R v King (ONSC)
[November 4/19] Charter s.11(d)/7 - The Right to a Fair Trial Means Peremptory Challenges are Necessary - 2019 ONSC 6386 [Presently Available at 2019 CarswellOnt 17827] [Andrew J. Goodman J.]
AUTHOR’S NOTE: For a time, it seemed that the courts were prepared to rubber stamp some of the worst legislative changes to fair trial rights of accused persons. However, it appears that the tides are turning in the lower courts and, no doubt Courts of Appeal will be wading in soon. Herein, Justice Goodman analysed the removal of peremptory challenges from accused persons facing some of the most serious offences in the criminal code. After a thorough review of the history of the jury system and the interpretation of the Charter right to a fair trial he struck down the amendments that removed peremptory challenges in Ontario. Hopefully, judges in other provinces follow suit.
1 This is an application brought by the applicant, Dale King, challenging the jury selection amendments and seeking a ruling that the recent legislative repeal of s. 634 and the amendments to s. 640 of the Criminal Code, R.S.C. 1985, c. C-46, are unconstitutional and of no force and effect.
5 The applicant stands charged with one count of second degree murder in relation to the death of Yosif Al-Hasnawi. The date of the alleged offence is December 2, 2017.
7 The trial is considered a high-profile case in Hamilton and has garnered much media and community attention.
8 Moreover, Mr. King identifies as an Indigenous person. Given these facts, and on consent of the Crown attorney, the applicant will have the opportunity to avail himself of the right to conduct a publicity and race-based challenge for cause.
27 In order to explore the issues raised in this Application, a brief account of the jury selection process is helpful to understand its evolution.
31 As mentioned, the early jury was composed of community members with sufficient first-hand knowledge of the facts. The jury process then evolved from individuals who had a pre-existing knowledge of the facts, to community members who decided the case based only on the evidence presented at trial. Notably, this change in the jury membership precipitated the need for the jury to be impartial or indifferent. The jury made decisions based on the evidence presented in court, not on personal bias or knowledge: Judith Heinz, "Peremptory Challenges in Criminal Cases: A Comparison of Regulation in the United States, England, and Canada" (1993) 16:1 Loyola of Los Angeles Intl & Comparative LJ 201 at pp. 207-208.
32 In 1215, the Magna Carta was signed, amounting to a prodigious transformation. For the first time in history, the Monarchy was compelled to accept the rule of law. With the signing of the Magna Carta, Parliament eliminated the Crown's peremptory challenges. However, the accused's peremptory challenges remained intact: Heinz, quoting William Blackstone, explains at p. 211:
[the] "law wills [that the defendant should not] be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for his dislike [because] a prisoner should have a good opinion of his jury . . . that if a challenge for cause proved "insufficient to set aside the juror, perhaps the bare questioning [of] his indifference may sometimes provoke a resentment ... [thus] the defendant's ability to remove that juror on a peremptory challenge was necessary to "prevent all ill consequences" of such resentment.
33 ....However, it appears that at some point, the Crown was reinstated with an unlimited number of peremptory challenges.
34 A concise historical perspective of the peremptory challenge is referenced in R. v. Bain,  1 S.C.R. 91, at pp. 150-151:
The English common law originally granted the Crown an unlimited capacity peremptorily to challenge jurors while the accused was only allowed 35 peremptory challenges. This unlimited power led to abuses because the Crown would peremptorily challenge the whole array of jurors without qualifying 12 jurors. The trial was then postponed and the accused kept in custody until the next session....
38 In 1892, Parliament passed the first codified Criminal Code that recognized the right to a jury trial for serious offences.
39 In 1980, the Department of Justice produced a working paper entitled "The Jury in Criminal Trials", which was published through the Law Reform Commission of Canada. One of the proposals raised within the working paper was to codify the number of peremptory challenges available to an accused. The commentary on this proposal is found at p. 54:
The number of peremptory challenges for all offences should be increased. This will meet some of the objections raised by the abolition of stand-asides. It can be noted that this number is still well below the number permitted at common law, that is, 35. The peremptory challenge has been attacked and praised. Its importance lies in the fact that justice must be seen to be done. The peremptory challenge is one tool by which the accused can feel that he or she has some minimal control over the make-up of the jury and can eliminate persons for whatever reason, no matter how illogical or irrational, he or she does not wish to try the case.
41 In the decades leading up to 1992, the Crown attorney had both a right to four peremptory challenges and a right to order forty-eight jurors to standby; while criminal defence lawyers had a right to twenty, twelve, or four peremptory challenges, depending on the offence. The Supreme Court in Bain effected monumental changes to the selection process of a jury.
42 In 2008, ss. 631 and 634 of the Criminal Code was enacted to allow for a variation of the traditional vetting procedures, by introducing static or rotating triers. In 2011, there was an amendment to allow for an increase of the jury members to 13 or 14 persons in certain circumstances.
Does the repeal of s. 634 of the Criminal Code violate ss. 11(d) or 11(f) of the Charter?
60 Bill C-75 repealed s. 634, thereby effectively eliminating the ability of the Crown and the defence to challenge prospective jurors by means of a peremptory challenge.
61 Bill C-75 replaced s. 633 of the Criminal Code with the following:
The judge may direct a juror who has been called under subsection 631 (3) or (3.1) to stand by for reasons of personal hardship, maintaining public confidence in the administration of justice or any other reasonable cause.
63 The authorities have outlined a number of reasons for the existence of peremptory challenges. In Bain, the majority agreed with Stevenson J. and adopted Blackstone's description of the purpose of peremptory challenges. Relevant quotes are found at pp. 152-153:
What, then, is the basis for the peremptory challenge? I can find no basis other than that expressed by Blackstone, supra, at p. 353 and p. 1738 (of Lewis' edition):
. . . in criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous. This is grounded on two reasons. 1. As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defence his life), should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometime provoke a resentment, to prevent all ill consequences from which the prisoner is still at liberty, if he pleases, peremptorily to set him aside. [Emphasis added.]
65 This "didactic" function is important. By allowing the accused to participate in the selection of his or her jury, peremptory challenges "teaches" the accused, and the community at large, that the jury is the proper institution to adjudicate the matter. Moreover, the accused will see that he or she has received a fair trial because, "in a real sense the jury belongs to the litigant".
66 More recently, in R. v. Spiers, 2012 ONCA 798,  O.J. No. 5450, the Court of Appeal had occasion to review the jury selection process when it was discovered that the state had conducted background checks on prospective jurors. The court stated at paras. 57-61:
... Put differently, disruptions in the peremptory challenge process will not result in a jury or jurors that can be shown to be partial. Instead, it will impair one or other party's ability to fashion a jury that the party, subjectively, considers to be impartial.
67 Formerly, both Crown and defence had an equal number of peremptory challenges, a direct "say" in who ends up as a juror to hear the case.
70 In determining whether s. 11(d) rights have been violated, the Supreme Court of Canada has applied the following test: Whether a reasonable person, fully informed of the circumstances would have a reasonable apprehension of bias: R. v. Valente,  2 S.C.R. 673, at pp. 684-685.
71 In Bain, Stevenson J. at p. 93, explained that it is not whether the tribunal is actually so but whether it is perceived as such:
The test for both judicial independence and impartiality is whether the tribunal may be reasonably perceived as such. A jury need not be found to be actually partial before an infringement of the Charter is found. The informed observer's perception that the system of selecting jurors impairs impartiality is sufficient. If one party enjoys a greater influence, the observer need only have a reasonable apprehension of partiality.
74 As mentioned, the jury's independence and impartiality are enshrined in s. 11(d) of the Charter and are central features of Canadian criminal law. An impartial jury is an essential element of the fairness of the trial.
75 There is a strong presumption of juror impartiality. In R. v. Kokopenace, 2015 SCC 28,  2 S.C.R. 398, the Supreme Court considered a variety of important issues affecting the composition of a jury.
76 In R. v. Find, 2001 SCC 32,  1 S.C.R. 863 at para. 1, the Supreme Court held that an impartial arbiter is essential to a jury trial:
Trial by jury is a cornerstone of Canadian criminal law. It offers the citizen the right to be tried by an impartial panel of peers and imposes on those peers the task of judging fairly and impartially.
81 Further, peremptory challenges are most crucial to the impartiality of the jury precisely when challenges for cause are exercised. Peremptory challenges are said to serve a "shield" function: Bain at p. 152. This shield function relates to after challenges for cause are exercised and partiality concerns for a juror are not met. Peremptory challenges also serve as a "shield" or guarantor of impartiality in situations where the challenge for cause process might, inadvertently, lead to partiality.
82 The repeal of peremptory challenges has altered the in-court selection process in a fundamental manner. The applicant argues that since the new provisions neither add new mechanisms, nor bolster existing ones, it can no longer be said that the Criminal Code's in-court selection procedure provides for an impartial jury. Essentially, Bill C-75 provides no additional mechanisms to substitute for the loss of the peremptory challenge's "shield" function.
84 Representativeness is an essential component of ss. 11(d) and 11(f) of the Charter. The role of jury representativeness under s. 11(d) is limited to its effect on independence and impartiality. In R. v. Williams,  1 S.C.R. 1128 at para. 46, the Supreme Court held that representativeness is an important guarantor of impartiality. More recently, in R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421, aff'd. 2012 SCC 73,  3 S.C.R. 777, Watt J.A. stated at para. 17:
To ensure impartiality and, to some extent at least, the representativeness of the jury, the Criminal Code authorizes two kinds of challenge that may be made in relation to prospective jurors. Challenges for cause are available to ensure the impartiality of prospective jurors. Peremptory challenges may help to ensure representativeness on the jury.
85 Because representativeness is a key characteristic of the jury, its absence will automatically undermine the s. 11(f) right to a trial by jury, even if it is not so serious as to undermine impartiality under s. 11(d): Kokopenace, at para. 57. The requirement is a "representative cross-section of society, honestly and fairly chosen": Sherratt, at p. 524.
86 Moldaver J. discussed this concept in Kokopenace at para. 39:
There is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society. Courts have consistently rejected the idea that an accused is entitled to a particular number of individuals of his or her race on either the jury roll or petit jury.
87 As L'Heureux-Dubé J. explained in Sherratt, at p. 525, an absence of representativeness fundamentally undermines the jury's raison d'être:
The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place.
97 In Kokopenace, the Supreme Court had occasion to address any questions arising from Gayle and dealt with representativeness at the institutional stage of the jury selection process. Moldaver J., for the court, held that "in defining representativeness as it pertains to the jury roll, the focus is on the process, not the result: Kokopenace at para. 46. The court sets out the requirements for the state to satisfy its constitutional obligation for representativeness but only as it pertains to the jury roll. I read the Court's qualifying statement as an indicator that representativeness has a role to play outside the jury-roll process.
98 In Sherratt, the majority of the Supreme Court recognized that "the "in-court" selection procedure, can impact on the representativeness of the jury in some situations." This was affirmed in Bain at p. 113, Cory J. writing for the majority:
Indeed, in order to bolster the impartiality of the jury, the Criminal Code offers to the parties various means of challenging prospective jurors, whether collectively or individually, at ss. 558 (now s. 629), 562 (now s. 633), 563 (now s. 634) and 567 (now s. 638) of the Code.
99 In Sherratt the Court found that peremptory challenges can "in certain circumstances, produce a more representative jury depending upon both the nature of the community and the accused": pp. 532-533. This sentiment was echoed by the Court of Appeal for Ontario in Yumnu, at para. 17. Thus, I cannot agree with the Crown that the notion of representativeness is exhausted where the jury roll is deemed representative.
102 While Parliament's intent may have been to improve representativeness on the jury by removing peremptory challenges, the effect on the applicant has been the opposite. The applicant has lost his only certain means of directly participating in the jury selection process to secure the representativeness of the jury that will ultimately decide his fate.
103 The means to directly participate in the jury selection process, through peremptory challenges, is the process by which representativeness is guaranteed. Just as the accused is not entitled to a particular jury composition arising from the jury roll, the accused is not entitled to a particular result through the exercise of peremptory challenges.
104 In keeping with the thrust of the Supreme Court's statements as to the process versus results dichotomy in Kokopenace, at para. 46, in my view, the Supreme Court did not restrict the notion of representativeness to the jury roll.
106 Section 11(d) of the Charter confirms that every accused tried in Canada is entitled to a fair trial. While a fair trial does not depend solely on the view and preferences of the accused, the Supreme Court has held that "in a criminal trial the fairness of the process must be primarily assessed from the point of view of the accused": see R. v. E.(A.W.),  3 S.C.R. 155 at p. 198.
109 Recall that in Gayle, the issue was the Crown's use of peremptory challenges is a discriminatory manner. At paras. 59 - 60, Sharpe J.A. stated : ...
By offering each side a limited number of peremptory challenges, the law allows the parties to eliminate unproveable but perceived concerns about the propensities of jurors and thereby enhance confidence in the impartiality of the jury and the fairness of the trial.
110 Watt J.A.'s comments in Yumnu, at para. 124, on this point are instructive.
Jury selection is not a science. Anyone who has ever prosecuted, defended or tried a criminal case with a jury has their own views about the basis upon which to exercise a peremptory challenge. Occupation. Education. Mode of dress. Age. None are verifiable empirically. Many, if not most, cannot withstand objective analysis. Peremptory challenges permit a party to remove from jury service a limited number of persons whom the party believes, in the circumstances of the case to be tried, may not reach an impartial, evidence-driven conclusion. The availability of peremptory challenges fosters confidence in the adjudicative fairness of the criminal jury trial. Parties often exercise peremptory challenges in an attempt to secure what they hope will be a sympathetic jury. The equalization of the number of peremptory challenges available to both parties tends to ensure that neither gains an unfair advantage over the other in this aspect of jury selDoes the Elimination of the Peremptory Challenge Directly Affect the Accused's Charter Rights to an Impartial and Independent Jury, which, Ultimately Impairs Trial Fairness?ection. [Emphasis added.]
112 As the Supreme Court noted in Cloutier at p. 720, "the fact that a juror is objectively impartial does not mean that he is believed to be impartial by the accused or the prosecution." This is the very reason for the peremptory challenge. As noted by Blackstone, no accused should be tried by any one person against whom he has conceived a prejudice.
Does the Elimination of the Peremptory Challenge Directly Affect the Accused's Charter Rights to an Impartial and Independent Jury, which, Ultimately Impairs Trial Fairness?
124 The test to determine whether the applicant's s. 11(d) rights have been violated is an objective one. To determine whether a tribunal is impartial, the question is whether a reasonable person, fully informed of the circumstances, would have a reasonable apprehension of bias. Therefore, the legal test I must apply is whether the elimination of peremptory challenges would lead the reasonable person, informed of the circumstances, to have a reasonable apprehension of bias.
134 I agree with the applicant that when a process affecting the right to a fair trial is eliminated, the court must consider whether the new provisions, in their entirety, are a reasonable substitute, surrogate or enhancement for impartiality, representativeness and trial fairness. Accordingly, I turn now to my review of the "safeguards" laid out in Chouhan.
139 Trial Judge's Discretion to Excuse Prospective Jurors: In this aspect, again, nothing has really changed. In fact, preceding the impugned amendments, a judge, could at any time prior to and at the commencement of trial, order that any juror be excused from jury service for reasons of (a) personal interest in the matter to be tried; (b) relationship with the judge presiding over the jury selection process, the trial judge, 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, warranted that the juror be excused.
141 This safeguard is triggered from a prospective juror in a self-identifying process. The juror may raise concerns about his or her unavailability based on the aforementioned factors announced by the judge at the outset of jury selection. The accused does not advance the question or issue. Clearly it does not fall to any concern to be raised by an accused. I fail to see how this can provide for any substitute for the abolition of peremptory challenges.
142 The Trial Judge's Discretion to Stand Aside Jurors: The final — and perhaps most significant — safeguard raised in Chouhan focuses on the trial judge's discretion to stand aside jurors. In formulating the repeal of s. 634, Parliament invoked changes to s. 633. Formerly, s. 633 provided that:
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.
145 The stand-by mechanism as described in Chouhan provides for an undefined and indeterminate test about the onus for counsel to provide articulable grounds: Chouhan at para. 54. I tend to agree with the applicant when he asks what does that mean and what is the premise for the stated burden on an accused? What is the legal basis for "articulable cause"? How is it defined? What is the evidentiary burden? How is it to be applied with a paucity of information about a juror? The legislation is remarkably silent in this regard.
146 Neither Mr. Akilie nor Mr. Shime could explain the scope of the test, the foundation or basis for any onus, if it exists; the latitude to be afforded for submissions, if permitted, or how the test ought to applied based on the vagueness of the legislation. If there was to be a change, it seems that Parliament did not address the practical or evidential implications of the amendment to s. 633 of the Criminal Code.
147 Some judges may adapt, but an ad hoc process does not provide for any assurances of consistency or fairness. One judge may decide to have the question posed in front of the jury panel. The accused may be prejudiced by having comments placed on the record in front of a potential juror who may decide his or her fate. While this situation may be avoided by another judge excusing the unsworn juror from the courtroom one at a time to hear submissions, another judge may decide to remove a select multiple of jurors. For example, see Maggiore and Sharpe, at para. 82.
148 More importantly, under this framework, the accused must now pronounce openly his subjective assessment. For example, an accused's counsel may claim that a juror sneered at his client. The Crown may dispute that observation. The judge may not have seen it. Similarly, the Crown may claim that a juror smiled at the accused and nodded affirmatively. The defence may object to that characterization. The judge may not have observed it. How are submissions to be assessed or weighed? How is the judge to decide? Stand aside all potential jurors based on contested or disputed assertions? Ignore the submissions as the judge did not witness it? Is there some evidence to be adduced or a host of expanded questions of some unspecified nature to be posed to the prospective juror? Is it likely incumbent on the judge to provide reasons? Will the selection system descend into the morass of juror questioning, polling, submissions and the like that is found with our American cousins?
152 It is also well-known that the stand aside discretion existed prior to the recent amendments. This was amply described in Bain. In R. v. Krugel (2000), 143 C.C.C. (3d) 367, the Court of Appeal also considered the issue and stated at paras. 63 and 64:
Given my conclusion that the stand-by was retained to provide the element of flexibility in the jury selection process and bearing in mind that one of its recognized uses was to put aside jurors who might be partial, if Parliament had intended to eliminate juror partiality as one of the "reasonable causes" for which jurors can properly be stood aside, I am satisfied that it would have said so expressly. The fact that it did not leads me to believe that the words "any other reasonable cause" in s. 633 include the subject of juror partiality.
153 The rationale for partiality in the use of the stand aside provision was endorsed in Krugel. The former words "reasonable cause" are now replaced by "maintaining public confidence in the administration of justice". In my view, the addition of this new language is mere verbiage. When one examines the true effect of the changes in the wording of s. 633, there are really no "expanded powers" other than the judge now deciding, in effect, the peremptory challenge; this time with Crown or defence counsel having to fully articulate on the record the subjective basis upon which it is to be exercised.
154 I recognize that practical or evidentiary concerns, in and of themselves, may not rise to the level of sustaining a constitutional breach. These practical considerations aside, of more fundamental import or significance is that these amendments place the trial judge in an untenable position where he or she is no longer a passive arbiter in the jury selection process.
155 If a judge is asked to excuse or stand aside jurors, how does he or she effectively and articulately decide the issue without importing some degree of subjectivity?
157 While not without fault, the previous legislation provided for clear and easily understood directions. In submissions, Mr. Akilie could not fully articulate the breadth and processes implicated by the new provisions, yet says that case law will develop and work itself out over time. Where is the trial fairness to this applicant in this case while we wait for the legislation to evolve and run its course? The current stand by provision is ill defined. Vagueness cannot be an adequate substitute for the rights afforded an accused for a fair trial.
161 ... As mentioned, by virtue of the amendments, in effect, the judge is now explicitly and actively in a position to constitute the jury by implication in the exercise of his or her "enhanced" discretion to remove jurors, to the expense of the accused's direct participation; a proverbial pandora's box.
162 The judge's role is not to supervise trials of partiality, not decide them. In R. v. Barrow at p. 714, the Supreme Court held:
The Code sets out a detailed process for the selection of an impartial jury. It gives both parties substantial powers in the process and sets up a mechanism to try the partiality of a potential juror when challenged for cause. The trier of partiality is not the judge but a mini-jury of two potential or previously selected jurors (s. 569(2)). Overall, it is a comprehensive scheme designed to ensure as fair a jury as is possible and to ensure that the parties and the public at large are convinced of its impartiality. Any addition to this process from another source would upset the balance of the carefully defined jury selection process. This is especially the case of any attempt to add to the powers of the judge. Parliament has decided that the issue of partiality is a question of fact that must be decided by two of the jurors themselves, not by the judge. The province cannot give the judge any power to make decisions as to partiality and any judge who attempts to participate in such decisions usurps the function of the jurors established by s. 569(2). Usurpation of this sort is so severe an error of law by the judge that it mandates a new trial, even if no prejudice to the accused can be shown (Guérin, supra). The judge's role is to supervise trials of partiality, not to decide them. [Emphasis added.]
163 The ambiguity and imprecision of the amendments may foster a lack of consistency and uniformity in its effect. The lack of focused language or direction would result, if applied, in applications to expand the line of questioning or discretion being employed by the trial judge that would be not only subjective, but disparate, absent expert evidence.
166 The applicant adds that it is certainly within the realm of possibility that potential jurors will be either embarrassed, unaware of or unwilling to reveal personal prejudices or predispositions. Peremptory challenges allow counsel to remove potential jurors who they suspect are biased, but for whom they cannot demonstrate sufficient bias to justify removal through the challenge for cause process.
167 Discrimination does exist in society and by extension, regrettably, arises all too often in the criminal justice system. Indeed, the subjective views of both Crown and defence in selecting jurors cannot be empirically ascertained, albeit the concerns related to this issue cannot be dismissed out of hand.
Application of the Reasonable Person Test:
175 In my opinion, the reasonable person apprised of all the circumstances, in determining whether a trial is fair, would give due consideration to the accused's subjective perception on the fairness of the trial.
176 While it is true that such intuition may lead to stereotypical effects, it is a fettered and limited exercise of a right under the previous provisions found in s. 634. I find that such intuition with a reasonable limit in the hands of both Crown and defence provides the necessary safeguard to ensure confidence in a fair trial. There are numerous instances in the law where courts describe how peremptory challenges enhance confidence for the particular accused and for the community's sense of fairness. The lack of direct participation in the process by an accused and the potential for perception of partiality gives rise to a breach of his or her rights.
179 If the state is to remove or abrogate a long-standing right that was available to an accused person, a reasonable person, fully informed of the circumstances, would conclude that there must be adequate and readily defined substitutes to balance that right. As Mr. Shime ably submitted to the court, "a right without a procedure to protect it is a right in name alone."
180 In sum, the peremptory challenge process is not without fault. The Canadian jury selection system is not perfect. No system is. Yet, no one can disagree that the Canadian criminal justice system strives for fairness and justice. But to substitute peremptory challenges with an undefined process does not sustain impartiality, independence and more importantly, the right to a fair trial.
181 Indeed, public confidence in the jury system is maintained by the reasonable person knowing and understanding that the accused person's subjective perception of potential bias was addressed through his or her direct participation by virtue of a full engagement with the peremptory challenges.
182 A reasonable person, fully informed of the supposed safeguards available in the selection process for jurors, and with the elimination of a second layer of rights, (namely, the peremptory challenge as one of the underpinnings of a system that ensures a fair trial) would reach the conclusion that an accused's right to a fair trial with an independent and impartial jury would be violated by the impugned amendments.
Other Charter Rights Affected by the Amendment - s.7 of the Charter
194 In my view, the application before me does not "fall squarely" within s. 11(d) and consequently the applicant's argument may be strengthened by advancing a breach of his rights relying on other principles of fundamental justice which are distinct from the right to a fair trial.
196 Thus, the s. 7 analysis is not wholly encapsulated under the principle of fundamental justice of a right to a fair trial. The s. 7 analysis is concerned with capturing inherently bad law: that is, laws that take away life, liberty, or security of the person in a way that runs afoul of our basic values: Canada (Attorney General) v. Bedford, 2013 SCC 72,  3 S.C.R. 1101 at para. 96. In other words, the question under s. 7 is whether anyone's life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7: Bedford, at para. 123.
197 Arbitrariness, overbreadth, and gross disproportionality remain three distinct principles that stem from the "failures of instrumental rationality" - the situation where the law is "inadequately connected to its objective or in some sense goes too far in seeking to attain it": Bedford, at paras. 1-7. The analysis is qualitative not quantitative — an arbitrary, overbroad or grossly disproportionate impact on one person suffices to establish a breach: Bedford, at para. 123. Further, the impugned effect is measured only against the law's purpose without regard to the law's efficacy: Bedford, at para. 125.
210 The arguments put forth for the elimination of peremptory challenges in the House of Commons and the Senate were based on the belief that peremptory challenges were discriminatory because they allowed a homogenous jury to render a verdict in the Stanley case. The Parliamentary Secretary for the Minster of Justice and Attorney General, Arif Virani, noted that abolishing peremptory challenges would "improve the diversity of jurors". According to Mr. Virani, the elimination of peremptory challenges will "hopefully cure the overrepresentation of indigenous people in the criminal justice system".
213 Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law's purpose: Bedford at para. 111.
221 In applying the legal principles under s. 7 of the Charter, it cannot be said that the repeal of s. 634 is arbitrary.
223 Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose: Bedford, at para. 112. In assessing overbreadth, the focus remains on the individual and whether the effect on the individual is rationally connected to the law's purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose.
234 In my view, the amendment goes beyond its intended target or scope to capture all trials, even when there is no issue whatsoever of race. Nonetheless, accused persons in these situations will remain unable to use peremptory challenges, and with diminished safeguards, be constrained in their right to secure a representative jury. A law with the aim of preventing discrimination against jurors of racialized backgrounds is overbroad because, in some cases, the prospect of discrimination is absent.
236 The overbreadth in eliminating peremptory challenges for all accused is analogous to the overbreadth the Supreme Court found in Carter. At issue in Carter was s. 241(b) of the Criminal Code which criminalized aiding or abetting a person to commit suicide and ultimately, medical assistance in dying. The Court held s. 241(b)'s purpose was to "protect vulnerable persons from being induced to commit suicide in a moment of weakness": Carter, at para. 86. The plaintiff was not found to be one such "vulnerable" person. She was considered competent and fully informed to make decisions about the finality of her own life. The Court found the prohibitions overbroad as they extended to people who were not "vulnerable" persons in need of protection. In other words, a law with the laudable aim of protecting people was nonetheless overbroad because some people did not need protecting.
242 The amendments significantly impair an accused's right to exercise peremptory challenges in circumstances where he or she legitimately feels that a prospective juror is biased against him or her and will not be impartial in deciding the case. The legislative change, based on its stated purpose and objectives, has in effect, overshot its target.
243 Thus, the repeal of s. 634 is overbroad because it bears on conduct outside of its intended purpose; namely, in instances where concerns over discrimination are absent, and because the core benefits of peremptory challenges — including the didactic and shield functions, and the enhancement of the representativeness of juries — are lost.
245 "Gross disproportionality asks a different question from arbitrariness and overbreadth. It targets the second fundamental evil: the law's effects on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported": Bedford, at para. 120.
247 Again, I agree with the applicant that he has a fairly clear and circumscribed role in the trial not only to meet the charge of murder but to reduce the potential for bias or discrimination as against him. Nothing more is expected of him than trying to avoid conviction and punishment by asserting his rights according to law. However, notwithstanding the able submissions of applicant's counsel, it cannot be said that the legislative changes implicated here can be classified as one of those "extreme cases" as to be grossly disproportionate.
Is the Infringement Justified under Section 1 of the Charter?
257 In this case, the Crown acknowledges that should this Court find a breach of ss. 11 or 7, it would be a difficult task to sustain any argument under s. 1. In that regard, Mr. Akilie did not actively argue that if the amendments infringe either s. 11 or s. 7, they cannot be justified under s. 1 of the Charter.
258 I therefore find it unnecessary to engage in a full s. 1 analysis. Suffice it to say that the Crown has not discharged its burden and the ss. 7, 11(d) and 11(f) breaches are not proportionally justified under s. 1.
266 While the issue in Schachter v. Canada,  2 S.C.R. 679, dealt with the appropriateness of suspending a declaration of constitutional invalidity of impugned legislation, Lamer C.J. provided some guidance at p. 719:
A. striking down the legislation without enacting something in its place would pose a danger to the public;
B. striking down the legislation without enacting something in its place would threaten the rule of law; or,
C. the legislation was deemed unconstitutional because of under inclusiveness rather than overbreadth, and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefitting the individual whose rights have been violated
267 I am well aware that my decision to invalidate the repeal of s. 634 and elimination of the peremptory challenge would likely apply to future proceedings. However, if I accede to the Crown's submissions, there is a real risk that individuals will be subjected to a jury selection that is unconstitutional. That is inconsistent with Charter values and with the principles established in Schachter.
268 Accordingly, the declaration shall have immediate effect. Pursuant to s. 52(1) of the Constitution Act, 1982, the repeal of s. 634 is of no force and effect.
269 It is trite to state that there is no right without a corresponding remedy. The remedy here is to apply or adapt the previous s. 634 of the Criminal Code as it existed prior to the enactment of s. 269 of the Act. While not "reading-in" per se, (as the former section remains unaltered), the ultimate effect is the same.
Trial Judge as Trier:
271 In essence the applicant asks whether the amendments that replace the lay triers with the trial judge on the challenge for cause procedure breach the applicant's rights under ss. 7, 11(d) and/or 11(f)?
292 The procedural amendments to s. 640 of the Criminal Code do not violate ss. 11(d), 11(f) or s. 7 of the Charter.
311 In view of my ruling regarding the unconstitutionality of the repeal of s. 634 of the Criminal Code, the remedy is to apply the previous Criminal Code section as it existed prior to the enactment of the impugned legislative amendments, while adapting the related Criminal Code provisions, as the case may be.
312 Therefore, in this case, following the challenge for cause procedure as now specified in ss. 638 and 640 of the Criminal Code, each of the Crown attorney and the applicant shall be permitted to exercise their right of peremptory challenge, in accordance with ss. 634 and 635 of the Criminal Code, as they existed prior to September 19, 2019.
R v McAnally (ONSC)
[October 29/19] – Similar Fact Evidence and the Effect of Collusion – 2019 ONSC 6274 [Available at 2019 CarswellOnt 17695] [LeMay J.]
AUTHOR’S NOTE: Herein, Justice LeMay provides a timely review of collusion as it relates to similar fact evidence. With the Gian Ghomeshi amendments to s.276/278 being debated in the courts, there is significant value in looking at the legal principles of collusion in respect of similar fact evidence. The significant worry in the jurisprudence about complainants, even unintentionally, colluding in relation to similar fact evidence is noticeably absent in decisions that allow the complainant in a s.276/278 application prior access to materials that will impeach their version of events. In the opinion of this author, there are clear parallels between the effects of collusion between complainants and the impact of prior defence disclosure to a complainant in a sexual assault matter. In the end, the concern of complainants potentially changing their testimony to match the evidence is the same.
Here, the issues related to the purpose of the Crown in leadings the evidence, properly distilled amounted to general bad character evidence in a number of circumstances. As well, there was a possibility of collusion.
1 The accused, Mr. Gavin McAnally, was a teacher employed in Peel Region. He faces a four-count indictment relating to interactions with two of his former students. The first count relates to I.D. and the last three counts relate to I.D.'s younger brother A.D. During the trial, I.D. turned twenty-one and A.D. was seventeen. They were seventeen and fifteen at the time of the offences.
2 The charge relating to I.D. flows from an allegation that the accused asked I.D., on more than one occasion, to send the accused a picture of I.D.'s penis when I.D. was still under the age of eighteen.
3 The charges relating to A.D. primarily flow from one incident that took place in early February of 2017. In that incident, the accused is alleged to have asked A.D. to show the accused his penis. The accused then touched A.D.'s penis. As a result of this offence, the accused is charged with sexual touching, invitation to sexual touching and sexual assault.
4 The trial in this matter is being held before me sitting as a judge alone. The Crown has not filed a formal application to admit similar fact evidence in this case. However, on consent, I was asked to consider an issue relating to similar fact evidence in a blended voir dire. The parties also agreed that, if I admitted the evidence on the voir dire, I could then consider that evidence in the trial.
5 Specifically, the Crown seeks the following:
a) To have certain portions of the evidence of J.K. J.C, N.S. and C.S. admitted as similar fact evidence. All four of these men are former students of the accused. N.S. and C.S. are also close friends with I.D. and A.D.
b) To have the evidence of I.D. and A.D. admitted on a count-to-count basis in respect of the charges relating to the other person.
7 When I provided my oral reasons to the parties, I advised them that my subsequent reasons would govern. Therefore, for the reasons that follow, I determined that the evidence of J.K. and J.C. was completely inadmissible. I also determined that only those portions of the evidence of N.S. and C.S. that dealt directly with the charges in this case (and was not "similar fact" evidence) was admissible. Finally, in terms of the count-to-count evidence, I determined that it was also inadmissible as similar fact evidence.
77 In considering the admissibility of the similar fact evidence, I must address the following questions:
a) Should the evidence of J.K. and J.C. be admitted as similar fact evidence?
b) Should the evidence of N.S. and C.S. be admitted as similar fact evidence? Do N.S. and C.S. have evidence that is not similar fact evidence that should be admitted?
c) Should the evidence of I.D. and A.D. be admitted on a count-to-count basis?
78 I will set out the relevant legal principles and then address each question in turn.
Legal Principles of Similar Fact Evidence
82 There is a four step analysis that is applied in considering the admissibility of similar fact evidence, as follows:
a) The evidence must be adduced for a specific issue. The Court should not consider evidence that merely demonstrates that the accused is of bad character.
b) The Court must determine whether there is any potential for collusion that might undermine the improbability of coincidence. This analysis should consider both whether there was deliberate collusion and whether the evidence of the witnesses was tainted because they had talked about it before trial.
c) Once the first two steps are completed, the similarities and differences are considered. This exercise is not an accounting exercise, and must take into account that the level of similarity will often depend on how microscopically the evidence is considered by the trial judge. Considering where to draw this line is a matter of discretion (R. v Shearing,  3 S.C.R. 33 [at] para. 60).
d) The Court must consider the relative strength of the evidence.
83 Collusion is a live issue in this case. As a result, the law on collusion and taint should be reviewed. Once the defence has raised an "air of reality" to an allegation of collusion, it is then up to the Crown to satisfy the trial judge, on a balance of probabilities, that the evidence is not tainted with collusion (Handy, supra, paras 112 and 113).
84 In addition, even if intentional collusion cannot be proved, innocent contamination must be considered. In R. v. J.F. ( O.J. No. 3241) our Court of Appeal noted (at para 77):
The reliability of a witness's account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people's stories, which can tend to colour one's interpretation of personal events or reinforce a perception about which one had doubts or concerns.
79 Any analysis of similar fact evidence starts with the Supreme Court's decision in R. v. Handy ( S.C.R. 908) and the Ontario Court of Appeal's decision in R. v. Bent (2016 ONCA 651). These cases set out the framework that trial judges are to use in exercising their discretion
80 The starting point is that similar fact evidence is excluded. The Crown bears the burden of proving, on a balance of probabilities, that the evidence should be admitted. To do so, the Crown must demonstrate that the probative value of the evidence outweighs its prejudicial effect (see Handy, supra at para. 151).
81 Where similar fact evidence is of a morally repugnant act committed by the accused, then the prejudice is significant and the probative value must also be significant (R. v. Ennis-Taylor, 2017 ONSC 5948 at para. 33). In this case, the ultimate acts alleged are an attempt by a teacher to obtain photographs of an adolescent's penis, and a sexual assault on an adolescent. These are morally repugnant acts, so the probative value of the evidence must also be significant.
85 Crown Counsel argues that, since this is a judge alone trial, the hazards associated with reasoning and moral prejudice are significantly lessened, and in this regard directs my attention to both Handy, supra and R. v. T.B. (2009 ONCA 177).
86 Defence counsel acknowledges the fact that the risk of prejudice is lessened when the trial is before a judge alone. However, counsel points to R. v. Raphael (2014 ONSC 2611), where Pomerance J. observed (at para. 25) that the judge still has an obligation to ensure that the Court does not receive evidence that "has more prejudice than probity."
87 This brings me to the question of the credibility of the evidence. Deciding whether to admit the similar fact evidence does not require me to determine the veracity of the proposed evidence (L.B., supra at para 30). The strength of the proposed evidence, however, is a factor that should be considered in determining whether it is admissible.
The Specific Issue Identified
89 From reviewing this passage, it can be seen that a significant part of the Crown's argument is that the similar fact evidence will enhance the credibility of the complainants. I will return to the issue of credibility below.
Question #1- Should the Evidence of J.K and J.C. Be Admitted?
92 I reach that conclusion for three reasons, as follows:
a) There are some significant differences in the evidence of J.K. and J.C. when compared to the other witnesses, as well as some significant similarities, which makes the evidence less probative as similar fact evidence.
b) The use that the Crown wishes to put the evidence raises concerns about its prejudicial effect.
c) The use that the Crown wishes to put the evidence to could result in the trial straying from the charges that the accused is facing and devolving into a significant discussion of the accused's character.
93 I will deal with each issue in turn.
a) The Similarities and Differences
94 Handy, supra sets out a non-exhaustive list of factors that judges should consider in assessing the evidence. Those factors include:
a) The proximity in time of the similar acts.
b) The extent to which the other acts are similar in detail to the charged conduct.
c) The number of occurrences of the similar acts
d) The circumstances surrounding or relating to the similar acts.
e) Any distinctive features unifying the incidents.
f) Any other factors which would tend to support or rebut the underlying unity of the similar acts.
96 However, there are also some differences in the various histories. Those differences include the following:
a) Unlike the evidence given by I.D. and A.D., there was no evidence given by J.K. or by J.C. that the accused asked to see their pubic hair.
b) J.K. offered no evidence that he was asked to show the accused his penis at any point.
c) J.C. testified that he was the one who had initiated the conversations about sexual issues. The rest of the witnesses testified that the accused initiated these conversations.
d) Unlike the rest of the witnesses, J.C. testified that he did not receive any gifts other than candy from the accused.
e) The accused did not request any photographs of penises from either J.C. or J.K.
97 While there are similarities in the stories, there are also differences that raise questions about whether the proposed similar fact evidence shows a "pattern of conduct."
99 I start from the observation that the express purpose of this evidence is to bolster the credibility of A.D. and I.D. by demonstrating that the accused tended to have "penis centric" conversations with adolescent males. The Crown seeks to use this evidence to demonstrate that the accused has a propensity to have these conversations and, therefore, a propensity to groom or attempt to groom adolescent boys for sexual contact.
102 However, the Crown Attorney pointed to R. v. L.B. ((1997) 35 O.R. (3d) 35) where Charron J.A. (as she then was) stated (at para. 80):
In particular, the appellant's relationship with each of the witnesses was a significant feature in defining similarity. Each described predatorial behaviour that was facilitated by the appellant's exploitation of the student/teacher relationship. Like the complainants, the witnesses on the prior conduct described what could be regarded as a pattern of "grooming" by the appellant through his unorthodox displays of physical affection toward his students, and the atypical extent to which he cultivated personal relationships with his students by, for example, encouraging them to regard him as their confidant. This background lent important content to the complainants' allegations.
103 Counsel argues, in essence, that a pattern of grooming or attempted grooming can be used as similar fact evidence. There are some flaws with this argument.
105 At trial, the evidence of the students as to kissing that L.B. engaged in with them was admitted as it showed the same type of acts that the complainants had complained of, and that the accused had been charged with. However, the trial judge refused to admit evidence that the accused had encouraged a young woman to rent and view a pornographic movie on the basis that this was just evidence of bad conduct.
106 The same reasoning applies in this case. The Crown is seeking to admit these conversations in order to show that the accused had inappropriate conversations with young men. The Crown then asks that I conclude that these conversations made it more likely that the accused committed a sexual offence.
107 In my view, this is an impermissible leap of logic. The fact that the accused had inappropriate conversations with students in the past, even ones laden with sexual content, does not mean that he is more likely to have committed sexual offences against his students in the present.
108 A very similar argument was considered by Pomerance J. in Rafael, supra. In rejecting this argument, Pomerance J. stated (at paras 14 and 15):
14. The Crown argues that the sexualized environment of the classroom increases the likelihood that the touching of the complainant was for a sexual rather than an innocent purpose. Stated another way, it is the Crown's position that, because the accused made sexually inappropriate remarks to students, he is more likely to have sexually assaulted a student. This chain of reasoning requires an intervening inference of disposition. The Crown position amounts to an argument that, because he made sexual remarks to a student, the accused is a person of sexually questionable character, and is therefore more likely to sexually touch a student. The gap between the similar fact and evidence and the charge can only be bridged by an inference that the accused is a person prone to act in a sexually inappropriate manner and therefore more likely to commit a sexual assault.
15. There are various difficulties with this inference. First, it is not at all clear that it flows as a matter of logic. That is, one cannot say with any confidence that a person who makes sexually inappropriate remarks, or engages in a sexually inappropriate gesture (the dry-hump incident) is prone to commit a sexual offence. This involves an inferential leap that is difficult to sustain. Inappropriate verbal conduct is not necessarily equated with inappropriate physical conduct.
109 I am of the view that the same reasoning applies here.
110 This brings me to a final observation that Crown counsel made about credibility. He argued that similar fact evidence may be useful on the central issue of credibility. The problem with this argument is that, as Binnie J. noted in Handy, supra (at para 116):
Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant. Identification of credibility as the "issue in question" may, unless circumscribed, risk the admission of evidence of nothing more than general disposition ("bad personhood").
c) Admitting the Evidence Could Derail the Proceedings
113 ....The question of whether the accused engaged in inappropriate conversations of a sexual nature with teenage boys is not the ultimate issue that I have to determine. Embarking on a detailed evidential analysis of that issue could very well distract from the issues that I do have to determine.
114 The inferences that the Crown seeks to draw from this evidence alone make it inadmissible. However, the fact that there are also significant differences in the evidence (even at the macro level) raise considerable concerns about admitting this evidence even though there was no significant evidence of collusion or possible collusion before me. Finally, admitting this evidence could derail the proceedings.
115 In short, in balancing the probative value and prejudicial effect of this evidence, I have concluded that it should be excluded.
Question #2- Is the Evidence of N.S. and C.S. Admissible?
118 Many of the same problems that I have outlined with respect to the similar fact evidence of J.K. and J.C. exist with respect to the evidence of N.S. and C.S. In short, there are significant problems with the use that the Crown wishes to make of this evidence. Therefore, the second and third points of my analysis of the evidence of J.C and J.K. apply equally to the evidence of N.S. and C.S.. I adopt that reasoning I have set out above here, and do not need to repeat it.
b) Collusion or Taint
125 This brings me to the next part of the test, which is whether there is any collusion or any possibility that the evidence has been tainted either intentionally or innocently.
126 The analysis starts with the question of whether there is an "air of reality" to the defence's allegation that there might have been either intentional or accidental collusion. There is clearly an air of reality to this allegation. In that regard, I note the following:
a) N.S., I.D. and A.D. all discussed the February 2017 incident involving A.D. before I.D. and A.D. went to the police. This alone could have resulted in some at least innocent tainting.
b) At trial, A.D. acknowledged that, during a break, he had spoken to I.D. about the questions that he was being asked and the fact that he did not like the types of questions that defence counsel was asking. I.D. attempted to minimize the significance of this discussion in his evidence, but it is clear that there was some actual discussion, rather than merely an opportunity for a discussion.
c) At trial, I.D. originally testified, in cross-examination, that Counsel was going to love N.S., he is a genius. Then, after having been cross-examined about whether there had been either accidental or intentional tainting of evidence, stated that he did not know whether N.S. was coming to testify. This is a significant concern as it demonstrates that I.D. is understating the amount of out-of-court conversation between the witnesses about this case.
127 In light of these observations, there is clearly an air of reality to Defence counsel's assertion that there was tainting of at least an accidental nature in this case.
128 The Crown then has the burden of demonstrating, on a balance of probabilities, that either intentional or accidental tainting did not take place. I conclude that they have failed to meet this burden. The points set out at paragraph 128, above support my conclusion. In addition, I note the following:
a) A.D. testified candidly that he had confided in I.D. about at least some aspects of the trial.
b) N.S., A.D. and I.D. all had a conversation about A.D.'s allegations before they were reported to the police.
c) N.S. and I.D. both testified that they had discussions with their friends about their interactions with the accused, at least before these allegations were reported to the police.
d) N.S. and I.D. both remembered the foreskin tearing incident after the preliminary hearing and before the trial. Given the close relationship between the two of them, the timing of this incident coming back into both of their memories and the fact that there was no real explanation as to how they came to remember this incident, it can be inferred that they discussed the incident shortly before trial.
129 All of this evidence leads me to conclude that the Crown has not satisfied its burden to demonstrate that there was no at least accidental tainting. In light of that finding, it is not necessary for me to comment as to whether there was any collusion. The mere existence of accidental tainting reduces the improbability of coincidence, making the evidence significantly less reliable.
130 For the foregoing reasons, the similar fact evidence from N.S. and C.S. is inadmissible and I will not consider it further on this trial.
Question #3- Count-to-Count Evidence
140 I start with A.D.'s evidence, as it is easier to address. A.D.'s evidence, if true, would establish that sexual assault and sexual touching took place. The allegations made in respect of I.D. are substantially different. The accused is alleged to have asked for a pornographic picture of I.D. that would amount to child pornography.
141 In essence, the Crown seeks to use the evidence of an alleged sexual assault to assist in proving that someone sought out child pornography. At a superficial level, there are some similarities between the two allegations. However, when I step back and consider the differences in the charges, and the differences in the events, the Crown is again asking me to use impermissible propensity reasoning.
142 The Crown is asking me to infer that, because the accused engaged in a sexual assault, he was also more likely to have sought out child pornography. In my view, the inference does not logically follow. In addition, it appears to involve the prohibited reasoning that Binnie J. warned against in Handy, supra (see paragraphs 72 and 85). The accused's bad conduct in one area is, in essence, being used to infer that he would engage in bad conduct in another area.
143 This brings me to the evidence of I.D. and whether it is admissible in respect of the charges against A.D. This evidence, particularly about the alleged incident in March of 2017, is more similar in nature than A.D.'s evidence is about the charges relating to I.D.
144 However, when I.D.'s evidence is considered as "similar fact" evidence as against A.D.'s charges, it has some of the same problems that I have set out above. Those problems are:
a) The evidence of taint that I have set out above.
b) The fact that it is being used by the Crown primarily to bolster the Complainant's credibility.
c) The fact that there are some differences in the evidence of the two complainants. First, A.D. was alone with the accused when the assault allegedly took place and I.D. was not alone. Second, A.D.'s allegations involve a request to see and touch A.D.'s penis. I.D.'s allegations involve a request for a photograph.
148 When all of these reasons are considered together, I am of the view that the count-to-count evidence cannot be admitted as similar fact evidence either. Of course, any evidence about interactions between the accused and the two complainants together, or direct evidence of what the accused said to one complainant about the other is admissible, and will be considered.
149 For the foregoing reasons, the evidence that is sought to be admitted as similar fact evidence is excluded and will not be considered when I make my decision.