DATE: 19980909
DOCKET: C18068
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., CATZMAN and GOUDGE JJ.A.
BETWEEN: )
) Andras Schreck, Frank
HER MAJESTY THE QUEEN ) Addario, Peter Rosenthal
) for the appellant
Respondent )
)
and ) Fergus O'Donnell, Jeff
) Kehoe, Bradley Reitz
DUDLEY LAWS ) for the respondent
)
Appellant ) David Lepofsky and
) Philip Downes
and ) for the intervener
)
THE ATTORNEY GENERAL FOR ONTARIO )
) Heard: April 27, 28, 1998
Intervener )
BY THE COURT:
INTRODUCTION
[1] The appellant was tried before Whealy J. and a jury on an
indictment containing seven counts. Counts 1, 2 and 3 alleged a
conspiracy to smuggle illegal aliens into the United States;
counts 4 and 5 alleged a conspiracy to smuggle named persons into
the United States; and counts 6 and 7 alleged a conspiracy to
smuggle named persons into Canada.
[2] During the trial, a mistrial was declared with respect to
counts 4 and 5. A re-trial on those counts is scheduled to be
held in the near future. The jury found the appellant guilty of
all of the remaining counts. His application, following
conviction, for a stay of proceedings on the ground that he had
been entrapped was dismissed. Convictions were entered on counts
1, 6 and 7; counts 2 and 3 were stayed on the basis of the rule
against multiple convictions. The appellant was fined $5,000 and
was sentenced to 9 months' imprisonment on each of counts 1, 6
and 7, to be served concurrently.
[3] The appellant appeals against conviction and sentence.
THE EXCLUSION OF CERTAIN MEMBERS OF THE PUBLIC FROM THE COURTROOM
[4] This ground of appeal relates to the exclusion from court of
members of the public for wearing head coverings which were
apparently worn for religious purposes. It is not suggested that
the public generally did not have access to the trial of the
appellant.
[5] On November 15th, 1993 the following comments were made by
the trial judge and counsel during the hearing of pre-trial
motions:
Mr. Pistyner: Good morning, Your Honour.
The Court: I see some hats in the room;
they must come off, no exceptions.
Mr. Pistyner: Good morning, Your Honour. If
I might address the Court.
The Court: Anybody insist upon wearing a
hat may leave.
Voice: Not a hat, Your Honour.
The Court: It is. It is a head covering,
and get out.
Voice: I will not leave willingly, it is
not a hat.
Mr. Kellerman: If I could speak, Your Honour.
It is a religious matter.
The Court: I do not care. I am not
quarrelling with his religion, he is just not
going to be in the court room.
After several further exchanges between the trial judge, counsel
and an unidentified spectator, the trial judge concluded as
follows:
The Court: I won't have any comments from
the audience. You are more than welcome to
be here, it is a public court room, but the
rules are made by me and I just made the
first ruling.
[6] On November 22, 1993 the trial judge made a more formal
order in relation to the acceptable headwear of spectators, in
part as follows:
Attire normally acceptable in school should
be the standard. However, male heads must be
bare and if females wear head cover, it must
not interfere with other members of the
public or be flamboyant.
. . . .
Some head coverings, by their shape, colour
and design, are obvious and easily
recognizable as signalling to the eye an
adherent of a well-established and
recognizable race, culture, national or
religious community; one of those communities
who is clearly within the purview of the
Charter. I am unable to think of any such
community who has adapted a headdress which
lacks the dignity and uniformity that I have
been speaking of. Even among those
communities, headdress in court will only be
permitted if it is an article of faith
demanded by that well established and
recognizable religious community. [Emphasis
added.]
[7] On January 5, 1994 the trial judge made a further ruling
with respect to the wearing of headdresses as well as a ruling in
relation to the application of behalf of the appellant that the
matter proceed before another trial judge on the basis of a
reasonable apprehension of bias related to his earlier rulings
with respect to the wearing of headdresses and other matters.
[8] As part of his ruling, the trial judge made the following
observations:
As yet the court has not called upon the
Crown to make any submissions, and in my view
would not be of any assistance. Furthermore,
to do so would be to dignify these
submissions with some sense of reality.
These submissions have no more substance than
shadows which, when examined in the light of
day, disappear without a trace.
The right of an individual spectator to enter
a court is by no means absolute. If refused
entry by the order of the presiding judge, on
any basis, an application for violation of
the Charter of Right belongs to the spectator
and not to any party to the proceedings. In
my view, only if the public is wholly or
substantially excluded from the court can the
accused in the criminal case raise any such
issue under s.11(d) of the Charter. [Emphasis
added.]
[9] An affidavit of one Michael Taylor sworn on December 10,
1993 which was filed before the trial judge deposed, in part, as
follows:
On Monday, November 22, 1993, I attended the
court of Justice A.C. Whealy at the
Metropolitan Toronto Court House, at about
12:15 p.m. and sat in the court. After 5
minutes or so, I was approached by the court
bailiff and was told that the judge did not
allow "hats" in his court. I asked the
officer "is the judge aware that I am a
Muslim and that my headdress is a part of my
religious practice?" The officer said that
there were no exceptions and that I would
either have to take my "hat" off or leave the
court. I refused to take my headdress off
and was therefore asked to leave the court,
which I did peacefully. On my way out of the
courtroom I heard Justice Whealy saying,
"Muslims do not wear hats." I wear my
headdress daily and regard it as part of my
religious practice and not a "hat" or
something to protect my head from the
elements. I wear a headdress as it is
regarded as a symbolic act to identify myself
as a Muslim and because it is an act of
religious merit and piety.
. . . .
On Thursday, November 25, 1993 I again
attempted to attend the court of Justice
Whealy but I was prevented from entering by a
uniformed police officer who advised me that
"no hats" were permitted in the courtroom of
Justice Whealy.
[10] At no time was there any application by counsel for the
Crown to request any order with respect to the dress code of
spectators in the courtroom.
[11] There was no evidence tendered before the trial judge with
respect to what types of headdress might be worn for religious
purposes.
[12] In R. v. S. (R.D.) (1997), 118 C.C.C. (3d) 353 at 385
(S.C.C.), Cory J. wrote of the importance of the court's
recognizing the pluralistic nature of Canada:
Canada is not an insular, homogeneous
society. It is enriched by the presence and
contributions of citizens of many different
races, nationalities and ethnic origins. The
multicultural nature of Canadian society has
been recognized in s. 27 of the Charter.
Section 27 provides that the Charter itself
is to be interpreted in a manner that is
consistent with the preservation and
enhancement of the multicultural heritage of
Canadians. Yet our judges must be
particularly sensitive to the need not only
be fair but also to appear to all reasonable
observers to be fair to all Canadians of
every race, religion, nationality and ethnic
origin. This is a far more difficult task in
Canada than it would be in a homogeneous
society. Remarks which would pass unnoticed
in other societies could well raise a
reasonable apprehension of bias in Canada.
[Emphasis added.]
[13] In R. v. Butler (1984), 63 C.C.C. (3d) 243 at 252
(B.C.C.A.), Esson J.A. stated as follows:
The application of the principle of equality
before the law may well require a reasonable
recognition by the court of individual
differences in religious belief, dress and
like matters.
[14] The relevant statutory enactment regarding exclusion of the
public from a courtroom is s. 486(1) of the Criminal Code, R.S.C.
1985, c. C-46 which reads:
Any proceedings against an accused shall be
held in open court, but where the presiding
judge, provincial court judge or justice, as
the case may be, is of the opinion that it is
in the interest of public morals, the
maintenance of order or the proper
administration of justice to exclude all or
any members of the public from the court room
for all or part of the proceedings, he may so
order.
[15] The general principle of favouring open courts is well
established. In Re Southam Inc. and the Queen (No. 1) (1983), 41
O.R. (2d) 113 (C.A.), the fundamental issue on appeal was whether
holding trials of juveniles in camera is a breach of "opinion and
expression" and whether free access to the courts is a
fundamental right or freedom. Writing for the Court, MacKinnon
A.C.J.O. stated, at p. 119:
There can be no doubt that the openness of
the courts to the public is one of the
hallmarks of a democratic society. Public
accessibility to the courts was and is felt a
necessity; it is a restraint on arbitrary
action by those who govern and by the
powerful.
[16] In Attorney-General of Nova Scotia et al. v MacIntyre
(1982), 65 C.C.C. (2d) 129 at 145-47 (S.C.C.), Dickson J. stated:
It is now well established, however, that
covertness is the exception and openness the
rule. Public confidence in the integrity of
the Court system and understanding of the
administration of justice are thereby
fostered. As a general rule the sensibilities
of the individuals involved are no basis for
exclusion of the public from judicial
proceedings.
. . . .
The authorities have held that subject to a
few well-recognized exceptions, as in the
case of infants, mentally disordered persons
or secret processes, all judicial proceedings
must be held in public. The editor of
Halsbury's Laws of England, 4th ed. vol. 10,
para. 705, p. 316, states the rule in these
terms:
In general, all cases, both civil and
criminal, must be heard in open court,
but in certain exceptional cases, where
the administration of justice would be
rendered impracticable by the presence
of the public, the court may sit in
camera.
At every stage the rule should be one of
public accessibility and concomitant judicial
accountability...
In my view, curtailment of public
accessibility can only be justified where
there is present the need to protect social
values of superordinate importance. One of
these is the protection of the innocent.
[17] In Canadian Broadcasting Corporation v. New Brunswick
(Attorney General) (1996), 2 C.R. (5th) 1 (S.C.C.), the
respondent pleaded guilty to sexual assault and the provincial
court judge ordered the exclusion of the public and the media
from the courtroom during the portions of sentencing where the
particular acts would be dealt with. The public and the media
were excluded for a total of approximately twenty minutes. In
ordering a new trial, LaForest J. commented, at p. 12:
The importance of ensuring that justice be
done openly has not only survived: it has now
become "one of the hallmarks of a democratic
society" ... [citation omitted]. The open
court principle, seen as "the very soul of
justice" and the "security of securities",
acts as a guarantee that justice is
administered in a non-arbitrary manner,
according to the rule of law.
[18] In R. v. Vandevelde (1994), 89 C.C.C. (3d) 161 (Sask. C.A.),
the appellant appealed his conviction on five counts of sexual
exploitation. One of the issues on appeal was whether the trial
judge erred in excluding the public from the trial during the
testimony of the young complainant. The fundamental issue dealt
with on appeal was whether the accused can obtain a fair trial
where the trial, or portions thereof, are not held in public.
Vancise J.A. stated, at p.166:
The right to a public trial is a fundamental
tenet of natural justice. It has been said
nothing is more important than the public
administration of justice ... [citation
omitted]. Sir William Blackstone in his
Commentaries on the Laws of England Vol. III
(1768), at pp.371-2, described how evidence
was given in the law courts:
And all this evidence is to be
given in open court, in the
presence of the parties, their
attorneys, the counsel, and all by-
standers, and before the judge and
jury: each party having liberty to
except to its competency, which
exceptions are publicly stated, and
by the judge are openly and
publicly allowed or disallowed, in
the face of the country: which must
curb any secret bias or partiality
that might arise in his own breast.
Vancise J.A. then canvassed the prevailing authorities with
respect to exclusion of the public and summarized them as follows
at pp. 172-73:
The purposes set out in Scott v. Scott,
[[1913] A.C. 417 (H.L.)], for which the
common law permits a departure from the
fundamental principle that a trial should be
held in public are similar to those contained
in s.486(1), with the addition of the
interest of public morals. Thus, the
overriding principle is that the trials must
be held in public, in open court, unless the
trial judge (as defined in the section)
decides that it is necessary to exclude the
public or any member of the public. The
trial judge's discretion is not unfettered in
that respect. He or she may do so only if
the interest of justice requires it having
regard to the conditions set out in s.486(1),
that is:
1. it is in the interest of public
morals;
2. it is necessary to maintain order
in the court-room;
3. it is in the interest of the proper
administration of justice.
There must be a significant evidentiary
foundation on which the trial judge can base
such an order. The party applying for the
order, usually the Crown, must satisfy the
trial judge that the ends of justice will be
frustrated unless the order is made or that
it is in the interest of public morals or in
the interest of the proper administration of
justice that the order be made.
The Court of Appeal concluded that the trial judge did not have a
sufficient evidentiary base upon which the ruling could be
justified. The conviction was set aside and a new trial was
ordered.
[19] There does not appear to be any reported Canadian case which
has attempted an analysis of the numbers excluded from a court
room which would lead to a conclusion that there had been a
denial of a public trial.
[20] In the U.S. case of People v. Garrett, 637 N.E.2d 615
(1994), the Appellate Court of Illinois held that the defendant's
constitutional right to a public trial was breached when his
parents were excluded from the courtroom. In another U.S. case,
that of Addy v. State, 849 S.W.2d 425 (1993), the Court of
Appeals of Texas stated that the barring of only some members of
the public from the courtroom does not necessarily mean that an
accused has been denied a public trial but any such barring of
members of the public must be done for compelling reasons. The
court further stated at p. 429:
The presence of an accused's friends in the
courtroom lends moral support to the accused
and helps insure honest proceedings. If an
accused is denied the presence of his
friends, he is denied a public trial, unless
the trial court can articulate on the record
some compelling reason for excluding them.
[21] Trial judges are entitled to maintain a discretion to
exclude members of the public when circumstances warrant.
However, this discretion should not be exercised arbitrarily.
Furthermore, the discretion should not be exercised in the
absence of an evidentiary foundation and must be exercised in
accordance with the Charter.
[22] In our view the trial judge erred when he made the following
statements in relation to the exercise of his discretion:
(a) Some head coverings, by their shape,
colour and design, are obvious and
easily recognizable as signalling to the
eye an adherent of a well established
and recognizable race, culture,
national or religious community; one of
those communities who is clearly within
the purview of the Charter. [Emphasis
added.]
. . . .
(b) It is important to re-assert the
principle that adherence to a major,
recognizable religion that demands
headdress is a basic condition of
acceptability... . [Emphasis added.]
[23] There was no basis on which the trial judge could
distinguish between a requirement of a particular faith and a
chosen religious practice. Freedom of religion under the Charter
surely extends beyond obligatory doctrine.
[24] The trial judge further erred in suggesting that only
certain communities are clearly within the purview of the
Charter. No individuals or religious communities enjoy any less
Charter protection than the major and recognizable religions.
[25] There is nothing in the record which would reasonably assist
us to determine the number of people excluded from the courtroom
as a result of the rulings of the trial judge in relation to
headdress. The affidavit of Michael Taylor indicates that the
court attendants were turning away males wearing hats for an
undetermined period of time.
[26] In our view the rulings by the trial judge as to headdress
did not deprive the appellant of a public trial. However the
trial judge by his rulings may well have inadvertently created
the impression of an insensitivity as to the rights of minority
groups.
[27] As Cory J. stated in R. v. S. (R.D.) as quoted above at p.
385:
Yet our judges must be particularly sensitive
to the need not only be fair but also to
appear to all reasonable observers to be fair
to all Canadians of every race, religion,
nationality and ethnic origin.
[28] We are therefore of the opinion that the trial judge erred
in excluding certain members of the public from the courtroom,
and that this may well have resulted in creating an atmosphere
that undermined the appearance of a fair trial. However, having
regard to our disposition of this appeal on grounds relating to
the wiretap authorization, which are dealt with hereafter, we do
not consider it necessary to form a concluded view whether the
ground of appeal now under consideration is in itself sufficient
to constitute reversible error.
THE CONSTITUTIONALITY OF THE EXERCISE OF THE CROWN'S DISCRETION
WITH RESPECT TO HYBRID OFFENCES
[29] It is submitted by the appellant that the Crown's common law
discretion to choose the mode of trial in hybrid offences such as
s. 94(1) of the Immigration Act, R.S.C. 1985, c. I-2, is contrary
to principles of fundamental justice in that it gives the
prosecution an unreviewable and unfettered discretion to elect
the mode of trial and the consequent procedure and penalty.
[30] The appellant is not challenging any particular section of
the Criminal Code or of the Immigration Act which creates a
hybrid offence. Rather the appellant is challenging the common
law interpretation of such sections which confer on the Crown the
discretion to elect between proceeding summarily or by
indictment.
[31] It is submitted by the appellant that there should be a
mechanism in place for ascertaining and correcting possible
arbitrary decision-making respecting the election as to the mode
of trial.
[32] The appellant's submissions are encapsulated by the comments
in P.G. Barton's The Power of the Crown to Proceed by Indictment
or Summary Conviction, (1971-72) 14 C.L.Q. 86 at 96:
... the choice to proceed by indictment or by
summary conviction cannot be based on
evidential considerations since the
substantive offence is identical in both
cases. Thus, one is left with the view that
it must be based on either expediency,
politics, or a desire to treat a particular
person harshly. One can see how a sense of
due process might be offended since this
decision is not one of low-visibility but of
non-visibility.
[33] The appellant submits that because the exercise of the
Crown's discretion is not subject to judicial review and contest
it is therefore manifestly unfair and offends the principles of
fundamental justice in the Charter.
[34] At trial the appellant challenged the constitutionality of
the Crown's discretion to elect the mode of trial for hybrid
offences. The trial judge held that the appellant is required to
show an abuse of process before the court could examine or
interfere with the exercise of the Attorney General's
prosecutorial discretion. No specific abuse of process was
alleged by the appellant or found by the trial judge.
[35] In R. v. Beare (1988), 45 C.C.C. (3d) 57, the Supreme Court
of Canada considered whether the existence of prosecutorial
discretion offended the principles of fundamental justice in s. 7
of the Charter. La Forest J. held at p. 76:
The existence of the discretion conferred by
the statutory provisions does not, in my
view, offend principles of fundamental
justice. Discretion is an essential feature
of the criminal justice system. A system that
attempted to eliminate discretion would be
unworkably complex and rigid. Police
necessarily exercise discretion in deciding
when to lay charges, to arrest and to conduct
incidental searches, as prosecutors do in
deciding whether or not to withdraw a charge,
enter a stay, consent to an adjournment,
proceed by way of indictment or summary
conviction, launch an appeal and so on.
[36] In R. v. T. (V.) (1992), 71 C.C.C. (3d) 32, the Supreme
Court of Canada revisited the reviewability of prosecutorial
discretion and L'Heureux-DubJ J. stated at p. 40:
I also wish to refer to the judgment of
Giesbrecht Prov. Ct. J. in R. v. Poirier,
Man. Prov. Ct., June 7, 1989 (unreported)
[citation omitted] ...
In the criminal law process
prosecutorial discretion exists
throughout the entire process, from the
initial investigation stage through to
the conclusion of the trial. The people
involved in the process, be they police
officers ... or other individuals
charged with the responsibility of
investigating breaches of various laws,
or Crown Attorneys, are not the same nor
will they necessarily act in the same
way in exercising the discretion they
have. This may lead to a situation where
one person is charged with an offence,
while another in seemingly identical
circumstances is not; one person is
prosecuted by indictment, another by
summary conviction; one person is dealt
with under one provision of a particular
statute while another is dealt with
under a different, perhaps harsher
provision. As is pointed out by Scollin
J. of the Manitoba Court of Queen's
Bench in Re Tit and Director of Vital
Statistic (1986), 28 D.L.R. (4th) 150 at
pp. 152-3, [1986] 4 W.W.R. 238, 42 Man.
R. (2d) 38: "The world of democratic
theory may be peopled by legal clones,
but the real world is not." [Emphasis
added.]
[37] In Re Saikaly and the Queen (1979), 48 C.C.C. (2d) 192, this
Court considered whether the Attorney General was required to
hear submissions from an accused before preferring a direct
indictment. MacKinnon A.C.J.O. stated at p. 195:
If the Attorney-General must give a hearing
to anyone who might be affected every time he
proposes to exercise the discretion conferred
upon him by virtue of his office the
administration of criminal justice would come
to a standstill. The principles which we
feel are applicable were enunciated most
recently by Viscount Dilhorne in Gouriet v.
Union of Post Office Workers et al., [1977] 3
W.L.R. 300 at pp. 319-20. Viscount Dilhorne
(a former Attorney General) said the
following:
The Attorney-General has many powers and
duties. He may stop any prosecution on
indictment by entering a nolle prosequi.
He merely has to sign a piece of paper
saying that he does not wish the
prosecution to continue. He need not
give any reasons. He can direct the
institution of a prosecution and direct
the Director of Public Prosecutions to
take over the conduct of any criminal
proceedings and he may tell him to offer
no evidence. In the exercise of these
powers he is not subject to direction by
his ministerial colleagues or to control
and supervision by the courts.
[38] Courts have recognized that, if any jurisdiction exists to
review the conduct of the Attorney General in the exercise of his
prosecutorial functions, "it must be exercised only in cases of
flagrant impropriety." See R. v. Light (1993), 78 C.C.C. (3d)
221 at 246 (B.C.C.A.); R. v. Smythe (1971), 3 C.C.C. (2d) 366
(S.C.C.); R. v. Verrette (1978), 40 C.C.C. (2d) 273 (S.C.C.); R.
v. Balderstone (1983), 8 C.C.C. (3d) 532 (Man. C.A.).
[39] In R. v. Power (1994), 89 C.C.C. (3d) 1 (S.C.C.), the court
reviewed the principles of prosecutorial discretion in the
context of abuse of process. In this context, L'Heureux-DubJ J.
stated at p.10:
The Attorney-General's role in this regard is
not only to protect the public, but also to
honour and express the community's sense of
justice. Accordingly, courts should be
careful before they attempt to "second-guess"
the prosecutor's motives when he or she makes
a decision. Where there is conspicuous
evidence of improper motives or of bad faith
or of an act so wrong that it violates the
conscience of the community, such that it
would genuinely be unfair and indecent to
proceed, then, and only then, should courts
intervene to prevent an abuse of process
which could bring the administration of
justice into disrepute. Cases of this nature
will be extremely rare.
and at p. 15:
That courts have been extremely reluctant to
interfere with prosecutorial discretion is
clear from the case-law. They have been so
as a matter of principle based on the
doctrine of separation of powers as well as a
matter of policy founded on the efficiency of
the system of criminal justice and the fact
that prosecutorial discretion is especially
ill-suited to judicial review.
[40] In R. v. Durette (1992), 72 C.C.C. (3d) 421 at 437-38 (Ont.
C.A.), Finlayson J.A. discussed the importance of having the
appropriate record before the court could engage in any inquiry
related to the exercise of the Crown's discretion:
In order to ask the court to delve into the
circumstances surrounding the exercise of the
Crown's discretion, or to inquire into the
motivation of the Crown officers responsible
for advising the Attorney-General, the
accused bears the burden of making a tenable
allegation of mala fides on the part of the
Crown. Such an allegation must be
supportable by the record before the court,
or if the record is lacking or insufficient,
by an offer of proof. Without such an
allegation, the court is entitled to assume
what is inherent in the process, that the
Crown exercised its discretion properly, and
not for improper or arbitrary motives.
[41] It has been long established by law in Canada that the
exercise of discretion, whether police or prosecutorial, is a
cornerstone of the administration of justice. As MacKinnon
A.C.J.O. stated in Saikaly as quoted above, at p. 195:
If the Attorney-General must give a hearing
to anyone who might be affected every time he
proposes to exercise the discretion conferred
upon him by virtue of his office the
administration of criminal justice would come
to a standstill.
[42] It is also argued by the appellant that the decision to
proceed by indictment or summary conviction should be made by a
judicial officer in order to safeguard an accused from the
exercise of discretion being influenced by any improper motives.
This proposal would change in a most fundamental manner the
principle of a clear separation of roles between the judiciary
and law officers of the Crown which has generally served the
public well over many generations. It would also undermine the
important principle of accountability to the public, whereby the
Attorney General must account to the legislature for his or her
conduct and that of his law officers.
[43] On appeal the appellant also raised for the first time the
issue of whether the common law rule governing the election of
mode of trial for hybrid offences is void for vagueness under
s. 7 of the Charter.
[44] We agree with the respondent that the doctrine of
"vagueness" is inapplicable to the Crown's discretionary powers.
The underlying principle of the doctrine of vagueness is that a
person subject to sanction cannot be expected to conform to the
law if the law is not reasonably comprehensible. In our view the
underlying rationales for the vagueness doctrine cannot
rationally apply to the exercise of the Crown's discretion.
[45] In conclusion, we are of the opinion that the Crown's
discretion in relation to hybrid offences is constitutionally
sound and that this ground of appeal must therefore fail.
THE CONSTITUTIONALITY OF THE CITIZENSHIP REQUIREMENT FOR JURORS
[46] The appellant challenged the constitutional validity of the
citizenship requirement for jurors at trial.
[47] Section 2 of the Juries Act, R.S.O. 1990, c. J.3, provides:
2. Subject to sections 3 and 4, every
person who,
(a) resides in Ontario;
(b) is a Canadian citizen; and
(c) in the year preceding the year for which
the jury is selected had attained the
age of eighteen years or more,
is eligible and liable to serve as a juror on
juries in the Ontario Court (General
Division) in the county in which he or she
resides.
[48] In challenging the citizenship requirement in the Juries Act
the appellant argued that the exclusion of black permanent
residents who are not citizens contravenes s. 15 of the Canadian
Charter of Rights and Freedoms in that it decreases the
opportunity of a black accused to find one of his or her own race
on the jury array or panel.
[49] The affidavit of Aloysious Snow filed in the application
before the trial judge deposed that the citizenship requirement
would have a differential impact on black residents of
Metropolitan Toronto in that a lower proportion of the black
population are citizens than of the non-black population. The
statistics indicated that 34.1% of the black residents of Toronto
are non-citizens while only 14.4% of the non-black residents are
non-citizens. If the citizenship requirement in the Juries Act
were removed the probability of choosing a black person on the
jury would increase from 3.2 in a hundred to 4.1 in a hundred,
representing an increase of .9 per cent.
[50] The application was dismissed by the trial judge.
[51] The appellant submits that there is a three-stage test to
determine whether impugned legislation or state action violates
s.15 guarantees. A denial of the equality rights protected by
this section will be found where:
(i) a legislative scheme creates an inequality. Inequality
results where a distinction is drawn on the basis of
personal characteristics.
(ii) the distinction drawn is discriminatory. A distinction
will be found discriminatory where it imposes a
disadvantage or burden on those affected; and
(iii) the discrimination is on a prohibited ground
(either enumerated or analogous).
[52] The appellant is black and it is submitted that it is an
advantage for a criminal accused to have persons of his own race
on the jury, and it is a corresponding disadvantage to have the
likelihood of having such persons on a jury systemically
diminished.
[53] In R. v. Parks (1993), 84 C.C.C. (3d) 353 at 369 (Ont.
C.A.), Doherty J.A. stated:
Racism, and in particular anti-black racism,
is a part of our community's psyche. A
significant segment of our community holds
overtly racist views. A much larger segment
subconsciously operates on the basis of
negative racial stereotypes .... These
elements combine to infect our society as a
whole with the evil of racism. Blacks are
among the primary victims of that evil.
[54] The appellant is not asserting that he has a right to have
any particular number of black people on his jury or even on the
panel, only that the likelihood of this cannot be systemically
diminished. It is submitted that, as the citizenship requirement
decreases the probability of a black person on the panel, there
is a discrimination as understood in s. 15 of the Charter as it
adversely impacts on blacks as compared with non-blacks.
[55] In R. v. Church of Scientology of Toronto (1997), 116 C.C.C.
(3d) 1 (Ont. C.A.) (application for leave to appeal to the
Supreme Court of Canada dismissed without reasons April 9, 1998),
the appellant intervened in this court in the submission that it
was a violation of ss. 7, 11 and 15 Charter rights to exclude non-
citizens pursuant to s. 2(b) of the Juries Act. Rosenberg J.A.,
in addressing the issue of s. 15 rights in relation to an
appellant in Church of Scientology, stated that s. 15 rights were
not violated by the impugned provisions of the Juries Act because
those provisions "did not withhold any advantage or benefit from
nor impose a disadvantage or burden on her." Rosenberg J.A. went
on to state, in relation to the intervener Laws, that it was
"unnecessary to decide whether the intervener Laws had made out
that kind of impact" and that the issue should be left to the
court hearing that appeal.
[56] There are, however, some principles enunciated by Rosenberg
J.A. in Church of Scientology that are relevant to this ground of
the appellant's appeal. Rosenberg J.A. stated at p. 61:
The justification for the representative
nature of the jury is not simply to assure
that the case is tried by an impartial
tribunal. The representative character of
the jury also furthers important societal or
community interests by instilling confidence
in the criminal justice system and acting as
a check against oppression. The accused and
the community have an interest in maintaining
the representative character of the jury
system. In Sherratt [(1991), 63 C.C.C. (3d)
193], L'Heureux-DubJ J. made several other
comments concerning the nature of the
representative character of the jury. Thus,
she stated at p. 524 that the modern jury was
not meant to be a tool of either the Crown or
the defence but rather "was envisioned as a
representative cross-section of society,
honestly and fairly chosen".
and at p. 62:
The right to a representative jury roll is
not absolute in the sense that the accused is
entitled to a roll representative of all of
the many groups that make up Canadian
society. This level of representativeness
would be impossible to obtain. There are a
number of practical barriers inherent in the
selection process that make complete
representativeness impossible. The roll is
selected from a discrete geographical
district which itself may or may not be
representative of the broader Canadian
society.
and at pp. 64-65:
The essential quality that the
representativeness requirement brings to the
jury function is the possibility of different
perspectives from a diverse group of persons.
The representativeness requirement seeks to
avoid the risk that persons with these
different perspectives, and who are otherwise
available, will be systemically excluded from
the jury roll.
Exclusion of non-citizens does not infringe
the representativeness or fair cross-section
requirement in this sense. There was no
evidence that non-citizens as a group share
any common thread or basic similarity in
attitude, ideas or experience that would not
be brought to the jury process by citizens.
The expert evidence led by the appellants was
somewhat misleading in this respect. From my
review of the evidence, it seems that the
expert tended to use non-citizenship opinion
as a proxy for minority opinion. The
evidence, however, simply does not bear out
the inference that exclusion of non-citizens
disproportionately excludes minorities from
the jury. As pointed out above, almost one-
half of the 1.7 million residents of
Metropolitan Toronto over the age of 18 were
not born in Canada but most, close to three-
quarters, have become Canadian citizens.
In the context of jury representativeness,
citizenship, like residency in the province,
is not an improper basis for defining the
parameters of the jury roll. As La Forest J.
wrote in Andrews v. Law Society of British
Columbia [[1989] 1 S.C.R. 143] at p. 196,
"[C]itizenship is a very special status that
not only incorporates rights and duties but
serves a highly important symbolic function
as a badge identifying people as members of
the Canadian polity." All free and
democratic societies have established a
unique status like citizenship to which
attach certain rights, privileges and
obligations closely related to the concept of
self-government. It will be recalled that in
speaking of the importance of the jury
function, L'Heureux-DubJ J. held in Sherratt
that the jury can act as the conscience of
the community and as the final bulwark
against oppressive laws or their enforcement.
I see no reason why this important aspect of
self-government should not be reserved for
citizens, where, as here, exclusion of non-
citizens does not affect the
representativeness of the jury roll.
The intervener Laws argues that immigration
status is a proxy for other potentially
relevant characteristics, especially
colour... Thus, he argues that exclusion of
non-citizens undermines the
representativeness of the jury especially as
regards colour.
The evidence presented here, however, fails
to demonstrate the point. As noted above,
citizens, at least in Metropolitan Toronto,
are of all races, colours and national
origin. According to the evidence adduced in
the Laws case itself, including non-citizens
in the panel would increase the likelihood of
selecting a black person for the panel by
only .9%. In my view, this cannot affect the
representative nature of the array. The
deliberate exclusion of distinctive groups
based on characteristics such as race, sex,
colour, religion or national origin might
well infringe the requirement of a jury
selected from a fair cross-section of the
community. Exclusion of certain persons
based upon their immigration status is simply
not of that quality.
In my opinion, Mr. Laws is making an equality
argument. He argues that the exclusion of
non-citizens has the effect of excluding a
"disproportionate number of his peers" from
the panel. I make no comment on whether or
not this is a valid argument in the Laws
Appeal. It simply does not arise in this
case.
[57] As noted earlier, the appellant is not asserting that he has
a right to have a particular number of blacks on his jury, or
even on the panel. Further, as noted, the appellant makes no
argument that the Juries Act constitutes direct discrimination.
[58] The appellant was also unable to articulate clearly any
advantage to him as a black person if the number of potential
black jurors was marginally increased through removal of the
citizenship requirement. To the extent that the advantage was
merely an argument in favour of greater representativeness in the
jury pool, for the reasons given in Church of Scientology, we are
not persuaded that removal of the citizenship requirement would
constitute an advantage or impose a burden upon the appellant.
[59] This court was referred to an article by Cynthia Peterson
entitled "Institutionalized Racism: The Need for Reform of the
Criminal Jury Selection Process" (1993) 38 McGill LJ. 147 at 164.
The author states in part:
The equality rights of victims, as well as
defendants, are violated when members of
their race are excluded from the jury panel.
... The absence of jurors of their own race
increases the likelihood that there will be
barriers to their ability to convey their
version of the facts. In particular, it
increases the likelihood that racial
stereotyping will influence the jury's
evaluation of the evidence.
[60] There is no empirical data to support Ms. Peterson's
strongly-held opinion. If she is correct then every jury should
include one or more members of the same race of the accused if
equality rights are to be protected. In order to accomplish this,
it would be necessary to completely restructure the jury
selection process. It would also require the abandonment of the
principle of the random selection of jurors. Furthermore, in our
opinion, it would also reinforce the very type of racial
stereotyping that the author apparently abhors. Her proposition,
of course, goes much further than the submissions made on behalf
of the appellant.
[61] As Rosenberg J.A. held in Church of Scientology, the right
to a representative jury is not absolute and in fact would be
impossible to obtain in practical terms. He therefore concluded
that the citizenship requirement in the Juries Act did not
detract from the bringing together of jury panels that were
broadly and fairly representative of the community.
[62] In R. v. Sherratt (1991), 63 C.C.C. (3d) 193 at 204
(S.C.C.), L'Heureux-DubJ J. stated:
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. Provincial
legislation guarantees representativeness, at
least in the initial array. The random
selection process, coupled with the sources
from which this selection is made, ensures
the representativeness of Canadian criminal
juries: see the provincial Jury Acts. Thus,
little if any objection can be made regarding
this crucial characteristic of juries.
[63] In fact, an accused cannot demand that a member of his race
be included on the jury. In R. v. Kent, Sinclair and Gode
(1986), 27 C.C.C. (3d) 405 at 421, Matas J.A. writing for the
Manitoba Court of Appeal found that deliberate exclusion of
persons of a particular racial origin from jury panels would
violate the Charter. However, he further held that this does not
mean that an accused has the right to be tried before members of
his own race at pp. 421-22:
The equality provisions of s. 15 do not
require a jury composed entirely or
proportionately of persons belonging to the
same race as the accused. An accused has no
right to demand that members of his race be
included on the jury. To so interpret the
Charter would run counter to Canada's
multicultural and multiracial heritage and
the right of every person to serve as a juror
(unless otherwise disqualified). It would
mean the imposition of inequality. See the
comment of Galligan J. in R. v. Bradley and
Martin (No. 2) (1973), 23 C.R.N.S. 39 at 40-
1:
In my view it would be as much
discrimination to insist that a
particular number of persons be of a
particular race or colour as it would be
to say that such persons cannot
participate as jurors in the trial
process.
As was pointed out by Professor Smith
[(1984), 18 U.B.C. Law Rev. 351], at 394:
It does not seem necessary or desirable
to rest the argument upon the premise
rejected in R. v. LaForte, namely, that
trial by peers must involve the actual
presence on the jury of persons from the
same demographic group as the litigant.
The difficulties of that position are
obvious. How finely tuned should the
definition of the group be ... .
. . . .
In any event, it is not enough to point to
the absence of a member of a particular race
on a particular jurors' list as proof of
discrimination. Mere assertion is not proof.
The jurors' list in the case at bar is
racially neutral and must be presumed to
provide a fair cross-section of the community
and to be reasonably representative.
[64] It is quite properly submitted by the respondent that jury
impartiality and jury representativeness should not be confused.
Partiality arises where there exists a realistic potential that
the jury would not be indifferent to the result.
Representativeness is a different concept in that it does not
focus on the "state of mind" of the jurors but rather on whether
they are drawn randomly from a fair cross-section of the
community.
[65] In R. v. Williams, [1998] S.C.J. No. 49, rendered June 4,
1998, the Supreme Court of Canada recognized that the right to
an impartial jury is also an anti-discrimination right protected
by s. 15. McLachlin J. wrote at para. 48:
The accused's right to be tried by an
impartial jury under s. 11(d) of the Charter
is a fair trial right. But it may also be
seen as an anti-discrimination right. The
application, intentional or unintentional, of
racial stereotypes to the detriment of an
accused person ranks among the most
destructive forms of discrimination. The
result of the discrimination may not be the
loss of a benefit or a job or housing in the
area of choice, but the loss of the accused's
very liberty. The right must fall at the
core of the guarantee in s. 15 of the Charter
that "[e]very individual is equal before and
under the law and has the right to the equal
protection and equal benefit of the law
without discrimination".
[66] However, we are not persuaded that exclusion of non-citizens
adversely impacts upon the appellant's right to a trial by an
impartial jury. In this respect, we think that it is important
to bear in mind that as a result of this court's decision in
Parks and the decision of the Supreme Court of Canada in Williams
a black accused in this province is entitled to challenge for
cause every prospective juror called on the basis of indifference
to race. In Williams, McLachlin J. pointed out that although
allowing challenges for cause in the face of widespread racial
prejudice in the community cannot eliminate the possibility of
jury verdicts being affected by racial prejudice, it can have
important benefits at para. 50:
All remaining jurors will be sensitized from
the outset of the proceedings regarding the
need to confront racial prejudice and will
help ensure that it does not impact on the
jury verdict. Finally, allowing such
challenges will enhance the appearance of
trial fairness in the eyes of the accused and
other members of minority groups facing
discrimination: see Parks, supra.
[67] In light of the Parks/Williams challenge for cause and other
safeguards to ensure trial fairness, the slight statistical
advantage to a black accused of permitting non-citizens to serve
on a jury does not constitute an advantage for the purposes of
s. 15. The inclusion of non-citizens would not materially
increase the possibility that a black juror will in fact end up
on the jury, bearing in mind that the statistical probability of
choosing a black person on the jury is increased by less than 1%.
The burden was on the appellant to show that he was deprived of a
real benefit or advantage. He does not meet that burden by
merely pointing to these statistics. We are unable to draw the
inference that this statistical probability would materially
enhance trial fairness for the appellant or any other black
accused.
[68] In conclusion we are of the opinion that the citizenship
requirement in the Juries Act does not contravene s. 15 of the
Charter even though the elimination of the citizenship
requirement would increase the probability of choosing a black
person on a jury in Metropolitan Toronto from 3.2 in a hundred to
4.1 in a hundred.
THE WIRETAP AUTHORIZATION
[69] The police investigation of the appellant relied in
significant measure on evidence gathered pursuant to a wiretap
authorization issued on August 19, 1991. The appellant raises
various arguments in connection with that authorization. We find
it necessary to deal only with his primary challenge, which
arises from the process used for disclosure of the contents of
the wiretap packet.
[70] In broad outline, the circumstances are these: the appellant
applied to the trial judge for disclosure of the wiretap packet.
He received an edited copy of the affidavit used to support the
wiretap application and a judicial summary of the excluded parts
of that affidavit. They were the product of a private meeting
between the Crown and the trial judge in chambers. The appellant
subsequently moved for further disclosure of the excised portions
of the affidavit. The trial judge then had two more private
meetings with Crown counsel to discuss the editing, after which
he confirmed that there would be no change in the edited copy or
the judicial summary. The appellant argues that these three
meetings resulted in his exclusion from a part of his trial, and
that this error in law is beyond the reach of the proviso found
in s. 686(1)(b)(iv). For the reasons that follow, we agree.
[71] On November 16, 1993 the trial judge began to hear pre-trial
motions, prior to the empanelling of the jury. One of these
motions was the appellant's application to open the wiretap
packet and obtain a copy of the affidavit sworn by Sergeant Bowen
in support of the wiretap authorization.
[72] This application was granted to the extent that the
appellant received an edited copy of the affidavit and a judicial
summary of those parts of the affidavit which the editing had
excluded. Prior to providing these to the appellant, the trial
judge had met in chambers with Crown counsel to receive his
submissions about the deletions which ought to be made. The
trial judge then edited the affidavit as proposed by the Crown
and prepared his judicial summary in consultation with the Crown.
The meeting at which all this took place was ex parte. Neither
the appellant nor his counsel were present. Nor was a transcript
kept.
[73] After reviewing the edited copy of the affidavit and the
judicial summary, the appellant moved for further disclosure.
The trial judge ruled that the motion was premature. The
appellant then sought a ruling as to the scope of permissible
cross-examination on the motion held pursuant to R. v. Garofoli
(1990), 60 C.C.C. (3d) 161 (S.C.C.). The trial judge determined
that cross-examination was to be limited to whether the
authorization was obtained fraudulently and what other
investigative procedures were available.
[74] After evidence but prior to argument on the Garofoli motion,
the appellant again attempted to renew his request to review the
editing of the affidavit but the trial judge indicated that he
would not deal with this until the Garofoli motion was finished.
Ultimately he dismissed that motion, finding that the appellant
had not made out any ground for challenging the wiretap
authorization.
[75] At this point, the appellant once again renewed his motion
for further disclosure, seeking to have the trial judge
reconsider the editing of the Bowen affidavit and inviting him to
provide an expanded judicial summary. Following argument, the
court recessed and, when the trial judge resumed, he put the
following on the record:
Of course, everybody in the court room knows
I have just seen both Crown Counsel in the
jury room privately solely for the purpose of
discussing the editing, and what I have asked
the prosecutors to do is speak to the officer
in charge of the case or such officer as is
necessary to consider certain suggestions I
have made and to let me know ten o'clock
tomorrow.
[76] The following morning the trial judge opened court with
this:
I have gone through the packets again and
taken the liberty also this morning in
speaking with the Crown Attorney solely about
the editing, and I have come to the
conclusion that no further information can be
disclosed other than what is in the judicial
summaries originally prepared, that any
information that is not referred to in the
summary would almost certainly identify the
informant. As a matter of public policy I am
not going to include any of that information
in the judicial summaries. I am equally
persuaded that it is most unlikely that any
of the information which is not disclosed
could form any substantial or even remote
part of the defence to the allegations that
are on the indictment (except that it is not
my role to advise the defence in any case).
But nevertheless I think it worthwhile to
mention that I have tried to play that role,
I could not conceive that the information
being of any use at all. So under the
circumstances the second judicial summary
will be identical to the first and that is
Exhibit A on the motion.
[77] Both these meetings excluded the appellant and his counsel.
No transcript was kept of either meeting.
[78] The appellant argues that these circumstances constitute his
wrongful exclusion from part of his trial and that the saving
provisions of s. 686 of the Criminal Code should not be applied.
[79] It is a fundamental principle of our criminal law that a
person charged with an indictable offence is entitled to be
personally present at his trial. Its constitutional foundation
is the right of an accused to a fair and public trial. This
principle is codified in s. 650(1) of the Criminal Code. It is
clear that this section is to receive an expansive
interpretation, primarily in determining what is part of the
"trial" for the purposes of the section: see R. v. Barrow (1987),
38 C.C.C. (3d) 193 at 202 (S.C.C.).
[80] In argument before us, the Crown conceded that the three
private ex parte meetings between the trial judge and Crown
counsel were part of the appellant's trial. It did not seek to
justify the appellant's absence under any of the exceptions
provided in s. 650(2) of the Criminal Code.
[81] This concession was properly made. These meetings were the
forum in which Crown counsel advanced his views to the trial
judge about what parts of the supporting affidavit should not be
revealed to the appellant and what judicial summary of the
exclusions should be provided to him. The trial judge's
determination of both matters appears to have been made at the
first meeting. The second and third meetings resulted in his
confirmation of this determination.
[82] The appellant's ability to argue for further disclosure, his
ability to cross-examine the deponent of the supporting
affidavit, his ability to argue the Garofoli motion itself, and
indeed his general ability to make full answer and defence were
all affected by what went on at these meetings and the disclosure
received as a result. They clearly had a bearing on the
substantive conduct of the trial: see R. v. Hertrich, Stewart and
Skinner (1982), 67 C.C.C. (2d) 510 at 529 (Ont. C.A.), leave to
appeal to the Supreme Court of Canada refused October 14, 1982.
[83] Hence these private ex parte meetings clearly attract the
operation of the fundamental principle embodied in s. 650(1) of
the Criminal Code. They were a part of the appellant's trial and
should not have been conducted in his absence.
[84] Moreover, there is nothing in the Criminal Code section
dealing with the Garofoli procedure that would suggest otherwise.
Section 187 of the Criminal Code deals with the storage and
removal of material filed in support of an application for a
wiretap authorization. Following Garofoli, this section was
amended to provide inter alia that the editing of wiretap
affidavits is, in the first instance, the responsibility of the
prosecutor. Section 187(4) now makes this clear. Section 187(7)
goes on to speak to the possibility of the trial judge, following
submissions, ordering further disclosure of the edited affidavit
or providing a judicial summary of the exclusions. This
subsection reads as follows:
(7) An accused to whom an edited copy
of a document has been provided pursuant to
subsection (5) may request that the judge
before whom the trial is to be held order
that any part of the document deleted by the
prosecutor be made available to the accused,
and the judge shall order that a copy of any
part that, in the opinion of the judge, is
required in order for the accused to make
full answer and defence and for which the
provision of a judicial summary would not be
sufficient, be made available to the accused.
[85] Nothing in this subsection erodes the right of an accused to
have the submissions of Crown and defence on the editing of the
affidavit and the adequacy of the judicial summary made in open
court.
[86] Indeed, prior to the amending of s. 187, the relevant
jurisprudence made clear that submissions on editing should be
made in open court. In Garofoli itself, Sopinka J. suggested the
procedure to be followed in disclosing the contents of wiretap
affidavits to the accused. He set out the first three steps at
p. 194:
1. Upon opening of the packet, if the Crown
objects to disclosure of any of the material,
an application should be made by the Crown
suggesting the nature of the matters to be
edited and the basis therefor. Only Crown
counsel will have the affidavit at this
point.
2. The trial judge should then edit the
affidavit as proposed by Crown counsel and
furnish a copy as edited to counsel for the
accused. Submissions should then be
entertained from counsel for the accused. If
the trial judge is of the view that counsel
for the accused will not be able to
appreciate the nature of the deletions from
the submissions of Crown counsel and the
edited affidavit, a form of judicial summary
as to the general nature of the deletions
should be provided.
3. After hearing counsel for the accused
and reply from the Crown, the trial judge
should make a final determination as to
editing, bearing in mind that editing is to
be kept to a minimum and applying the factors
listed above.
[87] The clear implication of this passage is that the
submissions to the trial judge about the editing of the
affidavits are to be made in open court where Crown and defence
can have the benefit of hearing the other submissions. In R. v.
Rowbotham (1988), 41 C.C.C. (3d) 1 at 43-44 (Ont. C.A.), this
court made explicit that the Crown's submissions on the editing
initially proposed by the trial judge should be made in open
court. In so doing, this court was endorsing the procedure first
laid out by Watt J. in R. v. Parmar (1987), 34 C.C.C. (3d) 260
(Ont. H.C.J.).
[88] This requirement of an open process, which is now clearly
implicit in s. 187(7), has a principled foundation that was
eloquently described by Doherty J.A. in R. v. Durette (1992), 72
C.C.C. (3d) 421 at 468 (Ont. C.A.)1 :
It is obvious that the application for
and the granting of the authorization must be
done in secret in order to permit effective
police investigation of suspected crimes.
That secrecy should, however, be maintained
only as long as it is essential to the
effective operation of the process. When a
judicial process such as the granting of a
"wiretap" authorization is, of necessity,
done out of the public sight, the opportunity
for subsequent public examination of that
process becomes very important. Public
scrutiny of that secret process after the
need for secrecy is gone enhances public
confidence in the criminal justice system,
and encourages those who resort to this
invasive investigative tool to do so in a
manner that will withstand the light of open
court and the heat of the adversary process.
[89] There is no doubt that there is a tension between this
requirement and the Crown's ability to make completely
unconstrained submissions to the trial judge concerning, for
example, whether further disclosure would compromise the identity
of a police informant. Indeed, if an accused were of the view
that fuller disclosure might result from the Crown being able to
make private submissions to the trial judge, s. 650(2)(b) would
permit an ex parte meeting such as took place here to be held on
consent. Even here a full transcript should be kept. Absent
consent, however, the overriding consideration must be as set out
by Dickson C.J.C. in Barrow at pp. 203-204:
Martin J.A. in Hertrich identified two
important principles that underlie s. 577
[now s. 650]. First, the accused is present
to hear the case he or she faces and is
thereby able to put forward a defence.
Secondly, the accused sees the entire process
by which he or she is tried and is able to
see that the correct procedure is followed
and the trial fair. For Martin J.A., the
second principle was the more important one.
I agree with him that this second value is of
enormous importance to the perceived fairness
of the Canadian criminal justice system. The
sight of a judge conferring in private with
jurors on issues that go to the partiality of
the trier of fact can only prompt cynicism in
an accused. It should be avoided.
[90] It is no different when the trial judge confers in private
with Crown counsel concerning the disclosure to be made to the
accused from the wiretap packet.
[91] We therefore conclude that in the circumstances of this case
the appellant was wrongly excluded from a part of his trial
contrary to s. 650(1) of the Criminal Code. We must therefore
turn to a consideration of whether this error in law can be saved
pursuant to s. 686.
[92] The relevant proviso is found in s. 686(1)(b)(iv) of the
Criminal Code. It reads:
686(1) On the hearing of an appeal
against a conviction or against a verdict
that the appellant is unfit to stand trial or
not criminally responsible on account of
mental disorder, the court of appeal
. . . . .
(b) may dismiss the appeal where
. . . . .
(iv) notwithstanding any procedural
irregularity at trial, the trial
court had jurisdiction over the
class of offence of which the
appellant was convicted and the
court of appeal is of the opinion
that the appellant suffered no
prejudice thereby;
[93] In R. v. Cloutier (1988), 43 C.C.C. (3d) 35 (Ont. C.A.),
leave to appeal to the Supreme Court of Canada refused
October 19, 1989, this court discussed the applicability of this
proviso to the wrongful exclusion of the accused from a part of
his trial. In doing so, the court enunciated the following clear
and unequivocal principles drawn from the relevant jurisprudence
at pp. 42-3:
(1) [As set out in s. 650(1),] [a]n accused
has an absolute right to be present in
court during the whole of his trial.
(2) A trial judge has the discretion to
cause the accused to be removed from or
permit him to be out of court only in
the circumstances provided for by s.
577(2) [now s. 650(2)] (which are not
applicable on the facts of the case at
bar).
(3) The infringement of this right is an
error that destroys jurisdiction without
the necessity of the accused showing he
has suffered prejudice ... [citation
ommitted].
. . . .
(6) [Paraphrased] The denial to the accused
of this right is fundamental and cannot
be cured by s. 686(1)(b)(iii) since the
absence of the accused deprives the
court of all jurisdiction.
[94] Writing on behalf of the court, Goodman J.A. went on to
address the rationale for the enactment in 19852 of
s. 686(1)(b)(iv). He wrote, at p. 51:
It is my opinion that the wording of
s. 613(1)(b)(iv) [now s. 686(1)(b)(iv)] is
such that it clearly indicates that
Parliament intended by its enactment to give
to the Court of Appeal the right to apply its
curative provisions by exercising its
discretion in favour of dismissing an appeal
in cases where the trial court had
jurisdiction over the class of offence of
which the appellant was convicted
notwithstanding the fact that an error of law
had been made by a procedural irregularity
which was so serious in nature as to cause a
loss of jurisdiction provided that the Court
of Appeal is of the opinion that the
appellant suffered no prejudice thereby.
. . . .
In my opinion the concluding words of
s. 613(1)(b)(iv) [now s. 686(1)(b)(iv)] make
it clear that, although an appellant need not
show that he has suffered prejudice in order
to deprive the Crown of the curative
provisions thereof, if the Court of Appeal is
of the opinion that the appellant suffered no
prejudice from the exclusion of the appellant
from some stage of his trial, it may dismiss
the appeal.
[95] Finally, Goodman J.A. made clear that even where the
exclusion of the accused from a part of his trial creates no
prejudice, this court may refuse to use the proviso to dismiss
the appeal if the exclusion sufficiently damages the appearance
of justice. He put it this way at p. 52:
There may be cases, for example, where a
trial judge excludes an appellant
intentionally after it has been brought to
his attention that such exclusion is contrary
to the provisions of s. 577(1) [now
s. 650(1)]. It may be that in such a case,
the Court of Appeal is satisfied that an
appellant suffered no real prejudice as a
result of such exclusion. Nevertheless, it
seems to me that in such circumstances the
Court of Appeal may refuse to exercise the
discretion given to it under s. 613(1)(b)(iv)
[now s. 686(1)(b)(iv)] to dismiss the appeal
so that justice will not only be done but
will be seen to be done.
[96] We agree. The perceived fairness of the criminal justice
system is its most vital characteristic. Public confidence
requires public scrutiny wherever possible. Private trials which
exclude the accused are antithetical to this core value. Where
the circumstances of the exclusion of the accused are such as to
inflict significant damage on the appearance of justice, the
question is not whether there is prejudice to the accused.
Rather, the issue is the harm to the criminal justice system
itself. In such cases the court should refuse to apply this
proviso.
[97] In our view, this is such a case. The three private ex
parte meetings between the trial judge and Crown counsel
constituted an important part of the trial resulting in
significant disclosure decisions affecting the appellant's
ability to make full answer and defence. Both the appellant and
his counsel were excluded from these meetings. The appellant,
therefore, had absolutely no window on this part of his trial.
There was no transcript kept so that this court is equally
without the ability to know what went on. The exclusion of the
appellant was not due to mere inadvertence. Important decisions
affecting the trial were made in his absence.
[98] Since no transcript was kept, we do not know what
submissions were made by the Crown, and so do not know the basis
upon which the decisions were made. We cannot, therefore,
conclude that the appellant suffered no prejudice.
[99] More importantly, and apart from the question of prejudice
to the appellant, the circumstances of his exclusion from his
trial are so at odds with the perceived fairness we require of
our criminal justice system that s. 686(1)(b)(iv) is
inapplicable.
[100] We therefore conclude that the appellant was wrongly
excluded from a part of his trial and that this error in law
cannot be cured by the application of s. 686(1)(b)(iv). On this
basis the appeal must be allowed and a new trial ordered.
THE USE TO WHICH THE JURY COULD PUT THE EVIDENCE RESPECTING THE
MISTRIED COUNTS
[101] During the course of the trial, the trial judge
declared a mistrial with respect to counts 4 and 5 of the
indictment when the testimony of an expert witness with respect
to American immigration law changed at trial from the testimony
he had given at the preliminary inquiry. The trial continued with
respect to the remaining counts in the indictment. The trial
judge instructed the jury that it could consider the evidence on
counts 4 and 5 to show a system or, as he described it, a "modus
operandi" on the part of the appellant.
[102] Having regard to our disposition of this appeal, we do
not find it necessary to deal with the submission of the
appellant that this instruction was erroneous. The mistried
counts, 4 and 5, are proceeding to a separate trial in the near
future and the issue will not arise on the new trial that, we
have concluded, must be held with respect to the remaining
counts.
CONSPIRACY AND THE SUBSTANTIVE OFFENCE
[103] In his factum, the appellant submitted that the trial
judge erred in instructing the jury that the appellant could be
found guilty of conspiracy even if the conduct attributed to him
would not support a conviction for the substantive offence. This
ground of appeal was abandoned in argument in light of the recent
decision in United States of America v. Dynar (1997), 115 C.C.C.
(3d) 481 (S.C.C.), and neither the appellant nor the respondent
addressed any submissions to the court on the subject.
ENTRAPMENT
[104] The appellant alleged a number of errors said to have
been made by the trial judge in his disposition of the post-
conviction entrapment hearing. It was submitted that:
(a) he improperly restricted cross-
examination respecting the informer who
supplied information to the police at the
initial stages of the investigation;
(b) he failed to admit evidence that was
admissible for the purpose of the entrapment
hearing;
(c) he misstated and misapplied the test for
entrapment set out in R. v. Mack (1988), 44
C.C.C. (3d) 513 (S.C.C.); and
(d) having misstated and misapplied the test
for entrapment, he failed to order a stay of
the proceedings against the appellant.
[105] The respondent conceded that the trial judge erred in
ruling that the appellant had to satisfy both branches of the
test formulated in Mack in order to succeed on the entrapment
application, but argued that the error was immaterial because the
appellant had satisfied neither branch of the test. In the
respondent's submission, there was no relevant error and thus no
substantial wrong or miscarriage of justice.
[106] While the manner in which the trial judge dealt with
the issue of entrapment was in some respects erroneous, we
consider that it would be inappropriate, on the state of the
record before us, to endeavour to make our own independent
finding regarding that issue. As we have concluded that there
must be a new trial, we are of the view that the issue of
entrapment, if it is pursued, should be left for determination
and disposition by the judge presiding at that trial on the basis
of such evidence as may be adduced before him or her with respect
to that issue.
SENTENCE
[107] In addition to a fine of $5,000, the appellant was
sentenced to nine months' imprisonment on each of counts 1, 6 and
7, to be served concurrently.
[108] On the appeal, the appellant submitted that he should
have been allowed to serve his sentence in the community through
the imposition of a conditional sentence. The respondent argued
that a term of imprisonment was an entirely fit response to the
appellant's established, long-term, conspiracy, conducted for his
own private financial gain, to undermine the immigration systems
of Canada and the United States.
[109] Having regard to our conclusion that there must be a
new trial, we do not consider it appropriate to deal with the
question of sentence on this appeal.
DISPOSITION
[110] For the foregoing reasons, the appeal against
conviction is allowed, the convictions are quashed and a new
trial is ordered.
Released: September 9, 1998.
_______________________________
1 The dissenting reasons of Doherty J.A. were
substantially adopted by the majority in the Supreme Court of
Canada in allowing the appeal: see R. v. Durette (1994), 88
C.C.C. (3d) 1 (S.C.C.).
2 Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27
(1st Supp.), s. 145(1). |