CITATION: R. v. Millard and Smich, 2015 ONSC 6582
COURT FILE NO.: 14-4348
DATE: 2015/10/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
DELLEN MILLARD Applicant
– and –
MARK SMICH Respondent
B. Moodie, on behalf of the Crown
R. Pillay on behalf of the Applicant, D. Millard T. Dungey and J. Trehearne, on behalf of the Respondent, M. Smich
HEARD: October 22, 2015
A. J. Goodman J.:
RULING WITH RESPECT TO THE APPLICATION TO EXCLUDE SWORN AND UNSWORN JURORS DURING THE ROTATING TRIERS PROCESS
THIS RULING IS SUBJECT TO A BAN ON PUBLICATION PURSUANT TO S. 648(1) OF THE CRIMINAL CODE AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL THE JURY IS SEQUESTERED OR A FURTHER ORDER OF THIS COURT ALLOWS
[1] This is an application by the defence and supported by Crown counsel with regards to the exclusion of prospective unsworn and sworn jurors from the courtroom during the ‘rotating triers’ selection process.
[2] In my endorsement of October 22, 2015, I advised counsel that I was disinclined to have sworn jurors excluded from the courtroom if counsel opted for the “rotating trier” process. I also indicated that while I support the spirit and intent of counsels’ request, it was my view that my jurisdiction to make such an order fails in the face of specific statutory provisions enacted in 2008.
[3] As my endorsement reflected the overall consensus reached by counsel with respect to a myriad of rulings regarding the jury selection process, I did not make a formal ruling per se.
[4] After hearing counsels’ submission, I have had an opportunity to revisit my consideration of this matter. This is my ruling with respect to this issue.
Legal Principles:
[5] The relevant provisions for the challenges for cause procedures are found under s. 640 of the Code, which provides:
Objection that name not on panel
640.(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 as the judge thinks fit to receive.
Other grounds
(2) If the ground of a challenge is one that is not mentioned in subsection (1) and no order has been made under subsection (2.1), the two jurors who were last sworn - or, if no jurors have been sworn, two persons present who are appointed by the court for the purpose - shall be sworn to determine whether the ground of challenge is true.
Challenge for cause
(2.1) If the challenge is for cause and if the ground of the challenge is one that is not mentioned in subsection (1), on the application of the accused, the court may order the exclusion of all jurors - sworn and unsworn - from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors.
Exclusion order
(2.1) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until twelve jurors and any alternate jurors are sworn. [Emphasis added.]
[6] Under s. 640 of the Code, the traditional method of deciding challenges for cause based on alleged partiality, was with "rotating triers". As each juror is chosen and sworn, that juror takes on a role in trying the issue of whether the next potential juror is impartial: R. v. Brown (2002), 2002 CanLII 41937 (ON CA), 166 C.C.C. (3d) 570 at paras. 17-19 (Ont C.A.); R. v. Vincent (2007), 2007 ONCA 546, 87 W.C.B. (2d) 761 at paras. 19 and 26 (Ont. C.A.).
[7] The 2008 amendments to s. 640 included the addition of ss. (2.1) and (2.2). For the first time, the Code provided for the use of “static triers”. On a plain wording of ss. 640(2.1) and (2.2), the use of static triers would only be triggered "on the application of the accused" and would only operate where "the court is of the opinion that such an order [for the exclusion of jurors, sworn and unsworn] is necessary to preserve the impartiality of the jurors.
Analysis:
[8] Neither Mr. Pillay nor Mr. Dungey made an application for static triers pursuant to s. 640(2.1) of the Code.
[9] There is divided authority in Ontario as to whether a common law or inherent discretion to exclude the panel has survived the 2008 amendments.
[10] In R. v. Riley (2009), 2009 CanLII 22571 (ON SC), 247 C.C.C. (3d) 517 (Ont. S.C.), Dambrot J. ruled that there was no longer any common law or inherent power to order exclusion of unsworn or sworn jurors, absent an application under s. 640(2.1). Riley stands for the proposition that an Application to exclude jurors, whether sworn or unsworn, in order to preserve their impartiality, is now covered by the statutory regime found in s. 640(2.1) and s. 640(2.2). Many jurists have followed the decision in Riley, while others have not.
[11] In R. v. Sandham (2009), 2009 CanLII 22574 (ON SC), 248 C.C.C. (3d) 46 (Ont. S.C.), another high profile homicide case, Heeney J. held that the common law or inherent discretion to exclude the panel still remained after the 2008 amendments. He excluded only the panel of prospective jurors and allowed the traditional method of "rotating triers" to be used, while the sworn jurors remained in the court room. It should be noted that there only a request to exclude unsworn jurors during the challenge for cause process.
[12] At para. 50 of the ruling, the learned trial judge stated:
The flaw in [the Crown's] argument is that s. 640(2) is also in mandatory terms. It provides that where no order is made under s. 640(2.1), the challenge procedure "shall" proceed with two rotating triers. It seems to me that it would be a jurisdictional error to fail to do so, since counsel have expressly stated on the record that they are not seeking an order under s. 640(2.1), nor am I about to make one.
[13] Broken down to its core, Heeney J. determined that the traditional method of rotating triers had to be used by virtue of the terms of section 640(2), and that, since no defence application pursuant to section 640(2.1) had been made, he could continue to exercise his inherent jurisdiction to exclude the unsworn jurors from the courtroom. It is clear that a number of other judges have followed the process outlined in Sandham.
[14] In R. v. Jaser, 2014 ONSC 7528, [2014] O.J. No. 6431, Code J. explained his reconciliation of these two lines of approaches at paras. 37 and 38:
In my view, there is a reasoned way to reconcile these two lines of authority. Some of the concern expressed about the decision in Riley, in my view, arises from a failure to appreciate that Dambrot J. s reasons are limited to a case where "juror impartiality" is the basis for the application to exclude jurors (whether sworn or unsworn) from the court room. It is true that there are certain passages in Riley, if read in isolation, that suggest a broader ratio…
In my view, there is nothing in Riley or in the 2008 amendments, that alters or limits the common law discretion of trial judges to manage the jury panel in a way that "allows for effective utilization of courtroom space, expedites the selection process and minimizes the inconvenience and expense to prospective jurors", as Sproat J. put it in White. If these were the only reasons for excluding the panel, s. 640(2.1) would not be engaged at all and there would be no statutory impediment to utilizing "rotating triers" under s. 640(2). What Dambrot J. was dealing with in Riley, and what the 2008 amendments deal with, is protecting the impartiality of the jurors by excluding them during the challenge process…
[15] At para 40 of Jaser, Code J. opined:
If Riley has been read too broadly, it seems to me that Sandham has also been read too broadly. In my view, Sandham does not preserve a common law or inherent discretion to exclude prospective jurors in any case where the defence simply prefers to use "rotating triers" but remains concerned about juror impartiality.
[16] Justice Code’s thorough examination and discussion in Jaser is instructive. In my endorsement rendered on October 22, 2015, I advised counsel that I was persuaded by the reasoning in the decision and had adopted his analysis with respect to the issue of static or rotating triers and how that process meshes with absenting sworn or unsworn jurors from the process. Indeed, there are compelling reasons for such an approach.
[17] On this point, it was my initial view that a Court’s common law jurisdiction to control its process in this area is supplanted by the statutory regime now found in the Criminal Code. There is ample authority to the effect that judges of a Superior Court, have no inherent authority to rely on the common law or modify codified procedures in the face of a statutory regime, even if it is just and expedient to do so as stated by the learned jurist in Jaser at para. 45:
If I am wrong about the effect of the 2008 amendments, and if some residual common law or inherent discretion still exists to exclude only the prospective jurors, in a case where juror impartiality is the issue, I would not exercise such discretion. In my view, it would be an improper exercise of inherent jurisdiction to exclude only the prospective jurors, in order to protect them from tainting. If the risk of tainting exists, as it does in this case, the far greater concern is with tainting the sworn jurors. The inherent jurisdiction of the Court has been described as a residual power "to enable the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner" and in circumstances where "those powers ... are essential to the administration of justice and the maintenance of the rule of law". See also: R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78 at para. 24 per Binnie J.
[18] I had also indicated that I found favour with the analysis provided by Dambrot J. in Riley, at para. 11, as set out in Jaser at para. [38]]:
The rationale for the change [to s. 640] is evident. It ensures that no juror, sworn or unsworn, can be tainted by any answer given to the questions asked on the challenge for cause by any other juror, or, in the case of unsworn prospective jurors, be schooled in the consequences of answering the questions in a particular manner. Of particular note, if previously sworn jurors decided the challenge for cause, as had to be the case under the old regime, then they could not be excluded while serving as triers, and could be tainted by the answers they heard. This cannot happen under the new regime.
[19] In my endorsement, I was disinclined to make a common law order to have sworn jurors excused from the selection process. I stated that, in my opinion, such authority is displaced by a full and effective statutory scheme specifically addressing this issue and providing a remedy pursuant to s. 640(2.1).
[20] As mentioned, all counsel are keenly aware of the high degree of publicity in this case. Defence and Crown counsel have expressed their concerted views on this issue. To the extent that we can do so, all parties agree that steps be undertaken to minimize the risk that potential jurors are not tainted by others who may provide a strong view during the selection process in order to ensure a full, fair and impartial challenge for cause process. As mentioned in my endorsement, the use of static triers tends to avoid the risk that a prospective juror might make a comment during the challenge for cause process which could taint both sworn and prospective jurors. Prospective jurors might offer personal knowledge concerning the accused in responding to publicity or partiality based challenge. Static triers are in essence a prudent solution to avoid the risk of having to declare a mistrial or issue corrective instructions. If all prospective and sworn jurors, other than the prospective juror being challenged, are excluded they cannot to be tainted.
[21] That being said, it falls to the defence to make an application for static triers per s. 640 (2.1) of the Code.
[22] As stated, after the issuance of my endorsement, defence and Crown counsel requested that they provide further submissions on this issue. In advancing their position, defence counsel clearly acknowledge and accept that there may be potential prejudice arising from an improper utterance from a prospective juror as a possibility while the sworn juror is acting as a trier for the challenge. Nonetheless, counsel advise that they are disinclined to apply under s. 640 (2.1) for static triers and seek a challenge for cause procedure whereby both prospective and sworn jurors are excluded from the courtroom.
[23] The Crown has made it abundantly clear that it is not applying for a publicity based challenge pursuant to s. 638 of the Code. However, Mr. Leitch takes no issue with the defence request to exclude prospective jurors in the use of rotating triers and in fact, encourages this Court to adopt such a procedure in this case. To that end, all counsel are in agreement that I ought to reconsider the directions in my endorsement.
[24] Whether jurists follow the Riley line of reasoning or adopt the approach in Sandham, or other cases, it is settled that the rationale for the change to s. 640 of the Code is evident. If requested by the defence under subsection 2.1, its intent is to ensure that no juror, sworn or unsworn, can be tainted by any answer given to the questions asked on the challenge for cause by any other juror, or, in the case of unsworn prospective jurors, be schooled in the consequences of answering the questions in a particular manner.
[25] I must confess some concern with counsel’s request as it pertains to a Superior Court’s inherent jurisdiction in the face of a statutory regime apparently designed to address this concern. That being said, I advised the parties that I am in substantial agreement as to the rationale why counsel wish to exclude sworn and unsworn juror form the process in the interests of obtaining an impartial jury. However, it is trite law that jurisdiction is not merely conferred on a Superior Court by virtue of the consent of the parties.
[26] In R. v. W.V., 2007 ONCA 546, [2007] O.J. No. 3247 (C.A.), Sharpe J.A. had occasion to opine on this issue stated at paras. 21 and 22:
It is also the case that trial judges must be afforded some latitude or discretion where the Criminal Code does not specifically address the issue. For example, in R. v. Brown, 2002 CanLII 41937 (ON C.A.) (2002), 166 C.C.C. (3d) 570, this court held, at paras. 17-19, that it is "preferable" to replace one of the initial triers with the first juror sworn rather than wait to replace both initial triers until two jurors have been sworn. Similarly, in R. v. Gayle, 2001 CanLII 4447 (ON C.A.), (2001), 154 C.C.C. (3d) 221, leave to appeal to S.C.C. refused, reflex (2001), [2001] S.C.C.A. No. 359, 160 O.A.C. 199, this court rejected the contention that the trial judge erred by excusing a potential juror when the two triers could not agree on whether the prospective juror was partial given the permissive language of ss. 632 and s. 640(4).
On the other hand, trial judges have no inherent authority to modify the codified procedure for jury selection even where it may seem expeditious to do so.
[27] One of the rare appellate decisions that touches on this very question of jurisdiction of a Superior Court in addressing s. 640 is found in the B.C. Court of Appeal decision of R . v. Swite, 2011 BCCA 54, [2011] B.C.J. No. 175. In Swite, the Court of Appeal dealt with the trial judge’s interpretation of s.640 of the Code. It should be noted that the focus of the appeal was the trial judge’s erroneous application of the new provisions for static triers when the defence had not made such an application pursuant to s. 640 of the Code.
[28] The British Columbia Court of Appeal held at paras. 36 to 39:
On appeal, the Crown in Vincent admitted that the trial judge failed to follow the procedure set out in s. 640(2), but submitted that the error was merely procedural, causing no prejudice to the accused and that it should be cured under s. 686(1)(b)(iv) of the Code. The Ontario Court of Appeal rejected this submission, set aside the convictions, and ordered a new trial. At para. 19 of the decision, Mr. Justice Sharpe, speaking for the court, stated:
... I agree with the submission that the "shall" language of s. 640(2) makes the provision mandatory and the Criminal Code thus requires that the challenge for cause be conducted according to its terms. The trial judge's failure to follow the statutorily mandated procedure resulted in ten members of the jury being selected by the same two triers who, according to the explicit language of the Criminal Code, were not the individuals who had jurisdiction to make that decision.
In Vincent, the court observed that s. 643(3) of the Code, which "saves" certain errors made in the course of jury selection, had no application to errors made under s. 640. Section 643(3) provides:
Failure to comply with the directions of this section or section 631 [names of jurors on cards], 635 [order of challenges] or 641 [calling jurors who have stood by] does not affect the validity of a proceeding.
Mr. Justice Sharpe, speaking for the court in Vincent, described the function of s. 643(3) as follows, at para. 20:
Certain aspects of the jury selection procedure are directory in nature. Parliament has recognized this in s. 643(3) by describing the procedures outlined in ss. 631, 635, 641 and 643 as being "directions" and stating that the failure to comply with such directions "does not affect the validity of a proceeding." It is significant that Parliament excluded s. 640 from the list of sections covered by this saving provision.
[29] At para. 41, the Court of Appeal in Swite discussed the crucial fair trial interests in the selection of an impartial jury:
Mr. Justice Sharpe went on in Vincent to observe that, although trial judges must be afforded some discretion where the Code does not specifically address an issue, they had no inherent power to modify the codified procedure for jury selection. This point is made at para. 23 of Vincent:
As Dickson C.J. stated in R. v. Barrow (1987), 1987 CanLII 11 (SCC), 38 C.C.C. (3d) 193 at 206 (S.C.C.), "The selection of an impartial jury is crucial to a fair trial." Dickson C.J. observed, at pp. 208-209, that the Criminal Code sets out a "comprehensive scheme" and that trial judges have no authority "to upset the balance of the carefully defined jury selection process." The challenge for cause process may seem "cumbersome, repetitive, and wasteful" to some trial judges, but they must be mindful that looking for ways "to speed it up ... can lead to impermissible corner-cutting": R. v. Douglas (2002), 2002 CanLII 38799 (ON CA), 170 C.C.C. (3d) 126 (Ont. C.A.) at para. 19, per Moldaver J.A. Challenges for cause are vital to ensuring a fair trial by an impartial jury; "The significance of the challenge process to both the appearance of fairness, and fairness itself, must not be underestimated": R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353 at 362 (Ont. C.A.) per Doherty J.A., leave to appeal to S.C.C. refused (1993), [1993] S.C.C.A. No. 481, 87 C.C.C. (3d) vi.
[30] Again, while dealing with the issue of imposing static trier in the face of the statutory regime, the court opined at para 53:
In my view, whether the nature of the error made by the trial judge in this case can be described as "jurisdictional" is not, in itself, determinative of the result. Nor does the description of the error as either one of law or procedure dictate the result, although it does point the court to the appropriate curative provision, whether s. 686(1)(b)(iii) or (iv). The real issue is whether the error, however described, can be cured.
[31] In R. v. White, 2009 CanLII 42049 (ON SC), [2009] O.J. No. 3348, Sproat J. had occasion to address this vexing question and discussed the principles of statutory interpretation in his detailed analysis of the issues found at paras. 21-23:
Sullivan and Driedger on the Construction of Statutes (4th Edition) by Professor Sullivan addresses the subject of "Presumptions About How Legislation is Drafted" and states:
Presumed knowledge of everything. The legislature is presumed to know all that is necessary to produce rational and effective legislation. This presumption is very far-reaching. It credits the legislature with a vast body of knowledge, including knowledge of legislative facts and of adjudicative facts of which judicial notice may be taken as well as anything contained in briefs or reports tabled in the legislature. The legislature is presumed to have a mastery of existing law, both common law and statute law, as well as the case law interpreting statutes. It is also presumed to have knowledge of practical affairs. It understands the nature and functioning of judicial and executive institutions, for example, and is familiar with the problems its legislation is meant to address. In short, the legislature is presumed to know whatever facts are relevant to the conception and operation of its legislation.
While not expressly stated in these terms, the reasoning of Dambrot J. appears to be that Parliament having expressly defined the circumstances in which sworn and prospective jurors shall be excluded has impliedly legislated that sworn and prospective jurors may not be excluded in any other circumstances.
Professor Sullivan discusses the expressio unius exclusio alterius or implied exclusion rule of statutory interpretation as follows:
An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature.
An expectation of express reference can arise in a number of ways. It may arise from the conventions of ordinary language use or from presumptions relating to the way legislation is drafted. It is often grounded in presumptions about the policies or values the legislature is likely to express in its statutes. (at pp. 186-7)
[32] Mr. Pillay raised an interesting argument in that s. 638, the enabling section for the challenge for cause provides that either the Crown or the accused may bring such an application independent of the other party. Yet, if such an application is brought only by the prosecution, the language in s. 640 (2.1) does not permit the use of static triers in those circumstances. While it is an interesting observation, I am not certain that it can be said that there is incongruence between these relevant provisions.
[33] I have considered the case of R. v. Huard, (2009) 2009 CanLII 39058 (ON SC), 247 C.C.C. (3d) 526 (Ont. S.C.) wherein Thomas J. held at para. 25:
Surely a concern of the trial judge about juror impartiality in the challenge for cause procedure is not rendered meaningless by this amendment, and by a lack of defence application. The trial judge has a duty to preserve the section 11(d) rights of any accused, even without a defence request. See R. v. Arbour, [1990] O.J. No. 1353 (C.A.); and, R. v. Travers, 2001 NSCA 71, [2001] N.S.J. No. 154 (C.A.).
[34] Justice Thomas went on to conclude that both sworn and unsworn jurors were to be excluded even absent a defence application under s. 640 (2.1). There is some support for this proposition as it relates to s. 640 (2.1) in White, albeit I note that at the end of the exercise, Sproat J. only excluded prospective jurors from the challenge for cause process and was disinclined to exclude sworn jurors for the reasons mentioned, inter alia at para. 30 of his decision. Courts in Ontario and other jurisdictions have tended to follow along a similar approach with respect to prospective jurors: See R. v. Nelson, [2013] B.C.J. No. 3069, (S.C.) R. v. Duberry, [2013] B.C.J. No. 3011 (S.C.), R. v. Bulatci, [2009] N.W.T.J. No. 85.
[35] However, I arrive at a different conclusion as to the practical utility of having sworn jurors remain in court as described in White and Sandham. I am persuaded that having sworn jurors sit idle through the entire challenge for cause process, that may ensue over days or weeks, and be subjected to the lengthy and somewhat exhausting repetition of questions posed to the panels of prospective jurors is of little value. In my view, this does not advance any issue that the juror must eventually decide and is counterproductive.
[36] All these related sections should, therefore, be read in "their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87.
[37] The record before me does not provide for details and a proper examination of Hansard or other supporting references. That being said, I have reviewed the diverging jurisprudence on this question along with statutory interpretation principles. In my opinion, the need to ensure fairness for all accused in the jury selection process is paramount. I find that the specific language in the relevant 2008 amendments neither remove nor limit this Court's inherent jurisdiction to exclude unsworn and sworn jurors when the accused declines to make an application under s. 640(2.1).
[38] I agree with the opinion offered by the learned jurists in their respective cases of Huard and White. There is no doubt, judges of the Superior Court of Justice hold significant inherent jurisdiction over trial matters and must ensure impartiality over the challenge for cause procedure. Section 640 as with all the challenge sections, attempts to ensure the selection of an independent and impartial jury, as guaranteed by section 11(d) of the Charter. A trial judge’s role is to ensure that all of these laudable principles conform to the fundamental purpose of those sections.
Conclusion
[39] Based on the joint position of all parties, I have reassessed my initial consideration of this matter. It cannot be left unsaid that the reasoning offered by the learned jurists in Riley and Jaser is powerful and persuasive. Indeed, I confess to some lingering trepidation regarding counsel’s request in relation to this jurisdictional question. However, I conclude that the legislative intent with respect to the 2008 amendments was to create a mechanism for static triers and that it did not, expressly or impliedly, intend to limit a trial judge's discretion in relation to the jury selection process when utilizing rotating triers. I therefore adopt the line of reasoning as enunciated by my colleagues in the cases of Huard and White.
[40] Specifically, I find that the accused’s Charter rights and fair trial interests provide substantiation for the exercise of this Court’s discretion in granting the relief sought; and is not ousted by the application of statutory interpretation principles of the overall legislative intent found in Part XX of the Code.
[41] Therefore, the application is granted. The challenge for cause procedure in this trial will utilize rotating triers in a manner directed by section 640(2) of the Criminal Code. All jurors, both sworn and unsworn, shall be excluded from the courtroom during the challenge process.
A.J. Goodman J.
Date: October 28, 2016
CITATION: R. v. Millard and Smich, 2015 ONSC 6582
COURT FILE NO.: 14-4348
DATE: 2015/10/26
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DELLEN MILLARD
and
MARK SMICH
RULING WITH RESPECT TO THE APPLICATION TO EXCLUDE SWORN AND UNSWORN JURORS DURING THE ROTATING TRIERS PROCESS
A. J. GOODMAN, J.
Released: October 28, 2015