R v Newborn, 2016 ABQB 13

Court of Queen ’ s Bench of Alberta Citation: R v Newborn, 2016 ABQB 13 Date: 20160107 Docket: 130920374Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Jeremy Lyle Newborn Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Jeremy Lyle Newborn is charged with the second degree murder of John Hollar on December 28 th , 2012 in Edmonton, Alberta. [ 2 ] Mr. Newborn is an indigenous Canadian.

He alleges that his right to a representative jury was violated because there were no indigenous persons in the jury array which attended for jury selection on October 2, 2014. He submits that this was the result, at least in part, of Alberta Jury Act , s. 4 (h), which provides that persons who have been convicted of a criminal offence for which a pardon has not been granted, or who are currently charged with a criminal offence, are excluded from serving as jurors.

He contends that this provision resulted in the disproportionate exclusion of indigenous Canadians from the jury selection process because disproportionately more indigenous Canadians have criminal records than non-indigenous Canadians. He seeks a declaration that s. 4(

h) violates his constitutional right to a representative jury and a direction that the exclusion not be applied further in his case.

[3] Mr. Newborn’s jury trial was originally scheduled for 3½ weeks in October, 2014. The trial did not proceed as scheduled,however, because at jury selection on October 2, 2014, defence counsel advised the presiding judge that the accused’s mother had, atcounsel’s request, walked around the area where the people summoned to be members of the jury array were gathered, observed thosepeople, and did not observe any who appeared to be of aboriginal descent. Counsel applied for an adjournment of jury selection and thetrial so that Mr.

Newborn could challenge the jury selection process and obtain an appropriate remedy. The judge presiding at juryselection granted the adjournment sought. [4] Mr. Newborn’s counsel filed the first of two notices of motion on October 3, 2014. In that motion Mr. Newborn challengedthe system used for the selection jury arrays and sought: (

a) A declaration that the array summoned for the purpose of selecting a jury to try the Applicant on October 2, 2014 did not complywith sections 629 and 630 of the Criminal Code, did not comply with the requirements of the Jury Act or the regulations thereto, andinfringed or denied the Applicant’s rights pursuant to sections 7, 11(

d) and 11(

f) of the Canadian Charter of Rights and Freedoms; and (

b) Such other relief as Counsel may advise and the Honourable Court may grant pursuant to s. 24(1) of the Charter, as the Courtconsiders appropriate and just in the circumstances. [5] On November 10, 2014, Mr. Newborn’s counsel filed the second notice of motion seeking a declaration: . . . that

section 4(

h) of the Jury Act, RSA 2000, c J-3, is unconstitutional as being contrary to s. 1, 7, 11(

d) and 11(

f) of the CanadianCharter of Rights and Freedoms. and a declaration: . . . pursuant to

section 52 of the Constitution Act, 1982, that “Form C” to the Jury Act Regulations, AR 68/1983 is unconstitutional asbeing contrary to s. 1, 7 11(

d) and 11(

f) of the Canadian Charter of Rights and Freedoms to the extent that it requires a response “within5 days” of receipt of a summons. [6] Mr. Newborn’s counsel sought disclosure from the Crown in connection with these applications. The disclosure processoccupied considerable time and required several applications to the court. Mr. Newborn’s applications were finally scheduled to beheard in December, 2015. [7] On May 21, 2015, in the midst of the disclosure process for Mr. Newborn’s applications, the Supreme Court of Canadaissued its decision in R v. Kokopenace 2015 SCC 28 , [2015] S.C.J. No. 28.

As a result of that decision, Mr. Newbornabandoned the application brought in the first notice of motion described above. He also abandoned the challenge to “Form C” of theJury Act regulations. He proceeded with his challenged to Jury Act s. 4(

h) only. [8] The remedy Mr. Newborn seeks is a declaration that the impugned

section is unconstitutional. The practical implication forhis own trial would be that jury summons served in respect of his trial would not state that persons with criminal records or currentlycharged with a criminal offence may not serve on the jury and the exclusion would not be applied in selection of the jury for his trial. Mr. Newborn’s trial is scheduled for the four weeks beginning April 18, 2016. A new jury array will be summoned for jury selection onApril 14, 2016. [9] The issue Mr. Newborn raises was raised and dismissed in R v. McCarthy [2010] A.J. No. 2646 (Alta.

Q.B.) and R v.Teerhuis-Moar [2007] M.J. No. 257 (Man. Q.B.).

Both of those cases were decided before the recent decision of the Supreme Court ofCanada in Kokopenace. [10] In Kokopenace, the Supreme Court of Canada confirmed that though an accused has no stand-alone Charter protected right toa representative jury, such a right is a component of two Charter rights: the right to be tried by an independent and impartial tribunal(Charter s. 11(d)), and; the right to a jury trial (Charter s. 11(f)). [11] Moldaver J., writing for the majority discussed the definition of “representativeness” in this context: (paras. 39 and 40) Representativeness is an important feature of the jury; however, its meaning is circumscribed.

What is required is a "representative cross-section of society, honestly and fairly chosen": R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509, at p. 524. There is no right toa jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society. Courts haveconsistently rejected the idea that an accused is entitled to a particular number of individuals of his or her race on either the jury roll orpetit jury: R. v. Church of Scientology (1997), (ON CA), 33 O.R. (3d) 65 (C.A.), at pp. 120-21; R. v. Laws (1998), (ON CA), 41 O.R. (3d) 499 (C.A.), at pp. 517-18; R. v.

Kent (1986), (MB CA), 27 C.C.C. (3d)405 (Man. C.A.), at pp. 421-22; R. v. Bradley (No. 2) (1973), 23 C.R.N.S. 39 (Ont. S.C.), at pp. 40-41. As Rosenberg J.A. observed inChurch of Scientology, at p. 121, "[w]hat is required is a process that provides a platform for the selection of a competent and impartialpetit jury, ensures confidence in the jury's verdict, and contributes to the community's support for the criminal justice system." As this statement indicates, representativeness is about the process used to compile the jury roll, not its ultimate composition.

To date,the jurisprudence has discussed two key features of the jury roll process that ensure representativeness: the use of source lists that drawfrom a broad cross-section of society, and random selection from those sources: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para.20; Sherratt, at p. 525; Church of Scientology, at p. 121. I would add a third feature to this list, namely, the delivery of notices to thosewho have been randomly selected. A jury roll is representative when these three features are present, provided that the state has notdeliberately excluded members of a particular group.

This process aims to ensure that there is an opportunity for individuals with variedperspectives to be included on the jury: Church of Scientology, at p. 122. It also seeks to preclude systemic exclusion of segments of thepopulation: ibid, at pp. 122-24. (emphasis added) [12] Expanding on the point I have emphasized in the quoted passage, Moldaver J. said: (para. 66):

. . . if the state deliberately excludes a particular subset of the population that is eligible for jury service, it will violate the accused's right to a representative jury, regardless of the size of the group affected. It is self-evident that the state will not have made reasonable efforts if it deliberately excludes part of the population. Deliberate exclusion undermines the integrity of the justice system and cannot be tolerated. and (para. 50): . . . the deliberate exclusion of a particular group would cast doubt on the integrity of the process and violate s. 11(

d) by creating an appearance of partiality: Church of Scientology , at p. 118. [ 13 ] Moldaver J. noted as well that some limits on the eligibility for jury duty are acceptable. They do not violate the right to a representative jury. He said (para. 44): . . . limitations on juror eligibility result in the exclusion of non-citizens, those convicted of criminal offences , and individuals practising certain professions. Finally, in most provinces, the sheriff has the power to exempt individuals from jury service if it poses a hardship.

This typically results in the exclusion of the self-employed, those living in remote areas, and low-income individuals. All of these limits have long been accepted despite their impact on representativeness. ( emphasis added ) [ 14 ] In this application, Mr. Newborn submits that in enacting Jury Act s. 4(h), Alberta has deliberately excluded indigenous persons from eligibility for jury duty and that the provision therefore creates an unacceptable limit to representativeness. He submits that a significantly greater proportion of indigenous Canadians have criminal records than do non-indigenous Canadians.

Further, indigenous Canadians with criminal records are much less likely to apply for and receive pardons than non-indigenous Canadians. Mr. Newborn submits that these facts are so notorious that the Legislature must be taken to have known them when it enacted s. 4(h). The Legislature must therefore be taken to have known that the effect of s. 4(

h) would be to exclude a much larger proportion of indigenous Canadians from eligibility for jury duty than it would non-indigenous Canadians. Therefore, the Legislature must be taken to have intended that effect – to have deliberately excluded members of a particular group, indigenous Canadians, from eligibility for jury duty. [ 15 ] Mr. Newborn provided excerpts from the legislative debates surrounding the enactment in 2008 of s. 4 (

h) in its current form. Prior to that the Jury Act excluded persons convicted of a criminal offence “for which a sentence of imprisonment exceeding 12 months could have been imposed.” On introducing the amendment which produced the current form of the exclusion, the Minister of Justice of the day said that the amendment would simplify the exclusion, “. . . improve the efficiency of court procedures and reduce delays.” [ 16 ] Having presided at jury selections when the previous provision was in force, I can take judicial notice that it was difficult to apply.

Members of the jury array who had been convicted of a minor offence often did not know whether they had been in jeopardy of imprisonment for more than 12 months – they did not know if the exclusion applied to them. The removal of that difficulty may have been the inspiration for the simplifying amendment. [ 17 ] It is clear, however, that the exclusion of persons who have committed crimes from jury duty eligibility has a long history. Its purpose, as I suggest below, is obvious. [ 18 ] Mr. Newborn adduced the evidence of an expert in statistics and sociology, Jacqueline M. Quinless, in support of his application.

Much of Ms. Quinless’ evidence was more relevant to Mr. Newborn’s original applications, which he has abandoned, than to the remaining narrow issue. [ 19 ] Ms. Quinless testified that given the population of Edmonton and the portion of that population which is of aboriginal descent, the statistically most likely number of indigenous persons who would be selected in a random selection of 178 persons (the number of persons in the October 2014 jury array in this case) is nine. One would expect there to be about nine indigenous persons in a group of 178 randomly selected people. [ 20 ] Ms.

Quinless identified a number of sociological reasons why the 178 person jury array in this case did not include any indigenous persons – reasons why indigenous persons might avoid participating in the jury selection process. She referred to the effects on indigenous Canadians of white race colonialism, racism and stereotyping, the residential schools experience, higher incidents of violence, higher rates of incarceration and involvement with the police, inferior educational opportunities and achievement, and higher mobility rates.

She noted that these and similar factors have severely damaged many facets of the relationship between indigenous and non-indigenous Canadians. They have also damaged the relationship between indigenous Canadians and the court system and have resulted in a reluctance on the part of indigenous Canadians to participate in it as members of juries. [ 21 ] Ms. Quinless testified that there are no definitive statistics as to the number of indigenous Canadians who have criminal records.

However, reasoning from the fact that indigenous Canadians are very significantly overrepresented in the prison system (they comprise 2% of the general population but 20% of the prison population) she was of the opinion that the proportion of indigenous Canadians who have criminal records must be similarly disproportionate. Statistics indicate that 3.8% of Canadians have criminal records.

The percentage of the indigenous population who have criminal records would be very significantly greater. [ 22 ] The evidence presented on this application both to establish that there were no indigenous persons in the jury array which attended for jury selection in this case on October 2, 2014, and to establish that the proportion of indigenous Canadians who have criminal records is significantly greater than in the non-indigenous population, leaves room for doubt on both points. However, neither point was contested by the Crown. [ 23 ] In any event, in my view Mr.

Newborn’s application is without merit, even if one accepts both of these points as established. [ 24 ] Kokopenace confirms that Mr. Newborn is entitled to a representative and impartial jury. As a general principle, the jury will not be representative if the selection procedures deliberately exclude a segment of the population from jury duty eligibility. That principle is, however, subject to exceptions. Some exclusions are acceptable despite their impact on representativeness.

[ 25 ] As noted in Kokopenace , Moldaver J. identified a number of segments of the population which can be acceptably excluded (in para. 44 quoted above). He identified, for example, some who can be excluded for purely practical reasons, in particular, persons for whom serving on a jury would cause unreasonable hardship (the self-employed, those living in remote areas, low-income individuals.) [ 26 ] Alberta Jury Act s. 4 excludes all members of all three branches of government: legislative, executive and judicial.

It seems likely that they are excluded to avoid interruption of their focus on their government responsibilities or to avoid a juror inappropriately dominating jury deliberations. Presumably, that deliberate exclusion of a segment of the population is acceptable. [ 27 ] Moldaver J. also listed as acceptably excluded those convicted of criminal offences and individuals practising certain professions.

In Alberta, the exclusions in this category as set out in Jury Act s. 4 include practicing and non-practicing barristers and solicitors and students-at-law, persons engaged in the administration of justice (police officers, probation officers, Department of Justice employees) as well as those excluded by the impugned provision – persons who have been convicted of a criminal offence for which a pardon has not been granted, and persons currently charged with a criminal offence. [ 28 ] Moldaver J. did not discuss the reason why exclusions in this latter category are acceptable, perhaps because it is obvious.

These exclusions are acceptable because, in the Legislature’s reasonable view, there is a substantial possibility that persons in those categories would not be impartial as between an accused person and the Crown. The impact that these deliberate exclusions have on representativeness is acceptable because they are appropriate to ensure impartiality. The deliberate exclusion of these groups clearly does not raise any concern as to the integrity of the jury selection process. Indeed, it serves to enhance that integrity. [ 29 ] Mr.

Newborn submits, however, that the exclusion of persons who have committed crimes requires closer scrutiny because it results in the exclusion of a significant proportion of indigenous Canadians. He submits that because the Legislature would have or should have recognized that effect, the Legislature should be taken to have intended it – to have deliberately excluded a significant segment of the indigenous population from eligibility for jury duty. [ 30 ] In my view, even after such closer scrutiny, the exclusion of persons who have committed crimes is properly seen as reasonable and acceptable.

That a person who has been convicted of a crime, or is currently charged with a crime, is prima facie likely not to be impartial as between the Crown and the accused in a criminal proceeding does not cease to be a reasonable basis for exclusion because of the ethnic origin of the person in question.

That the effect of the provision is to exclude a proportionally greater number of persons of one ethnic origin from jury duty eligibility than persons of any other ethnic origin, and that such an effect would be obvious to the Legislature when it established the exclusion, does not affect the reasonableness of the exclusion. [ 31 ] The disproportionate effect of the impugned exclusion in the case of indigenous Canadians points to a shameful feature of modern Canadian society, but it does not cause a jury selected through the application of that exclusion to be unrepresentative; rather, it serves to promote the impartiality of such a jury. [ 32 ] The impugned provision does not violate Mr.

Newborn’s right to a representative jury. I dismiss the application. Heard on December 14 and 15, 2015. Dated at the City of Edmonton, Alberta, January 7, 2016. B.R. Burrows J.C.Q.B.A. Appearances: David Kamal, John Watson, Kelly Kowk for the Crown

Julia Renouf and Adam Badari for the Accused