HIS MAJESTY THE KING - v. –, 2022 SKKB 206

KING ’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 206 Date: 2022 09 13 Docket: CRM-ES-00032-2021 Judicial Centre: Estevan BETWEEN: HIS MAJESTY THE KING - and – TRAVIS PATRON RESTRICTION ON PUBLICATION: By court order made under subsection 517(1) of the Criminal Code , these reasons shall not be published in any document, or broadcast or transmitted in any way until the end of the trial. The restriction on publication have been lifted pursuant to the judge’s order of October 7, 2022. Appearing: Ryan W. Snyder for the Crown Travis Patron self-represented accused FIAT ROBERTSON J.

SEPTEMBER 13, 2022 Introduction [ 1 ] This fiat addresses an application by the Crown to allow a witness to testify by videoconference, pursuant to s. 714.1 of the Criminal Code, RSC 1985, c C-46 , and records matters discussed at the pre-trial conference mandated by s. 625.1 of the Criminal Code . The application was heard and the pre-trial conference was held on September 9, 2022 in anticipation of the jury trial scheduled to commence September 26, 2022 at the Estevan Courthouse.

Section 714.1 remote appearance [ 2 ] The Crown applied to allow Michal Schlesinger to testify from Toronto, Ontario. She would testify from her office in Toronto using a laptop. The Crown says her evidence is uncontroversial and will be relatively brief (perhaps 45 minutes in direct examination). Ms. Schlesinger is an Ontario lawyer who was working for B’nai Brith Canada when she made the complaint that led to the charge before the Court. Her evidence was previously disclosed to the accused, Travis Patron [Mr. Patron].

[ 3 ]

Section 714.1 reads as follows: Audioconference and videoconference — witness in Canada 714.1 A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including (

a) the location and personal circumstances of the witness; (

b) the costs that would be incurred if the witness were to appear personally; (

c) the nature of the witness’ anticipated evidence; (

d) the suitability of the location from where the witness will give evidence; (

e) the accused’s right to a fair and public hearing; (

f) the nature and seriousness of the offence; and (

g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference. [ 4 ] In R v Hansen , 2022 SKQB 34 , [ Hansen ] at paras 29-63 , I applied s. 714.1 to allow a witness to appear by videoconference from another location in Canada. That decision considered and followed the approach set out in R v Burns, 2020 SKQB 228 [ Burns ] , a decision of Scherman J. Burns was also cited in R v Gordon , 2021 SKQB 131 , a decision of Tochor J.

As was done in those decisions, I will review the statutory criteria against the application. Location and personal circumstances of the witness [ 5 ] Ms. Schlesinger resides and works in Toronto, Ontario. As a lawyer, she will understand her responsibilities as a witness. [ 6 ] This factor is neutral. Costs to appear personally [ 7 ] There would be costs of air travel to Regina and by highway to Estevan, as well as hotel accommodation. Direct flights between Toronto and Regina are limited. Estevan is 200 kilometres by single lane highway from Regina.

Travel time is around 2 hours and 15 minutes with good road conditions. [ 8 ] In addition to the financial cost, there is a real cost in lost time. Travelling from Toronto to Estevan and back would likely take a few days. There is also the concern with limiting unnecessary travel and exposure during the ongoing COVID-19 pandemic. [ 9 ] This factor favours granting the application. Nature of witness’ anticipated evidence [ 10 ] The Crown says that Ms. Schlesinger’s evidence is uncontroversial and expects her direct examination to take under an hour. [ 11 ] This factor favours granting the application.

Suitability of location from where witness will testify [ 12 ] Ms. Schlesinger would testify from her office in Toronto. Ms. Schlesinger is a lawyer who is familiar with trial procedures, including jury trials, and with the use of videoconferencing, including for testimony. The Crown would review standard protocols with Ms. Schlesinger before her testimony. [ 13 ] This factor favours granting the application.

Accused’s right to a fair and public hearing [ 14 ] The Estevan courtroom is equipped with videoconferencing technology, including sound amplification and large video screens, which enable the parties and members of the public to hear and see witnesses testifying remotely. [ 15 ] In-person testimony remains the standard and preferred mode of appearance. But, as discussed in Hansen and Burns , the court’s technical ability and comfort level with remote testimony using videoconferencing technology has come a long way in the past few years, compelled by necessity occasioned by the COVID-19 pandemic.

Our experience has led many to conclude that trial fairness is not compromised by remote testimony, properly done. [ 16 ] I also take note of R v Theodore , 2020 SKCA 107 , in which the Court of Appeal denied the request of an accused to appear in person at the hearing of the appeal, rather than by videoconference, stating at para. 5:

[5] … We are satisfied that the fairness of the process will not be compromised by hearing the appeals in this fashion and that, given the health and safety risks of the COVID-19 pandemic, it is appropriate to proceed in this way. [ 17 ] Public health authorities have reduced reporting on the incidence of COVID-19 cases; however, it is clear that the pandemic continues and infection of new variants may again increase into the fall and winter.

Requiring a witness to travel across the country for brief testimony both puts the witness at risk and increases the potential for transmission of illness, which is of particular concern with a jury trial. [ 18 ] This factor favours granting the application. Nature and seriousness of the offence [ 19 ] The offence is serious and may be of public interest. [ 20 ] This factor is neutral. Potential prejudice to the parties [ 21 ] Mr. Patron opposes the application. However, there is no claim of prejudice, nor do I anticipate prejudice from allowing this remote testimony. [ 22 ] This factor is neutral.

Conclusion [ 23 ] Having regard to all of the factors, I conclude that it is appropriate to allow Michal Schlesinger to testify by videoconferencing technology. The Crown must make the necessary arrangements with Court Services, including technical support in case difficulties arise during her testimony.

Section 625.1(2) jury pre-trial conference [ 24 ]

Section 625.1 of the Criminal Code requires a pre-trial conference for jury trials: Pre-hearing conference 625.1(1) … Mandatory pre-trial hearing for jury trials

(2) In any case to be tried with a jury, a judge of the court before which the accused is to be tried shall, before the trial, order that a conference between the prosecutor and the accused or counsel for the accused, to be presided over by a judge of that court, be held in accordance with the rules of court made under sections 482 and 482.1 to consider any matters that would promote a fair and expeditious trial. [ 25 ] I had previously invited the parties to submit items for discussion at this conference. No items were submitted.

The attached agenda (Schedule “A”) was prepared and provided to the parties before the date of the conference. The items listed on the agenda were discussed. Mr. Patron was invited to ask questions, which I tried to answer. COVID-19 precautions [ 26 ] As stated above, the pandemic continues. The Court has a duty to protect both the safety of persons within its precincts and the integrity of the trial.

The Court and Ministry of Justice have taken measures to make the courtroom a safe place, including placing clear plastic barriers in courtrooms to reduce the opportunity for transmission. [ 27 ] Vaccination has been effective in both reducing the incidence and severity of illness. For these reasons, this Court has restricted juries to vaccinated persons. See: R v C.D ., 2021 SKQB 268 (Popescul C.J.Q.B.) ; R v Morales , 2021 SKQB 269 (McCreary J. as she then was) ; and Overs v Shared Services Saskatchewan , 2021 SKQB 270 . These decisions have been generally followed in other jury trials.

For example, see R v Whitehawk (31 March 2022) Regina, CRM-RG-00143-2020 ( Sask QB ) at paras 7-13 (unreported). [ 28 ] Masking of persons within the courtroom is another precautionary measure that is effective in reducing transmission of illness. [ 29 ] I order that jury selection be limited to persons who are fully vaccinated and that all court staff interacting with the jurors be fully vaccinated, meaning at least two vaccinations against the COVID-19 virus. Persons inside the courtroom shall wear masks, except when speaking. The Crown prosecutor and Mr.

Patron are exempted from this requirement, provided they are properly spaced from other persons, because they may be speaking throughout the trial. Objection and Applications by the Accused [ 30 ] In the course of our discussions, Mr. Patron made an objection and asked to make new applications, although nothing in writing had been filed. Prior written application is normally required, both to understand the nature of the application and to provide the Crown with an opportunity to respond. Regardless, I will summarize the objection and applications as I understand them and

try to provide some answer, recognizing that Mr. Patron is self-represented. Objection to order of appearance of Crown witnesses [ 31 ] The Crown explained that the Jewish holiday Rosh Hashanah begins on the evening of Sunday, September 25 and ends on the evening of Tuesday, September 27, 2022. Two of the Crown witnesses observe this holiday. Mr. Snyder proposes calling those witnesses on Wednesday, September 28, so as not to interfere with their religious observance. The Crown acknowledges this will result in shorter sitting days on the Monday and Tuesday. [ 32 ] Mr.

Patron objects to this. [ 33 ] The choice and order of presentation of witnesses is generally within the discretion of the presenting party. As such, the Court should be reluctant to interfere. I view the Crown’s accommodation of its witnesses as reasonable. I therefore decline to interfere with the Crown’s exercise of its discretion in calling of witnesses. Death of Queen Elizabeth II [ 34 ] Queen Elizabeth II died on September 8, 2022, the day before this conference. Mr.

Patron argued that this is a change in circumstance that either removes jurisdiction to proceed or should allow him to bring applications challenging jurisdiction of the prosecution or the Court. [ 35 ] Under our constitutional monarchy, the death of the reigning monarch does not interrupt or end the work of her government, including prosecution of offences brought in her name. While the 70-year reign of Queen Elizabeth II ended with her death, the rule of the Sovereign continues uninterrupted. Queen Elizabeth II was immediately replaced by her successor, King Charles III, as King of Canada.

The transition is seamless. [ 36 ] While I took my oath of allegiance to Queen Elizabeth II as one of her servants, I and other officials remain bound to faithfully serve our new King. I made some reference to this concept in George Gordon First Nation v Saskatchewan (Attorney General of Canada) , 2020 SKQB 90 at paras 5-9 ; affirmed 2022 SKCA 41 . [ 37 ] A thorough and learned review of the law is found in an

article by Thomson Irvine, K.C. “Demise of the Crown: An Historical Review of the Law in Canada” (2019), 12 J Parliamentary & Pol L 695. It is also well explained in an

article by Professor Phillippe Lagass é , “Charles is now the King of Canada”, The Globe and Mail (9 September 2022) at page A17: … … Accession happens automatically and instantaneously; the coronation and Accession Council will merely formalize what has already occurred. … … To better understand how succession and accession operate, we must look at the nature of the Crown in the Constitution and at common law. The Crown serves as Canada’s concept of the state. It is source of executive and judicial power, and is one part of Parliament and provincial legislatures.

The sovereign authority of the Crown is exercised through different capacities, as per Canadian federalism and the separation of powers. Hence, we can differentiate between Her Majesty in right of Canada and Her Majesty in right of Ontario, and we know that the Crown-in-Council exercises executive authority, while the Crown-in-Parliament is the legislative power. The Crown, moreover, is understood to be a legal person. The attributes of this legal personality explain how accession and succession work.

British and Canadian courts have recognized that the Crown is a “non-statutory corporation sole”, which means that the Crown is a fictional person with two capacities: one legal, the other natural. The legal personality of the Crown is immortal and unchanging. No matter who wears the crown, the legal personality remains the same in law. Conversely, the natural capacity is the mortal person who serves as the monarch. As a corporation sole, these legal and natural capacities are connected in an office.

The Crown is an official legal personality with various powers and functions, and the office is held by a natural person who exercises these powers and performs these functions. Treating the Crown as a corporate office ensures that all mentions of the sovereign in law and in the Constitution refer to the enduring legal personality.

In practical terms, this means that legal or constitutional references to Her Majesty the Queen, and in some cases Queen Elizabeth II apply to and bind her successor. … [Emphasis in original] [ 38 ] These constitutional principles and conventions are codified in statute law to provide certainty and ready reference for authority. [ 39 ] The

Interpretation Act , RSC 1985, c I-21 , in s. 46 confirms continuity of public offices and proceedings in the event of the death of the monarch. Demise of Crown Effect of demise 46

(1) Where there is a demise of the Crown,

(

a) the demise does not affect the holding of any office under the Crown in right of Canada; and (

b) it is not necessary by reason of the demise that the holder of any such office again be appointed thereto or, having taken an oath of office or allegiance before the demise, again take that oath. Continuation of proceedings

(2) No writ, action or other process or proceeding, civil or criminal, in or issuing out of any court established by

an Act is, by reason of a demise of the Crown, determined, abated, discontinued or affected, but every such writ, action, process or proceeding remains in full force and may be enforced, carried on or otherwise proceeded with or completed as though there had been no such demise. [ 40 ] The Legislation Act , SS 2019, c L-10.2 in s. 2 - 21 similarly confirms the principle of continuity upon the succession of monarch and in ss. 21 - 45(5) and (6) provides for automatic change in name. Succession 2-21

(1) A change of reigning sovereign does not affect anything done or begun under the previous reigning sovereign and all matters continue as if no succession had occurred.

(2) For greater certainty, a change of reigning sovereign: (

a) does not affect any appointment, or the holding of any office, under the Crown; and (

b) does not require the retaking of any related oath or affirmation. . . . Reference in Enactments 2-45 …

(5) If the reigning sovereign is a Queen, a reference in any enactment to “the King”, “the King’s”, “His Majesty”, “His Majesty’s”, “the Court of King’s Bench” or “ The King’s Bench Act ”, unless the context otherwise requires, is to be interpreted to mean respectively “the Queen”, “the Queen’s”, “Her Majesty”, “Her Majesty’s”, “the Court of Queen’s Bench” or “ The Queen’s Bench Act ”.

(6) If the reigning sovereign is a King, a reference in any enactment to “the Queen”, “the Queen’s”, “Her Majesty”, “Her Majesty’s”, “the Court of Queen’s Bench” or “ The Queen’s Bench Act ”, unless the context otherwise requires, is to be interpreted to mean respectively “the King”, “the King’s”, “His Majesty”, “His Majesty’s”, “the Court of King’s Bench” or “ The King’s Bench Act ”. [ 41 ] The fact that the Indictment names “Her Majesty the Queen” does not affect this or any other prosecution. [ 42 ] The Latin word Regina , for Queen, now becomes Rex , for King.

The shorthand “ R v ” used in case descriptions meant “ Regina versus ” during the reign of Queen Elizabeth II. But “ R ” equally captures Regina or Rex. Similarly, the Court of Queen’s Bench is now the Court of King’s Bench. The change is automatic, as provided in s. 3(2) of The Queen’s Bench Act, 1998 , SS 1998, c Q- 1.01 . [ 43 ] There is no need to amend or replace existing documents. Going forward, however, new documents which reference the monarch should refer to the King. Mr. Patron’s religious rights [ 44 ] Mr.

Patron argues that the prosecution breaches his religious rights, referring to John Ballou Newbrough, Gospels of Oahspe: Book of Judgment (New York: Oahspe Pub. Association, 1884)

chapter 35 , verses 1-9. There are three answers to this. [ 45 ] First, “freedom of conscience and religion” are protected by s. 2(

a) of the Canadian Charter of Rights and Freedoms [ Charter ]. But if Mr. Patron intended to bring a Charter challenge, he would have to bring a formal challenge and comply with the notice requirements prescribed by The Constitutional Questions Act, 2012 , SS 2012, c C-29.01 . He has not done so. [ 46 ] Second, Mr. Patron previously brought a Charter challenge on this ground. That challenge was rejected in R v Patron , 2022 SKQB 46 at paras 23-28 . As I explained at the conference, the Court decides once and rarely reconsiders its decisions.

Challenges to this Court’s decisions are properly made by appeal to the Court of Appeal, after a final decision is reached, not by repetition to the same court. [ 47 ] Third, while the religious text to which Mr.

Patron referred does contemplate a kingdom on earth where there is no government and no laws or leaders, it also, in verse 9, recognizes the right of a people to make and live under the rule of law: “ When the public have suffered, and when they, themselves, demand protection by such laws, then such laws shall be made.” That is precisely the situation in Canada, where laws are enacted by a free people’s democratically elected representatives. J. D.N. ROBERTSON

Schedule “A” - Agenda R v TRAVIS PATRON Estevan CRM-ES-00032-2021 PRE-TRIAL CONFERENCE FOR JURY TRIAL September 9, 2022 Friday 10:00 a.m. Regina Courthouse Pre-hearing conference 625.1

(1) Subject to subsection (2), on application by the prosecutor or the accused or on its own motion, the court, or a judge of the court, before which, or the judge, provincial court judge or justice before whom, any proceedings are to be held may order that a conference between the prosecutor and the accused or counsel for the accused, to be presided over by the court, judge, provincial court judge or justice, be held prior to the proceedings to consider the matters that, to promote a fair and expeditious hearing, would be better decided before the start of the proceedings, and other similar matters, and to make arrangements for decisions on those matters.

Mandatory pre-trial hearing for jury trials

(2) In any case to be tried with a jury, a judge of the court before which the accused is to be tried shall, before the trial, order that a conference between the prosecutor and the accused or counsel for the accused, to be presided over by a judge of that court, be held in accordance with the rules of court made under sections 482 and 482.1 to consider any matters that would promote a fair and expeditious trial.

Participants: Justice Robertson, trial judge Kelli Kitzel, Court Clerk Ryan Snyder, Crown Prosecutor Travis Patron, self-represented accused Trial Date: - scheduled to commence September 26, 2022 in Estevan - will adjourn at end of day Wednesday, September 28 and continue following week of October 3 until verdict delivered AGENDA - neither party submitted items (Fiat of May 6, 2022 at paragraph 5) - anything to add to agenda?

ACCUSED PARTICIPATION AT TRIAL - The Crown will present its case first because it has the onus of proving the charge. - If you believe a question asked by the Crown is improper, you may object to that question. The jury will then be excused. You may then explain what is legally objectionable about the question or answer. The explanation is given after the jury has left the room.

The Crown will respond and then the Judge will decide on the objection. (The same process applies in reverse if the Crown objects to questions put to or answers given by defence witnesses.) - You have the right to cross-examine Crown witnesses. Questions must be relevant to the charge. Witnesses can only testify about what they personally know or have observed.

- After the Crown closes its case, you will be asked whether you wish to call evidence in defence. You may do so, but are not obliged to do so. - You have the right to remain silent. You do not have to testify, and you do not have to ask anyone else to give evidence. - If you do decide to call evidence, then you may make an opening statement to the jury. This statement is not evidence, but rather outlines your position based upon the anticipated evidence.

You are not required to make an opening statement. - If you do not testify or call other evidence, neither the Crown nor trial judge may mention your failure to testify to the jury. Neither can ask the jury to make a conclusion because you did not testify or call other evidence. However, if you choose not to present evidence, then the only evidence the jury will have is the evidence presented by the Crown. - If you decide to testify you must affirm or take an oath that you will tell the truth. You will then be able to talk about your personal knowledge of this case.

When you are done, you will be cross-examined by the Crown about what you said and the charge. - After all the witnesses have been called, you and the Crown will be able give your closing addresses to the jury. This is argument about what the jury’s decision should be, based only on the testimony that the witnesses have given and the exhibits that have been entered into evidence. The purpose of your closing address to the jury is to outline your defence, to review the evidence that supports your defence, and to point out the weaknesses in the evidence led by the Crown.

You must not refer to anything that has not come out in the evidence and you must not try to give evidence yourself. The time for evidence is over. You also cannot refer to anything that happened while the jury was out of the courtroom. - The issue for the jury to decide is whether the Crown has proven each of the elements of the charges. Any questions?

EXPLANATION OF CHARGE Charge Section 319(2) of the Criminal Code creates the offence of promoting hatred: … Everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of [the offence]. Section 319(7) defines words used in s. 319(2) as follows: communicating includes communicating by telephone, broadcasting or other audible or visible means; … identifiable group means any

section of the public distinguishable by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability. public place includes any place in which the public have access as of right or by invitation, express or implied. statements include words spoken or written or recorded electronically or electromagnetically or otherwise, and gestures, signs or other visible representations. The offence charged is wilful promotion of hatred. The charge in the indictment reads as follows: Travis Patron of Redvers, Saskatchewan stands charged: 1.

That he, the said Travis Patron between the 29 th day of June, 2019 and the 21 st day of December 2020 at or near Redvers, Saskatchewan, did by communicating statements other than private conversation willfully promote hatred against an identifiable group, to wit: Jews, contrary to section 319(2) of the Criminal Code . The elements of this offence are as follows: - identity of Travis Patron as the person who did the acts which constitute the offence

- date of the offence, occurring between June 29, 2019 and December 21, 2020 - location of the offence, occurring at or near Redvers, Saskatchewan - the physical acts and mental elements which constitute the offence, being: 1. by communicating statements, other than in private conversation, which; 2. wilfully; 3. promoted hatred against an identifiable group, being Jews. The Crown is required to prove each of these essential elements beyond a reasonable doubt. The defence does not have any onus to disprove the offence, but may call evidence in defence.

The actus reus or physical acts are communication of the statements, other than in private conversation. The mens rea or mental element of “wilfully” means with the intention of promoting hatred. “Wilfully” includes willfull blindness (ignoring the obvious). “Promotes” means actively supports or instigates and requires more than mere encouragement. “Hatred” connotes emotions of an intense and extreme nature that is clearly associated with vilification and detestation. Only the most intense forms of dislike fall within the ambit of this offence.

The offence does not require proof that the communication actually caused actual hatred. In determining whether the communication expressed hatred, you must consider the understanding of a reasonable person in context. Decision Tree If we use a decision tree for deciding whether to acquit (find not guilty) or convict (find guilty), it might look like this: 1. Did Travis Patron communicate the statements in question? - if no, then acquit; if yes, then continue analysis 2.

Did Travis Patron communicate the statements other than in private conversation (ie. to general public)? - if no, then acquit; if yes, then continue analysis 3. Did Travis Patron communicate the statements during the times and at the place stated in the charge (between June 29, 2019 and December 21, 2020 at or near Redvers, Saskatchewan)? - if no, then acquit; if yes, then continue analysis 4. Does the content of the statements promote hatred against an identifiable group, being Jews? - if no, then acquit; if yes, then continue analysis 5.

Did Travis Patron make the statements willfully, that is with the intention of promoting hatred or not caring whether they promoted hatred? - if no, then acquit (not guilty); if yes, then convict (find guilty). Any questions? SELF-REPRESENTATION - confirm Mr. Patron’s continued intention to represent himself at trial RE-ELECTION? Note: Re-election to judge-alone trial requires consent of Crown PRE-TRIAL APPLICATIONS • Crown application under ss. 714.1 and 714.2 of the Criminal Code to have witness Michal Schlesinger testify by

videoconferencing technology (to be heard September 9, 2022) • confirm no other applications by Crown or accused CROWN ISSUES 1. Theory of the Crown 2. Expert reports? 3. Witness List: i. Cst. Zaya, RCMP ii. Chad Salisbury RCMP FDiv (testifying by video) iii. Derek Penslar (testifying by video) iv. Michal Schlesinger (request to testify by video) 4. Any other issues Crown wishes to raise. DEFENCE ISSUES 1. Witnesses - need for subpoena? 2. Any issues defence wishes to raise COVID-19 1. Chief Justice Directives available at sasklawcourts.ca/home/covid-19-updates 2.

Jury selection and trial will be held in the Estevan Courthouse 3. Masking & social distances - masking inside courtroom during trial, except when talking, provided socially distanced (six feet) 4. Witnesses - may remove mask when in witness box - any known health issues that may affect ability to testify? - any required accommodations? - break between each witness to allow jury box to be cleaned 5. What if someone becomes ill? (Accused, lawyers, judge, court staff, juror, witness) - may require interruption of trial, mistrial or re-scheduling JURY 1.

Jury list - Jury List to be kept confidential and not to be shared 2. Jury Roll Call – necessary, since checked in upon entry? 3. Number of Jurors - 12 (may select 2 alternates and/or 2 additionals) - minimum of 10 required to reach verdict (must be unanimous) 6. Exclusion of non-vaccinated persons from jury

- R v Morales , 2021 SKQB 269 (McCreary J. as she then was) and R v C.D . , 2021 SKQB 268 (Popescul C.J.Q.B.) , relying upon s. 632 (

b) of the Criminal Code 4. Preliminary screening of jurors - judge will review reasons for disqualification during opening address to jury pool - selected jurors (drawn by number) will be called forward and asked whether any reason they cannot serve - Judge will also ask whether willing to state vaccination status and, if so, whether fully vaccinated (at least two vaccinations); if not vaccinated or not willing to disclose, will be released - recorded, but not amplified to avoid contaminating jury pool - release or stand aside (in case needed, after pool exhausted)? 5.

Challenges - no peremptory challenges (without cause) since election date after September 19, 2019 Criminal Code amendments - no application for with cause challenge 6. Dismissal of jurors not on panel - alternates released before jury retires to deliberate - additionals released before trial commences 7. Judge’s instructions to jurors - Model Instructions: National Justice Institute - no model for explanation of this offence TRIAL 1.

Length of Trial: two weeks - agree sufficient time? - anticipate Crown evidence completed week one (three days), with review of final charge following week, following by recall of jury for jury addresses and final charge - Mr. Patron will be called upon at close of Crown case on whether he wishes to call evidence in defence (no obligation to do so) 2. Jury selection Monday morning 3. Hours of sitting: 10:00 a.m. - 12:30 p.m. and 2:00 p.m. – 4:30 p.m. (may vary) - mid-morning break around 11:00 a.m. and mid-afternoon break around 3:00 p.m. 4.

Daily check-in at start and end of day - check whether trial on track and opportunity for parties to raise concerns 5. Objections - stand to be recognized and then allow jury to leave before stating nature of objection 6. Defence opening (if calling evidence) 7. Defence calling evidence (optional) 8. Order of addresses to jury - s. 651: Crown goes last, unless accused calls no evidence CHARGE TO THE JURY 1. Timing of Charge conference - after conclusion of all evidence - purpose to review draft of Judge’s Final Charge

- preferable to give Judge’s Final Charge in morning 2. Judge’s expectations of parties - to be provided by end of day following end of evidence; review of draft charge on following sitting day Crown: - provide theory of prosecution in writing after close of defence or when defence decides not to call evidence - provide

summary of evidence (facts) relied upon by Crown Defence: - provide theory of defence in writing, including specific defence issues, in writing at conclusion of evidence, so can be considered in preparing charge - provide

summary of relevant evidence in point form (facts relied upon by the defence) LEGAL ISSUES LIKELY TO ARISE AT TRIAL ? CONTACT NUMBER - Crown to provide contact number to Local Registrar and get her cell number FINALLY Are you ready to proceed? - Crown - Defence