COURT FILE NO.: CRIM J(P) 38/20
DATE: 2022 08 04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
I. Osowski, for the Crown
- and -
Aime BOUFFARD
E. Bhattacharya and M. Rodriguez, for the Defendant
HEARD: August 2, 2022
RICCHETTI J.
ENDORSEMENT
(s. 629 Criminal Code Challenge)
THE APPLICATION.. 2
THE EVIDENCE.. 2
The Evidence of Jamie Lee. 4
THE CHALLENGE TO THE JURY ROLL.. 5
ANALYSIS. 6
a) Partiality. 6
b) Wilful Misconduct 10
i) The failure of the “review process”. 10
ii) The failure to rectify the “issues” for the balance of 2022. 11
Lack of a process to amend the 2022 Jury Roll 12
The practical inability to amend the 2022 Jury Roll 13
CONCLUSION.. 15
THE APPLICATION
[1] The Defence brings this application, under s. 629 of the Criminal Code challenging the jury array:
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).
[6] Jamie Lee was examined and cross-examined, in court virtually, on her affidavit.
[7] The facts are identical to those in R. v. Buabeng, 2022 ONSC 4116. I will not repeat them here except to state that errors were discovered in the compilation of the 2020, 2021 and 2022 Jury Rolls. More specifically, for the 2022 Jury Roll, the following issues were discovered in May 2022:
a) Persons who turned 18 years of age by December 31, 2021, although eligible for jury duty, were not included in the jury source list from the Ministry of Health;
b) Persons who were called for jury duty in 2018, although eligible for jury duty, were excluded by the PJC Questionnaire; and
c) Persons who were called for jury duty in 2021, although if they attended would not be eligible for jury duty, were included by the PJC Questionnaire.
(the “Issues”).
The Evidence of Jamie Lee
[8] Jamie Lee testified that, prior to 2022, they had never detected any error in the jury source list or the Questionnaire while compiling the Jury Rolls.
[9] Jamie Lee testified that the PJC is not given the birthdate for persons in the Ministry of Health’s jury array of approximately 10,000,000 names. PJC relied on the Ministry of Health’s compliance with the age requirements in the Juries Act when it receives the jury source list.
[10] After the discovery of the Issues, there has been a change with the Minister of Health data sharing agreement to ensure persons who “are turning 18 years old” as of December 31 are included in the Ministry of Health’s jury source list for the ensuing year. In addition, a further change is being made to add a new “audit” function which will permit the PJC to determine the number of persons in each age group in the jury source list.
[11] Jamie Lee testified there existed, at the time the 2022 Jury Roll was in the process of preparation in 2021, an approval process for compilation of the Jury Roll. The process involved several reviews from an analyst to the manager, and then a director. During this review, the error regarding the eligibility/ineligibility due to prior jury service was “missed” despite the “significant” and “rigorous” review process.
[12] Jamie Lee testified there were two reasons that steps were not taken to correct the 2022 Jury Roll:
a) The Juries Act does not permit the Sheriff to make changes to the Jury Roll after it has been certified (which must be by no later than December 31; see s.9 of the Juries Act). As a result, a new Jury Roll cannot, at this time, be certified prior to December 31, 2021, for the 2022 Jury Roll. Further, a certified Jury Roll cannot be altered except in accordance with the Juries Act (see s. 39 of the Juries Act);
b) Preparing the Jury Roll is very time consuming – “”it takes months to complete.” She concluded that there was “no practical or meaningful way to do that for 2022”. It was “not possible.”
THE CHALLENGE TO THE JURY ROLL
[13] The Defence does not raise the issue of “representativeness of the jury panel.”
[14] The Defence acknowledges that the Issues were not deliberately caused by the Jury Sheriff.
[15] 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 in returning it.”
[16] More specifically, the Defence alleges that, because there was a “failure of due diligence” and/or meaningful action to correct the 2022 Jury Roll, there is an appearance of partiality or, alternatively, the court should draw an inference of “wilful misconduct” in the compilation of the 2022 Jury Roll. As a result, the Defence submits that these failures will deprive Mr. Bouffard of a fair trial by a jury.
ANALYSIS
[17] I will not repeat the statutory provisions, nor the law set out in R. v. Buabeng, 2022 ONSC 4116.
[18] The onus is on the Defence to establish, on a balance of probabilities, a breach of S. 629 of the Criminal Code “on the ground of partiality, fraud, or wilful misconduct”.
a) Partiality
[19] It is admitted that the 2021 jury source list from the Ministry of Health erroneously excluded eligible 18-year-old persons for the 2022 Jury Rolls. Although, for the reasons set out in Buabeng, which equally apply to this case, the impact of this error did not affect the availability of a broad cross section of the general public from being available as prospective jurors for this trial.
[20] It is also admitted that 2018 summoned jurors were erroneously not included in the 2022 Jury Rolls and that 2021 summoned jurors were erroneously included in the 2022 Jury Rolls. The impact of this is not known given that it is not known which persons summoned “attended for jury duty” and because there is generally a vetting of the jury panel prior to jury selection that might exclude jurors who self-identify as having previously served within the last three years.
[21] The exclusion from the Jury Roll of persons summoned in 2018 would have reduced the Jury Roll by any person who had been summoned in 2018 but who was in 2021 randomly selected from the approximately 10,000,000 persons on the Ministry of Health’s list of persons. Hence, while the number of persons excluded is not known, the magnitude is seriously reduced because of the way the Jury Roll is randomly compiled from a large pool of persons each year and that only approximately 8% are randomly utilized from that large pool each year to form the Jury Roll. The evidence falls short of establishing that by excluding this group of persons, regardless of the number, would result in a Jury Roll that was not a broad cross section of the eligible members of society nor that by removing such a small segment of persons would result in a partial Jury Roll or a partial jury panel.
[22] The Defence suggests that exclusion of the 18 year old persons is not a “small segment of the population” that has been affected. I disagree. It is 1.5% of 18-year-old persons that were excluded from the jury source list and the impact on the Jury Roll would be significantly less (since only approximately 8% of the jury source list is used). See paragraphs 15-16 in Buabeng.
[23] It is also noteworthy that 19-year-olds (including those who are 19 years old plus a day) were included in the jury source list and Jury Roll.
[24] I conclude that the failure to include eligible 18-year-old potential jurors, or possibly excluding some jurors who served in 2018 or included jurors who served in 2021 but not excused, does not, by itself, make this jury panel partial.
[25] There is no evidence that this Jury Roll or this jury panel is partial. The Defence has not met its onus.
[26] The Defence also relies on a lack of “appearance of partiality” rather than actual or proven partiality. The Defence relies on comments in paragraphs 50 and 66 in R. v. Kokopenance, 2015 SCC 28, where the Supreme Court suggested that the state’s efforts in compiling the Jury Roll may be “so deficient that they create an appearance of partiality”.
[27] Were the Provincial Jury Center’s efforts so deficient as to create an appearance of partiality? In my view, a “significant” and “rigorous” review process was in place for creating the 2022 Jury Roll (and hence this jury panel). It was a multi-level review by an analyst, then a manager, and then a director, and thereafter a second review by the analyst and manager. And this review process was carried out for the compilation of the 2022 Jury Roll.
[28] The fact that the Issues were discovered in the 2022 Jury Roll is not evidence that the compilation of the 2022 Jury Roll and this jury panels is/was so defective as to create an appearance of partiality. The nature and extent of the cause of the defective compilation and its resultant impact on the 2022 Jury Roll must be such that it reasonably calls into question the jury panel does not contain a broad cross section of the eligible members of society to serve as jurors in the matter and, therefore, would be objectively perceived as being partial.
[29] The Defence evidence does not establish either.
[30] The only evidence before this court is that the source of the “issues” was a genuine mistake or accident despite the use of a significant and rigorous process to avoid such mistakes.
[31] I conclude that the mistake resulting in the Issues did not render this jury source list, Jury Roll, or this panel partial, nor did the “issues” create an appearance of partiality. There remained a fair opportunity for participation by a broad cross section of the eligible members of society to be selected as jurors to try this case.
[32] The Defence has not met its onus to establish that the Jury Roll or this jury panel is partial.
b) Wilful Misconduct
[33] The Defence alleges, that Jamie Lee, the Jury Sheriff, wilfully misconducted herself in returning this jury panel from the 2020 Jury Roll.
[34] It is admitted that the Jury Roll was not compiled in accordance with the Juries Act. However, more is required to establish the Jury Roll (and hence this jury panel) was compiled through wilful misconduct. “Wilful” means an intention or deliberate action on the part of the Jury Sheriff to commit the misconduct.
[35] The Defence points to two bases as evidence of wilful misconduct:
i) The failure of the “review process”
[36] As described above, there is a significant and rigorous process in place to prepare a Jury Roll, one that was employed for the 2022 Jury Roll.
[37] Mistakes can and do occur, even where all the best efforts are taken, without any wilful misconduct.
[38] The Defence suggests that the Jury Sheriff’s conduct was reckless in its compilation of the 2022 Jury Roll. I disagree. There is no evidence that there was any awareness by the PJC of a risk that the Issues would or could arise before they were discovered nor is there any evidence that the Jury Sheriff disregarded any such perceived risk. In fact, the testimony of the significant and rigorous process in place and used to attempt to avoid such mistakes, would suggest otherwise – great care was taken to avoid such mistakes rather than recklessness.
[39] I am not persuaded that the failure of the review process to “catch” the mistakes resulting in the Issues, was wilful misconduct in the preparation of the 2022 Jury Rolls or this jury panel. I reject this submission.
ii) The failure to rectify the “issues” for the balance of 2022
[40] The Defence submits that Jamie Lee’s failure to take steps to provide a Juries Act compliant 2022 Jury Roll after discovering the “issues” is evidence of wilful misconduct.
[41] Jamie Lee testified that she did not take steps to obtain a new Jury Roll for 2022 because:
a) The Juries Act does not provide for such a process; and
b) It is neither practical nor possible to create a new 2022 Jury Roll by the end of December 31, 2022.
Lack of a process to amend the 2022 Jury Roll
[42] Section 5(1) of the Juries Act requires the local sheriff for a jury area to determine the number of prospective jurors required for that area by September 15 for the ensuring year. For the 2022 Jury Roll this would be September 15, 2021.
[43] Section 9 of the Juries Act provides that as soon as the Jury Roll has been completed but not later than the 31st day of December in each year for the ensuring year, the Jury Sheriff shall certify the Jury Roll. For the 2022 Jury Roll this would be December 31, 2021.
[44] The Juries Act does not provide for an amendment to the Jury Roll once certified by the Jury Sheriff. Instead, it is an offence to alter the Jury Roll after it is certified (s. 39). Section 44(2) of the Juries Act specifically provides that, subject to sections 32 and 34, the jury panel is “deemed to be properly selected for the purposes of the service of the jurors in any matter or proceeding”.
[45] What does the Defence suggest that Jamie Lee should have done to overcome the Issues with the 2022 Jury Roll? The Defence suggested the PJC should have brought a proceeding such as mandamus or other equitable remedy.
[46] How could such a judicial proceeding overcome the specific certification process in the Juries Act given the time periods in the Act and the specific prohibition to alteration of the Jury Roll once certified? When asked, there was no response from Defence counsel except to say it was for the Jury Sheriff to determine how to remedy the Issues rather than the Defence to explain how. This response clearly underlines the fundamental problem with this submission.
[47] I reject the failure to take steps to amend the 2022 Jury Roll as evidence of wilful misconduct on the part of the Jury Sheriff.
The practical inability to amend the 2022 Jury Roll
[48] In any event, there is a detailed and cumbersome statutory process for creating a Jury Roll for each year:
a) Obtaining the number of prospective jurors required for each jury area in the province for the balance of the year by September 15 for the ensuing year (s. 5(1));
b) Obtaining the jury source list from the Ministry of Health containing the information in s. 4 of the Juries Act that will eventually result in the required number of prospective jurors for each jury area;
c) From the jury source list, generating randomly, from approximately 10 million names, the estimated number of prospective jurors estimated need by the Jury Sheriff;
d) Preparing a Questionnaire and sending it to the prospective jurors “in order to attain the aggregate number of persons” needed (s. 6(1-3));
e) The Questionnaire is to be returned within 30 days after receipt by the prospective jurors (s. 6(4));
f) Reviewing the returned Questionnaire to assemble the Jury Roll to determine which prospective jurors are eligible (s. 8(1));
g) Determine whether each prospective juror has a criminal record and exclude such persons (s. 16);
h) Then from the Jury Roll, the Jury Sheriff randomly prepares a jury panel for each jury area in Ontario as required (s. 13);
i) Send out a Summons to each person on the jury panel at least 28 days before the prospective jurors are to attend in the designated courthouse for jury selection (s. 17); and
j) Altering a Jury Roll, unless in accordance with the Juries Act, is an offence (s. 38).
[49] Quite frankly, there was no credible suggestion by the Defence that a new 2022 Jury Roll could have been obtained after the Issues had been discovered in the spring 2022.
[50] I find no merit in this argument.
CONCLUSION
[51] The process in place at the PJC to obtain the 2022 Jury Roll in accordance with the Juries Act was reasonable and was reasonably carried out. The Issues arose from a mistake(s) which unintentionally excluded certain minor groups from the 2022 Jury Roll but did not fail to generate a 2022 Jury Roll which contained a broad cross-section of society to serve as jurors in this matter or one that was partial.
[52] The Defence has failed to establish that the 2022 Jury Roll or this jury panel is partial or was the result of wilful misconduct by the Jury Sheriff.
[53] The Defence will continue to have a fair, impartial, and representative jury from a proper jury selected from this jury panel.
[54] The application is dismissed.
RSJ Ricchetti
Date: August 04, 2022
COURT FILE NO.: CRIM J(P) 38/20
DATE: 2022 08 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
-and-
AIME BOUFFARD
ENDORSEMENT
(S. 629 CRIMINAL CODE CHALLENGE)
Ricchetti J.
Released: August 04, 2022