R. v. Barrow

R. v. Barrow
Collection
Supreme Court Judgments
Date
1987-12-17
Report
[1987] 2 SCR 694
Case number
19086
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Nova Scotia
Subjects
Criminal law
Evidence
Notes
SCC Case Information: 19086
Decision Content
R. v. Barrow, [1987] 2 S.C.R. 694
A. Irvine Barrow Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. barrow
File No.: 19086.
1987: March 25, 26; 1987: December 17.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Wilson, Le Dain and La Forest JJ.
on appeal from the nova scotia supreme court, appeal division
Criminal law ‑‑ Juries ‑‑ Empanelling ‑‑ Procedure ‑‑ Members of jury array queried following arraignment and plea to determine if they should be excused because of connection to the case or partiality due to pre‑trial publicity ‑‑ Screening conducted privately between judge and juror in open court but accused and counsel unable to hear ‑‑ Accused permitted to challenge for cause the remaining jurors ‑‑ Whether or not procedure improper ‑‑ If so, whether or not appellant's trial vitiated so that appeal from conviction should be allowed ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 110(1)(d), 423(1)(d), 558, 567, 569(2), 573, 577, 598, 599, 600, 613(1)(b)(iii) ‑‑ Juries Act, S.N.S. 1969, c. 12, ss. 1(m), 4(2).
Criminal law ‑‑ Conspiracy to gain contributions for governing party through influence peddling ‑‑ Whether or not political party a "person" ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 2, 110(1)(d).
Criminal law ‑‑ Evidence of conspiracy ‑‑ Hearsay rule and exception in cases of conspiracy ‑‑ Whether or not judge's instructions correct.
Evidence ‑‑ Good character evidence ‑‑ Relevance to decision ‑‑ Whether or not judge's instructions correct.
The judge, at the trial of appellant and two others for criminal conspiracy to raise funds for a political party then in power through their influence with the government, invited members of the jury panel to claim exemptions from jury service on grounds which included partiality as between the Crown and the accused. The claims of the individual claimants were considered in open court but out of the hearing of the accused and his counsel. Thirty‑six exemptions were granted from the eighty‑three member panel; the trial judge indicated that some question existed as to the impartiality of at least four jurors. The jury, selected from the remaining panel, found the accused guilty. The Appeal Division dismissed his appeal from conviction.
The grounds of appeal raised here were: (1) whether or not the Appeal Division erred in holding that the trial judge's examination under oath of members of the jury panel in the absence of the appellant and his counsel did not vitiate the appellant's trial; (2) whether or not the Appeal Division erred in holding that the political party was a "person" within the meaning of s. 110(1) (d) of the Criminal Code ; (3) whether or not the trial judge's instructions to the jury referable to the co‑conspirators' exception to the hearsay rule were correct; (4) whether or not miscarriage of justice has been occasioned as a result of the trial judge's failure to instruct the jury as to the use, in law, that could be made of evidence of appellant's good character.
Held (McIntyre and Le Dain JJ. dissenting): The appeal should be allowed.
Per Dickson C.J. and Beetz, Estey, Wilson and La Forest JJ.: Section 577 of the Criminal Code should be given an expansive reading; the words "whole of the trial" mean just that. Because of the fundamental importance of the selection of the jury and because the Criminal Code gives the accused the right to participate in the process, the jury selection should be considered part of the trial for the purposes of s. 577(1) . The exemptions granted by the trial judge here did not constitute an in‑court extension of the pre‑trial process contemplated in s. 577(1) .
In jury selection, the provincial power for the administration of justice stops and the federal power over criminal procedure begins when the judge's activity is not concerned with the assembly of an array of eligible citizens but rather with the precautions necessary to ensure an impartial jury. The Nova Scotia Juries Act is consistent with this interpretation of the scope of the provincial power. The balance of the Criminal Code 's comprehensive scheme, which is designed to ensure as fair a jury as is possible and to ensure that the parties and the public at large are convinced of its impartiality, would be upset by an addition from another source. The province cannot give the judge any power to make decisions as to partiality and any judge who attempts to participate in such decisions usurps the function of the jurors established by s. 569(2) . Usurpation of this sort is so severe an error of law by the judge that it mandates a new trial, even if no prejudice to the accused can be shown.
Both the accused and the public must perceive the proceedings to be fair; both would have difficulty seeing a private conference between judge and juror after the charges had been read and a plea entered as an administrative matter that did not affect the accused's right to a fair trial. The decision should not turn solely on the technical definition of when the trial began. Even if the excusal can be seen as a purely administrative act, the public expectation of the judicial role in these circumstances requires the judge to execute the administrative task judicially. The judge must allow counsel to participate and the public to know the reasons for the decision.
Sections 598, 599 and 600 do not apply here. The import of ss. 598 and 599 is that an irregularity of form which does not affect the substance of a trial cannot be used to challenge the result. These sections cannot cure doubts as to the impartiality of the jury and the appearance of justice. Section 569(2) requires all questions of partiality to be decided by the two jurors sworn for that purpose, and accordingly, s. 600 does not authorize the judge to perform this function.
All of the jurors excused on grounds of partiality cannot be assumed to be partial to the Crown. The grounds of partiality the trial judge used to exclude them were not known and could only be a matter of speculation. The trial judge's screening, too, could not be assumed to have helped the accused without impairing the ability to challenge for cause later. It is quite possible that jurors partial to the Crown or accused could have slipped through the screening process.
Per McIntyre and Le Dain JJ. (dissenting): The appellant was not present at the selection of panel members prior to jury selection in that neither he nor his counsel was permitted to hear the examination.
The examination of the panel members claiming exemption was not conducted "during" the trial. While anything that occurs in the course of the courtroom proceedings which could involve the accused's vital interests should constitute part of the trial, not every step in the long process leading to the ultimate verdict will be part of the trial for the purposes of s. 577 . The accused's rights under s. 577 of the Criminal Code will be violated if the trial judge examines a juror for partiality in the absence of the accused after the jury has been empanelled. But, the situation is profoundly different if the trial judge examines jurors for partiality prior to the jury selection process under the Code.
There are two distinct steps involved in providing a jury to try an individual case. The first, which involves assembling the jury panel from which individual juries are to be selected, is governed by provincial law. The accused has no interest in the process, save the interest of any citizen in the due administration of the law. The second is governed by ss. 558 to 571 of the Code and involves the selection from the jury panel of a jury to try a particular case. The course taken by the trial judge was quite proper for his inquiry of panel members was part of the first step of the jury process and could not affect the vital interests of the accused touching on the question of guilt or innocence.
The word "person" in s. 110(1) (d) of the Criminal Code must be read in the light of s. 2 of the Code. The Nova Scotia Liberal Association clearly falls within the meaning of "society" found in that section and accordingly is a person for the purposes of s. 110(1) (d).
The evidence directly admissible against each of the three conspirators differed in some particulars. There was evidence upon which the jury could conclude that a conspiracy did exist and much of the evidence, as it would apply to each individual charged, would be hearsay. The hearsay exception was therefore available to the Crown if the jury, on a consideration of the evidence directly admissible against each individual, had reached a conclusion as to membership in the conspiracy in respect of each of the accused. The jury was properly instructed as to their duties in this respect.
Evidence of appellant's good reputation and character was clearly put before the jury and was emphasized and given fair treatment by the trial judge. While not directly stated by the trial judge, the jury must have been aware that they could consider the evidence as relevant to show that the appellant was not likely to have committed the crime with which he was charged. No miscarriage of justice occurred with respect to the charge as a whole because of what at best was a technical non‑direction.
Cases Cited
By Dickson C.J.
Considered: Basarabas and Spek v. The Queen, [1982] 2 S.C.R. 730; R. v. Hertrich (1982), 67 C.C.C. (2d) 510, leave to appeal refused, [1982] 2 S.C.R. x; Vézina and Côté v. The Queen, [1986] 1 S.C.R. 2, aff'g [1982] C.A. 419, 3 C.C.C. (3d) 155; distinguished: R. v. Hubbert, [1977] 2 S.C.R. 267, aff'g (1975), 29 C.C.C. (2d) 279; referred to: Guérin v. R., [1984] C.A. 305, 13 C.C.C. (3d) 231; R. v. Varga (1985), 18 C.C.C. (3d) 281; R. v. Battista (1912), 21 C.C.C. 1; R. v. Stewart, [1932] S.C.R. 612; Meunier v. The Queen (1965), 48 C.R. 14, [1966] Que. Q.B. 94n, aff'd [1966] S.C.R. 399; R. v. Fenton (1984), 11 C.C.C. (3d) 109; R. v. Elliot, [1973] 3 O.R. 475.
By McIntyre J. (dissenting)
R. v. Lee Kun, [1916] 1 K.B. 337; Basarabas and Spek v. The Queen, [1982] 2 S.C.R. 730; R. v. Hertrich (1982), 67 C.C.C. (2d) 510; Vézina and Côté v. The Queen, [1986] 1 S.C.R. 2, aff'g [1982] C.A. 419, 3 C.C.C. (3d) 155; R. v. Fenton (1984), 11 C.C.C. (3d) 109; Frisco v. The Queen, [1971] C.A. 176, 14 C.R.N.S. 194; R. v. Hubbert (1975), 29 C.C.C. (2d) 279; R. v. Carter, [1982] 1 S.C.R. 938; R. v. Makow (1974), 20 C.C.C. (2d) 513; R. v. Baron and Wertman (1976), 31 C.C.C. (2d) 525; Guimond v. The Queen, [1979] 1 S.C.R. 960; Director of Public Prosecutions v. Shannon, [1975] A.C. 717; R. v. Khan (1982), 66 C.C.C. (2d) 32.
Statutes and Regulations Cited
Constitution Act, 1867, ss. 91(27) , 92(14) .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 2 , 110(1) (d), 423(1)(d), 554, 558, 560(5), 567, 569(2), 572(1), 573 , 577 , 598 , 599 , 600 , 613(1) (b)(iii), 618(1)(b).
Juries Act, S.N.S. 1969, c. 12, ss. 1(m), 4(1), (2).
Authors Cited
Practice Direction, [1973] 1 All E.R. 240.
APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1984), 65 N.S.R. (2d) 1, 147 A.P.R. 1, 14 C.C.C. (3d) 470, dismissing an appeal from conviction by Burchell J. sitting with jury. Appeal allowed, (McIntyre and Le Dain JJ. dissenting).
Austin M. Cooper, Q.C., and Mark J. Sandler, for the appellant.
Kenneth W. F. Fiske, and John D. Embree, for the respondent.
The judgment of Dickson C.J. and Beetz, Estey, Wilson and La Forest JJ. was delivered by
1. The Chief Justice‑‑The principal issue in this appeal, and the only issue with which I intend to deal at length, is whether the examination under oath of the jury panel by the trial judge in the absence of the appellant and his counsel, respecting potential claims for exemption from jury duty, vitiated the appellant's trial.
2. I have had the benefit of reading the reasons of my colleague, Justice McIntyre, and I agree with his statement of the facts.
I
The Jury Selection
3. At the opening of the trial the appellant was arraigned before an assembled jury panel and entered a plea of not guilty on the charge before the court. The trial judge then, in the following terms, invited the members of the jury panel to claim exemptions on grounds which included potential partiality:
Members of the jury panel, you've just witnessed the procedure under which the two accused persons in this case, have been arraigned and you've heard the charge against them, and you've also heard their pleas of not guilty to the charge, in each case. Now, we will later this morning, be proceeding to select a Jury of twelve, who will try this case, which I may say, is the only case on the docket for which you have been called. It's usual at this time, however, to invite members of the jury panel to come forward and claim exemption if there's any circumstance, such as relationship to one of the accused, or other involvement with the case, that would prevent the Juror from serving impartially in the case. To that usual call for exemption claims, there are several matters I must add in this case. The first is, that there has been in the press and in the broadcast media considerable publicity about this case and I advise you that if exposure to that publicity in your opinion, would operate to prevent you from being impartial in this case, then you should come forward on that ground, as well as others I've mentioned and claim exemption, and the other matter that I want to bring to your attention in inviting claims for exemption, is that it's anticipated that this case will last from four to six weeks and that, in some instances, may create special hardship and that can be a basis on which you may now claim exemption. So with those words of explanation I invite persons claiming exemption in this case, now to come forward. You will be sworn and I will consider the basis of your claim and deal with it. [Emphasis added.]
4. The judge then proceeded to swear the jurors and considered claims for exemption advanced by members of the jury panel in the courtroom but out of earshot of all counsel and the accused. Counsel for Senator Barrow made objection to the procedure in the following terms:
I have just one very respectful submission to make to your Lordship. I realize there may be some very personal claims for exemption that would be none of my business, and I wouldn't want to listen to it, but since your Lordship invited the members of the Jury who might feel that they couldn't be impartial by reason of publicity to claim exemption on that basis, if some claim for exemptions made on that basis, I am wondering whether, my Lord, that shouldn't be a claim that we should be able to listen to. I am in your Lordship's hands as to that. [Emphasis added.]
5. The judge advised counsel that he was prepared to note the grounds of exemption but declined to depart from the procedure adopted. As appears from the judgment of the Appeal Division, the judge considered claims for exemption on behalf of members of the jury panel and granted thirty‑six exemptions. The jury panel had consisted of eighty‑three members. After all exemptions had been granted, the panel had been reduced to forty‑seven persons. The record does not state whether any exemptions were refused.
II
The Judgment of the Appeal Division
6. The decision of the Supreme Court of Nova Scotia, Appeal Division, reported at (1984), 65 N.S.R. (2d) 1, referred to s. 577(1) of the Criminal Code which reads:
577. (1) Subject to subsection (2), an accused other than a corporation shall be present in court during the whole of his trial.
7. The Appeal Division was satisfied that neither Senator Barrow nor his counsel was able to hear the examination conducted by the trial judge and, in such circumstances, Senator Barrow was effectively deprived of his right and duty to be present. Being present included being able to hear the proceedings. The Appeal Division then turned to the question of whether Senator Barrow had been denied the right to be present during his trial. His counsel submitted that the trial commenced with arraignment and plea; the Crown submitted that at the time of the examination the jury of twelve had not been empanelled, the appellant had not been placed in charge of the jury, and the trial had not commenced.
8. The Appeal Division referred to several authorities and concluded that (i) a trial does not commence until after a plea is entered; (ii) the call for exemptions by the judge took place after plea and would therefore seem to be part of the trial proceedings, at least for the purposes of s. 577 of the Code; (iii) it has been the practice in Nova Scotia under s. 4(2) of the Juries Act, S.N.S. 1969, c. 12, to exercise a wide discretion in granting exemptions from jury duty, "at least before arraignment". (Section 4(2) reads: "The judge presiding at a session or the Chief Justice may grant to any person exemption from service as a juror at the whole or part of that session upon application by or on behalf of the person.")
9. The Appeal Division then noted that in this case the trial judge saw fit to examine the jurors out of earshot of all counsel and the accused and in following that process he indeed exempted thirty‑six jurors. It said at p. 10:
If this matter had ended at this point we would have grave reservations as to the validity of the judge's actions.
The Appeal Division continued:
However, following this procedure defence counsel were then given the right to challenge all jurors for cause and all remaining jurors were challenged for cause and underwent a trial by two other jurors to determine their partiality. Consequently, the defence was given every opportunity to explore the question of impartiality with each juror. In these circumstances we cannot see how any possible prejudice could have been suffered by the appellant accused. Indeed his privileges were emphasized both by the court and by counsel. The judge eliminated any juror whom he thought had any semblance of partiality and the appellant accused was able subsequently to further screen the jury by way of challenge for cause to determine whether or not the jurors were impartial. In these circumstances and indeed even giving the liberal construction to the process with respect to s. 577 of the Code recommended by Dickson J. in R. v. Basarabas, supra, we have come to the conclusion that the vital interests of the appellant were never jeopardized and that there was no denial of any fundamental right. In our opinion the practice followed by the trial judge was eminently fair to the accused person. There was no error on the part of the trial judge in examining under oath the members of the jury panel with respect to claims for exemption that would vitiate the trial.
III
10. With the greatest of respect, I disagree with the reasoning of the Appeal Division of the Supreme Court of Nova Scotia. Like the Appeal Division, I have grave reservations about the propriety of the procedure followed by the trial judge. Unlike the Appeal Division, I do not think that the breach of the appellant's right to be present was cured by the later opportunity afforded the accused, pursuant to the Criminal Code , to challenge the remaining jurors for cause. An inquiry of that sort may be appropriate to decide whether, an error having been made, that error can be cured under s. 613(1) (b)(iii). It is not relevant to the determination of whether an error has occurred in the first place. I think there was an error, a breach of s. 577(1) , and for reasons which I will make clear, I do not think that the error can be cured by s. 613(1) (b)(iii).
1. Section 577 of the Criminal Code
11. The appellant submits that s. 577(1) of the Criminal Code not only entitles, but requires, an accused to be "present" at his trial for a criminal offence. The right and duty to be present is fundamental. It is further submitted that the examination of members of the jury panel under oath was part of the "trial" for the purposes of s. 577(1) and that the inability of the accused and his counsel to hear the exchanges between the judge and the panel members claiming exemption effectively ensured that the accused was not "present" for that part of his trial. It is therefore necessary to consider whether the trial of the accused had begun at the time the judge examined the jurors.
12. Basarabas and Spek v. The Queen, [1982] 2 S.C.R. 730, raised a similar question: when does a trial before a jury begin for the purposes of s. 573 of the Code? That section permits a judge to discharge a juror where in the course of a trial the judge is satisfied that a juror should not, because of illness or other reasonable cause, continue to act. At the trial of the two appellants in that case a juror was discharged pursuant to s. 573 after the jury had been empanelled but before the accused had been put in charge of the jury and before any evidence had been called. The Crown contended that the juror was discharged "in the course of" the trial. The accused said that a jury trial did not commence at least until the time at which the accused was put in charge of the jury. This Court held unanimously that (i) the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied; (ii) subject to s. 573 , an accused in a criminal jury trial is entitled to be tried by twelve jurors and is entitled to the unanimous verdict of twelve jurors unless and until "in the course of a trial" the judge is satisfied that a juror should not continue to act; (iii) in so far as s. 573 deprived an accused of his common law right to the unanimous verdict of twelve persons, it should be narrowly construed; (iv) the words "continue to act" in s. 573 suggested that the jury had been acting qua jury before the discharge of the juror. In the result, and in the context of s. 573 of the Code, the Court held that the weight of authority supported the position that a jury trial commenced when the accused had been placed in charge of the jury.
13. In the course of the Basarabas judgment, however, reference was made to the section of the Code in issue in the present appeal. After noting that the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied, the Court continued, at p. 740:
Thus, the word "trial" in s. 577(1) which assures the accused the right to be present "during the whole of his trial" will be liberally construed to afford the accused the right to be present during the selection of the jury. In like manner, the word "trial" in s. 566 which denies the prosecutor the right to direct a juror to stand by on the trial of an indictment for the publication of a defamatory libel will be interpreted to embrace the proceedings preceding the empanelling of the jury. In other sections "trial" may have a different connotation depending upon the section of the Code being applied.
14. The reason for varying starting points is that different sections of the Code protect different interests. Section 573 allows the judge to remove a juror who for some reason is unable to continue, but the removal of a juror is a very serious matter. An accused has the right to be tried by twelve jurors (ss. 560(5) and 572(1)) and every effort must be made to avoid a jury of less than twelve members. If the jury has heard no evidence, as in Basarabas, then a juror can be replaced and s. 573 should not be used. "Trial" there refers to the heart of the trial, the presentation of evidence before the trier of fact. Section 577 , however, protects different interests and in my opinion should be given an expansive reading. The words "whole of the trial" mean just that, the whole of the trial.
15. In my view the examination of prospective jurors by the trial judge, relating in part to their impartiality and following arraignment and plea, formed part of the trial for the purposes of s. 577 . This conclusion is supported by several cases which have emphasized the centrality of an impartial jury to a fair trial.
16. In R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.), leave to appeal refused, [1982] 2 S.C.R. x, one of the questions raised was whether a judge's examination in chambers of two jurors concerning anonymous phone calls, and with only counsel present, breached the right of the accused to be present and thus vitiated the trial. Martin J.A. delivered the judgment of the Court of Appeal and adverted to the "fundamental principle" of the criminal law that a person charged with an indictable offence is entitled, indeed required, by s. 577 to be personally present at his trial. For the purpose of this principle "trial" means the entire proceedings, including sentence. Martin J.A. continued, at p. 527:
Generally speaking, the trial of an accused does not commence until after plea: see Giroux v. The King (1917), 29 C.C.C. 258 at p. 268. However, "trial" for the purpose of the principle that an accused is entitled to be present at his trial clearly includes proceedings which are part of the normal trial process for determining the guilt or innocence of the accused such as arraignment and plea, the empanelling of the jury, the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence), rulings on evidence, arguments of counsel, addresses of counsel to the jury, the judge's charge, including requests by the jury for further instructions, the reception of the verdict and the imposition of sentence if the accused is found guilty. [Emphasis added.]
The following two passages are also relevant, at p. 537:
The essential reason the accused is entitled to be present at his trial is that he may hear the case made out against him and, having heard it, have the opportunity of answering it: R. v. Lee Kun (1915), 11 Cr. App. R. 293. The right of the accused to be present at his trial, however, also gives effect to another principle. Fairness and openness are fundamental values in our criminal justice system. The presence of the accused at all stages of his trial affords him the opportunity of acquiring first‑hand knowledge of the proceedings leading to the eventual result of the trial. The denial of that opportunity to an accused may well leave him with a justifiable sense of injustice. Indeed, in my view, an examination of the Canadian decisions shows that the latter principle is, in fact, the implicit and overriding principle underlying those decisions.
...
...the characterization of a proceeding as a part of the trial in relation to the accused's right to be present at the proceeding would seem to depend upon whether his exclusion from the proceeding violates his right to be present so that at all times he may have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests.
17. In the result the Court of Appeal held that the appellants were entitled to be present to hear from the jurors' own lips whether they were affected by those telephone calls and whether the calls prevented them from continuing to discharge their duties as jurors. This conclusion, Martin J.A. said, is consistent in principle with the Canadian decisions, the course followed in the two Australian decisions mentioned by him in the course of his judgment and the weight of judicial opinion in the United States. Martin J.A. found this persuasive, although he added at pp. 539‑40 that "the force of that [American] opinion is somewhat diminished by the fact that the American courts frequently apply the `harmless error rule' where the right of a defendant to be present at all stages of his trial has been infringed. By contrast, s. 577 and the jurisprudence surrounding it precludes the application of any such rule in Canada".
18. In Hertrich, Martin J.A. conducted an admirable survey of the American case law on this subject and concluded that in that country as well the accused has a right to be present during any examination of a juror as to his or her impartiality. A distinction is drawn in the United States, however, between exemptions claimed on grounds of partiality and those claimed on essentially private grounds of hardship, illness, and the like. In the latter instances, the examination by the judge has been held to be outside the scope of the trial (Hertrich, p. 534). Of course, this was precisely the distinction advanced by the defence counsel at the trial of the instant case. He objected to the trial judge's course of action only in the case of jurors claiming exemption on grounds of prejudice.
19. As Martin J.A. suggests, the weight of authority both in Canada and in the United States supports the contention of the appellant that the questioning under oath of jurors as to their possible partiality is a part of the trial. The appellant therefore had a right to be present, a right which must include the right to hear the proceedings.
20. Martin J.A. in Hertrich identified two important principles that underlie s. 577 . First, the accused is present to hear the case he or she faces and is thereby able to put forward a defence. Second, the accused sees the entire process by which he or she is tried and is able to see that the correct procedure is followed and the trial fair. For Martin J.A., the second principle was the more important one. I agree with him that this second value is of enormous importance to the perceived fairness of the Canadian criminal justice system. The sight of a judge conferring in private with jurors on issues that go to the partiality of the trier of fact can only prompt cynicism in an accused. It should be avoided.
21. The question of what is included in the trial for purposes of s. 577(1) was also addressed by this Court in Vézina and Côté v. The Queen, [1986] 1 S.C.R. 2. Justice Lamer for the Court held that the right to be present at trial included the right to be present at an examination of jurors for partiality after the trial had begun. Adopting the reasoning of Martin J.A. in Hertrich, Lamer J. held that the test of what should be included in "trial" was not limited to the presentation of the case against the accused and to matters that directly affected the decision as to guilt or innocence, such as rulings on the admissibility of evidence. For Lamer J., s. 577(1) is triggered whenever the "vital interests" of the accused are at stake, or as Martin J.A. put it in Hertrich, when a decision bears on the "substantive conduct of the trial." Any question about the partiality of the jurors individually or the jury as a whole reflects on the substantive conduct of the trial and must be dealt with in the presence of the accused. The accused has a right to a fair trial as well as a right to hear the case and make a defence. Section 577(1) protects both rights. In both Hertrich and Vézina and Côté, s. 577(1) was infringed when the judge examined jurors for partiality after the trial began and in the absence of the accused.
22. The Crown argues that the trial judge must oversee the jury selection process as part of the duty to ensure a fair trial. Even if the Nova Scotia Juries Act does not authorize the process followed here, the Crown suggests that it was part of the judge's inherent powers under the Criminal Code , continued by s. 600 . The Crown cites the case of R. v. Hubbert (1975), 29 C.C.C. (2d) 279 (Ont. C.A.); affirmed [1977] 2 S.C.R. 267. Hubbert raised the question whether a trial judge, when empanelling a jury, might properly ask the panel as a whole whether any member of the panel has any connection with any of the parties. The judgment of the Ontario Court of Appeal reads, in part, at pp. 292‑93:
Turning to the practical consideration of the methods by which the process should be carried out, we deal first with the kind of obvious partiality dealt with in the English practice direction. Some trial Judges make a practice of saying to the jury panel, before the selection process begins, something of this nature:
If there is anyone on this panel who is closely connected with a party to this case or with a witness who is to testify, will you please stand?
(Rarely does anyone respond.) If someone does stand, the trial Judge asks him to come forward (usually to the jury‑box), and inquires further as to that person's connection with the case. To take obvious examples, if the juror is the uncle of the accused, or the wife of a witness, or the brother of the investigating police officer, he ought not to serve.
In our view, the trial Judge on his own should excuse that prospective juror from the case, without more ado. The Criminal Code makes no express provision for it, but it does not expressly or impliedly forbid it either, and in our view it is in the power of the trial Judge as part of his function of ensuring a fair trial. We think the practice of excusing jurors of obvious partiality is a desirable one in all cases.
The Hubbert case was appealed to this Court. The appeal was dismissed orally without calling upon Crown counsel.
23. In Hubbert, the Ontario Court of Appeal and this Court approved the common practice of a trial judge's asking the members of the jury array if any of them had any obvious connection to the case that would disqualify them. There are two differences between Hubbert and the case at bar. The first is that in the procedure recommended by the Ontario Court of Appeal, any member of the array who responds to the initial question answers any subsequent questions from the jury box. In other words, the judge's questions and the juror's responses are heard by everyone in the court, including the accused, and all will know the reason why the juror thinks he or she is not impartial. There is a world of difference between this procedure and a whispered conference between the judge and the potential juror, at the bench. The Hubbert procedure does not violate the accused's right to be present.
24. The second difference is that an initial question by the judge to the jury array is best seen as a summary procedure to speed up the jury selection, done with the consent of the parties. This was the view of the majority of the Quebec Court of Appeal in Guérin v. R., [1984] C.A. 305, 13 C.C.C. (3d) 231. Both Bisson J.A. (at p. 246) and Jacques J.A. (at pp. 248‑49) make the point that when counsel agree to initial questions by the judge there is no violation of the Code procedure. Either side can challenge any juror that the judge does not exclude and obvious cases are decided quickly on consent. Where counsel for either side objects to the process, as in this case, the judge cannot continue with the questions but must leave it to the parties and the jurors, under the judge's supervision.
25. The selection of an impartial jury is crucial to a fair trial. The Criminal Code recognizes the importance of the selection process and sets out a detailed procedure to be followed (ss. 554 ‑573). Both the Crown and the accused participate in the process, with the right to challenge for cause or peremptorily and, in the case of the Crown, to stand aside potential jurors (ss. 562 ‑568). The challenge for cause involves trial of the impartiality of potential jurors, with examination by either side. The accused, the Crown, and the public at large all have the right to be sure that the jury is impartial and the trial fair; on this depends public confidence in the administration of justice. Because of the fundamental importance of the selection of the jury and because the Code gives the accused the right to participate in the process, the jury selection should be considered part of the trial for the purposes of s. 577(1) .
2. Section 4(2) of the Juries Act
26. The issue in this case is complicated, however, by the relationship between the Criminal Code and s. 4(2) of the Nova Scotia Juries Act which, as noted above, states:
4. ...
(2) The judge presiding at a session or the Chief Justice may grant to any person exemption from service as a juror at the whole or part of that session upon application by or on behalf of the person.
"Session" is defined in s. 1(m) of the Act as including any convening of the Trial Division of the Supreme Court for the purpose of one or more civil matters or one or more criminal matters. It is not readily apparent why the word "session" is used rather than the word "trial". The record is silent on the question of whether Burchell J. had convened the Trial Division of the Supreme Court of Nova Scotia and was therefore presiding at a "session" as well as at a trial. I do not make anything of the point as it was not advanced before us.
27. In the present case, as I understand its position, the Crown argues that even if the word "trial" in s. 577(1) includes the selection of the jury, the examination of jurors claiming exemptions is not part of the jury selection process. It occurs before the commencement of the jury trial and is part of the pre‑trial process of assembling a jury array of qualified, non‑exempt jurors. Crown counsel contends that the jury selection process under the Criminal Code had not yet begun. The judge was using his authority under s. 4(2) of the Juries Act to provide an eligible array, after which selection of the jury would begin under the Code. It is asserted that the exemptions granted by the trial judge in this case "merely constituted an in‑court extension" of the pre‑trial process contemplated in s. 577(1). Since by this argument the trial had not yet begun, s. 577(1) did not yet apply and the accused had no right to attend or to participate. Neither did he have a right under s. 4(2) of the Juries Act to participate in the exemption process. Once the judge began the jury selection process under the Code he allowed full participation by counsel for the accused. The Crown thus concludes that there was no breach of s. 577(1).
28. I am firmly of the view that these submissions cannot be sustained. First, s. 4(2) of the Juries Act relates specifically to exemption before formal court proceedings. How can it be said that proceedings in court after arraignment and after a plea has been entered are not formal court proceedings? Secondly, the pre‑process exemptions must be intended to allow persons who would suffer serious inconvenience from serving on any jury during the session to petition for a discretionary order to allow them to avoid that inconvenience. Some of the exemptions granted in the present case related not to inconvenience, but to prejudice. The considerations must surely be different.
3. Constitutional Considerations
29. The Crown's arguments also fail when set against the principles of the division of powers under the Constitution Act, 1867 , the nature of the power conferred on the judge by s. 4(2) of the Juries Act, and the jury selection process in the Code. The Juries Act does not authorize the judge to screen the panel in secret after charges have been read out and plea entered. Even if it did, the appearance of justice and the need for a fair trial suggests that the power could not be exercised in the way the trial judge did in the case at bar.
30. It is undoubtedly the right and the duty of the Nova Scotia Legislature to pass a law for the gathering of the jury array. Section 92(14) of the Constitution Act, 1867 , enables the province to legislate for the administration of justice within the province so long as it does not infringe on matters of criminal procedure, reserved to the federal government by s. 91(27) . Part of this provincial power includes the assembly of an array of potential jurors for