This week’s top three summaries: R v Zamer, 2024 ONSC 4884: #challenge for cause, R v DAD, 2024 YKCA 9: min sentence #overturned, and R v Chartrand, 2024 BCCA 355: Browne v Dunn
R v Zamer #5, 2024 ONSC 4884
[September 13, 2024] Challenge for Cause Process: Jury Questionnaire and Priming [Molloy J.]
AUTHOR’S NOTE: This case offers valuable insight into effective practices for jury selection questionnaires, emphasizing open-ended and interactive questioning to uncover and address potential biases. Justice Molloy critiques traditional methods, such as the R v Parks question and standard multiple-choice formats, suggesting that these approaches often fail to yield substantive insights. The case highlights a two-stage approach: first, priming the jury pool by introducing the topics they’ll be questioned on during the challenge-for-cause stage, and then employing conversational engagement between the judge and potential jurors. This latter part allows for deeper exploration of each juror’s responses to ensure they fully understand the questions and can reflect on potential biases.
The structured yet dialogic approach not only provides a clearer understanding of jurors’ perspectives but also aligns with social science findings that discussing and vocalizing biases can help individuals recognize and control these tendencies in their decision-making. Research indicates that identifying biases upfront prepares jurors to monitor these influences, ultimately promoting fairer deliberations.
Justice Molloy’s approach offers a model for counsel and courts to consider, aiming to go beyond superficial questions and create a process that fosters thoughtful, impartial participation. This case serves as a practical guide, complete with a questionnaire exemplar, for those seeking to improve jury selection methods by ensuring that bias is effectively identified and managed, thereby enhancing the integrity of jury trials.
Introduction
[1] Umar Zameer was charged with first degree murder in relation to the death of DC Jeffrey Northrup on July 2, 2021. The Crown alleged that Mr. Zameer deliberately ran over the officer with his car in the underground parking garage beneath City Hall in Toronto. His trial was scheduled to commence before a jury on March 18, 2024.
Categories of Challenge for Cause
[5] Crown counsel and defence counsel submitted that there should be three categories of challenge for cause in the jury selection process: (1) publicity; (2) race, colour, ethnicity, and religion of the accused; and (3) connections to, and opinions and beliefs about police officers.
[6] The accused is a brown, South Asian man and a Muslim. The deceased was a white police officer alleged to have been engaged in the execution of his duties at the time he was killed. He had been involved with other officers in the investigation of a stabbing that had occurred nearby a short time before plainclothes officers approached Mr. Zameer in the underground parking.
[7] The incident was the subject of intense media coverage at the time it occurred. A press release was published by the Toronto Police Service setting out their belief as to what had occurred. There had also been media coverage of the decision granting bail to Mr. Zameer, including negative comments condemning the decision by prominent figures, including the Premier and the Mayor of Toronto. A screening for potential jurors who may have been affected by news coverage was essential.
[8] It is undeniable that persons of colour and Muslims can be the subject of prejudice and stereotyping by people in our community. A challenge for cause based on race, colour, and creed was also mandatory to ensure the protection of the accused’s right to a fair trial in this case: R. v. Parks (1993), 15 O.R. (3d) 324 (C.A.); R. v. Ahmad et al., 2010 ONSC 256; R. v. Chouhan, 2021 SCC 26.
[9] Given the identity of the deceased and the fact that he was engaged in his duties as a police officer at the time he died, there was good reason to be concerned that preconceptions about police officers could have an impact, both positive and negative, on the ability of a juror to be impartial. There could also be a perception that individuals closely connected to police officers would not be impartial. I therefore accepted that this also should be a basis for challenging the impartiality of prospective jurors.
[10] Accordingly, I permitted challenges for cause under all three proposed categories. As I have already stated, both the Crown and defence agreed that inquiries should be made in those three areas.
Procedure Followed
[11] I agree with the submissions of defence counsel that straight “yes” or “no” answers to the standard Parks challenge for cause are not an effective way to explore whether a prospective juror might harbour biases or prejudices that could affect their ability to be impartial. I also agree that it is far better for there to be a degree of introspection before the prospective juror provides an answer to a challenge for cause question. It is preferable for each prospective juror to give some thought to the nature of the questions, why they are being asked, and the appropriate and honest response.
[12] In my view, there is no reliable information obtained by popping a challenge for cause question at a juror and having them answer it on the spot without time for consideration. What might appear to be discomfort in answering the question might simply be surprise about the subject matter or about why they are being asked these questions. In the past, when triers of fact were required to determine challenge for cause issues based on one question and typically a monosyllabic response, any hesitation by the prospective juror often resulted in that person being rejected. This makes no allowance for the juror giving careful thought to the question before blurting out the politically correct response. I believe that a careful answer after some reflection is more likely to be a reliable indicator of the person’s commitment to being impartial. I therefore consider it important that all prospective jurors be told in advance about any challenge for cause, the nature of the questions they will be asked, and the underlying rationale for such an inquiry. I want each prospective juror to think about these issues before I talk to them about it. I believe this approach is consistent with the Supreme Court of Canada’s decision in Chouhan. In this regard, I agree with and adopt the reasoning of Code J. in R. v. Stanley #2, 2021 ONSC 6110, at paras. 24- 25.
[13] Particularly for long jury trials, and even for some standard length trials, it is now common practice in this jurisdiction to provide the prospective jurors with a questionnaire to complete before they are individually brought into the courtroom for a determination as to whether they will be selected as a juror in the case…
….I prepared a questionnaire in this case, which was distributed to all members of the jury panel. The initial questions addressed basic qualifications to be a juror. I also included questions about language, hearing or vision issues, and any health issues that might need to be addressed or that might make it difficult for this person to serve on the jury. A list of the participants and possible witnesses in the trial was provided and the prospective jurors were asked if they knew any of the people listed. The questionnaire did not include any of the challenge for cause questions. A copy of the questionnaire I used in this case is attached as Schedule A.
[14] I also asked a question about whether the prospective juror or someone they knew had previously been accused of, or been a victim of, murder or a similar offence of violence and, if so, asked for a brief explanation. This is not strictly speaking a challenge for cause type of question, nor is it directly a question about personal hardship. However, it has been my experience after nearly three decades as a trial judge that serving on a jury can be a difficult emotional experience for some people, particularly when they have had some incident of trauma in their past that the facts of the particular case might bring back to them. This can interfere with their ability to be impartial and also can cause undue stress. I have had potential jurors make deeply personal disclosures in their written responses to this written question, which I expect they would have difficulty raising orally in an open courtroom. I will sometimes ask them questions about what they have written without disclosing its substance publicly and may excuse them if I believe they would have difficulty making a decision unaffected by their trauma….
[15] I ended the questionnaire with a question about whether the prospective juror would experience undue hardship if selected to serve on this jury and provided ample room to give particulars.
[17] My opening statement to the panel of potential jurors in this case included those standard instructions. I also told the panel what procedure we would follow, and told them that I would review with them their completed questionnaire and any issues raised, including the undue hardship questions. I also explained the challenge for cause process and its connection to determining whether they could be impartial in this case, as follows:
63. Once I have decided that there is no reason to excuse a prospective juror because of hardship or for any other reason, we will proceed to the next stage of the selection process. In this stage of the process, each of you, when it is your turn, will remain in the witness box, take an oath or make an affirmation to tell the truth, and I will ask you some additional questions that are designed to ensure that we choose an impartial jury. Let me explain the purpose of this exercise.
64. I have already mentioned to you that the proper administration of justice requires jurors to approach their task with an open mind. They must decide cases in an unbiased and impartial manner. They must be fair. For this reason, jurors are asked to swear an oath or make an affirmation to give a true verdict based on the evidence. That is why jurors cannot have a personal interest in the case they are deciding and cannot have a close relationship with any of the parties.
65. This case raises the possibility that some jurors may have difficulty approaching their task with an open mind because they have been exposed to publicity around this case. If a potential juror has read or seen information about the case in the media or discussed the case with others, the juror may have already formed views about the case. If the juror has formed opinions about the case, the juror must be able to set aside any opinions that they have formed and to decide the case only on the evidence.
66. This case also raises the possibility that some jurors may have difficulty approaching their task with an open mind because of biases, prejudices or stereotypes in respect to one or more of the participants in this case, including, in particular, the accused, Mr. Zameer (who is brown, originally from Pakistan, and a Muslim), and the deceased, Constable Northrup (who was a white police officer).
67. At some level, we all make assumptions and have beliefs, perceptions, and stereotypes about certain things or certain types of persons. These assumptions, beliefs, perceptions, and stereotypes are often based on personal characteristics. I will refer to them simply as negative feelings and assumptions. Sometimes we are aware of these negative feelings and assumptions in ourselves or in others. However, there are other negative feelings and assumptions based on personal characteristics that are unconscious ones. We may have them without being fully aware of them.
68. Our negative feelings and assumptions about personal characteristics, whether we are aware of them or not, can affect how we believe or disbelieve things we see or are told, or how we react to those things.
69. If you are chosen as a juror in this case, you will have to make a conscious effort to resist, and to help other jurors to resist, jumping to conclusions based on negative feelings or assumptions about such characteristics. Our system of justice is premised on the belief that once you recognize a negative feeling or assumption, you can and will set it aside. Your sworn duty as a juror will be to decide this case with an open mind based only on an impartial assessment of the evidence received in the courtroom.
70. For this reason, as I mentioned, when I speak to you one at a time, in addition to discussing things like citizenship, hearing, language, health, and hardship with potential jurors, I am also going to also ask each juror whose number is called a few questions about exposure to publicity and about the possibility that negative feelings or assumptions could affect the juror’s ability to judge the evidence and decide the case fairly and impartially. This will relate to personal characteristics of Mr. Zameer as well as to personal characteristics of Constable Northrup. I will be asking the questions to help us select a jury that will be truly impartial. I am going to make these inquiries of every potential juror. No one is being singled out. Each juror will be asked the same questions. The questions are not intended to pry into your privacy. You will not be grilled or cross-examined. I will simply ask you some questions.
72. At the conclusion of the questioning, I will decide whether the potential juror is qualified to sit on the jury. If I decide a potential juror is qualified, that juror will then be sworn or affirmed by the registrar and will sit as a juror on this case. After a juror is sworn or affirmed, the juror will be taken from the courtroom and will be given instructions on when and where to return for the start of the trial.
73. At the start of the trial when all of the selected jury members are present, those jurors will be brought into the courtroom, and I will give them some additional instructions.
[18] After dividing the panel into groups, I proceeded to bring the potential jurors into the courtroom one at a time. I reviewed everything on their questionnaire with them and excused those persons for whom I was satisfied that serving on this jury would be an undue burden, usually because of financial hardship or health reasons. I believe there was nothing controversial about any of the decisions I made on those issues. With each person, after completing the review of the questionnaire, I proceeded to the challenge for cause questions.
[19] In the immediate aftermath of Chouhan, there was not complete unanimity about who should ask the challenge for cause questions. In my view, it is best for the trial judge to do that, particularly as it is the trial judge who must make the decision. I find that the process often evolves into more of a discussion than an interrogation, which has a much better chance of getting to the person’s real views on the issues. Again, I agree with the reasoning of Code J. in Stanley #2, at paras. 22-23. Although this is anecdotal, I believe the practice of the trial judge asking the questions is now widely accepted. There was no objection to that procedure in this trial.
Format of the Questions
[24] There is both an attitudinal and behavioural aspect to whether a juror can be impartial. The issue to be determined on a challenge for cause is not whether a person has an attitude based on a prejudicial bias or stereotype, but whether that person would set aside preconceived ideas or beliefs and make a decision based solely on the evidence, without regard to such prejudiced thinking. There is a solid line of authority for not permitting questions that are inquisitorial in nature and are based only on the attitudinal aspect of partiality: see R. v. Stanley #1, 2020 ONSC 6876, at paras. 26, 34, 37, 41-42, and 47-48 and the cases referred to therein.
[25] I consider it to be improper to ask prospective jurors, in an isolated manner, what their opinion is as to the criminal propensities of particular racial and religious groups. That is an inquisitorial and intrusive way of going about the task. Further, it does not yield useful information. There are complicated sociological and philosophical aspects to the question. Is it simply based on statistics, or does it presume some kind of inherited proclivity or something driven by religious beliefs? That is unclear. What does “certain types” of violent offences mean? Does it refer to assault with a particular kind of weapon? Or assault against women? Or hate crimes? Or gang-related offences? The question is ambiguous. Therefore, any answer to the question is also ambiguous, particularly when it must be chosen from a scripted multiple-choice set of answers.
[26] For these reasons, I refused to ask these questions. The fact that the proposal was to require jurors to answer this complex question by choosing a multiple-choice answer exacerbates the problem. It is simply too complex a question to require someone to answer in that forced manner.
[29] I agree completely with the submission that the traditional Parks question did little if anything to get at issues of bias and prejudice. I also agree that a simple “yes” or “no” answer is often not sufficient to address these concerns. However, all of the case law prior to Chouhan that permitted multiple-choice questions must be re-evaluated under the new system of conducting a challenge for cause. This will largely be up to individual trial judges. However, my own practice is to have a list of set questions, but to not be stuck with only those questions. Those fixed questions are the starting point. I make it clear to the person that they are not required to answer with a simple “yes” or “no”. I will often ask follow-up questions. Sometimes I will ask why a person has answered in a particular way, or ask them to elaborate on their answer. If I sense confusion or hesitation, I will inquire as to why. As I said already, it becomes more of a conversation than an interrogation. It is also often informed by discussions I had with the juror about other items on their questionnaire, such as the nature of their work and the kinds of judgment calls and decision-making that might be required. I am careful not to be intrusive into personal matters. However, I am strongly of the opinion that I get better information than I would receive if the person was required to pick one of four pre-formulated responses. I am the person charged with ensuring an impartial jury. I take that responsibility seriously. I find this manner of proceeding assists in making that determination better than multiple-choice answers. Therefore, I decided to proceed with more open-ended questions.
[31] Attached as Schedule B is the list of the fixed questions I asked each of the prospective jurors. During the challenge for cause process, I asked each of these questions, but also asked many follow-up questions depending on the answers given to the set questions.
Challenges to Particular Potential Jurors
[33] The potential juror objected to by the Crown gave unusual answers to some of the questions. However, I considered them to be intelligent and thoughtful responses. When initially asked whether his ability to judge the evidence in this case would be affected by the race, colour, ethnic origin, or religion of the accused, his response was that he thought it might be affected. This might initially seem like he would be affected by prejudice. However, when I asked him to clarify, he explained that the race and ethnic background of a person might cause them to react in a different way from a white male and that this might be a relevant thing to consider. I consider this answer to show that this prospective juror is sensitive to issues of race, colour, and religion, but in an open-minded way, as opposed to showing biased or prejudiced thinking. Indeed, there were issues before the jury that required them to take into account how a reasonable person in the circumstances of this particular accused would act. This is precisely what this potential juror was already considering might be relevant to take into account. When asked about unconscious biases,he responded quite reasonably that if it was a subconscious bias he would not know whether he had it, but he agreed he would keep the possibility in his mind when deciding the case. He also discussed working with geriatric groups with dementia and being aware of biases coming to the surface that might once have been unconscious. I found this juror to be sensitive, fair, insightful, and exceptionally well suited to be a juror…
[34] One of the potential jurors disclosed that she had two close family members who were police officers, one who was retired and the other who is still a serving member of the Toronto Police Service. Notwithstanding this, this potential juror maintained that these connections would not interfere with her ability to judge the case fairly and impartially. With respect to one family member, she explained that they were estranged so there could be no impact. With respect to the other family member, she acknowledged having a close relationship but was very clear that this would have no impact. She explained that this was simply not logical. She said she was raised in a family with military connections and a keen sense of duty was part of her upbringing. As a juror, she would have a sworn duty to make a decision fairly and based only on the evidence, and the fact that she had a family member in the police force could not logically have any impact on that decision. Further, she said that the relative who was a police officer would feel the same way. That person would know she was just doing her job as a juror. Notwithstanding the objection of the defence that these connections were simply too close, I found this potential juror to be impressive in her candour and honesty. I also could not fault her logic. I believed her when she said she would do her duty and make a decision based solely on the evidence. I accepted her as a juror….
SCHEDULE A
SUPERIOR COURT OF JUSTICE
R. v. UMAR ZAMEER – JUROR QUESTIONNAIRE
PLEASE FILL OUT THE FOLLOWING QUESTIONNAIRE AND BRING IT WITH YOU WHEN YOU RETURN. THE TRIAL JUDGE WILL REVIEW IT WITH YOU THEN.
(Please print or circle or check your answers legibly)
1. NAME: ___________________________________________________________________
2. JUROR NUMBER (ON SUMMONS): ____________________________________________
3. DATE OF BIRTH – DAY: MONTH: YEAR:
4. ARE YOU A CANADIAN CITIZEN? YES NO
5. DO YOU LIVE IN ONTARIO? YES NO
6. DOES YOUR EMPLOYMENT DISQUALIFY YOU FROM BEING ON THE JURY (FIREFIGHTER, LAW ENFORCEMENT, LAWYER OR LAW STUDENT, DOCTOR OR VETERINARIAN)? YES NO
7. HAVE YOU EVER BEEN CONVICTED OF AN INDICTABLE (SERIOUS) CRIMINAL OFFENCE FOR WHICH YOU HAVE NOT RECEIVED A PARDON? YES NO
8. DO YOU HAVE DIFFICULTY UNDERSTANDING SPOKEN ENGLISH? YES NO
9. DO YOU HAVE DIFFICULTY READING ENGLISH? YES NO
10. DO YOU HAVE A PROBLEM WITH YOUR HEARING THAT WOULD MAKE IT DIFFICULT FOR YOU TO SERVE AS A JUROR? YES NO
11. DO YOU HAVE ANY PROBLEM WITH YOUR VISION THAT WOULD MAKE IT DIFFICULT FOR YOU TO SERVE AS A JUROR? YES NO
12. DO YOU SUFFER FROM OR ARE YOU BEING TREATED FOR ANY CONDITION THAT WOULD MAKE IT DIFFICULT FOR YOU TO SERVE AS A JUROR? IF YES, PLEASE BRIEFLY EXPLAIN: YES NO
____________________________________________________
____________________________________________________
__________________________________________________
13. HAVE YOU ATTENDED COURT IN RESPONSE TO A JURY SUMMONS IN THE LAST THREE YEARS? YES NO
14. HAVE YOU OR SOMEONE YOU KNOW EVER BEEN ACCUSED OF OR BEEN A VICTIM OF A MURDER OR SIMILAR OFFENCE OF VIOLENCE? IF YES PLEASE BRIEFLY EXPLAIN: YES NO
____________________________________________________
____________________________________________________
15. DO YOU KNOW ANY OF THE FOLLOWING PERSONS? (IF YES, CIRCLE THE PERSON OR PEOPLE YOU KNOW AND PROVIDE A BRIEF EXPLANATION) YES NO
TRIAL JUDGE: ANNE MOLLOY
CROWN COUNSEL: MICHAEL CANTLON AND KAREN SIMONE
DEFENCE COUNSEL: NADER HASAN AND ALEXANDRA HEINE
ACCUSED PERSON: UMAR ZAMEER
A POTENTIAL WITNESS: (see attached list)
____________________________________________________
____________________________________________________
____________________________________________________
16. THIS TRIAL WILL TAKE APPROXIMATELY 5 WEEKS TO COMPLETE. WOULD SERVING AS A JUROR FOR 5 WEEKS CAUSE A SUBSTANTIAL HARDSHIP FOR YOU BY INTERFERING SIGNIFICANTLY WITH YOUR BUSINESS, EMPLOYMENT, FINANCIAL, MEDICAL, FAMILY OR OTHER OBLIGATIONS? IF YES PLEASE BRIEFLY EXPLAIN:
____________________________________________________
____________________________________________________
____________________________________________________
SCHEDULE B
R. v. UMAR ZAMEER
CHALLENGE FOR CAUSE QUESTIONS
You will recall that I instructed you earlier about this final stage of jury selection that relates to ensuring that each juror is able to be fair and unbiased in their assessment of the evidence. I will be asking you a series of questions that relate to that topic. Please listen carefully to my questions and be sure you understand them. You can ask me to repeat or clarify anything you are unsure about. You must answer these questions truthfully. These questions are directed to ensuring that you are able to make a decision in this case that is fair and impartial and based solely on the evidence at trial and the instructions I provide to you.
PUBLICITY
I am going to start by asking you questions about publicity. The deceased in this case, Constable Jeffrey Northrup, was a police officer. Just after midnight on July 2, 2019, he was run over by a car in the underground parking garage beneath Nathan Phillips Square, and he died from his injuries. Mr. Umar Zameer has been charged with first degree murder in relation to that death.
1. Have you heard, read or seen anything about this case in any form of media for example, newspaper, radio, internet, or on television or through discussions with others with respect to this case, Constable Jeffrey Northrup, or Mr. Umar Zameer?
2. (If answered yes to 1) Based on the information you received about this case or any person involved in this case, have you formed an opinion about the guilt or innocence of Umar Zameer?
3. (If answered yes to 2) Would you be able to set that opinion aside and decide this case based solely on the evidence at trial and the instructions of the trial judge?
POLICE OFFICER
1. Are you related or connected to any member of a police force, whether through employment, social relationship or otherwise? (if yes… describe)
2. (If yes to 1) Would your relationship or connection with any member of a police force cause you to be hesitant about your ability to decide this case based only on the evidence that you see and hear in this courtroom, and the instructions of the trial judge?
3. Reflect on whether you have any strong opinions or beliefs regarding police officers. Would you be able to set aside those beliefs or opinions and decide this case based solely on the evidence at trial and the instructions of the trial judge?
PERSONAL CHARACTERISTICS
As I have previously instructed you, in deciding whether or not the prosecution has proved a charge against an accused person, a juror must judge the evidence at trial in an impartial way, without bias or prejudice. Bias may be based on attitudes or stereotypes related to personal characteristics of certain persons or groups. They may be very commonly held views. You may not even be aware of the attitudes or biases you have. All prospective jurors bring their own beliefs, assumptions, and perceptions to the courtroom.
As a result of attitudes that some people have grown up with, or experiences they have had, it may be more difficult for them to judge the evidence of a witness impartially, without bias or prejudice or free from any stereotypical attitudes. For example, some people believe that certain racial, religious or ethnic groups are more prone to violence than others.
In this case, the person charged is a brown, South Asian man, and is a Muslim. The deceased is a white police officer. Listen carefully, and take your time answering.
1. Thinking about your own beliefs, might your ability to judge the evidence in this case be affected at all by the fact by the race, colour, ethnic origin, or religion of the accused?
2. If you are chosen to be a member of the jury in this case, will you remain mindful of the possibility that you may have unconscious biases, and will you make efforts to identify such biases, to set them aside, and decide the case fairly and objectively?
R v DAD, 2024 YKCA 9
[August 12, 2024] Charter s.12 Cruel and Unusual: Min Sentence under s.153 Sexual Exploitation – Summary Conviction [Reasons by Fenlon J.A. with Groberman and Cooper JJ.A. concurring]
AUTHOR’S NOTE: This decision overturns the minimum imprisonment for summary conviction sexual exploitation by utilizing a reasonable hypothetical to illustrate how mandatory minimums can impose unfair constraints on judicial discretion. The court underscores that mandatory minimum sentences often inhibit judges from applying a sentence proportionate to the unique circumstances of each case. This approach aligns with a broader trend in case law, which seeks to mitigate the rigid impact of mandatory minimums that may conflict with principles of restraint and individualized sentencing—central tenets of Canada’s sentencing framework.
The case serves as a reminder of the value of reasonable hypotheticals as a legal tool in constitutional challenges. By envisioning scenarios where the minimum sentence would clearly produce an unjust outcome, courts can effectively demonstrate the necessity of allowing judges flexibility to account for mitigating factors, the offender’s background, and the context of the offense. Such hypotheticals can reveal potential injustices that mandatory minimums might create across various situations, highlighting how these rigid provisions can obstruct just and proportional sentencing.
Overall, this decision reinforces the argument that mandatory minimums can conflict with the principle of restraint and the fundamental principles of fairness in sentencing.
[1] Before the Court are two appeals which raise a common issue: whether a 90- day mandatory minimum sentence for the summary conviction offences of sexual interference and sexual exploitation constitutes cruel and unusual punishment in breach of s. 12 of the Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter].
Background
Sexual Exploitation: R. v. G.K.
[2] G.K. was the director of a village recreation centre in a small community located approximately two hours from Whitehorse. In the summer of 2018, he hired K.B. as a youth program coordinator; he was her supervisor. G.K. was 59 years old and K.B. was 17.
[3] On August 8, 2018, G.K. encountered K.B. in the kitchen of the recreation centre. When G.K. asked about her day, K.B. told him she had recently broken up with her boyfriend. In response G.K. questioned her about her sex life. She did not know what to say except that it was “okay”. G.K. then approached her from behind, rubbing her stomach with his hand and kissing her neck twice, before leaving. K.B. became upset and went outside to have a cigarette. Soon after, G.K. joined her and suggested he had gotten her “all hot and bothered.” The conversation changed when a mother and child approached. The two returned to the recreation centre but went to different locations.
[4] K.B. did not feel right about what had happened and went to G.K.’s office to tell him she would like the rest of the day off. G.K. asked K.B. to talk with him upstairs, where they went to a storage room. G.K. closed the door and told K.B. to let him know if she wanted to have sex. He said not to tell anyone, including his wife. K.B. did not know how to respond and said that she would think about it. He hugged K.B. and kissed her on the neck twice. She left the building shortly afterwards.
[9] On sentencing in Territorial Court, G.K. challenged the mandatory minimum sentence of a 90-day jail term. He contended the mandatory minimum violated s. 12 of the Charter which guarantees that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”. G.K. conceded that the mandatory minimum penalty would not be a grossly disproportionate punishment for him, given the circumstances of the offence. He relied instead on three hypothetical scenarios.
[10] The sentencing judge concluded that 90 days in jail would be a grossly disproportionate punishment for the hypothetical offenders described in the scenarios. Having determined the mandatory minimum was invalid, he imposed a six-month conditional sentence followed by two years of probation, and ancillary orders.
The Analytical Framework for Assessing Gross Disproportionality
[26] Assessing whether a mandatory minimum sentence violates s. 12 of the Charter requires the court to conduct a two-stage inquiry:
1. Determine what constitutes a fit and proportionate sentence having regard to the objectives and principles of sentencing in the Code.
2. Consider whether the impugned provision requires imposition of a sentence that is grossly disproportionate to the fit and proportionate sentence.
The assessment may proceed on the basis of either the actual offender before the Court or another hypothetical offender in a reasonably foreseeable case: R. v. Bissonnette, 2022 SCC 23 at para. 63;R. v. Nur, 2015 SCC 15 at para. 77.
[27] In R. v. Hills, 2023 SCC 2, and the companion case R. v. Hilbach, 2023 SCC 3, the Supreme Court of Canada identified three specific components to be considered at the second stage of the analysis. The components are intended to simplify and focus this part of the assessment: Hills at para. 122. They are:
1. The scope and reach of the offence (since mandatory minimum sentences for wide-ranging offences are more vulnerable to challenge);
2. The effects of the penalty on the offender; and
3. The penalty, including the balance struck by its objectives (i.e., does it exceed what is necessary to achieve those objectives and does it exclude any aims of sentencing, such as rehabilitation).
[30] With these general principles and the framework squarely before us, I turn now to the particular issues raised by the Crown on these appeals.
1. Did the appeal judge rely on unreasonable hypotheticals?
(a) Sexual Exploitation: R. v. G.K.
[31] In addressing G.K.’s constitutional challenge, the appeal judge relied on the following hypothetical. A 23-year-old student teacher who has a university degree in mathematics is doing a practicum at the victim’s school. She agrees to tutor the 17- year-old victim, who is not in her class. The teacher suffers from a serious mental health issue, and while in mental distress, kisses the student on the lips. The teacher pleads guilty, is remorseful, and at low risk to reoffend. Imprisonment would have a negative impact on treatment she is undergoing. The victim impact statement indicates that the student has overcome the incident.
[33] I would not accede to this submission. The hypothetical relied on by the appeal judge is very similar to the scenario used by the Nova Scotia Court of Appeal in R. v. Hood, 2018 NSCA 18:
The offender was a first year teacher in her 20s with bipolar disorder; the offender texted a 17-year-old student about a school assignment; they met and the offender sexually touched the student; the offender was experiencing a manic episode at the time; and this is the only sexual contact between the offender and the victim.
The Nova Scotia Court of Appeal crafted this hypothetical (with minor variations) to capture the offences of sexual exploitation, sexual interference, and child luring, all of which had one-year mandatory minimum sentences where the Crown proceeded by indictment: Hood at paras. 143–148, 151.
[34] The Supreme Court of Canada endorsed this hypothetical as reasonable, not far-fetched, and within the scope of the offence of luring in R. v. Bertrand Marchand, 2023 SCC 26 at para. 118. Courts of Appeal in British Columbia, Manitoba and Ontario have also endorsed the Hood hypothetical:R. v. JED, 2018 MBCA 123; R. v. Scofield, 2019 BCCA 3; R. v. B.J.T., 2019 ONCA 694.
(b) Sexual Interference: R. v. D.A.D
[38] In the second appeal, the judge relied on a hypothetical scenario in which a young adult with intellectual disabilities, significant Gladue factors, or both, touches the victim once on the thigh or buttocks, and the victim states they have suffered minimal or no harm. Again, the Crown contends this is an unreasonable scenario because it denies the harm inherent in sexual touching of children, and does not establish a necessary element of the offence since it is not clear that the touching was for a sexual purpose.
[39] In my view the judge did not err in concluding that the hypothetical proposed by D.A.D. was a reasonable one. I have already addressed the first objection and will not repeat that analysis here. As for the argument that a brief, single, and isolated act of touching may not be sufficient to prove intent to touch for a sexual purpose, I need only turn to R. v. Gargan, 2023 NWTCA 5, the case upon which the hypothetical is based.
[44] The remaining grounds of appeal relate to the second stage of the framework: assessing whether the mandatory minimum penalties are grossly disproportionate to the sentences that would be imposed if the sentencing judge’s discretion were not legislatively constrained. Each ground focuses on one of the three components identified by the Supreme Court of Canada in Hills as relevant to the second stage of the assessment. The Crown makes common submissions on these grounds in each of the two appeals, so it is convenient to address them together.
2. Did the appeal judge overstate the scope and reach of the offences?
[47] In my respectful view, the Crown’s description of these offences as encompassing a narrow range of conduct is contrary to the jurisprudence. Sexual interference was described by the Supreme Court of Canada in Friesen as a “broadly defined” offence that encompasses a “wide spectrum of conduct”: at para. 91. In R. v. Scofield, 2019 BCCA 3, the British Columbia Court of Appeal described the offence in the same terms: at paras. 77–78. This Court determined in E.O. that the offence of sexual exploitation is sufficiently broad in scope for an associated mandatory minimum to be constitutionally vulnerable: at para. 53. The Court therefore struck down the one-year mandatory minimum sentence applicable to sexual exploitation where the Crown proceeds by indictment.
3. & 4. Did the appeal judge fail to consider the effects of the penalties on the hypothetical offenders or the objectives of the legislature?
[48] The last two grounds of appeal can be addressed together.
[54] It is evident that the judge did not have the benefit of the expanded gross disproportionality analysis in Hills, and accordingly did not express her reasons in terms of the components of the “effect on the offender” and “objectives of Parliament” at stage two of the framework. However, the majority in Hills does not insist on adherence to “a rigid test or fixed set of factors”: at para. 147. The expanded framework is merely intended to assist judges in the task before them.
[55] In any event, I do not agree that the absence of an express reference to the components of the analysis means the judge failed to consider them. The expanded framework did not change the fundamental normative analysis; it simply made express what has always and necessarily been part of the assessment.
[56] It is in my view not possible for a judge to address gross disproportionality without considering the effect of a mandatory minimum on the offender in comparison to what would otherwise be considered a fit sentence; that comparison lies at the heart of the analysis. The comparison requires a judge to consider not only the nature of the penalty—incarceration versus a fine, solitary confinement versus retention in the general prison population, and so on—but also the length of any period of incarceration. A judge need not spell out their understanding that a longer sentence is more punitive; a judge is taken to understand that the longer someone is deprived of their liberty, the more onerous is the effect on the offender and their families, and the greater is the economic impact.
[57] As for the absence of express reference to the objectives of Parliament, I am again of the view that this step is necessarily inherent in any consideration of the constitutionality of a mandatory minimum. The assessment cannot be done in a vacuum, but is rather conducted in the context of the particular offence and the awareness that Parliament has deemed it to be of sufficient gravity and concern to warrant a mandatory penalty.
Conclusion
[60] In general, incarceration should be imposed for sexual offences involving children, and conditional sentences served in the community will not suffice: R. v. Hagen, 2021 BCCA 208 at paras. 41–42; R. v. M.S., 2003 SKCA 33 at para. 11; R.v. Paradee, 2013 ABCA 41 at paras. 15–16; and R. v. J.A.G., 2008 MBCA 55 at para. 23. But there are exceptions to this general rule; in rare cases involving sexual offences against children, a non-carceral sentence may be appropriate: Bertrand Marchand at paras. 130, 133; Scofield at para. 70. It is in relation to those exceptional cases that a mandatory period of incarceration of 90 days will be grossly disproportionate.
[61] I conclude that the Crown has not established material error in the appeal judge’s determination that the 90-day mandatory minimum sentences for the summary offences of sexual exploitation and sexual interference breach s. 12 of the Charter.
Disposition
[62] I would dismiss both appeals.
R v Chartrand, 2024 BCCA 355
[October 16, 2024] Browne and Dunn: Cannot Arise in Judicial Reasons for the First Time in a Court Record [Reasons by Dewitt-Van Oosten J.A. with Winteringham and Donegan JJ.A. concurring]
AUTHOR’S NOTE: The Browne v Dunn principle establishes that, for reasons of trial fairness, a cross-examiner must confront a witness with any material inconsistencies that will later be presented by their side’s witnesses. If not, the witness does not have a fair opportunity to respond to allegations challenging their credibility or version of events. Importantly, trial judges are not permitted to use non-compliance with the rule as a basis to diminish the weight of a witness’s evidence (particularly an accused) in their final decision without first addressing the issue during the trial.
This case highlights the procedural steps required when there is potential non-compliance with Browne v Dunn:
- Objection by Counsel: Counsel should object to any apparent non-compliance promptly.
- Judge’s Role: The judge must raise the issue before the close of evidence, allowing the non-compliant party an opportunity to address it.
- Alternatives: Instead of defaulting to adverse inferences, the judge can take corrective measures, such as recalling witnesses or allowing further cross-examination to avoid unfair prejudice.
This approach helps ensure that the rule does not result in undue prejudice and preserves the integrity of trial fairness by actively managing any infractions before final deliberations.
DEWITT-VAN OOSTEN J.A.: After a trial in the Provincial Court, the appellant, Troy Alexander Chartrand, was found guilty of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. He has appealed the conviction. He says the trial judge made more than one error, including improperly applying a legal rule that adversely affected her assessment of the appellant’s testimony and misapprehending the evidence.
[2] The Crown agrees the judge erred. The Crown also agrees that in their cumulative effect, these errors require a new trial. Accordingly, it concedes the appeal from conviction.
[3] Having reviewed the factums, the reasons for judgment in the Provincial Court, and relevant portions of the trial record, I am satisfied the appeal must be allowed, the conviction quashed, and a new trial ordered.
Trial Judgment
[4] It is not necessary for purposes of the appeal to set out the entirety of the background to the case. Suffice it to say that the appellant was found guilty of sexually assaulting a former intimate partner in March 2018. The judge found that the complainant fell asleep on a sofa after a movie night with her children. The appellant approached her, woke her up by pulling her pants down from behind, and had sexual intercourse with the complainant without her consent.
[7] The judge provided a number of reasons for rejecting the appellant’s evidence.
[8] One of the reasons was that his trial lawyer did not cross-examine the complainant about various parts of the appellant’s version of events. Applying the rule in Browne v. Dunn, (1893), 6 R. 67 (H.L.), 1893 CanLII 65 (FOREP), the judge decided that the absence of cross-examination affected the weight she could properly assign to the corresponding portions of the appellant’s testimony. This included the appellant’s assertion that because of a shoulder injury, he was not physically capable of committing a sexual assault in the manner described by the complainant.
[10] The complainant testified that she thought the appellant was downstairs and at his computer before the offence. He denied being at the computer. He said he had gone to bed, is a “very heavy sleeper”, generally sleeps through the night, and does not get up during the night to perform tasks. He also said it was not possible that he was using his computer because the computer was not working at the material time. Among other things, it required a new power supply. In support of this testimony, the appellant adduced documents showing that he ordered computer equipment three or perhaps four days after the alleged sexual assault, including a power supply.
[11] In cross-examination, the Crown challenged the appellant’s assertions about his sleep pattern and not getting up during the night. Crown counsel noted that one or more of the documents adduced by the appellant was time stamped 1:25 a.m. Crown counsel suggested this was the time the appellant ordered replacement parts for his computer (or shortly before), presumably seeking to impeach his testimony that he routinely sleeps through the night. The appellant said he did not place any orders at 1:25 a.m. Rather, the orders in question (there were two), were placed “… during the day on [the complainant’s] laptop”. Later, he clarified that they were placed from the complainant’s laptop in the early evening hours.
[12] The judge did not accept this aspect of the appellant’s testimony on the basis that “… by the end of the evidence [he] agreed that he did not know what time he placed those orders”.
Analysis
[13] The parties agree that credibility was the central issue at trial. In that context, the judge’s assessment of the appellant’s denial of a sexual assault carried obvious significance. If she believed the appellant’s denial or found that his evidence raised a reasonable doubt, she was duty-bound to acquit: R. v. W.(D.), [1991] 1 S.C.R. 742, 1991 CanLII 93.
[14] The Crown concedes that both of the above-noted bases for rejecting the appellant’s evidence reflect material error.
[15] First, the Crown did not raise or assert the rule in Browne v. Dunn at the trial as a reason for challenging the credibility or reliability of the appellant’s testimony. By way of explanation, this rule:
[42] … provides that a party seeking to rely on contradictory evidence to impeach the credibility of a witness must put the contradictory evidence to the witness so that they have an opportunity to address, and possibly explain, the contradiction …
[R. v. Jajja, 2024 BCCA 125.]
See also, R. v. Drydgen, 2013 BCCA 253 at paras. 13–17, 22.
[16] If the rule in Browne v. Dunn is properly engaged and breached, especially in relation to matters of significance, it is open to a trial judge to diminish (give less weight) to the contradictory evidence, including where that evidence emanates from the accused: Drydgen at para. 26, citing R. v. Paris (2000), 150 C.C.C. (3d) 162 at paras. 22–24, 2000 CanLII 17031 (Ont. C.A.), leave to appeal ref’d [2001] S.C.C.A. No. 124.
[17] In this case, the judge invoked Browne v. Dunn of her own accord without clearly flagging it as an issue for the parties’ consideration. As a result, the appellant did not have an opportunity to make submissions about whether Browne v. Dunn properly applied. Nor did he have an opportunity to seek an appropriate remedy to address any prejudice flowing from a possible breach of the rule, such as recalling the complainant so that she could be cross-examined on the appellant’s contradictory assertions.
[18] The Crown accepts that in the particular circumstances of this case, the judge’s decision to apply Browne v. Dunn without first engaging counsel on the issue amounted to an error of law. Such will not always be the case….
….The Crown agrees with the appellant that evidence about his physical capacity to carry out the alleged assault went to the core of the accusation. In this context, the Crown fairly acknowledges that the appellant should have received an opportunity to address the issue before the judge invoked Browne v. Dunn and relied on that rule in assessing credibility and reliability.
[19] In conceding this ground of appeal, the Crown has cited numerous cases relevant to fairness in the application of the rule, including R. v. R.J.M., 2023 MBCA 28. In the latter authority, the Manitoba Court of Appeal held that:
[43] … generally speaking, in the absence of a formal objection by a party to a breach of the rule, before invoking the rule, a trial judge should solicit the submissions of counsel on whether the rule was breached and if so, in deciding on an appropriate remedy …
[Internal references omitted, emphasis added]
See also, R. v. Gill, 2017 BCCA 67 at paras. 29–30.
[20] The second of the Crown’s concessions involves a material misapprehension of the evidence.
[21] As noted, the judge disbelieved the appellant’s testimony about when he ordered replacement parts for his computer on the basis that he ultimately admitted to not knowing when he submitted the relevant orders….
[22] Before us, the parties agree that the appellant said no such thing when testifying. To the contrary, it was his evidence that the computer equipment was ordered in the early evening hours three or four days after the alleged sexual assault, and he did not waiver from that assertion. He acknowledged to not knowing whether the time stamp of 1:25 a.m. on the documents reflected local (Pacific) time; however, at no point did he say that he did not know when he placed the orders.
[24] As explained in R. v. Osinde, 2021 BCCA 124, when a trial judge has materially misapprehended evidence that played an essential role in their reasoning process, the appellant will not have received a fair trial: at para. 18….
Disposition
[25] In light of the Crown’s position in the appeal, and in the context of this particular case, I am satisfied the appellant has established two material errors that, in their combined effect, require a new trial. As a result, it is not necessary to address any of the remaining grounds of appeal.
[26] I would allow the appeal, quash the conviction for sexual assault, and order a new trial.
