ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-483-00
DATE: 20120124

B E T W E E N:

HER MAJESTY THE QUEEN

H. Akin, for the Crown

• and -

Freddy Alan JIMENEZ LEON

E. Brown, for the Defendant

HEARD: January 16, 2012

RULING RE CHALLENGE FOR CAUSE

Wein J.

[ 1 ] In selecting jurors, how should the issue of each juror’s language competency be determined?

[ 2 ] The defence applies to challenge each prospective juror for cause pursuant to section 638(1) (f) of the Criminal Code of Canada . The defence asserts that an accused person is permitted to challenge jurors for cause on the grounds of lack of competency in the language of trial in any case in which he or his counsel wish to do so, regardless of the background of the jury pool in the place of trial. He also argues that, regardless of whether an Order directing the official language of trial has been made under section 530(1) in a timely way as defined in that section, an Order should be granted whenever requested.

[ 3 ] Inherent in this assertion is a concept that the right to challenge jurors for cause based on language is a subset of language rights guaranteed in the Constitution of Canada as opposed to a subset of fair trial rights. In this the defence is mistaken. Absent an Order pursuant to section 530(1), language competency of prospective jurors can properly be ascertained by the trial judge in the vetting process of the panel.

Charter and Legislative Underpinnings of the Argument:

[ 4 ] Section 638 (1) (f) of the Criminal Code reads as follows:

A prosecutor or an accused is entitled to any number of challenges on the ground that:

(f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 to be tried before a judge and jury who speak the official language of

Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be.

[ 5 ] Section 530 of the Criminal Code reads, in part, as follows:

(1) On application by an accused whose language is one of the official languages of Canada, made not later than

( a ) the time of the appearance of the accused at which his trial date is set, if

(i) he is accused of an offence mentioned in section 553 or punishable on summary conviction, or

(ii) the accused is to be tried on an indictment preferred under section 577,

( b ) the time of the accused’s election, if the accused elects under section 536 to be tried by a provincial court judge or under section 536.1 to be tried by a judge without a jury and without having a preliminary inquiry, or

( c ) the time when the accused is ordered to stand trial, if the accused

(i) is charged with an offence listed in section 469,

(ii) has elected to be tried by a court composed of a judge or a judge and jury, or

(iii) is deemed to have elected to be tried by a court composed of a judge and jury,

a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.

Idem

(2) On application by an accused whose language is not one of the official languages of Canada, made not later than whichever of the times referred to in paragraphs (1)( a ) to ( c ) is applicable, a justice of the peace or provincial court judge may grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada in which the accused, in the opinion of the justice or provincial

court judge, can best give testimony or, if the circumstances warrant, who speak both official languages of Canada.

[ 6 ] Section 530 also provides that early notice of this right will be given to the accused:

Accused to be advised of right

(3) The justice of the peace or provincial court judge before whom an accused first appears shall ensure that they are advised of their right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made.

[ 7 ] Section 530 is based on the right to use either of the official languages in our courts. That right is fundamental right in Canada, founded in history, and enshrined in section 19 of the Canadian Charter of Rights and Freedoms .

Purpose of the Legislative Provisions:

[ 8 ] Although the rights are not absolute, and trial judges may make decisions governing the trial process and the official language in which a witness is permitted to give testimony: (See sections 530(5), (6) and sections 530.01, 530.1), the Supreme Court of Canada has given context to the significance of the constitutional right to a trial in the language of choice. In R. v. Beaulac , [1999] 1 S.C.R. 768 the Supreme Court of Canada stated:

23 When s. 530 was promulgated in British Columbia, on January 1, 1990, the scope of the language rights of the accused was not meant to be determined restrictively. The amendments were remedial (see Interpretation Act, R.S.C., 1985, c. I-21, s. 12 ), and meant to form part of the unfinished edifice of fundamental language rights (House of

Commons Debates, vol. XIV, 2nd sess., 33rd Parl., July 7, 1988, at p. 17220). There was nothing new in this regard. In the House of Commons, the Minister of Justice had clearly articulated the purpose of the original language of the provisions when he introduced amendments to the Criminal Code on May 2, 1978, to add Part XIV.1 (An Act to amend the Criminal Code, S.C. 1977-78, c. 36, s. 1). He said:

It seems to me that all persons living in a country which recognizes two official languages must have the right to use and be understood in either of those languages when on trial before courts of criminal jurisdiction. I repeat that a trial before a judge or jury who understand the accused's language should be a fundamental right and not a privilege. The right to be heard in a criminal proceeding by a judge or a judge and jury who speak the accused's own official language, even if it is the minority official language in a given province, surely is a right that is a bare minimum in terms of serving the interests of both justice and Canadian unity. It is essentially a question of fairness that is involved. [Emphasis added.]

(House of Commons Debates, vol. V, 3rd sess., 30th Parl., at p. 5087.)

28 Section 530(1) creates an absolute right of the accused to equal access to designated courts in the official language that he or she considers to be his or her own. The courts called upon to deal with criminal matters are therefore required to be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. In my view, this is a substantive right and not a procedural one that can be interfered with...

[9] Language competency of jurors is also provided for, as part of the rights of an accused person to a fair trial. It is undisputed that capability in the language of trial is an implicit part of juror competency.

[10] Section 638(1)(f) guarantees, in effect, that where a section 530 Order has been made the jurors will also be competent in the language of trial, since after the s. 530 Order will require a trial in the official language that is not the usual language of trial in the jurisdiction or a bilingual trial.

[11] Language competency is assured in all cases through the normal vetting process. In the suggested drafts for jury instruction to a jury panel, the following wording is used by the Ontario Specimen Jury Instructions (2005):

Our law also requires that each juror be able to understand the language that will be used in the trial. In this case, witnesses will testify and others involved in the case will speak in English (French). Documents written in English (French) may be made exhibits.

If you have difficulty understanding English (French) as it is spoken or written, please raise your hand and come to the front of the courtroom.

[12] The draft in the Canadian Judicial Council Model Jury Instructions is worded as follows:

[1] All jurors must be able to read and understand the language that will be used in the trial. In this case, witnesses will testify and others involved in the case will speak in English/French. Documents written in English/French may be made exhibits.

[2] If you have difficulty reading or understanding English/French, please come forward .

Argument and Analysis:

[13] In this case, an Order under section 530(1) was never requested or made. The trial was set to proceed in English. The accused, whose first language is Spanish, has now confirmed through his counsel that he in fact wishes to have a trial in the English language, which co-incidentally is the official language of most trials in this jurisdiction. The trial will proceed in that language:

The specific issue that arose in Beaulac is not before the Court here. Undoubtedly, had the accused requested a trial in the French language, and if it were determined that that was the language in which he could best give testimony, a French language trial could and would have been arranged at any timely stage without difficulty. That is not the issue raised by the defence.

[14] Defence counsel argues that the right to ensure that jurors also understand the language at trial is an important part of the constitutional right to trial in either official language. He disputes that juror competency of language is part of the right to a fair trial. I disagree.

[15] Beaulac , at para. 56 supports this conclusion:

56 Courts must give effect to s. 530 of the Code in light of its remedial character, its substantive nature and its object, which is foremost to assist members of the two official language communities to enjoy equal access to specific services, in specific courts, in their own language. Absent evidence that the accused does not speak the language chosen, an accused is free to make his or her choice of the official language spoken by the judge or judge and jury by whom he or she will be tried, providing his or her application is timely . The exercise of discretion by the judge under s. 530(4) of the Code is based on the additional difficulties caused by an untimely application and the reasons for the delay. Administrative inconvenience is not a relevant factor, nor is the language proficiency of the accused in the official language not chosen by him or her; fairness of the trial is not a language rights issue .

(emphasis added)

[16] In all cases where a jury is chosen to try the facts of the case, the Court is required to vet prospective jurors to ensure language competency, among other things.

[17] In R. v. Bain , [1992] 1 S.C.R. 91 Justice Gonthier, in his dissenting opinion notes:

A further quality of a proper jury… is competence. Jurors should not only be representative and impartial they should also be able to understand the trial, their role in the trial, the evidence that is presented, the principles they have to apply, among other things. This requirement of competence is not mentioned in relevant legislation, aside from general requirements of mental health and linguistic capability, but is implicit. Most trials require the same competence as involved in the daily pursuit of one’s affairs, and the ability to speak and understand one of the official languages will suffice.

[18] In this jurisdiction, vetting for language competency is a standard part of the pre-selection process undertaken by the Court. Jurors are routinely excused by judges considering an application in writing made by a prospective juror prior to the attendance date, or on the attendance date but prior to jury selection. Standard wording as indicated above is generally used, along with detailed questioning if deemed necessary by the presiding judge.

[19] However, a challenge for cause has been proposed on the specific basis of s.638(1) (f) in a number of cases, particularly in Brampton but also in Toronto. All of these cases have been brought on behalf of criminal clients by the same counsel who appears on this case. I am not aware of any other cases on point.

The decision in these cases varies, depending upon factors such as whether or not the application for challenge for cause was in conjunction with an application to bring a “ Parks challenge” based on race, whether or not the Crown was consenting to the application, and particularly whether or not there was a pre-existing Order under s.530(1) or 530(2) of the Criminal Code . In some cases the defence filed a factum and in at least one case, evidence was called to support the contention that the jury pool was largely multi-lingual.

[20] The results in each of the cases are set out in the chart attached at Schedule A, filed by defence counsel of the court's request since he had not filed any of these specific rulings. The chart is based simply on counsel’s recollection of the cases. Eventually, with the assistance of the Crown and additional research by the Court, some of the rulings were made available for the purpose of the argument, and a factum used in an earlier case was provided by the defence.

[21] Available cases from the Ontario Superior Court of Justice concerning section 638(1) (f) are as follows.

[22] In R. v. Nelson and Powell , [2000] O.J. No. 5241 , a case similar to the case at bar in that there was no prior Order under section 530, Justice Garton declined to permit the challenge. She interpreted section 638(1) (f) by using the ordinary meaning rule:

This "plain meaning" reading of the statute is congruous with the purpose of s. 638.(1)(f). The purpose of this section is apparently to allow counsel to challenge jurors in their proficiency in English or French or both languages, where there has been an order of the court under s. 530 that the accused be tried in English, French or both languages. Section 638.(1)(f) grants counsel an opportunity to ensure that the s. 530 order is complied with. Reading s. 638.(1)(f) in the manner proposed by counsel for Ms. Nelson would be contrary to this purpose. It simply does not make sense to read s. 638.(1)(f) out of context with s. 530.

Applying the 'ordinary meaning' rule, I find that counsel can only challenge a juror for cause based on his or her proficiency in an official language where there has been an order made pursuant to s. 530.

[23] Justice Dawson’s ruling in R. v. Richter , (August 4, unreported) 2004 occurred in a case where there was a prior Order under section 530. In refusing to permit the challenge, the Court stated:

… [I]t seems to me that the purpose of section 530(1) and section 530.1, in combination with section 638(1)(f), is to guarantee or ensure that an accused has a right to justice in one or both of the official languages of Canada, anywhere in Canada. The purpose of these sections, acting in harmony, is not to permit an automatic right to challenge for cause where the concern is that a potential juror may have an inadequate grasp of the official language of the trial because their mother tongue, to use the terms used by Statistics Canada, is neither official language.

R. v. Hubbert (1975), 29 C.C.C. (2d) 279 (Ont. C.A.) , affirmed 33 C.C.C. (2d) 207 and R. v. Sherritt (1991), 63 C.C.C. (3d) 193 (S.C.C.,speak of the role of the pre-screening process and of the requirement for an air of reality before a challenge of cause is permitted, although it is clear that the threshold is not particularly high. But these cases and more recent cases such as R. v. Williams (1998), 124 C.C.C. (3d) 257 (S.C.C.) ,and R. v. Find , 2001 SCC 32 , 154 C.C.C. (3d) 97 (S.C.C.) ,in my view, hold that there must be some showing of a basis for the challenge so that the process is fair to prospective jurors and does not unnecessarily lengthen the trial. (at p.5-9)

The Crown did not consent to the challenge in Richter . The defence relied on charts from Statistics Canada. The charts did not indicate the number of persons who do not consider themselves proficient in English in the jurisdiction where the

trial was held, Brampton, but were Toronto-based statistics concerning the number of persons whose “mother tongue” was English, French, or “non-official”. Justice Dawson concluded that there was no demonstrated air of reality to the concern that the challenge for cause was needed, and did not permit the challenge.

[24] Justice MacKenzie in R. v. Seevnivasam , [2004] O.J. No. 4888 stated:

I am unable to accede to the proposition that the protection for an accused provided in s.638(1)(f) is of such nature as to be subsumed within the rights created at common law now codified in s.7 of the Charter in advancing the principles of fundamental justice to a constitutional level. In my view, there is no question that the protection afforded with respect to linguistic competency of jurors is essential to the securing of the accused’s right to a fair trial. However, that protection is in aid of the right to a fair trial. The requirement of juror’s linguistic competency is an instrument created in law to advance that principle of fundamental justice which seeks to afford an accused person the right to a fair trial where the accused elects trial by judge and jury.

The question remains whether the accused has succeeded here in establishing the required evidentiary foundation creating an air of reality in order to obtain the relief sought in the challenge for cause based on juror’s competency.

(para. 22-23)

In that case, there was a prior Order under s. 530(1) of the Criminal Code . The Crown contended that there was no evidentiary foundation sufficient to create an air of reality and did not consent to the challenge. Evidence was called by the defence. The evidence was specific to the Region of trial and more extensive than in Richter . On that basis, the challenge was permitted. Justice MacKenzie found:

A significant percentage of prospective jurors in the region served by the judicial centre of Brampton whose mother tongue is not English together with the potential for error in a self-assessment of linguistic competency does create an air of reality for the requested challenge for cause.

[25] In a subsequent ruling in R. v. Martin , (unreported April 20, 2005) there was a pre-existing s. 530 Order and evidence called in support of the questioning under s.638(1) (f). Testimony was given by the supervisor of court operations concerning the pre-screening process. It should be noted that the challenge for cause process was required in any event, as there was a race-based challenge. Justice Seppi found, in following Seevnivasam :

Self-assessment by a potential juror is not a sufficiently reliable measure of linguistic competency. This, coupled with evidence of a significant percentage of prospective jurors in our region whose mother tongue is not English, creates an air of reality for the requested challenge pursuant to section 638(1) (f) in this case. On this ground of challenge, therefore, the first question is allowed.

(at p. 3-4)

[26] In R. v. Yacoob , [2002] O.J. No. 4888 where the Crown was consenting to the challenge, Justice O’Connor changed the proposed wording to suit the particulars of the case, without disputing that the challenge could be brought.

[27] Other rulings referred to in the chart prepared by the defence are simply not readily available.

Result

[28] In this case the request for an Order under section 530(2) of the Criminal Code must be denied. There was no basis upon which to grant the Order, since

the accused was already scheduled to have a trial in English, which he had indicated was the language that he best understood, apart from his native language of Spanish.

[29] Consequently, the prerequisite of a section 530(2) Order had not been met. The defence in this case elected not to call any fresh evidence or rely on the evidence he had called in prior cases. His stated reason was that he wished the argument to proceed on the basis that the right to challenge under section 648(1)(f) was not dependant on the existence of any specific language background of the community from which the jury pool was drawn. He argued that the section ought to apply in any place in Canada.

[30] Even if the prerequisite of an Order under section 530 had been met in this case, I would have found that there was no basis on which to challenge jurors for language competency. There is no particular evidentiary aspect in this case that mandated a particular or extraordinary level of English language proficiency. I agree with the decisions of Justice Garton and Justice Dawson, in holding that, absent extraordinary factors, the vetting process undertaken by the Court, among other factors, ensures language competency and a fair trial.

[31] Therefore, the Application to challenge for cause pursuant to section 638 (1) (f) is denied.

[32] It is true, as referenced in many of the previous cases where evidence was provided, that the Region of Peel is a fast-growing multicultural area of Canada. Many citizens in this area do not speak English as their first language. Many are relatively recent immigrants who are proud of their Canadian citizenship but have not yet achieved fluency in either official language. They often point out this deficiency when they receive their juror summons, or when called forward in the jury selection process. I have not observed that the model draft wording fails to capture language incompetency in prospective jurors. The observations of other judges concerning the reality of this region, that many persons have a language other than English or French as their mother tongue, is not disputed. Depending on the circumstances, some additional wording may potentially be useful in helping prospective jurors understand the basis for this ground of inquiry.

[33] A proposed inclusion, expanding the specimen charge, might be:

English (French) may not be your first language. If you have difficulty understanding English (French) in your daily life, as it is spoken or written, such that you feel you would not be able to take on the obligations of your oath as a juror, please advise the juror deputy if your number is called, so that we can discuss the issue.

Wein J.

Released: January 24, 2012