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Charter - s.11(d) 'Independent and Impartial Tribunal'. R. v. Madison
In R. v. Madison (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, this from a conviction for second-degree murder.
Here the court considers irregularities in the jury roll, and the related Charter s.11(d) ['to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal'] and s.11(f) rights ['to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment']:i. The Appropriate Analytical Framework and Legal Test
[36] To begin, it is essential to recognize that there exists no constitutional guarantee to proportionate representation of any particular group on a jury roll. While representativeness is a critical aspect of the jury system, it is not to be confused with the specific targeting of individuals or groups for inclusion on a jury roll: R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at paras. 39-42, 59, and 61. Therefore, in determining the representativeness of a jury roll, we do not look to the actual constitution of the roll — the end product — but to the actual process engaged in compiling the roll: Kokopenace, at para. 40.
[37] There are three key features of the jury roll process that guarantee representativeness: (a) the source list is drawn from a broad cross-section of society[1]; (b) there is a truly random selection of potential jurors from that source list, meaning that all have an equal chance of being selected for inclusion on the jury roll; and (c) the process engaged in for the delivery of the notices/questionnaires to those who have been randomly selected from the source list is adequate: Kokopenace, at paras. 39-45.
[38] This concept of representativeness, as understood in its proper context, is captured by both ss. 11(d) and 11(f) of the Charter. Section 11(d) guarantees the right to be “presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. Section 11(f) guarantees the right to the “… benefit of a jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment”.
[39] The role of representativeness under s. 11(d) is rooted in the constitutional right to an impartial trier of fact. This right will be violated whenever the process used to compile the jury “raises an appearance of bias at the systemic level”: Kokopenace, at para. 49. Of course, deliberate exclusion of a particular group from a jury roll “would cast doubt on the integrity of the process and violate s. 11(d) by creating an appearance of partiality”: Kokopenace, at para. 50. Inadvertent conduct will also violate s. 11(d) when the mistake is so serious as to create an appearance of partiality: Kokopenace, at para. 50.
[40] The role of representativeness in relation to s. 11(f) is broader because representativeness not only promotes impartiality but plays a role in legitimizing the jury in the eyes of the community, thereby promoting public trust in the justice system: Kokopenace, at para. 55. Therefore, even where a problem with representativeness is not so serious as to undermine impartiality, a problem with representativeness may well violate s. 11(f): Kokopenace, at para. 57.
[41] If the state has deliberately excluded potential jurors, then it has self-evidently failed to make reasonable efforts at creating a representative jury roll: Kokopenace, at para. 66. If, by contrast, the case is about “unintentional exclusion”, and we include here simple mistakes in the creation of a jury roll, it will be the “quality of the state’s efforts in compiling the jury roll that will determine whether the accused’s right to a representative jury has been respected”: Kokopenace, at para. 66. Finally, even where the state fails to make reasonable efforts, the size of the population excluded from the roll will make a difference. As Moldaver J. put it in Kokopenace, at para. 66:A failure to make reasonable efforts in respect of a small segment of the population will not undermine the overall representativeness of the jury roll because there is no right to proportionate representation. When only a small segment of the population is affected, there will still have been a fair opportunity for participation by a broad cross-section of society. . R. v. Edwards
In R. v. Edwards (SCC, 2024) the Supreme Court of Canada dismissed an appeal arguing that military judges, being officers in the Canadian Armed Forces, violated Charter 11(d) ["to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal"].
Here the court sets out the analytic framework for tribunal independence:[84] To assess the independence of a tribunal, a reviewing court asks “whether the tribunal may be reasonably perceived as independent” (Valente, at p. 689; see also Committee for Justice and Liberty, at p. 394). In Généreux, at p. 286, Lamer C.J. explained that the exercise for evaluating independence and impartiality under s. 11(d) is the same (“[T]he test for this purpose is the same as the test for determining whether a decision-maker is biased. The question is whether an informed and reasonable person would perceive the tribunal as independent.”). There is a strong presumption of judicial impartiality. As this Court has explained, “the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge” (Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59).
[85] This Court has held that the reasonable and informed person has “knowledge of all the relevant circumstances” and “view[s] the matter realistically and practically” (Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 26, cited with approval in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 37; see also Valente, at pp. 684-85). The reasonable and informed person is “apprised of” and “tak[es] into account all relevant circumstances” (Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at paras. 13, 28 and 36) given that they are “well-informed” (Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at para. 70). As the CMAC observed in Edwards et al., they are alive to the relevant contextual considerations (para. 9). They are “right minded”, they “th[ink] the matter through”, and they “appl[y] themselves to the question and obtai[n] thereon the required information” (Committee for Justice and Liberty, at p. 394). Ultimately, this Court’s jurisprudence “expect[s] a degree of mature judgment on the part of an informed public” (Yukon Francophone School Board, at para. 61).
[86] In Valente, this Court identified three essential conditions or hallmarks of judicial independence: security of tenure, financial security and administrative independence (pp. 694, 704 and 708; see also British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506, at para. 31; Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116, at para. 33). Security of tenure requires that the judge hold office “whether until an age of retirement, for a fixed term, or for a specific adjudicative task” so as to “secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner” (Valente, at p. 698). Financial security requires that “the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence”, which was later held to require that judicial remuneration be fixed through a process that includes an independent commission (p. 704; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3 (“Provincial Judges Reference”); Provincial Court Judges’ Association of British Columbia). Administrative independence “may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function” (Valente, at p. 712).
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