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Criminal - Juries

. La Presse inc. v. Quebec

In La Presse inc. v. Quebec (SCC, 2023) the Supreme Court of Canada considered the (temporary) pre-jury-empanelment application of the CCC s.648 prohibition on publication of any criminal proceedings conducted in the absence of a jury (the 'automatic publication ban'). In these quotes the court considers 'impartial juries', here in an open court context:
(1) Right to an Impartial Jury

[44] All parties agree that s. 648(1) was designed to protect the accused’s right to an impartial jury, which in 1972 was part of the common law and which was later constitutionalized under s. 11(f) of the Charter (see N. R. Hasan, “Three Theories of ‘Principles of Fundamental Justice’” (2013), 63 S.C.L.R. (2d) 339, at p. 354). Section 648(1) protects this interest by providing a safeguard against the very risk of jury contamination that came with the introduction of s. 647 of the Criminal Code. Under the latter provision, as mentioned above, judges were allowed for the first time to permit jurors to separate in capital offence trials, which often attracted considerable media attention.

[45] The parties disagree, however, on whether Parliament intended s. 648(1) to act as a safeguard against the contamination of the jury generally or whether it was concerned strictly with the empanelled jury.

[46] The appellants submit that the former view improperly assumes that Parliament would not have viewed the factors that distinguish the pre- and post-jury empanelment stages as warranting different treatment. Rather, the appellants say, Parliament must have intended s. 648(1) to apply only during the “critical” period after the jury is empanelled because of (1) the plethora of mechanisms available before and during selection — challenges for cause, the judge’s instructions to the jury, the swearing-in of the jury, etc. — to guarantee the impartiality of the jurors; (2) the lower potential for prejudice before the jury is selected, given that many matters dealt with at that stage do not involve information prejudicial to the accused; and (3) the sometimes long period between the laying of charges and the empanelment of the jury. According to the appellants, these factors would have led Parliament to adopt a blanket prohibition applicable only at the post-empanelment stage, thereby leaving pre-empanelment publication bans to be discretionary.

[47] I disagree with the appellants. While I recognize that the periods before and after the jury is empanelled are distinguishable by the above-cited features, I see no indication that Parliament turned its mind to such features when it enacted s. 648(1). In reality, Parliament would have had no reason to do so because, as I have said, jurors in 1972 were at risk of being exposed to information about matters dealt with in their absence only when they separated.

[48] I note that s. 648(1)’s purpose was formulated broadly in the parliamentary debates, with concerns being expressed about the publicity of matters dealt with in the absence of the jury. When the publication ban was introduced in 1972, it was noted in the House of Commons Standing Committee on Justice and Legal Affairs that the provision would ensure “that those matters remain a secret for better functioning of jurors” (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 7, 4th Sess., 28th Parl., May 11, 1972, at p. 7:26). And in the Standing Senate Committee on Legal and Constitutional Affairs, it was explained that s. 648(1) would “prohibit publication of those things that go on when the jury is out of the courtroom” (Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 8, 4th Sess., June 1, 1972, at p. 8:18). The implication was that, without such a provision, “the members of the jury could go home at night, and would know exactly what went on in the courtroom” (ibid.). There was no other discussion of the publication ban.

[49] On careful consideration of the provision’s wording and the above excerpts from Hansard, I am led to the conclusion that one of Parliament’s objectives was to shield the jury from information about any portion of the trial from which it was absent, so that its verdict is based only on the evidence found admissible in court (see similar expressions of purpose in R. v. Brown (1997), 1997 CanLII 12360 (ON SC), 72 C.R.R. (2d) 312 (Ont. C.J. (Gen. Div.)), at pp. 319-21; Regan; R. v. Bernardo, [1995] O.J. No. 247 (QL), 1995 CarswellOnt 7200 (WL) (C.J. (Gen. Div.)), at para. 43 (QL); Stobbe, at para. 13; Millard, at para. 25; Wright, at para. 25).

[50] This objective is relevant with respect to both the existent jury and the prospective jury, that is, the jury yet to be empanelled. This does not mean that the purpose of s. 648(1) has “shifted” in response to changing practices in criminal proceedings. Justice Dickson (as he then was) rejected the theory of a shifting purpose: “Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting variable” (R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 335). It is simply that, as a result of the introduction of s. 645(5), the matters that should “remain a secret” for the jury are now dealt with both before and after its empanelment.
. R. v. I.M.

In R. v. I.M. (Ont CA, 2023) the Court of Appeal sets out the straight-forward test for an unreasonable jury verdict:
[20] The test for an unreasonable verdict is well established. The question is whether a properly instructed jury, acting judicially, could reasonably have rendered the verdict. In conducting this assessment, the court can “review, analyse and, within the limits of appellate disadvantage, weigh the evidence”: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; see also R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at paras. 74-80.
. R. v. Groves

In R. v. Groves (Ont CA, 2023) the Court of Appeal comments on jury charges:
[46] I begin with the uncontroversial observation that the trial judge’s charge must be read in light of the entire trial and a trial judge’s obligation to decant and simplify the law for the jury: R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at paras. 21-22. Trial judges are required to separate the wheat from the chaff in determining which defences are applicable, and avoid unnecessary, inappropriate, and irrelevant legal instruction that might divert the jury’s attention from the disputed issues: R. v. Rodgerson, 2015 SCC 48. 2015 SCC 38 (CanLII), [2015] 2 S.C.R. 760, at para. 52.
. R. v. Nagy

In R. v. Nagy (Ont CA, 2023) the Court of Appeal stated the general standard for jury charges:
[25] Trial judges are not held to a standard of perfection in their crafting of jury charges. A functional approach to the substance of the charge, by examining errors in the context of the evidence, the entire charge, and the trial as a whole, is required: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at para. 21.
. R v Le

In R v Le (Ont CA, 2023) the Court of Appeal clarified that a trial judge may express a fact opinion to the jury:
[76] A trial judge is permitted to express opinion on issues of fact, if it is otherwise clear that the jury is not bound by the judge’s views: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397. While he did not, immediately after this comment, remind the jury that the jury was not bound by his views, the trial judge had informed the jury in the charge that he was entitled to express his opinion on matters of fact, but the jurors did not have to reach the same conclusion. He explained that it was their recollection and assessment of the evidence that mattered, and not his.
. R. v. MacKinnon

In R. v. MacKinnon (Ont CA, 2022) the Court of Appeal considered the operation of hearsay principles in a criminal jury trial:
The Framework for the Admission of Hearsay Evidence

[27] Hearsay is an out-of-court statement tendered for the truth of its contents. In a jury trial, the trial judge decides whether the hearsay statement should be admitted into evidence (threshold reliability). If the hearsay statement is admitted, the jury then considers whether the hearsay statement is to be believed and if so, what weight, if any, should be attributed to it in the context of the entire evidentiary record (ultimate reliability): R. v. Khelawon, 2006 SCC 57, 2 S.C.R. 787, at paras. 3, 50.

[28] It is important to remember that in a jury trial, at the admission stage, the trial judge’s role is limited to deciding whether to admit the hearsay statement, not whether the statement should ultimately be relied on and what its probative value is: R. v. Bradshaw, 2017 SCC 35, [2017] 1 SCR 865, at para. 41.

[29] In a criminal jury trial, it is “constitutionally imperative” that questions of ultimate reliability be left for the jury: Khelawon, at para. 50; Bradshaw, at para. 114. This is because, “[w]here the criteria of necessity and reliability are satisfied, the lack of testing by cross-examination goes to weight, not admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis.”: R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 9.

[30] Hearsay evidence is presumptively inadmissible because it is difficult for the trier of fact to assess its truth when the circumstances under which it was made may not be clear, and the person who gave the statement is not available for cross-examination, cannot be observed by the trier of fact, and did not testify under oath when giving the statement: Bradshaw, at para. 20.

[31] However, courts have recognized that in some circumstances, hearsay evidence should be admitted at trial for the jury’s consideration.

[32] First, statements falling within traditional exceptions to the hearsay rule, such as spontaneous utterances, are presumptively admissible: R. v. Schneider, 2022 SCC 34, at para. 51; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 212; and R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at para. 61. In “rare cases” however, evidence falling within a traditional exception may be excluded where the indicia of necessity and reliability are lacking in the particular case: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15; Schneider, at para. 51.

[33] Second, even if hearsay evidence does not fall under a traditional exception, it may still be admitted under the “principled approach” provided that the statement is both necessary and sufficiently reliable such that it “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding”: Khelawon, at para. 2; Bradshaw, at para. 24.

[34] The traditional hearsay exceptions and the principled approach are generally informed by the same reliability considerations. Save for certain exceptions with “unique doctrinal roots”, such as party admissions, the Supreme Court has long recognized that the traditional exceptions inherently embody a reliability component either because “many of the traditional dangers associated with hearsay are not present”, as in the case of statements made in former proceedings, or because “the statement provides circumstantial guarantees of reliability”, as in the case of spontaneous utterances, dying declarations and statements against interest: Starr, at para. 212; Khelawon, at para. 6. For discussion of party admissions exception, see Schneider, at para. 53; R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 62 O.R. (3d) 204 (C.A.), at para 37; and R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, at p. 664.

[35] In Mapara, at para. 24, McLachlin C.J. specifically recognized that in the case of spontaneous utterances, the “surrounding context furnishes circumstantial indicators of reliability.”

[36] In R. v. Youvarajah, 2013 SCC 4, [2013] 2 S.C.R. 720, at para. 20, Karakatsanis J. further elaborated that the traditional exceptions were developed over time for “statements carrying certain guarantees of inherent trustworthiness, often because of the circumstances in which they were made” such that it may be “safe” to admit these statements. Later in Bradshaw, at para. 22, Karakatsanis J. called the traditional exceptions the “types of hearsay statements that were considered necessary and reliable”.

[37] To be admissible, hearsay statements under both exceptions must be “trustworthy”. However, this does not require that reliability of the perception, memory, narration or sincerity of the declarant be established with absolute certainty since this would go to ultimate reliability. The trial judge must, however, be satisfied on a balance of probabilities that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Bradshaw, at paras. 23, 30-32; R. v. Carroll, 2014 ONCA 2, 34 C.C.C. (3d) 252, at para. 111.

[38] The major difference between the two exceptions is that once the requirements of a traditional exception are established, the hearsay statement is presumed to be admissible, absent a “rare cases” exception: Starr, at para. 212. By contrast, in the case of a principled exception, there is no presumption of admissibility. Indeed, the starting presumption is that the hearsay statement is inadmissible, and the analysis of reliability and necessity must be conducted in full: Khelawon, at paras. 47-48; Bradshaw, at para. 23.

[39] Whether a hearsay statement ought to be admitted is a question of law judged on a correctness standard. However, factual findings that feed that determination are entitled to deference on appeal. “[A]bsent an error in principle, the trial judge’s determination of threshold reliability is entitled to deference”: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31; see also R. v. Young, 2021 ONCA 535, 407 C.C.C. (3d) 265, at para. 30.
. R. v. Dirie

In R. v. Dirie (Ont CA, 2022) the Court of Appeal states some basics with respect to jury charges, here in a criminal context:
(1) Applicable legal principles

[70] Jury charges do not need to be perfect, but they must be “fair and balanced in their recitation of the evidence and their review of the position of the parties”: R. v. Baltovich (2000), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at para. 114; R. v. Olufeko, 2022 ONCA 308, at para. 39. The requirement for a balanced jury charge derives from the broader need to ensure trial fairness: R. v. Li (2004), 2004 CanLII 18634 (ON CA), 183 C.C.C. (3d) 48 (Ont. C.A.), at para. 42.

[71] A jury charge is unbalanced where “the charge as a whole steers the jury in the Crown’s direction” or “navigat[es] the jury towards conviction”: R. v. Panovski, 2021 ONCA 905, at para. 104; R. v. Megill, 2021 ONCA 253, 405 C.C.C. (3d) 477, at para. 126. A charge that has “unduly promoted the case for the Crown and effectively ignored and denigrated the case for the defence” lacks fairness and balance: Baltovich, at para. 113.

[72] A trial judge is entitled to “express his or her own view of the factual issues, including the credibility of witnesses,” and to do so in strong terms: R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577, at para. 231. However, trial judges must not “use such language as leads the jury to think that they must find the facts in the same way the judge indicates”: Evans, at para. 231. Where trial judges express opinions on factual issues, the court on appeal is entitled to intervene when the trial judge’s opinion is far stronger than the facts of the case warrant or is expressed in such terms that it is likely the jury would be overawed by the opinion expressed: Evans, at para. 232. This court may do so even if the trial judge has clarified to the jury that “they are not bound by his or her views on the evidence or factual issues”: Evans, at para. 232.
. R. v. Poobalasingham

In R. v. Poobalasingham (Ont CA, 2020) the Court of Appeal canvassed basics of the criminal jury selection process as it focusses on language competency:
[49] As is well known, the jury selection process involves two stages.

[50] The first – the pre-trial stage – involves the organization of a panel or array of prospective jurors who are made available at court sittings as a pool from which trial juries are selected. This pool is randomly assembled from the broader community. Governed by provincial legislation (in Ontario, the Juries Act), this stage includes the qualification of jurors; completion of the jury list; summoning of panel members; selection of jurors from the jury lists; and conditions for being excused from jury duty: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at paras. 19-20; Criminal Code, s. 626(1).

[51] The second – the in-court stage – involves the selection of a trial jury from the panel. During this process prospective jurors may be excluded in two ways. Some may be excused by the presiding judge in a preliminary way. Others may be excluded as a result of a successful challenge by the parties: Find, at paras. 19, 21-24. This stage of the process is governed by federal legislation: see Criminal Code, ss. 626-644.

The Pre-Trial Stage of Jury Selection

[52] To be eligible for jury service in Ontario under s. 2 of the Juries Act, a person must reside in Ontario and be a Canadian citizen at least 18 years old. A recent amendment adds a further requirement for eligibility – the juror must be able to speak, read and understand English or French: see Juries Act, s. 2(d).

[53] Any person who is not a Canadian citizen by birth and who is between 18 and 54 years old (inclusive) can only become a Canadian citizen if they have an adequate knowledge of one of Canada’s official languages and can demonstrate in that language an adequate knowledge of Canada and the privileges of citizenship: Citizenship Act, R.S.C. 1985, c. C-29, ss. 5(1)(d) and (e).

[54] The process of compiling a jury list begins with the Director of Assessment mailing out a statutorily prescribed form – a jury questionnaire – to residents of a county, district, regional municipality or city, based on information obtained from the most recent enumeration of inhabitants under the Assessment Act, R.S.O. 1990, c. A.31.

[55] The purpose of the jury questionnaire – to determine eligibility for jury service – is stated on the first page. At the time of the appellants’ trials, the form also provided the following warning:
If you fail to return this form without reasonable excuse within five (5) days of receiving it, or knowingly give false information on the form, you are committing an offence. If convicted of this offence, you may be fined up to $5000.00 or imprisoned up to six (6) months, or both. [Emphasis added.]
[56] Question nine of the questionnaire addresses language competency. Part A asks whether the respondent speaks, reads and understands English. Part B asks the same question with respect to French. The instruction for this question, which the respondent is directed to review, states:
If you are chosen to sit on a jury, the trial will be conducted in either English or French. If indicating a “Yes” response to English or French, you must be fluent in either language and understand it well enough to follow a trial where all evidence and legal instructions will be given in English or French, without the assistance of an interpreter.
[57] When the questionnaires are returned and opened, a jury roll is compiled from those who are eligible to serve as jurors. The jury roll is divided into three parts based on declared language competency: (i) English, (ii) French, or (iii) both English and French.

The In-Court Pre-Selection Procedure

[58] When a jury panel arrives in the courtroom to begin the formal process of jury selection, s. 632 of the Criminal Code authorizes the presiding judge to vet the panel members to determine whether any of them should be excused from jury service. Typically, this involves the presiding judge advising members of the jury panel about some requirements for jury service. This includes an understanding of the language of trial. A representative question on this issue is in these terms:
Our law also requires that each juror be able to understand the language that will be used in the trial. In this case, witnesses will testify and others involved in the case will speak in English. Documents written in English may be made exhibits.

If you have any difficulty understanding English as it is spoken or written, please raise your hand and come to the front of the courtroom.
See Find, at paras. 22-23; R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at pp. 527-28, 534-35. See also R. v. Jimenez Leon, 2012 ONSC 575, 283 C.C.C. (3d) 243, at paras. 11-12, aff’d 2014 ONCA 813; R. v. Smith and Mathers, 2019 ONSC 4816, at para. 11; and R. v. E., 2019 ONSC 3813, at para. 23.

[59] When a prospective juror expresses concern, the presiding judge will make inquiries of the juror to determine their language facility. In some cases, the judge may be aware of the nature of the evidence to be adduced and can formulate their questions accordingly. At the end of the inquiry, the judge will determine whether the prospective juror has the language facility necessary to understand the evidence, submissions and jury instructions at trial: see e.g. Jimenez Leon, at para. 18.


[66] The aim of a challenge for cause is to assist in the selection of a jury who will decide the case impartially and base its verdict on the evidence adduced and in accordance with the legal instructions provided by the trial judge.

[67] The ultimate requirement of a system of jury selection is that the system result in a fair trial. A fair trial is not a perfect trial. Nor is it a trial that is the most advantageous from the perspective of the accused: Find, at paras. 26, 28.

[68] The presiding judge has authority to control the jury selection process. To make effective use of court resources. And to ensure fairness to all participants, including prospective jurors: R. v. Husbands, 2017 ONCA 607, 353 C.C.C. (3d) 317, at para. 31, leave to appeal refused, [2017] S.C.C.A. No. 364; R. v. Province, 2019 ONCA 638, at para. 69.

[69] This inherent authority extends specifically to the challenge for cause component of jury selection. It is exercised to prevent an abuse of the challenge for cause process and to ensure fairness to the parties and the prospective jurors: Province, at para. 68. A challenge for cause with no purpose beyond increasing delays or intruding on the privacy of prospective jurors is ripe for extinction in the exercise of this authority: Find, at para. 29; R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C (2d) 279 (Ont. C.A.), at p. 291, aff’d 1977 CanLII 15 (SCC), [1977] 2 S.C.R. 267.

[70] Section 638 of the Criminal Code authorizes challenges for cause. Sections 638(1) and (2) provide an exhaustive catalogue of the grounds upon which a challenge for cause may be advanced. The plain language of s. 638 entitles each party to “any number of challenges” for cause: Criminal Code, s. 638(1); Sherratt, at p. 521.

[71] Section 638 is silent on whether an applicant must meet a particular threshold requirement or preliminary burden in order to challenge a prospective juror on the basis of an enumerated cause. But it follows from the presiding judge’s degree of control over the selection process that some burden is settled on the challenger to ensure that selection accords with the governing principles and that the presiding judge is provided sufficient information so the truth of the challenge is contained within reasonable bounds: Sherratt, at pp. 535-36.

[72] Among the six articulated grounds upon which a prospective juror may be challenged for cause under s. 638(1), the most frequently invoked is s. 638(1)(b) – i.e., that the prospective juror is not impartial as between the Crown and the accused. An accused who seeks to challenge prospective jurors under s. 638(1)(b) must establish a realistic potential for the existence of partiality on a ground sufficiently articulated in the application: Sherratt, at pp. 535-36; Find, at para. 31; R. v. Yumnu, 2010 ONCA 637, at paras. 70, 88, 260 C.C.C. (3d) 421, aff’d 2012 SCC 73, [2012] 3 S.C.R. 777; and R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, at para. 14. In assessing whether an accused has met this threshold, courts have considered the availability and efficacy of various components of the trial process to serve as antidotes in ensuring impartiality: Find, at paras. 41-42. Only where these components are insufficient to negate a realistic potential of partiality will the challenge be permitted to proceed.

[73] A challenge for cause under s. 638(1)(f) contests the language competency of prospective jurors. The challenge for cause is available only where the accused is required by an order under s. 530 to be tried by a judge and jury who speak the same official language as the accused. The challenge is that the prospective juror does not speak the same official language.


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Last modified: 06-10-23
By: admin