Court File and Parties

Citation: R. v. Omar, 2016 ONSC 2660 Court File No.: CR-14-30000319-0000 Date: 2016-04-28

Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Liban Omar, Defendant/Applicant

Counsel: R. Juginovic and J. Smith, for the Crown D. Derstine and J. Shanmuganathan, for the Defendant/Applicant

Heard: April 5, 2016

Before: Molloy J.

REASONS FOR DECISION #1

(Method of Jury Selection)

A. INTRODUCTION

[1] Liban Omar is charged with first degree murder.

[2] At the outset of trial, his counsel gave notice that Mr. Omar, who is black, wishes to exercise his right to challenge prospective jurors for cause in order to determine the impartiality of the jurors, based on the standard Parks[^1] challenge question. There is no objection to the entitlement of the accused to challenge for cause on this basis, nor to the form of the question to be posed to the prospective jurors. The proposed question is as follows:

As her Honour has told you, a juror must judge the evidence received at trial – without bias, prejudice or partiality. Would your ability to judge the evidence in this case impartially – that is, without bias or prejudice – be affected by the fact that Liban Omar is a Black man?

[3] Counsel for Mr. Omar, Mr. Derstine, requests rotating triers to select the jurors in the challenge for cause process. There is no difficulty with that. However, Mr. Derstine also seeks to have the jury array excluded from the courtroom and then brought in singly to answer the Parks question. In the rotating triers process, as jurors are found to be impartial and then sworn, they take the place of the initial triers on the challenge for cause. It is therefore not possible to exclude the sworn jurors during the selection process. But Mr. Derstine does not seek to exclude the sworn triers; only the array of potential jurors from the jury pool. Further, Mr. Derstine specifically declines to make an application under s. 640(2.1), for the exclusion of all jurors –sworn and unsworn – but rather submits that I have inherent jurisdiction at common law to exclude the unsworn jury panel during the challenge for cause before rotating triers.

[4] Prior to the amendments to the Criminal Code in 2008 dealing with the exclusion of potential jurors and sworn jurors from the courtroom during a challenge for cause, and providing for static triers to determine the issue of impartiality, I would have had no difficulty accepting the proposition that I had inherent discretion to make the order sought. However, it is not clear whether that discretion still exists since the 2008 amendments.

B. THE SITUATION PRIOR TO THE 2008 AMENDMENTS

[5] Under s. 638 of the Criminal Code, the prosecutor and the accused are entitled to challenge for cause any number of potential jurors based on a list of possible grounds, the most frequent basis being under s. 638(1)(b) that “the juror is not indifferent as between the Queen and the accused.” Except in cases generating a high degree of publicity, the challenge for cause process was rarely used until the introduction of race-based challenges for cause as established in R. v. Parks and other similar cases. Since the mid-1990’s, challenges for cause based on racial prejudice have become common-place in criminal trials.

[6] The decision as to whether a juror challenged for cause was impartial, and therefore acceptable to be a juror, was required under the Criminal Code to be made by two triers of fact. Section 340(2) stipulates the manner of choosing those two triers, stating that the two jurors who were last sworn shall be the triers of fact, unless there are no sworn jurors, in which case the trial judge may appoint any two persons present to perform that function. The practice developed of choosing two people at random to be the first two triers. Then, as jurors became selected and sworn, they would replace the initial triers, and then would replace each other successively as more jurors were selected and sworn in. This process of selection came to be known as “rotating triers.”

[7] Prior to the 2008 amendments to the Code, the rotating triers method of determining a challenge for cause was both exclusive and mandatory. The trial judge had no jurisdiction to conduct the selection in any other way. In particular, there was no jurisdiction to have the issue determined by static triers.[^2]

[8] There were, however, some problems with the rotating triers process. Because of the very nature of the triers, sworn jurors would be present in the courtroom as other potential jurors were being screened for cause. This can be particularly problematic when the challenge is based on pre-trial publicity or whether the potential juror knew the accused or had a view as to his or her guilt. If potential jurors blurted out information about those views, or about what they had seen or heard in the media, this had the potential to taint not only the whole panel of potential jurors sitting in the courtroom, but also the members of the jury already sworn in, including the two triers of fact. This created the risk of a mistrial.

[9] In some jurisdictions, a practice developed of excluding the jury panel from the courtroom for the selection process so as to minimize the risk. This solved the problem for unsworn potential jurors, but not for the triers of fact who were already sworn in as jurors. There were also other reasons cited for excluding the panel, including the size of the courtroom, practical considerations, and concerns that members of the jury panel would hear the challenge for cause question in advance and by watching the process be in a position to tailor their responses accordingly.

[10] Prior to 2008, the Criminal Code contained no provision dealing, one way or the other, with excluding members of the jury array or sworn jurors from the courtroom for any portion of the jury selection process. In R. v. Moore-McFarlane,[^3] the Ontario Court of Appeal held that trial judges retained a discretion on this issue. In that case, the defence had requested that the jury panel be excluded from the courtroom during the selection process, and the trial judge refused. On appeal, Sharpe J.A. held that there was no “firm rule” on this point and that an appellate court would not interfere unless there was a clear error of principle or a miscarriage of justice, stating as follows (at para. 85):

I do not agree with the appellants' contention that there should be any firm rule on whether the jury panel should be excluded from the courtroom during the challenge-for-cause process. This matter falls within the trial judge's discretion in controlling the challenge-for-cause process so as to prevent its abuse and ensure that the process is fair to the prospective juror as well as to the accused person. On appeal, the trial judge's decision is entitled to deference and should not be interfered with unless the appellant can demonstrate that the trial judge committed a clear error in principle in the exercise of his or her discretion, or that the trial judge's decision resulted in a miscarriage of justice. In this case, I am not persuaded that there is any cause to interfere with the trial judge's decision not to exclude the entire panel.

[11] However, the jurisdiction to vary the jury selection process did not extend to matters already provided for in the Criminal Code. In R. v. W.V.,[^4] a trial judge chose two initial triers of fact on a Parks challenge for cause. After two jurors had been selected and sworn, the trial judge proposed to counsel that they continue with the same two triers for the whole of the selection process. Counsel agreed. On appeal, the Ontario Court of Appeal held that the jury was improperly constituted and that the trial judge was required to follow the procedure stipulated by the Criminal Code. Further, this was not a matter upon which a trial judge had any discretion, nor could the error be excused on the basis that the accused suffered no prejudice. Rather, this was an error that vitiated the whole process, and a new trial was mandated. Sharpe J.A. held (at paras. 20-22):

[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.

[21] 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) 6 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) 2001 CanLII 4447 (ON CA), 154 C.C.C. (3d) 221, leave to appeal to S.C.C. refused, (2001) 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).

[22] 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. In R. v. Gayle, supra, at para. 53, this court stated:

It goes without saying that the statutory provisions governing jury selection must be followed, and that the discretion I am describing is limited to what is conferred on a fair reading of those very provisions.

[12] Thus, prior to 2008, the challenge for cause process was rigid with respect to the rotating triers requirement; there was simply no other way. However, the trial judge had a discretion as to whether or not to exclude the panel for the selection process. It must be noted, however, as I stated above and as is illustrated in numerous cases, excluding the panel does not prevent tainting of jurors already sworn. The very requirement of having members of the sworn jury act as triers on the challenge meant that, of necessity, they would hear anything potential jurors said about their views of the case or of the accused. This raised significant concerns about mistrials. While this was more of a concern where the challenge was with respect to publicity, it was also a factor in all challenges for cause.

C. THE NEW LEGISLATIVE PROVISIONS

[13] In 2008, amendments were made to the Criminal Code meant to address the problems with rotating triers. The provision in s. 640(2) for rotating triers was not removed. However, two new subsections were added to s. 640 as follows:

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

(2.2) 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 12 jurors — or 13 or 14 jurors, as the case may be, if the judge makes an order under subsections 631 (2.2) — and any alternate jurors are sworn.

[14] The 2008 amendments added a new possible method of conducting a challenge for cause, involving the same two triers for the entire selection process. These triers – referred to as “static triers” – are selected by the trial judge, but no direction is given as to the manner of that selection, leaving it therefore within the discretion of the trial judge.

[15] The procedure in s.640 (2.1) contemplates an application by the accused and provides that the court may order the exclusion of all jurors (sworn and unsworn), if the court is of the opinion that such an order is “necessary to preserve the impartiality of the jurors.”

[16] Section 640(2.2) then stipulates that where the trial judge has made an exclusion order under subsection (2.1), static triers shall be appointed by the trial judge.

D. CASE AUTHORITY DEALING WITH THE NEW SCHEME

(i) Static vs. Rotating Triers

[17] Cases decided since the 2008 amendments have made it clear that trial judges are not entitled to simply choose between rotating and static triers. Choosing to proceed with static triers is not merely an exercise of discretion. A trial judge only has the jurisdiction to use the static trier method where: (1) there has been an application by the defence, and (2) the trial judge concludes that excluding the jurors is necessary to preserve juror impartiality. Absent these two preconditions, the trial judge has no jurisdiction to appoint static triers.

[18] The British Columbia Court of Appeal dealt with this issue in R. v. Swite,[^5] involving a first-degree murder trial that proceeded in December 2008, a matter of months after the amended provisions came into force. Counsel for the accused delivered notice that the accused (who identified himself as “Native Indian”) intended to challenge potential jurors for cause on the basis of bias, prejudice or partiality based on the fact that the accused is Native Indian and the case involved the murder and sexual assault of an 85-year-old woman. The notice was silent as to whether the accused wanted the panel or any sworn or unsworn jurors excluded from the courtroom, and silent as to whether the accused wanted rotating or static triers. The trial judge advised counsel that he intended to proceed by appointing two triers who would decide all of the challenges for cause. Counsel for the accused objected, stating that he wished to have rotating triers. It was common ground that defence counsel was not aware at the time of the recent amendments to the Criminal Code. The trial judge informed counsel that the Code had been amended and that static triers was the new procedure. The trial judge apparently did not realize that the potential for rotating triers still existed under s. 640(2). Thus, both the defence counsel and the trial judge were mistaken as to the new statutory provisions. The Crown took no position. The trial judge’s position prevailed, static triers were used, and ultimately the accused was convicted of first degree murder.

[19] On appeal, the British Columbia Court of Appeal held that this was not an exercise of discretion, but rather a complete disregard of the provisions of the Criminal Code requiring an application by the accused and a finding by the trial judge that exclusion of jurors is necessary to preserve impartiality before static triers can be appointed. Prowse J.A., writing for the unanimous Court, held (at paras. 27-30):

[27] Counsel for the Crown on appeal suggests that the trial judge may have been acting ex mero motu (of his own motion) pursuant to an inherent jurisdiction in proceeding under ss. 640(2.1) and (2.2) in the absence of any application by the accused. In a similar vein, Crown counsel suggests that the trial judge may have been exercising a discretion available to him by proceeding in this manner.

[28] With respect, I can find nothing in the transcript to support the Crown’s submission that the trial judge made a conscious decision to ignore the specific provisions of s. 640(2) providing for rotating triers in adopting a procedure which employed static triers (and also departed from the language of s. 640(2.1) by excluding only prospective jurors from being present during the challenge for cause process). While it is undisputed that prior to the 2008 amendments, a trial judge had inherent jurisdiction to exclude either sworn and/or unsworn jurors during the challenge for cause process, there is no suggestion that a trial judge had an inherent jurisdiction to use static triers of the truth of the challenges in place of the rotating triers referred to in s. 640(2). The use of static triers is solely a creature of statute. [emphasis added]

[29] Nor can I find anything in the transcript which supports the Crown’s submission that the trial judge’s decision to use static triers and to exclude only unsworn jurors during the challenge for cause was treated by him as an exercise of discretion. The trial judge was not exercising inherent jurisdiction or discretion; he was applying the provisions of the Code as he understood them. [emphasis added]

[30] In the result on this point, I am satisfied that the trial judge erred in his interpretation and application of s. 640 of the Code. As a consequence, he embarked on the challenge for cause process using static triers of the truth of the challenges in circumstances where Mr. Swite had not only not applied for static triers, but where Mr. Swite had made it clear through his counsel that his choice was for rotating triers. This is the crux of the error alleged on appeal. The fact that the trial judge may also have erred in his application of ss. 640(2.1) and (2.2.) (assuming those sections were applicable) is of little moment. The fact is that, in these circumstances, ss. 640(2.1) and (2.2.) were never engaged.

[20] The British Columbia Court of Appeal went on to hold that this was a “fatal jurisdictional error” as a result of which the jury was never properly empanelled and the court was not properly constituted. Therefore, the trial was a nullity and a new trial was ordered.[^6]

[21] A similar conclusion was reached by the Ontario Court of Appeal in R. v. Noureddine,[^7] in which the Court referred with approval to the B.C.C.A. decision in Swite. In Nourredine, the two accused in a first degree murder trial sought to advance a Parks challenge for cause based on race. Counsel for the accused stated that they did not want static triers and were not making an application under s. 640(2.1) of the Criminal Code. Rather, they wanted rotating triers under the old and still-existing provision (s. 640(2)) and also sought an order excluding the prospective jurors from the courtroom, but not the sworn jurors. The trial judge unilaterally decided to use static triers and to exclude all jurors, sworn and unsworn. He made no finding of necessity, as required under s. 640(2.1). He stated in his brief oral reasons that he had “inherent jurisdiction” to make that order. The Ontario Court of Appeal held that there the trial judge committed jurisdictional error by imposing static jurors in the absence of an application by the defence and in the absence of a finding that the exclusion of jurors was necessary to preserve impartiality. The unanimous decision of the Court was delivered by Doherty J.A., holding (at paras. 37-38):

[37] The trial judge made no reference to the relevant provisions of the Criminal Code. Specifically, he made no reference to the criterion in s. 640(2.1). He misapprehended the nature of the application and purported to dismiss “the application for rotating jurors”. The appellants made no such application, but instead insisted on their statutory right under s. 640(2) to rotating triers, expressly indicating that no application was being brought under s. 640(2.1). Absent that application, static triers could not be used in the challenge for cause process: see R. v. Swite, 2011 BCCA 54, 268 C.C.C. (3d) 184, at paras. 28-30.

[38] The trial judge also referred to his “inherent jurisdiction”. It is unclear whether he regarded that jurisdiction as the source of his power to make an order for the use of static triers, an order for the exclusion of all jurors, sworn and unsworn, from the challenge for cause process, or both. (2) The trial judge’s power to control the jury selection process to make effective use of court resources and ensure fairness to all parties is well-recognized: see R. v. Moore-McFarlane, 2001 CanLII 6363 (ON CA), 56 O.R. (3d) 737, at para. 85(C.A.). That authority does not, however, extend to orders that contradict the requirements of the Criminal Code: see R. v. Swite, at para. 28; R. v. W.V., at para. 22. The trial judge’s decision to use static triers despite the requirement in s. 640(2), that rotating triers be used, cannot be justified as an exercise of the trial judge’s inherent jurisdiction.

[22] The Ontario Court of Appeal cited with approval the decision of the BCCA in Swite and found this to be an error that could not be cured, as it was jurisdictional in nature and resulted in the accused being tried by a jury that was not properly constituted. In the course of coming to that conclusion, Doherty J.A. also noted the value of rotating triers and the unfairness of not allowing an accused to choose whether or not to elect for rotating triers to decide the impartiality issue. He held (at paras. 64-68):

[64] In my view, the prejudice in this case lies in the negative effect the improper use of static triers, over the express objection of counsel, had on the appearance of the fairness of the proceedings and the due administration of justice. Three factors combined to lead me to that conclusion:

• The use of rotating triers to decide challenges for cause benefits the jury selection process;

• Static triers are an alternative method used to determine challenges, but only where necessity dictates the use of static triers; and

• It is for the accused and only the accused to decide whether to initiate the motion that may ultimately result in the use of static triers.

[65] Using rotating triers to decide challenges brings at least two benefits to the jury selection process. First, rotating triers avoids the risk that the entire jury selection process could be tainted by a single static trier who is unable or unwilling to properly assess the partiality of prospective jurors. Second, the use of rotating triers gives most of the jurors who ultimately try the case a role in the selection of their fellow jurors. That role potentially promotes both a sense of responsibility in individual jurors and of cohesiveness in the jury selected to try the case.

[66] The preferred position afforded rotating triers in the challenge for cause process is apparent from the 2008 amendments. Those amendments require the use of rotating triers except when an order has been made under s. 640(2.1) excluding all jurors during the challenge for cause process. As outlined above, that order makes it impossible to use rotating triers during the challenge process. I read the amendments as acknowledging the value of rotating triers in the challenge for cause process. That value may be sacrificed, but only if the judge is satisfied, on the accused’s motion, that the exclusion of all jurors is necessary to preserve the impartiality of the jury.

[67] The amendments also recognize that the potential benefits of rotating triers are particularly important to an accused, as it is the accused who will usually challenge for cause. The significance of rotating triers to the accused in particular is reflected in the amendments by allowing only the accused to bring the motion under s. 640(2.1) which, if successful, will lead to the use of static triers.

[68] Ultimately, the trial judge’s order denied the appellants the benefits of using rotating triers to determine the challenges for cause made by the appellants. Equally important, the denial of the benefit of rotating triers occurred in the face of clear statutory language providing that only the accused could bring the motion necessary to the use of static triers. Finally, the denial occurred despite the express and repeated insistence of the appellants that rotating triers be used. These factors combined to create the appearance of unfairness and compromised the due administration of justice

[23] Accordingly, a new trial was ordered.

(ii) Exclusion of Potential Jurors with Rotating Triers

[24] Neither the B.C. Court of Appeal in Swite nor the Ontario Court of Appeal in Noureddine dealt with the issue raised in this case – whether, in light of the 2008 amendments, there remains a discretion to exclude the panel during a selection process by rotating triers. In Swite,[^8] the BCCA considered the decision of Heeney J. of this Court in R. v. Sandham,[^9] but held that it was “unnecessary” to comment on it as the decision “focused on the question of whether the amendments to s. 640 had affected the court’s inherent jurisdiction to exclude sworn and/or unsworn jurors during the challenge for cause process,” whereas the situation in Swite involved a trial judge imposing static triers, a jurisdiction that trial judges had never held. Thus, the issue was not whether the amendments affected an existing jurisdiction. There had not been jurisdiction prior to the amendments and the amendments did not confer jurisdiction in the absence of a defence application.

[25] In Noureddine, the Ontario Court of Appeal noted (at para. 38) that it was unclear whether, in relying on his inherent jurisdiction, the trial judge was referring to his power to exclude jurors, and then added a footnote referring to conflicting case law in the Superior Court on that point, without further comment other than it was not before the Court of Appeal in that case. Footnote 2 (in para. 38) states:

The nature and scope of any power the trial judge may have, apart from an order under s. 640(2.1), to exclude some or all jurors during the challenge for cause process is a matter of controversy in the Ontario Superior Court. That issue is not before this court on this appeal: see R. v. Jasar, 2014 ONSC 7528, [2014] O.J. No. 6431, at paras. 35-42; R. v. Riley, 2009 CanLII 22571 (ON SC), [2009] O.J. No. 1851, at para. 18; R. v. Sandham, 2009 CanLII 22574 (ON SC), [2009] O.J. No. 1853, at paras. 55-56; R. v. White, 2009 CanLII 42049 (ON SC), [2009] O.J. 3348, at paras. 32-37.

[26] In Sandham, six accused were each charged with eight counts of first degree murder. The six accused and the eight deceased were alleged by the Crown to have been members of the Bandidos Motorcycle Club. The Crown further alleged that the defendants murdered these fellow gang members and then left their bodies in abandoned vehicles in the countryside. The defence sought to challenge prospective jurors for cause based on whether they could be impartial in light of the nature of the case and, in particular, whether they had seen or heard anything about the case in the media, on the internet or from anyone else. An issue also arose as to the procedure to be applied for the challenge for cause. All defence counsel wanted rotating triers. Defence counsel also expressly disavowed that they were applying under s. 640(2.1). However, they also, in oral submissions to the court, sought to have the prospective jurors brought in one by one for the challenge procedure. The defence did not seek to exclude the sworn jurors. The defence argued that the reason for excluding unsworn jurors was so that they would not be exposed to the challenge process for potential jurors ahead of them and thereby be “schooled” in what answers would result in them being excused from jury duty. The Crown took the position that the defence application to exclude jurors amounted to an application under s. 640(2.1) and should be treated as such. Heeney J. held that because the reason advanced for exclusion was “not bias or prejudice, but rather the possibility that a juror might improperly engineer his own rejection,” the central issue was not impartiality in the sense that this word is used in s. 640 as being impartial as between the Queen and the accused. He therefore held that because the accused had not made an application under s. 640(2.1), and he had made no order under s. 640(2.1), he had no jurisdiction to do anything other than proceed with rotating triers. He stated (at para. 55) that to do otherwise would be to “impose on the defence a procedure they have clearly chosen not to opt for,” and that this would constitute “jurisdictional error.”

[27] Justice Heeney then went on to order that rotating triers would be used and that unsworn jurors would be excluded pursuant to his inherent jurisdiction. He held (at para 56):

An order will go that the challenge for cause will proceed in accordance with s. 640(2). An order will also go, pursuant to my inherent jurisdiction and not pursuant to s. 640(2.1), that the unsworn jurors will be excluded from the courtroom and will be brought in individually for the challenge for cause procedure. No order is made for the exclusion of the sworn jurors.

[28] Although Heeney J. relied on his inherent jurisdiction to exclude the unsworn jurors, he relied in that regard on authority that pre-dated the 2008 amendments, specifically Moore-McFarland. He does not appear to have considered whether the 2008 amendments interfered with or restricted that discretion in any way.

[29] In R. v. Riley,[^10] Dambrot J. of this Court dealt squarely with that issue. It should be noted that the Riley decision, although reported at an earlier date than Sandham, was actually decided on April 28, 2009, post-Sandham (which was decided on February 9, 2009) and Dambrot J. therefore had the benefit of considering Sandham in reaching his decision. As was the case in Sandham, the Riley case involved charges of first degree murder and criminal organization involvement, in which there was a challenge for cause based, at least in part, on pre-trial publicity. However, racial prejudice was an additional ground for the challenge for cause in Riley. In Riley, at the outset of trial, counsel for the accused asked for the exclusion of the jury panel for the process of the jury selection. Dambrot J. granted that request. Defence counsel then indicated that they wished to have rotating, rather than static, triers. Dambrot J. held that the Criminal Code now specifies, in s. 640 (2.1), what the procedure will be when prospective jurors are to be excluded from the courtroom. He further held that the Criminal Code now requires that if prospective jurors are to be excluded during the pick, then the selection process must be determined by static triers.

[30] Justice Dambrot considered the two rationales relied upon in Sandham to escape the effect of the static trier requirement in s. 640 (2.2). First, it had been argued in Sandham (as was argued before me in this case) that since the request for exclusion related only to unsworn jurors, s. 640(2.2) did not apply. This argument was dismissed by Dambrot J. as being “irrelevant”, given that the basis for the limit on the exclusion was that counsel wanted rotating triers, which would be impossible if sworn jurors were excluded from the courtroom during the selection process.

[31] The other argument advanced was that grounding the exclusion on concern about the “schooling” of prospective jurors based on hearing the answers given by others, took the matter outside the parameters of s. 640(2.1). Justice Dambrot held that this issue “is ultimately a concern about partiality.”[^11]

[32] The approach taken by Dambrot J. was to consider first that the application before him was a request by defence counsel to exclude potential jurors from the courtroom for grounds related to determining the impartiality of jurors. Having determined that this was the nature of the application, he then concluded that Parliament had established a procedure for dealing with such exclusions, a procedure that required static triers. He held, based on R. v. W.V., that in light of the amendments to the Criminal Code, jurors may now only be excluded from the courtroom pursuant to s. 640(2.1). He therefore proceeded in that case with static triers.

[33] In July 2009, Thomas J. of this Court considered the same issue in R. v. Huard. Justice Thomas took into account the conflicting decisions in Sandham and Riley, and decided to follow the decision of Heeney J. in Sandham. In coming to that conclusion, Thomas J. reasoned that if the decision of Dambrot J. was correct, then a trial judge would no longer have the jurisdiction to exclude potential jurors on his or her own motion in order to protect the s. 7 rights of an accused person. He ruled that this could not have been the intention of Parliament and that trial judges retain their inherent jurisdiction, even in the absence of a defence application, to exclude both sworn and unsworn jurors from the courtroom during the jury selection process, regardless of whether there are rotating or static triers. He therefore directed that the trial proceed with rotating triers and that both sworn and unsworn jurors would be excluded (presumably, with the exception of the two sworn jurors who were also rotating triers at any given point in time). I note that this decision preceded the Court of Appeal’s decision in Noureddine.

[34] In R. v. White[^12] (decided on August 7, 2009), Sproat J. of this Court considered the decisions in Riley and Sandham, analyzed principles of statutory interpretation, and took into account statements made in the House of Commons by two separate Attorneys General and the Parliamentary Secretary to the Attorney General, as follows:

• Honourable Vic Toews (Minister of Justice and Attorney General of Canada)

Other amendments would refine the jury selection process to better protect the impartiality of prospective jury members.

(October 4, 2006 – House of Commons Debates)

• Mr. Rob Moore (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, CPC)

Hon. Members will appreciate that Bill C-23 is not about fundamental law reform. Rather, it is about fine tuning. While the amendments contained in Bill C-23 are generally of a technical nature, they are nonetheless important. ...

Criminal procedure amendments would, among other things, improve procedural efficiencies and rectify certain shortcomings in criminal proceedings. Other amendments would confirm the intent behind some criminal procedure provisions and clarify their application. …

(October 16, 2006 – House of Commons Debates)

• Honourable Rob Nicholson (Minister of Justice)

Bill C-23 contains a number of technical amendments…

With respect to criminal procedure, most of the amendments are technical and will, among other things […] improve the process with respect to the challenge of jurors to assist in preserving the jury’s impartiality…

(May 2, 2007 – Standing Committee on Justice and Human Rights)

[35] Ultimately, Sproat J. concluded that “Parliament’s sole object and purpose was to create a mechanism for static triers and that it did not, expressly or impliedly, intend to limit the trial judge’s discretion in relation to the jury selection process when utilizing the rotating triers.” He therefore decided he had a discretion, and he exercised it to exclude prospective jurors from the courtroom while jury selection proceeded with rotating triers. One of the reasons given by Sproat J. for exercising his discretion in this manner was to ease the burden on prospective jurors who would be required to sit through the challenge for cause process. There were three accused in that case, each charged with first degree murder. Since 14 jurors were to be selected, this would amount to a total of 132 peremptory challenges. By dividing the jury pool into groups of 20, the trial judge was able to excuse groups of them for periods of time, so that they ended up being in the courthouse for 1 ½ hours, rather than the full 1 ½ days it took to finally select the jury. Sproat J. also noted the difficulties of accommodating a jury panel of the size required, given the limited space and limited large courtrooms in the Brampton courthouse. However, Sproat J. also referred to the defence argument that in a challenge for cause, prospective jurors were more likely to answer the race-based challenge honestly if not under the watchful eye of several hundred members of their community.

[36] In R. v. Jaser,[^13] Code J. attempted to reconcile the two competing lines of cases: some following Riley and others following Sandham. Following the decision of Dambrot J. in Riley, many judges, particularly in Toronto, were interpreting it to mean that there were now only two possible options for selecting a jury: (1) static triers with sworn and unsworn jurors excluded; or (2) rotating triers with everyone in the courtroom.[^14] Code J. opined that this was an overly broad interpretation and suggested (at para. 39) that 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).” By the same token, Code J. was of the view that Sandham had likewise been read too broadly and should be applied only where the defence simply preferred to use rotating triers and were not advancing juror impartiality as a basis for excluding the unsworn jurors. Justice Code stated (at para. 41), “As I read these passages in Sandham, the sole reason for ordering exclusion of the panel in that case was to prevent suitable but irresponsible prospective jurors from shirking jury duty.” He then went on to hold that, in his view, there was nothing in Riley or in the 2008 amendments to limit a trial judge’s inherent discretion to manage the jury panel in a manner that is effective and expeditious in light of available courtroom space and the inconvenience and expense to prospective jurors, citing the decision of Sproat J. in White.

[37] The trial before Code J. in Jaser was an alleged terrorist plot to blow up a CN train, with all passengers aboard. As such, Code J. was satisfied that juror impartiality was the “fundamental reason for the need to exclude prospective jurors.” Although defence counsel preferred rotating triers with the unsworn jurors excluded, her alternative position was an application under s. 640(2.1), with static triers. Given that the underlying purpose for exclusion was juror impartiality, Code J. held that he had no inherent jurisdiction to exclude potential jurors and that the process dictated by s. 640(2.1) must be followed.

E. ANALYSIS: ROTATING TRIERS AND THE JURISDICTION TO EXCLUDE

[38] Clearly there was jurisdiction prior to the 2008 amendments to exclude potential jurors from the courtroom while going through the jury selection process. Since the only method of jury selection on a challenge for cause was with rotating jurors, the discretion obviously extended to that situation. The Criminal Code was silent as to the exclusion of potential jurors from the courtroom. Therefore, there was no jurisdictional impediment to doing so on any basis that was reasoned and rational. This would include practical considerations (such as the availability of large courtrooms or video-feeds and inconvenience to potential jurors), as well as considerations related to the reason for the challenge itself (such as avoiding situations where potential jurors might be tainted by hearing what was happening with other potential jurors, or things that those jurors might say during the selection process).

[39] The question before me is whether the 2008 amendments either removed or restricted that discretion. Obviously, this is not an issue that is free from doubt. Experienced trial judges who have given the issue considerable thought are not in full agreement on the point, and there is, as yet, no appellate guidance.

[40] With the greatest of respect for my colleagues who have taken a different view, I tend to agree with the conclusions of Dambrot J. (in Riley) and Code J. (in Jaser), that where the fundamental basis for a defence application to exclude jurors is to support the objective of juror impartiality, that inquiry invokes s. 640(2.1) of the Criminal Code and will, if the test in that section is met and an order made, result in static triers. In that situation, I am of the view that where such an application is brought, the defence cannot avoid the operation of ss. 640(2.1) and 640(2.2) merely by labelling the motion as being brought under the common law rather than the Criminal Code.

[41] The stated purpose of s. 640(2.1), both on its express terms and as reflected in Hansard, is to improve the process for challenging jurors for cause in order to better preserve the impartiality of the jury. It is significant to note that the process begins with a defence application. Section 640(2.1) does not specify what must be requested in the defence application. It merely states that where there is an application by the defence, and the trial judge concludes that the exclusion of all jurors is necessary to protect juror impartiality, the judge may order the exclusion of all jurors. If such an order is made, the use of static triers is then mandatory. However, it must be noted that the language of s. 640(2.1) is permissive (“the court may order”), as opposed to the mandatory language of s. 640(2.2) (“two persons… shall be sworn to determine if the ground of challenge is true.”).

[42] The structure of the provisions supports the conclusion that the defence application relates to the exclusion of jurors, and is not properly characterized as a choice between static and rotating triers. This approach was taken by the Ontario Court of Appeal in Noureddine, which held (at para. 35) that the trial judge erred in characterizing counsel’s application as an “application for rotating triers,” because the defence had made no such application, but merely relied on the statutory right under s. 640(2) to rotating triers. Further, (at para. 36), the Court held that, “On a plain reading of the amendments, static triers are not simply an alternative to rotating triers. They are used only where the exclusion of all jurors is necessary to preserve the impartiality of the jury ultimately selected.”

[43] If the defence made no application at all for an exclusion of jurors, it is clear that there must be rotating triers. The jurisdiction to use static triers arises only upon making an order under s. 640(2.1), which in turn arises only as a result of an application by the defence. This is clear from Noureddine.

[44] It also seems to me that, at the very least, a trial judge retains a discretion to exclude jurors for reasons not related to the protection of juror impartiality. The existence of such a discretion was recognized in Moore-McFarlane, and cannot be said to have been interfered with by s. 640(2.1), which clearly relates only to issues of juror impartiality. Thus, in my view, a trial judge may exclude jurors for purposes of fairness to other potential jurors in particularly long selection processes, or for reasons of judicial economy and courtroom space, or on the basis of grounds not related to impartiality. In my view, such a discretion exists with or without a defence application. I do recognize, however, that what falls within the grounds of juror impartiality may not be completely clear and is the subject of some dispute in the case law.

[45] In Sandham, Heeney J. held that an application to exclude unsworn jurors during a challenge for cause did not invoke s. 640(2.1) because it did not relate to impartiality as between the accused and the Queen. He stated (at para. 54):

Furthermore, the statutory basis for an order under s. 640(2.1) is “that such an order is necessary to preserve the impartiality of the 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. Instead, the reason for bringing the jurors in one by one is 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 a juror might learn which 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.

[46] I agree that s. 640(2.1) is only invoked in a situation that involves a determination of impartiality as between the accused and the Queen. However, I respectfully disagree with Heeney J.’s conclusion that excluding the panel for the purpose of ensuring honest answers from the prospective jurors does not involve issues of impartiality as between the accused and the Queen. A Parks challenge for cause is based on preserving the impartiality of the jury. Challenges for cause are only permitted on grounds enumerated in s. 638(1) of the Criminal Code. The only possible ground under s. 638(1) into which a Parks challenge could fall is s. 638(1)(b): i.e. “whether a juror is indifferent between the Queen and the accused.” Further, it is clear from the Court of Appeal decision in Parks that the jurisdiction to make the inquiry based on race is squarely within s. 638(1)(b). That being so, the challenge for cause in this case is directed to ensuring the impartiality of jurors. It seems to me that excluding prospective jurors during that process so as to ensure that the prospective jurors give honest answers is directed towards enhancing the impartiality inquiry. I prefer the reasoning of Dambrot J. in Riley that a concern about the schooling of potential jurors is ultimately a concern about preserving impartiality. Dambrot J. held, at para (19):

As for the conclusion that the grounding of the motion on a concern about “schooling” prospective jurors rather than preserving their impartiality takes the application out of s. 640(2.1), I simply say that, for myself, I fail to see that the one differs substantially from the other. The concern that a schooled juror might answer questions differently than an unschooled juror is ultimately a concern about partiality. It is a concern that a juror will answer questions falsely, based on extraneous matters – an acquired understanding of the result that would flow from a particular answer – rather than giving a true answer based only on the information imparted by the question. But why are we concerned about this? Of course, it is not unfortunate if an impartial juror commits perjury in order to evade his or her duty by feigning partiality. But the real concern is that a partial juror who wants to be on the jury will feign impartiality. As I have said, the concern about schooling is, ultimately, a concern about preserving the impartiality of the jury that will try the case.

[47] Accordingly, while I recognize the question is not free from doubt, I am inclined to the view that an exclusion of jurors so as to ensure honest answers to a challenge for cause is a concern about impartiality and an application grounded upon such an inquiry falls within s. 640(2.1).

[48] There is also an issue raised about what constitutes “a defence application” under s. 640(2.1). It is certainly arguable that any defence application that seeks the exclusion of jurors has the potential to lead to an order being made under s. 640(2.1), regardless of whether the preference of the defence is for rotating, rather than static, triers. This situation will most frequently arise in challenges for cause based on pre-trial publicity or a pre-determination by the challenged potential juror as to the merits of a particular issue to be decided in the case. In situations such as those, there is a grave risk that the questions asked during the challenge for cause will evoke responses that will result in information being heard by the potential jurors that they should never hear. Of particular concern would be jurors who have already been chosen and sworn in as members of the jury. These are the very people the trial judge would be most concerned to ensure remain impartial. It is hard to see how a trial judge could reach the conclusion that it was “necessary” to exclude unsworn jurors in order to ensure their impartiality, but not equally “necessary” to exclude the sworn jurors. Therefore, once the issue of impartiality is raised by the defence application, and the danger of prohibited or inflammatory information being blurted out by potential jurors in the challenge for cause process is recognized to be a real one, the trial judge may well come to the conclusion that the exclusion of all the jurors is necessary to protect impartiality, not merely the unsworn jurors. It seems wrong to me that in such a circumstance the judge would have no discretion to make the s. 640(2.1) order, merely because the defence application was framed as a motion to exclude only unsworn jurors.

[49] I agree with Dambrot J. that an application to exclude only unsworn jurors in order to preserve impartiality is “irrelevant” as it is merely a statement as to a preference for rotating triers. It should not be open to the defence to fashion the application as something less than an application to exclude all jurors, merely to escape the consequences of a finding that the exclusion of all jurors is necessary and that static triers are therefore required. Counsel could just as easily cast the application as excluding all potential jurors other than those whose surnames started with the letter “Z” and then seek rotating triers based on the fact that only an application to exclude all jurors (both sworn and unsworn) falls within s. 640(2.1). While it is true that the application does not seek the exclusion of all jurors, the exceptions to the exclusion have no rational connection to the impartiality issue. Likewise, an application to exclude jurors other than those who have already been sworn is not an application to exclude all jurors, but the exceptions to the exclusion have no rational connection to the impartiality issue. Indeed, the exception would leave in the courtroom those who are actual jurors – the most important people to be shielded. The only reason for the exception is to preserve the right to rotating triers, which is not a basis related to the impartiality inquiry. In my opinion, if the grounds advanced for excluding some or all jurors are based on safeguarding impartiality, the application falls under s. 640(2.1), regardless of whether counsel has stated a preference for rotating triers.

[50] It does not follow, however, that upon finding that the test under s. 640(2.1) has been met, the trial judge is required to make the s. 640(2.1) order. The language of the section is permissive. It is therefore at least arguable that the trial judge retains a discretion to decline to make the Order and to therefore proceed with rotating triers.

[51] Two further questions arise: (1) the basis upon which a judge might decide to elect not to make such an order; and (2) whether, in that situation, there can be an exclusion of the unsworn jurors and, if so, on what basis.

[52] With respect to the first question, it must be recognized that the defence application for exclusion is often advanced on a number of grounds. Some of those grounds might be purely related to safeguarding impartiality (such as a pre-trial publicity issue); others might be more nuanced or mixed in purpose (such as the schooling of potential jurors on what things they could say to get themselves excused from jury duty, including on matters unrelated to the challenge for cause). Sometimes, there will be practical considerations (such as the size of the courtroom, the number of potential jurors on the panel, and the expected length of the pick) along with the impartiality issues. In cases such as these where the dangers to preserving impartiality are on the low end of the scale and the accused has expressed a clear preference for rotating triers, I believe it would be open to the trial judge to decline to make an order under s. 640(2.1) even though the requirements of the section might otherwise have been met. Such an interpretation is necessary to give meaning to the use of the word “may” in s. 640(2.1).

[53] The second question is more difficult. If the trial judge elects to go with rotating triers after a defence application for exclusion in which impartiality issues are raised, does the trial judge still retain a discretion to exclude some of the jurors from the courtroom during the course of picking the jury? In this situation, in my view, it is important to tread lightly, and to avoid jurisdictional error at all costs. Where the basis for exclusion is clearly impartiality, there is a compelling argument that s. 640(2.1) has occupied the field and the only jurisdiction left to the trial judge under this ground is an order under s. 640(2.1) and the exclusion of all jurors, which would then mandate static triers. However, if the exclusion is sought on other rational grounds, there may be a basis to exclude the panel of unsworn jurors as part of the trial judge’s inherent common law jurisdiction. A jurisdictional error will result in the trial being a nullity. However, an error in the exercise of discretion, while still reviewable on appeal, is not necessarily fatal.

F. APPLICATION OF PRINCIPLES TO CIRCUMSTANCES OF THIS CASE

Exclusion order under section 640(2.1)

[54] This trial began with an application by the defence to exclude unsworn jurors from the courtroom while conducting a classic Parks challenge for cause based on the race and colour of the accused. The defence expressed a strong preference for rotating triers. When pressed to choose between: (a) static triers with jurors excluded, and (b) rotating triers with everyone in the courtroom, the defence still preferred rotating triers. Mr. Derstine, for the defence, characterized the defence application as having been brought under the common law, and specified that this was not an application under s. 640(2.1) of the Criminal Code.

[55] As I have stated, I do not regard defence counsel’s characterization of the nature of his application as being determinative of whether s. 640(2.1) of the Criminal Code applies. Here the central issue to be determined on the challenge for cause is one of impartiality, there is a defence application to exclude jurors, and the reason (at least in part) for the requested exclusion of jurors is to enhance the efficacy of that impartiality inquiry. In my view, s. 640(2.1) applies, regardless of the label placed on the application by the defence. Further, I do not consider the defence request for exclusion of only unsworn jurors to be determinative. There is no basis for excluding only the unsworn jurors except for the fact that it is not possible to exclude sworn jurors and still use rotating triers. An artificial restriction of the jurors to be excluded based on grounds unrelated to the impartiality inquiry does not take the defence application outside the operation of s. 640(2.1).

[56] In the course of argument, defence counsel offered the following grounds for excluding the unsworn jurors during the selection process:

1. A reluctant juror could tailor his or her response to the Parks question in order to get out of jury duty.

2. A racist could lie in response to the Parks question in order to get on the jury.

3. The triers of fact would lose the advantage of hearing the prospective juror’s honest, spontaneous response to the Parks question and would not be in as good a position to judge truthfulness.

4. Having seen potential jurors being excused on the grounds of hardship, others in the panel might lie and allege similar circumstances in their own lives in order to get out of jury duty.

5. It is an inconvenience for 200 potential jurors to sit in the courtroom through the whole process of jury selection.

[57] Of these five grounds, the last two (excusal for hardship and inconvenience to the jurors in the array) do not invoke impartiality issues and s. 640(2.1) does not apply. They could, however, be a basis for exclusion under the common law inherent jurisdiction, a point to which I will return.

[58] The first three grounds relate directly to the determination of impartiality and fall within s. 640(2.1). If this application had been brought by defence counsel seeking to have all jurors excluded and the impartiality issue determined by static triers, I would be inclined to make the order requested, particularly where the Crown makes no objection. It can almost always be said that it is a safer course of action to exclude the jury panel during the challenge for cause process, even in a Parks challenge. That said, I do not find the grounds advanced for exclusion in this case to be overwhelming, for reasons I will develop more fully below in considering the common law discretion.

[59] In Noureddine, the Ontario Court of Appeal noted the benefits of rotating triers where the defence seeks to have its challenge determined in that manner. Doherty J.A. held (at para 65):

Using rotating triers to decide challenges brings at least two benefits to the jury selection process. First, rotating triers avoids the risk that the entire jury selection process could be tainted by a single static trier who is unable or unwilling to properly assess the partiality of prospective jurors. Second, the use of rotating triers gives most of the jurors who ultimately try the case a role in the selection of their fellow jurors. That role potentially promotes both a sense of responsibility in individual jurors and of cohesiveness in the jury selected to try the case.

[60] I recognize that the risk of a “rogue” trier of fact can arise with static triers. However, the risk of a rogue trier of fact can also arise with rotating triers, just as it does with static triers. Anecdotally, I have certainly had it occur more than once over the years in jury picks with rotating triers. The downside of a static trier of fact who either cannot, or will not, properly assess the issue before him or her is the concern that, if there is no jurisdiction in the trial judge to discharge that person, the entire selection process may be undermined.[^15] The downside of a rogue trier of fact with rotating triers is that, depending on what stage in the process this arises, that person may already be a sworn juror – a different problem, but no less a problem. As discussed by my colleagues Dambrot J. in Riley[^16] and Code J. in Jasser,[^17] there are many safeguards that can be applied in the selection of static triers to reduce the risk of rogue triers. There can be more extensive screening, questionnaires, inquiries as to their background and experiences, and more extensive questioning about the Parks issue, just to name a few. It has also been my practice to involve defence counsel in that process, even to the point of giving counsel a choice from a group of potential triers after they have been questioned. Utilizing that process, I, like my colleagues Dambrot J. and Code J., have had no problems with static triers. That said, I recognize the risk and note that it is often cited by defence counsel, including the defence counsel in this case.

[61] The second benefit noted by the Court of Appeal is one that is often referred to by counsel and trial judges. I readily understand why defence counsel perceives this to be a tangible benefit of rotating triers.

[62] In this case, there is no challenge based on prior knowledge of facts relating to the matter before the court, whether because of personal connection or exposure to press coverage. The only challenge is for racial bias. There is far less risk of jury tainting in this kind of challenge for cause as compared to what can occur if prospective jurors blurt out an opinion about the case or something they have heard in the media.

[63] Assuming s. 640(2.1) is invoked by the defence application in this case, in determining whether or not to make an exclusion order under that section, it is relevant to take into account: (i) the strength of the defence impartiality grounds; (ii) the extent of the risk to impartiality if all jurors are not excluded; and (iii) the preference of the accused as between static or rotating triers.

[64] In this case: (i) the grounds advanced by the defence supporting exclusion are not strong; (ii) the risk of tainting is reduced given the nature of the challenge itself; and (iii) the defence has a strong preference for static triers.

[65] I am therefore of the view that it is appropriate to decline to make an order for exclusion under s. 640(2.1) of the Criminal Code. That being so, the challenge for cause issue shall be decided by rotating triers.

Exclusion of unsworn jurors at common law

[66] The next issue is whether, as an exercise of discretion, I would exclude the unsworn jurors as part of my inherent common law jurisdiction. Although, as I have stated, I consider the first three grounds raised by the defence to fall within s. 640(2.1), I propose to consider this issue as if all five grounds are appropriately dealt with as part of my inherent jurisdiction at common law. Having done so, I am not persuaded that I should exercise my discretion in favour of exclusion.

[67] Defence counsel’s first point is that a potential juror might become schooled in what to say in response to the Parks question in order to get out of jury duty. First of all, I am not persuaded that “schooling” has any real impact. I have seen no evidence that potential jurors admit to racial bias in the presence of the jury panel at any different rate than if the panel is excluded. It would surely be obvious to a prospective juror that if he states under oath that he is unable to judge the case without regard to the race of the accused, he will likely be rejected as a juror, regardless of whether he has heard other prospective jurors go through the same process. Second, if a prospective juror does have racist leanings and does hear others being excused on that basis, and then answers the question accordingly, then that person is appropriately excused. Third, if a prospective juror has no racial biases, but nevertheless lies under oath to the contrary in order to escape jury duty, that person would not have been a good juror. A juror who would have such little respect for the oath cannot be relied upon to follow the instructions of the trial judge and to render a true and proper verdict according to the evidence. If jurors such as these are prepared to perjure themselves to get out of jury duty, we are well rid of them.

[68] The second ground is that a racist might deliberately lie when answering the Parks question in order to get on the jury. Again, this is an issue that arises regardless of whether the jury panel is excluded. It is, at best speculative, that this is a real danger. However, if individuals with such plans do exist, it is difficult to see why they would need to see the selection process unfolding in order to develop their plan. This problem presupposes that there are persons who are so committed to their racist views that they would lie under oath in order to get on a jury to hear a case against someone they hate because of his race. It seems to me that such a person would lie about his or her racist views in any event, with or without any prior schooling by hearing other people answer the Parks question. It is possible that this danger is greater if the racist potential juror watches the selection process for a while, but that is speculative.

[69] The third ground is that the triers of fact will lose the advantage of hearing the potential juror’s spontaneous reaction to the Parks question and will therefore be in a better position to judge the credibility of the response. There is no evidence to support this contention. In particular, there is nothing to suggest that impulsive answers are likely to be more honest. There is also no evidence that a trier of fact is able to discern the difference between a hesitation born of thoughtfulness, confusion about the question, or surprise about the question, as opposed to a hesitation born of obfuscation or evasiveness. The Parks question does not merely ask the potential jurors whether they have a bias or prejudice, it asks if they have such a bias or prejudice that would interfere with their ability to render a verdict based solely on the evidence and the instructions of the trial judge. That is a more complex question, both in content and structure. There is a lot to be said for giving potential jurors the opportunity to reflect on that question and search their consciences to determine if they truly can be impartial, rather than simply springing the question on them out of the blue and demanding an immediate answer under oath. I am not saying which method results in a better process for jury selection or is better at determining impartiality. What I am saying is that there is an argument for both sides, and I see no real basis for choosing between them.

[70] The fourth ground is that potential jurors who hear other jurors being excused on the basis of personal hardship may advance similar arguments to get themselves out of jury duty. There are two types of potential jurors who fall into this category: (1) those who do have personal hardship grounds, but who would not have advanced them in the absence of having heard somebody else being excused for a similar reason; and (2) those who invent or exaggerate their personal circumstances in order to get off the jury.

[71] With respect to the first category, I note that it is not my practice to excuse jurors merely because they find jury duty inconvenient; the test is whether serving on the jury would be an undue hardship for that person. I would not want individuals to serve on a jury if doing so caused them personal hardship, both for their own sakes (as it is too much to ask), and for the sake of the justice system (as their difficulties may distract them from fully participating). It may be the case that there are individuals who might not have raised a personal hardship but for hearing somebody else in similar circumstances doing so. I have no difficulty with that. If there is genuine hardship, those persons should be excused from serving.

[72] With respect to the second category, I recognize that listening to the hardships that have resulted in people being excused from jury duty might prompt some potential jurors to make up a story to get out of jury duty. Simply put, I do not want such a person on the jury, nor should anybody want such a person on the jury. Preferring to avoid jury duty is one thing, and is common enough for busy people. Deliberately committing perjury to avoid jury duty is another thing altogether. Such a person is not fit to be a juror.

[73] As for the fifth ground, I am also of the view that the convenience to the panel does not warrant excluding the unsworn jurors. There is only one accused in this case and a straightforward Parks challenge. The jury selection process should therefore not take more than a day, possibly two. We are likely to have 200 people in the panel, a number that can be accommodated in our courthouse. Therefore, while there is some inconvenience to jurors who are in the courtroom for the duration of the selection process, that inconvenience is not inordinate. On the other hand, there is also inconvenience if the panel is excluded. It takes a considerable period of time to divide 200 people into groups of 20 and then direct them as to when they should return. The process inevitably takes longer than would otherwise be the case. Further, the process of re-instructing the triers of fact over and over again as each juror is selected is tedious, time-consuming, and the entire process requires considerably more staff to coordinate. In short, there are inconveniences whichever method is chosen. On balance, I find it slightly more inconvenient to exclude the panel during the selection process. Certainly, the inconvenience of having them in the courtroom is not sufficiently weighty to warrant exclusion, everything else being equal.

[74] The Court of Appeal held in Moore-McFarlane that the trial judge has a discretion as to whether to exclude the potential jurors from the courtroom during the challenge for cause process. In my view, the two grounds that clearly fall within my inherent jurisdiction (inconvenience to jurors and dishonest hardship requests) do not warrant an order excluding the panel. Further, taking all five grounds into account and weighing them in the balance, I am not persuaded that an exclusion order is warranted in all the circumstances.

[75] All other things being equal, I would likely have acceded to the wishes of defence counsel, even where as a simple exercise of my own discretion I would have kept the panel in the courtroom. Indeed, I have done so in many, many trials prior to the 2008 amendments. However, where there is any chance that I am without inherent discretion to take into account the first three grounds relating to impartiality, and where excluding the panel could therefore result in jurisdictional error that would vitiate the entire trial, I am not prepared to do so merely because the defence prefers it.

[76] In closing, I note that decisions such as this one are being made every day in courtrooms across Canada. It is an issue fraught with difficulty raising questions of jurisdiction for which the ramifications of error may be profound. Legislative amendment to clarify the law is urgently required.

G. CONCLUSION AND ORDER

[77] Accordingly, the challenge for cause will be conducted by rotating triers without any order excluding unsworn jurors.

MOLLOY J.

Released: April 28, 2016

[^1]: R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont.C.A.), leave to appeal refused, 87 C.C.C. (3d) 61 (S.C.C.). [^2]: R. v. W.V., 2007 ONCA 546 at paras. 20-23, 26 and 41; see also R. v. Barrow (1987), 1987 CanLII 11 (SCC), 38 C.C.C. (3d) 193 at 206 (S.C.C.); R. v. Gayle (2001), 2001 CanLII 4447 (ON CA), 154 C.C.C. (3d) 221, leave to appeal to S.C.C. refused, (2001) 160 O.A.C. 199 at para. 53; R. v. Bain (1989), 1989 CanLII 262 (ON CA), 47 C.C.C. (3d) 250, rev’d on other grounds (1992), 1992 CanLII 111 (SCC), 69 C.C.C. (3d) 481 (S.C.C.); R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1(Ont.C.A.) [^3]: R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 56 O.R. (3d) 737, 160 C.C.C. (3d) 493; 47 C.R. (5th) 203 (Ont.C.A.) [^4]: R. v. W.V., supra Note 2, [^5]: R. v. Swite, 2011 BCCA 54. [^6]: Ibid, para. 47 [^7]: R. v. Noureddine, 2010 ONCA 770, 128 O.R. (3d) 23 (sometimes referenced as R. v. Sheridan) [^8]: R. v. Swite, supra Note 4, at para. 52 [^9]: R. v. Sandham (2009), 248 (C.C.C. (3d) 46 (Ont. S.C.J.) per Heeney J. [^10]: R. v. Riley (2009), 2009 CanLII 22571 (ON SC), 247 C.C.C. (3d) 517 (Ont.S.C.J.) [^11]: Ibid, para. 19 [^12]: R. v. White, 2009 CanLII 42049 (Ont.S.C.) at paras. 18 and 37 [^13]: R. v. Jaser, 2014 ONSC 7528 [^14]: This practice was by no means universal. Most of these decisions are made on the spot in the course of a trial and without written reasons. However, for an example of a decision in Toronto following Sandham, see R. v. Biddersingh, 2015 ONSC 8134 per A. J. O’Marra J. [^15]: It is by no means clear that the trial judge would not be able to remedy such a situation by discharging the triers and starting with new triers, but I am not ruling on that issue one way or the other. [^16]: R. v. Riley supra, at Note 10, at paras. 21-26 [^17]: Jaser, supra at Note 13, at para. 44