CITATION: R. v. Badr, 2017 ONSC 171
COURT FILE NO.: CR-16-1529
DATE: 20170109
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
D. Allison, for the Crown
- and -
MAHMOUD BADR
E. Brown, for the defence
HEARD: December 19, 2016, at Brampton
RULING ON APPLICATION RE: CHALLENGE FOR CAUSE AND CONSTITUTIONAL ISSUE
André J.
[1] Mr. Mahmoud Badr brings an application for an order permitting him to challenge prospective jurors, pursuant to s. 638(1)(f) of the Criminal Code of Canada, about their competency in the English language. He insists that s. 530(1) of the Code makes such a challenge mandatory. The Crown takes the position that no such challenge is necessary.
BACKGROUND FACTS
[2] Mr. Badr was charged by the Peel Regional Police Force with one count of bigamy, four counts of assault, two counts of assault, two counts of sexual assault, one count of uttering a threat, one count of assault with a weapon and a count of robbery.
[3] Mr. Badr elected to be tried by judge and jury. At a preliminary hearing in March 2016, the presiding judge granted an order pursuant to s. 530 of the Code directing that Mr. Badr be tried before a jury and jury who spoke the official language of Canada that is the language of the accused. The judge ordered that the forum of Mr. Badr’s trial would be a court comprised of a judge and jury who spoke English.
[4] Mr. Badr wishes to exercise what he deems to be his constitutional right to challenge jurors for cause, pursuant to s. 638(1)(f) of the Code, on the issue of language competency.
ANALYSIS
[5] This application raises the following issue:
[6] Does s. 530 of the Code and s. 638(1)(f) confer upon Mr. Badr a right to challenge jurors for cause with respect to their language competence?
[7] Section 530(1) of the Code provides that:
530 (1) On application by an accused whose language is one of the official languages of Canada, made not later than
(a) the time of the appearance of the accused at which his trial date is set, if
(i) he is accused of an offence mentioned in section 553 or punishable on summary conviction, or
(ii) the accused is to be tried on an indictment preferred under section 577,
(b) the time of the accused’s election, if the accused elects under section 536 to be tried by a provincial court judge or under section 536.1 to be tried by a judge without a jury and without having a preliminary inquiry, or
(c) the time when the accused is ordered to stand trial, if the accused
(i) is charged with an offence listed in section 469,
(ii) has elected to be tried by a court composed of a judge or a judge and jury, or
(iii) is deemed to have elected to be tried by a court composed of a judge and jury,
a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada. [Emphasis added]
[8] Section 638(1)(f) of the Code provides that:
A prosecutor or an accused is entitled to any number of challenges on the ground that:
(f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 to be tried before a judge and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be.
[9] In R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768, at para. 28, the Supreme Court of Canada stated that section 530(1) “creates an absolute right of the accused to equal access to designated courts in the official language that he or she considers to be his own or her own”.
[10] In R. v. Nelson and Powell, [2000] O.J. No. 5241 (S.C.J.), Garton J. noted of s. 638(1)(f) that:
The purpose of this section is apparently to allow counsel to challenge jurors in their proficiency in English or French or both languages, where there has been an order of the court under s. 530 that the accused be tried in English, French or both languages. Section 638(1)(f) grants counsel an opportunity to ensure that the s. 530 order is complied with.
[11] In the August 2004 unreported case of R. v. Richter, my brother Dawson J. noted the following:
[I]t seems to me that the purpose of s. 530(1) and 530.1 in combination with s. 638(1)(f) is to guarantee or ensure that an accused has a right to justice in one of both of the official languages of Canada, anywhere in Canada. The purpose of these sections, acting in harmony, is not to permit an automatic right to challenge for cause where the concern is that a potential juror may have an inadequate grasp of the official language of the trial because their mother tongue, to use the terms by Statistics Canada, is neither official language.
R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279 (Ont. C.A.), affirmed 1976 CanLII 1457 (SCC), 33 C.C.C. (2d) 207 and R. v. Sherritt (1991), 1991 CanLII 86 (SCC), 63 C.C.C. (3d) 193 (S.C.C., speak of the role of the pre-screening process and of the requirement for an air of reality before a challenge of cause is permitted, although it is clear that the threshold is not particularly high. But these cases and more recent cases such as R. v. Williams (1998), 1998 CanLII 822 (SCC), 124 C.C.C. (3d) 257 (S.C.C.), and R. v. Find, (2001), 2001 SCC 32, 154 C.C.C. (3d) 97 (S.C.C.), in my view, hold that there must be some showing of a basis for the challenge so that the process is fair to prospective jurors and does not unnecessarily lengthen the trial. (at p. 5-9)
Noted in R. v. Leon, 2012 ONSC 575 (SCJ), at para. 19.
[12] In at least two cases decided in this jurisdiction, R. v. Seevnivasam, [2004] O.J. No. 4888 and R. v. Martin, unreported April 20, 2005, the Court granted the application where there was a pre-existing s. 530 order. In both cases, the applicant called evidence regarding the number of persons whose “mother tongue” was not English. In both, the court concluded that evidence of “a significant percentage of prospective jurors in our region whose mother tongue is not English, creates an air of reality for the requested challenge pursuant to s. 638(1)(f).” They also held that “self-assessment by a potential juror is not a sufficiently reliable measure of linguistic competency”: noted at para. 25 of Leon.
[13] In my view, s. 530(1), either on its own or in combination with s. 638(1)(f) of the Code, does not create an automatic right, in every case, for an accused to challenge prospective jurors for cause with respect to their linguistic competency.
[14] One of the reasons for this is that there are mechanisms in place for the pre-screening of prospective jurors about their ability to speak and understand English. For example, the questionnaire sent to prospective jurors requires them to indicate whether they can read, speak and understand English. Second, the preliminary remarks to a jury panel inform prospective jurors to advise the trial judge, when they are given an opportunity to do so, whether they have any difficulty understanding the language of the trial.
[15] It may be suggested that allowing an accused to challenge prospective jurors on their language competence is necessary to independently evaluate a prospective juror’s assertion that he or she had a sufficient understanding of English to impartially render a true verdict in the case.
[16] However, there is no evidence before me suggesting that there is a need for such independent evaluation or assessment. Neither is there any evidence suggesting that prospective jurors habitually overstate or misrepresent their competency in the English or French language to enhance their chances of being selected as a juror. On the contrary, the very converse may be true. The unfortunate reality is that may persons, at least in this jurisdiction, seek to be excused from jury duty on the basis of their limited knowledge of the English language.
[17] It is also submitted that the high number of prospective jurors in Peel Region whose mother tongue is not English, lends an air of reality for the requested challenge pursuant to s. 638(1)(f) of the Code.
[18] It should be noted that a prospective juror must be a Canadian citizen. To become a citizen, a person must reside in Canada for at least four years. Many immigrants to Canada acquired a working knowledge of English even before coming to Canada while others have done so by the time they become Canadian citizens. Furthermore, all prospective citizens are required to pass a test in English about Canada before becoming Canadian citizens. Absent empirical evidence, it is therefore difficult to conclude that a prospective juror has difficulty understanding English simply because English is not his or her “mother tongue”.
[19] Absent empirical evidence, it is simply impossible to conclude that a challenge for cause to ascertain the linguistic competency of a prospective juror is essential to guarantee trial fairness in a jurisdiction with a multicultural population such as Peel Region. If that was indeed the case, then the overwhelming majority of jury trials in this jurisdiction and in others with a significant multicultural population would have been patently unfair.
[20] For the above reasons, the application is denied.
André J.
Released: January 9, 2017
CITATION: R. v. Badr, 2017 ONSC 171
COURT FILE NO.: CR-16-1528
DATE: 20170109
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MAHMOUD BADR
RULING ON APPLICATION RE CHALLENGE FOR CAUSE AND CONSTITUTIONAL ISSUE
André J.
Released: January 9, 2017