COURT FILE NO.: CRIM (J)18-1060

DATE: 20190816

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen

Respondent

• and -

Timothy Smith and Matthew Mathers

Applicants

Counsel:

Mario Thomaidis, for the Crown

Edmond Brown, for the Applicant, Timothy Smith

Lindsay Daviau, for the Applicant, Matthew Mathers

HEARD: July 23 and 24, 2019

REASONS FOR JUDGMENT

TZIMAS J.

INTRODUCTION

1This ruling relates to the application brought by the accused, Timothy Smith and supported by the co-accused, Matthew Mathers pursuant to section 638(1)(f) of the Criminal Code. Both accused seek the court’s permission to challenge all prospective jurors on their knowledge of the English language and more specifically their competence in that language.

2The accused were charged with sexual interference and sexual assault. They have elected to be tried by a judge and jury. Although not expressly stated by either of the accused, they are both English-speaking.

3At the preliminary hearing before Justice Rahman, held on May 16, 2018, the accused requested and obtained an order pursuant to section 530(1) of the Criminal Code directing that they be tried before a judge and jury who speak English, one of Canada’s official languages.

4The accused submitted that having obtained the mandatory section 530(1) order to have their trial in English, the accused are entitled by operation of section 638(f) to conduct a challenge for cause inquiry to verify that the prospective jurors can speak and read English. Counsel argued that the request did not have to rest on any specific concern but that it rested on Canadians’ fundamental right to be served in one of Canada’s official languages as recognized in the Constitution Act, 1867, in the Constitution Act, 1982 and the Charter of Rights and Freedoms, and the Official Languages Act, R.S.C. 1985 c.31.

5Counsel distinguished a challenge for cause to verify language competency from those challenges for cause concerned with partiality and racial bias. He argued that where a court may exercise discretion in relation to concerns over partiality as a means of managing the jury selection process, there was no discretion to be exercised in relation to language competency. A trial could not be fair if a juror failed to understand the evidence. Ultimately, he concluded that section 638(f) was a language right and to deny the accused the right to conduct the proposed challenge for cause would be to deny them their exercise of that right.

6Crown counsel opposed the application and argued that the proposed challenge for cause was not automatic but required an evidentiary foundation to establish an air of reality to obtain the relief sought, namely, to challenge each and every prospective juror on his or her competency and proficiency in the English language. He further argued that the evidentiary foundation must not be just a theoretical concern but rather must be sufficient to demonstrate the inadequacy of the customary screening process that is employed with respect to all persons attending as members of jury panels.

7Having considered the submissions of counsel and the extensive cases that have considered this specific issue, I have come to the conclusion that a challenge for cause to verify language competency for one or both of Canada’s Official Languages, is not an absolute right. Failure to allow such an inquiry will not jeopardize the court’s jurisdiction, provided that the court conducts the appropriate vetting of the jurors. For the reasons that follow the application is dismissed.

ANALYSIS

8To begin with, I rely on and adopt the analysis contained in the following decisions to support the dismissal of the application before me: R v. Richter, [2004] O.J. No. 6302, R v. Leon, 2012 ONSC 575, R v. Wilkins, [2016] O.J.No. 6302, R v. Badr, 2017 ONSC 171, R v. Poobalasingham, 2018 ONSC 2080, and R v. Edwards, 2019 ONSC 3813. The latter case is especially helpful as it offers a thorough and useful review of the jurisprudence on this issue.

9The specific question that the accused would like to put to prospective jurors is the following:

“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?

10While a request for an order under section 530 is an absolute right of an accused and an order is mandatory, the request for a section 530 order in this instance, followed by this application is rather curious, in that a) the jury trial is to be conducted in Brampton, in Peel Region, where English is the predominant of the two official languages; b) the Superior Court in Brampton has the institutional capacity to conduct trials in either English or French, or bilingually in both French and English; and c) criminal trials are typically conducted in English absent an election to have the trial conducted in French.

11Perhaps most significantly, jury panels and the potential jurors are vetted for their ability to hear and to understand the English language. The essence of the question that Mr. Smith seeks to put to the panel is reflected in the direction that the trial judge gives to the jury panels. Specifically, panel members and potential jurors are invited to self-identify and are asked the following:

Our law also requires that each juror be able to understand the language that will be used in the trial. In this case, witnesses will testify and others involved in the case will speak English. Documents written in English may be made exhibits.

I realize there are some of you for whom English is not your first language. That does not mean you are not able to be a juror. There are many Canadian citizens who speak a number of languages quite well, including English.

However, if you have difficulty understanding English as it is spoken or written, to the point where you truly believe it would affect your ability to carry out your jury duty, please tell me about that.

12On the rare occasions when an accused wishes to have a trial in French, a similar inquiry will be conducted as part of the vetting to ensure that the potential jurors are able to understand both oral and written French.

13In my experience, specifically in Brampton, when people self-identify, a short conversation or written exchange between the judge and the potential juror can shed significant light on their actual language competency. That exchange, combined with possible questions about what they do for a living and what their daily interaction with English-speaking individuals is like offers a fair bit of information on the individual’s actual level of English competence and his or her proficiency.

14The individual who is new to Canada, who stays at home to look after young children, and who has no material social interaction outside of the immediate ethnocultural milieu may have less opportunities to speak English and may indeed have language limitations. By contrast, the individual who says that his or her language skills are limited but then works in a professional environment where English is spoken regularly and where that person could not operate without speaking English, will be rather suspect if he or she suggests that they do not speak English.

15Sometimes, it is indeed the case that such self-identifying individuals are limited in their knowledge of English. Frequently however, potential jurors seek to use the level of their English proficiency to evade jury duty altogether. This experience is typical of the experiences reported in other instances: see Richter, (at para. 12), Leon (at paras. 11-12 and 30), Badr (at para.14), Wilkins (at para. 28), and Edwards (at para. 21).

16The point to all this is that jury panels are vetted for language and the process works. To repeat the inquiry with a challenge for cause question would be a waste of time.

17I do recognize, as did Petersen J., that the standard screening process adopted by a trial judge may not systematically preclude any possibility for a challenge for cause further to s. 638(1)(f) and that the legislative intent of sections 530 and 638(f) may warrant a challenge for cause, I echo Dawson J.’s observation at para. 30 of Wilkins where he noted:

“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(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.”

18Such a discretionary approach is consistent with L’Heureux-Dube J.’s discussion of the trial judge’s supervisory powers in R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509 at pp. 535-36 S.C.R.:

A number of factors need to be addressed in answering this question. To begin with, s. 567 (now s. 638) of the Criminal Code places little, if any, burden on the challenger. On the other hand, a reasonable degree of control must be retained by the trial judge and, thus, some burden placed upon the challenger to ensure that the selection of the jury occurs in a manner that is in accordance with the principles I have previously articulated and also to ensure that sufficient information is imparted to the trial judge such that the trial of the truth of the challenge is contained within permissible bounds. Thus, while there must be an "air of reality" to the application, it need not be an "extreme" case. . . .

19In R v. Parks, 1993 CanLII 3383, ONCA, Doherty J. noted:

I turn now to the principles applicable to the challenge for cause process. The accused's right to challenge for cause based on partiality is essential to both the constitutional right to a fair trial and the constitutional right, in cases where the accused is liable to five or more years' imprisonment, to trial by jury. An impartial jury is a crucial first step in the conduct of a fair trial: R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509 at p. 525, 63 C.C.C. (3d) 193 at p. 204. The accused's statutory right to challenge potential jurors for cause based on partiality is the only direct means an accused has to secure an impartial jury. The significance of the challenge process to both the appearance of fairness, and fairness itself, must not be underestimated.

The Criminal Code, R.S.C. 1985, c. C-46, provides for: the right to challenge for cause based on partiality (s. 638(1) (b)); the form in which the challenge may be presented (s. 639); and the way in which the validity of the challenge is to be determined (s. 640). The rest of the controlling law is judge-made. Under the prevailing jurisprudence, the trial judge must supervise and control the challenge process so that it remains within the bounds of a legitimate inquiry into the impartiality of potential jurors. In exercising this supervisory function, the trial judge does not decide the ultimate validity of any challenge for cause based on partiality, but only whether the challenge should proceed: R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694 at p. 714, 38 C.C.C. (3d) 193 at p. 209. (My emphasis).

Trial judges often perform their supervisory function by vetting the questions counsel propose to ask prospective jurors. The questions must go to an issue which is relevant to the jurors' potential partiality, that is, the answers to the question or questions must provide a rational basis upon which the triers may assess partiality. It is not, however, enough that the questions be relevant. The party seeking to put the questions must go further and establish grounds for legitimate concern with respect to the basis for the alleged partiality put forward. (My emphasis).

20Mr. Brown’s submission that Parks and Sherratt were concerned with the issue of a juror’s partiality and not with a juror’s comprehension of one or both of Canada’s Official languages, was unconvincing and missed the essential point that required trial judges to supervise and control the trial process. In addition, the cases also spoke to the fairness of a trial to the accused. There can be no doubt that language comprehension is an essential element of trial fairness. I therefore fail to see how a trial judge would be permitted to exercise his or her discretion on issues going to the fairness of a trial to the exclusion of language considerations.

21This brings me full circle to expressly recognize Dawson J.’s finding in Wilkins, at para. 25 that s. 638(f) is complementary to the purpose of ss.530 and 530.1 and his further conclusion that “the purpose of the challenge for cause provided for by s.638(1)(f) is to assist in achieving the objective of equal access to justice in either of the official languages of Canada. It is primarily a language rights provision and any trial fairness considerations are subservient to that purpose. Trial fairness is always important but, as emphasized in Beaulac, language rights rest on a separate foundation and are not to be confused with trial fairness provisions.” I also take express note of the following at para. 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 chases, 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 competence. That is how the accuse is trying to use the provisions in this case and I conclude that it is a misuse of the provision, although well intentioned.

22Against these legal principles, this application presents me with the following difficulties.

23First, the overriding reality is that even if Mr. Brown presented his client’s concern as an exercise of one’s absolute language rights and a right to equal access to justice, he went on to elaborate that it would not be fair to the accuse if a juror were unable to understand or follow the evidence because of language difficulties. Given that actual concern, the use of s.638(1)(f) to evaluate a potential juror’s competence amounts to a misuse of the provision.

24Second, and perhaps more significantly, neither of the accused raised any concerns with the quality or the effectiveness of the measures or the vetting process deployed by the Court to identify individuals who have difficulty understanding English. There was no evidentiary foundation or any air of reality to the concern that the jury selection process would fail to yield 12 jurors who will be linguistically competent or that their right to equal access to justice would be compromised. The only evidence before me was the submission that Brampton is a multiethnic community with many individuals who are first or second generation immigrants and who may not be very fluent in English.

25Third, and related to the first two points, neither accused led any evidence that they actually encountered barriers to access court services in English. The trial will be in English. Both accused are attempting 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.

26Ultimately, the best that counsel could say about any air of reality to the accuseds’ concern was to suggest that in a jurisdiction such as Brampton, where the community composition is ethnically diverse, prospective jurors could include people who did not speak English. But he offered no evidence to support the implication that prospective jurors in this region lack adequate English competence. There is no air of reality to such an implication to warrant a challenge for cause.

27These fundamental deficiencies lead me to echo the concerns raised by Dawson J. in Wilkins and echoed by Petersen J. in Edward:

[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 centres 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 it 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.

28For all of the above reasons, I deny Mr. Smith’s application to use the challenge for cause procedure to question prospective jurors on their English language competence.

Tzimas J.