Her Majesty the Queen v. Gordon

[Indexed as: R. v. Gordon]

Ontario Reports

Ontario Superior Court of Justice

Forestell J.

November 12, 2019

148 O.R. (3d) 416 | 2019 ONSC 6508

Case Summary

Charter of Rights and Freedoms — Remedies — Declaration of invalidity — Before trial, Parliament repealed peremptory challenge provisions of Criminal Code — Judge of coordinate jurisdiction recently declaring that repeal of peremptory challenge infringed s. 11 of the Charter by denying a right to a fair trial with an independent and impartial jury and infringed s. 7 by being overbroad — Decision not binding but ought to be followed unless plainly wrong — Section 11 analysis was grounded in unsupported conclusions regarding peremptory challenge process and improperly applied objective test — Conclusion regarding overbreadth disregarded other means of preventing discrimination against accused — Decision was plainly wrong — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, s. 634. [page417]

Charter of Rights and Freedoms — Right to fair trial — Before trial, Parliament repealed peremptory challenge provisions of Criminal Code — Judge of coordinate jurisdiction recently declaring that repeal of peremptory challenge infringed s. 11 of the Charter by denying a right to a fair trial with an independent and impartial jury and infringed s. 7 by being overbroad — Decision not binding but ought to be followed unless plainly wrong — Section 11 analysis was grounded in unsupported conclusions regarding peremptory challenge process and improperly applied objective test — Conclusion regarding overbreadth disregarded other means of preventing discrimination against accused — Decision was plainly wrong — Canadian Charter of Rights and Freedoms, s. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, s. 634.

Courts — Stare decisis — Superior Court of Justice — Before trial, Parliament repealed peremptory challenge provisions of Criminal Code — Judge of coordinate jurisdiction recently declaring that repeal of peremptory challenge infringed s. 11 of the Charter by denying a right to a fair trial with an independent and impartial jury and infringed s. 7 by being overbroad — Decision not binding but ought to be followed unless plainly wrong — Section 11 analysis was grounded in unsupported conclusions regarding peremptory challenge process and improperly applied objective test — Conclusion regarding overbreadth disregarded other means of preventing discrimination against accused — Decision was plainly wrong — Canadian Charter of Rights and Freedoms, s. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, s. 634.

Criminal law — Jury selection — Peremptory challenge — Before trial, Parliament repealed peremptory challenge provisions of Criminal Code — Judge of coordinate jurisdiction recently declaring that repeal of peremptory challenge infringed s. 11 of the Charter by denying a right to a fair trial with an independent and impartial jury and infringed s. 7 by being overbroad — Decision not binding but ought to be followed unless plainly wrong — Section 11 analysis was grounded in unsupported conclusions regarding peremptory challenge process and improperly applied objective test — Conclusion regarding overbreadth disregarded other means of preventing discrimination against accused — Decision was plainly wrong — Canadian Charter of Rights and Freedoms, s. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, s. 634.

The accused was charged with second degree murder. Shortly before his trial, amendments to the Criminal Code came into force. Section 634, providing for peremptory challenges during jury selection, was repealed and replaced with a provision allowing for a judge to direct a juror to stand by for reasonable cause. The accused submitted that the repeal of s. 634 denied him his right to a fair trial pursuant to ss. 7, 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms. Much of the jurisprudence in Ontario did not support his position, but a very recent decision of the Superior Court of Justice in R. v. King had struck down the amendments. The accused applied for a declaration that the repeal of the peremptory challenge procedure was unconstitutional and of no force and effect.

Held, the application should be dismissed.

The King case, being a decision of a judge of coordinate jurisdiction, was not binding. However, because there was a declaration of constitutional invalidity, it ought to be followed unless it was plainly wrong. The analysis of the alleged s. 11(d) violation by the judge in King was grounded on an unsupported conclusion [page418] that peremptory challenges guarantee representativeness and that the right of an accused to a fair and impartial trial includes a right to directly participate in jury selection through the exercise of peremptory challenges. The correct objective test was not applied to the safeguards in the jury selection process as a whole. The new stand aside provision was wrongly found to be overly vague. The judge held the impugned legislation to be overbroad in that it removed a mechanism to prevent discrimination against the accused; however, the challenge for cause was still in effect and the enhanced stand aside power was a further tool to prevent discrimination. A reasonable person, fully informed of the relevant history and evolution of the jury process and the safeguards inherent in the process, could not conclude that the changes to the selection process created a reasonable apprehension of bias. The King decision was plainly wrong and the legislation was constitutional.

R. v. Chouhan (2019), 148 O.R. (3d) 53, [2019] O.J. No. 4797, 2019 ONSC 5512 (S.C.J.), apld

R. v. King, [2019] O.J. No. 5587, 2019 ONSC 6386 (S.C.J.), not folld

Other cases referred to

Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72; R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3; R. v. Chan, [2019] O.J. No. 504, 2019 ONSC 783, 428 C.R.R. (2d) 81 (S.C.J.); R. v. Cloutier, 1979 25 (SCC), [1979] 2 S.C.R. 709, [1979] S.C.J. No. 67, ; R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6; R. v. Gayle (2001), 2001 4447 (ON CA), 54 O.R. (3d) 36, [2001] O.J. No. 1559 (C.A.); R. v. Hall, [2002] 3 S.C.R. 309, [2002] S.C.J. No. 65, 2002 SCC 64; R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101; R. v. Kakekagumick, [2019] O.J. No. 5286, 2019 ONSC 6008 (S.C.J.); R. v. Kokopenace, [2015] 2 S.C.R. 398, [2015] S.C.J. No. 28, 2015 SCC 28; R. v. McCaw, [2018] O.J. No. 4134, 2018 ONSC 3464, 416 C.R.R. (2d) 99, 149 W.C.B. (2d) 476, 48 C.R. (7th) 359 (S.C.J.); R. v. Muse, [2019] O.J. No. 5659, 2019 ONSC 6119 (S.C.J.); R. v. Sarmales, [2017] O.J. No. 1649, 2017 ONSC 1869, 378 C.R.R. (2d) 282 (S.C.J.); R. v. Scarlett, [2013] O.J. No. 644, 2013 ONSC 562 (S.C.J.); R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509, [1991] S.C.J. No. 21; R. v. Spiers (2012), 113 O.R. (3d) 1, [2012] O.J. No. 5450, 2012 ONCA 798; R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, [1998] S.C.J. No. 49, 159 D.L.R. (4th) 493, 226 N.R. 162, [1999] 4 W.W.R. 711, J.E. 98-1315, 107 B.C.A.C. 1, 56 B.C.L.R. (3d) 390, 124 C.C.C. (3d) 481, [1998] 3 C.N.L.R. 257, 15 C.R. (5th) 227, 52 C.R.R. (2d) 189, 38 W.C.B. (2d) 295; R. v. Yumnu, [2010] O.J. No. 4163, 2010 ONCA 637, 269 O.A.C. 48, 260 C.C.C. (3d) 421, 90 W.C.B. (2d) 298

Statutes referred to

An Act to amend the Criminal Code, the Youth Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d), (f)

Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52(1)

Criminal Code, R.S.C. 1985, c. C-46 [as am.], ss. 633 [as am.], 634 [rep.]

APPLICATION to declare Criminal Code amendments to be unconstitutional and of no force and effect.

R. Kenny and B. Donohue, for Crown/respondent.

A. Monaco and M. Hayworth, for defendant/ applicant.

Overview

[1] The applicant, Enrique Christopher Gordon, is charged with the second-degree murder of David Blacquiere on November 14, [page419] 2017 in Toronto. The applicant's trial was scheduled to commence on Monday, November 4, 2019 with jury selection scheduled for November 6, 2019. Jury selection is now scheduled to proceed on November 13, 2019 because an issue has arisen with respect to the constitutionality of the jury selection procedure.

[2] On September 19, 2019, sections of the Criminal Code, R.S.C. 1985, c. C-46 governing jury selection were amended by the coming into force of Bill C-75: An Act to amend the Criminal Code, the Youth Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25 (the "Act").

[3] The Act amended the Criminal Code to remove the right of the parties to challenge potential jurors peremptorily. The applicant submits that repeal of the right to challenge peremptorily is unconstitutional because it is inconsistent with ss. 7, 11(d) and (f) of the Canadian Charter of Rights and Freedoms (the "Charter") and the provisions should be declared to be of no force and effect under s. 52(1) of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Constitution Act").

The Legislation

[4] Prior to September 19, 2019, the relevant jury selection provisions in the Criminal Code read as follows:

632. The judge may, at any time before the commencement of a trial, order that any juror be excused from jury service, whether or not the juror has been called pursuant to subsection 631(3) or (3.1) or any challenge has been made in relation to the juror, for reasons of

(a) personal interest in the matter to be tried;

(b) relationship with the judge presiding over the jury selection process, the judge before whom the accused is to be tried, the prosecutor, the accused, the counsel for the accused or a prospective witness; or

(c) personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused.

633. The judge may direct a juror who has been called pursuant to subsection 631(3) or (3.1) to stand by for reasons of personal hardship or any other reasonable cause.

634(1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638.

(2) Subject to subsections (2.1) to (4), the prosecutor and the accused are each entitled to

(a) twenty peremptory challenges, where the accused is charged with high treason or first degree murder;

(b) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a), for [page420] which the accused may be sentenced to imprisonment for a term exceeding five years; or

(c) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a) or (b).

[5] The Act repealed s. 634 of the Criminal Code and amended s. 633 to read as follows:

633. The judge may direct a juror who has been called under subsection 631(3) or (3.1) to stand by for reasons of personal hardship, maintaining public confidence in the administration of justiceor any other reasonable cause.

(Emphasis added)

The Caselaw Considering the Constitutionality of the Legislation

[6] In R. v. Chouhan,[^1] on September 24, 2019, McMahon J. of this court considered the constitutionality of the repeal of the peremptory challenge provisions and concluded that the elimination of the peremptory challenge process was not unconstitutional. This decision with respect to constitutionality was followed by C. Brown J. in R. v. Muse, [2019] O.J. No. 5659, 2019 ONSC 6119 (S.C.J.) and by Fregeau J. in R. v. Kakekagumick, [2019] O.J. No. 5286, 2019 ONSC 6008 (S.C.J.).

[7] On November 4, 2019 in R. v. King,[^2] A. Goodman J., also a judge of this court, reached the conclusion that the provisions that eliminated the peremptory challenge process were inconsistent with ss. 7, 11(d) and (f) of the Charter and could not be saved under s. 1 of the Charter. He declared the new provisions to be of no force and effect under s. 52(1) of the Constitution Act.

The Issues

[8] This application raises the following issues:

(a) Am I bound by the declaration of invalidity in the case of R. v. King,2019 ONSC 6386?

If I am not bound by that decision,

(b) Is the decision plainly wrong?

If the decision is plainly wrong,

(c) Should the Act repealing s. 634 of the Criminal Code, nevertheless be declared invalid and of no force and effect, pursuant to s. 52(1) of the Constitution Act? [page421]

1. Am I bound by the decision of Goodman J declaring the Act repealing s. 634 to be of No Force and Effect?

[9] In R. v. Ferguson,[^3] McLachlin C.J.C., writing for the court, considered what remedy a trial judge is entitled to grant once finding that a particular provision violates the Charter. She explained [at para. 35] that:

Two remedial provisions govern remedies for Charter violations: s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. . . . Section 24(1) has generally been seen -- at least until now -- as providing a case-by case remedy for unconstitutional acts of government agents operating under lawful schemes whose constitutionality is not challenged. The other remedy section, s. 52(1) of the Constitution Act, 1982, confers no discretion on judges. It simply provides that laws that are inconsistent with the Charter are of no force and effect to the extent of the inconsistency.

[10] She went on to hold [at paras. 59 and 65] that:

When a law produces an unconstitutional effect, the usual remedy lies under s. 52(1), which provides that the law is of no force or effect to the extent that it is inconsistent with the Charter . . . s. 52(1) does not create a personal remedy. A claimant who otherwise has standing can generally seek a declaration of invalidity under s.52 on the grounds that a law has unconstitutional effects either in his own case or on third parties . . .

The presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case-by-case remedies. To the extent that the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand. It is null and void, and is effectively removed from the statute books.

[11] R. v. Ferguson has been interpreted to mean that when a judge of a Superior Court has declared a law to be invalid under s. 52(1) of the Constitution Act, the declaration is binding on all courts of concurrent or lower jurisdiction. This was the interpretation of Ferguson in R. v. McCaw.[^4] In R. v. Chan,[^5] Boswell J. reached a different conclusion. Relying on the decision of Strathy J. (as he then was), in R. v. Scarlett,[^6] Boswell J. concluded that in a constitutional case, the decisions of judges of coordinate jurisdiction were not binding. There is, however, strong reason for heightened judicial restraint on the part of judge considering [page422] the same issue following a finding by a judge of coordinate jurisdiction that the provision is unconstitutional.[^7]

[12] Justice Strathy, in R. v. Scarlett, at para. 43, stated:

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., [. . .] R. v. Northern Electric Co. Ltd., [. . .] Reasons to depart from a decision, referred to in Hansard Spruce Mills, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong[.]

[13] I agree with the analysis and conclusion of Boswell J. in R. v. Chan and I conclude that I am not bound by the declaration of invalidity by Goodman J. in R. v. King.

[14] I also agree that in this case, where there is a prior decision declaring the Act unconstitutional, I should follow that decision unless it is plainly wrong. The decision should be followed unless there are cogent reasons to depart from it.

2. Is the prior decision of Goodman J. plainly wrong?

Overview

[15] Justice Goodman in King found that the decision of McMahon J. in Chouhan was plainly wrong and he therefore declined to follow it. I have concluded, with respect, that the decision of Goodman J. is plainly wrong. I recognize that conflicting decisions, including my decision in this case, create inconsistency and uncertainty in the law but I cannot agree with Goodman J. that the amendments are unconstitutional.

[16] Justice Goodman found that the elimination of peremptory challenges violated the s. 11(d) and (f) rights of an accused. He further found that the legislation affected the liberty interest of the accused in a manner that does not accord with the principles of fundamental justice because the law is overbroad. He found the breaches were not justified under s. 1 of the Charter.

[17] I find that he was wrong in his analysis:

1. In holding that direct participation in the jury selection process by the accused through the peremptory challenge process is a guarantor of representativeness and that therefore the [page423] fair trial rights of the accused include a right to participate directly through the use of the peremptory challenge;

2. In holding that the inability to directly participate in the jury selection process is a violation of the accused's right under s. 11(d) to a fair trial by an independent and impartial tribunal. In reaching this conclusion, in my view, Goodman J. articulated the correct objective test but failed to apply it;

3. In holding that the safeguard of the enhanced stand aside provision is ineffective in protecting the fairness of the process because the purpose of "maintaining public confidence in the administration of justice" is too vague and ambiguous;

4. In considering the adequacy of the safeguards (representativeness of the jury panel, randomness of the selection of the panel and the petit jury, challenge for cause, the discretion of the trial judge to excuse and the discretion of the trial judge to stand aside) individually rather than cumulatively;

5. In finding the legislation to be overbroad and a violation of s. 7 based on its potential effect to discriminate against minority accused by ignoring the availability of challenge for cause; and

6. In finding its application overbroad in that it applies in cases where there are no concerns for discriminatory use of the peremptory challenges as there is no basis to conclude that such cases exist.

[18] Sections 7, 11(d) and (f) of the Charter provide the following:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment. [page424]

Representativeness

[19] I am of the view that Goodman J. was wrong when he held: "The means to directly participate in the jury selection process through peremptory challenges is the process by which representativeness is guaranteed."[^8]

[20] The Supreme Court of Canada considered the definition and role of representativeness in R. v. Sherratt [at paras. 30-31, 35-37]:[^9]

The jury, through its collective decision making, is an excellent fact finder; due to its representative character, it acts as the conscience of the community; the jury can act as the final bulwark against oppressive laws or their enforcement; it provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as a whole.

These rationales or functions of the jury continue to inform the development of the jury and our interpretation of legislation governing the selection of individual jurors. The modern jury was not meant to be a tool in the hands of either the Crown or the accused and indoctrinated as such through the challenge procedure, but rather was envisioned as a representative cross-section of society, honestly and fairly chosen. Any other vision may run counter to the very rationales underlying the existence of such a body.

The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place. Provincial legislation guarantees representativeness, at least in the initial array. The random selection process, coupled with thesources from which this selection is made, ensures the representativeness of Canadian criminal juries. (See the provincial Jury Acts.) Thus, little if any objection can be made regarding this crucial characteristic of juries. Schulman and Myers, supra, make this clear at p. 408 of their discussion:

Jury qualification requirements in Canadian provinces are considerably different than those in the United States or England. The American Bar Association standards for trial by jury, as recommended by the Advisory Committee on the Criminal Trial, say that -- "The names of those persons who may be called for jury service should be selected at random from sources which will furnish a representative cross-section of the community." Canadian laws by and large have long met the standard. [Footnotes omitted, underline emphasis added in the original.] [page425]

However, the "in-court" selection procedure, set out in the Criminal Code, can impact on the representativeness of the jury in some situations. The impartiality of the jury is controlled in the main through the Criminal Code procedure . . .

In order, then, to be meaningful, the application of the Criminal Code provisions must be informed by these larger expressions of principle.

(Bold emphasis added)

[21] In Kokopenace, the majority and dissenting reasons cited Sherratt with approval. Moldaver J. for the majority said:[^10]

Representativeness focuses on the adequacy of the jury selection process. It does not require the state to ensure that any particular perspective is represented on the jury roll, nor does it require the state to ensure that its source lists proportionately represent all groups that are eligible for jury duty. It follows that the test to determine whether the state has complied with its representativeness obligation focuses on the process used throughout jury selection as opposed to the ultimate composition of the jury roll.

[22] Justice Cromwell wrote in dissent in Kokopenace:[^11]

Representativeness of the jury, while of fundamental importance, is nonetheless understood in an "inherently qualified" sense: [. . .] The focus of representativeness is on whether the jury roll, from which jurors will ultimately be selected, is as broadly representative of the community as would a group of people selected at random from within that community. When I refer to the requirement of representativeness, I am referring to representativeness in this sense. In the leading case of R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509, at p. 525, L'Heureux-Dubé J. explained that a jury will be sufficiently representative if the initial array (and I would add, the roll from which it is selected) is composed of a random selection made from appropriate sources[.]

(Emphasis added)

[23] In Sherratt, the court observed that peremptory challenges can be used to alter the somewhat the degree to which the jury represents the community. At para. 58 of Sherratt, L'Heureux-Dubé J. wrote:

This, however, does not mean that an accused has the right to a favourable jury nor that the selection procedure can be used to thwart the representativeness that is essential to the proper functioning of a jury. While it may be, in some instances, that the peremptory challenges allocated to the accused and the Crown, and the Crown's additional right to stand aside, will be used by the parties to alter somewhat the degree to which the jury represents the community, peremptory challenges are justified on a number of grounds. The accused may, for example, not have sufficient information to challenge for cause a member of the panel he/she feels should be excluded. Peremptory challenges can also, in certain circumstances, produce a more representative jury depending upon both the nature of the community and the accused. [page426] Challenges of this nature also serve to heighten an accused's perception that he/she has had the benefit of a fairly selected tribunal.

(Emphasis added)

[24] As set out in this passage from Sherratt, the peremptory challenge may produce a more or less representative jury. The identified purposes of peremptory challenges justify the slight departure either way from the representativeness created and guaranteed by the representativeness of the initial array and roll and the randomness of the selection process of the panel and the jury.

[25] In R. v. Bain,[^12] Cory J. quoted the passage from Sherratt and stated the following:

[R]andom selection, which favours representativeness, provides as well a certain guarantee that the jury will also be impartial, but this is by no means true in all cases. Randomness is not a panacea. Indeed in order to bolster the impartiality of the jury the Criminal Code offers to the parties various means of challenging prospective jurors whether collectively or individually, at s.558 (now s.629), 562 (now s. 633), 563 (now 634) and 57 (now 638). In Sherratt, the majority of this court has recognized that these challenges contribute to the impartiality of the jury and sometimes even improve its representativeness.

(Emphasis added)

[26] Relying on Sherratt and Bain, Goodman J. concludes in King at para. 103 that "[t]he means to directly participate in the jury selection process, through peremptory challenges, is the process by which representativeness is guaranteed".

[27] With respect, I find Goodman J.'s conclusion that the means to participate directly through peremptory challenges is the process by which representativeness is guaranteed is not supported by the caselaw.

[28] The Supreme Court of Canada in Sherratt and in Kokopenace clearly stated that representativeness is largely guaranteed by the representativeness of the jury roll and the random selection process. Peremptory challenges were merely recognized to have the potential to alter representativeness to some degree. This alteration of representativeness, to a greater or lesser degree was tolerated because of the other virtues of the peremptory challenge. The Supreme Court has not held that peremptory challenges in all cases enhance representativeness and certainly has not held that peremptory challenges guarantee representativeness.

[29] I also disagree with Goodman J.'s apparent conclusion that because representativeness may be impacted by the in-court selection procedure, the accused has a constitutional right to "direct participation" which is only accomplished through [page427] peremptory challenges. He states, at para. 105, that "the accused's constitutional right to a fair jury trial selection process includes his or her direct participation". This proposition is not supported by the caselaw and appears to conflate the rights under s. 11(d) and (f) and to rely on the flawed reasoning that peremptory challenges guarantee representativeness.

[30] Representativeness is a strong indicator of impartiality.[^13] However, a problem with representativeness will not necessarily undermine impartiality. As Moldaver J. wrote in Kokopenace at para. 58: "[A] problem with representativeness will violate s. 11(f) even if it is not so serious as to undermine impartiality. That said, if a problem with representativeness does undermine impartiality, it will violate both ss. 11(d) and 11(f)."

Peremptory Challenges and S. 11(d)

[31] I am also of the view that Goodman J. was wrong when he held that that the "lack of direct and fundamental participation by an accused may give rise to a breach under s. 11(d)".[^14]

[32] Justice Goodman reaches this conclusion after reviewing the cases that comment on the importance of the peremptory challenge and its role in fostering confidence in the fairness of the trial. See, e.g., R. v. Gayle,[^15] R. v. Yumnu,[^16] R. v. Spiers,[^17] R. v. Cloutier[^18]and R. v. Bain). These cases emphasize the importance of peremptory challenges as part of a fair jury selection process, but they do not state that there is a constitutional right to challenge peremptorily.

[33] I find that Goodman J.'s approach to the question of whether there was a violation of s. 11(d) was flawed. While he articulated the correct test to determine whether there has been a s. 11(d) violation, he did not apply it. After considering Goodman J.'s analysis, I discuss his application of the test in greater detail below.

[34] Justice Goodman did not look at the process in its entirety, including safeguards, and determine whether a reasonable person, fully informed of the circumstances would have a reasonable apprehension of bias. Instead, having concluded that the elimination [page428] of peremptory challenges affected the fair trial rights of an accused, Goodman J. then held that he must [at para. 134] "consider whether the new provisions, in their entirety, are an adequate substitute, surrogate or enhancement for impartiality, representativeness and trial fairness".

[35] He considered the safeguards identified by McMahon J. in Chouhan: the representativeness of the jury panel, the randomness of the selection of the jury panel and the petit jury, challenge for cause, the trial judge's discretion to excuse prospective jurors and the trial judge's discretion to stand aside jurors. Justice Goodman dismissed as inadequate the representativeness of the jury panel and the randomness of the selection of the panel and petit jury as "nothing new" and "no change" from the regime prior to the amendments. Pointing out that challenge for cause is not universally available, he found that this safeguard is [at para. 138] "of no utility and irrelevant to a substantial number of criminal jury trials". With respect to the discretion to excuse, he found that this safeguard does not address any concern raised by the accused and, again, is "not new".

[36] I find that Goodman J. was wrong in his approach to the consideration of the safeguards in the jury selection process. He considered each safeguard individually rather than cumulatively and assumed that provisions that existed prior to the amendments were inadequate as they were "nothing new".

[37] Justice Goodman found that the enhanced stand aside power in the legislation was ambiguous and imprecise and thus inadequate. He held, at para. 153, referring to the change in wording in the stand aside provision:

[T]he former words "reasonable cause" are now replaced by "maintaining public confidence in the administration of justice." In my view, the addition of this new language is mere verbiage. When one examines the true effect of the changes in wording of s. 633, there are really no "expanded powers" other than the judge now deciding, in effect, the peremptory challenge; this time with Crown or defence counsel having to fully articulate on the record the subjective basis upon which it is to be exercised.

At para. 157, Goodman J. concluded that "the current stand by provision is ill defined. Vagueness cannot be an adequate substitute for the rights afforded an accused for a fair trial".

[38] I also disagree with his assessment of the new stand aside provisions. Justice Goodman concluded that they were inadequate because of the vagueness and ambiguity of the enhanced power to stand aside in order to maintain confidence in the administration of justice. In reaching this conclusion he failed to consider relevant caselaw. In particular, he made no reference to the judgment of the Supreme Court of Canada in R. v. Hall in [page429] which the court states, in relation to the tertiary grounds for detention [at paras. 33-35]:

The appellant says that maintaining confidence in the administration of justice is vague and overbroad, and amounts to substituting a new phrase for the ground of "public interest" which the Court held unconstitutional in Morales, supra. However, the ground of maintaining confidence in the administration of justice as articulated in para. (c) is much narrower and more precise than the old public interest ground. The term "public interest" is imprecise and "has not been given a constant or settled meaning by the courts": Morales, supra, at p. 732. The articulated ground of maintaining confidence in the administration of justice, by contrast, relies on concepts held to be justiciable and offers considerable precision . . .

Laws are of necessity general statements that must cover a variety of situations. A degree of generality is therefore essential, and is not to be confused with vagueness,which occurs when the law is so imprecise that it does not permit legal debate about its meaning and application. As noted in Morales, supra, at p. 729: "To require absolute precision would be to create an impossible constitutional standard".

The phrase "proper administration of justice" was held to provide an intelligible standard and hence not overbroad in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 184 (SCC), [1996] 3 S.C.R. 480, in the context of preserving openness in the administration of justice. In that case, La Forest J. defined the phrase as including a discretionary power of the courts to control their own process. At para. 59, he states:

The phrase "administration of justice" appears throughout legislation in Canada, including the Charter. Thus, "proper administration of justice", which of necessity has been the subject of judicial interpretation, provides the judiciary with a workable standard.

(Emphasis added)[^19]

[39] In his reasons, Goodman J. correctly articulated the test to determine whether s. 11(d) has been breached. That test is set out in Kokopenace, where Moldaver J. for the majority wrote, at para. 49: "To determine whether a tribunal is impartial, the question is whether a reasonable person, fully informed of the circumstances would have a reasonable apprehension of bias."[^20]

[40] Justice Goodman stated that he agreed that the appropriate test to be applied in determining whether s. 11(d) was violated was an objective, "reasonable person" test. He concluded that in his opinion, "a reasonable person apprised of all the circumstances would give due consideration to the accused's subjective perception on the fairness of the trial" and would conclude that "an [page430] accused's right to a fair trial with an independent and impartial jury would be violated by the impugned amendments".

[41] With respect, that is not the test to be applied. The test is whether the reasonable person would have a reasonable apprehension of bias. In addition, the subjective perception of the accused on the fairness of the process has a limited role in the assessment. I agree that the reasonable perception of the accused has a role to play in the analysis. One of the key purposes of the peremptory challenge was to give the accused added confidence in the fairness of the trial. The reasonable person would have to consider that, under the new legislation, the confidence of the accused in the fairness of the trial would potentially be lessened to some degree by the absence of an ability to peremptorily challenge. However, that is but one factor to be considered in the application of the objective test. It is a factor that would have to be considered in the context of the history and evolution of the jury selection process and all of the safeguards outlined above.

[42] In summary, I find that Goodman J.'s analysis of the alleged s. 11(d) violation was plainly wrong. It was grounded in an unsupported conclusion that peremptory challenges guarantee representativeness and that the right of the accused to a fair and impartial trial includes a right to directly participate in jury selection through the exercise of peremptory challenges. The correct objective test was not applied to the provisions as a whole including the safeguards and Goodman J. wrongly found the new stand aside provision to be overly ambiguous and vague.

Violation of S. 7: Overbreadth

[43] Even if the impugned legislation does not violate the fair trial rights of the accused under s. 7, the rights of the accused under s. 7 will be violated if the legislation is arbitrary, overbroad or grossly disproportionate.[^21]

[44] A law will be found to be overbroad if the State in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective. The principles of fundamental justice will be violated because the individual's rights will have been limited for no reason.[^22]

[45] Justice Goodman identifies the objectives of the legislation as making jury selection fairer and impartial and alleviating concerns about the discriminatory use of peremptory challenges. [page431]

[46] I agree with Goodman J.'s characterization of the objectives of the legislation but would add that a further objective was to foster public confidence in the jury system by making the selection process more open and transparent.[^23]

[47] Justice Goodman held that the provisions were overbroad because, while preventing discrimination against jurors, they have removed a mechanism for the accused to prevent discrimination against himself. He further held that the abolition of peremptory challenges was overbroad because it applies even where concerns over discrimination are absent.

[48] I disagree with the conclusions reached by Goodman J. with respect to overbreadth. I do not agree that the provisions deprive the accused of a means to protect himself from discrimination. Challenge for cause remains available to the accused and the enhanced stand aside power is a further tool to prevent as far as possible discrimination against the accused. I do not agree that the law is overbroad because it applies when concerns for discrimination are absent. Concerns for discrimination will always be present.

[49] The conclusion that the provisions are overbroad rests to considerable extent on the conclusions with respect to the violation of the rights of the accused outlined in Goodman J.'s reasons for finding violations of s. 11(d) and (f). I have already addressed the reasons for which I disagree with those conclusions.

3. Is the legislation constitutional?

[50] The constitutionality of the legislation was considered by McMahon J. in Chouhan. I agree with McMahon J.'s reasoning and conclusions. I would find that the legislation does not violate ss. 7, 11(d) or (f).

[51] I find that the representativeness required by s. 11(f) is protected by the representativeness of the jury panel, the randomness of the selection process, the availability of challenge for cause and the enhanced stand aside provisions. I acknowledge that the in-court procedure may impact on representativeness. The exercise of peremptory challenges by Crown or defence may increase or decrease representativeness. However, given the limited impact of the in-court procedure on representativeness, there is no basis to conclude that the elimination of peremptory challenges undermines representativeness. [page432]

[52] I find that the right of the accused under s. 11(d) to a fair trial by an impartial and independent tribunal is not violated by the legislation.

[53] A reasonable person, fully informed of the relevant history and evolution of the jury process and the safeguards inherent in the process, could not conclude that the changes to the selection process create a reasonable apprehension of bias. A reasonable person could not conclude that the elimination of a challenge that could be exercised by the Crown or the defence, arbitrarily and without giving any reasons, and replacing it with a provision that requires the parties to articulate a reason to reject a potential juror would create a reasonable apprehension of bias.

[54] To the extent that the subjective perceptions of an accused factor into the application of the reasonable person objective test, they do not change the result. While an accused person could potentially lose some confidence in the process (in light of the fact that peremptory challenges are intended to heighten the confidence of the accused), the other safeguards including the enhanced stand aside power compensate for the potential loss of confidence.

[55] I also agree with the conclusion of McMahon J. that the legislation is not arbitrary, overbroad or grossly disproportionate.

Disposition

[56] For these reasons, I find that:

1. I am not bound by the s. 52(1) declaration of invalidity by Goodman J.

2. The decision of Goodman J. is plainly wrong.

3. The legislation is constitutional.

Application dismissed.

Notes

[^1]: (2019), 148 O.R. (3d) 53, [2019] O.J. No. 4797, 2019 ONSC 5512 (S.C.J.).

[^2]: [2019] O.J. No. 5587, 2019 ONSC 6386 (S.C.J.).

[^3]: [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6.

[^4]: [2018] O.J. No. 4134, 2018 ONSC 3464 (S.C.J.).

[^5]: [2019] O.J. No. 504, 2019 ONSC 783 (S.C.J.).

[^6]: R. v. Scarlett, [2013] O.J. No. 644, 2013 ONSC 562 (S.C.J.).

[^7]: Scarlett, supra, paras. 43-44; R. v. Sarmales, [2017] O.J. No. 1649, 2017 ONSC 1869 (S.C.J.), at para. 12.

[^8]: King, at para. 103.

[^9]: 1991 86 (SCC), [1991] 1 S.C.R. 509, [1991] S.C.J. No. 21, at paras. 30, 31, 35 and 36.

[^10]: R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, [2015] S.C.J. No. 28, at para. 59.

[^11]: Kokopenace, at para. 224, per Cromwell J.

[^12]: R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3, at para. 27.

[^13]: Kokopenace, para. 45; Chouhan, para. 44; R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, [1998] S.C.J. No. 49, at para. 46.

[^14]: King, at para. 123.

[^15]: (2001), 2001 4447 (ON CA), 54 O.R. (3d) 36, [2001] O.J. No. 1559 (C.A.).

[^16]: [2010] O.J. No. 4163, 2010 ONCA 637.

[^17]: (2012), 113 O.R. (3d) 1, [2012] O.J. No. 5450, 2012 ONCA 798.

[^18]: 1979 25 (SCC), [1979] 2 S.C.R. 709, [1979] S.C.J. No. 67.

[^19]: [2002] 3 S.C.R. 309, [2002] S.C.J. No. 65, 2002 SCC 64, at paras. 33-36.

[^20]: A similar test applies to determine the independence of the tribunal. Independence is not raised in this case and I will not address it.

[^21]: Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, at para. 96.

[^22]: R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, at p. 792 S.C.R.

[^23]: King, at paras. 207-209; Chouhan, at para. 79.

End of Document