Court File and Parties

COURT FILE NO.: 1166/18 DATE: 20190619 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – J.E. Accused/Applicant

Counsel: M. Occhiogrosso, for the Crown/Respondent E. Brown, for the Accused/Applicant

HEARD: June 18, 2019

RULING – APPLICATION PURSUANT TO S.638(1)(F) OF THE CRIMINAL CODE

PETERSEN J.

Introduction

[1] This ruling relates to an application brought by the accused pursuant to s.638(1)(f) of the Criminal Code.

[2] Mr. J.E. is charged with sexual assault and sexual exploitation. He has elected to be tried by a judge and jury.

[3] Mr. J.E.’s first language is English. At his preliminary hearing, he requested an order pursuant to s.530(1)(c)(ii) of the Criminal Code directing that he be tried before a judge and jury who speak the official language of Canada that is his language, namely English. An order pursuant to s.530(1) is mandatory when the application is made in a timely fashion: R. v. Wilkins, 2016 ONSC 2966, at para.5. Duncan, J. granted the order, as required by the Criminal Code.

[4] It should be noted that Mr. J.E. would be tried in English in any event because his jury trial is scheduled to be conducted in Brampton, in Peel Region, where English is by far the more predominant of the two official languages spoken. The Superior Court in Brampton has the institutional capacity to conduct trials in either French or English, or bilingually in both French and English, but criminal trials are typically conducted in English, unless the accused elects to have a trial in French.

[5] Mr. J.E.’s request for a s.530 order was not animated by any concerns about his right to equal access to justice in the official language of his choice. According to the transcript of the preliminary hearing, the primary (if not sole) purpose of his request for the s.530 order was to safeguard the opportunity for him to make an application at trial to challenge prospective jurors for cause pursuant to s.638(1)(f) of the Criminal Code.

[6] Subsection 638(1)(f) of the Criminal Code states:

A prosecutor or an accused is entitled to any number of challenges on the ground that … 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 that is the language 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.

[7] It is settled jurisprudence that an order under s.530 is a pre-condition to an application pursuant to s.638(1)(f): R. v. Nelson, [2000] O.J. no.5241 (ONSC), at para.14; R. v. Richter, [2004] O.J. No.6302 (ONSC), at para.10; R. v. Leon, 2012 ONSC 575 at para. 29.

[8] Mr. J.E. now brings an application for an order from this Court permitting him to challenge all prospective jurors for cause on the issue of linguistic competence. He proposes to ask each prospective juror the following question:

As the Judge will tell you, it is your duty and responsibility as a juror to listen carefully to the spoken testimony of the witnesses, to examine the evidence in the exhibits filed, to attend diligently to the arguments of counsel and the instructions by the Judge on the law, and ultimately decide whether the Crown has proven the charges against the accused beyond a reasonable doubt. I am asking you, as a potential juror, to make a self-assessment. Do you understand written and spoken English well enough to take on the responsibilities and obligations of a juror in this trial?

[9] The Crown objects to the application.

Analysis

[10] The Supreme Court of Canada in R. v. Beaulac, [1999] 1 SCR 768 ruled, at para.7, that s.530(1) “creates an absolute right”, not one that is subject to the discretion of the trial judge. The Supreme Court did not, however, address the issue before me, namely whether the right to a trial before a judge and jury who speak English, when ordered pursuant to s.530(1), in conjunction with s.638(1)(f), guarantees the accused an automatic right to challenge every prospective juror for cause on the basis of linguistic competence.

[11] This issue has been addressed in several prior cases decided by this Court. Applications pursuant to s.638(1)(f) have been brought by accused persons in this jurisdiction and in Toronto over the past 15 years, with varying outcomes. In some cases, Crown counsel has consented to the challenge for cause on linguistic grounds. In cases where the application was contested by the Crown, some trial judges have allowed a question on linguistic competence to be put to each prospective juror and some judges have not. Where a linguistic competence question has been permitted, different formulations of the question have been approved in different cases. In many cases, the challenge for cause process was required in any event, as there was a race-based challenge.

[12] A number of the prior decisions are reviewed in the ruling of Justice Wein in Leon. A chart prepared by defence counsel is appended to her ruling. It summarizes certain elements of twelve prior decisions, but most of those decisions were not readily available to Justice Wein (para.27) and they were not put before me by counsel in this case.

[13] Since Leon was decided, the issue has been addressed in at least three more cases: Wilkins; R. v. Badr, 2017 ONSC 171; and R. v. Poobalasingham, 2018 ONSC 2080. In these more recent decisions, Justice Dawson and Justice André rejected the argument that the existence of a s.530 order mandates a challenge for cause procedure based on linguistic competence. In all three cases, Justice Dawson and Justice André held that a threshold “air of reality” had to be established by the accused, demonstrating the need for the proposed question, before any form of challenge for cause would be permitted. In each case, they found that no air of reality had been established and they therefore denied the accused’s application.

[14] It is worthy of note that trial judges who have permitted a challenge for cause question based on linguistic competence have not necessarily accepted the argument advanced by Defence counsel in this case, namely that as a matter of statutory interpretation, a trial judge is mandated to permit a challenge for cause under s.638(1)(f) of the Criminal Code in circumstances where, as here, an Ontario Court of Justice judge has made an order pursuant to s.530(1). For example, in R. v. Seenivasam, [2004] O.J. No.4888, Justice MacKenzie allowed a challenge for cause on the grounds of linguistic competence, but only after considering the evidence presented by the accused and determining that there was an air of reality to the accused’s concern about linguistic competence of prospective jurors (at para.38). Justice Seppi in R. v. Martin (unreported April 20, 2005) similarly permitted a linguistic competence question only after concluding, based on evidence called before her, that there was an “air of reality” for the requested challenge (see Leon, at para.25).

[15] Defence counsel argues that Mr. J.E. has a statutory right to challenge for cause based on linguistic competence, without having to establish any basis for the need to question jurors on this ground. He submits that I have no discretion to deny Mr. J.E.’s application because I am bound by s.530 and s.638(1)(f) to permit the requested challenge for cause questioning (subject only to my discretion to fix the appropriate question or questions to be asked).

[16] Defence counsel relies on the Ontario Court of Appeal decisions in R. v. Noureddine, 2015 ONCA 770, R. v. Kossyrine, 2017 ONCA 399, and R. v. Husbands, 2017 ONCA 607. He acknowledges my inherent jurisdiction, as trial judge, to control and supervise the jury selection process in order to use court resources efficiently and to ensure fairness to all involved in the process. However, he argues that my jurisdiction is circumscribed by specific Criminal Code provisions.

[17] While I agree that I do not have authority to ignore or contravene mandatory provisions of the Criminal Code, I disagree that sections 530(1) and 638(1)(f) require me to permit a challenge for cause question based on linguistic competence. The principle enunciated in the Noureddine, Kossyrine and Husbands decisions is therefore not applicable in the circumstances of this case: Poobalasingham, at paras.5-6.

[18] At the heart of this application is an issue of pure statutory interpretation. It is trite law that legislative provisions must be interpreted in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Bell ExpressVu v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at paras.26-27. Parliament’s intention when enacting s.530 of the Criminal Code has been identified by the Ontario Court of Appeal as an intent to “ensure equal access to the courts by accused persons who speak either official language” of Canada: R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646 at para.43. As noted earlier in my reasons, there is no barrier to Mr. J.E.’ access to court services in English. Mr. J.E., like the accused in Wilkins, is trying to employ a challenge for cause procedure designed to promote equal access to justice in either official language when there is no genuine language rights issue in his case.

[19] I agree with and adopt the reasons articulated by my colleague Justice Dawson in Wilkins, as follows:

[27] Taking a purposive approach and recognizing that language rights are substantive in nature, I conclude that s.638(1)(f) was enacted to assist in ensuring that an accused having a trial anywhere in Canada has a full opportunity to have their trial conducted in the official language of their choice or, in appropriate cases, a bilingual trial, where that would not occur in the normal course in the jurisdiction where the trial is to be held. In enacting s.638(1)(f) Parliament recognized that, in circumstances where s. 530 is being put to its intended use, some additional tools must be available to ensure that equality of access to justice in either official language is achieved. Section 638(1)(f) does not authorize a procedure by which an accused, who will have a trial in the official language of their choice in the normal course, may question prospective jurors about trial fairness issues related to their language competence. That is how the accused is trying to use the provision in this case and I conclude that it is a misuse of the provision, although well intentioned.

[20] I accept Defence counsel’s submission that the s.530 order entitles Mr. J.E. not only to a trial conducted in English (with the rights set out in s.530.1 of the Criminal Code), but also specifically to a trial before a judge and jury “who speak the official language of Canada that is the language of the accused”. That is the plain and ordinary meaning of the words used in the section. That does not, however, mean that s.530, in conjunction with s.638(1)(f), necessarily mandate a challenge for cause procedure based on linguistic competence in this case.

[21] As a number of my colleagues have noted in the Richter (at para.12), Leon (at paras.11-12 and 30), Badr (at para.14), and Wilkins (at para.28) cases, there are other mechanisms in place to vet prospective jurors for linguistic competence in the standard jury selection process used in this province. Preliminary remarks to the full jury panel inform prospective jurors of the language of the trial. In cases being tried in English, all members of the jury panel are asked by the trial judge to identify themselves and come forward if they believe that they may not have sufficient competence in the English language to act as a juror. The judge then hears from those prospective jurors in the presence of counsel. Typically the judge will probe the basis for the prospective juror’s asserted language deficiency because some individuals use purported language difficulties as a pretext to try to avoid jury service, when in fact their language proficiency is more than adequate. Where the trial judge concludes that the linguistic competence of a prospective juror is inadequate, the judge will excuse that individual from jury service.

[22] Defence counsel points to para.53 of the Supreme Court of Canada decision in R. v. Sherratt, [1991] 1 S.C.R. 509, where the Supreme Court gave favourable treatment to the following passage from the Quebec Court of Appeal decision in R. v. Guérin and Pimparé (1984), 13 CCC (3d) 231: “Certainly, the practice whereby the judge may ask the prospective juror several preliminary questions is commendable. However, it must not systematically remove all possibility of challenge for cause.” That comment was made in the context of challenge for cause based on partiality pursuant to s.638(1)(b), but Defence counsel argues that it applies equally to a challenge for cause based on language competence pursuant to s.638(1)(f).

[23] I agree that the standard screening procedure adopted by trial judges does not systematically preclude any possibility for a challenge for cause under s.638(1)(f). Given the legislative intent and object of s.530 of the Criminal Code, a challenge for cause procedure based on linguistic competence will be warranted in certain circumstances. For example, as Justice Dawson noted in Wilkins:

[30] Where an order pursuant to s. 530 has been obtained in accordance with its intended purpose, it may well be that a challenge for cause of each prospective juror pursuant to this provision will be appropriate. However, … the authorities governing the challenge for cause procedure require that a modest threshold showing be made that there is a need for the proposed challenge before any form of challenge for cause will be permitted. In my view, those requirements apply equally to a challenge pursuant to s. 638(1)(f). In a trial being conducted in French in a part of the province where the predominant official language is English, something of which judicial notice could be taken, that fact alone may be sufficient to persuade the presiding judge to exercise his or her discretion to permit a language based challenge for cause.

[24] In the circumstances of this case, the s.530 order was not animated by a genuine language rights concern. Mr. J.E.’ language (English) is the predominant official language spoken in the region. Although there may be some members of the jury panel whose current proficiency in English is inadequate to serve as jurors, there is no basis to believe that the standard screening process will not effectively screen them out. Moreover, there is nothing in the statutory language in sections 530(1) or 638(1)(f), when read purposively, that suggests Parliament intended to assign jurisdiction to decide the issue of language competence of each juror to the triers in a challenge for cause process in every case in which a s.530 order has been made.

[25] I want to be clear that I appreciate that juror competence in the language of the trial is necessary to a properly constituted jury. The issue before me is not whether that competence is required but rather how that competence is to be determined.

[26] Having concluded that Mr. J.E. does not have a statutory right to challenge prospective jurors for cause based on linguistic competence, I must turn to the issue of whether he has established some basis for a need to question prospective jurors about their language competence in this case. He has led no evidence, but it may nevertheless be possible for me to find the requisite “air of reality” based on notorious and incontestable facts.

[27] It is undisputed that the communities from which the jury panel has been selected are multi-cultural and are comprised of a significant number of immigrants. Although there is no evidence before me regarding the linguistic backgrounds of the relevant population, I am prepared to take judicial notice of the fact that Brampton and Mississauga – the two largest municipalities in this region – are ethnically diverse cities, with residents that include a substantial number of immigrants, many of whom originate from countries where neither English nor French is the predominant or official language. It is indisputable that many residents of this region do not speak English as their first language. It is also indisputable that some have achieved English fluency while others have not.

[28] I note, however, as Justice André did in Badr, at para. 18, that Canadian citizenship is a pre-requisite to juror eligibility. Section 5(1) of the Citizenship Act, R.S.C. 1985, c.C-29 stipulates that, in order to acquire Canadian citizenship, an immigrant who is between the ages of 18 and 55 years must have an adequate knowledge of one of the official languages of Canada and must be able to demonstrate, in one of the official languages, that they have an adequate knowledge of Canada and of the responsibilities and privileges of Canadian citizenship. Although the immigration standard of “adequate knowledge” of an official language is not necessarily equivalent to the standard applicable for linguistic competence to fulfil the duties of a juror, the requirement to pass an official language test suggests that many new Canadians who do not speak English as their first language may nevertheless have achieved English fluency by the time they acquired citizenship. Moreover, as Justice André noted in Badr, many immigrants will have acquired a working knowledge of English even before coming to Canada.

[29] As Justice Dawson stated in Wilkins, at para.44, “there is no direct correlation between the fact that someone’s mother tongue is not English and their English language abilities.” There is no basis upon which I could take judicial notice of facts establishing the existence of an air of reality underlying the concern that prospective jurors in this region lack adequate English language competence.

[30] I also agree with and adopt the following passages in Justice Dawson’s decision in Wilkins:

[45] While what I have said is sufficient to dispose of the application I would also note the following points, which are relevant to the exercise of my discretion. First, it will be time consuming to permit a challenge for cause of each prospective juror on this basis. Jury selections in this jurisdiction, which commonly involve a race based challenge for cause, usually take about a day to complete, even in routine cases where only one question is asked. Adding language questions and the associated instructions will significantly lengthen that process. What is proposed would result in numerous potential jurors who speak no language other than English being questioned about their English language abilities. This is not a situation akin to one in which a challenge for cause is permitted in an attempt to uncover racial prejudices. Anyone may harbour such prejudice. However, as the census data establishes, the mother tongue of most households within the major population centers of this region is English. Common sense and experience suggest that many more are proficient in English.

[46] Second, I am concerned that those on the jury panel who are members of visible minorities are likely to feel discriminated against if they are subjected to such questioning. Many of those people will have been born in Canada and English may be their first or only language. They may associate the questioning with their visible minority status.

[31] For all of the above reasons, I deny Mr. J.E.’s application to use the challenge for cause procedure to question prospective jurors on their English language competence.

Petersen J.

Released: June 19, 2019