ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIM J (P) 697/13
DATE: 2015 11 22
BETWEEN:
HER MAJESTY THE QUEEN
Colin Henderson and
Jacob Sone for the Crown
- and -
JALANI DALEY, JANANTHAN KANAGASIVAM, MAJURATHAN BASKARAN, THIRUMAL KANTHASAMY and SRIMOORTHY PATHMANATHAN
Paul Erskine and Charlena Claxton for Jalani Daley
Stephen Morris for Jananthan Kanagasivam
Andrew Vaughan for Majurathan Baskaran
Peter Zaduk for Thirumal Kanthasamy
Christopher Assie for Srimoorthy Pathmanathan
Pre-trial Motions Heard: September 28-November 20, 2015
JURY ISSUES RULING
FAIRBURN J.
[1] Five accused are before the court facing a 37-count indictment. The counts involve different combinations of accused and include allegations related to theft, possession of property, robbery, kidnapping, firearms and conspiracy. The offences span a time frame from March 13, 2009 to August 28, 2009.
[2] Three jury issues have been raised:
whether two alternate jurors should be appointed pursuant to s. 631(2.1) of the Criminal Code and whether fourteen jurors should be sworn pursuant to s. 631(2.2) of the Criminal Code;
whether to permit a challenge for cause in relation to race-based prejudice and, if so, how the challenge questions should be framed; and
whether the sworn and unsworn jurors should be excluded from the courtroom during jury selection and, if so, whether static or rotating triers should be appointed to determine the challenges.
[3] I provided my oral reasons for the first issue on November 12, 2015. I also provided my decisions with respect to the second and third issues on November 16, 2015. These are my written reasons.
(1) Whether alternate and additional jurors should be selected
[4] The Crown brought an application for two forms of relief: (1) permitting two alternate jurors to be selected pursuant to s. 631(2.1) of the Criminal Code; and (2) to have fourteen jurors sworn pursuant to s. 631(2.2) of the Criminal Code.
[5] As it relates to additional jurors, s. 631(2.2) allows for 13 or 14 jurors to be sworn, instead of 12, where the trial judge considers it “advisable in the interests of justice”. This will be a lengthy jury trial. Pre-trial motions commenced on September 28, 2015. There is one motion left outstanding.
[6] A special jury panel of 1000 people was summonsed for this trial. The panel started arriving on November 12, 2015. At that time the indictment contained 41 counts. There are five accused before the court. It is estimated that the trial will be completed around the end of February, which is over three months from the time of jury selection. The trial will also take place over some winter months that are notorious for illnesses. If this were to occur, it could impact on the ability of a juror to continue to serve.
[7] The Crown anticipates that 80 witnesses will be called. The allegations involve over 11 different incidents, ranging in time from March 13, 2009 to August 28, 2009. Numerous police services were involved in the investigation that covered multiple jurisdictions.
[8] This case has taken a long time to get to trial. The offences occurred over six years ago. It is important to the accused, the public, and the administration of justice that the case see some closure.
[9] Given the length of this matter and the complexities involved in the case, there is a risk that some jurors will have to be excused pursuant to s. 644 of the Criminal Code. Pursuant to s. 644(2), a mistrial will result if the number of jurors falls below ten people.
[10] The decision to invoke s. 631(2.2) should not be taken lightly. The court should have regard to the fact that additional members of the public, as well as their employers, will be inconvenienced by the trial. I have taken this significant consideration into account.
[11] I have also taken into account the fact that most of the counsel wish to have a 14 member jury empanelled. The exceptions are counsel for Mr. Kanthasamy and Mr. Pathmanathan. The concern expressed relates to the inconvenience caused to the additional members of the public. As above, I have taken this into account.
[12] Notwithstanding this concern, I find that it is advisable in the interests of justice to appoint two additional jurors. The implications that would flow from a mistrial, should the jury drop below 10 people, are too great and outweigh the inconvenience that will be imposed on two additional members of the public.
[13] The Crown’s application is granted. This will be a 14 member jury. Pursuant to s. 634(2.01) of the Criminal Code, each of the accused will have two additional peremptory challenges to account for the additional jurors, making for 14 peremptory challenges each.
[14] There will also be two alternate jurors picked pursuant to s. 631(2.1) of the Criminal Code. This means that the accused will have two additional peremptory challenges above the 14. These additional challenges for alternate jurors are provided for under s. 634(2.1) of the Criminal Code. This means that each accused will have 16 peremptory challenges. Applying this provision, the defence will have a total of 80 peremptory challenges. Pursuant to s. 634(4)(b) of the Criminal Code, the Crown will have the equivalent number of peremptory challenges to all of the accused combined.
[15] If all jurors are present at the commencement of evidence, the alternates will be dismissed. If the whole jury of 14 remain when the jury is ready to deliberate, pursuant s. 652.1(2), two jurors will be discharged and released before the jury retires to consider the verdicts.
- whether to permit a challenge for cause in relation to race-based prejudice and, if so, how the challenge questions should be framed
[16] Each accused has advanced the position that they should be permitted a race-based challenge for cause pursuant to s. 638(1)(b) of the Criminal Code. They rely upon R. v. Parks (1993), 84 C.C.C. (3d) (Ont. C.A.), leave to appeal to SCC ref’d, 87 C.C.C. (3d) 61 [Parks]. Four of the accused wish to be described as being from Sri Lanka and part of the Tamil ethnic group. Mr. Daley wishes to be described as a black man.
[17] Each accused belongs to a racial minority group. They have a constitutional right to a trial by jury and a fair trial pursuant to ss. 7, 11(d) and 11(f) of the Charter. Section 638(1)(b) of the Criminal Code grants the accused the statutory right to challenge any prospective juror for cause based on partiality. Judicial notice should be taken of the history of discrimination against visible minorities: R. v. Koh (1998), 1998 6117 (ON CA), 116, O.A.C. 244, at para. 30. The request to permit a race-based challenge is granted.
[18] Where the Crown and accused part company is with respect to how the challenge questions should be framed.
[19] Mr. Zaduk, on behalf of Mr. Kanthasamy, and Mr. Sone, on behalf of the Crown, helpfully put together proposed challenge for cause questions. All accused agreed with Mr. Zaduk’s position on the challenge for cause.
[20] In the end, after all submissions were in, the parties were close in terms of what they proposed be asked on the challenge for cause. The Crown proposed the following:
Four of the men on trial are originally from Sri Lanka and are from the Tamil ethnic group. They are Mr. Kanagasivam, Mr. Baskaran, Mr. Kanthasamy, and Mr. Pathmanathan.
The fifth accused man, Mr. Daley, is a black man.
As … Her Honour … will tell you, in deciding whether or not the prosecution has proven the charge against an accused a juror must judge the evidence of the witnesses fairly, that is without bias, prejudice, or partiality.
Would your ability to judge the evidence in this case fairly be affected by the fact that some of the persons charged are Tamils, originally from Sri Lanka?
Would your ability to judge the evidence in this case fairly be affected by the fact that one of the persons charged is a black man?
[21] Mr. Zaduk suggested that the comment about “bias, prejudice, or partiality” was unnecessary. As for the question, and having regard to the Crown’s submissions, Mr. Zaduk proposed the following:
Would your ability to give the accused a fair and impartial trial be affected by the fact that they are Tamils from Sri Lanka?
[22] While Mr. Zaduk acknowledges that these questions are different than the Parks formulation, he says that there is no fixed rule that the challenge question must follow Parks. Mr. Zaduk suggests that the Parks question can be quite confusing to potential jurors. He has been involved in trials where the type of question he proposes has been used successfully and with less confusion visited upon potential jurors.
[23] I agree that there is no magic to the Parks formulation of the challenge questions. It is perhaps helpful to remember that in Parks, the court did not create the challenge question. What has become colloquially referred to as the Parks question actually reflects the question that had been proposed by trial counsel in the court below. It is as follows:
As the judge will tell you, in deciding whether or not the prosecution has proven the charge against an accused a juror must judge the evidence of the witnesses without bias, prejudice or partiality:
Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is a black Jamaican immigrant and the deceased is a white man?
[24] While this question framed the discussion on appeal, it was never proposed by the court as the only appropriate manner in which to proceed on a race-based challenge for cause. As such, there is no need for slavish adherence to the precise question posed in Parks. With that said, it is important to acknowledge that the question has withstood the test of time and, with some variations, continues in wide use today: R. v. Johnson, 2010 ONSC 5190, at paras. 15-16 [Johnson].
[25] Determining how the challenge questions should be framed falls within the supervisory jurisdiction of the court. The key to structuring the question is to ensure that the challenge “remains within the bounds of a legitimate inquiry into the impartiality of potential jurors”: Parks, at paras. 29-30. Regardless of how the question is framed, it must capture the essence of the concern that justifies the challenge for cause under s. 638(1)(b).
[26] The core concern for race-based challenges is not whether an individual has certain beliefs, opinions or biases. However repugnant racist beliefs, opinions or biases may be to right minded Canadians, the core concern on a race-based challenge is whether those beliefs, opinions or biases “would prevent the juror from being indifferent as to the result”: R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509, at pp. 535-36; Parks, at para. 31. Beliefs, opinions or biases that can be set aside when a person assumes the role of a juror cannot support a claim of partiality.
[27] The challenge question must connect the concern at issue – race-based beliefs, opinions or biases – to whether the juror can fulfill his or her duties as a juror. For the juror to accurately answer whether her duties will be impacted by beliefs, opinions or biases, the juror must be provided with insight into what those duties will be. The juror’s duty is to render a verdict “based only on the evidence and application of the law as provided by the trial judge”: Parks, at para. 36. Jurors are told this at the beginning and end of trial: e.g., Watt, David, Watt’s Manual of Criminal Jury Instruction, 2nd ed., Toronto: Carswell, at pp. 42, 231. Sometimes jurors are reminded of this duty throughout the trial.
[28] There are innumerable ways that a challenge question can be drafted so as to achieve the goal of focussing the juror’s attention on whether her ability to perform her duties as a juror – a duty to judge the evidence – will be impacted by her beliefs, opinions or biases. I agree with Mr. Zaduk that the full Parks question need not be put. There is no need to repeat the phrase, “bias, prejudice and partiality”. I agree that it can be cumbersome and the redundancy is simply unnecessary: see Johnson, at paras. 15-16. At the same time, the words capture the essence of the core concern in a race-based challenge. I find that it is a simple, all-encompassing way in which to focus jurors’ minds on the issue of concern.
[29] While there are innumerable ways in which a challenge question can be put, I have arrived at the following formulation which attempts to strike a balance between the defence and Crown positions, focus the potential juror’s attention on race-based concerns, and how they might intersect with the juror’s duty to be a judge of the facts. The challenge questions shall read:
Four of the men on trial are originally from Sri Lanka and are from the Tamil ethnic group. They are Mr. Kanagasivam, Mr. Baskaran, Mr. Kanthasamy, and Mr. Pathmanathan.
The fifth accused man, Mr. Daley, is a black man.
As Her Honour will tell you, in deciding whether or not the prosecution has proven the charge against an accused, a juror must judge the evidence of the witnesses fairly, that is without bias, prejudice, or partiality.
Would your ability to judge the evidence fairly, be affected by the fact that some of the people charged are Tamils, originally from Sri Lanka?
Would your ability to judge the evidence fairly, be affected by the fact that one of the people charged is a black man?
- whether the sworn and unsworn jurors should be excluded from the courtroom during jury selection and, if so, whether static or rotating triers should be appointed to determine the challenges
[30] This issue was a moving target in the days approaching jury selection. When it was first raised, all defence counsel expressed the view that they wanted both the prospective and sworn jurors to be out of the courtroom for the jury selection process. The Crown agreed. Mr. Zaduk expressed the view, based on the fact that both sworn and unsworn jurors would be excluded from the courtroom, that the static trier process must be used. Initially, all defence counsel agreed. The Crown initially took no position.
[31] Mr. Zaduk requested that the static triers be selected in accordance with the process used in R. v. Jaser, 2014 ONSC 7528 [Jaser]. He asked that the static triers be selected by the court and then a mini-inquiry take place to determine their suitability as triers. All defence counsel agreed with this original submission.
[32] While this issue was outstanding and awaiting more submissions, the Court of Appeal for Ontario helpfully released its judgment in R. v. Noureddine, 2015 ONCA 770 [Noureddine]. Noureddine was a murder trial that proceeded in 2010. The accused were acquitted of first degree murder and convicted of second degree murder. They appealed. A new trial was ordered on the charge of second degree murder.
[33] One of the grounds of appeal related to the procedure used in jury selection. There was a Parks race-based challenge. One of the accused had asked for the prospective jurors to be excluded from the courtroom. She did not request that the sworn jurors be excluded. She specifically requested rotating triers. The other accused also asked for rotating triers.
[34] Despite the positions taken by counsel, a static trier process was imposed on the basis of what was said to be the court’s inherent jurisdiction. The Court of Appeal concluded that there is no inherent jurisdiction in the court to impose static triers.
[35] Sections 640(2), (2.1) and (2.2) of the Criminal Code govern the use of rotating and static triers. Section 640(2) requires that rotating triers be used except in two situations: (1) pursuant to s. 640(1), the name of a juror does not appear on the panel list; or (2) a s. 640(2.1) order has been made. Section 640(2) reads: “If … 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 the challenge is true [emphasis added]”. This is a mandatory, statutory requirement.
[36] In 2008, the Criminal Code was amended by adding ss. 640(2.1) and (2.2). Section 640(2.1) allows an accused to bring an application for the exclusion of “all jurors – sworn and unsworn – from the court room [emphasis added]” while the challenges for cause are being determined. The provision guides the court in its exercise of discretion when these applications for complete exclusion are brought. The application should only be granted where it is “necessary to preserve the impartiality of jurors”.
[37] Where the court grants an application for the exclusion of all prospective and sworn jurors pursuant to s. 640(2.1), then s. 640(2.2) becomes operative. Where the court makes an order under s. 640(2.1), then by operation of s. 640(2.2), static triers must be used. Like rotating triers, static triers are a creature of statute. Section 640(2.2) reads:
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 … the challenge …. Those persons so appointed shall exercise their duties until 12 jurors … are sworn.
[38] As noted in Noureddine, at paras. 36-38, static triers are not an alternative to rotating triers. A decision to use static triers is not discretionary and does not fall within the inherent jurisdiction of the court. The statute requires rotating triers unless all prospective and sworn jurors are excluded from the courtroom pursuant to s. 640(2.1) because it is “necessary to preserve the impartiality of the jurors”. If all sworn jurors are excluded, it automatically precludes a rotating trier process because, pursuant to s. 640(2), rotating triers are sworn jurors. A s. 640(2.1) order may only be made “on the application of the accused”. I have not received any such application.
[39] In the wake of Noureddine, all counsel except for Mr. Zaduk expressed the view that they would like to use rotating triers. Mr. Zaduk maintained his position that he would still like to use static triers, but only if I would conduct a mini-inquiry in selecting the triers. I do not need to decide this latter issue. I have no s. 640(2.1) application before me and, as such, I am reluctant to overtake the demands of s. 640(2) of the Code: Noureddine, paras. 36-38. As well, Mr. Zaduk is alone in his position on the use of static triers. Four of the accused have requested rotating triers. The Crown supports them in this request. Mr. Zaduk is prepared to accept this as an alternative position. I have decided that rotating triers should be used. This accords with s. 640(2).
[40] There remains an ongoing debate in this court about a judge’s inherent power to exclude prospective and sworn jurors during the jury selection process: see Noureddine, at footnote 2 which makes reference to Jaser, at paras. 35-42; R. v. Riley, 2009 22571 (ON SC), [2009] O.J. No. 1851, at para. 18; R. v. Sandham, 2009 22574 (ON SC), [2009] O.J. No. 1853, at paras. 55-56; R. v. White, 2009 42049 (ON SC), [2009] O.J. 3348, at paras. 32-37. In this case, the accused unanimously suggest that there is an inherent jurisdiction in the court to make this order. The Crown says that I should defer to the defence request.
[41] In the circumstances of this case, I am prepared to do so. There are two reasons for this approach. First, there is a concern that the jury panel and jurors may be tainted by something that is said during the challenge process. I agree that this could happen. A special panel of 1000 people was summonsed for this trial. They were informed by correspondence a few months ago that the trial would likely run until the end of February. All possible steps should be taken to ensure that nothing occurs that could compromise the group that has been specially summonsed for jury selection. While there is a risk that if rotating triers are used, two sworn jurors may be exposed to something that would require a curative instruction, two people being exposed is less serious than the whole jury as it grows.
[42] The second reason to exercise my inherent jurisdiction is that the jury panel is too large to accommodate in a single courtroom. Jury selection in this matter will take days. So as not to inconvenience the public more than necessary, they should be broken into groups of twenty and given a schedule, consistent with the random order in which they have been selected, of when to return to the courthouse for the selection process. Ultimately, this allows for a jury selection process that respects jurors’ time, and allows for the effective and efficient use of court resources. This latter concept is of particular concern in a courthouse like Brampton, where court space is precious little and must be carefully used.
[43] As such, all prospective jurors and sworn jurors, except the sworn jurors who act as rotating triers, will be excluded until the jury of fourteen and two alternates have been chosen.
FAIRBURN J
Released: November 22, 2015
COURT FILE NO.: CRIM J (P) 697/13
DATE: 2015 11 22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
- and -
JALANI DALEY, JANANTHAN KANAGASIVAM, MAJURATHAN BASKARAN, THIRUMAL KANTHASAMY and SRIMOORTHY PATHMANATHAN
Defence
Ruling #11
JURY ISSUES
FAIRBURN J
Released: November 22, 2015