Supreme Court

Indictment No. S-1-CR-2012-000063
R. v. Latour, 2013 NWTSC 57
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
HUGUES LATOUR
________________________________________________________ Transcript of the Reasons for Decision by the Honourable Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on Tuesday, August 13th, A.D. 2009.
________________________________________________________
APPEARANCES:
Mr. Marc Lecorre Counsel for the Crown
Mr. Serge Petitpas Counsel for the Accused
Ms. Jeannette Savoie
Official Court Reporters/Sténographes judiciaires officiel(le)s
Official Court Reporters/Sténographes judiciaires officiel(le)s
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R. v. Hugues Joseph Latour
1 TUESDAY, AUGUST 13, 2013
2
3 REASONS FOR DECISION
4 CHARBONNEAU J. (Orally):
5 Yesterday we began the
6 jury selection process for Mr. Latour’s trial.
7 After the first stage of that process, I heard
8 two motions that I must deal with today. They
9 are two separate motions.
10
11 The first is a motion for
12 mistrial presented by the defence. The defence is
13 asking me to order a mistrial on the basis of serious
14 procedural defects in the process of the selection of
15 the jury panel for the trial. More specifically, the
16 defence claims that a large number of potential
17 jurors who had received summonses were illegally
18 excused by the Sheriff’s Office and
19 that a mistrial is necessary for this reason.
20
21
22 The second motion I must deal
23 with this morning, if I do not allow the first, is
24 a motion by the Crown asking me to exercise my
25 authority under section 642 of the Criminal Code
26 and order the Sheriff to go out on the streets of
27 Yellowknife and summon other persons to appear
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1 before the court as potential jurors for this trial
2 to attempt to fill the empty seats on the jury.
3
4
5 The defence objects to this
6 motion. The defence states that the conditions
7 necessary for the exercise of that authority have
8 not been met. Among other things, the defence is
9 relying on an Ontario case, R. v. Stephenson,
10 [1989] O.J. No. 800.
11 Obviously, if I allow the motion
12 for mistrial presented by the defence, the Crown’s
13 motion will become moot.
14
15 As a preliminary point, I note
16 that no formal evidence was presented, in the context
17 of these two motions, relating to the details of the
18 process that led to the selection of the jury panel
19 for this trial. Both counsel made their submissions
20 on the basis of the facts that were brought to their
21 attention by the Sheriff’s Office, the same facts
22 that were brought to the attention of the Court.
23
24
25 In certain circumstances,
26 it would be impossible or inappropriate
27 for the Court to address issues raised regarding
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1 the selection of a jury panel in the absence of
2 more formal and detailed evidence about the
3 selection process followed. However, in the
4 circumstances of this case, in light of the nature
5 of the arguments submitted and the type of objection
6 raised by the defence, I believe that I can easily
7 deal with the motion on the basis of the information
8 available. I have no reason to doubt the accuracy
9 of the things referred to by counsel for the defence,
10 and furthermore, the Crown did not object to any
11 of the facts relied on by the defence.
12
13
14 I myself referred to these facts
15 last Friday in court. When I dismissed Mr. Latour’s
16 motion for a stay of proceedings, I summarized the
17 information that I had available to me at the time,
18 from the Sheriff’s Office, regarding the state of
19 the jury panel. Therefore, while no formal evidence
20 has been filed in support of these motions, in the
21 circumstances, I am of the view that I can decide
22 these motions based on the information presented
23 to me.
24
25 I think it is important first of
26 all to review the context and facts that have given
27 rise to the two motions. Mr. Latour is being tried on
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1 an indictment comprising three counts. He is charged
2 with having committed these offences in the town of
3 Inuvik. He has elected to be tried by a court composed
4 of a judge and jury, and, during one of his
5 appearances in Territorial Court earlier in the
6 process, he indicated that he wished to exercise his
7 right to a trial in French. The trial was scheduled to
8 take place here in Yellowknife rather than in Inuvik
9 in recognition of the limited number of individuals
10 who could have sat as jurors in a French-language
11 trial in the community of Inuvik, which is much
12 smaller than the community of Yellowknife.
13
14
15 According to the information
16 provided to the Court by the Sheriff’s Office, a
17 large number of summonses was issued in preparation
18 for this trial, approximately 1,200. More than 600 of
19 these were served. Each summons was accompanied by a
20 letter informing the prospective juror that the trial
21 would take place in French and that the prospective
22 juror had to speak that language fluently. A very
23 large number of individuals contacted the Sheriff’s
24 Office and were excused because they lacked
25 the necessary competence in French.
26
27
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1 Yesterday when we began the
2 selection process, we had, I believe, a panel
3 of 47 persons. A fairly large number of them did not
4 appear, about half. At the beginning of the
5 proceeding, I explained to those present the
6 language requirements for the trial.
7
8 During the appearance last
9 Friday, counsel for the defence specified that he
10 wished to proceed with a bilingual trial because he
11 wanted to be able to cross-examine Anglophone
12 witnesses without having to be interrupted by the
13 consecutive interpretation that would be necessary
14 if some of the jurors were unilingual Francophones.
15 Therefore, yesterday I explained
16 to the prospective jurors that they had to be
17 comfortable in both languages. Three or four people
18 asked for exemptions because they spoke no or
19 insufficient French. Nobody asked to be exempted on
20 the basis of a lack of understanding of English.
21 Therefore, for all practical purposes, I think it is
22 clear that the fact that we were trying to empanel a
23 bilingual jury rather than a Francophone jury had no
24 impact on the selection process.
25
26 Yesterday others asked to be
27 excused for personal reasons, and I granted some
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1 of those requests.
2
3 By the time we had finished
4 dealing with the requests for excuses, I believe there
5 were eight names remaining. We selected two jurors.
6 The defence used six peremptory challenges, and
7 the Crown did not use any. Therefore ten jurors
8 remain to be selected for this trial.
9 It was at this point that the
10 Crown made its application pursuant to section 642 of
11 the Criminal Code. The defence objected to
12 this motion, but stated that it wanted to examine more
13 carefully some of the case law on the issue. We
14 stood down the proceedings until the afternoon.
15
16
17 That is the background to the
18 motions that were presented and that I must rule on
19 this morning.
20 First, with respect to the
21 motion presented by the defence, the defence submits
22 that a mistrial must be ordered because there were
23 serious defects in the process leading up to the
24 selection of the panel that we used yesterday.
25 The defence states that the excuses granted
26 by the Sheriff’s Office before the beginning of the
27 trial sittings were granted illegally.
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1
2 The defence claims that the
3 section of the Jury Act that authorizes the
4 Sheriff to grant excuses does not apply to a
5 criminal trial. The defence argues that the only
6 part of the Jury Act that applies to criminal
7 trials is that which sets the conditions for
8 eligibility for serving as a juror, because
9 section 626 of the Criminal Code refers to the
10 provincial and territorial legislation on this issue.
11 The defence argues that
12 section 632, which deals with excusing jurors, makes
13 no reference to the provincial legislation, and for
14 this reason, in a criminal trial, the only legal
15 means for a prospective juror to be excused is to
16 appear and seek to be excused by the court, by the
17 judge, in the presence of the accused.
18 For the reasons that follow,
19 I do not accept this argument.
20 It is clear that from a
21 constitutional perspective, the federal
22 government has jurisdiction over criminal matters,
23 while the territorial government has jurisdiction
24 over the administration of justice and of the courts.
25 It is very clear to me from the case law that, with
26 respect to the empanelling of a jury, both levels of
27 government have jurisdiction, but at different stages
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1 of the proceedings.
2 I will begin by citing
3 Find, [2001] 1 S.C.R. 863, a decision of the
4 Supreme Court of Canada dealing with this issue.
5 I do not intend to focus on the specific facts of
6 that case. I wish to cite the Supreme Court’s
7 overview of the jury selection process at pages 876
8 and 877:
9
10 The jury selection process falls into
two stages. The first is the “pre-
11 trial” process, whereby a panel (or
“array”) of prospective jurors is
12 organized and made available at court
sittings as a pool from which trial
13 juries are selected. The second stage is the
“in-court” process, involving the selection
14 of a trial jury from this previously
prepared panel. Provincial and federal
15 jurisdictions divide neatly between
these two stages: the first stage is
16 governed by provincial legislation,
while the second stage falls within
17 the exclusive domain of federal law.
18
19 The Court goes on to specify
20 that the in-court stage is governed by sections
21 626 to 644 of the Criminal Code, while the pre-
22 trial stage is governed by provincial legislation
23 or, in this case, territorial legislation.
24
25 This shared jurisdiction with
26 respect to the process for selecting jurors
27 was also recognized by the Supreme Court of
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1 Canada in Barrow, [1987] 2 S.C.R. 694.
2
3 The Superior Court of Ontario’s
4 judgment in Re s. 39 Juries Act Contempt Inquiry,
5 2011 ONSC 1105, provides, in my view, a good summary
6 of what this represents. It is a decision by
7 Hill J.
8 The issue underlying that case
9 was what the consequences should be for those who do
10 not appear for a jury selection process. However,
11 Hill J. took the opportunity to present a relatively
12 complete overview of the system for selecting jurors
13 and the broader role of the jury trial in our system.
14 At paragraph 27 of the decision, he writes:
15
16
17 Criminal jury selection has both federal and provincial aspects —
18 pursuant to ss. 91(27) and 92(14)
of the Constitution Act, 1867
19 respectively, the federal and
provincial governments both play a
20 role. The Ontario Juries Act governs
much of the process relating to
21 identifying and directing prospective
jurors to the courthouse on the date
22 of trial settings. Generally speaking,
Part XX of the Criminal Code of Canada
23 addresses the treatment of prospective
jurors and the empanelling of juries
24 here at the courthouse.
25 Later, at paragraph 42 of the
26 same decision, Hill J. explains that, because of the
27 excuses granted before the beginning of the
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1 trial sittings, the final panel is invariably
2 shorter than the original list of names. Hill J.’s
3 decision also makes it plain that Ontario’s
4 legislation, like ours, authorizes the Sheriff’s
5 Office to grant excuses before the proceedings
6 begin.
7
8 In my view, this decision simply
9 confirms the holding in Find, supra: it is perfectly
10 legal and legitimate for the Sheriff’s Office to have
11 the power to grant excuses before the beginning
12 of the proceedings, as is the case in our Jury Act,
13 which states the following at subsection 17(2):
14
15
16 At any time before the time indicated for appearance on the summons, the
17 Sheriff may excuse from service as a juror any person who the Sheriff is
18 satisfied has good reason to be excused.
19 With respect, I believe that
20 the interpretation proposed by the defence, according
21 to which only the trial judge could excuse
22 prospective jurors, would lead to absurd outcomes.
23 According to this interpretation, there would be
24 absolutely no way for a person who has received a
25 summons to ask to be excused in advance. For example,
26 a person who is unable to sit as a juror for medical
27 reasons would be forced to travel to the court to
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1 ask to be excused. Someone who, for example,
2 already has a plane ticket booked for a planned
3 trip that conflicts with the trial date would
4 have to choose between disobeying the summons and
5 missing the trip, as there would be no way to be
6 excused in advance. These are two examples. There are
7 dozens and dozens of others.
8
9
10 It is important to remember that
11 a summons issued under the Jury Act is a court order.
12 A person who fails to comply with it faces penalties.
13 In light of this, it would be fundamentally unfair,
14 in my opinion, if a citizen of the Northwest
15 Territories who receives a summons and who has a
16 valid reason not to appear were to have no recourse.
17 This is why section 17, like similar provisions in
18 the provincial and territorial legislation of other
19 jurisdictions, authorizes the Sheriff’s Office to
20 excuse someone who, according to the statute, has
21 good reason to be excused.
22
23
24 There is nothing here to
25 suggest that this power was not exercised
26 correctly by the Sheriff’s Office.
27 On the contrary, many people were excused because
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1 they did not have the language skills required to
2 participate in this trial. This was a completely
3 valid reason for excusing them.
4
5 Our Jury Act grants the
6 Sheriff’s Office relatively broad powers to excuse
7 prospective jurors. There could be a host of reasons
8 to justify excusing somebody before the
9 commencement of the proceedings. As long as it is
10 done in compliance with section 17, before the date
11 of the start of the sittings, and as long as it is
12 done for the reasons provided for in section 17 (the
13 person has good reason to be excused), then there is
14 nothing illegal or inappropriate about it. It is a
15 process that occurs every time a jury is empanelled
16 for a trial. Every time this Court sits with
17 judge and jury, the panel used for the jury selection
18 differs from the original list of summonses. In my
19 view, all of this complies with the case law of the
20 Supreme Court of Canada and is consistent with the
21 way things are done one in other jurisdictions.
22
23
24 This type of excuse, which
25 is granted before the time indicated for appearance
26 on the summons, is not like the situation where, a
27 judge would delegate his or her power to excuse, after
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1 the proceedings have begun, to the Sheriff. I fully
2 agree with the defence that it would not be
3 appropriate for a judge to delegate his or her
4 power to excuse, or any other power related to
5 selection, to the Sheriff’s Office since, once the
6 Court is in session, the Criminal Code applies. This
7 is why section 17 of the Jury Act specifies that the
8 Sheriff’s authority may only be exercised before the
9 time indicated for appearance on the summons.
10 For these reasons, I find that
11 the defence’s motion for mistrial has no merit.
12
13 Now, turning to the Crown’s
14 motion, the Crown is asking that I order the Sheriff
15 to summon additional persons to try to complete the
16 selection process. As I mentioned earlier, we are
17 currently missing 10 of 12 jurors.
18
19
20 The defence made submissions
21 regarding comments made by the Court in R. v.
22 Stephenson, supra, an Ontario case that seems to
23 suggest a certain number of conditions that must be
24 present before the authority described in section 642
25 can be exercised. I will not go into these arguments
26 in detail. I believe that the comments in Stephenson
27 need to be understood in the broader context of the
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1 jury selection process as it exists in that
2 jurisdiction and in the context of the particular
3 issue that was raised in that case.
4
5
6
7 All that section 642 of the
8 Criminal Code says is that a judge may, at the
9 Crown’s request, issue this type of order if a full
10 jury cannot be formed. The provision itself creates
11 no other requirement, such as the existence of
12 several jury lists at the outset, or that the
13 application be filed before the start of the
14 selection process.
15
16 Moreover, because the provision
17 refers to the impossibility of forming a full jury,
18 it seems logical to me to suppose that this type of
19 motion would generally be presented after the process
20 has begun and it becomes clear that the list has been
21 exhausted. I am having trouble understanding how the
22 power could be limited to situations in which it is
23 possible to determine from the outset that a jury
24 cannot be formed.
25 It should be noted that there
26 are significant regional differences across the
27 country. The jury selection process in major
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1 centres is a very different operation from how that
2 process is experienced in a smaller
3 community, or in the communities that this Court
4 visits when it sits on circuit.
5 The decisions filed by the Crown
6 and the defence dealing with the jury selection
7 process in Ontario, for example, clearly
8 demonstrate that the process there is very
9 different from the one followed in this territory.
10
11 Going back to section 640,
12 it does not set out specific conditions or
13 criteria to guide the Court in the exercise of its
14 discretionary power, but it is a discretionary power.
15 It must therefore be exercised reasonably and
16 judicially, and not arbitrarily or frivolously.
17
18 The real issue, and the sole
19 issue before me, in my view, is whether the Court
20 should use its discretionary power in the
21 circumstances and order that a certain number
22 of persons be summoned immediately for the purpose of
23 completing the jury selection process. There are some
24 arguments in favour of this course of action. First,
25 many resources have already been dedicated to this
26 trial, and it is always tempting, in such
27 circumstances, to say that it could not hurt to do
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1 everything possible to have it proceed as
2 planned.
3
4 Obviously, the other
5 argument in favour, even if it means summoning a
6 very large number of persons to appear this week
7 in an attempt to complete the jury, is that the
8 ultimate aim is to allow the accused to have
9 that which he requested and that to which he is
10 entitled, namely a jury trial and a bilingual
11 trial.
12 However, as I have already
13 mentioned, when the legislation grants a court a
14 discretionary power, that power must be exercised
15 reasonably. This in not an instance in which we need
16 select two, three or even four more jurors. We are
17 missing ten. To my knowledge, no request under
18 section 642 of the Criminal Code has ever been
19 made in this jurisdiction with so many seats to
20 fill. Generally, such requests are made when the
21 jury is short two or three jurors, possibly more, but
22 I strongly doubt that there has ever been a request
23 made, let alone granted, in a case where ten
24 additional jurors were needed.
25 I must be realistic in
26 exercising my discretionary power, and I must take
27 into account all that has happened so far in terms
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1 of efforts to select an adequate panel. As I have
2 said, more than 600 people were originally
3 summoned. Of that number, about forty made up the
4 final panel because of the large number of
5 excuses granted on account of the language
6 requirements for this trial. Of that number, only
7 two jurors could be selected.
8
9 It does not take a PhD in
10 mathematics to understand that the number of persons
11 who would have to be summoned to appear in order to
12 fill the other ten seats would have to be absolutely
13 enormous, especially in light of this trial’s
14 language requirements. I believe that even without
15 these language requirements, summoning enough people
16 at this stage to fill ten juror positions would be
17 excessively difficult in any case.
18
19 There were many submissions
20 yesterday regarding the issue of whether I could
21 legally give instructions to the Sheriff to have a
22 more targeted process for serving summonses, for
23 example, by ordering the Sheriff to go to specific
24 places where he would have a greater chance of
25 finding bilingual individuals. Even assuming that
26 such locations could be identified (it is far from
27 obvious that there are many that could enable us
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1 to serve a large number of summonses), I keep in
2 mind the basic principle that, when the power
3 set out by section 642 is exercised, it must be
4 exercised in accordance with the general principles
5 and purpose of the legislation generally applicable
6 to the formation of juries. One very important
7 aspect of this is the element of randomness inherent
8 in the selection of prospective jurors. Any
9 instruction that could compromise this randomness
10 could give rise to problems.
11
12
13
14 Having carefully considered
15 the issue since hearing the submissions yesterday
16 afternoon, I find that I need not make a firm
17 decision either way regarding the possibility of
18 giving targeted instructions, since, unfortunately,
19 I am convinced that even a targeted process would
20 not enable us to summon enough people to allow
21 a full jury to be empanelled.
22
23 In reaching this conclusion,
24 I have mainly relied on the number of jurors
25 currently lacking and the language requirements for
26 this trial. It is not simply ten additional jurors
27 who need to be identified, but ten additional
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1 bilingual jurors.
2
3 In light of all that has
4 happened so far in the process, I am unable to find
5 that there is a reasonable chance or possibility
6 that the process will succeed. In the circumstances,
7 I do not think it would be responsible of me to
8 order that a large number of citizens be summoned
9 to continue the selection process.
10
11 For these reasons, the Crown’s
12 application is also dismissed.
13 *********
14
15 (TRANSLATION OF ORIGINAL FRENCH TRANSCRIPT CERTITIFIED BY COURT REPORTER LYNN CARRIÈRE AND FILED AUGUST 16, 2013)