R. v. Planes, 2013 BCSC 897

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Planes, 2013 BCSC 897 Date: 20130415 Docket: 156431-2 Registry: Victoria Regina v. Frank Charles Planes Restriction on Publication: Pursuant to 486.4(1) C.C.C. Before: The Honourable Mr. Justice Johnston Oral Ruling re Application to Exclude Prospective Jurors Counsel for the Crown: L. Nowlan-Card Counsel for the Accused: T. Russell Place and Date of Hearing: Victoria, B.C. April 2 and 3, 2013 Place and Date of Judgment: Victoria, B.C. April 15, 2013 [ 1 ] THE COURT: Mr. Planes is charged with several offences and has elected trial by jury.

His right to challenge prospective jurors on the ground that they are not indifferent between himself and The Queen under s. 638(1)(b), based on his aboriginal ancestry, is conceded by the Crown. [ 2 ] In this application, Mr. Planes seeks an order excluding unsworn jurors, but not sworn jurors, during the challenge for cause process.

He invokes the inherent jurisdiction of the court and specifically does not bring his application under s. 640(2.1) of the Code . [ 3 ] The accused wishes by that to bring the challenge for cause procedure under s. 640(2), utilizing the so-called rotating triers method to try the truth of his challenge. [ 4 ] Portions of s. 640 material to this application read:

(2) If the ground of a challenge is one that is not mentioned in subsection (1) ... -- that is, the name of a juror does not appear on the panel -- .... and no order has been made under subsection (2.1), the two jurors who were last sworn — or, if no jurors have been sworn, two persons present who are appointed by the court for the purpose — shall be sworn to determine whether the ground of challenge is true.

(2.1) If the challenge is for cause and if the ground of the challenge is one that is not mentioned in subsection (1), on the application of the accused, the court may order the exclusion of all jurors — sworn and unsworn — from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors.

(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until 12 jurors — or 13 or 14 jurors, as the case may be, if the judge makes an order under subsection 631(2.2) — and any alternate jurors are sworn. [ 5 ] Subsections (2.1) and (2.2) were added by amendment in 2008.

Before then, the Code said nothing about whether prospective or sworn jurors could be excluded during the challenge process, nor did it provide for employing static triers to decide the challenge. The process for conducting a challenge for cause was that set out in subsection (2) using rotating triers. [ 6 ] Before the amendments, whether to exclude either or both of prospective or sworn jurors during the challenge process was left entirely to the discretion of the trial judge in the exercise of his or her jurisdiction to control the trial process.

This application raises the question whether the amendments have either affected or removed the discretion to exclude unsworn members of the jury panel while preserving the ability to employ rotating triers in the challenge process. [ 7 ] The application requires the

interpretation of the amendments. The modern approach to the

interpretation of a statute was

adopted from Driedger, Construction of Statutes, by the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex, 2002SCC 42, in these words: 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. [8] In context, these amendments were added to the

section of the Code that deals with the process to be followed once a challengefor cause has been justified under s. 638. The context also includes the fact that before the amendments, there was no ability to employstatic triers of fact to decide a challenge for cause, and for that see the decision of the Ontario Court of Appeal in R. v. W.V., 2007 ONCA546 , [2007] O.J. No. 3247, and the Code made no provision for exclusion of either or both of prospective or sworn jurorsduring the challenge process.

The latter void had been filled by exercise of inherent jurisdiction, whereas in W.V., the court held thatinherent jurisdiction did not go so far as to permit static triers in the face of s. 640(2) where rotating triers were mandated. [9] The grammatical and ordinary sense of the amendments start with the apparently inconsequential addition to subsection (2) ofthe words "and no order has been made under subsection (2.1)", there follow the new subsections (2.1) and (2.2). [10] Subsection (2.1) is triggered by an application of the accused and the accused only.

It does not immediately say whatapplication is contemplated or necessary to engage the operation of the subsection, but it is clear from the language that follows that theapplication requires the court to decide if an order excluding all jurors, sworn and unsworn, is necessary to preserve the impartiality ofthe jurors. [11] If the court concludes that exclusion is necessary, again of sworn as well as unsworn jurors, subsection (2.2) comes into playand static triers are employed to determine if the challenge is true. [12] A plain reading of these amendments leads to a clear result.

If an accused person who has satisfied the court that grounds existto challenge prospective jurors for cause is sufficiently concerned about preservation of juror impartiality during the challengeprocedure, he or she can apply to exclude all jurors, prospective or unsworn as well as sworn, until the truth of the challenge isdetermined. [13] Read in their grammatical and ordinary sense and bearing in mind the right of the accused under s. 11(

d) of the Charterparticularly, as well as an accused's rights under s. 7 of the Charter, I conclude that the meaning of the amendments is clear and that anaccused who is concerned to preserve juror impartiality during the challenge process by excluding prospective jurors is now obliged toapply under subsection (2.1), with the result that all prospective as well as unsworn jurors must be excluded if the court is persuaded thatexclusion is necessary to preserve juror impartiality. [14] In my view, the amendments leave no room for the exercise of inherent jurisdiction to exclude jurors under subsection (2).

If itis suggested that the ground for exclusion of prospective or unsworn jurors only under subsection (2) is to preserve their impartiality, thatground has been occupied by subsection (2.1), it seems to me. [15] Any other ground, such as efficient use of court facilities, is not sufficient to overcome the clear language of the amendment soas to preserve the inherent jurisdiction to exclude some jurors under subsection (2).

If the ground for an exclusion application undersubsection (2) is to prevent prospective jurors who might want to avoid jury service from studying or learning what sorts of responseswill get them excluded, the use of rotating triers reduces the ability to predict by some significant measure, and at bottom such anargument, in any event, smacks of a variation on the partiality concern, although perhaps not as strongly. [16] Turning to authorities, the only British Columbia case dealing with the amended s. 640 that counsel have been able to locate isR. v. Swite, 2011 BCCA 54.

There a trial judge had employed static triers to hear a challenge for cause after excluding unsworn membersof the jury panel, but not sworn jurors. The defence had not applied there under s. 640(2.1), but had requested that the judge employrotating triers to determine the truth of the challenge.

It appears from the report that counsel for the accused had been unaware of theamendment to s. 640, that jury having been selected about five months after the amendments came into force. [17] It also appears that the trial judge erroneously believed that the procedure under subsection (2.1) and (2.2) was the only oneavailable as a consequence of the amendments. The Court of Appeal approached the issue on the basis that an application unders. 640(2.1) is a application for static triers.

In paragraph 26, it said: Unfortunately, since defence counsel was initially unaware of ss. 640(2.1) and (2.2) of the Code, his answer was simply to reiterate hisreliance on s. 640(2), rather than to point out to the trial judge that ss. 640(2.1) and (2.2) only applied if the accused made application forthe use of static triers to determine the truth of the challenges. [18] In paragraph 28, the court points out that exclusion under s. 640(2.1) is an all-or-nothing proposition: With respect, I can find nothing in the transcript ... -- and I am quoting now -- ... to support the Crown’s submission that the trial judge made a conscious decision to ignore the specific provisions of s. 640(2)providing for rotating triers in adopting a procedure which employed static triers (and also departed from the language of s. 640(2.1) byexcluding only prospective jurors from being present during the challenge for cause process).

While it is undisputed that prior to the2008 amendments, a trial judge had inherent jurisdiction to exclude either sworn and/or unsworn jurors during the challenge for causeprocess, there is no suggestion that a trial judge had an inherent jurisdiction to use static triers of the truth of the challenges in place ofthe rotating triers referred to in s. 640(2).

The use of static triers is solely a creature of statute. [19] These passages indicate that the Court of Appeal viewed the amendments to the Code as designed to give an accused the rightto apply for static triers of a challenge for cause, and that the static trier procedure would not be available if only prospective jurors were

excluded during the challenge procedure. [20] At paragraph 30, the court in Swite said: In the result on this point, I am satisfied that the trial judge erred in his

interpretation and application of s. 640 of the Code. As aconsequence, he embarked on the challenge for cause process using static triers of the truth of the challenges in circumstances where Mr.Swite had not only not applied for static triers, but where Mr. Swite had made it clear through his counsel that his choice was for rotatingtriers.

This is the crux of the error alleged on appeal. [21] Swite is of limited assistance, I find, as it does not appear from the report that the accused applied to exclude anyone from thechallenge process, instead seeking to have his challenges decided by rotating triers. [22] It appears that the trial judge, in the belief that the 2008 amendments mandated static triers, on his own motion excludedprospective jurors only.

I take that from paragraph 21 of the report in Swite. [23] I also view the Court of Appeal's language suggesting that the application triggering the operation of subsections (2.1) and (2.2)would be an application for the use of static triers to be obiter. [24] There are several authorities out of the Province of Ontario that counsel have cited. They start with R. v. Sandham, (ON SC), 248 C.C.C. (3d) 46.

After the amendments had come into force, an accused in that case sought to have the prospectivejurors brought into court one by one, in effect excluding the unsworn members of the panel, while pointedly not applying undersubsection (2.1) of the amended section. The accused there invoked the inherent jurisdiction of the court to control its processes. [25] The basis of the argument was so that prospective jurors would not become schooled in the process by being able to watchothers go through the challenge procedure and figure out how to avoid jury service.

The accused in Sandham had not applied to excludesworn jurors.

The court in Sandham found that to be an important distinction, as it held that subsection (2.1) clearly linked the use of twostatic jurors with the exclusion of all sworn and unsworn jurors from that process. [26] Because the reason, at best, for excluding unsworn jurors was to avoid the possibility that a juror might improperly engineer hisown rejection, and not anything to do with impartiality, the court exercised its discretion to exclude unsworn members of the panel only,while preserving the rotating trier method of deciding the challenges. [27] Two months later, a different judge of the same Ontario Superior Court of Justice decided R. v.

Riley, (ONSC), 247 C.C.C. (3d) 517. In spite of having the advantage of the reasoning in Sandham, the court in Riley came to the oppositeconclusion.

At paragraph 25, the judge in Riley says: As I have stated, I consider it to be mandatory when the jurors are exclud[ed] during the challenge for cause process to follow the new,static trier regime in s. 640(2.2) of the Criminal Code, and I have proceeded in that manner in this case. [28] There are further cases: Huard, again the Ontario Superior Court of Justice, same volume of the Canadian Criminal Cases, atpage 526, where there was no application to exclude jurors and the trial judge considered whether he had still a jurisdiction to excludesworn and unsworn jurors while employing the rotating trier method. [29] The judge in Huard concluded that a concern over juror impartiality in the challenge for cause process was not renderedmeaningless by the amendments to the Code or by a lack of defence application, and that the court's duty to preserve an accused's right toa fair and impartial tribunal necessarily meant that inherent jurisdiction to exclude sworn or unsworn jurors or both was not affected bythe amendments to s. 640. [30] I find the reasoning in that case very difficult to follow, given the judge's conclusion with respect to juror impartiality, whichseems to me to be directly contradicted by the language of the amendments to s. 640. [31] I note, as well, the contrary decision in R. v.

White, (ON SC), [2009] O.J. No. 3348, where the courtapproached the amendments on the basis that they were intended to introduce the ability to order static triers for a challenge to cause andthat the thrust of the static triers amendment was to protect juror impartiality. [32] There is a further case, in fact, that went to appeal, R. v. Bulatci, 2009 NWTSC 63, where the Crown and defence both agreedthat unsworn jurors be excluded during the challenge for cause process while employing rotating triers to determine the challenge.

In thatcase, the defence also sought exclusion of sworn jurors, and in spite of that request, the trial judge considered that the defence requestwas not an application under s. 640(2.1), and concluded that Parliament had not intended to limit his discretion in the absence of a formalapplication. [33] With all due respect to the trial judge in that case, that seems to me to be splitting the hairs rather too finely. [34] The authorities out of the Province of Ontario, while not binding on me, are obviously to be considered as persuasive. They aredivided.

I acknowledge that the numbers favour the defence application in this case, but I consider that the reasoning in Riley ispreferable to the reasoning in those cases that go in the other direction. [35] My

interpretation of the statute is not affected by the authorities that I have canvassed out of the Province of Ontario or theNorthwest Territories, and I therefore conclude that an application to exclude, whether unsworn or sworn or both, invokes subsection(2.1) of s. 640, and that any such application, as it is rooted in a desire to preserve juror impartiality, will mandate static triers undersubsection (2.1). [36] The application, therefore, to have me exercise my inherent jurisdiction by excluding only unsworn members of the jury panelwhile preserving the use of rotating triers is dismissed.

“R.T.C. Johnston, J.” The Honourable Mr. Justice Johnston