R. v. Nelson, 2013 BCSC 1075

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nelson, 2013 BCSC 1075 Date: 20130503 Docket: 157174-2 Registry: Victoria Regina v. Leonard Charles Nelson Restriction on Publication: Pursuant to 486.4(1) C.C.C. Before: The Honourable Madam Justice J. A. Power (appearing via teleconference) Oral Ruling re Challenge for Cause Counsel for the Crown: M. R. Murray Counsel for the Accused: J. J. Blazina Place and Date of Trial/Hearing: Victoria, B.C. February 7, 2013 Place and Date of Judgment: Victoria, B.C. May 3, 2013 [ 1 ] THE COURT: This ruling concerns

interpretation of the challenge for cause procedure under s. 640 of the Criminal Code . The specific question that the court is asked to address is whether or not the court has inherent jurisdiction to order that prospective jurors be excluded from the courtroom during the challenge for cause procedure. [ 2 ] The defence is seeking that the challenge be heard by rotating triers and that only prospective jurors, not sworn jurors or triers, be excluded.

This is a procedure that was routinely followed and ordered by the court pursuant to the court's inherent jurisdiction prior to the 2008 amendments to the Criminal Code which, in ss. 640(2.1) and (2.2) , provide for an application by the accused for static triers. [ 3 ] The question of statutory

interpretation that arises is whether, since the amendments in 640(2.1) and (2.2) now provide for static triers and the exclusion of all jurors, can an accused person only have prospective jurors excluded pursuant to an application under that section?

Does the court retain inherent jurisdiction to make the order sought in this case, which is not made pursuant to those sections, but is made pursuant to ss. 7, 11(b), and 24(1) of the Charter and pursuant to the court's inherent jurisdiction? [ 4 ] The defence submits that since they have not brought an application under s. 640(2.1), it follows that the use of rotating triers is governed by s. 640(2) and the common law. [ 5 ] For the reasons that follow, I am of the view that the defence application should be allowed.

BACKGROUND [ 6 ] The accused, Leonard Nelson, is charged on a three-count indictment with sexual touching contrary to s. 151 of the Criminal Code . He has given notice of his intention to challenge for cause potential jurors to determine whether the jurors can view the evidence without bias, prejudice, or partiality. It is intended that the prospective jurors be asked two questions: 1. Would your ability to judge the evidence in the case without bias, prejudice, or partiality be affected by the fact that the accused is a Native Indian? 2.

Would your ability to judge the case without bias, prejudice, or partiality be affected by the fact that the accused is a Native Indian and charged with an offence involving alcohol and violence? [ 7 ] The Crown has not argued that the grounds for the challenge are untrue and does not oppose the proposed questions. [ 8 ] I am satisfied that there is an air of reality to the challenge in the particular circumstances of this case and considering all of the circumstances, including the Crown's position, propose to allow the challenge to proceed with the questions as proposed by the defence.

ANALYSIS [ 9 ] With respect to the issue on this application, whether the court can order that prospective jurors be excluded from the courtroom, the Crown does not take any position, other than to argue that any decision the court makes must be consistent with the

approach to the principles of statutory

interpretation set out in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42. [10] The Crown did not argue in favour of any particular approach to the

interpretation. [11] The issue at bar has not been dealt with in this province in any formal decision of this court, but rather has been raised on an adhoc basis with differing approaches by trial judges. I do not have any copies of any decisions of this court. There are several decisionsout of the Ontario Superior Court of Justice, most of which accede to such an application: R. v. Sandham, (ON SC),[2009] O.J. No. 1853; R. v. Huard, [2009] O.J. No. 3142; R. v. White, (ON SC), [2009] O.J. No. 3348; R. v. Stewart,2011 ONSC 1949; contra, R. v.

Riley, (ON SC), [2009] O.J. 1851. [12] The Sandham approach was also followed by Vertes J. in R. v. Bulatci, 2009 NWTSC 63. [13] In all but one of the above decisions, Riley, the court concluded that the court retains inherent jurisdiction to excludeprospective jury members from the courtroom using the rotating procedure.

In Huard and White, the court went even further and heldthat the court also retains discretion to exclude already sworn jurors from the courtroom. [14] However, since the Supreme Court of Canada has made it clear that a court should not place undue emphasis on the sheernumber of judges who have ruled on an

interpretation issue, Bell ExpressVu Limited Partnership, paragraph 25, and since thosedecisions are not from British Columbia, it is important to consider the underlying principles of statutory

interpretation which arise. [15] The Crown submits that the statutory

interpretation exercise must begin with the modern approach set out by Driedger, as citedin Bell ExpressVu Limited Partnership at para. 26: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [16] Considering the words of s. 640 in their grammatical and ordinary sense, it is clear that an order under subsection (2.1) is onlytriggered on “the application of the accused”. [17] In the case at bar, as I have noted, the accused does not make such an application.

In the absence of such an application, therotating procedure in subsection (2) is mandated, since the subsection includes “if … no order has been made under subsection (2.1)”then rotating triers shall be used: see also R. v. Swite, 2011 BCCA 54. [18] In Sandham, Heeney J. put the issue as follows at para. 42: On a plain reading of these subsections, it is clear that the accused (but not the Crown) is presented with an option.

If he chooses tomake an application under s. 640(2.1) for an order excluding all of the sworn and unsworn jurors, the new procedure will apply, and thechallenge for cause will utilize two static triers.

On the other hand, if he chooses not to make an application under s. 640(2.1), the oldprocedure will apply, and the challenge for cause will utilize two rotating triers. [19] The ambiguity in these provisions lies in subsection (2)'s silence on the subject of the exclusion of jurors, as opposed tosubsection (2.1)'s inclusion. [20] In Riley, Justice Dambrot concludes that on a plain reading the provision is clear that a complete mandatory procedure is setout; that is, subsection (2.1)'s reference to exclusion of jurors informs subsection (2)'s silence. [21] However, it is my view that a plain reading of the

section can reasonably bear a different

interpretation. That is, Parliament hasnot set out a complete procedure and has not removed inherent jurisdiction on the subject that the court previously had, but has simplymade an option available to the accused under subsections (2.1) and (2.2) that was not previously available. [22] While this

interpretation requires a reading that considers each subsection individually, which is contrary to some of theprinciples of statutory

interpretation, it is consistent with a reading of the challenge procedure in s. 640 as a whole, since the trial judge isleft with a significant discretion under the section. [23] In R. v. Hubbert (1975), (ON CA), 29 C.C.C. (2d) 279 (Ont. C.A.), the court commented on the significantdiscretion the trial judge has to control the process and prevent an abuse of process. [24] I turn to a consideration of the amendments in a broader context. The purpose of the challenge provisions as a whole and of theamendments is to protect the impartiality of the jurors, sworn and unsworn.

In introduction, the Honourable Vic Toews, Minister ofJustice, said that the amendment would “better protect the impartiality of prospective jury members as well as sworn jurors”, House ofCommons Debate Number 059, 4th of October, 2006. [25] The parliamentary debates also indicate that the amendment was thought to be technical, not substantive, and was to improvecourtroom efficiency: Mr. Rob Moore, House of Commons Debate Number 062, 16th of October, 2006. [26] The specific mischief the amendment was aimed at was stated in the Standing Committee on Justice and Human RightsNumber 065, 2nd of May, 2007, by Ms.

Anouk Desaulniers: There is an attempt to mitigate certain risks like in the case of a challenge for cause. When there is reason to believe that a perspective[sic] juror may be biased, questions are asked in that regard. He will be asked, for instance, about knowledge of newspaper articles ormedia reports. It is possible, in asking these questions -- usually the jury is present, the sworn jury and the other candidates in the room -- for the person being questioned to provide an answer which may be very prejudicial to the accused.

He could say, for instance, that hehas already got an opinion on the accused's guilt because he heard such and such a thing on television. That is what we are trying toavoid.

[27] In Sandham, Heeney J. considered the historical context and the purpose of the 2008 amendment. In that case, as in the case atbar, the accused requested the exclusion of prospective jurors that “expressly disavowed any suggestion that they are seeking relief unders. 640(2.1)” (para. 43). [28] Heeney J. notes at para. 45: [45] While no defence counsel has brought an application under s. 640(2.1), Mr.

Royle has made an oral motion requesting the courtto exercise its inherent jurisdiction to control the court's process, and to have the prospective jurors brought in one by one for thechallenge for cause procedure. In making this request, he was simply asking the court to do what has routinely been done in the past,when challenges for cause were being dealt with under s. 640(2) prior to the amendments. There can be no doubt that the court hasdiscretion to exclude the panel of prospective jurors during this process, and if any authority is needed, I refer to para. 89 of R. v.

Moore-McFarlane (2001), (ON CA), 56 O.R. (3d) 737, [2001] O.J. No. 4646 (C.A.), where Charron J.A., speaking for thecourt, said the following: Finally, with respect to the denial of defence counsel's request to make submissions to the triers, I do not agree that counsel'srequest should have been granted as of right. As with the issue of excluding the jury panel, this is a discretionary matter for the trialjudge to determine depending on the circumstances. [29] I go further in my decision and quote paras. 51 and 52, 53, and 54 of Sandham: [51] It is clear that Mr.

Royle's request, that the court make the usual order excluding the unsworn jurors while the challenge forcause is proceeding, is not an application under s. 640(2.1) in disguise. To begin with, s. 640(2.1) provides for the exclusion of all jurors-- sworn and unsworn -- whereas Mr. Royle is asking that only unsworn jurors be excluded. [52] That is not an insignificant distinction. The new provisions clearly link the use of two static jurors with the exclusion of allsworn and unsworn jurors from the challenge process.

If s. 640(2.1) is invoked, jurors will not participate in the challenge process astriers, because it will be done entirely by the two triers who are first called (triers who will never be sworn in as jurors). Additionally,the jurors will not be present for any challenge for cause except their own. Parliament appears to be dealing with a situation where, inorder to preserve the impartiality of the jurors, it is necessary to completely insulate them from the challenge for cause process except,obviously, for their own. [53] That is not the case here.

No-one has any difficulty with the jurors participating in the challenge process as triers, and no-one hasany difficulty with the jurors remaining in the jury box after being sworn, while other prospective jurors are challenged. [54] Furthermore, the statutory basis for an order under s. 640(2.1) is “that such an order is necessary to preserve the impartiality ofthe jurors”. Impartiality in the sense in which it is used in this part of the Code means impartiality as between the accused and theQueen. That is not the reason advanced for excluding the unsworn jurors.

Instead, the reason for bringing jurors in one by one is so thatthey will not be exposed to the challenge process being repeated time after time with all jurors who precede them, and thereby becomeschooled in the process. The concern is that a juror might learn what answers tend to result in the juror being excused from serving onthe jury. This has nothing to do with impartiality.

The concern is not bias or prejudice, but rather the possibility that a juror mightimproperly engineer his own rejection. [30] In the result, Heeney J. acceded to the request of defence counsel and made an order for exclusion of unsworn jurors, and noorder was made for exclusion of sworn jurors. [31] In the judgment, Heeney J. is reading the legislation with an intent to protect the accused's interests and emphasizes that it is theaccused's choice of procedure. There is support for Heeney J.'s emphasis on the accused's choice in our Court of Appeal in R. v.

Swite,where the court takes note of Sandham and appears to approve of this approach at paras. 47 and 59. [32] While in Swite, the court does not address the issue at bar, Prowse J.A. notes in para. 59: [59] In response to this submission, I return to my earlier point that Parliament has not dictated the method by which the triers of achallenge are to be selected, but has effectively left that choice with the accused. It must be kept in mind that it is the accused whoseliberty is at stake at trial and whose right to an impartial jury is at issue.

In effect, Parliament has determined that it is the accused(subject to the making of an order under s. 640(2.2)) who has the right to determine by what method those who determine his fate will bechosen. The accused has the vested interest in the outcome which, in the case of Mr. Swite, was a verdict of guilty of first degree murderand the imposition of the statutorily mandated sentence of life imprisonment with a minimum period of parole ineligibility of 25 years. He is entitled to a trial before a properly constituted court.

In this case, however, the court was constituted using a process wherebyjurors were effectively screened by static triers in circumstances where rotating jurors were mandated. As Mr. Justice Sharpe said atpara. 26 of Vincent in relation to the procedure set out in s. 640(2): ... By requiring that the triers rotate, s. 640(2) has the effect of ensuring, to the maximum extent possible, that the responsibilityfor determining the challenge for cause is shared by all jurors but the last juror selected.

By spreading the authority to decide thechallenge for cause in this manner, s. 640(2) guarantees that a variety of views and perspectives will be brought to bear on thefundamental question of how the jury is to be constituted. ... [33] In R. v. Huard, Thomas J. reached the same conclusion as Heeney J., and after reviewing the nature of inherent jurisdiction andits role in preserving fairness, he goes on to note the purpose of the new provisions “as with all the challenge sections, attempt to ensurethe selection of an independent and impartial jury, as guaranteed by

section 11(

d) of the Charter of Rights and Freedoms.” [34] After reviewing Driedger's approach, Thomas J. states at para. 25: [25] Surely a concern of the trial judge about juror impartiality in the challenge for cause procedure is not rendered meaningless bythis amendment, and by a lack of defence application. The trial judge has a duty to preserve the

section 11(

d) rights of any accused, even

without a defence request. See R. v. Arbour, [1990] O.J. No. 1353 (C.A.); and, R. v. Travers, 2001 NSCA 71 , [2001] N.S.J.No. 154 (C.A.). [35] In R. v. Stewart, faced with a similar situation where there was no application by the accused, Kiteley J. decided to proceed inthe old way in which there are rotating triers and unsworn jurors excluded from the courtroom (para. 13). [36] In R. v. White, Sproat J. reviewed the 2008 amendments in the context of Hansard and the jurisprudence that preceded theamendments.

The application before the court in that case was similar to the case at bar; that is, unsworn and prospective jurors beexcluded from the courtroom. [37] In White, Sproat J. put the amendments in context by noting at para. 16 that: ... in R. v. W.V., 2007 ONCA 546 , [2007] O.J.

No. 3247 (C.A.) the Court of Appeal held that a trial judge has no inherentjurisdiction to use static triers as to do so is contrary to the mandatory requirement [at the time of that decision] that triers rotate. [38] Therefore, Sproat J. suggested that the amendments were a response to that decision. [39] In allowing that application, Sproat J. noted that a recurring theme in the static trier amendment and other amendments enactedat the same time was to correct recognized deficiencies (para. 18).

He said further at para. 19: There is, therefore, nothing to indicate that Parliament had any issue with the common occurrence of trial judges exercising a discretionto exclude prospective or sworn jurors during the challenge for cause process. [40] He said further, commencing at paras. 32 and 33: [32] It does not logically or reasonably follow that if Parliament introduces a measure to protect jury impartiality that it therebyintends to nullify other measures that also protect jury impartiality.

Put differently, if the purpose of the static triers amendment was todefine the circumstances in which prospective and sworn jurors should be excluded from the courtroom, I can see that it would followthat exclusion of all jurors with static triers would imply inclusion of all jurors with rotating triers. In my view, however, that is not thepurpose.

The purpose is to protect juror impartiality. [33] Given that we know that the thrust of the static triers amendment was to protect juror impartiality, it seems both ironic and plainwrong, that it should be interpreted to deprive the trial judge of the discretion, case by case taking into account the submissions ofCrown and defence counsel, to exclude prospective jurors for the purpose of preserving juror impartiality. CONCLUSION [41] In conclusion, having considered all of the authorities and the principles of statutory

interpretation, I am of the view thatParliament's purpose in enacting the amendments was to recognize a technical deficiency in that no mechanism for static triers existed. In my view, Parliament did not intend to limit a trial judge's discretion when utilizing rotating triers. [42] I am persuaded by the line of current cases that suggest that such inherent jurisdiction and discretion continues to exist, and inthis case I am asked by the accused to exercise that discretion. Utilizing my discretion in this way is, in my view, consistent with someof the reasoning from our Court of Appeal in R. v.

Swite. [43] In the circumstances of the case at bar, I am exercising my discretion to exclude prospective jurors during the challenge forcause process. “J. A. Power, J.” The Honourable Madam Justice J. A. Power