The Defence Toolkit – July 11, 2021

This week’s top three summaries: R v Chouhan, 2021 SCC 26: #jury selection, R v Mehl, 2021 BCCA 264: #jury bias, and R v White, 2021 NLCA 39: #ineffective assistance – election.

R v Chouhan, 2021 SCC 26

[June 25, 2021] Jury Selection: Peremptory Challenges, Jury Instructions, Challenge for Cause, and Enhanced Judicial Stand-asides [Reasons Split within these Groupings: (Moldaver, Brown, Wagner), (Martin, Karakatsanis, Kasirer), Rowe, Abella, Cote JJ.]

AUTHOR’S NOTE: While the demise of the peremptory challenge has been known for months, the reasons of the SCC in this case are of more value in identifying the dispute to come: what has happened to the other jury selection mechanisms? This author will attempt to tease out where the court will go on the issues of: jury instructions for racial prejudice, challenges for cause, and enhanced judicial stand-asides by reconfiguring the judgement along these lines. When this is done there appears to be support for enhanced judicial stand-asides from: Martin, Karakatsanis, Kasirer, Abella, and Cote, expanded challenges for cause from the Martin, Karakatsanis, Kasirer, Abella, Cote, and soft acceptance of it from Moldaver, Brown, and Wagner. There seems to be support for increased jury instructions on racial bias from Moldaver, Brown, Wagner, Martin, Karakatsanis, Kasirer, and Abella. In short, while disputes remain here that will undoubtedly be influenced by a proper evidentiary record, there are comments that can be viewed as persuasive going forward as well as path towards recognition that these means have to be enhanced to address racial bias in jury decision-making. 

Ratio

[The Court was unanimous that the removal of peremptory challenges is constitutional. The majority (one dissent) also held that this was a procedural change meaning it was effective retrospectively]

General Comments about Jury Instructions, Challenge for Cause, and Stand Asides as Substitutes for Peremptory Challenges

Karakatsanis, Martin and Kasirer JJ. (Plurality with Abella and Cote on Challenges for Cause and Stand-Asides)

[105] … With respect, I part ways with my colleagues to the extent they suggest limits on how stand asides and challenges for cause may be developed under the new jury selection regime, particularly since we heard no submissions on those limits in the appeal. At this early stage in the development of the regime, and given that the proper use of these tools is not relevant to the outcome of the appeal, I would refrain from deciding their scope.

[107] The reforms effected a significant and multi-pronged recalibration of the jury selection regime. At issue in this appeal is whether one of the changes — the elimination of peremptory challenges under s. 634 of the Criminal Code — is constitutionally valid. Bill C-75 made two further changes to the jury selection scheme: first, the trial judge’s stand-aside power under s. 633 of the Criminal Code was expanded to allow jurors to be stood by to maintain “public confidence in the administration of justice”; and, second, the role of trying challenges for cause was put into the hands of the trial judge rather than lay triers, with the option left open of excusing or standing aside a juror even after they are found acceptable on the challenge for cause (ss. 632, 633 and 640).

[112] … However, given that my colleagues have provided their views, I will comment briefly on some of the considerations that are relevant in interpreting the scope of stand asides and challenges for cause.

[122] In my view, the Court should not use this case to circumscribe how judges may apply these recently-amended procedures. For the purpose of disposing of the constitutional issue before us, it is unnecessary to prescribe limits on how stand asides and challenges for cause may be used. Nor did we have the benefit of full submissions on whether those limits are appropriate. In the absence of argument on these issues, this Court should not make a ruling on them, especially one which might have the effect of foreclosing the use of the new stand-aside power for purposes that were contemplated by Parliament.

[123] … In my respectful view, a cautious approach is advisable to allow the new regime to develop organically and as intended, rather than dictating restrictive rules that hedge in the further development of safeguards designed to enhance fairness and impartiality.

Abella J.:

[157] Parliament not only abolished peremptory challenges, it overhauled the jury selection system, changing “virtually all of the rules of jury selection which affected how the jury is chosen from the jury panel” (S. Coughlan, Criminal Procedure (4th ed. 2020), at p. 457). It gave trial judges the power to decide challenges for cause and created a new stand-aside power in s. 633 of the Criminal Code, R.S.C. 1985, c. C‑46, to direct trial judges to fulfill the role of ensuring jury impartiality and representativeness.

[158] Anti-bias instructions will continue to be important, but they are not a panacea. As McLachlin J. cautioned in R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, “[w]e should not assume that instructions from the judge or other safeguards will eliminate biases that may be deeply ingrained in the subconscious psyches of jurors” (para. 22).

[159] In order to avoid bias and discrimination, the new jury selection system entrusts trial judges to vigorously exercise their authority in accordance with the Charter to ensure that Canadian juries are, and are perceived to be, impartial and representative.

[195] The test for impartiality is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude” (Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J.). An informed person would know that, throughout history, peremptory challenges enabled an accused to veto some prospective jurors without proof of cause and to influence the ultimate composition of the jury. An informed person would understand the history of discrimination faced by disadvantaged groups in Canadian society, recognize widespread and systemic racism and account for diverse realities (R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at pp. 507-9, per L’Heureux-Dubé and McLachlin JJ., and at p. 531, per Cory J.; Peart v. Peel Regional Police Services(2006), 2006 CanLII 37566 (ON CA), 43 C.R. (6th) 175 (Ont. C.A.), per Doherty J.A.; R. v. Le, 2019 SCC 34, at para. 73, perBrown and Martin JJ.).

[196] An informed person would therefore take into account the perspective of a non-white accused person facing the prospect of trial by an all-white jury. Having thought the matter through, an informed person might reasonably lose confidence in the criminal jury system unless there are safeguards that can guarantee that Canadian juries will be impartial and representative.

[198] It is true that there is a “presumption that jurors are capable of setting aside their views and prejudices and acting impartially” (Find, at para. 26). It is worth remembering, however, that for hundreds of years, juries composed only of men were accepted as impartial (R. v. Biddle, 1995 CanLII 134 (SCC), [1995] 1 S.C.R. 761, at para. 56, per McLachlin J., concurring; Sherratt, at p. 524). But we have developed an evolutionary sophistication about what impartiality means, including that fairness must not only be done, it must be seen to be done. A jury that does not look fair to an accused may not, to that accused person, be perceived as fair if he or she is not given the chance to meaningfully participate in its selection by removing a juror who seems to be partial against them.

Cote J.

[229] Peremptory challenges are not perfect. I acknowledge that they can be used in a discriminatory way. However, in attempting to combat the difficulties raised by peremptory challenges, Parliament had many options. It did not need to preserve peremptory challenges unchanged, but it did need to consider the interests of accused persons. The proper course of action for Parliament was not to abolish peremptory challenges but to regulate them. Its failure to do so is not minimally impairing. Therefore, s. 269 of the Amending Act infringes s. 11(f) of the Charter, as it is not a reasonable limit that can be demonstrably justified in a free and democratic society (Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at paras. 120‑21). To the extent that it abolishes peremptory challenges, I would declare s. 269 of the Amending Act to be of no force or effect.

[266] … The abolition of peremptory challenges therefore undermines the impartiality of juries and negatively affects racialized and other marginalized persons.

Moldaver, Brown, Wagner (Minority on Changes Except Anti-Bias Jury Instructions)

[35] As prospective jurors are drawn one by one in court, the Criminal Code provides for robust participation by both the trial judge and the parties in ensuring the impartiality of those who ultimately serve on the jury, even in the absence of peremptory challenges. In this regard, the Court of Appeal rightly emphasized the continued availability of an unlimited number of challenges for cause under s. 638(1)(b), which allow the accused to request the removal of a juror on the basis that the juror “is not impartial” after limited questioning. The Court of Appeal noted, too, that s. 632(c) permits trial judges to excuse jurors for reasons of “personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused”. While the power to excuse jurors is not a substitute for a challenge for cause (Sherratt, at pp. 533‑34), trial judges routinely excuse jurors at the outset of jury selection for a number of reasons. For instance, jurors who would find it “too difficult” to serve given the nature of the offences at issue in the trial are often excused (see R. v. B.(A.) (1997), 1997 CanLII 1902 (ON CA), 33 O.R. (3d) 321 (C.A.), at p. 443), as are jurors who are “obviously partial” because they know a party in the trial or a witness who will testify (R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 11 O.R. (2d) 464 (C.A.), at pp. 292‑93; Barrow, at p. 709).

[36] These procedures are important. They provide a mechanism for removing jurors whose impartiality is or may be in question, for any number of reasons, including that the jurors are unable to set aside a racial or other bias against the accused or complainant or they feel unable to sit through a trial involving the crimes at issue. In so doing, the procedures collectively ensure that each accused receives a fair trial before an independent and impartial jury, as required by s. 11(d) of the Charter. The abolition of peremptory challenges does not infringe this right.

[43] It follows, then, that Parliament, in abolishing peremptory challenges, sought to give greater effect to provincial initiatives to increase jury representativeness, which in turn should enhance the diversity of jury composition. To that end, the provinces are free and even encouraged to act to increase the diversity of those who appear for jury duty, including by pursuing the measures identified in the Iacobucci Report (see also Kokopenace, at paras. 126‑27). In all cases, however, the provinces’ constitutional obligation requires them to make “reasonable efforts to: (1) compile the jury roll using random selection from lists that draw from a broad cross‑section of society, and (2) deliver jury notices to those who have been randomly selected” (Kokopenace, at para. 61 (emphasis added)). As we will explain, it is these structural measures, and not the isolated discretionary decisions of trial judges, that should be relied upon to preserve and enhance the representativeness of juries in Canada, or to address any ill effects thereon arising from societal inequalities. [PJM Emphasis]

[47] Finally, before proceeding to the s. 11(f) issue, and given the parties’ and interveners’ extensive submissions on these matters, we wish to highlight the opportunities that the parties in criminal trials have to raise and address concerns about juror partiality and bias. First, in appropriate cases, trial judges should consider crafting jury charges and mid‑trial instructions that caution against the risk that bias, racial or otherwise, will taint the integrity of the jury’s deliberations. Second, the challenge for cause provisions under s. 638 of the Criminal Code continue to provide a robust mechanism for accused persons to raise concerns about a potential juror’s partiality. Third, the amended stand‑aside power under s. 633 of the Criminal Code further accounts for any gap that may have been left by the abolition of peremptory challenges. We discuss each of these in turn, but emphasize that, contrary to the views expressed by our colleague Martin J., our reasons on these matters do not constitute unnecessary obiter dicta. In light of our colleague Abella J.’s conclusion — echoing the submissions of many interveners — that the constitutionality of the abolition of peremptory challenges depends upon the trial judge’s “vigorou[s] exercise” of challenges for cause and the stand‑aside power, we find it necessary to explain the limits of these powers. We must also respectfully emphasize, however, that, contrary to the views of Côté J. (para. 231), Mr. Chouhan’s s. 11(d) rights were not prejudiced because his trial proceeded without the guidance we provide below.

Jury Instructions on Racial Bias

Moldaver, Brown, Wagner: (Majority with Karakatsanis, Martin, Kasirer on this issue)

[49] In our view, jury instructions have a critical role to play in ensuring that jurors approach their deliberations free from bias. Jury instructions can respond to a significant danger of biased reasoning, which is that many biases are unconscious: individuals often do not recognize they hold a particular bias and would likely, and honestly, deny having it if asked (M. L. Breger, “Making the Invisible Visible: Exploring Implicit Bias, Judicial Diversity, and the Bench Trial” (2019), 53 U. Rich. L. Rev. 1039, at p. 1044). And jurors must be made aware of their own unconscious biases if the influence of biased reasoning is to be eliminated (p. 1057; C. R. Lawrence III, “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism” (1987), 39 Stan. L. Rev. 317, at p. 331; F. E. Marouf, “Implicit Bias and Immigration Courts” (2011), 45 New Eng. L. Rev. 417, at pp. 447‑48; A. Su, “A Proposal to Properly Address Implicit Bias in the Jury” (2020), 31 Hastings Women’s L.J. 79, at p. 90). In appropriate cases, therefore, trial judges should consider providing the jury with instructions that will “expose biases, prejudices, and stereotypes that lurk beneath the surface, thereby allowing all justice system participants to address them head‑on — openly, honestly, and without fear” (Barton, at para. 197). Such instructions can add a measure of self‑consciousness and introspection that fosters objectivity and fairness over the course of the jury’s deliberations (Su, at p. 90).

[50] Anti‑bias instructions will be appropriate wherever “specific biases, prejudices, and stereotypes . . . may reasonably be expected to arise in the particular case” (Barton, at para. 203). This is not because of some freestanding notion or interpretive principle of “substantive equality”, as our colleague Martin J. suggests (at para. 110), but because impartiality is inherently attuned to the concept of bias. As our understanding of the nature of bias evolves, so will our understanding of what a trial judge must do to foster impartiality among members of the jury. Informed by recent case law and a modern understanding of impartiality, trial judges may therefore draw on their own professional experiences and good sense in deciding whether anti‑bias instructions are required, and the submissions of counsel will be helpful in identifying appropriate cases for such instructions. The reality is that context matters: no trial “take[s] place in a historical, cultural, or social vacuum” (Barton, at para. 198). Participants in the justice system must remain vigilant in identifying and addressing the unconscious biases that might taint the integrity of jury deliberations.

[52] With these principles in mind, we suggest two types of jury instructions that can address the risk of bias in appropriate cases: (i) general instructions on biases and stereotypes; and (ii) instructions on specific biases and stereotypes that arise on the facts of the case.

General Anti-Bias Instructions

[53] 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” (A. Roberts, “(Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias” (2012), 44 Conn. L. Rev. 827, at p. 833).

Instructions on Specific Biases and Stereotypes

[56] Any number of specific biases or stereotypes could arise in a given case. These biases or stereotypes may pose a significant challenge to the public interest in truth‑finding that characterizes all criminal prosecutions in this country (Ferguson and Dambrot, at p. 1.02A‑2; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 109; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577). When tailoring bias instructions to a specific trial, trial judges and counsel should consider the relevance of context and the harmful nature of stereotypical assumptions or myths.

[58] The trial judge must be alive to the particularities of each individual trial that might present the danger of a juror being influenced by unconscious bias. Recognizing that there is no “magic formula”, trial judges should identify the characteristics of the parties or the witnesses that give rise to the risk of unconscious bias, dispel common stereotypes, and direct the jurors to decide the case with an open mind based on the evidence before them (Ferguson and Dambrot, at p. 1.02A‑7). The submissions of counsel will be integral to this process.

Karakatsanis, Martin, Kasirer JJ:

[110] I further endorse the guidance Moldaver and Brown JJ. provide on the need for jury instructions on bias and the vital role such initiatives play in spurring juror introspection, self-consciousness and accountability. They rightly acknowledge that courts must take active steps throughout the proceedings to ensure decision-making is free of prejudice, myths and stereotypes. These aspects of my colleagues’ reasons are consistent with substantive equality and the principles established by this Court in R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, R. v. Barton, 2019 SCC 33, and R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688. Their guidance on these points reflects a contextualized approach that looks beyond overt and intentional discrimination to structural and unconscious bias that may undermine trial fairness, juror impartiality and equality for accused persons and victims.

Challenge for Cause

Karakatsanis, Martin and Kasirer JJ. (Some support of Broadening Intrusiveness)

[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).

[120] It is true that when questioning prospective jurors on their biases, the privacy interests of those persons must be respected (Kokopenace, at para. 74, per Moldaver J.; at para. 156, per Karakatsanis J.; and at para. 227, per Cromwell J. (dissenting but not on this point)). With good reason, this Court has explicitly declined to adopt the kind of highly intrusive questioning for challenges for cause that can be seen in the United States (Find, at para. 27). Yet privacy is just one interest to be weighed against others (V. MacDonnell, “The Right to a Representative Jury: Beyond Kokopenace” (2017), 64 Crim. L.Q. 334, at p. 346).

Abella J.:

[160] The new robust challenge for cause process will require more probing questions than have traditionally been asked to properly screen for subconscious stereotypes and assumptions …

[161] A robust challenge for cause process will mean “a more sophisticated manner of questioning” (D. M. Tanovich, “The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System” (2008), 40 S.C.L.R. (2d) 655, at p. 683). It will require alternatives and modifications to the question proposed in R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), new questions, and new formats, with trial judges asking questions that they believe, based on their common sense and judicial experience, will assist in rooting out biases. The need for this new emphasis on judicial intervention is explained by the Canadian Association of Black Lawyers in its factum as follows:

The commonly permissible challenge questions considered in only minutes fail to respect the importance of the task and cannot scratch the surface of attitudes or beliefs that are “elusive” and deeply ingrained in the subconscious. [para. 32]

Moldaver, Brown, Wagner: (Minority on Broadening Intrusiveness)

[61] Accordingly, this case presents an opportunity to comment on the procedure for challenges for cause given our growing knowledge of the ways in which unconscious bias can affect the impartiality of a juror. This Court has “faced up to” the fact that racial prejudice and discrimination are present in society and must be directly addressed in the selection of jurors (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 1). We therefore acknowledge that a wide range of characteristics — not just race — can create a risk of prejudice and discrimination, and are the proper subject of questioning on a challenge for cause.

[62] While widespread bias cannot be presumed in all cases, the parties do not face an onerous burden for raising a challenge for cause. The accused person or the Crown must merely demonstrate a reasonable possibility that bias or prejudicial attitudes exist in the community, with respect to relevant characteristics of the accused or victim, and could taint the impartiality of the jurors. In most cases, expert evidence will not be necessary: challenges for cause must be available wherever the experience of the trial judge, in consultation with counsel, dictates that, in the case before them, a realistic potential for partiality arises. 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 (Spence, at para. 24; R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, at para. 55; Find, at para. 45).

[64] 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. Before posing that question to jurors, trial judges ought to call each individual juror’s attention to the possibility of unconscious bias and impartiality. It should be stressed that the mischief is not in acknowledging a difficulty setting aside unconscious bias, but in failing to acknowledge such a difficulty where one exists.

[66] … While we agree that the Parks question was never intended to be the only question available on a challenge for cause (R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.)), we caution that trial judges who permit questions beyond the Parks formulation must be mindful of the fundamental principle of respect for jurors’ privacy upon which our system of jury selection has “long been based” (Kokopenace, at para. 74, perMoldaver J.; at para. 155, per Karakatsanis J.; and at para. 227, per Cromwell J. (dissenting but not on this point)).  … [Emphasis by PJM – Minority on This Position]

[67] 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 (Criminal Code, s. 640(1)). 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….

Judicial Stand-Asides under Section 633

Karakatsanis, Martin and Kasirer JJ.

[113] With respect to the stand-aside power, I would caution against placing undue weight on the principle of random selection. Randomness plays a key role in the selection of juries (R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at p. 525) and can be a means to advance jury representativeness and impartiality. However, randomness is neither an end in itself (R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91, at p. 114, per Gonthier J. (dissenting); R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 219 O.A.C. 26, at para. 25) nor a freestanding constitutional imperative. The jury selection system is not and has never been one of pure random selection: challenges for cause, the Crown’s former stand by power, and peremptory challenges each involve a departure from random selection.

[114] Further, in an unequal society, randomness may prevent deliberate exclusion while nonetheless producing discriminatory outcomes. This Court has recognized that “racial prejudice and discrimination are intractable features of our society” (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 1). Many systemic factors distort the composition of the roll, the composition of those who show up for jury duty, and the composition of those ultimately selected for the petit jury, leading to underrepresentation of certain groups at all stages (see, e.g., K. Roach, “Juries, Miscarriages of Justice and the Bill C-75 Reforms” (2020), 98 Can. Bar Rev. 1; F. Iacobucci, First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by The Honourable Frank Iacobucci (2013); see also G. T. Roccamo, Report to the Canadian Judicial Council on Jury Selection in Ontario (June 2018) (online), at p. 11).

[115] It is open to Parliament to legislate to address these problems. Random selection from broad-based lists was established as a constitutional minimum in R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398. However, that case did not address whether Parliament could implement further measures for assuring representativeness and impartiality, including measures to deliberately include underrepresented groups.As long as such measures comply with the Constitution, the only question is what Parliament intended.

[116] Here, the words Parliament used to communicate its intention were “public confidence in the administration of justice”. In interpreting this phrase, courts must take the perspective of “reasonable, well-informed members of the community, but not legal experts with in-depth knowledge of our criminal justice system” (R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 5). It is true that the reasonable person will know of other safeguards in the jury selection process that seek to advance the independence and impartiality of the jury. However, an informed observer is also “taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community” (R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, atpara. 111, per Cory J.). Moreover, a reasonable observer is taken to be “properly informed about ‘the philosophy of the legislative provisions’” and Chartervalues (R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, atpara. 41, citing R. v. Nguyen(1997), 1997 CanLII 10835 (BC CA), 97 B.C.A.C. 86, at para. 18; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 68; St-Cloud, at para. 79). Included among those values is substantive equality, “the animating norm of s. 15 of the Charter” (Barton, at para. 202).The reasonable observer would be aware that the amendments in Bill C-75 respond to long-standing concerns about inadequate Indigenous representation on juries and the resulting impacts on public confidence. Those concerns were articulated by the Manitoba Aboriginal Justice Inquiry in 1991 in relation to the case of Helen Betty Osbourne (Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba, vol. 2, The Deaths of Helen Betty Osborne and John Joseph Harper (1991), at pp. 85-88) and carry through to the present day (Roach (2020), at p. 13).

[117] I acknowledge that departing from randomness by using the stand-aside power to enhance diversity may give rise to practical challenges. However, those problems should not be overstated. The mischief targeted by Parliament was the all-too-common incidence of all-white juries in trials involving Indigenous and racialized accused persons or victims in spite of the diversity of the local community. It is obvious that Parliament had no intention of requiring judges to guarantee that every jury represents a “national ideal of Canadian diversity . . . irrespective of the particular diversity of the local community” (reasons of Moldaver and Brown JJ., at para. 75). Section 633 does not impose rigid requirements respecting the precise composition of the jury, but rather confers a broad and flexible discretion that can be tailored to the circumstances in which it is exercised.

[118] In my respectful view, the question of whether and to what extent the stand-aside power can be used to enhance jury diversity should be left to another day when it is squarely before us. My colleagues’ resolution of the main issue on this appeal — whether the elimination of peremptory challenges is constitutional — does not require them to impose limits on the stand-aside power. We heard no argument on the practical challenges of using stand asides in this way, and it has not been clearly shown that those challenges are constitutional in nature or insurmountable in practice. Determining the standard to maintain “public confidence in the administration of justice” raises complexities not fully aired here and it is inappropriate to decide them in this appeal.

Abella J.:

[162] The legislative intent behind the new stand-aside power was to empower trial judges to ensure impartiality and “tomake room for a more diverse jury”, in order to maintain public confidence in the administration of justice (House of Commons Debates, at p. 19605). Its purpose is to “provide an opportunity for a judge to consider whether a jury appears to [be] sufficiently representative or appropriately empanelled to promote a just outcome, perhaps even considering whether racial bias could be a factor” (Library of Parliament, Bill C-75: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, Legislative Summary 42-1-C75-E, by Laura Barnett et al., revised July 25, 2019). It is based on an understanding of representativeness which looks to the actual composition of the jury, as opposed to the randomness of the selection process (Coughlan, at p. 466; see also V. MacDonnell, “The Right to a Representative Jury: Beyond Kokopenace” (2017), 64 Crim. L.Q. 334; B. Kettles, “Impartiality, Representativeness and Jury Selection in Canada” (2013), 59 Crim. L.Q. 462).

[163] The enhanced stand-aside mechanism in s. 633 seeks to counteract systemic discrimination in jury selection and recognizes that public confidence in the administration of justice is undermined when random selection routinely results in all-white juries. It gives trial judges the discretion “to make room for a more diverse jury” (House of Commons Debates, at p. 19605).

[164] While Canada’s kaleidoscope of human diversity cannot realistically be mirrored on every jury, trial judges can use the legislative tools that they have been given in Bill C-75 to actively promote jury diversity on a case by case basis. The goal is the selection of a “representative cross-section of society, honestly and fairly chosen” (R. v. Sherratt,1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at p. 524). Actively promoting jury diversity is not reverse discrimination, it is reversing discrimination. As Blackmun J. famously observed in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), at p. 407,“to get beyond racism, we must first take account of race”.

[199] Representativeness “is an important guarantor of impartiality” (Kokopenace, at para. 50; Williams, at para. 47), and its absence undermines the appearance of fairness and the ability of the jury to perform the functions that make it beneficial in the first place. As Moldaver J. explained in Kokopenace:

In contrast to its limited role in s. 11(d), the role of representativeness in s. 11(f) is broader. Representativeness not only promotes impartiality, it also legitimizes the jury’s role as the “conscience of the community” and promotes public trust in the criminal justice system: Sherratt, at pp. 523‑25; Church of Scientology, at pp. 118-20. Representativeness is thus a necessary component of an accused’s s. 11(f) right to a jury trial.

. . .

Because representativeness is a key characteristic of the jury, its absence will automatically undermine the s. 11(f) right to a trial by jury. [paras. 55‑57]

[200] Representativeness matters not because a juror’s personal characteristics are indicative of how he or she will decide the case, but because if the right to be tried by a jury of one’s peers means anything, it means that members of a jury must be, and be seen to be, open-minded, regardless of their own or the accused’s race, religion, sex, gender identity, sexual orientation, political affiliations, age or economic status (see M. Minow, “Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors” (1992), 33 Wm. & Mary L. Rev. 1201, at p. 1217; D. Ramirez, “Affirmative Jury Selection: A Proposal to Advance Both the Deliberative Ideal and Jury Diversity” (1998), U. Chicago Legal F. 161, at pp. 162-66; Kettles, at p. 466). And that means a jury that looks more like Canada.

Cote J.

[250] The first element of the benefit of trial by jury that has been recognized is that the jury is an excellent fact finder (Sherratt, at p. 523). In the words of Lord du Parcq, “when questions of fact have to be decided, . . . there is no tribunal to equal a jury” (Aspects of the Law (1948), at p. 10). The jury’s superior fact‑finding ability comes from both the cumulative abilities of its members and the diversity of their experiences. The evaluation of evidence often requires making judgments about human behaviour. Triers of fact must rely on their common sense and personal experiences to determine whether witnesses are sincere, accurate and credible. Each juror brings their own personal experience to this assessment, and thus the cumulative experience of the jury is greater than that of any one individual, or of any group of individuals who have largely shared similar life experiences. The group size also means that a jury benefits from the collective recall of all jurors. Whereas one decision maker may forget a particular aspect of the evidence, it is less likely that the jury will miss something because the twelve jurors deliberate as a group. Finally, the deliberative nature of the jury also contributes to better fact finding because each detail is discussed and scrutinized by the group (Law Reform Commission of Canada, Working Paper 27, The Jury in Criminal Trials (1980), at pp. 6-7).

[251] The second element of the benefit of trial by jury is that a jury represents the conscience of the community (Turpin, at pp. 1309-10; Sherratt, at p. 523; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 55; Stillman, at para. 28). The Law Reform Commission of Canada explained that given the generality of the law, cases will arise in which a rigid application of the law will lead to an inequitable result. The jury, composed of a representative cross-section of society, is best placed to determine whether applying the law to a particular set of facts would be inequitable or would accord with society’s values. Indeed, many jurists argue that “in serious cases it is the jury who must retain the ultimate responsibility for dispensing equity” (Law Reform Commission, at p. 9).

[272] Although the processes established in compliance with Kokopenace aim to deliver a representative jury, they are not results‑focused and do not guarantee that a jury roll’s composition will be in any way proportionate to that of the general population (para. 39). In practice, this leads to jury rolls that are under‑representative of racialized and other marginalized persons. There are several reasons for this. First, some marginalized groups are under‑represented on the lists from which provincial governments draw jury rolls. For instance, selecting names primarily from municipal assessment rolls excludes many Indigenous persons (Hon. F. Iacobucci, First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by The Honourable Frank Iacobucci (2013) (“Iacobucci Report”), generally and at para. 150; Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba, vol. 1, The Justice System and Aboriginal People (1991), at pp. 377-87). Second, persons convicted of certain offences are prevented from serving on a jury under the various provincial statutes and the Code (s. 638(1)(c)). A disproportionate number of Black and Indigenous persons are in custody or possess criminal records (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 61; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 83; R. v. Zora, 2020 SCC 14, at para. 79; R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at para. 26). Third, the jury statutes and the Code similarly prevent non-Canadian citizens from serving as jurors (s. 638(1)(d)). Permanent residents are disproportionately members of marginalized groups. Fourth, some marginalized persons may be prevented from serving because they do not speak the official language of the accused (Code, s. 638(1)(f)). Other marginalized persons may fail to respond to jury notices because they view the Canadian justice system with suspicion. Finally, in most provinces, the sheriff has the power to exempt individuals from jury service if it poses a hardship. This typically results in the exclusion of persons living in remote areas and low-income individuals (Kokopenace, at para. 44).

[273] While I accept that Kokopenace set the constitutional minimum required for representativeness, it did not exhaustively define representativeness. The core of representativeness remains a “representative cross-section of society, honestly and fairly chosen” (para. 39, citing Sherratt, at p. 524). The in-court selection processes can enhance representativeness and thus further the benefit of trial by jury, especially where the randomized jury roll has failed to result in an array that truly represents the diversity of the area.

[276] On the surface, competence in relation to understanding the evidence means that a juror must have the willingness and capacity to understand it. Problems of capacity may arise in cases involving voluminous or complex evidence, such as financial, medical or scientific evidence. However, in the context of the benefit of trial by jury, there is another source of inability to understand evidence: life experience. A juror whose “experience of life has not embraced the area of the dispute” is likely to have a “blind spot of which he is quite unconscious” and which “may prevent him from getting the point of testimony or argument” (L. L. Fuller, “The Forms and Limits of Adjudication” (1978), 92 Harv. L. Rev. 353, at p. 391).

[277] This second source of incompetence has detrimental effects on the benefit of trial by jury. The benefit of trial by jury is partly a product of the jury applying common sense, and common sense itself is the product of personal experience (Law Reform Commission of British Columbia, Report on Peremptory Challenges in Civil Jury Trials (1983), ch. 2, section C). If a jury is composed entirely of members whose life experiences are fundamentally different from those of the accused, then the jury may not have the common sense necessary to be a superior fact finder. Recall that the jury’s superior fact‑finding ability comes from the diversity of its collective experience. Since assessments of evidence and especially credibility are based almost entirely on our own experiences interacting with people, jurors who have never interacted with people like the accused or the accused’s witnesses will be poor judges of credibility. Similarly, if a jury is unable to empathize with the accused, then the possibility of jury equity is equally lost.

Moldaver, Brown, Wagner: (Minority on this Issue)

[71] 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.

[74] It follows that we respectfully reject our colleague Abella J.’s suggestion that trial judges use the stand‑aside power to “actively promote jury diversity” and to approximate “Canada’s kaleidoscope of human diversity” (para. 164). Parliament did notwrite into law that the stand‑aside power is to be used to bolster jury diversity as our colleague has conceived of it, but, again, for “maintaining public confidence in the administration of justice”. As a matter of law, we cannot accept that public confidence in the administration of justice depends on achieving a jury that approximates the diversity of Canadian society.

[79] We raise these questions to highlight that what our colleague Abella J. and some interveners propose would alter in a fundamental way the nature and practice of jury selection in this country. This Court has, with good reason, declined to interpret the imperatives of jury representativeness and impartiality as requiring diversity among the members of the petit jury. As a constitutional matter, diverse juries depend not on gerrymandered juries, but on diverse jury panels. And diverse jury panels are preserved not by the use of stand asides to remove jurors by reason of their particular background, but by rules that do not undermine their diversity.

[80] This last point — the crucial importance of diverse jury panels to secure diverse juries — merits special emphasis. Here lies the prime importance ascribed by this Court in Kokopenace to randomness, since that equal chance to be selected for the jury depends fundamentally on the randomness of the jury selection process. We endorse the explanation of one commentator for why, as a matter of logic, any departure from randomness will necessarily lead to lesser, not greater, representativeness on the jury…

[81] For all of these reasons, we must conclude that the judicial stand‑aside power, as amended, cannot be used in the manner that our colleague Abella J. and various interveners suggest. To the contrary, the reasonable, informed observer would lose confidence in a jury selection process that requires trial judges to sacrifice the vital principle of randomness on the altar of diversity and select individual jurors merely on the basis of their race or other aspects of their identity. Reductionist premises, racial or otherwise, have no place in jury selection. This, in turn, calls into question the statement of the then‑Minister of Justice that the amended stand‑aside power would enable judges to “make room for a more diverse jury”.

[82] To be sure, the abolition of peremptory challenges will go a long way to augment the diversity of juries, for the reasons we have given. And, as the reasons of Rowe J. make clear, Parliament and the provincial legislatures may, within constitutional bounds, pursue further legislative reform designed to better promote or enhance the diversity of the petit jury. But this amendment to the stand‑aside power, as we have explained, does not do so.

R v Mehl, 2021 BCCA 264

[June 30, 2021] Reasonable Apprehension of Bias by a Juror [Fitch, Butler, Abrioux JJ.A.]

AUTHOR’S NOTE: Reasonable apprehension of bias is difficult to make out against judges who are required to give reasons; for juror’s who aren’t the prospect is even more challenging. Here, a rare example of a completely non-verbal series of apparent communications with the victim’s family in a homicide case crossed the line. The facts provide an impetus for counsel to be far more observant of the interactions between jurors and people in the body of the courtroom. 

Introduction and Overview

[1] The appellant was charged with committing the first degree murder of her 18month-old daughter, Charlotte Cunningham. She was tried before a judge of the Supreme Court of British Columbia, sitting with a jury, over four weeks commencing September 11, 2017.

[2] The appellant was represented at trial by Jeremy Mills and Kirk Karaszkiewicz. Mr. Mills was lead counsel for the defence. Mr. Karaszkiewicz was primarily responsible for leading the expert evidence called by the defence. He was present throughout the trial and was consulted by Mr. Mills on the most significant strategic decisions that arose during the proceedings.

[3] The offence was committed in the early morning hours of September 16, 2015. The appellant made a formal admission at trial that she caused Charlotte’s death by feeding her a lethal quantity of Zopiclone, a prescription sleeping pill, mixed with yogurt. Charlotte died from a Zopiclone overdose. The appellant also took a potentially fatal dose of Zopiclone that evening in a failed suicide attempt.

[4] The offence occurred in the context of an acrimonious marital breakdown involving the appellant and her now ex-husband, Daniel Cunningham. The appellant sent an email to Daniel Cunningham and others at 1:36 a.m. on September 16, 2015 explaining her conduct and asking for forgiveness. The email reads, in material part, as follows:

To everyone who loved and supported me, I’m sorry. It’s not that you and your hearts and help weren’t enough…It’s that I’m not strong enough. This process and system are not set up for truth and justice. And I don’t want to spend the rest of my life fighting a losing battle. I know no other way to protect Charlotte and make those horrible stop. There is no hope for improvement so escape is my only option. Forgive me.

[Emphasis added.]

[5] The theory of the Crown was that the appellant killed Charlotte because she was determined to prevent Daniel Cunningham, and his family, from having custody of and access to her daughter.

[21] In her second ground of appeal, the appellant says the in-court conduct of one of the jurors—conduct never drawn to the trial judge’s attention and not reflected on the record—gives rise to a reasonable apprehension of bias on the part of the juror and a corresponding failure of the appearance of justice. The appellant alleges that, at various points during the trial, the juror made supportive hand gestures and directed other non-verbal forms of communication towards members of the Cunningham family (Charlotte’s father and extended paternal family), who were seated in the gallery. The appellant says the juror repeated this conduct at critical points in the trial, including the day counsel delivered their closing addresses and when the jury returned with its verdict rejecting the NCR defence. Viewed collectively, the appellant says the conduct gives rise to a reasonable apprehension that the juror did not maintain an impartial bearing and would not have decided the case fairly.

[22] The two grounds of appeal overlap in at least two ways. First, both grounds assert a failure of the appearance of justice. Second, the appellant says Mr. Mills provided ineffective legal assistance (the first ground of appeal) by failing to raise with the trial judge his knowledge of the juror’s conduct (the second ground of appeal) at any point during the trial.

[23] A substantial body of fresh evidence, in affidavit and viva voce form, was tendered by the parties on both grounds of appeal. The appellant, both of her trial counsel, and nine other witnesses, who attended all or some of the trial and claim to have made observations respecting the conduct of the juror, were cross-examined before us over six days in December 2020. Consistent with our usual practice when the fresh evidence goes to the integrity of the trial process, we received all of the evidence for the limited purpose of evaluating the miscarriage of justice claim underlying both grounds of appeal: R. v. Aulakh, 2012 BCCA 340 at paras. 56–68; R. v. Hamzehali, 2017 BCCA 290 at paras. 32–39, leave to appeal ref’d [2017] S.C.C.A. No. 380.

[25] In our view, a new trial is required in this tragic case on both grounds. These are our reasons for coming to this conclusion.

Ineffective Assistance: Failure to Raise Juror’s Conduct with the Judge

[203] Our factual findings respecting the juror’s in-court conduct are summarized herein at para. 462. Briefly, on September 18 or 19, Mr. Mills saw one of the jurors tap their fist twice over their heart as they re-entered the courtroom following a break in the proceedings. We are satisfied that Mr. Mills knew the gesture was directed at members of the Cunningham family seated in the gallery. The appellant had already reported to Mr. Mills that she had seen the juror make the same hand gesture in the direction of the Cunningham family. In addition, the appellant had previously reported to Mr. Mills that the same juror “keeps smiling” at Brent Cunningham.

[204] Mr. Mills considered that the juror’s conduct might amount to little more than a momentary expression of sympathy towards the Cunningham family at a particularly emotional moment during the trial. But he also knew that the juror had made the gesture on at least two occasions and that it could signify an inappropriate expression of support for or solidarity with the Cunningham family. That is why he brought his observation and concerns to the attention of three sheriffs. Mr. Mills demonstrated the gesture made by the juror to Sheriff Philip, who interpreted it “as a possible sign of support, solidarity, ‘I feel for you’, ‘I’m with you’, or something of this nature”. Mr. Mills also told Sheriff St. Gelais that he thought the gesture could be interpreted as an expression of solidarity.

[205] Despite his observations and concerns, Mr. Mills decided, after consulting with the appellant and Mr. Karaszkiewicz (who had not seen the gesture), not to raise the issue with the trial judge. He determined, instead, to alert the sheriffs to the conduct and be on the lookout himself for any similar behaviour on the part of the juror.

[206] In his first affidavit, Mr. Mills explained the strategic considerations he took into account in deciding not to bring his observations, or those of the appellant, to the attention of the judge:

…We discussed the upsides and downsides of bringing it to the attention of the Court and conducting an inquiry of the juror. The problem was that this was a highly emotional case and it was not clear to me what the juror’s gesture meant. It could have been an expression of sympathy for the [Cunningham] family which, while wholly inappropriate, did not necessarily mean that this juror was biased…

The gesture could have meant something more sinister in which case seeking [the juror’s] dismissal was important. On the other hand, if we conducted an inquiry and the juror was not dismissed, [the juror] would be sent back into the jury room with possible negative consequences to Ms. Mehl (even if [the juror] was cautioned not to talk about the inquiry).

[207] Given his assessment of the matter, Mr. Mills considered that “the path was by no means clear”. After seeking the appellant’s input, Mr. Mills says, “we decided…I would speak to one of the sheriffs about the gesture and ask that the jury be reminded not to make gestures of any kind.” As Mr. Mills never raised this issue with the judge and never asked her to instruct jurors not to make gestures towards spectators seated in the gallery, we understand his evidence to be that he considered it appropriate to ask the sheriffs to convey this admonition to the jury.

[208] Neither Mr. Mills nor Mr. Karaszkiewicz saw the juror engage in this conduct again, but there is no doubt, as we explain below, that the juror repeated the behaviour later in the trial.

[210] In the specific circumstances of this case, we agree with the appellant’s position on this issue. In our view, Mr. Mills had an obligation to his client and to the court to alert the judge to what he had personally observed and to what had been reported to him by the appellant. We are also satisfied that Mr. Mills’ rationale for not doing so rested on an unreasonable understanding of how the matter might be dealt with had it been raised.

[211] First, Mr. Mills’ understanding that the sheriffs could remind the jury not to make in-court gestures to spectators reflects a profound misunderstanding of the roles of the sheriffs and the trial judge. Reasonably competent counsel would have known that the responsibility to address this matter rested with the judge, not the sheriffs.

[212] Further, the suggestion by Mr. Mills that raising the issue would necessarily have led to an inquiry involving the juror is wrong. Had the issue been raised we think it unlikely that the judge, in the exercise of her discretion, would have undertaken an inquiry of the type contemplated by Mr. Mills. The matter might well have been addressed by reminding the jurors of their role as impartial judges, and by cautioning the jury as a whole not to engage in any type of behaviour in court that could give rise to a reasonable apprehension of bias. It is by no means certain an individualized inquiry would have been conducted of the juror or, even if it were, that it would have risked alienating the juror from the defence.

[213] For reasons we will develop in addressing the second ground of appeal, the failure of counsel to properly discharge his responsibilities on this issue led to a proceeding that was unfair in appearance.

Reasonable Apprehension of Bias – Juror’s Conduct

[268] It is axiomatic that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”: The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256 at 259, per Hewart C.J. The attainment of both goals—justice in fact and in appearance—is essential to the preservation of the good repute of the administration of justice. As Benotto J.A. put it in R. v. Dowholis, 2016 ONCA 801 at para. 21, “[i]n order to maintain public confidence in the administration of justice, the appearance of judicial impartiality is as important as the reality”.

[269] In Wewaykum Indian Band v. Canada, 2003 SCC 45 at para. 57, the Court explained that “public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so” [emphasis added]. Justice Cory put it this way in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 94:

[270] The stringent test for a reasonable apprehension of bias is not at issue on this appeal. It was definitively stated in Committee for Justice and Liberty et al v. National Energy Board et al, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394–395, per de Grandpré J. (dissenting in the result) in these terms:

… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information … [The] test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” … The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

[Emphasis added.]

[273] As may be seen, the test incorporates two objective elements: the person viewing the circumstances must be reasonable, and the apprehension of bias must be reasonable in the circumstances of the case: S. (R.D.) at para. 111.

[274] Further, the reasonable person’s perspective must be an informed one. In this case, a reasonable person’s perspective would be informed by a number of considerations, including: the oath the juror took to “well and truly try” the case “according to the evidence”; the instructions the juror received, including to decide the case impartially, without sympathy for or prejudice against anyone; and the strong presumption that jurors adhere to their oaths and follow instructions given to them by the presiding judge, rebuttable only upon cogent evidence to the contrary: R. v. Teskey, 2007 SCC 25 at para. 21; R. v. Spence, 2005 SCC 71 at paras. 21–23; R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at 692–693; R. v. Durant, 2019 ONCA 74 at paras. 146–151; R. v. Wolfe, 2005 BCCA 307 at para. 32, leave ref’d [2005] S.C.C.A. No. 342.

[275] A reasonable and informed person would also know that jurors, unlike judges, do not apply for the job but are, as a duty of citizenship, called upon to make difficult decisions, often in the face of highly distressing evidence. A reasonable and informed person would not expect jurors to discharge their duties, regardless of the circumstances, without observable emotion. A reasonable and informed person would not expect jurors to act, without exception, as unfeeling automatons. A reasonable and informed person would know that jurors cannot be expected to mask their emotions or conceal any vestige of human empathy upon entering the courtroom, regardless of the nature of the case being tried.

[276] Judges and jurors must strive to ensure that nothing they do or say during the course of the trial might leave a reasonable, informed person with the impression that a decision would not be reached impartially or by a mind that is not open to persuasion. At the same time, a reasonable and informed observer would not jump to a conclusion that a display of empathetic emotion or an isolated, non-verbal acknowledgement of sympathy necessarily betrays the existence of an underlying pre-disposition or bias. A reasonable and informed observer would also know that, where it is conduct that is said to have given rise to a reasonable apprehension of bias, the conduct must be assessed contextually and not in isolation, against the background of the whole of the proceeding. The cumulative effect of alleged improprieties may be more significant than any single transgression: Miglin v. Miglin, (2001), 2001 CanLII 8525 (ON CA), 53 O.R. (3d) 641, [2001] O.J. No. 1510 at paras. 28–30, rev’d on other grounds 2003 SCC 24.

[278] The concept of impartiality refers to a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and the submissions of counsel. Impartiality connotes the absence of bias, actual or perceived: Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673 at 685. In contrast, bias denotes a state of mind that is predisposed to a particular result—a state of mind that prematurely “sways judgment” and gives rise to “a leaning, inclination, bent or predisposition towards one side or another or a particular result”: S. (R.D.) at paras. 104–106, citing with approval R. v. Bertram, [1989] O.J. No. 2123 at 51–52 (H.C.) per Watt J. (as he then was).

[279] The strong presumption of judicial impartiality informs the rule that the grounds asserted in support of a reasonable apprehension of bias claim must be substantial and supported by cogent evidence, and that the test itself requires demonstration of a real likelihood or probability of bias. A juror is a judge: Dowholis at para. 18. Just as the test for a reasonable apprehension of bias applies to the conduct of jurors so, too, does the presumption of impartiality: R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128 at para. 13. The presumption is foundational in our law; it is not easily displaced: Yukon Francophone School Board at para. 25; Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 at paras. 14–22; Teskey at para. 21, per Charron J. (for the majority), and at paras. 28–34, per Abella J. (dissenting); R. v. Godwin, 2018 ONCA 419 at para. 13.

[280] Once established, however, a reasonable apprehension of bias incurably taints the proceedings: R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537 at paras. 6–7; Khan at para. 70. Preservation of the integrity of the justice system will ordinarily require the granting of a new trial. In a criminal context, appellate intervention under s.686(1)(a)(iii) of the Code will be required to relieve against the ensuing miscarriage of justice: S. (R.D.)at para. 100.

[281] In summation, the reasonable apprehension of bias inquiry is inherently contextual and case-specific, with a correspondingly high burden to prove the claim on the party alleging bias: Yukon Francophone School Board at para. 26. While previous judgments are helpful in discerning the governing principles and as illustrations of the application of those principles in unique contexts, they are not determinative of the resolution of this appeal.

The Facts on the Fresh Evidence Application

[462] We are, however, satisfied that the fresh evidence pertaining to the in-court conduct of the juror establishes at least this much:

• On September 18, 2017—the first day of the second week of the trial—the juror began looking directly at the Cunningham side of the gallery and smiling. We cannot say how many times this occurred, but we are satisfied that the juror repeated this conduct over the course of the day. In doing so, the juror may have been attempting to attract the attention of Sarah Pridy;
• On September 18 and/or 19, the juror made the hand gesture (a right hand, close-fisted double tap over the heart) on at least two occasions. The first was witnessed by the appellant; the second by Mr. Mills. The same gesture was likely observed by Ms. Riley and Ms. Porter from their location on the left side of the gallery;
• We find that both gestures were directed at the Cunningham family;
• We accept Mr. Mills’ recollection that it is likely he saw the juror make the hand gesture during the testimony of Cst. Moretto on September 19;
• Taking into account both the nature of the gesture and the emotionallycharged context in which it was made, Mr. Mills understood that the juror’s conduct might amount to little more than a momentary expression of sympathy towards the Cunningham family. But he also knew, given that the juror had made the gesture twice and was said by the appellant to be smiling in the direction of the Cunningham family, that it could signify an expression of support or solidarity towards the paternal family of the deceased child. That is why he brought his observation and related concerns to the attention of three sheriffs;
• After consulting with the appellant and his co-counsel, Mr. Karaszkiewicz, Mr. Mills determined not to raise the issue with the trial judge, but to alert the sheriffs to his observation and be on the lookout for any similar behaviour on the part of the juror;
• Mr. Mills demonstrated the gesture made by the juror to Sheriff Philip, who interpreted it “as a possible sign of support, solidarity, ‘I feel for you’, ‘I’m with you’, or something of this nature”;
• Mr. Mills told Sheriff St. Gelais that he thought the gesture could be interpreted as an expression of solidarity;
• Neither Mr. Mills nor Mr. Karaszkiewicz saw the juror repeat the hand gesture. From their location at counsel table, they would not have been able to see the gesture unless they turned around and watched the juror enter and leave the courtroom;
• We are unable to find on a balance of probabilities that the juror’s subsequent conduct was brought to the attention of Mr. Mills or Mr. Karaszkiewicz later in the trial. We acknowledge that it is possible this did occur. If it did, we conclude that neither Mr. Mills nor Mr. Karaszkiewicz understood the Mehl supporters to be conveying to them that the observations they made were in addition to those that were made on September 19;
• The sheriffs did not see the juror make facial or hand gestures towards the gallery at any point during the trial;
• On September 25, the juror repeated the hand gesture on one occasion. Again, the gesture was directed towards the Cunningham side of the gallery;
• On October 2, the juror winked and smiled towards the Cunningham side of the gallery. The behaviour was understood by Ms. Range and Ms. Ross to be directed specifically towards either Daniel or Brent Cunningham. We are unable to make this specific finding. Ms. Pridy was likely sitting immediately behind Daniel Cunningham in the gallery at the time. We are, however, satisfied that the wink and smile was directed at the Cunningham family;
• On October 3—the day upon which counsel delivered their closing addresses and the jury was charged on the appellant’s liability for the first degree murder of her infant child—the juror smiled, smirked and nodded in the direction of the Cunningham family, and repeated the hand gesture on one occasion;
• On October 4—the day upon which the jury convicted the appellant of first degree murder and found her criminally responsible for Charlotte’s deaththe juror made the hand gesture again towards the Cunningham side of the gallery. It is likely that the gesture was made when the jury returned with its verdict finding the appellant criminally responsible for her acts (though it is possible the juror may also have done so when the jury returned with the guilty verdict to first degree murder);
• Ms. Pridy was sufficiently troubled by the juror’s conduct on October 4 to immediately bring it to the attention of Crown counsel. We infer from her conduct that she did not regard the hand gesture as a benign expression of sympathy;
• The Mehl supporters were similarly disturbed by the juror’s conduct. They described what they saw as “surprising”, “shocking”, and something that “completely floored” them;
• The text messages do not reflect all of the occasions upon which the juror made hand or facial gestures towards the Cunningham family;
• We are unable to quantify the number of occasions on which the juror smiled, nodded and/or winked in the direction of the Cunningham family during the trial. We are satisfied that this occurred on several occasions, including on October 2 and 3—the latter date being the day upon which counsel delivered their closing addresses; and
• The juror made the hand gesture in the direction of the Cunningham family on no fewer than five occasions during the trial.

Application of the Principles

[464] The central question before us is whether the conduct of the juror, viewed collectively, is such that a reasonable and objective person, apprised of the whole of the circumstances, would reasonably conclude that the juror displayed a predisposition to outcome. The impact of the juror’s conduct on the appearance of trial fairness is a context specific, fact-laden exercise. But neither is the inquiry unbounded by established principles.

[465] As noted in Khan at para. 74, “certain elements can provide reference points in determining whether a miscarriage of justice has occurred”. In this context, they include: the centrality of the events said to give rise to a miscarriage of justice; the gravity of the events; the effect of the events in issue and, specifically, whether a reasonable observer would consider those events to have had a significant and deleterious impact on the appearance of trial fairness; whether the event was an isolated incident or repeated; the cumulative effect of repeated events on the appearance of trial fairness; the remedial impact of the judge’s instructions that may be considered by a reasonable and informed person to have had on the appearance of trial fairness; and, the position taken by defence counsel when the issue arose at trial: see Khan at paras. 73–86. The list of considerations is not exhaustive and no one factor is likely to be determinative on its own. Rather, these factors are among those that must be considered together in assessing whether a reasonable and objective observer would conclude that the trial lacked the appearance of fairness.

[468] On the last-mentioned factor, we wish to emphasize that the impact the juror’s conduct had on those who witnessed it is relevant, but only to the extent that it informs application of the objective test for apprehension of bias. As noted earlier, that test takes account of the perceptions and sensibilities of a reasonable person fully informed of the context.

[470] Applying these considerations to the case at bar, it is our view that the appellant has, in the unusual circumstances of this case, met her heavy onus of establishing that a reasonable and informed person would reasonably apprehend there was a real likelihood the juror was not impartial, did not commence deliberations with an open mind, and would not decide the case fairly. In these circumstances, we are satisfied there has been a failure of the appearance of justice. Where, as here, there is a reasonable apprehension of bias, a miscarriage of justice has been occasioned and appellate intervention is required: Curragh Inc. at paras. 5–7. We summarize in the paragraphs that follow our reasons for coming to this conclusion with reference to the criteria identified in Khan that have most obvious application to the case at bar.

[471] First, the conduct of the juror was not a one-time event, nor can it be attributed and confined to a single point in the trial when the evidence might understandably evoke what could be regarded as a sympathetic, but fleeting, emotional response. Viewed in isolation, a reasonable and informed person might well conclude that the juror expressed nothing more than sympathy to the Cunningham family on September 19 upon hearing Cst. Moretto’s evidence about where Charlotte’s body was found and seeing photographs of the scene.

[472] But our task is to assess the conduct of the juror in its totality, not in isolation. The juror repeatedly looked at and smiled in the direction of the Cunningham family—likely at Ms. Pridy—at the end of the first week and the beginning of the second week of the trial. The juror did so to such an extent that Ms. Pridy decided to avoid eye contact with the juror and advise her family members not to engage. The hand and facial gestures made by the juror towards the Cunningham family continued throughout the trial. The hand gesture was repeated on September 25. The jury did not hear any particularly emotional testimony that day. Further, the juror smiled and winked at the Cunningham side of the gallery on October 2 after the completion of the evidence but before the delivery of closing addresses. On October 3—the day upon which counsel delivered their closing addresses and the jury was charged on the appellant’s liability for the first degree murder of her infant child—the juror smiled, nodded in the direction of the Cunningham family several times, and repeated the hand gesture. The juror made the hand gesture again in the direction of the Cunningham family side on October 4 when the jury returned with its verdict finding the appellant criminally responsible for Charlotte’s death.

[473] We turn next to consider the nature of the conduct in issue. First, virtually all of the juror’s non-verbal communication was directed towards the Cunningham family. Second, most of the gestures made by the juror, and all of the hand gestures, were made as the juror entered or exited the courtroom. While we are unable to conclude that gestures were made in a furtive way, they were made when the juror was behind the tables reserved for counsel and closest to the Cunningham family. From this location, the gestures could not easily be detected by counsel or the trial judge.

[474] A reasonable and informed person would not conclude that repeatedly making the hand gesture when it was made and from where it was made was a mere expression of sympathy. Rather, an objective observer informed of the context would reasonably apprehend that repeatedly making this gesture when it was made and from where it was made was an expression of support for and solidarity with the Cunningham family. Similarly, a reasonable and informed person would not regard “smiling” and “winking” at the family of the deceased child as an innocuous and understandable expression of sympathy. The juror’s conduct in winking at the Cunningham family is particularly troubling. It is behaviour that a reasonable person would regard as reflecting, at best, the expression by the juror of an alignment with the Cunningham family and, at worst, the acknowledgement of a common cause. Collectively viewed, a reasonable and informed person would regard the juror’s conduct as displaying a leaning, inclination or predisposition towards the Cunningham family and to a finding of guilt and criminal responsibility.

[475] Considering when the objectionable conduct manifested itself in the course of the trial fortifies us in our conclusion that the conduct, taken as a whole, gives rise to reasonable apprehension of bias. It is particularly troubling that the juror’s conduct was repeated on October 2, 3 and 4. These were critical days in the trial. That a juror would smile and wink at the deceased child’s paternal family and repeat the hand gesture after the conclusion of the evidence but before the completion of the closing addresses of counsel would, in our view, shock and offend a reasonable and objective person. Indeed, it astounded those who saw it.

[476] The very essence of impartiality is the maintenance of a mind open to persuasion. Regrettably, the conduct of the juror on October 2 and 3 would convey to a reasonable and objective observer a mind predisposed to a particular result. This impression could only have been reinforced by the repetition of the hand gesture when the jury returned with its verdict following the second stage of the trial on October 4.

[478] The probative value of Ms. Pridy’s evidence lies in its capacity to shed light on three closely-related questions: (1) how Ms. Pridy interpreted the gesture she saw the juror make when it was made; (2) whether she considered the gesture to be sufficiently troublesome in appearance to warrant immediately reporting it to Crown counsel; and (3) whether an objective observer informed of the circumstances would reasonably infer from the conduct as a whole, a real likelihood that the juror would not have decided the case impartially. In light of her response to the observation she made on October 4, we conclude that Ms. Pridy, a trained lawyer, also interpreted the juror’s gesture as something more than a simple expression of sympathy at the conclusion of a tragic and emotional case. We infer from her conduct, and from the whole of her evidence, that she considered the behaviour of the juror to give rise to serious concerns.

[479] The juror’s conduct must be assessed contextually and collectively in terms of the impact it had on the appearance of trial fairness. Taking into account the juror’s conduct as a whole, its frequency, when it emerged in the course of the trial, and what it would likely have conveyed to a dispassionate and informed observer, we are of the view the juror’s behaviour would reasonably be regarded by that observer as being reflective of an underlying attitude inconsistent with the existence of an impartial state of mind open to persuasion.

[482] In our view, the fresh evidence that addresses the conduct of the juror during the trial is sufficient to satisfy the high burden required to rebut the presumption of impartiality. Our finding that the test for reasonable apprehension of bias has been met leads inexorably to the conclusion that the appearance of trial fairness was undermined by the juror’s conduct. It also leads us to the conclusion that a miscarriage of justice has been established necessitating appellate intervention.

[483] For the foregoing reasons, we conclude that a new trial is also required on this ground.

[484] We admit the fresh evidence pertaining to both grounds of appeal, allow the appeal, quash the appellant’s conviction for first degree murder and order a new trial.

R v White, 2021 NLCA 39

[June 25, 2021] Ineffective Assistance of Counsel – Election of the Mode of Trial [Majority Reasons by Welsh J.A. with White J.A. concurring, Hoegg J.A. dissenting]

AUTHOR’S NOTE: This one is pretty simple. You have to tell the client they have an election as to mode of trial and take their instructions on that election. If you fail to do so, they get an appeal and you get one of these applications appearing next to your name. 

Issues

[4] The sole issue on appeal is whether Mr. Matthews failed to provide competent representation for his client, and, in particular, whether he failed to obtain Mr. White’s informed instructions regarding his election as to mode of trial. It is not necessary to address Mr. White’s additional submissions regarding the adequacy of Mr. Matthews’ assistance during the trial.

General Principles

[5] When an allegation of ineffective assistance of trial counsel is made on appeal, the correct procedure is for the appellant to make an application for fresh evidence (more accurately referred to as additional evidence).  Because the issue is evidentiary in nature and integral to a ground of appeal, the application for fresh evidence will be heard by the same panel as hears the appeal.  For this reason, in the absence of special circumstances, the application will be heard at the same time as the appeal.  In order to permit trial counsel to respond to the allegation, the appellant must waive solicitor-client privilege for purposes of the appeal (R. v. Greenham, 2020 NLCA 14, at paragraph 9).

[26]      … For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted.

…

[28]      Miscarriages of justice may take many forms in this context.  In some instances, counsel’s performance may have resulted in procedural unfairness.  In others, the reliability of the trial’s result may have been compromised.

[9] In conducting the analysis, Major J. indicated that there are some decisions that require the informed consent of the accused:

[34] Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice.  While it is not the case that defence lawyers must always obtain express approval for each and every decision made by them in relation to the conduct of the defence, there are decisions such as whether or not to plead guilty, or whether or not to testify that defence counsel are ethically bound to discuss with the client and regarding which they must obtain instructions.  The failure to do so may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice.

[10] In R. v. Stark, 2017 ONCA 148, Lauwers J.A., for the Court, addressed the question of miscarriage of justice when the alleged incompetence of trial counsel is based on failure to obtain the client’s instructions regarding electing the mode of trial.  Lauwers J.A. explained:

[14]      …  The miscarriage of justice can be established in one of two ways.  The first is to show that incompetent representation undermines the reliability of the verdict.  The second is to show that the incompetent representation undermined the appearance of the fairness of the trial proceeding.

[13] In Stark, Lauwers J.A. continues:

[18]      In my view, the right to elect the mode of trial under s. 536 of the Criminal Code is one of those fundamental rights that counsel cannot take from a client and on which the client is entitled to be adequately advised by counsel.

[19]      Parliament has chosen to give accused who are charged with the more serious crimes a choice as to the mode of trial.  That right is partly constitutionalized in s. 11(f) of the Charter, which guarantees a right to trial by jury for offences punishable by a sentence of five years or more.  The exercise of the right to choose the mode of trial is integral to the court’s jurisdiction over an accused and is essential to the fairness of the proceeding.

[20]      If an accused receives no advice from counsel as to his options, or the advantages and disadvantages of the respective options, then the accused has effectively been denied his right to choose his mode of trial under s. 536 of the Criminal Code.  The miscarriage of justice lies in proceeding against the accused without allowing him to make an informed election, and the accused need not establish further prejudice.  What the accused might or might not have done had he been aware of his options is not relevant.

I would add the caution expressed by Lauwers J.A. in Stark, at paragraph 32, that there may be circumstances when “trial counsel’s failure to advise the accused person about the available modes of trial will not constitute a miscarriage of justice”.  In my view, that exception does not apply here.

[14] A similar position to that in Stark was adopted in R. v. D.G.M., 2018 MBCA 88, in which both the question of election of mode of trial and the accused’s decision whether to testify were at issue relative to the allegation of ineffective representation by trial counsel.  Beard J.A., for the Court, concluded:

[32]      While the Court in Stark was dealing with the right to elect the mode of trial, these comments apply equally to the decision of whether to testify, which was identified in Stark as another fundamental right of an accused and about which he was entitled to receive advice from his trial counsel before making a decision as to how to proceed.

[33]      We are of the view, based on the evidence of both the accused and the trial lawyer, that the trial lawyer did not give the accused any advice about the advantages and disadvantages related to the crucial decisions of re-electing to a judge-alone trial and of testifying in his own defence.  Thus, we are of the view that these facts are sufficient to fatally undermine the fairness of the trial and constitute a miscarriage of justice.

[15] In most cases, trial counsel will provide evidence, accepted by the court, that the relevant information regarding mode of trial was provided to the accused.  (See, for example, R. v. V.J., 2017 ONCA 924, at paragraph 10.)

Application of the Law

[18]  In this case, Mr. White filed an affidavit to support his submissions regarding ineffective representation by his counsel, Mr. Matthews.  However, Mr. Matthews, who was represented by counsel for purposes of addressing the allegation of ineffective representation of his client, did not file an affidavit in response.  Further, he did not request intervenor status, but instead advised this Court that he would not be participating in the matter.

[19] Following cross-examination by counsel for the Crown, I accept Mr. White’s affidavit, to which Mr. Matthews did not respond, as truthful as to the facts.

[20] Pursuant to section 536 of the Criminal Code, Mr. White had the right to choose to be tried on the charge of aggravated assault by a provincial court judge, a Supreme Court judge, or a judge and jury.  In his affidavit, Mr. White swore:

7.         THAT at some point in the course of the matter a decision was made to have my trial take place in Provincial Court.  Mr. Matthews did not discuss with me or seek my instructions on whether the case should be heard in Provincial Court or Supreme Court.  I understand I had a choice whether the charges would proceed in Provincial Court or Supreme Court.  I did not make that decision.  Mr. Matthews made that decision without my instruction.

[23] Aggravated assault is a serious charge. Mr. White had the right to advice from his counsel about the advantages and disadvantages related to the mode of trial. Since he did not have the opportunity to make an informed election and to instruct his counsel, a conclusion not contested by Mr. Matthews, I am satisfied that, in the circumstances, Mr. Matthews’ failure undermined the fairness of the trial proceedings, and resulted in a miscarriage of justice.

[24] In summary, I am satisfied that Mr. Matthews failed to provide competent representation for Mr. White at trial by failing to obtain informed instructions from Mr. White regarding the mode of trial. In the circumstances, that failure undermined the fairness of the proceedings and resulted in a miscarriage of justice.

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