Court File and Parties

COURT FILE NO.: CR 15-4910 DATE: 2020/10/19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Crown

– and –

JOHN JOSIPOVIC Accused

– and –

MATO JOSIPOVIC Accused

Counsel: S. O’Brien and A. McLean, on behalf of the Crown A. Furgiuele and A. Ruffo, on behalf of John Josipovic J. Rosen and S. Smordin, on behalf of Mato Josipovic

HEARD: October 13, 2020

A. J. Goodman J.:

RULING #2: JURY SELECTION PROCEDURES

[1] If the peremptory challenge had any breath of life left, it was all but extinguished on October 7, 2020. That is the day the Supreme Court of Canada rendered asunder any notion that the abolition of the peremptory challenge for jury trials was unconstitutional.

[2] The Supreme Court also upheld - with reasons to follow - the immediate validity and retrospective application of the changes to the jury procedure, by virtue of Bill C-75,[^1] proclaimed in force on September 19, 2019.

[3] The selection for the jury in this case follows the Supreme Court’s declaration, by a matter of mere days.

[4] In the case at bar, both accused stand charged with the offence of second degree murder.

[5] This ruling further outlines the procedure and approach to be implemented for the jury selection in this case and follows my previous ruling rendered on October 2, 2020, (R. v. Josipovic 2020 ONSC 5917).

[6] All counsel agree that with the limited jurisprudence post-Bill C-75, there has been diverse and conflicting approaches on exactly how the various sections in Part XX of the Criminal Code R.S.C. 1985, c. C-46, related to jury selection are to be implemented. Counsel advise that there are but two reported cases that provide any practical direction as to how to interpret and give effect to the new sections in the Code for the selection of the petit jury.

Positions of the Parties:

[7] Mr. Furgiuele submits that immediately after the jury changes came into force on September 19, 2019, litigation on the issue was almost strictly limited to the constitutionality of the impugned section and whether it was retrospective or prospective. There was no real guidance from the trial courts on the stand-aside procedure as there had not been much time for the common law to develop.

[8] Mr. Furgiuele submits that s. 633 is drafted to provide further assistance in ensuring the constitutional requirement, an impartial jury. It clearly gives counsel the chance to be involved in the stand-aside proceeding. It also highlights the broad language in the section about what can be the basis for a trial judge to stand a juror aside and is a safeguard to take the place of the peremptory challenge. Counsel concedes that it does not mean that a party can implore a judge to abuse the stand-aside power as a pseudo- peremptory challenge. However, it does mean that there’s a strong basis to inquire of jurors pursuant to this new section.

[9] Counsel says that while we do not have the Supreme Court’s written reasons in Chouhan, the Crown’s factum before that court emphasized the expanded power as part of the reason why stripping away the peremptory challenge is constitutional. Notably, the Crown said that the articulable reason standard to the stand-aside power is not a high threshold and “not onerous” for the accused. Before the Supreme Court, the Crown conceded that the reason for standing the juror aside may go to more than just partiality. The Crown specifically mentioned that an accused can make submissions on a prospective juror’s overall suitability.

[10] Mr. Furgiuele invites me to consider Boswell J.’s approach in R. v. Campbell, 2019 ONSC 6285, to the issue regarding the stand-aside power. Counsel says that the learned jurist confessed to being confused as to how the stand-aside power could enhance impartiality. He commends a review of the case and examination of the concepts discussed by the learned jurist.

[11] As to its practical application, Mr. Furgiuele says that any stand-aside questions flow from the challenge for cause. There is commonality between the sections and suggests that by asking all the questions together, a court ought to decide whether to excuse or stand-aside a juror. It is submitted that partiality is active in both challenge for cause and in the stand-aside authority. In this case, the inquiry ought to be done all at once as it enhances efficiency, especially during the current pandemic.

[12] Mr. Rosen echoes his colleague’s comments. Counsel emphasizes that at the Supreme Court, the Crown was arguing the constitutional validity of the sections with the elimination of peremptory challenges by its replacement with a more meaningful inquiry into the suitability of a juror. The defence submits that their proposed selection process ensures that the jury is impartial and protects their client’s’ fair trial rights.

[13] Mr. McLean, for the Crown, responds that section 633 is not a new section, rather it is an amendment. In the past, it was rarely used and there is a body of law that had developed over the years on how that power was to be exercised. The insertion of the phrase “maintain public confidence in the administration of justice,” has not thrown out the jurisprudence on the exercise of the stand-aside power. In the Crown’s view, the effect of defence counsels’ submissions would be to adopt an entirely new procedure for that relatively unchanged section. The difficulty lies in how to interpret these changes without the benefit of the reasons of the Supreme Court of Canada. The Crown says that the best approach is to follow the procedure outlined in the Criminal Code as close as possible, without resorting to adding layers into this procedure or to recreate a system akin to the peremptory challenge system.

[14] The Crown acknowledges that the stand-aside power remains, however, the procedure suggested by the defence is too radical of a departure. What is proposed is when a juror is called forward pursuant to s. 631, they would undergo a combined challenge for cause and stand-aside inquiry. This combined proposal is not discussed in the Code. The trial judge exercises the powers under s. 632 to eliminate any jurors who are unfit or unsuitable to serve. Rarely, will it require submissions from counsel.

[15] Mr. McLean submits that, in this case, the proposed questions go far beyond a publicity-based challenge for cause. The stand-aside power does not involve asking questions as proposed here, or receiving more information from the juror and then deciding, based on this question or information, whether he or she is suitable. It only provides an opportunity for counsel to raise an objectively valid reason as to why that juror may be incapable of serving on the jury. There is no need to inquire further when the jurors are presumed impartial. If there is a reason they cannot be impartial, the time to pose questions is during the challenge for cause. Anything more would just open the door to an American-style voir dire which is not in accordance with Canadian jurisprudence.

The Application of the Jury Selection Provisions:

Discussion:

[16] The summary to Bill C-75 indicates that the revisions to the Criminal Code were enacted to, amongst other things, do the following:

[A]bolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice.

[17] There is no disagreement that Parliament’s” object and intent” is relatively easy to glean; impartiality, randomness and transparency. There has been much written on the impetus and rationale for the legislative changes that are found in Bill C-75. However, less so, is the practical implementation of the “enhanced” stand-by (or stand-aside) discretion to be exercised by the trial judge.

[18] Formerly, s. 633 of the Criminal Code read as follows:

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.

[19] Section 633 now provides the following:

[t]he 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, maintaining public confidence in the administration of justice or for any other reasonable cause (emphasis added).

[20] The “modern principle of statutory interpretation”, directs that “the words of an Act are to be read 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 Parliament”: Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87.

[21] As mentioned by counsel, in Campbell - one of the very few cases to even consider this question - Boswell J. poses two important questions: first, what does “maintaining public confidence” entail? And second, what factors might reasonably justify standing aside a prospective juror in order to maintain such confidence?

[22] In Campbell, Boswell J. stated at para. 22:

The amendment arguably broadens the court’s discretion to stand aside prospective jurors during the selection process. I say “arguably broadens” because one might reasonably view maintaining public confidence in the administration of justice to have been captured by the phrase “any other reasonable cause”. At any rate, assuring continued public confidence in the institution is now expressly enumerated as a justification for standing aside prospective jurors.

[23] The phrase “maintaining public confidence in the administration of justice” is familiar language as expressed in other areas of the law, in particular, under the tertiary grounds for judicial interim release. However, it is new for this part of the Criminal Code and as a matter of statutory construction, covers different ground. While it has been described in several aspects, it seems to me that “maintaining public confidence in the administration of justice” entails that a judge would consider all of the relevant factors and circumstances that would affect the trust or confidence of a reasonable and informed member of the public in the selection of an impartial jury.

[24] We await the reasons from the Supreme Court in the case of Chouhan. The issues on appeal were the prospective and retrospective application of the provisions as well as the constitutionality of the repeal of s. 634 of the Code (peremptory challenge). I am advised that the Supreme Court was not called upon to consider the practical application of the new provisions, specifically, the stand-by authority now found in s. 633 of the Code.

[25] Turning to R. v. Chouhan, 2020 ONCA 40, 149 O.R. (3d) 365, the Court of Appeal made brief reference to this specific provision. At paras. 70 and 71, Watt J.A. for the court stated the following:

This stand by authority is available after a prospective juror has been called under s. 631(3) or (3.1), and thus is available before or after a challenge for cause has been heard and its truth determined. The language of “personal hardship” and “any other reasonable cause” duplicates that in the excusal authority of s. 632(c). But the language “maintaining public confidence in the administration of justice” is new and, as a matter of statutory construction, covers different ground. In this case, for example, the trial judge used it to direct a prospective juror, who had been found impartial on the challenge for cause, to stand by. The basis for its exercise was the appellant’s belief, communicated to the trial judge through counsel, that a rude gesture had been made by the prospective juror when asked to face the appellant.

We did not receive any submissions that would permit me to mark out the boundaries of this additional authority. Suffice it to say that its presence is of further assistance in ensuring the constitutional requirement – an impartial jury.

[26] The revised jury selection provision is not without some uncertainty amongst trial judges. I agree with Boswell J. at para. 47 in that “[t]he amendment to s. 633 is curiously vague. Exactly how and when the use of stand asides should be used to make jury selection fairer, or juries more representative, is not at all clear”. Further, at paras. 79 and 80, Boswell J. opines:

There is no empirical evidence, to my knowledge, that supports the conclusion that a more diverse jury is a more impartial jury. If enhancing the diversity of juries does not enhance impartiality, and if it is not about the constitutional rights of the litigants, and if it is generally not needed to ensure fair participation, then what is left as a justification for using stand-asides to increase diversity on petit juries is the issue of appearances.

Appearances do matter. But in my view, appearances are a less compelling justification for the use of the stand-aside discretion than impartiality, fairness or constitutional compliance would be. In a moment I will identify a number of fundamental problems associated with attempts to target any particular identifiable group for inclusion on a petit jury. Given these problems, it will be a rare case that justifies the use of the stand-aside discretion to enhance diversity for the sake of appearances.

[27] The obvious concern is that should trial judges begin to manipulate jury selection by use of the stand-by authority to increase or limit the representation of one identifiable group, or segment of the population on a given jury, there will be many other groups or individuals who will expect to be afforded similar treatment.

[28] Counsel recognize that trial judges are now fully integrated and injected into the jury selection process, to an extent that did not exist prior to September 19, 2019.

[29] I adopt Boswell J.’s point-form summary at para. 35 of his reasons:

(a) The use of stand-asides is not an appropriate means of enhancing impartiality on a jury;

(b) The use of stand-asides will not generally make the jury selection process more fair;

(c) With the elimination of peremptory challenges, the selection process is transparent. The use of stand-asides will not enhance that transparency;

(d) The use of stand-asides to enhance representativeness is largely unworkable; but,

(e) The use of stand-asides may be appropriate when issues of juror competence arise.

[30] What is also an interesting concept in the “revised” approach for jury selection is a word that has seldom, if ever, been used in the past in this context. That word is “competence” as stated in para. (e) of Boswell J.’s point-form summary in Campbell. I am intrigued by Boswell J.’s use and application of that term, which seems to be employed to capture any and all residual discretion to be exercised by a trial judge in the selection of the petit jury under s. 633.

[31] To this end, Boswell J. explains the following at paras. 100 and 101 of Campbell:

Every now and then, a prospective juror appears who is clearly not well-suited to jury service. Lawyers and judges alike, through their life experience, are able to readily identify them. Peremptory challenges were a useful means of eliminating them from the jury panel.

Competent juries are necessary to maintain public confidence in the administration of justice. Where a trial judge has concerns about the competency of a prospective juror, it is appropriate to exercise the discretion to stand that juror aside.

[32] I am satisfied that the use of the term “competence” is not going down the road of a pseudo-peremptory challenge. The discretion remains with the trial judge on some objective rationale and avoids the stereotypical thinking and reasoning that was criticized in the peremptory challenge

[33] Moreover, in my opinion, with the elimination of the peremptory challenge, the insertion or application of a “competence” concept does serve to balance the interests of all stakeholders. This gives effect to the accused’s right to participate in the selection of the jury on an objectively identifiable basis and in a transparent fashion. Indeed, not only does this enhance the fair trial rights of the accused but provides for the maintenance of public trust and confidence in the selection of the petit jury for a particular case. Now how is this to be done in this case at bar?

The Practical Application of the Jury Selection Procedures to this Case:

[34] I accept and adopt all of Mr. Furgiuele’s suggestions as to the proper approach in this case, with one qualification.

[35] I have already described the process and procedure to form groups from the various panels in my earlier ruling: R. v. Josipovic, 2020 ONSC 5917.

[36] Before, commencing, the Registrar shall read the admonishment. Once an individual is called forward for presentation as a potential juror, in accordance with my ruling, s. 632 applies to allow the juror to self-identify any reason as to why he or she would be unsuitable or ineligible to serve.

[37] Section 632 provides that:

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.

[38] Trial judges have a wide discretion, under s. 632 of the Code, to excuse jurors for a variety of reasons. This is premised on a juror self-identifying one or more of these elements to the judge.

[39] In my view, nothing has really been reformed in s. 632 from what had transpired in the time prior to Bill C-75. A judge instructs the panel (or smaller groups of jurors) as to the various factors that may make one unsuitable or ineligible to serve on a jury. Again, the onus is on the juror to self-identify. The inquiry under s. 632 is conducted before the challenge. Upon furnishing the basis upon which the particular juror believes that one or more of the factors apply to him or her, he or she may be excused or deferred by the trial judge,.

[40] If the juror is not excused or deferred, that individual moves on to the next stage of the process, the challenge for cause.

[41] Pursuant to s. 638(1)(b), counsel have an ability to challenge a jury panel for cause, on the basis of partiality. These challenges have traditionally been focussed and constrained. The most obvious basis has been referred to as race-based challenges; R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324, 84 C.C.C. (3d) 353 (C.A.) or publicity; R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509. The process of calling evidence to rebut the presumption of juror impartiality is explained in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863. However, I note that all of the appellate authorities on the specific issue here pre-date the fundamental changes enacted with the recent legislative amendments to s. 633.

[42] Indeed, with the changes in the overall jury selection process, it remains to be seen whether defence counsel will seek to expand the breadth of the questions to be posed for the challenge for cause. I hazard to guess that a more robust challenge for cause framework may be on the horizon.

[43] In any event, in this case, the Crown does not contest the “traditional” challenge for cause questions based on publicity, but takes issue with the scope of questions proposed by defence counsel in this case.

[44] The proposed questions for the challenge for cause include:

1. This case has received attention in the media. Have you heard or read anything about this case?

2. (If yes) do you recall what you heard or read? Please explain.

3. Did you know anything about Mr. Lou Malone, who resided in East Hamilton, prior to his death?

4. (If yes) what had you heard about him?

5. Despite what you have heard or seen about this case, do you believe you can be a fair and impartial juror in light of what you heard or read?

[45] I am persuaded to permit a limited expansion of the challenge questions, in order to provide a more fulsome inquiry of each potential juror.

[46] If the juror is deemed not acceptable, that individual is excused. If the juror is deemed acceptable, the next phase involves consideration of the stand- by provision.

[47] With respect, I cannot agree with the Crown that the revised stand-by (or stand-aside) provision as found in s. 633 is but a mere amendment and remains relatively intact from its previous incarnation; or that it does not effectively alter the process or the trial judge’ discretion.

[48] It bears repeating that s. 633 now stipulates that the judge may direct a juror “to stand by for reasons of personal hardship, maintaining public confidence in the administration of justice or any other reasonable cause”. As mentioned, s. 633 is vague and how it is to be used is not defined by the legislation. Thus, it is up to trial judges and appellate courts to apply the well-established legal principles and the common law to assist in its application.

[49] In Campbell, Boswell J. opines at para. 99 of his reasons:

Having said all of that, while the use of stand asides to manipulate participation and representativeness may not be a constitutional imperative, their use may still be appropriate in the context of a given case. I have already noted that it may be an appropriate practice in cases with an Indigenous dimension. There may be other cases that warrant, from the perspective of the public, the use of the discretion to stand aside prospective jurors in order to give other jurors – having particular characteristics – a greater chance of being selected. In my view, however, based on the concerns I have expressed, these cases will be rare.

[50] When the previous stand-aside procedure was invoked, it generally occurred after a triggering event; as examples, a question arising from the juror’s ability to understand the language of trial, a health issue or perhaps exceptional hardship to serve being claimed, or something else that arose from the potential juror’s conduct.

[51] Notably, in the exercise of the authority found in the former provision, a determination was usually made by a judge after – but not always - hearing submissions from counsel.

[52] I am not persuaded that the stand-by discretion ought to be limited to address similar objectives for determining a juror’s impartiality, where s. 638 or s. 640 is fully engaged. Otherwise, what is its rightful purpose? In other words, what does the new language specifically included in s. 633 truly bring to the jury selection process?

[53] My reading of the plain language of s. 633 in context within the current jury selection regime, appears to go beyond its previous incarnation, which was at one time reserved to the Crown’s discretion and eventually left as a residual power to the trial judge after the seminal case of R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91.

[54] I agree with the defence that the amended provision expands the trial judge’s authority. With these new amendments, the trial judge's discretion has been enhanced to allow for a juror to stand-by for the broad purpose of “maintaining public confidence in the administration of justice”. It is clear that this is an important and crucial consideration which, in order to achieve its purpose, must be given meaningful application.

[55] It is axiomatic that an impartial juror is fundamental to the jury system. Partiality is a valid reason to excuse a juror under s. 638. Section 633 does not, however, necessarily engage the same valid exercise of discretion to stand a juror aside for the similar purposes falling under s. 638. [^2]

[56] Thus, I must differ slightly with defence counsel’s suggestions as to the overall mechanism of the selection process; that is to combine the challenge for cause questions with the stand-by authority and pose all questions at once. Thereafter, I am to either accept, excuse, or stand-aside a juror.

[57] I agree with the Crown attorney that there are two distinct processes. After the challenge for cause questions are posed, I make the determination as a trier of the challenge. I do not automatically seek any input from counsel, however, there may be circumstances where the Crown or defence might be requested to provide advice.

[58] Practically speaking, it is understood that there may be other considerations, apart from a juror’s verbal responses, that could suggest his or her unsuitability, which may not necessarily be captured by the usual challenge for cause framework.

[59] As mentioned, it is incumbent on a trial judge to apply the authority and enhanced discretion found in s. 633 to the goal of achieving a competent jury. In the proper case, the defence or Crown ought to be able to seek a further inquiry as to each potential juror’s suitability, with allowances for submissions. In my opinion, s. 633 facilitates such an inquiry, as long as counsel can demonstrate an objectively reasonable justification.

[60] The specific inquiry may be modified in each particular case. It may also involve other probing questions that flow from the juror’s responses.

[61] In this specific case, I agree with the defence that a further question ought to be posed to each juror after the challenge for cause. The question - as drafted by counsel - is as follows:

Is there any other reason you can think of that would make it difficult for you to serve as an impartial juror and determine this case on the evidence alone and the instructions of the trial judge?

[62] Upon receipt of the answer, I will turn to counsel to determine if they wish to make submissions as to whether or not I should stand-aside the juror. If counsel do not wish to make submissions, he or she will be sworn as a juror.[^3]

[63] If counsel signal that they want to make submissions, for whatever reason, then I will invite the prospective juror to leave the courtroom while I hear argument. After that, I will invite the prospective juror back into the courtroom and either ask further questions, direct him or her to stand-by, or have the individual sworn as a juror to try the case.

Conclusion:

[64] By virtue of the amendments to the legislation, in particular, the authority and discretion afforded by ss. 633, 638 and 640, the trial judge is now fully invested in the process of the selection of a jury.

[65] It bears repeating that s. 633, is not a means to ensure that a certain group, gender, occupation or race form the petit jury. Nor is it a means to exclude other identifiable groups or individuals, or for any other improper use.

[66] Competent juries are necessary to maintain public confidence in the administration of justice.

[67] The trial judge has a role to ensure whether a certain juror is “competent” to act as a juror in a specific case by ensuring that the public trust and confidence in the administration of justice is maintained. Where a trial judge has concerns about the competency of a prospective juror, it is appropriate to exercise the discretion to stand that juror aside. In order to achieve that objective, the parties ought to be able to request a limited right to make further inquiries, propose defined questions and make submissions, where appropriate; albeit on the basis of some objectively reasonable justification.

[68] In my opinion, the procedure invoked in this case engages the accused’s fair trial rights. Indeed, a robust interpretation and concomitant application of the scope of s. 633 provides both the Crown and the accused a meaningful opportunity to participate in the jury selection process, while at the same time, realizing Parliament’s intent and objects related to the revisions in Part XX of the Criminal Code.

[69] I am grateful to all counsel for their able submissions with regards to this evolving area of the law.

A.J. Goodman J.

Date: October 19, 2020

COURT FILE NO.: CR 15-4910 DATE: 2020/10/19

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JOHN JOSIPOVIC and MATO JOSIPOVIC

RULING #2: JURY SELECTION PROCEDURES

A. J. GOODMAN, J.

Released: October 19, 2020

[^1]: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts [^2]: Except, perhaps, in cases where there is no challenge for cause brought by either party. [^3]: As there are no longer peremptory challenges, I see no utility in having the juror look upon the accused and vice-versa. Counsel agreed.