COURT FILE NO.: CRIM J(P) 681/21
DATE: 2022 07 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
D. Mangat, for the Crown
- and -
MICHAEL BUABENG
E. Bhattacharya and M. Rodriguez, for the Defendant
HEARD: July 11, 2022
RICCHETTI J.
ENDORSEMENT
(s. 629 Criminal Code Challenge)
Contents
THE APPLICATION.. 2
THE EVIDENCE.. 2
THE FACTS. 3
Compilation of the Jury Roll and Jury Panel 3
The 18-year-old issue. 4
Three-year ineligibility. 5
THE LAW... 6
THE POSITIONS. 7
THE ANALYSIS. 7
Failure to establish the grounds set out in s. 629. 8
Partiality of the Jury Rolls. 8
Deliberate Misconduct by the Sheriff. 9
Partial Remedy through Jury Vetting. 9
Conclusion on s. 629. 9
Failure to establish a breach of the accused’s Charter rights. 11
Remedial Provisions. 13
CONCLUSION.. 13
THE APPLICATION
[1] The Defence brings this application, under s. 629 of the Criminal Code challenging the jury panel:
The accused challenges the array of the panel on the ground that Jaimie Lee, the Jury Sheriff, who returned the panel is guilty of partiality or willful misconduct on returning it.
[2] The Crown opposes the application.
[3] I heard this application as a case management judge on the morning prior to the scheduled jury selection by the trial judge.
THE EVIDENCE
[4] The Defence relies on an undated letter from the Ministry of the Attorney General, Court Services Division, Provincial Jury Center delivered on July 4, 2022, to various legal associations (Exhibit A) and a memorandum dated July 7, 2022, from myself to Defence Counsel and Self-Represented Accused (Exhibit B).
[5] The Crown relies on an affidavit of Jamie Lee, the Director of Court Services Division, dated July 5, 2022. Jamie Lee is the manager responsible for the Provincial Jury Center (PJC).
THE FACTS
Compilation of the Jury Roll and Jury Panel
[6] In 2019, as a result of a legislative change, a jury roll would be compiled from source lists using Ontario Health Insurance Plan (OHIP) records rather than property tax rolls.
[7] The PJC sets out criteria seeking a source list of persons from the Ministry of Health’s OHIP’s records (“source list”). One of the criteria for the source list is that persons on the list be 18 years old.
[8] In 2020, the source list contained 9,839,071 persons, 10,047,611 in 2021 and 10,186,137 in 2022.
[9] Once PJC has the source list, names are randomly drawn from this source list to meet the provincial jury needs – the jury roll. Approximately 8 % of the persons are randomly drawn each year from the source list to form the jury roll.
[10] A PJC questionnaire is then randomly sent out to selected persons from the jury roll to determine their eligibility under the Juries Act.
[11] From the responses to the questionnaires, as required, the PJC randomly selects a list of persons for jury panels as required for each Region and courthouse in the province.
The 18-year-old issue
[12] On or about May 16, 2022, someone noticed a lack of 18-year-old persons on the jury roll. Upon review, it was determined that the questionnaire sent in 2021, for the purpose of preparing the 2022 jury roll, had mistakenly excluded those persons who had attained the age of 18 years old by December 31, 2021.
[13] The PJC investigated the issue and determined that, unbeknownst to the PJC, the source list had also similarly excluded persons who were at least 18 years of age prior to the beginning of each of the 2020 and 2021 jury rolls.
[14] There is no dispute that, persons who are at least 18 years of age at the beginning of the year in which the jury is selected, are eligible to serve as juror under the Juries Act.
[15] The result of the error is that approximately 140,000 18-year-old eligible persons in each of the 2020, 2021 and 2022 source lists were excluded. This is approximately 1.4% in each year of the total persons on the source list provided to PJC.
[16] Accordingly, given that the jury roll only uses approximately 8% of the source list, the actual jury roll for the entire province would have excluded approximately 11,000 eligible 18-year-old persons (140,000 X 8%) in each of the three years.
[17] When the error came to Jamie Lee’s attention in May 2022, in late May or early June 2022, PJC sought and obtained a new source list from OHIP for the 2023 jury roll which complies with the Juries Act with regards to the eligibility of 18-year-old persons.
Three-year ineligibility
[18] While investigating the above with regard to the 2022 jury roll, on June 7, 2022, Jamie Lee discovered that the questionnaire sent out by the PCJ for the 2022 jury roll asked if persons had previously served on a jury in 2018, 2019 and 2020 for the purpose of ineligibility. The result was that persons called for jury duty in 2018, who would have been eligible for jury service in 2022, had been excluded from the 2022 jury panels.
[19] In addition, because the ineligibility years did not include 2021, this questionnaire error may have permitted those who had served on a jury in 2021, and were ineligible, to wrongly appear eligible for jury service in 2022.
[20] The exact impact of this questionnaire error to the number of ineligible persons included in the jury panels or eligible persons excluded from the jury panels is not known since it required individuals to self-identify their ineligibility.
THE LAW
[21] The Criminal Code provides:
629 (1) The accused or the prosecutor may challenge the jury panel only on the ground of partiality, fraud, or wilful misconduct on the part of the sheriff or other officer by whom the panel was returned.
(2) A challenge under subsection (1) shall be in writing and shall state that the person who returned the panel was partial or fraudulent or that he wilfully misconducted himself.
[22] The Juries Act provides:
s. 3(4) A person is ineligible to serve as a juror in a year if, at any time within three years preceding the year for which the jury roll is prepared, the person,
(a) attended court for jury service in response to a summons after selection from the jury roll; or
(b) attended a coroner’s inquest for jury service in response to a summons issued under subsection 33 (2) of the Coroners Act.
s. 4(4) The jury source list must contain the names and addresses of every person who, according to the most recent information available to the Minister of Health and Long-Term Care,
(a) is registered as an insured person under the Health Insurance Act and the regulations made under it.
(b) resides in Ontario.
(c) is a Canadian citizen; and
(d) is at least 18 years of age or will attain the age of 18 on or before December 31 of the year in which the list is provided.
THE POSITIONS
[23] The Defence acknowledges that the “specific errors” were the result of a “mistake” and “erroneous behaviour.” The Defence relies on the breach of the statutory requirements of the Juries Actto challenge the jury panel.
[24] The Defence does not allege that the above errors affected the representativeness of the jury array.
[25] The Crown submits that this was a minor, technical mistake that does not affect the partiality or representativeness of the jury roll or the jury panel in this case.
THE ANALYSIS
[26] This application fails for several reasons:
(a) The Defence has not established, on a balance of probabilities, that the jury panel for this case is not impartial.
(b) The Defence has not established, on a balance of probabilities, that the above errors were the result of deliberate misconduct by the Sheriff or the PJC.
(c) The Defence has not established, on a balance of probabilities, that the jury panel for this case is not impartial or fails to be representative of a broad cross section of society.
Failure to establish the grounds set out in s. 629
Partiality of the Jury Rolls
[27] Justice Galligan, in R. v. Bradley 1973 CarswellOnt 30, 23 C.R.N.S. 33 (a Pre-Charter decision) described partiality as follows:
7 The word "partial" is defined in the Shorter Oxford English Dictionary, 3rd ed., p. 1438, as follows: "Inclined antecedently to favour one party in a cause, or one side of the question more than the other; biased; interested; unfair ... Prejudiced or biased in some one's favour; hence: Favourably disposed, kindly, sympathetic." "Partiality" is "The quality or character of being partial".
8 There being no reported decisions interpreting the word "partiality" in s. 558, I feel it my duty to give that word in that section its plain English meaning as contained in the dictionary that I have just quoted; ….
[28] There is no evidence, direct or by inference, that eliminating eligible18-year-old persons and including/excluding some persons arising from their previous jury summons resulted in a jury panel, for this case, that is not impartial to Mr. Michael Buabeng.
[29] Put another way, there is no evidence that exclusion of 18-year-old persons, excluding persons that had attended for jury in 2018 and potentially including persons who had served in 2021 resulted in a jury panel for this case which is more partial or biased in someone’s favour.
Deliberate Misconduct by the Sheriff
[30] The evidence only establishes that the above errors arose due to a mistake. There is no evidence of any deliberate misconduct.
Partial Remedy through Jury Vetting
[31] One of the errors (failing to exclude jurors who were summoned in 2021) can easily be overcome through proper vetting of the prospective jurors in the jury panel.
[32] Prospective jurors in the jury panel can, and usually are, asked to self identify if they have been summoned for jury duty in the past three years. If those prospective jurors come forward, they are typically deferred.
[33] This practice should continue, at a minimum, for the balance of 2022 jury selections.
Conclusion on s. 629
[34] Essentially, the Defence submission is that there was a breach of the Juries Act and hence, the jury panel should be replaced by a new jury panel selected from a properly constituted jury roll.
[35] But, it is not every breach of the Juries Act which permits a successful challenge to a jury panel under s. 629 of the Criminal Code.
[36] If Parliament had sought to set aside jury panels for any breach of the Juries Act (i.e., the provincial legislation for jury selection in Ontario), then the wording would and could have been much broader. Instead, Parliament chose three specific grounds where a successful challenge can be made to a jury panel: where the jury panel is partial, or where the jury panel is created by fraud or misconduct.
[37] Further, Parliament went so far as to limit the impact of any errors “contained in any Act” in “qualification, selection, balloting or distribution of jurors, the preparation of the jurors’ books” of jury panels as a ground from impeaching or quashing a verdict in criminal proceedings. A similar curative provision is set out in s. 44 of the Juries Act.
[38] Accordingly, to suggest a minor or technical breach of compiling the jury panel from the jury roll with the above errors is fatal to the jury panel has no merit.
[39] None of the enumerated grounds in s. 629 have been established on a balance of probability or on any other standard.
[40] The Defence fails on this issue.
Failure to establish a breach of the accused’s Charter rights
[41] The method by which a jury roll (or jury panel derived therefrom) is selected may be fatal as a breach of an accused’s right to an impartial and representative jury as protected under s. 11(f) of the Charter of Rights.
[42] As stated above, impartiality of the jury roll (or the jury panel) has not been established or even alleged in this case.
[43] Defence counsel stated that the accused is not asserting that the jury panel in this case fails to meet “proportional representation.” Accordingly, it does not appear that the Defence goes so far as to suggest a Charter breach. However, given that “representativeness” were included in the submissions, let me deal with this issue.
[44] The Supreme Court in R. v. Kokopenance, 2015 SCC 28 described the accused’s Charter rights to an impartial and representative jury:
[2] In my view, representativeness focuses on the process used to compile the jury roll, not its ultimate composition. Consequently, the state satisfies an accused’s right to a representative jury by providing a fair opportunity for a broad cross-section of society to participate in the jury process. A fair opportunity will be provided when the state makes reasonable efforts to: (1) compile the jury roll using random selection from lists that draw from a broad cross-section of society, and (2) deliver jury notices to those who have been randomly selected. When this process is followed, the jury roll will be representative and the accused’s Charter right to a representative jury will be respected.
[39]….. As Rosenberg J.A. observed in Church of Scientology, at p. 121, “[w]hat 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.”
[40] As this statement indicates, representativeness is about the process used to compile the jury roll, not its ultimate composition. …
[50] Representativeness is an important guarantor of impartiality: R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, at para. 46. There are two potential problems with representativeness that may impact on impartiality. First, the deliberate exclusion of a particular group would cast doubt on the integrity of the process and violate s. 11(d) by creating an appearance of partiality: Church of Scientology, at p. 118. Second, even when the state has not deliberately excluded individuals, the state’s efforts in compiling the jury roll may be so deficient that they create an appearance of partiality: see, e.g., R. v. Nahdee, 1993 CanLII 17034 (ON SC), [1994] 2 C.N.L.R. 158 (Ont. Ct. (Gen. Div.)). However, where neither form of conduct exists, a problem with representativeness will not violate s. 11(d).
[66] That said, if the state deliberately excludes a particular subset of the population that is eligible for jury service, it will violate the accused’s right to a representative jury, regardless of the size of the group affected. It is self-evident that the state will not have made reasonable efforts if it deliberately excludes part of the population. Deliberate exclusion undermines the integrity of the justice system and cannot be tolerated. However, if it is a question of unintentional exclusion, it is the quality of the state’s efforts in compiling the jury roll that will determine whether the accused’s right to a representative jury has been respected. If the state makes reasonable efforts but part of the population is excluded because it declines to participate, the state will nonetheless have met its constitutional obligation. In contrast, if the state does not make reasonable efforts, the size of the population that has been inadvertently excluded will be relevant. A failure to make reasonable efforts in respect of a small segment of the population will not undermine the overall representativeness of the jury roll because there is no right to proportionate representation. When only a small segment of the population is affected, there will still have been a fair opportunity for participation by a broad cross-section of society.
[118] In sum, Ontario’s efforts to obtain updated lists were reasonable. I am therefore satisfied that Ontario met its representativeness obligation in this regard…
(Emphasis added.)
[45] In this case, there is no evidence that the above-described omission and inclusion errors in compiling the jury roll, and hence the jury panel randomly selected therefrom, was deliberate.
[46] In this case, they only evidence is that only a very minor segment of the eligible general society was excluded because of the error with the source list and the questionnaire. These errors, individually or cumulatively, do not undermine the overall representativeness of the jury roll or the jury panel derived therefrom.
[47] Accordingly, even if the challenge was Charter based, it is not successful.
Remedial Provisions
[48] The remedial provisions of the Juries Act (s. 44(1)) or the Criminal Code (ss. 670 and 671) only apply as a curative provision for verdicts or judgments. Neither specifically apply to s. 629 but the fact that deficiencies, such as inadvertent minor and technical breaches here in compiling the jury roll and jury panel, are suggestive that such deficiencies are not fatal.
CONCLUSION
[49] The Defence’s position entirely rests on a technical, minor breach of the Juries Act, and does not constitute a breach of s.629 of the Criminal Code nor a breach of a Charter right.
[50] There is no reasonable basis to require the Sheriff to obtain a new jury panel from a new or different jury roll for this matter or to adjourn this trial until 2023 to permit the new jury roll to become available from which to obtain a new jury panel.
Date: July 13, 2022 Ricchetti J.
COURT FILE NO.: CRIM J(P) 681/21
DATE: 2022 07 13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
-and-
MICHAEL BUABENG
ENDORSEMENT (S. 629 CRIMINAL CODE CHALLENGE)
Ricchetti J.
Released: July 13, 2022