COURT FILE NO.: CR-20-10000266-0000

DATE: 20220517

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JACOB ALVES

C. Brannagan and S. Patterson, for the Crown

D. Sid Freeman, for Mr. Alves

S.A.Q. AKHTAR J.

Introduction

Introduction

1The applicant, Jacob Alves, applies for a stay of proceedings or, in the alternative, a change to the amount and manner of payment to jurors who are selected for trial.

2The applicant alleges that the current arrangements set out in s. 1 of R.R.O. 1990, Reg. 4, under the Ontario Administration of Justice Act, R.S.O. 1990, c. A.6 (“AJA”), breaches his ss. 11(d) and 11(f) rights under the Canadian Charter of Rights and Freedoms by leading to the selection of an unrepresentative jury. The applicant argues that in order to avoid such a constitutional impairment this court must, pursuant to s. 24(1) of the Charter, amend the start date and rates of juror compensation.

3The Crown, in response, requests a summary dismissal of the application. It argues that the applicant has failed to present any evidence that the current framework produces an unrepresentative jury. It submits that the current jurisprudence, starting with R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, defines jury representativeness as dependent on the preparation of the jury roll from which potential jurors are summoned to court.

Background Facts

Background Facts

4The applicant is charged with second degree murder and related offences which arise out of an altercation that took place during a combined Halloween/birthday party celebration at a University of Toronto fraternity house on 31 October 2019. The allegation is that a fight broke out between two groups of people attending the party with the applicant stabbing and killing one of the attendees with a knife as well as injuring several other parties.

The Application

The Application

5The applicant argues that the amount of remuneration paid to a selected juror (per day) starting after 10 days of service would exclude the poorest members of society and act as a bar to a proper cross-section of society participating in the jury process.

6However, the applicant does not ask for a declaration that the remuneration framework is unconstitutional. He submits, that this would fail to redress either the prejudice sustained by the applicant in this trial or the harm caused to society and the criminal justice system. The applicant therefore urges this court to use s. 24(1) of the Charter to increase the remuneration paid to jurors to $200 a day starting on the day of selection and re-imburse any costs incurred during the trial including travel, and child care. Alternatively, the applicant argues for a stay of proceedings to be entered.

7The Current Rates of Juror Remuneration

The Current Rates of Juror Remuneration

8Section 1 of Regulation 4 under the AJA sets out the rate of pay for jurors.

9It limits payment per day of service as follows:

• There is no payment to jurors for the first 10 days of jury service

• From Day 11 to Day 49 jurors are paid $40 per day

• From Day 50 onwards jurors are paid $100 per day

10The statutory scheme protects those who participate as jurors from being dismissed from their place of employment but does not mandate their regular payment by employers.

Does the Effect of the AJA Breach the Applicant’s Charter Rights?

Does the Effect of the AJA Breach the Applicant’s Charter Rights?

11Section 11(d) of the Charter makes clear that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

12In addition, s. 11(f) mandates that any person charged with an offence has the right to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.

13As this is a murder trial, absent Crown consent, the applicant must be tried by judge and jury.

14The applicant argues that these Charter rights are rendered meaningless without a proper form of representation on the jury. This, says the applicant, requires a cross-section of society be able to serve on the jury which must include lower income and less affluent members of society. The applicant argues that this segment of society is disproportionately excluded due to the inadequate remuneration permitted by the statutory scheme.

15For the following reasons, I disagree with the applicant.

16First, in Kokopenace, the Court found that representativeness will be satisfied when the state has provided a fair opportunity for a broad cross-section of society to participate in the process. However, that fair opportunity focussed on the method of comprising the jury roll.

17At para. 40, Moldaver J., writing for the majority of the Court, expressed his view that a jury roll would be representative when the use of source lists to comprise the jury roll had been drawn from a broad cross-section of society; there had been a random selection from those sources; and notices had been delivered to those selected. If those three features were present, the jury roll was representative.

18In R. v. Chouhan, 2021 SCC 26, at para. 38, the Court re-affirmed the Kokopenace test. When dealing with the constitutionality of the abolition of peremptory challenges, the Court observed that “the jurisprudence has consistently declined to interpret the imperatives of jury representativeness and impartiality as requiring diversity among members of the jury”. It added that “[n]or has the concept of impartiality ever rested on the accused's subjective confidence in each individual juror or on jurors sharing an aspect of their identity — including visible and non-visible characteristics — with the accused or victim”. Finally, the Court made clear that it was not the position in Canadian law that “confidence in the administration of justice depends on achieving a jury that approximates the diversity of Canadian society.”

19Above all, the Court in Chouhan, at para. 81, made clear that randomness, not diversity, was the overarching feature in selecting a jury.

20Here, the applicant does not suggest that the jury roll was not properly comprised. On this basis alone, I would find that the applicant’s challenge fails.

21Secondly, despite very able submissions by counsel, the applicant has failed to adduce any evidentiary basis in support of his argument that lower paid workers are more likely to seek excusal from jury selection than any other group. As pointed out by the Crown, financial hardship does not solely equate with poverty or low pay. It is equally likely, in my experience, that higher paid employees or those running their own businesses seek to be excused on the basis that they will not earn the same rate of remuneration if forced to absent themselves from work to be jurors.

22Thirdly, even if I accepted the applicant’s argument to be true and found that a greater proportion of jurors were those who were paid by their employers or from a higher income bracket, it is unclear to me how these characteristics would affect the representativeness of the jury in any meaningful fashion. My colleague Boswell J., in R. v. Pan, 2014 ONSC 1393, dealt with a similar argument to that advanced by the applicant in this case. I agree with his comments, at para. 54 of the case:

When considering Charter compliance, there are many characteristics that are simply not material. It matters not, for instance, if the panel contains a representative proportion of people with freckles, or people who have to take public transit, or people who prefer baths to showers, or left-handed people. These, and many other, characteristics are simply not material in terms of the composition of a jury. In my view, and in the absence of any evidence otherwise, the fact that someone is paid by his or her employer for jury service is not a characteristic that is material to juror competence, fairness, independence, or impartiality. Neither is the characteristic of working for government, or big business.

23Finally, as in Pan, there is no evidence that increasing the jury remuneration rate would actually expand the likelihood of those seeking excusal on the basis of financial hardship wanting to serve on a jury. Nor can I, in any way, determine what level of remuneration would be sufficient to persuade those seeking such excusal.

24The applicant suggests a rate of $200 per day starting on the day of selection. I am unaware of how this figure was reached and I am unable to say that even this figure would be enough: there is simply no evidence before this court which identifies an amount that would result in a corresponding decrease in excusal requests.

25For these reasons, the Charter application is dismissed.

S.A.Q. Akhtar J.