The Defence Toolkit – October 19, 2024: Gang Membership Challenge

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Accused Placement | Challenge for Cause | Functus Officio

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Posted On 19 October 2024

This week’s top three summaries: R v Whitehawk, 2024 SKCA 95: #gang challenge, R v Lewis, 2024 ONSC 5261: counsel #table, and R v Batista, 2024 ONSC 5455: #functus officio

R v Whitehawk, 2024 SKCA 95

[October 9, 2024] Challenge for Cause: Gang Membership [Reasons by Jeffrey D. Kalmakoff J.A. with Brian A. Barrington-Foote and Jillyne M. Drennan concurring]

AUTHOR’S NOTE: In this case, the Saskatchewan Court of Appeal revisited the law governing challenges for cause in jury selection, with a particular focus on juror bias. The Court engaged with the key principles outlined in the Supreme Court’s decision in R v Chouhan, which deals with challenges for cause in relation to race-based biases, but went further to explore the broader application of such challenges in other contexts, including issues of gang affiliation.

The Court reinforced that a challenge for cause is not limited to concerns about race-based bias. Rather, it can encompass a wider range of potential biases that might affect a juror’s impartiality. In particular, the Court clarified that the test for whether a challenge for cause should be allowed is not particularly high. The court must only be satisfied that “some jurors may be incapable of setting aside their biases” to permit the challenge. This indicates that if there is a reasonable concern that certain biases could influence a juror’s ability to remain impartial, even with the procedural safeguards in place, a challenge for cause is justified.

In this case, the trial court’s refusal to allow a challenge for cause based on the accused’s alleged gang membership was a central issue. The appellate court found that this was an error because it failed to properly consider the possibility that jurors might hold biases against the accused due to this gang affiliation, which could prevent them from being fair and impartial. As a result, the Court ordered a retrial, emphasizing the need for greater sensitivity to potential biases that extend beyond race.

This decision is important for defence counsel as it highlights the possibility of advancing broader arguments about juror bias in future cases. It suggests that counsel can argue for challenges for cause on a variety of grounds—whether based on gang affiliation, prior criminal records, or other factors that may lead to prejudice in the minds of jurors. The decision serves as a valuable tool for ensuring that jury pools are as unbiased and impartial as possible, which is critical for the fairness of the trial process.

I. INTRODUCTION

[1] In the spring of 2022, Dillon Whitehawk was tried on two counts of first degree murder. The charges arose from two drive-by shootings that occurred approximately three weeks apart in Regina, Saskatchewan, in late 2019. It was alleged that, at the time of those events, Mr. Whitehawk was a member of a street gang called the Indian Mafia [IM]. Witnesses who testified at the trial identified Mr. Whitehawk as the shooter in both instances and said that he had shot the victims because he believed they were members of a rival street gang.

[2] The Crown’s theory of the case was that Mr. Whitehawk was motivated to commit the murders because he believed that killing rival gang members would elevate his status within IM. Based on that theory, the Crown argued that Mr. Whitehawk was guilty of first degree murder either because the murders were planned and deliberate (s. 231(2) of the Criminal Code), or because they had been committed in association with a criminal organization (s. 231(6.1)(a)). A jury found Mr. Whitehawk guilty on both counts.

[3] Mr. Whitehawk appeals against the convictions. He raises three arguments. First, he says the trial judge erred by not permitting him to challenge prospective jurors for cause on the basis of bias against members of street gangs….

B. Contested rulings of note

[12] The trial judge was called upon to make rulings on several pre-trial applications, as well as a number of rulings on contested matters during the course of the trial. I will describe only those that are relevant in the context of Mr. Whitehawk’s appeal.

4. The Challenge for Cause Ruling

[22] Before the jury was selected, Mr. Whitehawk, who is Indigenous, applied for an order permitting prospective jurors to be challenged for cause, pursuant to s. 638(1)(b) of the Criminal Code. Mr. Whitehawk took the position that a challenge for cause was appropriate because the circumstances of his case gave rise to a realistic potential that prospective jurors may not be able to render an impartial decision, due to widespread prejudice against Indigenous persons, and bias against persons who are members of street gangs.

[23] Mr. Whitehawk did not file any evidence in support of his application. He argued that judicial notice could properly be taken of the prevalence in the community of racial bias. He also referred to a portion of the Qualification Ruling, where the trial judge said that “most law abiding citizens have a reasonable bias against or hostility towards street gangs as criminal organizations” (at para 54), and asserted that this finding positively established the prevalence of bias against persons who are members of street gangs, especially those who are also Indigenous.

[24] The trial judge granted only a portion of the relief Mr. Whitehawk sought. He ordered that prospective jurors would be challenged for cause only on the basis of potential racial bias, and that they would be asked a much narrower question than had been proposed by Mr. Whitehawk (R v Whitehawk, 2022 SKQB 94 [Challenge for Cause Ruling]).

IV. ANALYSIS

A. Did the trial judge err by improperly limiting the grounds on which prospective jurors could be challenged for cause?

[33] Mr. Whitehawk contends that the trial judge erred by improperly limiting his request to challenge prospective jurors for cause to a single question regarding racial bias. He asserts that, because the trial proceeded as a joint trial on two counts of first degree murder in which the Crown advanced the theory that the murders were first degree murder either because they were planned and deliberate or because he had committed them for the purpose of advancing up the ranks of IM, and thus in association with a criminal organization, a more robust challenge for cause process – particularly one that would delve into jurors’ views about members of street gangs – was required.

1. The application at trial

[34] Mr. Whitehawk applied to challenge all prospective jurors for cause pursuant to s. 638(1)(b) of the Criminal Code, on the basis of potential bias against Indigenous persons, and bias against street gang members. In that regard, he proposed that prospective jurors should be asked a series of four detailed questions, preceded by a general anti-bias instruction, worded as follows:

The Crown alleges that the accused committed two acts of murder. The accused is an Indigenous man, and the Crown will allege he was a member of an Indigenous street gang at the time of the allegations.

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, I 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 the question, please let me know.

Question 1

Because of attitudes that they have grown up with, or experiences they have had, or for any other reason, it may be more difficult for some people to judge the evidence in this case without bias, prejudice or partiality, knowing that the accused person is an Indigenous man.

What answer most accurately reflects your ability to judge the evidence in this case without bias, prejudice or partiality, knowing that the accused person is an Indigenous man?

a) I would not be able to judge the case fairly.

b) I might be able to judge the case fairly.

c) I would be able to judge the case fairly.

d) I do not know if I would be able to judge the case fairly.

Question 2

Some people believe that members of certain racial groups are more likely to commit violent crimes than others.

Do you believe that Indigenous men are more likely than others to engage in violent criminal activity?

Which of the following answers most accurately reflects what you believe:

a) I strongly agree.

b) I agree, but not strongly.

c) I disagree, but not strongly.

d) I strongly disagree.

e) I don’t know

Question 3

Ask yourself whether you have any beliefs or pre-conceived notions about people who are or were members of Indigenous street gangs. If you do, 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?

Question 4

I mentioned earlier that sometimes people have unconscious biases about things like race and ethnicity without being fully aware of them. If you are chosen to be a member of the jury in this case, are you willing to remain mindful of the possibility that you might have such unconscious biases, and make efforts to set them aside to the best of your ability?

[35] While Mr. Whitehawk led no evidence in support of his application, he cited a number of decisions, including R v Spence, 2005 SCC 71, [2005] 3 SCR 458 [Spence], R v Barton, 2019 SCC 33, [2019] 2 SCR 579 [Barton], and R v Stanley, 2019 SKQB 277, as authority for the proposition that the existence of widespread racial prejudice against visible minorities in general, and Indigenous persons in particular, is so notorious and indisputable that it is something of which judicial notice can properly be taken.

[36] Mr. Whitehawk also argued that judicial notice could properly be taken of the existence of widespread bias or hostility against street gangs and their members, and submitted that the trial judge had already made a factual finding to that effect in the Qualification Ruling.

[37] Relying on R v Chouhan, 2021 SCC 26, [2021] 2 SCR 136 [Chouhan], Mr. Whitehawk submitted that the removal of the peremptory challenge provisions of the Criminal Code as part of the 2019 amendments brought in by Bill C-75 signalled the need for an expansion of the scope of the challenge for cause process under s. 638(1)(b), and compelled judges to err on the side of caution to permit jurors’ prejudices to be examined

2. The Challenge for Cause Ruling

[39] After he had done that, the trial judge stated the test to be applied to each of the proposed challenges for cause in the following way:

[41] The test to be applied is whether: 1. there is widespread bias in the community, which is likely to be represented in the jury pool; and 2. some prospective jurors may be unable or unwilling to set aside their biases so as to decide impartially based on the evidence and law alone.

[42] Notwithstanding that the trial judge found that it was appropriate to permit a challenge for cause on the basis of racial bias, he did not agree that the expansive instruction and questions proposed by Mr. Whitehawk were warranted. He explained his reasoning, and the wording of the question that he determined would be permitted, by saying:

[47] In allowing the application for a challenge for cause based on potential racial bias against the accused as an Indigenous person, I will reframe the proposed questions. With respect, I do not find the multiple choice questions appropriate or helpful. The possible answers are open to different constructions.

[48] I propose instead to provide instruction about bias in the opening jury instructions to the jury pool. Later, potential jurors selected by lot will be individually questioned apart from the jury pool. After reminding the prospective juror of my earlier instructions about bias and impartiality, I will ask a direct question as recommended in Williams at para 55 and used in Stanley at para 56. This should ensure that prospective jurors will both have had an opportunity to reflect on the duty of jurors and potential for harmful influence of biases and be able to provide an answer likely to assist the court in deciding whether they are suitable for selection.

[49] As discussed at the hearing of this application, the question to be asked will be: “Do you believe you will be able to decide this case impartially on the evidence and the law and without regard to the race of the accused?”

[43] However, the trial judge entirely dismissed Mr. Whitehawk’s application to challenge jurors for cause on the basis of bias against street gang members. In that regard, he said:

[50] I accept that most people in Regina are hostile to street gangs as criminal organizations. As defence counsel pointed out, I so found in [the Qualification Ruling] at para 54. But I also found this was not a disqualifying bias. Were it otherwise, it is unlikely that a jury could be selected. Law-abiding citizens, who constitute the vast majority, oppose criminality. Then Chief Justice McLachlan, writing for the Supreme Court in Find, made similar observations at paras. 65 and 70-71 with respect to sexual offences. So although this hostility is likely to be found in the jury pool, I conclude that this part of the application does not pass the first part of the test.

[51] In case I am wrong, I will go on to consider whether jurors would be able to set aside that bias and decide impartially. I am satisfied they could do so, having regard to the “cleansing process” provided by jury trial safeguards, including the charge to the jury. Again, as held in Find, juries do so all the time. Jurors can and do distinguish between the crime and the accused. They can also, properly instructed, avoid the leap in logic that just because an accused may be a member of a criminal organization does not mean the accused committed this crime

b. The Find test

[50] In Find, the Supreme Court established a two-part test for determining when parties should be permitted to challenge prospective jurors for cause on the basis of partiality. Writing for a unanimous Court, McLachlin C.J.C. stated as follows:

[31] In order to challenge for cause under s. 638(1)(b), one must show a “realistic potential” that the jury pool may contain people who are not impartial, in the sense that even upon proper instructions by the trial judge they may not be able to set aside their prejudice and decide fairly between the Crown and the accused: Sherratt, supra; Williams, supra, at para. 14.

[32] As a practical matter, establishing a realistic potential for juror partiality generally requires satisfying the court on two matters: (1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision. These two components of the challenge for cause test reflect, respectively, the attitudinal and behavioural components of partiality: Parks, supra, at pp. 364-65; R. v. Betker (1997), 115 C.C.C. (3d) 421 (Ont. C.A.), at pp. 435-36.

[33] These two components of the test involve distinct inquiries. The first is concerned with the existence of a material bias, and the second with the potential effect of the bias on the trial process. However, the overarching consideration, in all cases, is whether there exists a realistic potential for partial juror behaviour. The two components of this test serve to ensure that all aspects of the issue are examined. They are not watertight compartments, but rather guidelines for determining whether, on the record before the court, a realistic possibility exists that some jurors may decide the case on the basis of preconceived attitudes or beliefs, rather than the evidence placed before them.

(Emphasis in original)

[51] As for the attitudinal component of the test, the Court in Find noted that “not every emotional or stereotypical attitude constitutes bias”, and that what amounts to bias is “not determined at large, but in the context of a specific case. What must be shown is a bias that could, as a matter of logic and experience, incline a juror to a certain party or conclusion in a manner that is unfair” (at para 36). Before a right to challenge for cause will arise, the bias must also be shown to be widespread in the community, in the sense that it is “sufficiently pervasive … to raise the possibility that it may be harboured by one or more members of a representative jury pool” (at para 39).

[53] The decision to allow or deny an application to challenge for cause is discretionary in nature. However, where there exists a realistic potential for partiality, on an identifiable and relevant basis, a challenge for cause must be permitted (Find at para 45). This exercise of discretion cannot be based on speculation; it must be appropriately grounded in evidence or judicial notice, and the drawing of reasonable inferences, as explained in Find:

[46] A party may displace the presumption of juror impartiality by calling evidence, by asking the judge to take judicial notice of facts, or both. In addition, the judge may draw inferences from events that occur in the proceedings and may make common sense inferences about how certain biases, if proved, may affect the decision-making process.

[47] The first branch of the inquiry – establishing relevant widespread bias– requires evidence, judicial notice or trial events demonstrating a pervasive bias in the community. The second stage of the inquiry – establishing a behavioural link between widespread attitudes and juror conduct – may be a matter of proof, judicial notice, or simply reasonable inference as to how bias might influence the decision-making process: Williams, supra, at para. 23.

[54] Find also instructs that a widespread bias in the community of the sort necessary to trigger a challenge for cause will generally not be found in the nature or the circumstances of the offence alone….

[55] The Court in Find also observed that potential biases that may arise from the nature or circumstances of an offence are more susceptible to cleansing by the trial process, meaning that the conclusion that jurors may be unable or unwilling to set aside such prejudices will not automatically flow from the mere identification of that sort of bias….

[56] When discussing the reasons that potential bias tied to the nature of the offence generally does not provide a basis to challenge jurors for cause, the Court in Find also commented on the need for the applying party to point to facts, grounded either in evidence or judicial notice, from which it may be inferred that juror behaviour would be affected in a way that might not be mitigated by the cleansing process of the trial:

[107] Again, absent evidence, it is highly speculative to suggest that the emotions surrounding [particular] crimes will lead to prejudicial and unfair juror behaviour. As discussed, the safeguards of the trial process and the instructions of the trial judge are designed to replace emotional reactions with rational, dispassionate assessment. Our long experience in the context of the trial of other serious offences suggests that our faith in this cleansing process is not misplaced. The presumption of innocence, the oath or affirmation, the diffusive effects of collective deliberation, the requirement of jury unanimity, specific directions from the trial judge and counsel, a regime of evidentiary and statutory protections, the adversarial nature of the proceedings and their general solemnity, and numerous other precautions both subtle and manifest – all collaborate to keep the jury on the path to an impartial verdict despite offence-based prejudice. The appellant has not established that the offences with which he is charged give rise to a strain of bias that is uniquely capable of eluding the cleansing effect of these trial safeguards.

[108] It follows that even if widespread bias were established, we cannot safely infer, on the record before the Court, that it would lead to unfair, prejudicial and partial juror behaviour. This is not to suggest that an accused can never be prejudiced by the mere fact of the nature and circumstances of the charges he or she faces; rather, the inference between social attitudes and jury behaviour is simply far less obvious and compelling in this context, and more may be required to satisfy a court that this inference may be reasonably drawn. The nature of offence-based bias, as discussed, suggests that the circumstances in which it is found to be both widespread in the community and resistant to the safeguards of trial may prove exceptional. …

[57] In the end, while I do not read Find as absolutely precluding a challenge for cause based on bias arising from the nature of the offence, it instructs that, even where the party seeking to challenge for cause has demonstrated widespread bias, there remains a presumption that the trial process is sufficient to cleanse juror bias, and that presumption will not be displaced if the facts found by the trial judge are insufficient to establish anything more than a speculative link between the bias and juror behaviour (at para 109).

c. The effect of Chouhan

[59] Mr. Whitehawk argues that, in the aftermath of the abolition of peremptory challenges, s. 638(1)(b) must be read more generously, and that the scope of challenges for cause must be broadened so as to remain consistent with s. 11(d) of the Charter. He contends that the Supreme Court’s decision in Chouhan supports this assertion.

[62] As for the challenge for cause procedure, Moldaver and Brown JJ. also acknowledged 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” (at para 61). Their reasons instruct that challenges for cause are not meant to be an unusual event, and where they are permitted, the nature of the questions must be crafted in a fashion that addresses the salient aspects of the case that may affect juror impartiality and permits the trial judge to explore the question of bias in a meaningful way.

[63] As to the approach to be taken in assessing an application to challenge prospective jurors for cause, I do not read the reasons of Moldaver and Brown JJ. as having altered the two-part test set out in Find for determining when a challenge for cause should be permitted. The manner in which the test is applied, however, is equally important, and Moldaver and Brown JJ. emphasized that trial judges should take a flexible, generous and purposive approach. In R v Chouhan: Signs of Seismic Shift in Jury Selection, Criminal Reports (Articles), (2021) 72 CR (7th) 125, Professor Coughlan offers this observation:

With regard to challenge for cause, Justices Moldaver and Brown both explicitly and implicitly expand the power. Noting that the ability to challenge for cause had already been broadened in the cases of bias based on race, and pointing to “growing knowledge of the ways in which unconscious bias can affect the impartiality of a juror”, they 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” (para. 61).

[64] In Professor Coughlan’s view, this represents not only an explicit expansion of the power to challenge jurors for cause; it is also a signal that the power may be “more easily available than might have been thought”. In that regard, he refers to paragraph 62 of Chouhan, which states as follows:

[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] 1 S.C.R. 1128, at para. 55; Find, at para. 45).

(Emphasis added)

[65] As Professor Coughlan sees it, “[s]uggesting that there is not an “onerous burden” in challenge for cause seems to indicate an implicit shift in attitude”. The paragraphs of Chouhan that follow tend to support this perspective:

[63] In our view, the challenge for cause procedure is itself a vehicle for promoting active self-consciousness and introspection that militate against unconscious biases. The prospective juror, who, when empanelled, steps into an adjudicative role must bring to bear a degree of impartiality similar to that of judges. Impartiality requires active and conscientious work. It is not a passive state or inherent personality trait. It requires jurors to be aware of their own personal beliefs and experiences, and to be “equally open to, and conside[r] the views of, all parties before them” (R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 40). Given these principles, the questioning on a challenge for cause ought to be able to explore the juror’s willingness to identify unconscious bias and strive to cast it aside when serving on the jury (Find, at para. 40).

[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.

(Emphasis added)

[66] Justice Martin, who wrote reasons in which Karakatsanis and Kasirer JJ. concurred, also agreed that, in determining whether to permit a challenge for cause, and in deciding what sort of questions should be asked of jurors where a challenge for cause is permitted, the focus of the court should be on trial fairness and on promoting a proper examination of prospective jurors’ prejudices. In that regard, she stated:

[119] With respect to challenges for cause, I agree with my colleagues Moldaver and Brown JJ. that R. v. Parks (1993), 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] This Court has also warned against setting a threshold for accessing challenges for cause that “would catch only the grossest forms of racial prejudice” (Williams, at para. 39). Indeed, some scholars question whether the Parks formula captures anything beyond “the grossest forms of racial prejudice”, and whether it fosters the kind of introspection and selfconsciousness it should (see K. Roach, Canadian Justice, Indigenous Justice: The Gerald Stanley and Colten Boushie Case (2019), at p. 92; 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) 656, at p. 683). 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).

[67] Justice Abella wrote a partial dissent….

….She opined that, under the new jury selection provisions, the challenge for cause process should be “more robust”, and that it would require “more probing questions than have traditionally been asked to properly screen for stereotypes and assumptions”….

[69] As I have described above, all eight of the judges who found that the abolition of peremptory challenges was constitutional also commented on the importance of recognizing that concerns about juror partiality may be tied to biases other than those that are race-based, and suggested that more expansive questioning and instructions were necessary when jurors are challenged for cause. As I have also mentioned, I do not read any of their reasons as saying that the test in Find needed to be altered when determining whether a challenge for cause should be permitted in the first place. A party seeking to challenge jurors for cause must still demonstrate, based on evidence or on judicial notice, the existence of a relevant widespread bias or prejudice and that it is something that jurors may be unable to set aside notwithstanding the cleansing effect of the trial process.

d. An error was made in this case

[70] Cutting directly to the bottom line, I am of the view that the trial judge erred by dismissing Mr. Whitehawk’s application to challenge jurors for cause on the basis of bias against members of street gangs. Let me explain how I reach that conclusion.

i. The discretionary nature of the decision

[71]….Moreover, as stated in R v Williams, [1998] 1 SCR 1128, because the right of the accused to a fair trial is at stake, judges should err on the side of permitting challenges where doubts are raised, as “[i]t is better to risk allowing what are in fact unnecessary challenges, than to risk prohibiting challenges which are necessary” (at para 22). A judge exercising the discretion to permit or refuse challenges must not take into account irrelevant factors, ignore relevant factors, or base the decision on idiosyncratic personal views (Spence at para 24)….

[72] In my respectful view, the trial judge committed errors in principle in the Challenge for Cause Ruling. By that, I mean he applied an incorrect legal test, both when determining whether Mr. Whitehawk had identified the existence of a relevant bias, and when deciding whether the cleansing effect of the trial process would be sufficient to ensure an impartial jury.

ii. The alleged bias based on Mr. Whitehawk’s alleged street gang membership was not offence-based

[73] As a first step, the party applying to challenge jurors for cause must show that a widespread bias of a relevant sort exists in the community. Not just any type of bias will do. Together, Find and Chouhan stand for the proposition that, as a rule, the bias or prejudicial attitude in question must be something that relates to salient aspects of the case beyond merely the nature or circumstances of the offence. It must be something connected to the personal characteristics or circumstances of individual persons such as the accused, complainant or victim that could taint the impartiality of the jury (Chouhan at paras 61–66; see also R v Betker (1997), 33 OR (3d) 321 at para 63 (WL) (CA); R v Bhogal, 2021 ONSC 4925 at para 39, 73 CR (7th) 351; and R v Hanssen, 2021 ONSC 7669 at para 9).

[75] However, I do not read Chouhan, or any of the decisions rendered in its wake, as precluding a personal characteristic from grounding a challenge for cause simply because it is one that involves an element of personal choice or is otherwise not entirely beyond the accused person’s control. As noted above, in Chouhan, Brown and Moldaver JJ. not only eschewed such a categorical approach but specifically included “occupation” in their non-exhaustive list of characteristics that can sometimes call for a challenge for cause. Their reference to Barton in the course of discussing this issue is also of particular interest, relating as it does to the potential prejudice arising from the fact that the victim was both a sex worker and an Indigenous person. As they said:

[65] The facts of Barton provide a useful example of background information that could prompt this kind of questioning. There, the victim, as both an Indigenous woman and a sex worker, had characteristics and personal circumstances that gave rise to a risk of bias and discrimination in the minds of jurors. On that basis, the Crown could have requested a challenge for cause to alert the prospective jurors to the presence of these characteristics and circumstances, and to encourage active identification of personally held beliefs and opinions. [Emphasis by PJM]

[76] Turning to Mr. Whitehawk’s case, the trial judge’s reasons on this point were brief and somewhat conclusory. However, it is apparent from his reference to Find at paragraph 50 of the Challenge for Cause Ruling that he determined that potential hostility towards street gangs as criminal organizations was not a relevant bias because it was one based in the circumstances and nature of the offence, and not in Mr. Whitehawk’s personal characteristics. In my respectful view, there are errors embedded in this reasoning.

[77] First, offence-based bias is bias relating to the nature of the offence itself….

[79] Two points bear emphasis in Mr. Whitehawk’s case….

….Rather, he submitted that the bias at issue in his case related to a personal characteristic or circumstance – his membership in IM – that created a realistic potential for partiality against him in determining whether he had committed the murder, regardless of the motive.

[80] In my opinion, the trial judge found that a bias of exactly that sort existed. Specifically, his conclusion that there exists a general hostility towards street gangs as criminal organizations because the vast majority of law-abiding citizens oppose criminality can only be properly understood as a finding that most people are predisposed to view street gang members as being more likely to commit crimes. That cannot be characterized as abhorrence resulting from the nature of the crime with which Mr. Whitehawk was charged or, for that matter, from antipathy towards serious crimes in general. It is bias relating to the characteristics or circumstances of Mr. Whitehawk that was prejudicial in a very direct way – that is, because he was a member of a street gang, he would be more likely to be found to have committed the murders, regardless of whether that was in association with a criminal organization. Accordingly, the trial judge erred in finding that this was an allegation of an offence-based bias and that a challenge for cause should not be permitted for that reason. [Emphasis by PJM]

[81] Second, and regardless of that error, the trial judge’s conclusion that most people in Regina are predisposed to find that street gang members are more likely to commit crimes established both the widespread bias of the appropriate kind and the causal link that were found not to have been proven in Find. Thus, even if this could have been characterized as offence-based to some extent, it could nonetheless demonstrate widespread bias giving rise to a realistic potential for partial juror conduct. That is no less true because the Crown also contended that Mr. Whitehawk committed the murders to advance his status in IM. The potential that he might be found to have committed the murders as a result of mere membership would be in play regardless. [Emphasis by PJM]

[82] In Mr. Whitehawk’s case, it is true that there was nothing in the evidence to suggest that if, as alleged, he was a member of IM, his involvement was anything other than a personal choice. However, as I have explained, a lack of evidence on that point was not fatal to his application to challenge for cause….

[83] It is also of interest that there are several examples in the post-Find jurisprudence of cases in which gang membership has been found to be a relevant bias that properly grounded a challenge for cause; see, for example: R v Coates (2002), 49 CR (5th) 139 (Ont Sup Ct); R v Cansanay, 2010 MBQB 48, 257 Man R (2d) 152; R v Sipes, 2012 BCSC 1728; and R v S.(B.D.), 2014 MBQB 42. While all of these decisions are products of their own particular facts, they illustrate the point that gang membership is not precluded from consideration as a ground for a challenge.

[84] In circumstances that are somewhat analogous to Mr. Whitehawk’s case, a challenge for cause was permitted on the basis of potential bias against street gang members in R v Riley, 2009 CanLII 16747 (Ont Sup Ct), where the accused were alleged to have committed the murder for the benefit of a criminal organization. The trial judge in Riley found that there was “a widespread belief in the community that youthful members of street gangs are, for the most part, violent and trigger happy”, and that such a bias “could, as a matter of logic and experience, incline a juror to unfairly conclude that simply because the accused are gang members, they are likely to have committed the offences with which they are charged” (at para 10).

[85] Tying all of that together, I conclude that the trial judge in Mr. Whitehawk’s case erred by determining that street gang membership was not a relevant bias under the first branch of the Find test.

iii. The wrong legal test was applied to the question of whether potential bias against street gang members may affect juror behaviour

[86] Mr. Whitehawk asserts that the trial judge also erred by not drawing the inference that some jurors may be unable to set aside their bias against street gang members and decide the case impartially. I agree that the trial judge erred, because he applied the wrong legal test to this determination as well.

[87] As Find instructs, a challenge for cause must be permitted where “some jurors may be incapable of setting aside their biases to render an impartial decision, notwithstanding trial safeguards” (at para 32, emphasis added). Indeed, this was the standard the trial judge applied when determining whether to allow Mr. Whitehawk’s race-based challenge for cause. However, when considering whether to allow a challenge for cause on the basis of bias against members of street gangs, the trial judge framed his analysis by stating that the question was “whether jurors would be able to set aside that bias and decide impartially” (Challenge for Cause Ruling at para 51). With respect, that is a misstatement of the legal test. The question at the second stage of the Find analysis is not whether jurors, in general, would be able to set aside a bias; it is whether some jurors may not be able to do so. The difference is subtle but important and, in my respectful view, the trial judge got it wrong. [Emphasis by PJM]

[88] While it is fair to observe, as the Crown points out, that Mr. Whitehawk led no evidence in the challenge for cause application concerning how bias against street gangs or their members might influence juror behaviour in this case, there was most assuredly a basis in the evidence for the trial judge to find that the behaviour of some jurors may have been affected by that bias in a way that would not be amenable to cleansing through the trial process. Once again, the nature of the alleged bias, which linked IM membership to the likelihood that a member would commit crimes, is significant. Moreover, it would have been well known to the trial judge by the time he was hearing the challenge for cause application that evidence about the street gang members, including Mr. Whitehawk, and their criminal activities, would be a dominant feature of the trial. In this respect, Cst. Weir had given extensive evidence about the prominence of IM as a street gang within the city of Regina, and the wide-ranging criminal activities in which it was involved, in particular in the North Central neighbourhood of Regina, where the shootings took place. It would be reasonable to infer that at least some members of the jury pool would be familiar with, or had been directly or indirectly affected by, street gang activity.

[89] In light of all of that, if the trial judge had employed the correct legal test, it would have been an inescapable conclusion that there was, at the very least, a realistic potential that some jurors may not have been able to set aside their bias against street gangs, even in the face of trial safeguards that included their oath or affirmation and proper instructions from the trial judge.

[90] In the end, I am persuaded that the trial judge’s misapplication of the test for determining whether to permit a challenge for cause created a very real risk that Mr. Whitehawk did not have a trial before an impartial jury. In other words, his convictions are properly seen as a miscarriage of justice. His convictions must be set aside, and a new trial must be held.

V. CONCLUSION

[109] For the foregoing reasons, I would allow the appeal, set aside the convictions, and order a new trial.

R v Lewis, 2024 ONSC 5261

[September 23, 2024] Sitting at Counsel Table [Justice Stothart]

AUTHOR’S NOTE: The physical placement of an accused person in the courtroom can indeed have a profound, albeit subtle, impact on the perception of the jury. The default seating arrangement often positions the accused in a prominent or isolated area, sometimes with security officers close by, which can unintentionally signal dangerousness or culpability to the jury. The fact that an accused is physically separated from the defense counsel and closely monitored can create unconscious bias, affecting how the jury perceives the accused throughout the trial.

This phenomenon is well-documented in studies that explore how visual cues in courtrooms can influence jurors’ emotional and cognitive biases. An accused seated away from counsel, particularly when placed closer to security personnel, may seem more aligned with the state’s enforcement authority than with their own defense team. This, in turn, can undermine the presumption of innocence and erode the fairness of the proceedings.

To counter this, defense counsel should seriously consider making an application to have the accused seated at the counsel table. This adjustment can help neutralize any unconscious signals of dangerousness or guilt that may be conveyed by the traditional courtroom arrangement. By having the accused sit closer to their legal team, the defense is also able to engage more effectively with their client during the proceedings, further normalizing the accused’s presence and potentially diffusing prejudicial perceptions.

In essence, this simple application can have meaningful psychological effects on how the accused is viewed by the jury. It aligns with the principle of fairness in presentation, ensuring that the trier of fact evaluates the evidence objectively, free from unintended visual cues that could suggest the accused’s guilt before the evidence is properly weighed. This practice, while not always pursued, is a valuable strategic consideration in jury trials.

STOTHART J.

[1] The applicant, Montana Lewis, is charged with one count of first-degree murder. His trial is scheduled to commence November 18, 2024, and continue for approximately three weeks. The trial is expected to take place in courtroom 1 at the Sault Ste. Marie Courthouse.

[2] The applicant brings this application to allow him to sit at counsel table. He submits that having to sit in the prisoner’s dock undermines his presumption of innocence and imperils his fair trial rights. He relies on the findings in the Report of the Commission on Proceedings Involving Guy Paul Morin (Toronto: Queen’s Printer for Ontario, 1998), wherein Justice Kaufman recommended that:

Absent the existence of a proven security risk, a person charged with a criminal offence should be entitled, at their option, to be seated with their counsel, rather than the prisoner’s dock.

[3] The applicant submits that as an Indigenous person, he already faces prejudice in society at large and in the criminal justice system. Having him sit at counsel table helps offset those prejudices.

[4] The applicant acknowledges that ultimately it is within the court’s discretion to determine where the accused will sit during his/her trial. He submits that in this case there are no security concerns surrounding his sitting at counsel table, identification is not in issue at trial, and sitting next to counsel will assist him with his ability to communicate with counsel.

Analysis

[8] While the default placement of an accused on trial is in the prisoner’s box, there is no presumption in this regard. The issue is to be assessed on a case-by-case basis having regard to the interests of a fair trial, the accused’s ability to make full answer and defence, any courtroom security concerns, and any other particular circumstances in the case: R v. A.C., 2018 ONCA 333 at para. 37.

[9] In this case it is agreed that there are no security concerns with having the accused sit next to his counsel at counsel table. It is further agreed that sitting at counsel table will allow the accused to communicate with his counsel with greater ease.

[10] Courtroom 1 at the Sault Ste. Marie courthouse is a large traditional style courtroom. The prisoner’s dock is situated behind counsel table in the front/middle portion of the courtroom. The dock itself is raised higher than counsel table and an accused person would not be able to reach out and touch counsel from the prisoner’s dock.

[12] While there are computer screens on counsel table, I am satisfied that the jury will be able to see the accused and the accused will be able to see the jury if he sits at counsel table.

[13] When I balance the factors that arise in this case, including the fact that there are no security concerns, identity is not in issue, the need for the accused to communicate with his counsel during the trial, and the need to ensure a fair trial in accordance with the presumption of innocence, I am satisfied that it is appropriate that the applicant sit at counsel table during the duration of his trial.

R v Batista, 2024 ONSC 5455

[September 20, 2024] Functus Officio and Exceptions [Justice Schreck]

AUTHOR’S NOTE: The doctrine of functus officio plays a crucial role in ensuring the finality of court proceedings. Once a judge has rendered a decision and entered judgment, the doctrine generally prevents the same judge from reopening or altering the judgment, thereby promoting stability in legal outcomes. However, as this case illustrates, the boundaries of this doctrine are not absolute, and courts are sometimes called upon to revisit the principle—particularly in exceptional circumstances where a statutory right of appeal is either absent or highly restricted.

In this case, the court carefully examined the limits of functus officio, noting that it is not an unyielding barrier in all situations. Specifically, where there is no direct statutory route for appeal, or where pursuing an appeal is particularly onerous (e.g., requiring leave to the Supreme Court of Canada), the doctrine may give way in rare circumstances. The court emphasized that functus officio is a doctrine of judicial discretion designed to prevent indefinite litigation but also recognized that rigid application could unjustly deprive a party of the opportunity to correct a genuine error or address a material issue that wasn’t fully considered.

This decision provides useful guidance for counsel facing situations where the finality of a decision may be in question, yet procedural or substantive fairness demands reconsideration. In such cases, counsel can argue that the doctrine should not be applied in an overly rigid manner, particularly if justice or equity requires reopening the matter to prevent an unfair or incorrect result.

The ruling serves as a valuable authority for examining when a matter may truly be considered “finished” for the purposes of functus officio. Counsel should be prepared to explore and articulate any exceptional circumstances that might justify reconsideration of a case, particularly where there is limited or no appeal right available. This case underscores the flexibility of the functus officio doctrine, highlighting that it does not operate in isolation but must be considered in the broader context of the interests of justice.

[1] There is no right of appeal from a decision ordering the forfeiture of monies pledged on a recognizance of bail, even though such decisions can result in significant financial consequences or even imprisonment for the person against whom the order is made. What legal recourse, if any, is available to such an individual is the subject of this application.

[2] Joaquim Batista acted as a surety for a person who breached his bail conditions. He was notified that the Crown intended to apply to have the $5000 he pledged forfeited pursuant to s. 771(2) of the Criminal Code. Mr. Batista retained counsel who contacted the Crown to seek an adjournment of the hearing. Due to a miscommunication, the Crown did not receive counsel’s message and the hearing proceeded without Mr. Batista being present or given an opportunity to make submissions. As a result, the Crown’s application was unopposed, and the entire amount was ordered forfeited.

[3] Mr. Batista seeks to have this court set aside the forfeiture decision on the basis that he was not afforded an opportunity to be heard. The Crown does not disagree that Mr. Batista had no opportunity to be heard, but submits that there is no recourse available to him because he has no right of appeal and this court is functus officio.

[4] For the reasons that follow, I am of the view that the functus officio doctrine must be applied flexibly in situations where there is no right of appeal and that in the circumstances of this case, this court has the jurisdiction to set aside the order in the interests of justice.

[12] Forfeiture proceedings in estreat matters are governed by s. 771 of the Criminal Code, the relevant portions of which are as follows:

771 (1) If an undertaking, release order or recognizance has been endorsed with a certificate and has been received by the clerk of the court,

(a) a judge of the court shall, on the request of the clerk of the court or the Attorney General or counsel acting on the Attorney General’s or counsel’s behalf, as the case may be, fix a time and place for the hearing of an application for the forfeiture of the amount set out in the undertaking, release order or recognizance; and

(b) the clerk of the court shall, not less than 10 days before the time fixed under paragraph (a) for the hearing, send by registered mail, or have served in the manner directed by the court or prescribed by the rules of court, to each principal and surety, at the address set out in the certificate, a notice requiring the person to appear at the time and place fixed by the judge to show cause why the amount set out in the undertaking, release order or recognizance should not be forfeited.

(2) If subsection (1) has been complied with, the judge may, after giving the parties an opportunity to be heard, in the judge’s discretion grant or refuse the application and make any order with respect to the forfeiture of the amount that the judge considers proper.

(3) If a judge orders forfeiture of the amount set out in the undertaking, release order or recognizance, the principal and their sureties become judgment debtors of the Crown, each in the amount that the judge orders them to pay.

(3.1) An order made under subsection (2) may be filed with the clerk of the superior court and if one is filed, the clerk shall issue a writ of fieri facias in Form 34 and deliver it to the sheriff of each of the territorial divisions in which the principal or any surety resides, carries on business or has property.

[13] Sections 772 and 773 set out the procedure for enforcement of an order issued pursuant to s. 771. Ultimately, if the surety does not have sufficient assets to satisfy the writ, s. 773(3)(b) provides that a judge may “make any order with respect to the surety and to his imprisonment that he considers proper in the circumstances….”

B. The Nature of the Hearing and the Right to be Heard

[14] At a hearing held pursuant to s. 771, the onus is on the surety to “show cause why the amount … should not be forfeited.” In determining whether or not such cause has been shown, a judge may consider a wide variety of factors, including but not limited to the surety’s diligence in supervising the accused, the amount of the recognizance, the circumstances in which the surety entered into the recognizance, the surety’s means, changes in the surety’s financial circumstances, and the conduct of the surety after the bail order was breached: Canada (Attorney General) v. Horvath, 2009 ONCA 732, 248 C.C.C. (3d) 1, at para. 51.

[15] The outcome of estreatment proceedings can have a significant impact on a surety. The amounts of money that stand to be forfeited are in some cases very significant and a forfeiture order can cause financial devastation for the surety. Even where the amounts are relatively small, an order may still have a significant impact on a surety with limited assets. Furthermore, as noted in Horvath, at para. 48, “the court cannot lose sight of the fact that the ultimate enforcement procedure, even if seldom invoked, is imprisonment.”

[16] Because the onus is on the surety to show cause why forfeiture should not be ordered, s. 771(2) of the Code clearly gives a person against whom forfeiture is sought “an opportunity to be heard,” which in any event is a basic principle of natural justice. Obviously, a surety who is not given an opportunity to be heard cannot show cause why the forfeiture order should not be made. It follows that an unfair deprivation of the right to be heard is not simply a procedural irregularity but, rather, something that can result in a significant injustice with serious consequences.

C. No Right of Appeal

[18] The Criminal Code provides no right of appeal from a decision made pursuant to s. 771(2): Horvath, at para. 26; R. v. Aw, 2008 ABCA 376, 440 A.R. 323; R. v. Gervais, 2017 ABCA 324, at para. 6. Furthermore, because a decision made pursuant to s. 771(2) is that of the Superior Court, it cannot be reviewed by way of certiorari: Horvath, at para. 26; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 865 . 1 The undesirability of this state of affairs was the subject of discussion by Justice Trotter, writing extrajudicially in his text The Law of Bail in Canada, 3 rd ed. (Toronto: Thomson Reuters, 2024), at §13:18.

D. Availability of Recourse

[19] The issue of whether an individual against whom forfeiture has been ordered has any recourse was considered in R. v. Bal, 2014 MBQB 48, 302 Man. R. (2d) 244. As in this case, an individual against whom forfeiture was ordered sought to have the order set aside. Joyal C.J.Q.B. considered three possible sources of the court’s jurisdiction to grant the relief sought: (1) by way of appeal; (2) through an application for a prerogative writ; and (3) by reopening the hearing. He ultimately concluded that there is no right of appeal absent some statutory basis, that prerogative writs do not apply to superior courts and that he could not reopen the hearing because he was functus officio.2 I agree with respect to the first two bases, but not the third.

E. The functus officio Doctrine

(i) The Doctrine

[20] The common law doctrine of functus officio holds that once a decision-maker has rendered a decision, she has discharged her duty and exhausted her authority: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, 461 D.L.R. (4th) 635, at para. 32. Its application in the criminal context is well established, and as a general rule, a criminal court cannot alter a final decision following a trial after an accused is found not guilty or found guilty (in the case of a jury trial) or sentenced (in the case of a trial by judge alone). However, the doctrine permits of exceptions. For example, a court retains jurisdiction to correct an error in the recording of the decision: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 76; R. v. Malicia (2006), 82 O.R. (3d) 772 (C.A.), at paras. 24- 31.

[21]….The question that then arises is whether the doctrine admits of other exceptions.

(ii) Origins of the Doctrine and the Possibility of Appellate Review

[22] The origins of the doctrine were described in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R 848, at p. 860:

The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division.

[23] In re St. Nazaire Company (1879), 12 Ch. D. 88 concerned what was described as the “old practice” of the Court of Chancery to rehear its own decrees, which the Court of Appeal determined should no longer be followed because of the rights of appeal created by the Judicature Acts: In re St. Nazaire, at pp. 97-98. The possibility of appellate review seems to have been the central reason why the “old practice” was no longer followed. Based on this, in Grillas v. Canada (Minister of Manpower and Immigration), [1972] S.C.R. 577, at p. 589, Martland J., dissenting, concluded that the doctrine did not apply to the decision of an administrative tribunal from which there was no right of appeal:

The basis for the English rule, to which reference is made in this passage, is to be found in the case of In re St. Nazaire Company [(1879), 12 Ch. D. 88.], in which the Court of Appeal held that, under the system of procedure established by the Judicature Acts, a judge of the High Court had no jurisdiction to rehear and order, as the power to rehear was part of the appellant jurisdiction transferred by the Acts to the Court of Appeal.

The same reasoning does not apply to the decisions of the Board, from which there is no appeal, save on a question of law. There is no appeal by way of a rehearing.

While Martland J. was in dissent in Grillas, as noted in Chandler, at p. 861, only one other judge of the court disagreed with him on this point.

[24] However, the Court in Chandler made it clear that the absence of appellate review did not mean that the functus officio doctrine does not apply at all as there is still some need for finality, although there should be flexibility in its application (at p. 862):

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. [Emphasis added].

[25] That the availability of appellate review is part of the rationale for the functus officio doctrine was made clear in Reekie v. Messervey, [1990] 1 S.C.R. 219, a decision released soon after Chandler about the Court’s own power to reconsider its decisions (at pp. 222-223):

This rule was developed to achieve a finality of proceedings which were subject to a full appeal: see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848. Its narrow scope may be appropriate when applied to judgments which can be corrected on appeal, but is inappropriate to decisions of this Court which are not subject to appeal. Any error creating an injustice can only be cured by a reconsideration of the decision by this Court. [Emphasis added].

[27] The doctrine was described in Canadian Broadcasting Corp., at para. 33, in the following terms:

In its contemporary guise, functus officio indicates that a final decision of a court that is susceptible of appeal cannot, as a general rule, be reconsidered by the court that rendered that decision (see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, at p. 860; Reekie v. Messervey, [1990] 1 S.C.R. 219, at pp. 222-23; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 77-79). [Emphasis added].

(iii) The Principle of Finality

[29] The doctrine of functus officio is one aspect of the principle of finality, which holds that the integrity of the judicial system requires that parties be able to rely on a judicial decision once it is made without fear that it will be revisited or altered, subject to an appeal: Doucet-Boudreau, at paras. 114-115; Canadian Broadcasting Corp., at para. 34. The principle of finality also finds its expression in other doctrines, including res judicata and estoppel: Baker (c.o.b. New Scotland Soccer Academy) v. Nova Scotia (Labour Standards Tribunal), 2012 NSCA 40, 315 N.S.R. (2d) 313, at para. 39.

[30] The principle of finality is not, however, absolute. It is well established that “despite the value placed on finality, there will be situations in which other legitimate interests clearly outweigh finality concerns”: Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41 O.R. (3d) 257 (C.A.), at para. 19. As noted in Danyluk v. Ainsworth Technologies, 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 33, courts must “balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case.” See also Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at paras. 32-33; R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 109-110; Clatney v. Quinn Thiele Mineault Grodzki LLP, 2016 ONCA 377, 131 O.R. (3d) 511, at para. 60.

[31] In R. v. H.(E.) (1997), 33 O.R. (3d) 202 (C.A.), at paras. 31-33, the Court held that the principle of finality does not preclude the Court of Appeal from exercising its inherent or ancillary jurisdiction to control its own process in order to reopen an appeal that had been dismissed, provided that the appeal had not been decided on its merits. The jurisdiction to reopen an appeal will be exercised when it is in the interests of justice to do so having regard to a number of factors, including the reason why the matter was dismissed without a hearing on the merits and the consequences to the applicant: R. v. S.M.J., 2023 ONCA 157, 166 O.R. (3d) 567, at paras. 6-7; R. v. Simmons, 212 ONCA 94, 289 O.A.C. 39, at para. 15.

[32] Where there is a right of appeal, there will usually be no reason for an exception to the doctrine of functus officio because balancing the need for finality with the need to ensure that justice is done can be accomplished through appellate review. Indeed, as observed in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 46, “reviewability is an important aspect of finality.” Because there are few situations in which judicial decisions are not subject to review, there are few exceptions to the functus officio doctrine. In some cases, however, an inflexible application of the doctrine in cases where there is no possibility of appellate review will prevent a proper balancing of the public interest in finality with the public interest in ensuring that justice is done.

(iv) Section 40(1) of the Supreme Court Act

[33] I recognize that a decision made pursuant to s. 771(3) is theoretically subject to review pursuant to s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, which provides that the Supreme Court can grant leave to appeal “any final or other judgment.” However, the section makes it clear that leave can only be granted if the case raises an issue of “public importance” or “of such nature or significance” as to warrant decision by the Supreme Court. The reality is that most decisions made pursuant s. 771(2), including the one in this case, will never meet that test and there is in effect no real right of appeal. I note in this regard that the Court of Appeal’s power to reopen an appeal that has not been heard on its merits exists notwithstanding the availability of a further appeal to the Supreme Court of Canada: H.(E.), at para. 35.

F. Conclusion

[34] Based on the foregoing, I conclude that the functus officio doctrine must be applied flexibly with respect to decisions made pursuant to s. 771(2) because of the absence of a right of appeal. That is not to say that all such decisions are subject to being reconsidered whenever an unsuccessful party requests it. Finality still matters, and the fact that a party is dissatisfied with the outcome cannot justify revisiting a decision that has been made following full argument on the merits. Ultimately, reconsideration will only be appropriate when doing so is in the interests of justice having regard to a number of factors, including the length of the delay before reconsideration was requested, the explanation for the delay and the impact of the initial decision on the applicant: S.M.J., at para. 7; Bal, at paras. 53-55; Wong, at p. 574. Where there has been a clear injustice, the values protected by the principle of finality must give way to the need to ensure that justice is done.

[35] In this case, I am satisfied that the applicant fully intended to participate in the hearing and retained counsel for that purpose. Counsel sent e-mails to the Crown, but for some reason which is not the fault of either party the e-mails were not received and the hearing proceeded in the applicant’s absence. As a result, he was denied the right to an opportunity to be heard guaranteed to him by s. 771(2) of the Code and the principles of natural justice. In these circumstances, it is in the interests of justice that the decision be set aside so that a new hearing can be held at which the applicant has an opportunity to be heard.

III. DISPOSITION

[36] The application is granted and the forfeiture order made with respect to the applicant on June 7, 2024 is set aside. The Crown is free to renew its application for forfeiture upon giving adequate notice to the applicant of its intention to do so.

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