ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-10000564-0000
DATE: 20151006
BETWEEN:
HER MAJESTY THE QUEEN
– and –
EVERTON BIDDERSINGH
Respondent
Mary Humphrey and Anna R. Tenhouse, for the Crown Applicant/Respondent
Jennifer Penman and Genevieve McInnes, for the Respondent/Applicant
HEARD: October 6, 2015
REASONS ON APPLICATION
(RE EXCLUSION OF PROSPECTIVE JURORS)
A.J. O’Marra j. (orally)
[1] Everton Biddersingh is charged the first degree murder, aggravated assault, and indignity to a dead body involving his 17-year-old daughter, Melonie Biddersingh, in 1994. Further, he is charged in the same indictment with obstruct justice which involves the investigation into the death of his 14-year-old son, Dwayne Biddersingh, in 1992.
[2] The accused has brought an application to challenge for cause prospective jurors as not being indifferent between the Queen and the accused on the basis of racial bias by asking each what has come to be known as a standard Parks question.
[3] Counsel for the accused has requested that the process entail the use of rotating triers and for the court to exercise its common law and inherent discretion to exclude the panel of prospective jurors or unsworn jurors from the courtroom during the process. Ms. Penman, has asserted specifically that the accused is not making an application under s. 640(2.1) of the Criminal Code for the exclusion of all jurors sworn and unsworn.
[4] In R. v. Jaser, 2014 ONSC 7528, [2014] O.J. 6431, Code J. noted that a division of opinion or authorities has developed in Ontario as to whether the inherent discretion of the court to exclude the panel still prevails as a result of the 2008 amendments to the Criminal Code, s. 640(2.1) and (2.2).
[5] Section 640(2.1) states:
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 courtroom 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. [Emphasis added]
[6] Section 640 (2.2) states:
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 for challenge is true. Those persons so appointed shall exercise their duties until 12 jurors, - or 13 or 14 jurors, as the case may be, if the judge makes an order under subsection 631(2.2) - and any alternative jurors are sworn.
[7] In R. v. Riley et al, [2009] 247 CCC (3d) Dambrot J., ruled in a high profile gang-related homicide where a challenge for cause was allowed on the basis of race, pre-trial publicity, and attitudes regarding street gangs, that there was no longer a common law power to exclude jurors when the defence was essentially making an application under s. 640(2.1) to exclude potential jurors. He held as a result, the use of static triers under s. 640(2.2) was mandatory.
[8] However, in R. v. Sandham et al, 2009 22574 (ON SC), [2009] 248 CCC (3d) 46, another high profile gang related homicide trial, Heeney J., held on a similar request, as in this instance that the common law or inherent discretion of the court to exclude the panel still remained. In that case, at the request of counsel, he excluded the panel of prospective jurors and allowed rotating triers to be used while the sworn jurors remained in the courtroom.
[9] Justice Code noted in Jaser that there is a reasoned way to reconcile the apparently divergent approaches taken in Riley and Sandham. In his view, the reasons of Dambrot J. in Riley are limited to cases where juror impartiality is the basis of the application to exclude the jurors, sworn or unsworn, from the courtroom during the challenge for cause process. After citing the rationale in Riley, Code J. observes in Jaser at paragraph 39:
When read properly, the decision in Riley stands for the proposition that an application to exclude jurors, whether sworn or unsworn, in order to preserve their impartiality (emphasis added), is now covered by the statutory regime found in s. 640(2.1) and s. 640(2.2). The legislation expressly states that this is its purpose. Two attorney generals stated in Parliament that this was its purpose and judicial experience with cases like English indicates that the legislation will achieve this purpose.
[10] He noted however, that in R. v. Sandham, Heeney J. stated specifically that the issue of juror impartiality was not the reason advanced for excluding the unsworn jurors.
[11] In Sandham, at paragraphs 52 to 54, Heeney J. states:
[52] …Parliament appears to be dealing with a situation where, in order to preserve the impartiality of jurors, it is necessary to completely insulate them from the challenge for cause process except, obviously, for their own.
[53] That is not the case here. No one has any difficulty with the jurors participating in the challenge process as triers and no one has any difficulty with the jurors remaining in the jury box after being sworn while other prospective jurors are challenged.
[54] Furthermore, the statutory basis for an order under 640(2.1) is “that such an order is necessary to preserve the impartiality of jurors”. Impartiality in the sense in which it is used in this part of the Code means impartiality as between the accused and the Queen. That is not the reason advanced for excluding the unsworn jurors (emphasis added). Instead, the reason for bringing jurors in one-by-one is so that they will not be exposed to the challenge process being repeated time after time with all jurors who precede them, and thereby, become schooled in the process. The concern is that the juror might learn what answers tend to result in the juror being excused from serving on the jury. This has nothing to do with impartiality. The concern is not bias or prejudice, but rather the possibility that a juror might improperly engineer his own rejection.
[12] That is precisely the reason advanced by counsel in this case - concern about the unsworn jurors being schooled.
[13] There has been little pre-trial publicity that has been brought to the attention of the court in this matter, even though this is a 20-year-old matter with an allegation of child abuse leading to her fatality. The defence is not concerned about the impartiality of the sworn or unsworn jurors being influenced in a sense of their impartiality as between the accused and the Queen, but rather on the issue of the potential schooling of the unsworn jurors on hearing other potential jurors being asked the challenge for cause question.
[14] Code J., in Jaser, a high profile terrorism case in which the alleged plotters planned to blow up a VIA train, and in which there was prior publicity and great public concern, juror impartiality, as he noted, was the fundamental reason for the need to exclude perspective jurors sworn or unsworn in the process.
[15] In this matter, the Crown takes no position, however, offered that the defence position of the potential for schooling is really one of tainting and cited by Dambrot J. as being of concern with respect to preserving impartiality in Riley.
[16] Notwithstanding, in the circumstances of this case, based on the submissions of counsel not having concern with respect to impartiality of the sworn or unsworn jurors, but rather, a concern for the “schooling” of the potential jurors, I am prepared to follow Sandham to the extent that I will permit rotating triers and exclude the unsworn jurors during the challenge for cause process.
[17] One of the concerns advanced by those who advocate the use of fixed or static trier process is that there is time economy to the process. In my view, simply reading the instructions or directing the triers to the instructions repeatedly as they are sworn as triers will not add markedly to the time involved in selecting an impartial jury.
A.J. O’Marra J.
Released: October 6, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
EVERTON BIDDERSINGH
Respondent
REASONS ON APPLICATION
(RE EXCLUSION OF PROSPECTIVE JURORS)
A.J. O’Marra J.
Released: October 6, 2015