The Defence Toolkit – August 14, 2021

This week’s top three summaries: R v Sandhu, 2021 ABQB 615: 10(b) and #translation, R v Martin, 2021 ONSC 5333: #jury selection, and R v Szpejer, 2021 ABPC 198: #service of certificate.

R v Sandhu, 2021 ABQB 615

[August 4, 2021] Charter s.10(b): Translation Effects on Rights to Counsel [Madam Justice A. Loparco]

AUTHOR’S NOTE: Some police officers often appear to dislike the necessity of reading Charter rights to the accused. This is particularly so when the accused does not appear to understand. Often, that appearance is treated as a form of obstruction to a proper investigation in the attitude of the police officer responsible. Here this attitude came up against a recent immigrant who was not fluent in English. His repeated attempts to contact his English-fluent sister to facilitate contact with counsel were thwarted ultimately by redirection to Legal Aid duty counsel. In the end, this re-direction resulted in an exclusion of his statement

Introduction

[2] The Accused has been charged with sexual assault under s. 271 of the Code, as a party to sexual assault under s. 272(1)(d) and with kidnapping under s. 279(1.1)(b). The events leading to the criminal charges allegedly occurred on August 26th , 2019.

[4] The Accused argues that the police failed in their informational and implementational duties guaranteed by s. 10(b) of the Charter. The issue in this case concerns whether the police fulfilled their duty to ascertain that the detainee understood his s. 10(b) rights in light of his apparent language barriers.

[5] An analysis of the progression of the discussion between the Accused and EPS members is key. In my review of the transcript, along with the testimony of Detective Vallee, Constable Patenaude and Constable Sidhu, I conclude that the Accused’s s. 10(b) constitutional rights were breached as a result of the police’s lack of consistent and clear communication. In essence, it failed to properly interpret the Accused’s requests for a conduit and take reasonable steps to ensure that the Accused understood his rights to counsel.

The Facts

[6] The Accused was arrested at his home on May 22^nd, 2019 at 8:41am by two members of the EPS, Constables Patenaude and Salame. After one of the officers read part of the Charter Rights and Caution, the Accused stated: “I don’t speak English, I only speak Punjabi.” The officers sent out a call for a Punjabi translator through their radio network and Constable Sidhu, who speaks Punjabi, volunteered to assist.

[7] The arresting officers determined that it would be most time efficient to meet Detective Vallee, who was in charge of the investigation, and Constable Sidhu, at EPS Headquarters. The arresting EPS members advised the Accused he would be transported to police headquarters where a Punjabi translator would assist in explaining the arrest process. Nothing further was said in the patrol car during the transport.

[8] The Accused arrived at the station at 9:06am and was placed in a holding cell. At 9:33am he was placed in a private telephone room with his personal cell phone. At 9:43am he indicated he was finished by knocking on the door and he was returned to his holding cell. This occurred before the Charter Rights and Caution were read to him.

[9] Constable Sidhu arrived at 10:10am and spoke with the Accused in Punjabi. At 10:14am, the Accused was taken into an interview room with Constable Sidhu and Detective Vallee and provided an explanation of the charges in Punjabi. From 10:16am to approximately 10:40am, Constable Sidhu read the Charter Rights and Caution, a secondary Caution in English and Punjabi, and the Accused used the telephone room. Upon exiting the telephone room, the Accused confirmed that he had spoken to a lawyer with a Punjabi-speaking translator. An audio and video recorded interview followed with Detective Vallee and translator Constable Sidhu from approximately 10:41am to 12:45pm.

[10] The interaction from 10:14am until 10:40am forms the basis of this Charter application. I have highlighted the relevant portions of the transcript below and added any oral testimony that assisted in my assessment. The chronology of events along with my commentary on each step is as follows:

• At 10:14:30 the Accused makes it clear he does not understand why he was arrested even though Constable Patenaude testified that it was her belief that the Accused understood because he was cooperative and nodded.
• At 10:18:06 the Accused asks how he will call a lawyer in English and is told he can request a Punjabi translator. I note that this could only have related to the use of Legal Aid and did not assist in advising Mr. Sandhu of how he could speak to a lawyer of choice in light of his language barriers.
• At 10:18:10 the Accused asks if his sister can call and he is advised that he may consult anyone and that the police will give him his phone if he wants to call, but that if he does not have a lawyer, he may call Legal Aid and request a Punjabi translator. The concept of Legal Aid is not explained to him nor is his question answered regarding whether he can use his sister to call a lawyer. It was evident that the question asked by the Accused was not about whether he could call a lawyer himself, since it appears that he was not sure he had the language ability to do so, but about whether he could use his sister as a conduit to do so. The Constable’s answer missed this language nuance in his response to the accused.
• At 10:18:26 when asked if he understands, the Accused replied: “that I call my sister?” This appears to be indicative of a lack of understanding in relation to his right to contact a lawyer either of his choice or through Legal Aid. Read in combination with the previous comments, it should have raised a red flag that the Accused still did not understand how he could contact any lawyer and was preoccupied with his inability to communicate. Only the Legal Aid option would have allowed him to do so through a Punjabi speaker.
• At 10:20:21 the Accused is asked if he wants to call a free lawyer or any other lawyer and the Accused responds again that he wants to call his sister. The concept of a ‘free lawyer’ is not explained to the Accused who is a recent immigrant from India where such service may not exist. Moreover, the concept of Legal Aid is not explained to the Accused even though it is evident that he was not familiar with the Canadian legal system. …
• At 10:24 Constable Sidhu explains to Detective Vallee that the Accused is concerned because he does not understand the legal process as he came from India only last June. She would have been likely aware of his lack of history with the legal system from her prior CPIC search and investigations of him, which she testified she conducted before his arrest.
• At 10:24:43 Detective Vallee asks the Accused directly whether he wants to talk to a lawyer and receives no answer. Given that the Accused was cooperative throughout, this ought to have been another indication that the Accused did not understand his rights. When the question was followed by Constable Sidhu asking if he wants to use the phone, the Accused repeats that he wants to call his sister.
• At 10:25:03 Detective Vallee states that before calling his sister, the Accused needs to call a lawyer, first and foremost. It should have been obvious that the Accused could not call a lawyer of choice on his own because of the language barrier and thus the emphasis on calling a lawyer first and foremost and before his sister essentially funneled him to Legal Aid as the only option. Further, this contradicts what Constable Sidhu advised him previously- that he could call his sister first.  …
• At 10:25:09 Constable Sidhu states: “Okay like it is your right, she said if you want to call a lawyer first at this number, you can and get a Punjabi speaker. You can use this phone, you call them first and then call your sister, however you want to.” This would have created even more confusion. The addition of ‘however you want to’ seems to suggest that he could also make the calls in the reverse order.
• At 10:25:23 this confusion is further evidenced when the Accused states, attempting to clarify what he now believes is his only option, which is to call Legal Aid: “I will call sister and she can call this number.” Again, here, it is clear the Accused is seeking to use his sister as a conduit.
• At 10:25:26 the Accused is then advised that his sister cannot call and that the Accused must call because he is under arrest. In response to my question as to why the Accused’s sister could not call Legal Aid, the Crown explained the implausibility of having third parties call Legal Aid. However, I remain unconvinced. In my view, a third-party conduit should be entitled to contact counsel (whether Legal Aid or otherwise) on behalf of a person who requires assistance for any reason such as a language barrier, capacity issues, or for a person with a disability where clear communication by phone might be hindered (e.g., a person with hearing loss). Given the fact that the Accused was able to access Legal Aid quickly, any concerns about significant delays that might arise as a result of the use of a conduit do not appear to be the issue in this case….
• At 10:28:25 Detective Vallee responds to Constable Sidhu outside the presence of the Accused. In her testimony in the voir dire, she was honest in describing her response as “frustrated” and was evident in her voice when she stated: “He needs to call a lawyer. This isn’t the time to be phoning all family members. It’s a lawyer right now or nothing. Because we have to move on, we have other people that need to use the phone room.” It is unclear why Detective Vallee becomes frustrated since it had been under 15 minutes since the Charter Rights and Caution process commenced. Moreover, Detective Vallee testified that she spoke loudly and that she “is not a wall flower.” However, in cross-examination, Detective Vallee confirmed that there really was no urgency and that if the Accused required even up to two hours to contact a lawyer through a family member, it would not have created any hardship to the police to give him that time.
• At 10:28:34 Constable Sidhu explains to the Accused that it is time sensitive because others need the phone and that it is only for calling a lawyer, even though it would have been obvious that he could not call any lawyer without calling his sister first since he could not read the phone books that were in the room. Moreover, even though it was known the Accused needed his cell phone to call his sister, it was not provided to him.
• At 10:28:44 Detective Vallee states that he can call his sister after, which is repeated by Constable Sidhu. This now clearly contradicts the previous information the Accused was provided.

Section 10(b) and “Special Circumstances”

[11]A proper analysis of s. 10(b) rights includes the consideration of an accused’s understanding of their rights and any steps taken by police to facilitate this understanding. As stated by McLachlin J, as she then was, in the decision of R v Evans, 1991 CanLII 98 (SCC), 1991 CarswellBC 417 (SCC) at 39, [1991] 1 SCR 869 at 890:

A person who does not understand his or her right cannot be expected to assert it. The purpose of s. 10(b) is to require the police to communicate the right to counsel to the detainee. In most cases one can infer from the circumstances that the accused understands what he has been told. In such cases, the police are required to go no further (unless the detainee indicates a desire to retain counsel, in which case they must comply with the second and third duties set out above). But where, as here, there is a positive indication that the accused does not understand his right to counsel, the police cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate that understanding. [emphasis added]

[12] As provided by Lamer CJ in the decision of R v Latimer, 1997 CanLII 405 (SCC), [1997] 1 SCR 217 [Latimer], special circumstances may require police to take additional steps to comply with their informational duties under s. 10(b). Such special circumstances include young persons, individuals with visual impairments, individuals with limited intellectual capacities, and those with a lack of proficiency in the English language (Latimer, at para 38).

[13] In R v Vanstaceghem, 1987 CanLII 6795 (ON CA), 1987 CarswellOnt 100, 36 CCC (3d) 142 (ONCA) the Court highlighted language as one special circumstance which attracts a heightened police obligation to ensure that an accused is informed. In that case the accused was not informed of his constitutional rights in French, leading to his breath sample being excluded under section 24(2). As it relates to language, the Court stated, at para 20:

It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s. 10 of the Charter. As section 10(b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exercise or waiver of the guaranteed rights.

If the rights are read in English only, and the accused’s or detainee’s knowledge of the English language does not allow sufficient comprehension of the matter, those are “special circumstances” which alert the officer and oblige him to act reasonably in the circumstances. [emphasis added]

[14] In my view, the police did not discharge their informational and implementational duties properly as they did not take proper steps to facilitate the Accused’s understanding of the options available to him to contact counsel. Rather, it appears Constable Sidhu and Detective Vallee conveyed conflicting messages to the Accused. Mr. Sandhu clearly did not understand the distinction and difference between his right to call a lawyer of choice and Legal Aid and whether he could use his sister to assist him. The obligation to ensure that comprehension exists on the part of the detainee is heightened when special circumstances exist, which I find were present here.

[15] The Accused was a recent immigrant. Despite his cooperation and nodding, it ought to have been clear to police that he did not understand English. While this alone is not a reason to take additional steps, in this case, the Accused’s need for his sister’s assistance in order to exercise his rights was made manifest by his repeated attempts to advise the police that he wanted to speak to her first. Further, it could not be assumed that he would trust the police referring him to a free lawyer, or understand that Legal Aid is an independent and free legal service provided to all detainees. No attempt to explain this legal concept was made even though, when he was asked to sign the Caution form, Constable Sidhu took the time to explain to the Accused that signing it would not result in an admission of guilt, that the police were not trying to trap him, lie to him, or play games.

Section 10(b) and Choice of Counsel

[16] In my view, the Accused’s language rights and right to counsel are intrinsically linked and cannot be assessed separately. In examination of the totality of circumstances, the Applicant’s repeated attempts to communicate the need to use his sister as a conduit were ignored. In the result, the Accused’s misunderstanding of his 10(b) rights led to the denial of his right to meaningful access to counsel of choice.

[17] The purpose to a right of counsel under s. 10(b) is about providing detainees with meaningful choices: R v Bartle, 1994 CanLII 64 (SCC), 1994 CarswellOnt 100 (SCC), [1994] 3 SCR 173 at para 22. Defence counsel relies on the decision of R v Pita, 2013 ONCJ 716, in which the Court includes choice of counsel within the scope of the Accused’s right to counsel (at para 70). Courts have recognized that special circumstances arise when it is clear that a detainee’s first language is not English and that the individual has difficulty comprehending the information. In such cases, further steps must be taken by police to ascertain the detainee’s understanding of these rights.

[18] It was known to both Constables Sidhu and Detective Vallee that the Accused needed his cell phone to call his sister and that going into a phone room with English phone books would not assist him in reaching his sister or a lawyer of choice. He was continually directed to use Legal Aid both in subtle and overt ways.

[28] I therefore distinguish this line of jurisprudence from the present situation on the basis that the police knew or ought to have known from the totality of the conversation with Mr. Sandhu that he needed his sister’s assistance to facilitate his access to a lawyer.

[30] Contrary to the Crown’s assertion that asking the Accused why he wanted to contact his sister would breach his privacy rights, it would not have been necessary to do so. Rather, once there were sufficient grounds to form the belief that the detainee wished to use a third party for assistance, the duty would have easily been met by simply advising him that if the reason he wanted to speak to his sister was to use her as a conduit to counsel, that he would be permitted to do so. No such attempt to clarify his rights was made. In my view, this breached the heightened police duty in this case where special circumstances were present.

[31] Moreover, one cannot expect the Accused in this situation to know what questions should be asked. Mr. Sandhu was unable to articulate his wishes as he did not know the law or the language. However, there were positive indications that he lacked the understanding to comprehend his rights. A mechanical recitation of his rights would have been insufficient since it is obvious from the circumstances that further assistance in clarification was needed. The explanation of the Accused’s Charter rights should not be reduced to a formulaic checkbox exercise; rather, it should be seen as a fluid discussion that ought to be responsive to the Accused’s apparent needs and barriers to communication.

[32] Moreover, this situation is exacerbated by the fact that Detective Vallee became perceptibly frustrated with the time it was taking to get the Accused to exercise his right to counsel. He was first granted broad permission to call ‘anyone he wants’, then he was told he could call his sister first, then only a Legal Aid lawyer, and finally he was told to call the Legal Aid number as this was how he would get a Punjabi interpreter.

[33] There is an unsatisfactory explanation as to why he could not use his sister as a conduit in either case. It appears by the progressive sequence of the dialogue, which was hindered by interpretation and comprehension issues, that he was unsure whom he can call, how it would impact his rights, and how he would be able to communicate.

[34] In R v Hughes, 2014 ABQB 166 [Hughes] Bast J held that where there is a legitimate request to contact a third-party conduit, a detainee may use one in the course of exercising his or her right to counsel. In finding that the accused’s s. 10(b) rights had been infringed, Bast J stated, at para 11: “[t]he refusal of the officer to respond or seek clarification of the question from the appellant had the effect of misleading the appellant as to who he could call. As a result, the officer interfered with the appellant’s right to counsel of choice.”

[35] In conclusion, I find that an analogous situation has occurred here. The Accused made a legitimate request to speak to his sister, which was accepted at first. The question from the Accused at the outset of the discussion did not specify whether he wanted his sister to call a lawyer of choice or Legal Aid. There appears to have been an inappropriate assumption made that the Accused was not using his sister to contact a lawyer of choice and that he wanted her only for hand-holding. Although he may not have articulated his exact reason for wanting to call his sister first, after he was advised that he could do so, no further obligation on the Accused to explain the reason why would have arisen.

[37] It is not only the exact words used that reveal a detainee’s intentions; meaningful communication of the Accused’s rights requires an attempt to appreciate any miscommunications that might have occurred as a result of deficiencies that occur in translation. Unfortunately, at the point when Detective Vallee put the pieces together and became aware of the possibility that the Accused may have wanted to use his sister as a conduit for a lawyer of choice, no further steps were taken to clarify this apparent confusion with the Accused. Constable Sidhu proceeded to the interview once it was determined that the Accused spoke to a Legal Aid lawyer.

[38] I note that the Accused repeated that he did not speak with his sister when he exited the phone room, which seems to indicate that he continued to be preoccupied with the fact that he needed his sister’s assistance.

[39] As mentioned, I find this case analogous to Hughes. Although in Hughes, the failure was based on the officer’s misapprehension of the law on the right to use a conduit, in this case, the failure is more pronounced as it is based on a denial of the accused’s expressed desire to use a conduit to connect with a suitable lawyer.

Exclusion of Evidence – Section 24(2)

a) Seriousness of the state infringing conduct

[42] I find the breach to be serious. The police conduct, while not in bad faith, was deficient in ensuring that the Accused understood the options available to him. I also find that not allowing the Accused to use his sister as a conduit for any lawyer, whether a lawyer of choice or Legal Aid, was improper.

[44] Moreover, I find that the Accused was misled, albeit not deliberately, and funnelled to use Legal Aid as a result of the Detective’s frustration that the process was taking too long. There was no justification for her concern of urgency. Moreover, the power imbalance between Detective Vallee and Constable Sidhu, and Detective Vallee’s frustration with the process, likely contributed to a sudden change of instructions to the Accused and the misunderstanding of the reason why the Accused’s wished to contact his sister.

[45] As stated by Bast J in Hughes, at para 16:“[e]ven if the conduct of the officer was not deliberate or intentionally misleading, ignorance of Charter standards must not be rewarded or encouraged, and negligence or wilful blindness cannot be equated with good faith.”

b)   Seriousness of the impact on the interests of the appellant

[47] In Berger, the Court of Appeal stated at paras 24-25:

While any lawyer contacted by the appellant would have told him that his options were limited with regards to non-participation in the face of a breathalyzer demand, that does not excuse a Charter violation. The lawyer could have provided other critical advice, including the importance of remaining silent, strategies for interrogation and practical advice about securing release from custody.

More importantly, to accept the argument that the Charter breach would not have mattered because both refusing to blow, and achieving a fail rating after blowing result in a criminal consequence, would be to insulate s. 10(b) Charter breaches in the course of an investigation of an over .08 charge from any consequence because the accused person has little choice but to eventually provide a breath sample in any event. That is not the law. [citations omitted]

[48] Similarly, in this case, the lawyer of choice could have provided strategic advice and so the failure to ensure the Accused knew he had the right to a lawyer of choice resulted in an interference with his right to counsel and had a serious impact on his Charter protected interests. This factor favours the exclusion of the statement.

Balancing

[53] After balancing all three factors, I conclude that the admission of such evidence would seriously affect the repute of the administration of justice. It would result in a lack of assurance that the process in obtaining the Accused’s statement was fair. I therefore order that the Accused’s statement to police be excluded.

V. Conclusion

[54] The application is allowed and the statement of the Accused is inadmissible.

R v Martin, 2021 ONSC 5333

[August 3, 2021] Jury Selection: Charge on Racial Bias, Challenge for Cause (Offence Based Challenges) and the Stand Aside Power [A. J. Goodman J.]

AUTHOR’S NOTE: With the constitutionality of the peremptory challenge now decided with finality by the SCC, the judicial disputes in jury selection are moving to the remedial powers granted to judges under the new legislation and the various interpretations of R v Chouhan. In this decision, Justice Goodman gives a thoughtful interpretation of the stand aside provisions (ie. enhanced powers to ensure “competent” jurors), challenge for cause and reinforces the need for a series of strong instructions on racial bias. Also, a point by point outline of jury selection is provided (but not summarised herein). On the Challenge for Cause front, expansion to allow offence-based challenges is supported as well as counsel asking the questions.

Jury Selection Procedures

[3] In the case at bar, the accused is charged with six counts, to wit; did exercise control, direction, or influence over the movements of L.C. for the purpose of exploiting or facilitating the exploitation of her; did receive a financial or material benefit knowing that it was derived directly or indirectly from the commission of an offence under subsection 279.01(1); did knowingly advertise an offer to provide sexual services for consideration x2; did unlawfully commit an assault upon L.C., and uttering a threat to cause bodily harm, all contrary to their relevant provisions of the Criminal Code, R.S.C. 1985, c. C-46.

[8] Given the foregoing, it is a challenge to assess and implement a practical application of jury selection arising out of Chouhan. Indeed, in Chouhan, the Supreme Court was split, with five separate  sets of reasons. As Pomerance J. stated in Bhogal, at para. 5:

It would appear that seven of nine justices endorsed the use of anti-bias instructions; seven of nine appeared to endorse a modestly liberalized approach to the challenge for cause, albeit one that respects juror privacy; four of nine expressly held that the stand aside power could be used to address reasonable apprehensions of bias; four of nine proposed limits on the challenge for cause; and five of nine proposed limits on the stand aside power, holding that it could not be used to secure a representative petit jury.

Practical Application of the Jury Selection Procedures to this Case

[10] In Bhogal, at para. 9, Pomerance J. explains that there is now judicial recognition that implicit or unconscious bias is a factor in human decision making. The Supreme Court opined on the issue of unconscious bias.

[11] The Supreme Court of Canada judicially recognized and accepted that unconscious bias in individuals may result in innate bias or preconceived notions that they may not be aware of. In addressing the issue, the Supreme Court attempts to drive home the meaningful notion that while unconscious bias, is by definition nebulous and esoteric, jurors ought to be alerted and focussed on the potential for such bias or stereotyping.

[12] As Moldaver J. stated at para. 53 of Chouhan:

Where anti‑bias instructions are required, they ought to come early, before the presentation of evidence, and at any other time that the trial judge deems appropriate, including when the panel of prospective jurors is assembled in the courtroom at the outset of jury selection. We suggest that trial judges begin by pointing out that as members of society, each juror brings a variety of beliefs, assumptions, and perceptions to the court room. These assumptions will often be based on characteristics such as gender, race, ethnicity, sexual orientation, or employment status. Trial judges ought to highlight that jurors may be aware of some of their biases while being unaware of others. These unconscious biases may be based on implicit attitudes, namely “feelings that one has about a particular group”, or stereotypes, namely “traits that one associates with a particular group”…

[13] Hence, when applicable, trial judges are directed to instruct potential juror to actively reflect upon their thought processes, belief system and dive down deep into their personal views, assumptions, stereotypical thinking and myths, whatever their degree, when called to the bar for presentation as a potential juror, principally when a challenge for cause is raised. Again, I cannot say it any better than Pomerance J. expressed in Bhogal, at para. 9, that “[i]implicit biases tend to be deeply embedded in the psyche, but can be brought to the surface through active introspection”.

[14] Therefore, I adopt into my instructions to the entire panel the general anti-bias instructions found in Bhogal, at para. 11, with some modifications as follows:

Every juror must be impartial, which means that every juror must approach the trial with an open mind and without preconceived ideas.

We all have beliefs and assumptions that affect our perception of the world. These perceptions can create a bias for or against others based on their personal characteristics [such as gender, race, ethnicity, sexual orientation, or employment status]. We may be aware of some of these biases, but unaware of others. No matter how unbiased we think we are, we look at others and filter what they say through the lens of our own personal background and experiences. Unconscious biases may be based on stereotypes or feelings that one has about a particular group, namely, traits that one associates with that group. All human beings experience unconscious biases, but these biases can be overcome through self-reflection and introspection.

Stereotypes have no place in our legal system, where all persons are entitled to be judged on their individual character, not on assumptions about them based on their race, religion, ethnic background or other personal characteristics.

If you are selected as a juror, you will be asked to judge the evidence presented at trial fairly without bias, prejudice, sympathy or partiality. Jurors are judges of the facts and must approach the case with an open mind, one that is free from bias, prejudice, sympathy or partiality. Impartiality requires active work. It requires that you be aware of your own personal beliefs and experiences, and that you be equally open to the views of others. If you are selected as a juror, it will be your duty to set aside any prejudices or stereotypes that might affect your decision in this case.

There are things that jurors can do to help identify and set aside unconscious bias. If you are chosen as a juror you will be instructed to:

Take the time you need to reflect carefully and thoughtfully about the evidence. Think about why you are making the decision you are making. Reconsider your first impressions of the people and the evidence in this case. If the people involved in this case were from different backgrounds, for example, richer or poorer, more or less educated, older or younger, or of different gender, gender identity, race, religion, or sexual orientation, would you still view them, and the evidence, the same way?

Jurors come from different backgrounds and will view this case in light of their own insights, assumptions, and biases. Listening to different perspectives may help you to better identify the possible effects of hidden biases.

If you are selected as a juror, you must resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, or stereotypes.

[15]      I also adopt the specific anti-bias rationale discussed in Bhogal, at para. 12.

Challenge for Cause:

[16] In my reading of Chouhan, it appears that the challenge for cause question enjoys an expansive approach. According to Martin J. at paras. 119 and 121, (writing on behalf of three judges):

119. With respect to challenges for cause, I agree with my colleagues Moldaver and Brown JJ. that R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), does not describe the only questions available on a challenge for cause. Indeed, trial judges are afforded the latitude to depart from the Parks-style formula where appropriate to ensure juror impartiality. This Court has encouraged trial judges to “err on the side of caution and permit prejudices to be examined” through the challenge for cause process (Williams, at para. 22; see also Parks, at p. 335, and R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 45).

121. Ultimately, in deciding whether to allow challenges for cause and in settling on the form of permissible questioning, courts must be allowed to exercise their discretion in accordance with the wording and purpose of s. 638(1) (b), the accused’s right to a fair and impartial tribunal, and Charter  values, including substantive equality (Williams, at para. 49).

[17] Thus, I intend to embrace a liberal approach to counsel’s suggestions for the challenge, within the parameters or constraints set by the Supreme Court about a representative jury.

[20] First, I take a different approach to the direction found at para. 39 of Bhogal, wherein Pomerance J. opines that Chouhan does not permit a challenge for cause based on the nature of the offence. It is true that the Supreme Court in Chouhan focused on the relevant characteristic of the accused or victim and provided examples, but was silent on this specific point.

[21] I find that the door is open to address and advance such an inquiry, albeit with privacy interests in mind. In Chouhan, at para. 66, Moldaver J. writes:

[22] Moldaver J. provides the trial judge with the discretion to conduct the challenge for cause procedure. He states at para. 62::

The trial judge necessarily enjoys significant discretion to determine how and under what circumstances the presumption of impartiality will be displaced, and how far the parties may go in the questions that are asked on a challenge for cause.

[23] At para. 64, Moldaver J. goes on to provide some examples:

Appropriate questions on a challenge for cause will ask prospective jurors for their opinion as it relates to salient aspects of the case. For instance, counsel may point to characteristics of the accused, complainant or victim, such as race, addiction, religion, occupation, sexual orientation or gender expression, and ask prospective jurors whether, in light of such characteristics, they would have difficulty judging the case solely on the evidence and the trial judge’s instructions, because they hold an opinion about such characteristics that on careful reflection, they do not believe they could put aside.(citations omitted).

[24] I do not read this as foreclosing the need for trial judges to be cognizant and adapt to the circumstances of each case, which may include offence-based questions in order to achieve the objectives of an impartial juror during the challenge for cause in the appropriate case.

[25] With the discretion afforded trial judges on the challenge for cause, there may be occasions, such as in this case, where the offence-based question is entirely appropriate and need be posed to the prospective jurors. In this trial, the victim is black and an alleged sex trade worker. The offence in question is predicated upon her employment, and as such, the two concepts are intertwined and therefore ought to be canvassed by the challenge for cause process.

[26] The second area where I adopt a different approach than that found in Bhogal is the direction that the trial judge ought to pose the challenge for cause question. In my experience, I have never posed the challenge for cause question, and find that Chouhan does not necessarily alter that perspective.

[27] Paragraph 64 of Chouhan, reproduced here, states:

Appropriate questions on a challenge for cause will ask prospective jurors for their opinion as it relates to salient aspects of the case. For instance, counsel may point to characteristics of the accused, complainant or victim, such as race, addiction, religion, occupation, sexual orientation or gender expression, and ask prospective jurors whether, in light of such characteristics, they would have difficulty judging the case solely on the evidence and the trial judge’s instructions, because they hold an opinionabout such characteristics that on careful reflection, they do not believe they could put aside.(emphasis added).

[28] I also note that Moldaver J.’s comments at para. 67 of Chouhan:

We raise two final points regarding challenges for cause. First, Bill C 75 directs that the trial judge, rather than a layperson, will be the arbiter of the challenge for cause. As such, in our view, it would be appropriate for the trial judge — as an impartial person adjudicating impartiality — to put the challenge for cause questions to the prospective juror.  Counsel should, of course, be consulted on the content of such questions before they are posed. Secondly, in trials involving challenges for cause, trial judges should as a rule exercise their power to exclude jurors from the court room during the selection process, pursuant to s. 640(2)  of the Criminal Code. (emphasis added).

[29] In my view, these emphasized statements appear to suggest that a trial judge has discretion to adopt the approach that is best suited to ensure justice is promoted within a given trial. Indeed, I do not read these emphasized comments as foreclosing the possibility of trial judges departing from the traditional approach and assume the role of questioner, where circumstances warrant, for example, in the case of a self-represented accused.

[30] In a similar vein, I do not read those comments as mandating the trial judge pose the questions. One should still bear in mind the dangers or risks inherent when the judge descending into the arena, assuming the role of inquisitor as well a trier. In my opinion, it is incumbent on the judge, as any trier, to be focused on the evidence and make a determination rather than being implicated in the elicitation of the evidence. In our adversarial system of justice, the trier generally is to stay out of the figurative arena where possible. The goal is to preserve as much as possible the appearance of objective neutrality, free from bias: R. v. Hamilton, 2011 ONCA 399. In my view, this can be addressed and likely eliminated with counsel posing the questions.

[32] Given that the jurors will be brought in individually, there is no harm in defence counsel posing all of the questions. In the appropriate case, I have directed both Crown and defence to share in that task.

[37] Nothing in the particular circumstances of this case before me warrants my posing the primary questions for the challenge for cause. As mentioned earlier, I reserve the well-established right of any trial judge to pose clarifying questions in response to the prospective juror’s answers for the challenge.

[39] In my experience and to my knowledge it has been a standard and widely- accepted practice for many years to exclude all prospective jurors from the challenge for cause questioning process, and to have each potential juror appear before the bar individually. Why? Because the concept was that responses provided with other potential jurors present could taint the process and result in a-less-than robust, honest, spontaneous response to questions being posed by counsel. As far as I am aware, at no time were the challenge for cause questions provided in advance to each potential juror presumably as a result of these concerns.

[40] While silent on the issue, at para. 67 of Chouhan, Moldaver J. endorses the approach of prospective jurors being subject to the challenge individually:

[41] As an extension of this logic, two concerns arise. First, if someone has a conscious bias, once alerted to the question, if they want to avoid giving a candid answer, or help to ensure their desired non-service as the case may be, this procedure outlined in Bhogal provides more time to ruminate to consider an effective answer. Clearly, all jurors must be treated equally and fairly. I am concerned that if the entire panel receives the question in advance, the first potential juror may be treated differently than the 20^thjuror, who has more time to consider the questions.

[42] Second, I diverge from my colleague’s opinion that “spontaneity may be the enemy of accuracy”. As noted by Pomerance J., the concept of res gestae runs contrary to the notion that spontaneity may not be accurate or honest.

[45] In my opinion, a spontaneous response is likely to produce a more accurate answer. The questions ought thus be posed for the first time to each juror after they are brought forward individually to the book to be sworn or affirmed in the courtroom. Again, recall that the jurors have already been told to reflect upon their own potential biases or prejudices in advance of being randomly called forward. One should not lose sight of the fact that perspective jurors are witnesses during the challenge for cause process.

The Challenge for Cause Here

[47] When I get to this section of my general instructions to the panel, I will advise them much along these lines as outlined in Bhogal, with some modifications:

You will recall my earlier instructions about the need for jurors to identify and set aside biases, stereotypes, prejudices, and other assumptions when deciding this case. As a prospective juror, you bring with you life experiences, beliefs, and opinions, some of which may be unconscious. Of course, we can only focus on our conscious awareness but the notion of unconscious bias brings home the necessity to think hard about your own beliefs and values towards other persons and reflect upon them.

It is not whether these beliefs are correct  or proper, but the issue before us today is whether you can set them aside so that they do not affect your decision in  this case. As a juror, you must decide the case without bias, prejudice or partiality. You must decide the case based solely on the evidence and the instructions of the trial judge.

During the challenge for cause, counsel will ask you some questions. Listen carefully. Take your time in answering. You must answer the question honestly. You may answer the question with a yes of no, or in any manner you deem appropriate to express yourself. If you do not understand thequestion, please let me know.

[48] During the actual challenge for cause process, counsel will pose the questions to each potential juror with the preamble:

As His Honour advised you, a juror must decide the case without bias, prejudice or partiality. You must decide the case based solely on the evidence and the instructions of the trial judge.

In this case, the accused, Shawn Martin, is a Black man. The alleged victim is a Black woman. The crimes charged allege physical violence, threats of violence, and exploitation in the context of sex work.

1. Do you have any bias, beliefs or pre-conceived notions about Black men?

2. (If yes), would you be able to set those beliefs aside and decide the case based solely on the evidence at trial and the instructions of the trial judge?

3. Do you have any beliefs or pre-conceived notions about Black men being more prone to violence or violence against women?

4. (If yes), would you be able to set those beliefs aside and decide the case based solely on the evidenceat trial and the instruction of the trial judge?

5. Do you have any beliefs about people who engage in sex work, that is compensation for sexual services or whether you have pre-conceived notions that Black men are more likely to be involved in the sex trade?

6. (If yes), would you be able to set those beliefs aside and decide the case based solely on the evidence and the instructions of the trial judge?

7. Do you have any beliefs or pre-conceived notions about people  who pay for sexual services or people who are compensated for sexual services?

8. (If yes), would you be able to set those beliefs aside and decide the case based   solely on the evidenceat trial and the instructions of the trial judge?

Stand-by provision:

[49] Section 633 of the Criminal Code is re-drafted to provide further assistance in ensuring the constitutional requirement, an impartial jury. It does not mean that a party can implore a judge to abuse the stand-aside power as a pseudo- peremptory challenge.  However, it does mean that there may be a basis to inquire of jurors pursuant to this provision and with the guidance from the Supreme Court in Chouhan.

[60] It bears repeating that the revised s. 633 now stipulates that the judge may direct a juror “to stand by for reasons of personal hardship, maintaining public confidence in the administration of justice or any other reasonable cause”.

[61] When the previous stand-aside procedure was invoked, it generally  occurred after a triggering event: a question arising from the juror’s ability to understand the language of trial, a health issue or perhaps exceptional hardship to serve being claimed. Notably, in the exercise of the authority found in the former provision, a determination was usually made by a judge after – but not always – hearing submissions from counsel.

[62] In Chouhan, Abella J., at para. 159, states:

[64] I observe that Moldaver J. disagreed with Abella J. on several points, including the use of the stand aside provision to promote diversity. Moldaver J. provides guidance as to the contours of the revised stand aside provision, as found at paras. 71-72 of Chouhan:

It will be for trial courts and courts of appeal to determine, on a case by case basis, the contours of the trial judge’s discretion to stand aside jurors to “maintain[n] public confidence in the administration of justice”, but we wish to make it clear what this amended power cannot be used for.

First, in all cases, the trial judge must maintain a resolute focus on the language that Parliament chose in amending the stand aside provision: trial judges can stand aside jurors only where necessary to “maintai[n] public confidence in the administration of justice”. Public confidence is assessed from the perspective of a reasonable and informed person (R. v. St‑Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 87), who, in the context of jury selection, will know of the many safeguards that go to ensuring the independence and impartiality of the jury and the fairness of the trial, including: the dedicated provincial efforts to create representative jury rolls, the vital principle of randomness that undergirds all aspects of jury selection, the challenge for cause process that removes potential jurors for partiality, the trial judge’s instructions targeting implicit and unconscious bias, and the rigours of the trial process itself. Given these and other safeguards, which we have canvassed at length above, public confidence will not easily be lost in the jury selection process (citations omitted).

[65] As I held in Josipovic at para. 31, endorsing Boswell J.’s sage ruling in R. v. Campbell, 2019 ONSC 6285, at para. 35, the use of stand-asides in relation to the concept of “competent juries” is important and meaningful. To this end, Boswell J. explains the following at paras. 100 and 101 of Campbell:

Every now and then, a prospective juror appears who is clearly not well-suited to jury service. Lawyers and judges alike, through their life experience, are able to readily identify them.  Peremptory challenges were a useful means of eliminating them from the jury panel.

Competent juries are necessary to maintain public confidence in the administration of justice.  Where a trial judge has concerns about the competency of a prospective juror, it is appropriate to exercise the discretion to stand that juror aside.

[66] In my opinion, the use of the term “a competent juror” is still material and does not go down the road of a pseudo-peremptory challenge. The trial judge’s discretion has been enhanced to allow for a juror to stand-by for the purpose of “maintaining public confidence in the administration of justice”.

[67] This discretion remains with the trial judge on some objective rationale and avoids the stereotypical thinking and reasoning that was criticized with the peremptory challenge. I am satisfied in the appropriate circumstances, a trial judge, whether on his or her own initiative or at request of counsel, can exercise the residual power under s. 633 at any time, albeit requiring a commitment to place some reasons on the record. From my read of Chouhan, the direction from the Supreme Court is not inconsistent with this analysis.

[68] Practically speaking, it is understood that there may be other considerations, apart from a juror’s verbal responses, demeanour or otherwise, that could suggest his or her unsuitability, which may not necessarily be captured by the usual challenge for cause framework.

[69] Thus, the trial judge has a role to ensure whether a certain juror is “competent” to act as a juror in a specific case by ensuring that the public trust and confidence in the administration of justice is maintained. Where a trial judge has concerns about the competency of a prospective juror, it is appropriate to exercise the discretion to stand that juror aside. In order to achieve that objective, the judge may act on his or her own initiative, or on advice of counsel. The judge may invite the parties to make further inquiries, propose defined questions and make submissions, where appropriate, albeit on the basis of some objectively reasonable justification.

[70] I am of the view that s. 633 may facilitate such further inquiry, as long as counsel can demonstrate an objectively reasonable justification. The specific inquiry may be modified in each particular case. It may also involve other probing questions that flow from the case or the juror’s responses.

[71] If additional questions are posed and if necessary, upon receipt of the answer, I will turn to counsel to determine if they wish to make submissions as to whether or not I should stand-aside the juror. If counsel do not wish to make submissions, he or she will be sworn as a juror.

[72] If counsel signal that they want to make submissions, for whatever reason, then I will invite the prospective juror to leave the courtroom while I hear argument. After that, I will invite the prospective juror back into the courtroom and either ask further questions, direct him or her to stand aside, or have the individual sworn as a juror to try the case.

[73] Finally, once the jury is put-in-charge of the accused, during the course of my preliminary instructions to the jury, they will be reminded about the anti-bias instructions as suggested in Bhogal.

Conclusion:

[74] A robust and concomitant application of the enhanced challenge for cause process and stand-by provisions guided by the general principles espoused in Chouhan provides both the Crown and the accused a meaningful opportunity to participate in the jury selection process, to safeguard an impartial jury, while at the same time engaging the accused’s fair trial rights.

R v Szpejer, 2021 ABPC 198

[August 13, 2021] 80 or Over: Service of Certificate of Analyst [P. B. Barley PCJ]

AUTHOR’S NOTE: Service and proof of service are not the same thing. In this case, the Crown tried to give evidence from the podium about the contents of the disclosure package to substantiate service of the Certificate of Analyst to the defence. The trial judge rightly noted that was not proof at all. While proof the document’s inclusion in disclosure could satisfy notice, the Crown cannot simply advise the court that it was so. 

Facts

[1] This decision deals with the admissibility of a Certificate of Analyst that the sample of an alcohol standard that is identified in the certificate was suitable for use in an approved instrument.

[2] Defence counsel argues that in this particular case, certain prerequisites for the admission of such a certificate were not met.  I shall go through each of the objections in turn.

[3] As background, the accused faces charges under Section 320.14(1)(a) and (b), being impaired driving and driving with a blood alcohol level over the legal limit.  The allegation arose on September 3, 2020 and a trial started on June 29, 2021.

[4] On June 14, 2021, the prosecution e-mailed a letter to defence counsel referencing this file and stating:

Re:  R v Szpejer, Jadwiga Zofia – Section(s): 320.14(1)(a); 320.14(1)(b) of the Criminal Code of Canada – Court Date:  June 29, 2021, at 9:00 a.m., in Provincial Courtroom 1005

Due to the nature of this prosecutor, I have confirmed that the disclosure package contains all items pertinent to section 320.34(1)(a) – (e) of the Criminal Code of Canada, including the Certificate of Analyst which will be tendered at trial.  Please advise me immediately if you deem anything missing or illegible.

[5] Defence counsel e-mailed back an acknowledgement of receipt of this letter.  She also confirmed receipt of it on the date of trial.

Copy of the Certificate

[25] Section 320.32(2) provides that a certificate may not be received into evidence unless notice of intention and a copy be given to the defence.  There is no requirement that they be given together.

[26] I have already found that the notice was timely, sufficiently clear and properly served.  The remaining question is whether a copy of the certificate was served on the accused, either personally or through counsel.

[27] Proof of service must be established on a balance of probabilities.  R v Redford, 2014 ABCA 336 (Redford).

[28] Crown argues that the reference in the letter of June 2021 to the Certificate of Analyst being included in disclosure is proof of service of the certificate.  She relied upon the following passage in Redford.

[41] What transpires with the documents after that does not render service invalid.  The law does not require the respondent to retain personal control or possession of the certificate.  What is important, functionally, is that before trial, the respondent receives a copy of the certificate and reasonable notice that it will be tendered as evidence by the Crown.  This requirement is to ensure that the accused can make full answer and defence.  Compliance can be accomplished in numerous ways, including by personal service or through counsel by means of disclosure as required by R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326.

[31]  I have no doubt that the inclusion of a copy of the Certificate of Analyst in disclosure can satisfy the statutory precondition for admission of the certificate at trial.

[32] However, in the present case, I do not have direct evidence as to what was actually in disclosure.  The writer of the letter, Crown counsel at trial advises that she has confirmed that the Certificate of Analyst was sent.  There are two problems with this.  Firstly, counsel is trying to give evidence by letter.  A letter from anyone is not properly proof of its contents, and one from Crown counsel is no better.  Secondly, the writer was not presumably the actual sender of disclosure.  Some administrative person would likely have done that.  We do not know if the confirmation was based on hearsay or records.  Without that, we have no basis for the confirmation.

[33] Lastly, the letter does not specify that any check was done to confirm that any ‘copy’ was accurate.  In Redford the Court of Appeal quotes the trial judge who set out the evidence of the officer as to the steps that he took to make sure that the copy of the Certificate of Qualified Technician given to the accused was a true copy of the original.  The original would be presented to the court by the officer.

[34] That certainty that an exact copy of an original document, now being presented to the court, was given to the accused, is missing in the previous case.

[35] As such, the service of a copy of the Certificate of Analyst is not proven, even on a balance of probabilities.  Section 320.32(2) has not been complied with, and so the Certificate of Analyst is not admissible into evidence.