. 14, [1966] Que. Q.B. 94n; affirmed 1966 CanLII 50 (CSC), [1966] S.C.R. 399, 50 C.R. 75; Ginoux v. The Queen (1971), 15 C.R.N.S. 117; affirmed 16 C.R.N.S. 256n; R. v. Reale (1973), 1973 CanLII 55 (ON CA), 13 C.C.C. (2d) 345, [1973] 3 O.R. 905: affirmed 1974 CanLII 23 (SCC), 22 C.C.C. (2d) 571, 58 D.L.R. (3d) 560, [1975] 2 S.C.R. 624 sub nom. A.‑G. Ont. v. Reale; R. v. Grimba (1980), 1980 CanLII 1652 (ON CA), 56 C.C.C. (2d) 570, 117 D.L.R. (3d) 740, 30 O.R. (2d) 545.

43. There was in the instant case a major deviation from the Code procedure for the selection of the jury, one that eliminated nearly half the jury pool for reasons unknown to the accused. That is not a minor breach of the accused's right to be present. It is a breach that casts into doubt the impartiality of the jury, which in turn reflects on the fairness of the entire trial.

44. The rigidity of Meunier has been criticized, notably in Côté v. R., 1982 CanLII 3777 (QC CA), [1982] C.A. 419, 3 C.C.C. (3d) 155, and in R. v. Fenton (1984), 1984 CanLII 633 (BC CA), 11 C.C.C. (3d) 109 (B.C.C.A.) Some doubt was also cast upon the rule in Meunier in this Court's decision in Vézina and Côté, supra, where Lamer J. emphasized, at p. 14:

As a last comment on the matter I should not want it to be taken that, when adopting Martin J.A.'s views in Hertrich, the issue of whether the proviso in s. 613(1)(b)(iii) was available, has been inferentially reconsidered and the reasoning in Meunier on that point reaffirmed in this case.

But this comment should not necessarily be read as impugning the decision in Meunier. On the facts of Vézina and Côté, it was simply unnecessary to decide the point. Lamer J. left open the possibility that the rule might be reconsidered. The issue is raised more starkly in the instant case, but I believe that no grounds are raised that should cause the Court to reverse a decision of long standing.

45. Indeed, I am not convinced that the appellant suffered no prejudice. The Crown would have this Court assume, first, that all the jurors who were excused on grounds of partiality were partial to the Crown, and second, that the trial judge's screening could only have helped the accused without impairing the ability to challenge for cause later. Neither of these assumptions seems to me to be correct. First, we simply do not know and can only speculate as to the grounds of partiality the trial judge used to exclude jurors. It may very well be that in reducing the panel by over forty percent, the trial judge excluded persons, perhaps friends of the accused or Liberal party supporters, who might have been more favourable to the accused than to the Crown. While the accused does not have the right to a favourable jury, only an impartial one, it is not obvious that the exclusion was only to the benefit of the accused.

46. As for the second assumption, it may be that the trial judge's screening might actually have hindered the selection of an impartial jury. Suppose a juror conscientiously told the judge that he or she might not be impartial for some reason, such as membership in a political party, and the judge decided that the juror was impartial. The juror's concern about impartiality may then have been set to rest by the judge's decision so that the juror would not raise the issue again when challenged for cause. After all, if the judge had so concluded, why would the juror express any doubt about it when challenged by counsel? The juror's concern about his or her own impartiality has been set to rest on the highest authority, that of the judge. If counsel had heard the exchange between the juror and the judge and thought that the judge was wrong, counsel could have pursued the issue further. As it was, there was no reason not to accept the juror's response to the challenge at face value. Thus, jurors partial to the Crown or the accused may have slipped through the screening process.

47. The point of these examples is not that the jury should have included friends of the accused, or political allies, or partisan opponents. Nor is it to suggest that political affiliation is automatically cause to challenge in such a case. The point is that we cannot assume that whatever screening occurred in secret was beneficial for the accused, or even neutral. These examples show the fundamental reason why all questions of partiality must be decided in public: the accused, the Crown, and the public at large have the right to know that the jury is as impartial as is humanly possible. Such speculation is harmful.

IV

Summary

48. In sum, s. 577(1) of the Criminal Code requires that the accused be present at his trial for a criminal offence. The examination of the prospective jurors by the trial judge, relating in part to their impartiality and following arraignment and plea, was part of the trial for purposes of s. 577. It is important for the accused to see and hear the entire process by which he or she is tried so that he or she sees that the trial is fair, and s. 4(2) of the Nova Scotia Juries Act should be construed as relating to exemption of jurors for reasons of hardship, illness or inconvenience before the commencement of formal court proceedings. A wider interpretation of s. 4(2) of the Juries Act, one that permits exemption of jurors after arraignment and plea and on grounds of possible prejudice, would intrude into federal jurisdiction over criminal procedure. The public perception of the fairness of the trial process would be damaged if potential jurors were excluded after private conversations with the judge. Further, the judge's actions were not authorized by s. 600 of the Code. Finally, the trial judge's error in this case was of a fundamental nature and therefore the curative provisions in ss. 598, 599 and 613(1)(b)(iii) of the Code should not be applied.

49. In closing, the words of Haines J. in R. v. Elliot, 1973 CanLII 400 (ON SC), [1973] 3 O.R. 475 (H.C.), are an accurate summary of both the method and the goals of the jury selection process:

Much more in keeping with the realities of the situation is to allow the accused through his counsel to ask such relevant questions in open Court as to the partiality and fitness of the juror under the watchful eye of the Judge who will in the exercise of his discretion protect the interest of the Crown and the accused as well as the administration of justice. In this matter the tribunal itself is enhanced in the eyes of the public. Lay triers have found the juror fair and impartial. Justice is at its highest when its administration is shared by our citizens.

V

Conclusion

50. I would allow the appeal, set aside the judgment of the Appeal Division of the Supreme Court of Nova Scotia, and order a new trial for the appellant. Although strictly speaking I do not have to decide the other three issues, for the guidance of the trial judge who re‑tries the case I think it useful to state that I would agree with McIntyre J.'s opinions on those issues.

The reasons of McIntyre and Le Dain JJ. were delivered by

51. McIntyre J. (dissenting)‑‑The appellant Barrow was jointly charged with one MacFadden and one Simpson with an offence under ss. 423(1)(d) and 110(1)(d) of the Criminal Code. The indictment is in these terms:

that [they]...unlawfully did...conspire together and with James G. Simpson and with various officials of the government of the Province of Nova Scotia and with another person or persons unknown, to demand or accept for the benefit of themselves or the Nova Scotia Liberal Association or a member or members thereof or another person or persons, rewards, advantages or benefits, as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with the transaction of business with or any matter of business relating to the Province of Nova Scotia or any benefit that Her Majesty is authorized or is entitled to bestow, contrary to Section 423(1)(d) and 110(1)(d) of the Criminal Code of Canada.

Simpson pleaded guilty in the magistrates' court and was fined $75,000. MacFadden and the appellant elected trial by judge and jury and after a preliminary inquiry they were committed to stand trial in the Supreme Court of Nova Scotia. The trial commenced on April 5, 1983. The Crown called extensive evidence and when it closed its case a motion was made by the defence for a directed verdict. This motion was denied and the appellant and MacFadden elected not to call evidence. On May 11, 1983, the jury returned a verdict of guilty against both accused and, on May 12, l983, the trial judge sentenced each man to the payment of a fine of $25,000.

52. The appellant appealed to the Appellate Division of the Supreme Court of Nova Scotia (the Court of Appeal). MacFadden did not appeal. The Court of Appeal dismissed the appellant's appeal against conviction in reasons for judgment delivered September 11, l984 (1984 CanLII 3574 (NS CA), 65 N.S.R. (2d) 1). The appellant was granted leave to appeal to this Court, pursuant to s. 618(1)(b) of the Criminal Code.

The Facts

53. In 1968, the Nova Scotia Liberal Association created a finance committee to raise funds for the purposes of the party. The Committee was composed of the appellant, as chairman, and MacFadden and Simpson who acted primarily as collectors. Two bank accounts were opened by the Committee for the purpose of receiving financial contributions. The accounts were in the name of Cambridge Investments and J. G. Simpson, in trust. The signing authorities on the Cambridge account were Simpson and MacFadden and, on the other, Simpson and his secretary. Monies collected or received were deposited to these accounts and then disbursed to several trust funds which had been set up over the years for the purposes of the Nova Scotia liberal party, to various individuals and the Nova Scotia Liberal Association. The common trustee of all the trust funds was the appellant.

54. According to the judgment of the Court of Appeal, which on this point is not challenged, the evidence, particularly documentary evidence, showed clearly that the appellant and his co‑accused were at all times aware of the flow of cash through both bank accounts. Meticulous accounting records were kept with respect to the two accounts and none of the monies disbursed from the accounts or the various trust funds was expended by the appellant or his two co‑accused for their own use or benefit. The evidence also revealed a close relationship between the members of the Committee, as well as a close connection between the committee members and government officials from whom they received information relating to such matters as the identity of those who were doing business with the Government of Nova Scotia.

55. In October of 1970, the liberal party defeated the then Government of Nova Scotia in a general election and formed the new government which held power until 1978. During the period from 1970 to 1978, the Committee collected contributions amounting in total to $3,836,468.13, of which $2,770,773.52 was deposited in one bank account and $1,065,694.61 in the other. A police investigation commenced in the autumn of 1978 resulted in the seizure of many documents from government departments and agencies and also from several wineries, distilleries and other corporations. The evidence revealed that the contributions made by liquor and wine companies dealing with the government were based on a fixed amount per case of products sold to the Government. Other companies doing business with the government paid a percentage of monies they received from government work which ranged from three to five per cent.

56. The theory of the Crown was that the monies contributed to the Committee were not, in fact, bona fide political contributions but were payments made by them to ensure the continuation of their business relationship with the Government. To secure these contributions, the appellant and his two accused, out of their desire to support the liberal party in Nova Scotia, agreed among themselves to "peddle their influence with the Government" to the various companies doing business with the Government. The appellant defended on the basis that his character and reputation refuted the charge against him. It was said that the whole case for the Crown was an attempt to involve the appellant in conduct of the co‑accused Simpson in which he was in no way involved. The appellant did not contend before the Court of Appeal, nor does he in this Court, that the verdict of the jury was unreasonable or could not be supported by the evidence. He raised four grounds of appeal before the Court of Appeal and raised the same grounds in this Court. They are set out hereunder:

57. It is respectfully submitted that the Supreme Court of Nova Scotia, Appeal Division, erred in holding that the learned Trial Judge's examination under oath of members of the jury panel on April 5, 1983 in the absence of the appellant (and his counsel) did not vitiate the appellant's trial.

58. It is respectfully submitted that the Supreme Court of Nova Scotia, Appeal Division, erred in holding that the Nova Scotia Liberal Association is a "person" within the meaning of Section 110(1)(d) of the Criminal Code of Canada.

59. It is respectfully submitted that the Supreme Court of Nova Scotia, Appeal Division, erred in holding that the learned Trial Judge's instructions to the jury, referable to the co‑conspirators' exception to the hearsay rule were correct.

60. It is respectfully submitted that the Supreme Court of Nova Scotia, Appeal Division, erred in holding that no miscarriage of justice was occasioned as a result of the learned Trial Judge's failure to instruct the jury as to the use, in law, that could be made of evidence of Senator Barrow's good character.

I will address the grounds in that order.

Right to Presence at Trial (s. 577(1) of the Criminal Code)

57. On April 5, 1983, the appellant and MacFadden were arraigned before a panel of jurors and pleaded not guilty. The trial judge, following what he described as "the ordinary procedure", then invited members of the panel to claim exemptions from jury service on grounds which included partiality as between the Crown and the accused. He said:

Members of the Jury Panel, you've just witnessed the procedure under which the two accused persons in this case, have been arraigned and you've heard the charge against them, and you've also heard their pleas of not guilty to the charge, in each case. Now, we will later this morning, be proceeding to select a Jury of twelve, who will try this case, which I may say, is the only case on the docket for which you have been called. It's usual at this time, however, to invite members of the Jury panel to come forward and claim exemption if there's any circumstance, such as relationship to one of the accused, or other involvement with the case, that would prevent the Juror from serving impartially in the case. To that usual call for exemption claims, there are several matters I must add in this case. The first is, that there has been in the press and in the broadcast media considerable publicity about this case and I advise you that if exposure to that publicity in your opinion, would operate to prevent you from being impartial in this case, then you should come forward on that ground, as well as the others I've mentioned and claim exemption, and the other matter that I want to bring to your attention in inviting claims for exemption, is that it's anticipated that this case will last from four to six weeks and that, in some instances, may create special hardship and that can be a basis on which you may now claim exemption. So, with those words of explanation I invite persons claiming exemption in this case, now to come forward. You will be sworn and I will consider the basis of your claim and deal with it.

58. The trial judge then swore the individual claimants and considered their claims for exemption, doing so in the courtroom but out of hearing of the accused or his counsel. Counsel for the appellant commented on this procedure in response to an invitation by the trial judge:

I have just one very respectful submission to make to your Lordship. I realize there may be some very personal claims for exemption that would be none of my business, and I wouldn't want to listen to it, but since your Lordship invited the members of the Jury who might feel that they couldn't be impartial by reason of publicity to claim exemption on that basis, if some claim for exemptions made on that basis, I am wondering whether, my Lord, that shouldn't be a claim that we should be able to listen to. I am in your Lordship's hands as to that.

The trial judge replied:

I'm prepared Mr. Cooper to note in those instances what the ground of exemption is, but beyond that, I don't think we should depart from the ordinary procedure.

He proceeded to hear claims for exemption, still out of hearing of the appellant and his counsel. In the end, he granted thirty‑six exemptions from service. No reasons were given for the exemptions of thirty‑two of the jurors, but the judge gave reasons in respect of the remaining four in these terms (the jurors' names are omitted):

#85 ...is excused on the ground of his association with the accused persons in this case. It's not necessary ...that you remain here.

#11 ...is excused on the ground of familiarity with the publicity concerning the case and his relationship to a minister of government.

#34 [is excused as he] served on the Grand Jury that dealt with this case.

#75 ...is excused on the ground that he feels that he cannot be impartial in his case because of the nature of the case.

Jury selection then began from the remaining panel members. Each one was challenged for cause. The appropriate procedures for such challenges provided for in the Criminal Code were followed and no objection has been made on that ground. As a result, each juror who was empanelled to try the accused's case had been challenged for cause according to law and had survived the challenge. On the basis of these facts, the appellant's first ground is advanced.

59. The appellant submits that his right under s. 577 of the Criminal Code to be "present in court during the whole of his trial" was violated when the trial judge examined jurors for partiality out of hearing of the accused and his counsel. This submission raises two issues: (1) Was the accused present during the examination of the panel members claiming exemption? (2) Was the examination of those claiming exemption conducted "during" the trial? With respect to the first issue, I agree with the Court of Appeal and counsel for the appellant that the accused was not present when the trial judge conducted his examination of persons claiming exemption. "The presence of the accused means not merely that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings": R. v. Lee Kun, [1916] l K.B. 337. Although the appellant was physically present during the trial judge's examination of the jurors, neither he nor his counsel was permitted to hear the examination. It is, therefore, clear that the accused was not "present" in any effective sense.

60. The second issue is more difficult than the first and depends upon the meaning of the expression, the "whole of the trial", in s. 577. The word "trial" was considered by this Court in Basarabas and Spek v. The Queen, 1982 CanLII 216 (SCC), [1982] 2 S.C.R. 730. In that case, the Court was asked to determine when a jury trial commences for the purposes of s. 573 of the Criminal Code, which provides for the discharge of a juror by the trial judge "in the course of a trial". The trial judge in the case discharged a juror after the jury had been empanelled and sworn, and pleas of not guilty entered, but before the accused had been put in the jury's charge and before the Crown was called upon to present its case. The Court, per Dickson J. (as he then was) held, at pp. 741‑42, that for the purposes of s. 573 the trial commences when the accused has been placed in charge of the jury. However Dickson J. had earlier noted that the meaning of the word trial varies with the language of the section in question and with the circumstances. He stated, at p. 740, that:

First, the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied. Thus, the word "trial" in s. 577(1) which assures the accused the right to be present "during the whole of his trial" will be liberally construed to afford the accused the right to be present during the selection of the jury. In like manner, the word "trial" in s. 566 which denies the prosecutor the right to direct a juror to stand by on the trial of an indictment for the publication of a defamatory libel will be interpreted to embrace the proceedings preceding the empanelling of the jury. In other sections "trial" may have a different connotation depending upon the section of the Code being applied.

The meaning of the expression "the whole of the trial" will therefore depend upon the language of s. 577, the principles underlying the section and the circumstances of the case. A circumstance of particular importance in this case is the nature of the communications or proceedings from which the accused was excluded.

61. The meaning of "trial" in s. 577 of the Criminal Code and the principles underlying the section were considered by the Ontario Court of Appeal in R. v. Hertrich, (1982), 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.) Speaking for a unanimous court, Martin J.A. outlined the general approach to s. 577, at p. 527:

Generally speaking, the trial of an accused does not commence until after plea: see Giroux v. The King (1917), 1917 CanLII 81 (SCC), 29 C.C.C. 258 at p. 268. 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 the imposition of sentence if the accused is found guilty.

Later, at p. 537, he added:

...the characterization of a proceeding as a part of the trial in relation to the accused's right to be present at the proceeding would seem to depend upon whether his exclusion from the proceeding violates his right to be present so that at all times he may have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests. [Emphasis added.]

The general approach developed by the Court of Appeal was expressly adopted by this Court in Vézina and Côté v. The Queen, 1986 CanLII 93 (SCC), [1986] 1 S.C.R. 2, at p. 10, in a case where the trial judge interviewed jurors in his chambers in the absence of the accused or counsel, but after they had been sworn and had heard evidence.

62. While anything that occurs in the course of the courtroom proceedings which could involve the accused's vital interests should constitute part of the trial, it is clear that not every step in the long process leading to the ultimate verdict will be part of the trial for the purposes of s. 577. As Martin J.A. stated in Hertrich, supra, at p. 529:

Manifestly, however, not everything that occurs during a trial is a part of the trial. Zuber J.A., speaking for this court, in R. v. Grimba, supra, said at p. 574 C.C.C., p. 744 D.L.R., p. 548 O.R.:

The Crown points out, however, that improper exclusion from the court‑room by itself does not contravene s. 577. Something must transpire in the court‑room which can be said to be a part of the trial. Obviously, if following the exclusion of the appellant for his misconduct, the Court had recessed for a time and then resumed in his presence, the appellant could not claim that he was not present during his trial. In Meunier v. The Queen (1965), 1965 CanLII 1161 (QC CA), 48 C.R. 14, [1966] Que. Q.B. 94n, Casey J. of the Quebec Court of Appeal put the question as follows at p. 17:

"Our problem is whether the Court proceeded, whether it did anything of a nature to advance the case, in the absence of the appellant. If it did not appellant's argument must be rejected; if it did the conviction must be quashed."

Subsequent cases have repeated this question and have used the phrase "advance the case": Collin v. The Queen (1968), 5 C.R.N.S. 201, [1968] Que. Q.B. 340n. I cannot think that this phrase was intended to be definitive. It is one way of putting the essential question of whether or not the trial continued and it is of little consequence whether the continuance embraced the adduction of evidence, the presentation of argument, rulings on evidentiary points, the address to the jury, etc.

I accept the remarks of Zuber J.A. and would add that during the course of the trial things may occur that, although in one sense part of the trial, cannot reasonably be considered to be a part of the trial for the purpose of the present principle, because they cannot reasonably be said to have a bearing on the substantive conduct of the trial, or the issue of guilt or innocence.

Later, at p. 539, he added:

Obviously, as previously indicated, not every communication between the judge and the jury or a juror that may occur during the trial is a part of the trial. For example, the mere communication by the judge to the jury in the absence of the accused of an administrative decision that he has made, that if the jury were unable to reach a verdict, they would go to a hotel that night and resume deliberations the next day, is not a violation of s. 577: see R. v. Hamilton (1980), 1980 CanLII 2924 (QC CA), 58 C.C.C. (2d) 467. And in the present case, for example, the communication by the deputy sheriff to the judge of the information with respect to the anonymous telephone call, and the preliminary in‑chambers conference with counsel to determine the necessity for an inquiry and the form that it should take clearly did not constitute part of the trial.

Applying these principles, the issue before us is whether the judge's examination of members of the jury panel for partiality, prior to selection of the jury to try the case, constituted part of the trial, in that it involved the accused's vital interests and could reasonably be said to have a bearing on the substantive conduct of the trial and the issue of guilt or innocence.

63. The courts have consistently held that after the jury has been empanelled an examination of a juror for partiality by the trial judge in the absence of the accused violates the accused's rights under s. 577 of the Criminal Code. In R. v. Côté and Vézina, 1982 CanLII 3777 (QC CA), [1982] C.A. 419, 3 C.C.C. (3d) 155 (hereinafter cited to C.C.C.), the trial judge received notes from two of the jurors alleging that two of the other jurors were being or had been influenced by one of the accused. The trial judge informed the accused and their counsel of these communications and attempted to obtain their consent to interview privately the two jurors who had sent the notes. After failing to obtain their consent, he decided to interview the two jurors before a court reporter but in the absence of the accused and counsel. Following the interviews, the trial judge was satisfied that there was no foundation for the allegations and informed counsel that "there is no valid reason that the jury cannot, will not, be able to or should not continue its deliberations in order to arrive at their verdict". The trial proceeded and the accused were convicted.

64. On appeal, the majority of the Court of Appeal (Owen and Malouf JJ.A.) found that the interviews violated the accused's rights under s. 577 and ordered a new trial. Owen J.A. stated in his reasons, at p. 160, that:

The right to a trial by an impartial jury is a fundamental one. The accused has the right to be present when the jury is empanelled and the impartiality of prospective jurors is considered. In virtue of the same principle, the accused has the right to be present when an inquiry is conducted to determine whether the impartiality of the jurors has been affected after they have been sworn in and before the verdict has been rendered.

Malouf J.A. in separate reasons stated, at p. 188, that:

The authorities cited in the opinion of my colleague, Mr. Justice Owen, clearly show that such a proceeding is part of the trial. The jurors questioned are the very same persons who, together with the remaining members of the panel, will be called upon to decide the guilt or innocence of each accused. This is an issue vital to each accused. Surely, any matter which could influence the members of the jury in the verdict that they are called upon to render is part of the trial. It is so in this case.

L'Heureux‑Dubé J.A., in dissent, was of the view that the interviews were a preliminary investigation for determining the impartiality of the jurors and therefore did not violate s. 577.

65. The judgment of the Court of Appeal was upheld on appeal to this Court. Lamer J., speaking for a unanimous court, stated, at p. 13:

In this case it is abundantly clear from the written messages that the partiality of jurors was in issue. L'Heureux‑Dubé J.A. concluded that this is not so relying in part on what was eventually reported in the transcripts of the exchange between the judge and the jurors in chambers. This analysis, in my respectful view, misses the point. For it is confusing the determination of whether partiality was in issue with the further determination of the issue of partiality. Finding the jurors impartial does not mean that their impartiality was not in issue. It merely means that the issue was determined in favour of their impartiality. The events of this case well illustrate the need for the issue of partiality to be determined in the presence of the accused, specifically when one considers that counsel for the accused argued their motion for a mistrial without knowing what the jurors had to say as regards the partiality of others, not knowing whether the jurors had conveyed to their fellow jurors including the suspects, their suspicions, and not even knowing whether the judge had met with those jurors. I would therefore dismiss the Crown's appeal.

The accused's presence when jurors are interviewed for partiality was also considered in Hertrich, supra. The relevant facts in Hertrich are conveniently set out in the head‑note to 1982 CanLII 3307 (ON CA), 67 C.C.C. (2d) 510, in these terms, at p. 511:

The three accused and two others were tried on a charge of the first degree murder and following a lengthy trial the three accused were convicted. During the trial it was brought to the trial judge's attention that two anonymous telephone calls had been received at the home of one of the jurors and that during one of the calls it was stated that the accused Sk had killed twice before. This juror had then told another juror of the anonymous telephone call. The trial judge brought defence counsel into his chambers and informed him of the information he had received concerning the jurors. Over objection of some of the counsel the trial judge then conducted an inquiry in his chambers in the presence of counsel but in the absence of the accused. Both jurors were examined under oath and indicated that they felt they could still be true to their oath as jurors. The trial judge then brought the two jurors into open court and indicated that what had been said in the anonymous telephone call was not true and he then refused an application by defence counsel for a mistrial. Proceedings were then resumed with the full jury where it was explained that one of the jurors had received an anonymous telephone call, had discussed it with another juror but that there was no suggestion that the call came from anyone associated with the trial and that the trial judge was satisfied that the trial could continue. The trial thereafter resumed.

On appeal, Martin J.A., speaking for the court, held, at p. 539, that:

Each of the opposing views on this question can justly lay claim to both pragmatic and intellectual support. However, in my opinion, after a great deal of careful consideration, the right of the accused to have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests tips the scales in favour of the view that the in‑chambers examination of the jurors was part of the trial.

I have, therefore, concluded that the examination of the jurors on April 6th was a part of the trial for the purpose of the rule here under consideration. The proceeding involved the vital issue whether the jurors in question were affected by the anonymous telephone calls and whether the appellants could receive a fair trial if those jurors continued to serve on the jury. The appellants were entitled to be present to hear from the jurors' own lips whether they were affected by those telephone calls and whether the calls prevented them from continuing to discharge their duties as jurors.

A similar view was expressed in R. v. Fenton (1984), 1984 CanLII 633 (BC CA), 11 C.C.C. (3d) 109 (B.C.C.A.) and Frisco v. The Queen, 1970 CanLII 1772 (QC CA), [1971] C.A. 176, 14 C.R.N.S. 194.

66. It is therefore clear that the accused's rights, under s. 577 of the Criminal Code, will be violated if the trial judge examines a juror for partiality in the absence of the accused after the jury has been empanelled. But, the situation is profoundly different if the trial judge examines jurors for partiality prior to the jury selection process under the Code. To appreciate the significance of this difference, it is useful to outline the procedures for summoning and selecting juries. There are two distinct steps involved in providing a jury to try an individual case. The first step involves assembling the jury panel from which individual juries are to be selected. According to s. 554 of the Code, this step is governed by provincial law, which in this case is the Nova Scotia Juries Act, S.N.S. 1969, c. 12, as amended. The second step is governed by ss. 558 to 571 of the Code and involves the selection from the jury panel of a jury to try a particular case.

67. Considering the initial step in more detail, the Juries Act sets out the criteria for qualification for and exemption from jury service. It further details the procedure for assembling jury panels for each jury district in the province. Under the Act, the Attorney General appoints a jury committee for each jury district. The proceedings of the committee are to be conducted in secrecy. Each year, the jury committee randomly selects the names of prospective jurors from voters lists or, if necessary, from tax rolls and other lists of qualified persons. In selecting the names of persons, the jury committee reviews each name to determine whether the person is both qualified to serve and not exempted from service as a juror. When the list is completed it is certified by the committee and presented to a judge, who must satisfy himself on information given by the jury officer that the jurors have been properly selected and the list properly prepared. If the list is approved by the judge, it becomes the jury list for the district until a new one is prepared. Whenever a jury is required, the judge who is to preside at the session of the court or the chief justice selects at random from the list the number of jurors he thinks necessary to form a jury panel. The names of the jurors selected for the panel are made public four to eight days before the stated date for the appearance of the jury by posting the names in the office of the Prothonotary of the Supreme Court of the jury district.

68. It can be seen at once that this process of drawing up a jury list and assembling a jury panel for a particular session is designed to create a pool of disinterested jurors. It is a process in which an individual accused plays no part and has no right to intervene except "on the ground of partiality, fraud or wilful misconduct on the part of the sheriff or his deputies by whom the panel was returned" (s. 558 of the Code). The accused has no interest in the process, save the interest of any citizen in the due administration of the law.

69. The second step in the procedure involves the selection of the jury from the jury panel. As set out in the Code, the name of each juror on the panel is written on a card which is placed in a box by the clerk of the court. The clerk then draws at random one card at a time from the box and calls out the name of the juror on the card. As each juror is called, counsel for the accused or the Crown may challenge the juror for cause on a number of specific grounds enumerated in s. 567, including the ground that "a juror is not indifferent between the Queen and the accused". In addition, counsel for the accused and the Crown may challenge a fixed number of jurors without cause. This procedure continues until twelve jurors have been selected. During this procedure, the accused has a right to be present and to participate in the process to ensure that the jurors selected are impartial and that his vital interests are protected.

70. At any stage during the first step in assembling the jury panel a judge "may grant to any person exemption from service as a juror at the whole or part of that session upon application by or on behalf of that person", (s. 4(2) of the Juries Act). This section (s. 4(2) of the Juries Act) gives statutory recognition in provincial law to a practice which has been approved for application in the criminal law by very high authority. In the case of R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279, the Ontario Court of Appeal (Gale C.J.O., Jessup, Arnup, Dubin and Martin JJ.A.) in a per curiam judgment dealt with questions relating to challenges for cause, empanelling of jurors, and the position of the trial judge in assuring impartiality of jurors. The court expressed the view that a fundamental assumption of the jury process, as carried out in Canadian criminal law, was that jurors would observe and follow the direction of the trial judge in reaching their verdict and base their judgment upon the evidence before them and not upon preconceptions on matters of which they had received knowledge before the trial. At trial, counsel for the accused had asked that the trial judge address the jury panel and direct that if any potential juror had any connection with the accused he should declare himself prior to being sworn. The trial judge refused. The Court of Appeal, in considering the whole question of challenges for cause under the Criminal Code and the question of partiality of jurors, quoted with approval the apt words of Seaton J.A. in R. v. Makow (1974), 1974 CanLII 1423 (BC CA), 20 C.C.C. (2d) 513, at p. 519, "an accused is entitled to an indifferent jury not a favourable one". Reference was made as well to the English practice direction (jurors) issued by Lord Widgery C.J. on January 12, [1973] l All E.R. 240, in these terms:

I have to make a practice direction which is made after consultation with the judges of the Queen's Bench and Family Divisions. A jury consists of 12 individuals chosen at random from the appropriate panel. A juror should be excused if he is personally concerned in the facts of the particular case, or closely connected with a party to the proceedings or with a prospective witness. He may also be excused at the discretion of the judge on grounds of personal hardship or conscientious objection to jury service. It is contrary to established practice for jurors to be excused on more general grounds such as race, religion, or political beliefs or occupation.

On the general question of partiality in jurors and the position of a trial judge in these matters, the court said, at pp. 292‑93:

Turning to the practical consideration of the methods by which the process should be carried out [insuring impartiality of jurors] we deal first with the kind of obvious partiality dealt with in the English practice direction. Some trial Judges make a practice of saying to the jury panel, before the selection process begins, something of this nature:

If there is anyone on this panel who is closely connected with a party to this case or with a witness who is to testify, will you please stand?

(Rarely does anyone respond.) If someone does stand, the trial Judge asks him to come forward (usually to the jury‑box), and inquires further as to that person's connection with the case. To take obvious examples, if the juror is the uncle of the accused, or the wife of a witness, or the brother of the investigating police officer, he ought not to serve.

In our view, the trial Judge on his own should excuse that prospective juror from the case, without more ado. The Criminal Code makes no express provision for it, but it does not expressly or impliedly forbid it either, and in our view it is in the power of the trial Judge as part of his function of ensuring a fair trial. We think the practice of excusing jurors of obvious partiality is a desirable one in all cases.

And, at pp. 296‑97, he said:

Finally, there is Mr. Hamilton's "afterthought" at the trial, that the trial Judge should inquire generally of the panel whether any of them had "any connection with the accused". From our earlier observations as to the appropriate procedure, it follows that in our view it would have been desirable for the trial Judge to have acceded to this request, and indeed to have "screened" the panel for what we have called obvious cases of partiality. There is not the slightest suggestion that in fact any juror chosen had any connection whatever with the accused, and we decline to hold that this ruling vitiated the trial. If it were otherwise, most of the criminal trials heretofore held in Ontario have been likewise vitiated.

71. In my view, the course taken by the trial judge in the case at bar was quite proper and well within the scope of the propositions that emerge from Hubbert, which have been set out above. The only question which could be raised to distinguish what occurred in the case at bar is that the trial judge conducted his inquiry in the absence of the accused and his counsel. From the authorities earlier cited, the question is whether the judge's inquiry of panel members as to partiality could affect the vital interests of the accused, touching on the question of guilt or innocence. It is evident from the foregoing review of the Juries Act that the questioning of the jurors in the courtroom was a part of the first step of the jury process, that is, the constitution of the jury panel, and comes within the provisions of the Juries Act. In interviewing the jurors as he did, the trial judge was exercising powers in relation to the selection of the panel in accordance with what we were told is normal procedure and it is also evident that he was exercising a power known and approved in proceedings under the Criminal Code. This is a step in which the appellant has no part and, as has been said, no legal right to intervene. As long as the procedure adopted to constitute the jury panel conforms with the Act and produces a divers and disinterested group, no vital interest of the accused is affected. As said by Seaton J.A., supra, an accused person is entitled at law to have an indifferent rather than a favourable jury. The process by which the Juries Act provides for the creation of the jury panel, based on a random choice, from among those members of the community who are eligible for jury service is designed to achieve that objective. That process involved a judicial examination of the jury lists and a judicial discretion to excuse or exempt jurors. Following completion of this process, the accused is entitled to challenge jurors on a variety of grounds, including partiality, as provided in the Criminal Code. That is what occurred here. Each juror who served on the jury was challenged for cause under the Criminal Code in the presence of the accused and each one survived the challenge. The appellant thus obtained‑‑as nearly as the law can provide‑‑that to which he is entitled, an impartial jury, and participated in those procedures which affected his vital interests. I would reject this ground of appeal.

Is the Nova Scotia Liberal Association a Person?

72. Is the Nova Scotia Liberal Association a "person" within the meaning of s. 110(1)(d) of the Criminal Code? Section 110(1)(d) of the Code upon which the indictment in part is based makes it an offence to offer or agree to accept for himself or another person a reward, advantage or benefit of any kind as consideration for the exercise of influence. It was argued that the main recipient of any alleged benefits was the Nova Scotia Liberal Association, and that the Association is not a "person" within the meaning of s. 110(1)(d) of the Code. I am in agreement with the Court of Appeal that for the purposes of s. 110(1)(d) of the Code the Nova Scotia Liberal Association is a person. I accept the reasoning of the Court of Appeal on this point. In my view, the word "person" in s. 110(1)(d) of the Code must be read in the light of s. 2 of the Criminal Code, which provides, in part:

73. ...

"every one", "person", "owner", and similar expressions include Her Majesty and public bodies, bodies corporate, societies, companies and inhabitants of counties, parishes, municipalities or other districts in relation to the acts and things that they are capable of doing and owning respectively;

The Nova Scotia Liberal Association clearly falls within the meaning of the word "society" in s. 2. There was evidence that the Nova Scotia Liberal Association was an active organization, hiring staff, renting premises, receiving and disbursing funds and carrying on general political activities. To hold that the Association was not a "person" and, therefore, not within the purview of s. 110(1)(d) of the Criminal Code, would lead to an absurd result and frustrate the obvious purpose of the enactment. I would reject this ground of appeal.

Conspirator's Exception to the Hearsay Rule

73. The appellant concedes that the charge of the trial judge on the question of the application of the conspirator's exception to the hearsay rule was generally in accordance with the decision of this Court in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938. This was also the view of the Court of Appeal which conveniently summarized in three steps, at p. 486, the approach propounded in Carter:

74. The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.

75. If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not he is a member of the conspiracy.

76. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then he or they must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step, only the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co‑conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.

It was argued for the appellant that while the indictment referred to unnamed conspirators, the Crown's case was that the only members of the conspiracy were the appellant and his two co‑accused. Accordingly, in determining beyond a reasonable doubt on all the evidence whether a conspiracy had existed at the first stage of their deliberations, the jury must necessarily have determined on all the evidence and beyond a reasonable doubt that either MacFadden or the appellant, or both, were members of the conspiracy. It was submitted that this instruction undermined the rationale of the conspirator's exception to the hearsay rule, in that the jury of necessity determined the guilt of one or both of the accused ab initio on all the evidence tendered at the trial.

74. This argument, in my view, is based upon a misunderstanding and misconstruction of this Court's decision in Carter. It rests upon the proposition that in taking the first step in the Carter case the jury would of necessity have to determine beyond a reasonable doubt the identity of at least two persons involved in the conspiracy. This, in my view, does not follow. It may often be true, that in determining beyond a reasonable doubt the existence of a conspiracy one may also determine the identity of some of the members. On some occasions and in respect of some conspirators it may not be necessary to have resort to the hearsay exception, but this is not always so. It is entirely possible, and not uncommon, to be satisfied beyond a reasonable doubt on all the evidence that a conspiracy for the purposes alleged in the indictment existed while still being uncertain as to the identity of all the conspirators. Once this is understood it becomes evident that there is no substance to the appellant's argument. On this first step what is considered is the existence of the conspiracy, not individual membership. At this point the hearsay exception is inapplicable. This is in accordance with the view expressed by Martin J.A. in R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 31 C.C.C. (2d) 525, in reference to the conspirator's exception to the hearsay rule, where he said, at p. 544:

It only comes into play, however, where there is evidence fit to be considered by the jury that the conspiracy alleged between A and B exists. It is clear that where the fact in issue to be proved is whether a conspiracy exists between A and B, A's acts, or declarations implicating B cannot be used to prove that B was a party to the conspiracy, in the absence of some other evidence admissible against B to bring him within the conspiracy: see Savard and Lizotte v. The King (1945), 1945 CanLII 37 (SCC), 85 C.C.C. 254 at p. 262, [1946] 3 D.L.R. 468, [1946] S.C.R. 20 at p. 29.

Where, at this stage, the "evidence fit to go to a jury" does not satisfy the trier of fact according to the criminal standard of proof that the conspiracy existed, it need go no further for no conspiracy has been shown. The remaining steps, as outlined in Carter, follow only where the trier of fact has reached its first determination‑‑that the conspiracy exists.

75. Applying the Carter approach to the case at bar, it must be observed that there were three conspirators named and that the evidence directly admissible against each differed in some particulars, particularly in the case of the appellant who had little if any direct contact with the persons doing business with the Government while the other two did. There was evidence upon which the jury could conclude that a conspiracy did exist, and much of the evidence as it would apply to each individual charged would be hearsay. The hearsay exception was therefore available to the Crown, if the jury on a consideration of the evidence directly admissible against each individual had reached, in respect of each of the accused, a conclusion as to membership in the conspiracy. The jury was properly instructed as to their duties in this respect and it is evident that they concluded on both issues, conspiracy and membership, against the appellant.

76. In argument it was suggested that the Carter approach could not apply to an allegation of a conspiracy between two people. Indeed, this seemed to be at the root of the argument advanced on this issue. It was formerly considered, where there were two conspirators only (and no others), that both must be convicted or both acquitted. This was to avoid an inconsistency in verdicts, to avoid a finding that A was guilty of conspiring with B but that, on the same occasion, B was not guilty of conspiring with A. This problem would not, of course, arise at bar where three accused conspirators were involved but, in any event, in the present state of our law it could not prevail. The former view has been authoritatively rejected in the judgment of the majority of this Court in Guimond v. The Queen, 1979 CanLII 204 (SCC), [1979] 1 S.C.R. 960. It is not necessary for me to discuss in any detail the majority judgment of Ritchie J. in that case in which he reviewed and distinguished the earlier authorities and made special reference to Director of Public Prosecutions v. Shannon, [1975] A.C. 717. He said, at p. 977 [S.C.R.]:

I think it can be taken, that where only two persons are charged with conspiracy and they are separately tried whether or not they are separately indicted, the conviction of one is not necessarily invalidated by the acquittal of the other.

In my view, these words are equally applicable to a case where the two conspirators were jointly charged and jointly tried.

77. In my view, there is no inconsistency in this position. The apparently inconsistent verdict does not result from the impossible conclusion that A conspired with B to commit a given crime and that B did not conspire with A on the same occasion to commit the same crime, but rather from the fact that there was evidence admissible against A to establish his guilt but no sufficient evidence admissible against B to prove his participation. The fact that upon arrest Mr. A says to the police "Yes, B and I agreed to murder X" will not be admissible against B does not deprive it of its evidentiary force against A.

78. I would reject this ground of appeal.

Use of Character Evidence

79. The defence of the appellant at trial was that his good name and reputation refuted the charges. There was a good deal of evidence of the appellant's good character and reputation before the jury. Great stress was placed upon it by the defence and there can be no doubt that it was forcefully brought before the jury. In dealing with this point in his directions to the jury, the trial judge said:

In the case of Senator Barrow, you may take the following evidence into account at the second stage of your deliberations, and you will take it into account against the background of the general matters that I covered at the beginning of my review‑‑what I have described as background evidence, in other words, of Senator Barrow's association with Mr. MacFadden and Mr. Simpson in connection with the financial and other affairs of the Liberal party, and, in the same category, evidence of his association with party figures, including the fact that he was regarded as a senior statesman and adviser whose opinion was respected by the Premier and others. In that same category, you must also take into account the uncontradicted evidence of many witnesses who testified as to the character and reputation of Senator Barrow as a man of honesty and integrity and as to his many unpaid public and charitable endeavours. All of that is background.

In referring to the theory of defence, he also stated:

There are differences in detail in the submissions that were made on behalf of Senator Barrow and those made on behalf of Mr. MacFadden. The position taken on behalf of Senator Barrow was that his character and reputation deny the charge against him, that the whole case for the Crown is an attempt to implicate Senator Barrow in conduct on the part of Mr. Simpson in which he was not involved, that being indicated by the fact that none of the liquor representatives knew Senator Barrow. It's argued on his behalf that no significance can be attached to the finding of some Liquor Commission documents in his possession since he was not a collector. As to the handling of funds, Senator Barrow was merely an administrator.

80. Counsel for the appellant, in addressing the issue in this Court, acknowledged that in reviewing the evidence for the jury the trial judge related instances where witnesses testified to the appellant's good reputation for integrity and honesty. It was argued, however, that evidence of good character is relevant to show that the accused was not likely to commit the crime charged (R. v. Khan (1982), 1982 CanLII 2225 (ON CA), 66 C.C.C. (2d) 32, at p. 42) and that this had not been made clear to the jury. It was also argued that the trial judge did not expressly instruct the jury, as a matter of law, on the use to which they could put such evidence. This was said to be a non‑direction, particularly because of the importance of the character evidence to the appellant's case. In dealing with this issue, the Court of Appeal said, at p. 16:

Throughout the trial the evidence of the appellant's good character was emphasized. It was referred to by appellant's counsel in his address and the trial judge referred to it several times during his address. The appellant did not testify and accordingly his credibility as a witness was not in issue. While not directly stated by the trial judge we are satisfied that the jury must have been aware that they could consider the evidence as relevant to show that the appellant was not likely to have committed the crime with which he was charged. Having regard to the charge as a whole we are unable to say that any miscarriage of justice occurred as a result of what at best was a technical non‑direction.

81. It is my view, from a perusal of the charge to the jury and of several extracts from the evidence, that the Court of Appeal's comments on this question are apt. There can be no doubt that evidence of the good reputation and character of the appellant was clearly put before the jury. It was emphasized and given fair treatment by the trial judge. I am in full accord on this point with the Court of Appeal. I would therefore reject this ground and for the reasons given above, I would dismiss the appeal.

Appeal allowed, McIntyre and Le Dain JJ. dissenting.

Solicitors for the appellant: Cooper & Sandler, Toronto.

Solicitor for the respondent: The Attorney General of Nova Scotia, Halifax.