Court File and Parties

COURT FILE NO.: 2072/20

DATE: 20211004

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Branislav Barac

Defendant

Counsel:

S. Marinier, for the Crown

A. Gold, for the Defendant

HEARD: October 4, 2021

Reasons for Judgment

George, J.

[1] Mr. Barac is charged with importing methamphetamine, possessing methamphetamine for the purpose of trafficking, possessing the proceeds of crime, and failing to report currency in excess of $10,000.00 to an officer. He has elected to be tried by a court composed of a judge and jury. Jury selection is scheduled for today, with the trial expected to last two weeks.

[2] This is Mr. Barac’s motion to adjourn the trial.

[3] On August 6, 2020 the Chief Justice of the Superior Court of Ontario allowed for the deferral of the ill, other at-risk people, those with symptoms of Covid-19, and those who had tested positive for Covid-19. This order was extended from time to time.

[4] On August 31, 2021 the Chief Justice made this Order:

Because of the unique position occupied by jurors, I order the Jury Sheriff to defer jurors based on their answers to Covid-related screening questions which will additionally include deferral based on an answer that a juror is not fully vaccinated or prefers not to answer.

This order will come into effect on September 7, 2021 and continue in effect up to and including October 8, 2021 or until further Order of the Court.

[5] On September 20, 2021, the Chief Justice extended his August 31st Order up to and including December 31, 2021.

[6] Mr. Barac takes the view that this is an unlawful Order, that violates his rights under ss. 11(d) and 11(f) of the Charter, and which cannot be justified as a permissible s. 1 limitation. Mr. Barac’s counsel, Mr. Gold, first advised that he would be bringing this motion to adjourn on Friday October 1, during a Trial Management Conference that occurred during the noon hour. In respect of timing, which is not at all ideal, he advises that he was not aware of the order, and that he did not know about it until it was mentioned to him by the Crown at some point shortly before our conference. To be precise, at paras. 15, 19, 20 and 21 of his written submissions, Mr. Gold advises that:

15. This exclusionary designation appears to have evolved without apparent notice or appropriate evidentiary basis.

16. The order may not qualify as a limitation “imposed by law”. [T]he requirement of “prescribed” has an element of publication and public accessibility. The Chief Justice orders of August 31, 2021 and September 20, 2021 were not publicly promulgated.

17. The defence only found out about them when mentioned by the Crown in a private conversation on September 30, 2021. The relevant orders were then provided by Crown counsel upon defence request. Crown counsel apparently received them, as he informed us, in an email distributed to the Federal Crown office by the Chief Federal Prosecutor. It is unclear when it was circulated. It received no mentioned when this case was in court on September 9th and 10th, 2021. The defence was unaware of the August 31 development and it was not mentioned by the Crown or court.

18. The Superior Court of Ontario website fails to list the order in the section titled “Chief Justice Orders”. A further search of the Superior Court of Ontario website failed to turn up an indication of the relevant orders. The Superior Court Office in Toronto was contacted by email without success in the time available.

[7] These are the relevant provisions of Charter:

11. 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; and

(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.

[8] Section 1, of course, provides that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[9] I will pause here and note that this Order has been in effect for over a month now; has been followed in several jury trials (since they resumed); and has not yet (until now) been challenged, although Mr. Gold has kindly informed me that there is in fact a challenge outstanding in the Toronto Region, which has yet to be heard. I thank him for bringing that to my attention.

[10] In response to Mr. Gold’s indication that he was not aware of the Chief Justice’s Order - which I accept - I would like to take this opportunity to note that the Order was, on the day it was issued, sent to all Bar associations and Prosecutors (Federal and Provincial). I know that the Crown touched on this, and that Mr. Gold provided a response, but this is worth highlighting.

[11] Mr. Gold registers several additional complaints, all of which are detailed in his written submissions, including:

i) That by excluding unvaccinated people the Order prevents people with a “distinctive perspective” from serving as jurors which, in turn, violates his client’s right to a representative jury;

ii) that the measure adopted by the Chief Justice was not carefully designed nor rationally connected to the objective of ensuring the good health and safety of those who participate in jury trials. In other words it does not impair his clients right to a jury trial as little as possible;

iii) that the Chief Justice’s Order creates a process ripe for abuse; meaning, and I will quote directly from paras. 32 to 34 of Mr. Gold’s factum:

32. The means chosen to allow a person who wishes to serve on a jury for some reason or other to pursue that goal by claiming vaccination falsely. No proof of vaccination appears required.

33. In short, the means chosen provide an excellent opportunity for those unwilling to perform jury duty and those anxious to see criminals convicted to succeed by making the appropriate response, and

34. Importantly, the accused is deprived of potential jurors who simply reject the state’s invasion of privacy and “prefer not to answer”. These may be simply principled individuals who would be the jurors most likely to be skeptical of government and government workers such as customs officials in our case. There is an appearance that this mechanism filters out persons with an individualistic bent and allows those very responsive to government instructions.

iv) Mr. Gold discloses his client’s vaccination status, claiming that the exclusion of people who are unvaccinated (or prefer not to answer) creates what he calls an “inappropriate appearance”; and

v) lastly, to the question of proportionality, Mr. Gold suggests that other options should have been considered such as rapid testing, arguing that “a goal of zero risk is a far greater standard than the standard in pre-covid times when juror illness was always a possibility and the mechanisms of alternate and additional jurors were put in place to deal with such eventualities”.

[12] Let me start by saying this. It is not surprising that Mr. Gold has framed the Chief Justice’s Order as an opening for those who are more trustful of government and government actors to serve on the jury; and an impediment to those he calls individualistic thinkers who are likely to be more skeptical of government actors. I say it is unsurprising because anyone who would choose to challenge an Order like this, and expect to be successful, would have to cast it as the exclusion of a “particular group of people”.

[13] Before I go there, however, I want to say a word about Mr. Barac’s vaccination status. First of all, this was disclosed, by his choice, in his counsel’s written submissions. I did not ask him and no one was going to ask him about his vaccination status. Second, unless Mr. Barac and/or Mr. Gold somehow or for some reason choose to disclose it to them, the jury will never know what his vaccination status is. Therefore, it is hard to see how this would create an “inappropriate appearance”. I ask, rhetorically, what appearance; and from whose perspective? It cannot be Mr. Barac, if the jury will never know what his status is. For the same reason, it cannot be from the jury’s perspective. What the Crown thinks on that point is, in my view, inconsequential. And, if this is to imply that it will somehow impact my ability to act impartially, I point out that I never asked, nor do I care, what Mr. Barac’s vaccination status is, and that I only know what it is because Mr. Gold and Mr. Barac chose to tell me. All of which is to say that this particular aspect of Mr. Gold’s argument carries no weight and is rejected in its entirety.

[14] I can also dispose of the argument that suggests the process that flows from the Chief Justice’s Order is ripe for abuse. I suppose, in a sense, what Mr. Gold says is true. The problem I have is, his point could really apply to any jury selection process. That is to say, while there are some instances when reasons advanced for excusal are confirmed (or are asked to be confirmed) by supporting documentation, we all know that when the vetting process is unfolding in open court on jury selection day, this is not always feasible. In other words, this potential for abuse Mr. Gold speaks of is always present, and while we should perhaps do more to combat the problem, if there actually is one, the reality is it is simply not always possible, not to mention the fact that it is a dangerous thing indeed to seat reluctant jurors, in any trial, whenever held, regardless of the reason advanced for excusal.

[15] It is not only that though, as we have to, at least to start, operate on the premise that jurors are being truthful, regardless of whether we are talking about a juror telling us – when seeking an excusal - that they cannot be impartial; would experience a hardship if they had to serve; have childcare responsibilities; or prescheduled travel plans. The bottom line is, short of the trial judge having a specific reason to doubt the veracity of a prospective juror’s answer during the vetting process, we have to accept it on its face. That is not to say every reason advanced will lead to excusal, but it does mean that, without more, we should accept what we are told as being true. That may, to some, signify a level of naivete, but there really is no other way.

[16] These situations are, in my view, analogous. What Mr. Gold is suggesting is that the Order in question will, in effect, motivate jurors to lie (or at least provide them a wide open opportunity to do so); and not just lie but lie with a specific nefarious purpose, that being to aid government actors and put the screws I guess to more “individual” thinkers. In any case, I cannot align myself with this way of thinking. It is far too speculative and to subscribe to this would be to, for no good reason and without any evidence at all, attribute dishonesty and ulterior motives to just about anyone being called upon to serve on a jury.

[17] I say all of that, appreciating Mr. Gold’s argument that, in the cases I just cited it is the judge who is ultimately deciding whether to excuse, defer, stand aside, or not, and that in this case it would be automatic when someone does not disclose that they are fully vaccinated, but for the reasons that follow, this argument does not carry any weight either.

[18] I will say that, as opposed to the question inviting a simple yes or no answer, to include the option of ‘prefer not to say’, does change the landscape somewhat, but for the reasons already given, and those that follow, that does not alter the analysis.

[19] I say that because the real question for me is how to characterize that group of people who are not fully vaccinated (including those who chose not to say), and whether their exclusion from the petit jury amounts to a violation of an accused’s s. 11 Charter rights. It is important to begin with this question because, if it does not, there would then be no need to engage a s. 1 analysis which is where Mr. Gold’s focus, at least in his written submissions, lie.

[20] The most important thing to understand is that representativeness, as defined in the jurisprudential guidance to date, is narrow and has nothing to do with the composition of the petit jury itself.

[21] What exactly does that mean, and how does it apply here? The State’s obligation is to provide a fair opportunity for a broad section of society to participate in the jury process. In respect of the jury roll’s preparation that means:

i) Using source lists that draw from that broad section;

ii) randomly selecting from those sources; and

iii) delivering notices to those who have been randomly selected.

[22] This, of course, does not end the analysis as, while satisfying these three key features ensures that a jury roll is representative, I must still look to see whether, as Mr. Gold argues, members of a particular group are being deliberately excluded, which begs the question: Are people who are not fully vaccinated (or who prefer not to say) a “particular group of people”, whose exclusion from serving on the jury impairs Mr. Barac’s right to a fair trial before impartial jurors.

[23] This question has been raised before, in the context of citizenship. In R. v. Scientology, 1997 CanLII 16226 (ON CA), [1997] O.J. No. 1548 (C.A.), the Court of Appeal was called upon to consider whether the exclusion of non-citizens from the Juries Act violated an accused’s right to a representative jury. I appreciate the distinction between legislation and a Court Order that is intended to address, temporarily, an immediate public health issue, but on this specific question that distinction is neither here nor there. The question remains, are unvaccinated people (including those who prefer not to say), collectively, a “particular group of people”. And on that question, the analogy between non-citizens and those who are not fully vaccinated (or prefer not to disclose their status) works. Consider Rosenberg J.’s comments at para. 148:

What is required is a process that provides a platform for the selection of a competent and impartial petit jury, ensures confidence in the jury’s verdict, and contributes to the community’s support for the criminal justice system. To use the words of Madam Justice L’Hereux-Dube in Sherratt, what is required is a “representative cross-section of society, honestly and fairly chosen”. In my view, there is no characteristic that persons bring to the fact-finding process of the jury based solely on their immigration status. Canadian citizens are of all races, nationalities, ethnic origin, colour, religion, sex, age and ability. Immigration status is simply not a relevant characteristic when regard is had to the rationale underlying the right to a representative pool. A jury pool selected from Canadian citizens represents the larger community for the purposes of trial by jury.

[24] There are several other relevant passages from this decision, but the main points to take away from it are:

i) excluding non-citizens does not violate the Charter, and

ii) for non-citizens, there is no evidence that, as a group, they share any common thread or basic similarity in attitude, ideas or experience that would not be brought to the jury process by citizens.

[25] Again, in my view, this is entirely analogous. I track back to a comment I made earlier about how it was necessary (to have even a hope for success on this motion) for Mr. Barac, through Mr. Gold, to characterize this, at least in part, as an attempt to exclude independent minded people (who are prone to question government decisions and actors) - as a common thread between those who would be ineligible to serve on this jury by virtue of the Chief Justice’s Order - but that just does not hold, in the same way counsel’s attempts in Scientology to make non-citizens a proxy for minority opinion, did not.

[26] In the end result, I find that vaccination status is simply not a relevant characteristic, especially when you consider the rationale underlying the right to a representative pool.

[27] I appreciate that Mr. Gold is not asking that I, today, weigh in on the merits of the alleged Charter violation, and that he simply seeks an adjournment of this trial to a time when this might no longer be an issue (or to formally, and in a more fulsome manner, challenge the Order) - a small price to pay, he says, to ensure we get this very important question right. However, as indicated throughout these reasons, I see no merit to the Charter argument (eliminating any need, even on a preliminary basis, to consider s. 1). And in light of that conclusion, I have no choice but to deny Mr. Barac’s request for an adjournment.

[28] I suppose one might complain that I am foreclosing full argument on the Charter application, but in the circumstances of this case, given the timing and ultimate impact of doing what Mr. Barac wants me to do, it was, practically speaking, necessary for me to weigh in on the substantive issues, now, and to provide a timely ruling which, in the end result, I acknowledge is a summary dismissal of the issues raised. That is, however, my ruling.

[29] We will, therefore, commence Mr. Barac’s trial today.

Justice Jonathon C. George

Released: October 4, 2021

COURT FILE NO.: 2072/20

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Branislav Barac

REASONS FOR JUDGMENT

George, J.

SCJ

Released: October 4, 2021