R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 SCR 509

R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 SCR 509

Anthony Robert Sherratt Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Sherratt

File No.: 21501.

1990: December 13; 1991: March 21.

Present: L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Stevenson JJ.

on appeal from the court of appeal for manitoba

Trial ‑‑ Juries ‑‑ Challenge for cause ‑‑ Pre‑trial publicity ‑‑ Accused seeking to challenge each prospective juror for cause on the ground of partiality ‑‑ Judge not permitting questions to be put to all prospective jurors ‑‑ Whether accused properly denied right to challenge ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 554, 562, 567, as am.

Criminal law ‑‑ Juries ‑‑ Challenge for cause ‑‑ Pre‑trial publicity ‑‑ Accused seeking to challenge each prospective juror for cause on the ground of partiality ‑‑ Judge not permitting questions to be put to all prospective jurors ‑‑ Whether accused properly denied right to challenge.

Appellant was convicted of killing of a pimp. Media publicity was given to the search for and the location of the victim's body, his background and identity, and his involvement in certain killings in the United States. The accused's background was also the subject of some media speculation. These reports occurred approximately nine to ten months prior to the trial of the accused. The accused sought to challenge for cause each potential juror because of the potential for partiality arising from the pre‑trial publicity and had prepared a list of eleven questions to be asked of each member of the jury panel. This general challenge was rejected by the trial judge and an appeal to the Court of Appeal was dismissed. At issue here is whether the accused was properly denied the ability to challenge each prospective juror for cause on the ground of partiality.

Held: The appeal should be dismissed.

Per L'Heureux‑Dubé, Sopinka, Gonthier, and Cory JJ.: The jury must perform its duties impartially and represent the larger community as far as is possible and appropriate in the circumstances.

The fundamental right to a fair and proper trial is denied where the accused is not allowed to challenge any number of jurors for cause when the grounds of challenge are properly specified. Counsel is entitled to determine whether any potential juror is, by reason of the pretrial publicity and the notoriety of the appellant, sufficiently impartial. The trial judge cannot, in the exercise of his discretion in the area of admitting grounds of challenge for cause and settling the questions, effectively curtail the statutory right to challenge for cause. That trial judges have a wide discretion in these matters and that jurors will usually behave in accordance with their oaths cannot supercede the right of every accused person to a fair trial, which necessarily includes the empanelling of an impartial jury.

An accused does not have the right to a favourable jury and the selection procedure cannot be used to thwart the representativeness that is essential to the proper functioning of a jury. Peremptory challenges, however, are justified on a number of grounds even though they, along with the Crown's right to stand aside, can be used to alter somewhat the degree to which the jury represents the community. Challenges for cause are properly used to rid the jury of prospective members who are not indifferent or who otherwise fall within s. 567 of the Criminal Code, but they stray into illegitimacy if used merely, without more, to over‑ or under‑represent a certain class in society or as a "fishing expedition" in order to obtain personal information about the juror. Information obtained on an ultimately unsuccessful challenge for cause may, however, lead the challenger to exercise the right to challenge peremptorily or to stand aside the particular juror.

The issue raised in a challenge for cause is tried by a "mini‑jury" of two jurors or two prospective jurors if no jurors have been sworn. Section 567 of the Criminal Code places little, if any, burden on the challenger. On the other hand, a reasonable degree of control must be retained by the trial judge and, thus, some burden placed upon the challenger to ensure that the selection of the jury occurs in a manner that is in accordance with the principles here articulated and also to ensure that sufficient information is imparted to the trial judge such that the trial of the truth of the challenge is contained within permissible bounds. Thus, while there must be an "air of reality" to the application, it need not be an "extreme" case. The real question to be decided here was whether the particular publicity and notoriety of the accused could potentially have the effect of destroying the prospective juror's indifference between the Crown and the accused.

A valuable distinction might be drawn in pre‑trial publicity cases between mere publication of the facts of a case and situations where the media misrepresents the evidence, dredges up and widely publicizes discreditable incidents from an accused's past or engages in speculation as to the accused's guilt or innocence. It may well be that the pre‑trial publicity or other ground of alleged partiality will, in itself, provide sufficient reasons for a challenge for cause. The threshold question is not whether the ground of alleged partiality will create such partiality in a juror, but rather whether it could create that partiality which would prevent a juror from being indifferent as to the result. In the end, there must exist a realistic potential for the existence of partiality, on a ground sufficiently articulated in the application, before the challenger should be allowed to proceed.

Per Stevenson J.: Concurrence with the reasons and disposition of L'Heureux‑Dubé J. was restricted to the main ground of the appeal: whether the trial judge had usurped the function of triers of facts in dealing with challenges for cause. Where counsel seeks to invoke the right to challenge each juror the trial judge is to be satisfied that there is some foundation to the challenge. Here the challenge for cause on the basis of pre‑trial publicity was groundless. Giving some rational basis for exercising the peremptory challenge is not a permissible ground for challenging for cause.

Cases Cited

By L'Heureux‑Dubé J.

Considered: R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279, aff'd 1977 CanLII 15 (SCC), [1977] 2 S.C.R. 267; R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694; R. v. Guérin and Pimparé (1984), 1984 CanLII 3533 (QC CA), 13 C.C.C. (3d) 231; R. v. Zundel (No. 1) (1987), 1987 CanLII 121 (ON CA), 31 C.C.C. (3d) 97, leave to appeal refused [1987] 1 S.C.R. xii; referred to: R. v. Kray (1969), 53 Cr. App. R. 412.

By Stevenson J.

Applied: R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 11(d), (f).

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

Criminal Code, R.S.C. 1970, c. C‑34, ss. 554, 562, 563, 567, 569.

Juries Act, S.N.S. 1969, c. 12.

Authors Cited

Baker, John Hamilton. An Introduction to English Legal History, 2nd ed. London: Butterworths, 1979.

Blackstone, Sir William. Commentaries on the Laws of England, Book 4. Philadelphia : Rees Welsh & Co., 1900.

Blake, Nicholas. "The Case for the Jury", in Mark Findlay and Peter Duff, eds., The Jury Under Attack. London: Butterworths, 1980.

Canada. Law Reform Commission. Studies on the Jury. "Jury Selection", by Perry Schulman and Edward Myers. Ottawa: Law Reform Commission, 1979.

Canada. Law Reform Commission. The Jury in Criminal Trials. Working Paper 27. Ottawa: Law Reform Commission, 1980.

Devlin, Sir Patrick. Trial by Jury. London: Stevens, 1965.

Gold, Alan. "The Jury in the Criminal Trial", in Vincent M. Del Buono, ed., Criminal Procedure in Canada. Toronto: Butterworths, 1982.

Moore, Lloyd E. The Jury, Tool of Kings, Palladium of Liberty. Cincinnatti: Anderson Publishing Co., 1973.

Salhany, Roger E. Canadian Criminal Procedure, 5th ed. Aurora, Ont.: Canada Law Book Inc., 1989.

United Kingdom. Report of the Departmental Committee on Jury Service. (Morris Committee.) Cmnd. 2627. London: H. M. Stationery Office, 1965.

Vidmor, Neil and Julius Melnitzer. "Juror Prejudice : An Empirical Study of a Challenge for Cause" (1984), 22 Osgoode Hall L.J. 487.

APPEAL from a judgment of the Manitoba Court of Appeal (1989), 1989 CanLII 7339 (MB CA), 58 Man. R. (2d) 145, 49 C.C.C. (3d) 237, dismissing an appeal from conviction by Jewers J. sitting with jury. Appeal dismissed.

G. Greg Brodsky, Q.C., for the appellant.

Gregg Lawlor, for the respondent.

//L'Heureux-Dubé J.//

The judgment of L'Heureux-Dubé, Sopinka, Gonthier, Cory and Stevenson JJ. was delivered by

L'Heureux-Dubé J. -- The sole issue raised by this case is the proper interpretation of the challenge for cause provisions found in the Criminal Code, R.S.C. 1970, c. C-34. More specifically, the question is whether the accused in this case was properly denied the ability to challenge each prospective juror for cause on the ground of partiality or, in the words of the section, non-indifference.

Facts

The accused was charged and convicted in the killing of a pimp by the name of Tommy T. The nature of the dispute between the two men and the facts surrounding the actual killing of Tommy T. are not in issue here. Of importance to the legal question raised are the facts surrounding the search for the victim's body.

The crime was committed in Winnipeg, Manitoba, but the accused was picked up for questioning in Dryden, Ontario. On this occasion, he informed the police that he had killed Tommy T. A more detailed statement was given by the accused upon questioning by the Winnipeg police authorities. He told the police about the nature of the dispute between the two men and described the circumstances surrounding the actual killing. According to the accused's statement to the Winnipeg police, he had disposed of the body in a commercial garbage bin. Unfortunately, by the time the accused was transported back to Manitoba, the bin in question had been emptied. As a result, the police searched the local land fill site in hopes of locating the body. This search was the subject of some publicity by the media. The media raised questions about the location of the body and about the background and identity of the victim and his involvement in certain killings in the United States. The background of the accused was also apparently the subject of some media speculation. The reports in the media occurred approximately nine to ten months prior to the trial of the accused.

It is against this factual background that the legal question must be analyzed.

Relevant statutory provisions

Narrowly, only Criminal Code s. 567(1)(b) (now s. 638(1)(b)) is relevant to the disposition in this case. However, for ease of reference and in the interest of clarity, I will set out other Criminal Code provisions regarding the empanelling of a jury in the criminal context.

Criminal Code, R.S.C. 1970, c. C-34, as am.:

554. (1) A person who is qualified as a juror according to, and summoned as a juror in accordance with, the laws of a province is qualified to serve as a juror in criminal proceedings in that province.

555. (1) An accused who is charged with high treason or first degree murder is entitled to challenge twenty jurors peremptorily.

(2) An accused who is charged with an offence, not being high treason or first degree murder, for which he may be sentenced to imprisonment for more than five years is entitled to challenge twelve jurors peremptorily.

(3) An accused who is charged with an offence that is not referred to in subsection (1) or (2) is entitled to challenge four jurors peremptorily.

563. (1) The prosecutor is entitled to challenge four jurors peremptorily, and may direct any number of jurors who are not challenged peremptorily by the accused to stand by until all the jurors have been called who are available for the purpose of trying the indictment.

(2) Notwithstanding subsection (1), the prosecutor may not direct more than forty-eight jurors to stand by unless the presiding judge for special cause to be shown, so orders.

(3) The accused may be called upon to declare whether he challenges a juror peremptorily or for cause before the prosecutor is called upon to declare whether he requires the juror to stand by, or challenges him peremptorily or for cause.

567. (1) A prosecutor or an accused is entitled to any number of challenges on the ground that

(a) the name of the juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to,

(b) a juror is not indifferent between the Queen and the accused,

(c) a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months,

(d) a juror is an alien,

(e) a juror is physically unable to perform properly the duties of a juror, or

(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).

569. (1) Where the ground of a challenge is that the name of a juror does not appear on the panel, the issue shall be tried by the judge on the voir dire by the inspection of the panel, and such other evidence that the judge thinks fit to receive.

(2) Where the ground of a challenge is one not mentioned in subsection (1), the two jurors who were last sworn, or if no jurors have then been sworn, two persons present whom the court may appoint for the purpose, shall be sworn to determine whether the ground of challenge is true.

(3) Where the finding, pursuant to subsection (1) or (2) is that the ground of challenge is not true, the juror shall be sworn, but if the finding is that the ground of challenge is true, the juror shall not be sworn. [Emphasis added.]

Judgments

Court of Queen's Bench (Jewers J.)

At trial, in May, 1988, counsel for the accused informed the judge that he wished to challenge for cause each prospective juror on the ground that they were not "indifferent between the Queen and the accused". The allegation of potential partiality was based upon the pre-trial publicity described above. Counsel for the accused had prepared a list of eleven questions which he desired to put to each member of the jury panel. He argued that the speculation in the media went to the background and character of the accused and, hence, could prove prejudicial absent individual questioning of the prospective jurors on the basis of the eleven questions.

The Crown responded that the pre-trial publicity could not form the basis for the accused's challenge as it had occurred some nine or ten months prior to trial. Further, it was the Crown's contention that the media reports were not prejudicial as they failed to establish any connection between the search and discovery of the body of Tommy T. and the arrest of the accused.

The trial judge was not persuaded by the arguments of the accused and rejected the general challenge on the ground of partiality. He concluded in this fashion:

Well, in this particular case, first of all I don't really have any evidence as to the type or the extent of the publicity that was given to this case, unless I can take judicial notice of it which I do not think I can do.

However I am not persuaded on the basis of what has been told to me that there has been so much publicity about the case, and in particular so much publicity about the notoriety surrounding the accused, that this is a case which would call for the questioning of jurors prior to their being sworn in.

I am just not persuaded that this is a case where we should go to the extraordinary process of questioning the jurors, and so the application is dismissed.

Of course if there is some specific reason to challenge a jury on the grounds of impartiality or lack of impartiality, or any other reason, I naturally would be prepared to entertain that. . . . [Emphasis added.]

Court of Appeal (Huband J.A. for the majority, O'Sullivan J.A. in dissent) (1989), 1989 CanLII 7339 (MB CA), 58 Man. R. (2d) 145

On appeal to the Court of Appeal, the accused alleged a number of errors in the trial judge's charge to the jury. Since this is an appeal as of right, arising out of the dissent on a point of law at the Court of Appeal, none of these issues is relevant here. As stated at the outset, the only issue in this appeal is the propriety of the procedure adopted by the trial judge regarding the accused's request to challenge for cause each prospective juror on the basis of partiality.

The majority of the Court of Appeal considered at length the argument of the accused that the trial judge should have allowed individual questioning of the prospective jurors rather than acceding to the request of the Crown that, in the circumstances of the case, the alleged partiality was properly dealt with through a general admonition by the trial judge. Huband J.A., for the majority, pointed out that the trial judge: (1) did not close the challenge procedure off completely but held that challenges on "proper" grounds could proceed, (2) told all members of the panel that if any of them had formed a steadfast opinion about the guilt or innocence of the accused, they should excuse themselves and, (3) only after this instruction allowed the selection to begin.

In concluding that the accused could not succeed on this ground, the majority relied heavily upon the reasons of the Ontario Court of Appeal in R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279, and this Court's subsequent endorsement of those reasons found at 1977 CanLII 15 (SCC), [1977] 2 S.C.R. 267. Huband J.A. noted that in Hubbert, supra, the Ontario Court of Appeal reasoned that pre-trial publicity should not normally form the basis of a general challenge for cause. At p. 150 the majority stated:

Relying upon the Hubbert case, the learned trial judge was right in exercising his discretion to refuse challenge for cause on the basis of pretrial publicity. He was right to refuse to allow challenge on the basis of the other questions contained on the list, since, in the main, these matters were covered by his general remarks. In controlling the process as he did, in my opinion the learned trial judge did not interfere in any way with the right of the accused to a fair trial before an impartial jury.

Huband J.A. went on to discuss the case law subsequent to Hubbert, supra. He noted that this Court's reasons in R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, might be construed as limiting the reasons of the Ontario Court of Appeal in Hubbert, supra. The majority concluded, however, that Barrow, supra, should not be read in this fashion.

O'Sullivan J.A., in dissent, disagreed with the majority's interpretation of this Court's reasons in Barrow, supra, and held that the trial judge proceeded improperly in rejecting the general challenge by the accused. He also felt that the majority failed to consider adequately what was said by the Quebec Court of Appeal in R. v. Guérin and Pimparé (1984), 1984 CanLII 3533 (QC CA), 13 C.C.C. (3d) 231. O'Sullivan J.A. quoted extensively from the three opinions rendered in Guérin and Pimparé, supra, and concluded that they cast doubt on the propriety of the procedure adopted in the present case. In attempting to reconcile what he felt were the conflicting judgments in Barrow, supra, Guérin and Pimparé, supra, and Hubbert, supra, O'Sullivan J.A. stated, at p. 155:

If the law were left in the state where the Ontario Court of Appeal ruled one way and the Quebec Court of Appeal ruled another, I would have been inclined to follow the Ontario Court of Appeal supported as it is by the remarks of the Supreme Court itself in dismissing the appeal from it. . . .

However, I am confronted with the judgment of Dickson, C.J.C. ...

It is true that it may be said that what Dickson, C.J.C., said in Barrow, supra, is obiter dictum; it is nevertheless entitled to our respect and we should follow the dicta in the absence of some special reason not to do so.

O'Sullivan J.A., in reliance on his interpretation of Barrow, supra, concluded that the trial judge was indeed in error in rejecting the requested challenge in this case and would have ordered a new trial.

Issues

While the appellant sets out three issues arising from the dissent at the Court of Appeal, they all have at their core the proper interpretation and application of the challenge for cause provisions of the Criminal Code. Therefore, as I mentioned at the outset, this is the sole issue that will be addressed in these reasons.

Analysis

The Criminal Code Procedure Regarding the Empanelling of a Jury

In order to place the issue raised by this case within its proper context, I will examine the Criminal Code provisions governing the empanelling of juries. Prior, however, to this discussion I will briefly describe the role of provincial legislation in the area of jury selection.

Jury selection has both federal and provincial aspects. Section 91(27) of the Constitution Act, 1867 gives Parliament jurisdiction over "The Criminal Law" including "the Procedure in Criminal Matters." Section 92(14) awards to the provinces jurisdiction over "The Administration of Justice in the Province". "Out-of-court" selection, i.e., selection of those individuals who are able to serve as jurors, is typically governed by the provincial Jury Acts. (For a good summary of provincial legislation in this regard see Schulman and Myers, "Jury Selection", in Studies on the Jury, Law Reform Commission of Canada (1979), at p. 395.) Jurisdictional conflict in this area is avoided through s. 554(1) (now s. 626) of the Criminal Code which provides that the jury panel will be selected from lists drawn up according to the relevant provincial legislation.

The "in-court" selection procedure is a matter falling within the jurisdiction of Parliament and is dealt with at length in the Criminal Code. This Court has previously considered the respective ability of the provinces and Parliament to legislate in this area in R. v. Barrow, supra.

In setting out a summary of the Criminal Code provisions I have gained a large measure of assistance from the work of Salhany, Canadian Criminal Procedure (5th ed.) (See also "The Jury in the Criminal Trial" by Alan Gold in Vincent M. Del Buono, ed., Criminal Procedure in Canada) Immediately after an accused has pleaded to the charge the empanelling of a jury begins. Very simply, if no successful challenge is made to the initial array, the names of the jurors will be drawn at random. As each prospective juror is called, either the accused or the Crown can challenge the juror, either peremptorily or for cause, or the Crown can direct the juror to stand aside. If no successful challenge is made and neither side exercises its ability to reject or stand aside, the juror will be sworn. The form of challenge that we are concerned with here, a challenge to the poll, is a challenge directed against individual jurors. This type of challenge can be either peremptory, without any grounds, or for cause.

Section 562 (now s. 633) of the Criminal Code deals with peremptory challenges by an accused. It provides that an accused has a varying number of peremptory challenges depending upon the nature of the sentence that can be imposed. An accused charged with high treason or first degree murder is allowed twenty peremptory challenges. If the offence charged is not caught by the above category but is one for which imprisonment for a term greater than five years is possible, the accused is allowed 12 peremptory challenges. Any accused not falling within the two previous categories is allowed four peremptory challenges.

The ability of the Crown to challenge peremptorily or, alternatively, stand aside jurors, is found in s. 563(1) (now s. 634(1)) of the Code. While the Crown can only challenge peremptorily four times, it is allowed to stand aside 48 jurors. The ability of the Crown to stand aside jurors is, in some respects, similar to an accused's ability to challenge for cause except that the challenge is postponed until it is determined that a full jury cannot be formed without those asked to stand aside. The right of the Crown to stand aside jurors, though it appears somewhat anomalous in the present legislative scheme, finds its origin in the fact that, at common law, the Crown was given no ability to challenge peremptorily. (The Law Reform Commission of Canada in The Jury in Criminal Trials, Working Paper 27, 1980, recommended the abolition of "stand-asides", to be replaced with peremptory challenges in the same number as is allowed the accused in any given case.)

Section 563(3) (now s. 634(3)) of the Code provides that the accused must determine whether he or she will challenge a juror for cause or otherwise before the Crown can be called upon to make a decision as regards the particular juror.

As far as challenges for cause are concerned, both the accused and the Crown have a theoretically unlimited ability to challenge for cause. Section 567(1) (now s. 638(1)) sets out the exclusive grounds upon which a challenge for cause can be made. Under s. 569 (now s. 640) the trial of the truth of the challenge for cause is heard by the last two jurors sworn. If no jurors have yet been sworn, then two prospective jurors are appointed by the Court to hear and decide the challenge. If these triers decide that the challenge is valid, the juror will not be sworn. If, however, they find that the challenge is groundless, the juror must be sworn unless either side decides to exercise a peremptory challenge or stand aside. The decision of the triers is final and no appeal lies therefrom.

This, in brief, is the larger context within which a challenge for cause can arise. This context and the proper interpretation of the text of the legislation governing the empanelling procedure are important in a resolution of the question before this Court. The bare words of the provisions provide little guidance, however, without an examination of the history and principles underlying them.

The Evolution of the Modern Jury

A brief overview of the evolution of the jury serves to bring into sharp relief the important functions that juries serve. These functions and the principles that inform them play a crucial role in the consideration of the issue presently before this Court.

While the exact origin of the jury, as we now know it, is difficult to trace, it is commonly believed that most early societies possessed some sort of adjudicative structure similar in form and purpose to that which serves our system today. Moore, in a comprehensive examination of the history of the jury, The Jury, Tool of Kings, Palladium of Liberty, records the use of jury-like bodies as early as the time of Solon in the 7th and 6th centuries B.C. The most democratic of these early institutions were the Athenian general assemblies. The forebearer of our modern jury, however, is widely thought to be the Frankish inquisitio whereby local men, with knowledge of the matter in dispute, swore to tell the truth upon a question put to them by the judge. Only matters in which the Crown had an interest were resolved in this fashion. Subsequent English influence moulded this Crown-controlled instrument into what it is today. Moore, supra, summarizes this later history, at p. 14:

The inquisitio of the Franks had its accusatory aspects (which anticipated our modern grand jury) and its civil aspects, which was a mode of proof by inquisition or interrogation. The next step in the evolution of the trial jury was the Anglo-Norman jury of proof. The jurors themselves were the witnesses and they were the mode of proof. . . . The final step in the jury's development was the judgment jury which came into being in England in the fourteenth century. In this last step, the jury, instead of being a mode of proof, chose between the proofs or evidence offered by the parties.

Interestingly, early juries were chosen for their knowledge of the issue whereas, at present, such knowledge and the pre-judgment that may accompany it might very well lead to disqualification. However, as the function of the jury evolved and its domain narrowed, principles not unlike those underlying our challenge procedure evolved. (See Moore, supra, at p. 56; Baker, An Introduction to English Legal History, at pp. 64-66; Schulman and Myers, supra, at p. 423, and Devlin, Trial by Jury, at p. 67).

Moore informs us that much of what constitutes our present procedure in challenging prospective jurors and the grounds upon which such challenges could take place developed in the 16th and 17th centuries in England. Thus, the number of challenges, the types of challenge allocated to each party and the grounds upon which such challenges could be based were formalized early in the modern development of the jury. (See also Schulman and Myers, supra, at pp. 425-28.)

Importantly, the development of the institution known as the jury and the process through which it came to be selected was neither fortuitous nor arbitrary but proceeded upon the strength of a certain vision of the role that that body should play. Most of the early rationales for the use of the jury are as compelling today as they were centuries ago while other, more modern, rationales have developed. The Law Reform Commission of Canada in its 1980 Working Paper, The Jury in Criminal Trials, sets out numerous rationales for the past and continued existence of the jury. The jury, through its collective decision making, is an excellent fact finder; due to its representative character, it acts as the conscience of the community; the jury can act as the final bulwark against oppressive laws or their enforcement; it provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as a whole.

These rationales or functions of the jury continue to inform the development of the jury and our interpretation of legislation governing the selection of individual jurors. The modern jury was not meant to be a tool in the hands of either the Crown or the accused and indoctrinated as such through the challenge procedure, but rather was envisioned as a representative cross-section of society, honestly and fairly chosen. Any other vision may run counter to the very rationales underlying the existence of such a body. As Moore, supra, comments, it is only recently that any real representation of society by juries has been achieved in most Western nations. He describes the American experience in these words at p. 231:

In 1791, a party to a civil or a criminal case was entitled to a 12 member, male, white, unanimous jury.

Increasingly, however, many countries have since repealed property, sex and race qualifications for jurors and have legislated other expansions in the number of citizens eligible for jury duty. (For the English legislative experience see the Morris Committee, Report of the Departmental Committee on Jury Service, Command Paper No. 2627; see also Blake, "The Case for the Jury", in Findlay and Duff, eds., The Jury Under Attack, at p. 142.) These later developments only serve to underscore the previously articulated rationales for the existence of the jury.

The importance of the jury in our system of criminal justice past and present is eloquently described by Blackstone in his Commentaries, Book 4, at p. 1735:

So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate; not only from all open attacks, (which none will be so hardy as to make,) but also from all secret machinations which may sap and undermine it; by introducing new and arbitrary methods of trial, . . . And, however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; . . . [Footnotes omitted.]

Section 11(f) of the Canadian Charter of Rights and Freedoms enshrines the right to trial by jury with these words:

11. Any person charged with an offence has the right

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place. Provincial legislation guarantees representativeness, at least in the initial array. The random selection process, coupled with the sources from which this selection is made, ensures the representativeness of Canadian criminal juries. (See the provincial Jury Acts.) Thus, little if any objection can be made regarding this crucial characteristic of juries. Schulman and Myers, supra, make this clear at p. 408 of their discussion:

Jury qualification requirements in Canadian provinces are considerably different than those in the United States or England. The American Bar Association standards for trial by jury, as recommended by the Advisory Committee on the Criminal Trial, say that -- "The names of those persons who may be called for jury service should be selected at random from sources which will furnish a representative cross-section of the community." Canadian laws by and large have long met the standard. [Footnotes omitted, emphasis added.]

However, the "in-court" selection procedure, set out in the Criminal Code, can impact on the representativeness of the jury in some situations. The impartiality of the jury is controlled in the main through the Criminal Code procedure. Section 11(d) of the Charter further buttresses the requirement of impartiality:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

In order, then, to be meaningful, the application of the Criminal Code provisions must be informed by these larger expressions of principle.

Prior to applying these principles to the case before us, it is necessary to discuss previous Canadian case law. In so doing, owing to the nature of a partiality allegation, the facts of each case will be significant.

Canadian Case Law

The pivotal and most recent decisions in this area are R. v. Hubbert, supra, R. v. Guérin and Pimparé, supra, and R. v. Barrow, supra. I will, therefore, focus on these cases and discuss them at length, given, in particular, the confusion which may exist in their interpretation, as evidenced by the dissent in the Court of Appeal in the present case.

In Hubbert, supra, counsel for the accused wished to challenge each juror for cause alleging that the prospective jurors were not "indifferent". Counsel wanted to ask each prospective juror whether the knowledge that the accused had previously been incarcerated at a hospital for the "criminally insane" would prejudice them towards the accused. In order to explain some of his conduct, the accused needed to make his prior incarceration known during testimony at trial. The trial judge rejected the application for reasons not relevant to our discussion here. Rather, it is the procedure and principles set out by the Court of Appeal that are pertinent, as they form the basis for much of what has been said subsequently by Canadian courts.

The Court of Appeal begins by setting out a number of principles governing trial by jury and factors that need to be balanced when considering challenges for cause. First, every accused person is entitled to an impartial jury. Secondly, a juror must be presumed to perform his/her duties in accordance with the oath sworn. Finally, the trial judge has a "wide discretion" and must be in a position to control the challenge procedure.

In the exercise of such discretion as regards challenges for cause based on pre-trial publicity, the Court states that, except in extreme cases, mere dissemination by the media of the facts of the case is not normally sufficient to ground a challenge for cause.

As far as procedure is concerned, the Court of Appeal discusses a trial judge's ability to "pre-screen" prospective jurors for "obvious partiality". Importantly, it limits this threshold procedure to cases involving noncontroversial situations of partiality. Regarding the proper form of a challenge for cause, the Court holds that counsel must communicate a reason to the trial judge outside of the mere words of s. 567(1)(b) (now s. 638(1)(b)). Without this, it would not be possible for the trial judge to direct the trial of the truth of the challenge. If the reason offered appears "far-fetched", the trial judge can require further elaboration. If the trial judge is satisfied that there is some "foundation" to the challenge, then the trial of the truth proceeds. The questioning of the prospective juror must be relevant. This is another reason why the trial judge must be given an adequate explanation for the challenge outside of the mere words of the section. Questioning in this phase should not become a "fishing expedition".

Based upon its comprehensive discussion, the Court of Appeal dismissed the accused's appeal, holding that what counsel was attempting to do in that case came closer to securing a favourable jury than an impartial one. Further, prospective jurors' reactions to various pieces of evidence that may be elicited at trial are not the proper subject of the challenge for cause procedure. Impartiality is a state of mind to be tested at the time of the swearing in of each juror.

In dismissing the accused's appeal and affirming the reasons of the Court of Appeal, this Court simply stated at p. 267 that:

We agree with the Court of Appeal that the way in which and the grounds on which the trial judge exercised his discretion in respect of the attempt of counsel for the accused to challenge for cause is not open to objection. . . .

We would add that in our opinion the procedure outlined by the Court of Appeal for dealing with challenges for cause provides a useful guide for trial judges called on to deal with such challenges. [Emphasis added.]

This Court's subsequent decision in Barrow, supra, concerned the examination by the trial judge of the jury panel in the absence of the accused and his counsel. The accused argued that this conduct vitiated the subsequent trial. While the issue is not on all fours with the one facing the Court here, there occurs within the majority reasons of Dickson C.J. an important discussion of Hubbert, supra, and the challenge for cause procedure.

In Barrow, supra, the Crown relied on the reasons of the Ontario Court of Appeal in Hubbert, supra, as justification for the conduct of the trial judge. Dickson C.J., writing for the majority, rejected this argument on two grounds. First, the pre-screening procedure set out in Hubbert, supra, is done in the presence of the accused. Second, and more importantly for our purposes, at pp. 709-10:

. . . 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. [citation omitted]. 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.

Within his discussion of the Nova Scotia Juries Act, S.N.S. 1969, c. 12, applicable in that case, and the respective competence of the provinces and Parliament to legislate in this area, Dickson C.J. makes a number of strong statements regarding challenges for cause on the ground of "non-indifference". At p. 714 he states that the trier of partiality is not the judge but two potential or previously selected jurors. Further:

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. . . . The judge's role is to supervise trials of partiality, not to decide them.

According to the majority, error of this kind in the selection process is so severe that the only remedy is a new trial.

The Ontario Court of Appeal had a recent notable occasion, subsequent to Hubbert, supra, to consider the proper use of the challenge for cause procedure, namely in R. v. Zundel (No. 1) (1987), 1987 CanLII 121 (ON CA), 31 C.C.C. (3d) 97 (leave to appeal to this Court refused [1987] 1 S.C.R. xii). The facts of this case being so notorious, I will not summarize them here. Suffice it to say that counsel for the accused wished to challenge each prospective juror for cause based upon the massive pre-trial publicity. Instead of allowing the challenge for cause to proceed the trial judge asked the jury array, among other things, whether they had formed a preliminary opinion as to the guilt or innocence of the accused and asked them to disqualify themselves on this basis.

The Court of Appeal held that the real question, in a case involving pre-trial publicity, was whether it "could potentially have the effect of destroying the prospective juror's indifference between the Crown and the accused." The Court noted that much of the trial judge's reluctance to allow the questioning of jurors stemmed from the fact that the questions, in large measure, went to the religious and political beliefs of the jurors. However, instead of rejecting the challenge, the trial judge, according to the Court, should have required counsel for the accused to reword the questions. The Court of Appeal concluded in this fashion, at pp. 134-35:

There is a denial of a fundamental right to a fair and proper trial where the accused is not allowed to challenge any number of jurors for cause, when the grounds of challenge are properly specified. . . . [C]ounsel was entitled to determine whether any potential juror was, by reason of the pretrial publicity and the notoriety of the appellant, sufficiently impartial. . . .

A trial judge cannot, in the exercise of a discretion which he undoubtedly possesses in the area of admitting grounds of challenge for cause and settling the questions, effectively curtail the statutory right to challenge for cause.

The warning later given by the trial judge, requesting that individual members of the panel disqualify themselves under certain circumstances, was insufficient to correct the erroneous denial of the statutory right of challenge for cause. The issue of impartiality or indifference is one that Parliament has entrusted to the two triers, not to the conscience of the individual prospective juror.

The last case I will discuss at any length is that of Guérin and Pimparé, supra, a case that received favourable mention by this Court in Barrow, supra. The two accused in the case had allegedly committed a double murder that was the subject of massive media speculation and community outrage. Bisson J.A., now Chief Justice, noted that "this tragedy horrified the Montreal community, and that, in large measure, the events, which were widely publicized by the media, were . . . still fresh in the minds of a good number of the citizens" (at p. 241). The trial judge refused the application of counsel to challenge each prospective juror for cause on the basis of the pre-trial publicity. Instead, the trial judge, in essence, took over the procedure and asked each juror questions suggested by counsel. The trial judge then decided whether the individual juror was or was not impartial.

All three members of the Court of Appeal delivered reasons. In discussing the Hubbert, supra, pre-screening procedure, Bisson J.A. commented that such a procedure cannot entail the judicial takeover of a process granted to two triers under the Criminal Code. Further, the words used in Hubbert, supra, regarding pre-screening by the trial judge, indicate that such a procedure is only appropriate for "obvious" cases of partiality. This power in the trial judge does not extend his/her ability to decide questions of partiality. If the challenge for cause is baseless, the trial judge can reject it. Bisson J.A. further stated, at p. 246:

Certainly, the practice whereby the judge may ask the prospective juror several preliminary questions is commendable. However, it must not systematically remove all possibility of challenge for cause. [Emphasis added.]

He allowed the appeal on the basis that there was a "fundamental defect in the constitution of the tribunal which must judge the crimes charged. ... "

Jacques J.A. agreed with Bisson J.A. but added some of his own thoughts regarding the "Hubbert" pre-screening procedure. He made the point that this procedure arose to meet obvious cases of partiality and thus must be viewed as being based upon the "tacit consent" of both parties.

Rothman J.A., in short concurring reasons, also held that the trial judge had erred by screening the jurors himself and by apparently denying any further challenge on the basis of the massive pre-trial publicity.

In rationalizing these various judicial expressions, it is necessary to reflect on what was in fact said by the Ontario Court of Appeal in Hubbert, supra. While certain broad statements in that case may warrant comment, the Court's discussion of the pre-screening procedure and the proper course for a trial judge to follow in an application for a challenge for cause due to alleged partiality, in the main, cannot be challenged. Generally, the Court correctly states the law as it is understood in this country when dealing with an application for a challenge for cause based upon partiality. Certain comments may, however, be appropriate in light of the coming into force of the Charter. While it is no doubt true that trial judges have a wide discretion in these matters and that jurors will usually behave in accordance with their oaths, these two principles cannot supercede the right of every accused person to a fair trial, which necessarily includes the empanelling of an impartial jury. (See The Law Reform Commission of Canada, The Jury in Criminal Trials, Working Paper 27, 1980.)

This, however, does not mean that an accused has the right to a favourable jury nor that the selection procedure can be used to thwart the representativeness that is essential to the proper functioning of a jury. While it may be, in some instances, that the peremptory challenges allocated to the accused and the Crown, and the Crown's additional right to stand aside, will be used by the parties to alter somewhat the degree to which the jury represents the community, peremptory challenges are justified on a number of grounds. The accused may, for example, not have sufficient information to challenge for cause a member of the panel he/she feels should be excluded. Peremptory challenges can also, in certain circumstances, produce a more representative jury depending upon both the nature of the community and the accused. Challenges of this nature also serve to heighten an accused's perception that he/she has had the benefit of a fairly selected tribunal.

As to challenges for cause, they are properly used to rid the jury of prospective members who are not indifferent or who otherwise fall within s. 567 (now s. 638), of the Code, but they stray into illegitimacy if used merely, without more, to over- or under-represent a certain class in society or as a "fishing expedition" in order to obtain personal information about the juror. As previously mentioned, information obtained on an ultimately unsuccessful challenge for cause may, however, lead the challenger to exercise the right to challenge peremptorily or to stand aside the particular juror. If the challenge process is used in a principled fashion, according to its underlying rationales, possible inconvenience to potential jurors or the possibility of slightly lengthening trials is not too great a price for society to pay in ensuring that accused persons in this country have, and appear to have, a fair trial before an impartial tribunal, in this case, the jury.

This being said, some words of caution are in order as to the nature of the pre-screening that can be legitimately engaged in by trial judges. If one harkens back to the actual words used by the Court of Appeal in Hubbert, supra, it becomes clear, in my opinion, that the procedure envisioned is inoffensive and falls outside of the warnings delivered in Barrow, supra, and Guérin and Pimparé, supra, as evidenced by the following, 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?

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. . . . We think the practice of excusing jurors of obvious partiality is a desirable one in all cases. [Emphasis added.]

I agree. And, as pointed out by the Ontario Court of Appeal, if the trial judge does not excuse a juror at this stage, that juror is still subject to challenge or to a direction to stand aside. Nothing said by the Court of Appeal relates to cases of disputed partiality. The initial procedure outlined by the Court of Appeal goes only to such clear-cut cases of partiality that, as said in Guérin and Pimparé, supra, and Barrow, supra, the consent of counsel is and can be presumed. Once out of obvious situations of non-indifference, as in Guérin and Pimparé, supra, and Barrow, supra, the procedure takes on a different colour: consent can no longer be presumed and the procedure must conform to that which is set out in the Criminal Code. There is absolutely no room for a trial judge to increase further his/her powers and take over the challenge process by deciding controversial questions of partiality. If there exist legitimate grounds for a challenge for cause, outside of the obvious cases addressed by the Hubbert, supra, procedure, it must proceed in accordance with the Code provisions --the threshold pre-screening mechanism is a poor, and more importantly, an illegal substitute in disputed areas of partiality. (See Vidmar and Melnitzer, "Juror Prejudice: An Empirical Study of a Challenge for Cause" (1984), 22 Osgoode Hall L.J. 487.) After this initial, narrowly drawn procedure is complete, the process as set out in the Criminal Code must be adhered to. I will refer again to the clear words of Dickson C.J. in Barrow, supra, at p. 714, which, though addressing a somewhat different question, are apposite here:

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. . . . 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. . . . [A]ny judge who attempts to participate in such decisions usurps the function of the jurors. . . .

Perhaps more pertinent to the issue here is the question of what degree of pre-trial publicity or, more generally, non-indifference, is necessary to lead to the right to challenge for cause and thus have the trial of the issue proceed before the "mini-jury". The example of pre-trial publicity arises on the facts of this case and the existence of publicity prior to trial would appear to be the most frequent cause for a challenge based upon non-indifference.

A number of factors need to be addressed in answering this question. To begin with, s. 567 (now s. 638) of the Criminal Code places little, if any, burden on the challenger. On the other hand, a reasonable degree of control must be retained by the trial judge and, thus, some burden placed upon the challenger to ensure that the selection of the jury occurs in a manner that is in accordance with the principles I have previously articulated and also to ensure that sufficient information is imparted to the trial judge such that the trial of the truth of the challenge is contained within permissible bounds. Thus, while there must be an "air of reality" to the application, it need not be an "extreme" case, as were, for example, the cases of Zundel, supra, and Guérin and Pimparé, supra. The Ontario Court of Appeal in Zundel, supra, provided a useful guide in this regard, at p. 132:

The real question is whether the particular publicity and notoriety of the accused could potentially have the effect of destroying the prospective juror's indifference between the Crown and the accused.

Postulating rigid guidelines is obviously an impossible task. Lawton J. in R. v. Kray (1969), 53 Cr. App. R. 412, draws a valuable distinction, in pre-trial publicity cases, between mere publication of the facts of a case and situations where the media misrepresents the evidence, dredges up and widely publicizes discreditable incidents from an accused's past or engages in speculation as to the accused's guilt or innocence. It may well be that the pre-trial publicity or other ground of alleged partiality will, in itself, provide sufficient reasons for a challenge for cause. The threshold question is not whether the ground of alleged partiality will create such partiality in a juror, but rather whether it could create that partiality which would prevent a juror from being indifferent as to the result. In the end, there must exist a realistic potential for the existence of partiality, on a ground sufficiently articulated in the application, before the challenger should be allowed to proceed.

Application to the Facts of the Case

Applying these principles to the facts of this case, given the whole of the circumstances, the procedure followed by the trial judge was correct. It is unfortunate, however, in my view, that the trial judge used the word "extraordinary" to describe the challenge for cause procedure. As I have hopefully made clear throughout these reasons, the right to challenge for cause is an important one designed to ensure a fair trial. It is of great assistance in the selection of a jury that can properly fulfill those duties accorded it. Further, the ability to challenge for cause rests upon a showing by the challenger of a realistic potential for partiality. The process is neither "extraordinary" nor "exceptional".

Notwithstanding his seeming misapprehension of the nature of the process, the trial judge was correct, in my view, in deciding that there was nothing before him in the present instance that satisfied the requirement set out above. The pre-trial publicity did not satisfy the query, "whether the particular publicity and notoriety of the accused could potentially have the effect of destroying the prospective juror's indifference." Based on the information given to the judge, there was no realistic potential for the existence of partiality on the basis of pre-trial publicity. The trial occurred a substantial period of time after the publicity in question and, more importantly, it appears that the media reports were concerned more with the search and subsequent discovery of the remains of the victim and the victim's reputation than with the accused or subsequent proceedings against him. As Huband J.A. said at p. 149, the pre-trial publicity here "was not of the type to occasion partiality towards an accused". In addition, Jewers J. did not close off the challenge procedure at this point but rather invited continued challenges based on more appropriate information. Such information was not forthcoming despite the representation by accused's counsel that he had material to substantiate his allegations.

Having so concluded, I am nonetheless of the view that the majority of the Court of Appeal interpreted Hubbert, supra, too broadly. I refer particularly to the comments of Huband J.A., at p. 150, regarding the pre-screening of prospective jurors for partiality undertaken by the trial judge. This initial process, in my view, only applies, as is evidenced by the words used in Hubbert, supra, to consensual, uncontested matters of partiality and not where the challenge for cause is grounded on some pertinent allegation as in Barrow, supra, and Guérin and Pimparé, supra.

Disposition

As the challenge for cause on the basis of the pre-trial publicity was groundless in this case, I agree in the result with the majority of the Court of Appeal and I would therefore dismiss the appeal.

//Stevenson J.//

The following are the reasons delivered by

Stevenson J. -- I have had the advantage of reading the opinion of my colleague Justice L'Heureux-Dubé and agree with her disposition of the appeal and her reasons for disposing of the point raised in the dissent which gave rise to the appeal.

I prefer, however, to restrict my concurrence to that point lest I be thought to be passing upon the discussion of the collateral questions, notably that of the "representative" nature of the jury.

The issue in the appeal is the propriety of the response of the trial judge to a request by the defence counsel that he be permitted to put some 11 questions to each juror by way of a challenge for cause. The dissenting judge, (1989), 1989 CanLII 7339 (MB CA), 58 Man. R. (2d) 145, described the main ground of appeal at p. 151, as being "that the trial judge usurped the function of triers of facts in dealing with challenges for cause." In the course of his reasons he cast some doubt upon the authority of R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279.

I pause to note that, had the trial judge purported to decide the question of whether a challenge was proven as distinct from the question of whether it might be made, "usurpation" would be a proper characterization.

Hubbert, has been frequently cited and applied, and, in my view, its authority remains undiminished. Two propositions may be drawn from it. Firstly, some concerns about partiality may be addressed by procedures short of a challenge for cause. The trial judge's putting general questions to the panel is one example. Secondly, where counsel seeks to invoke the right to challenge each juror the trial judge is to be satisfied there is some foundation to the challenge.

This appeal involves the second proposition and I agree with L'Heureux-Dubé J. that in this case the challenge for cause on the basis of pre-trial publicity was groundless. I add that defence counsel at trial expressed the view that the questioning "would give me some rational basis for exercising the peremptory challenge". The latter is not a permissible ground for challenging for cause.

I would, therefore, dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Walsh, Micay and Co., Winnipeg.

Solicitor for the respondent: The Department of the Attorney General, Winnipeg.