



CITATION:
R. v. Sinclair, 2013
ONCA 64

DATE: 20130131

DOCKET: C53020

Goudge, Rouleau JJ.A. and Ray J. (ad hoc)

BETWEEN

Her Majesty the Queen

(Respondent)

and

Ishmael Jahmar Sinclair

(Appellant)

Paul Calarco, for the appellant

Andreea Baiasu, for the respondent

Heard: November 28, 2012

On appeal from the conviction entered on June 18, 2009 by
Justice J.C. Murray of the Superior Court of Justice, sitting with a jury.

Rouleau J.A.:

INTRODUCTION

[1]

Following an eight-day jury trial, the appellant was convicted of
assault causing bodily harm, assault with an imitation firearm, attempted unlawful
confinement, using an imitation firearm in the commission of an offence, and
threatening death, all in relation to his former girlfriend.

[2]

The appellant appeals his convictions on the basis that he was
effectively excluded from his own trial when the trial judge engaged in private
conversations with potential jurors and, thereafter, excused them without
providing any explanations or soliciting any input from counsel. The appellant
also argues that the trial judge engaged in private discussions in chambers
with counsel for the Crown and the appellant concerning the form of the
Parks
question. The appellant submits that, because he was not present during these
discussions, this also constitutes reversible error.

[3]

For the reasons that follow, I would dismiss the appeal and affirm the
appellants convictions.

FACTS

(1)

The offences

[4]

As the appeal concerns only the jury selection process, a brief summary
of the facts of the offences suffices. The charges arose from two incidents
between the appellant and his former girlfriend, the complainant. The first
assault happened when the appellant put the complainant in a headlock and
twisted her body, breaking her ankle. The second incident occurred following
their break-up; the appellant accosted the complainant on her way home,
threatened her and, using an imitation handgun, tried to force her into his
car. The complainant managed to take refuge in a house nearby, called the
police, and charges were laid.

(2)

The in-chambers discussion of the
Parks
question

[5]

Prior to the appellants arraignment, counsel for the Crown and for the
accused met in chambers with the trial judge for preliminary discussions
concerning the defences in chambers application to challenge potential jurors
for cause. Following the in chambers meeting, the court convened. The
discussions which took place were summarized for the record and the wording of
the
Parks
question was finalized in open court with the appellant
present. After all counsel agreed upon the appropriate wording for the
Parks
question, the appellant was arraigned and the jury panel was brought into court.
Subsequently, the trial judge issued a written ruling on the appropriate
wording for the
Parks
question.

(3)

The private conversations with potential jurors

[6]

After the appellant was arraigned, the trial judge welcomed the jury
panel and explained to them the various reasons for which jurors might be
excused from serving on the jury. The trial judge proceeded by identifying
categories which would exempt a person from serving as a juror and then
requesting that any potential juror concerned that he or she might fall into
that category to come forward. As each juror came forward with a concern, the
trial judge ruled on whether that potential juror should be excused.

[7]

The first three categories were as follows:

1) those who may be
related to or closely associated with anyone involved in the case;

2) those who may be
related to or closely associated with any witness scheduled to testify in the
case; and

3) those with personal
knowledge of the alleged offences.

[8]

As potential jurors came forward, they expressed their concerns on the
record and the trial judge made his rulings. The difficulty arose when the
trial judge arrived at the fourth category: whether any of the potential jurors
had been accused of offences similar to those alleged in the case, knew someone
who had been accused of offences of that nature or had been a victim or was
otherwise involved in a similar offence. After setting out the category, the
trial judge remarked: We dont wish to embarrass anyone by asking questions
about personal matters. At the same time, we need to know about these things
because they may make it difficult for you to perform jury duty in this case.
If you come forward, I will discuss your situation with you.

[9]

The transcript of the first three potential jurors discussions with the
judge reads as follows:

COURT SERVICES OFFICER: Juror number 956.

THE COURT: Yes maam. You can come or if you want it to be
personal you can come closer to me. All right. This juror is excused.

COURT SERVICES OFFICER: Juror number 845.

THE COURT: Yes maam.

DISCUSSION IN PRIVATE

THE COURT: All right. Youre excused.

COURT SERVICES OFFICER: Juror number 3182.

THE COURT: Yes maam.

DISCUSSION IN PRIVATE

THE COURT: Youre excused maam.

[10]

When
the fourth potential juror came forward, the following exchange occurred:

COURT SERVICES OFFICER: Juror number 2896.

THE COURT: Yes maam.

DISCUSSION IN PRIVATE

THE COURT: Do you mind saying that out loud and Ill ask others
if they have submissions? Just the counsel, just tell them what youve said to
me and Ill ask them if they have any concerns.

DISCUSSION IN PRIVATE

Ms. MACKENZIE: Um, given the circumstances, Your Honour, Id
have some difficulty with this lady sitting as a juror.

MR. GIRVIN: I take no issue.

THE COURT: All right. I think you can take your place in the
body of the courtroom. Thank you. Thank you for coming forward.

[11]

The
fifth potential juror then came forward, explaining her difficulty with English.
The trial judge excused her, but explained for the record that she properly ought
to have come forward later when that category of concerns was being canvassed.

[12]

The
process continued for jurors who came forward in this fourth category of
English language competency and for the later categories including Canadian citizenship,
medical concerns and personal hardship. A total of 11 potential jurors were
excused after speaking privately with the trial judge.

ISSUES

[13]

There
are two issues raised in this appeal:

1.

Were the in chambers
preliminary discussions concerning the form of the
Parks
question part
of the appellants trial for the purposes of s. 650(1) of the Criminal Code?;
and

2.

Can the curative
proviso of s. 686(b)(iv),
Criminal Code
cure the breach of s. 650(1) of
the
Criminal Code
arising from the trial judges private discussions with
potential jurors?

ANALYSIS

[14]

The
issues raised in this case engage the law governing the right of an accused to
be present during the whole of his trial, as provided by s. 650(1) of the
Criminal
Code,
and the scope of application of the
Criminal

Code
s
curative proviso.

(1)  Governing Principles

[15]

Section
650(1) of the
Criminal Code
provides that an accused must be present
in court during the whole of his  trial. In the context of s. 650(1), trial
carries a broad meaning, although generally the trial proper does not commence
until after a plea is entered. Martin J.A. explained the broad interpretation
of trial for s. 650(1) purposes at para. 50 of
R. v. Hertrich
(1982), 67 C.C.C. (2d) 510 (Ont. C.A.):

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 judges
charge, including requests by the jury for further instructions, the reception
of the verdict and imposition of sentence if the accused is found guilty.
[Emphasis added.]

In determining whether something which occurred at
trial falls within the meaning of trial pursuant to s. 650(1), the court must
ask whether what transpired involved the accuseds vital interests (
Hertrich
,
at para. 82).

(2)  Application to the case at bar

A. The in-chambers discussion of the form of the
Parks
question

[16]

The
appellant does not take issue with the final wording of the
Parks
question. Rather, he argues that the judges in-chambers discussion of the
wording of the
Parks
question with counsel, in the absence of the
accused, contravened s. 650(1) of the
Criminal Code
.

[17]

I
disagree. The in chambers discussions in this case were preliminary in nature.
The trial judge subsequently summarized the nature of these discussions on the
record in open court and in the accuseds presence. Counsel for both sides were
then given the opportunity to comment on the form of the question. The question
was changed and finally agreed to by all counsel. Further, all of the foregoing
took place before the appellant was arraigned and entered his plea. In
R.
v. Simon,
2010 ONCA 754, this Court held that in-chambers discussions
which are of a preliminary nature, [do] not involve any final determination
and [are] recounted in open court in the presence of the accused (para. 117)
do not form part of the trial within the meaning of s. 650(1). In my view, the
in chambers discussion of the form of the
Parks
question that occurred
in this case falls squarely into the category of discussions which are
preliminary in nature and the appellants exclusion from the discussion did not
breach s. 650(1) of the Criminal Code.

B. Did the trial judges private discussions with
potential jurors breach s. 650(1) of the
Criminal Code
and if so, does
the curative proviso apply?

(i) s. 650(1) of the
Criminal Code

[18]

The
appellant argues that, by granting potential jurors private audiences, the
trial judge improperly excluded the appellant from his trial. In 11 cases,
potential jurors were excused following these private discussions and nothing
on the record allows the appellant to know what transpired during these
discussions or why the potential jurors were excused. This breach was serious. In
the appellants submission, this breach cannot be cured by application of the
proviso and necessitates a new trial.

[19]

It
is conceded by the Crown that the screening of potential jurors following
arraignment forms part of the accuseds trial and the accused has the right to
be present. See
Hertrich
at para. 50.

[20]

The
breach of s. 650(1) in this case has been clearly established. The questioning
of the potential jurors took place after the appellant was arraigned and after
his plea was entered. In
R. v. Barrow
, [1987] 2 S.C.R. 694, the majority
held that, because the questioning of prospective jurors on issues relevant to
potential partiality occurred after arraignment and plea, it was part of the
trial for purposes of s. 650(1) (then s. 577). As set out by this court in
R.
v.

Kakegamic,
2010 ONCA 903

(at para. 29)
, whether
these inquiries occurred with respect to a jurors potential partiality or concerned
personal reasons for being excused from the jury is irrelevant. Both engage the
accuseds statutory right to be present.

(ii) Is the curative proviso applicable?

[21]

The
Crown submits, however, that this is an appropriate case to apply the curative
proviso in s. 686(1)(b)(iv). This provision of the
Criminal Code
reads
as follows:

686.
(1) On
the hearing of an appeal against a conviction or against a verdict that the
appellant is unfit to stand trial or not criminally responsible on account of
mental disorder, the court of appeal []

(
b
) may dismiss the appeal where

(iv) notwithstanding any procedural irregularity
at trial, the trial court had jurisdiction over the class of offence of which
the appellant was convicted and the court of appeal is of the opinion that the
appellant suffered no prejudice thereby []

[22]

The
Crown submits that the factors identified by this court in
R. v. Simon
as
relevant for the application of the s. 686(1)(b)(iv) proviso establish that the
appellant suffered no prejudice from not being able to hear the conversations
with some of the prospective jurors.

[23]

The
Crowns focus in submissions was on the absence of actual prejudice to the
appellant. However, in my view the concerns raised by the trial judges private
in-chambers discussions are broader than whether there was actual prejudice.
The exclusion of the appellant from discussions held with potential jurors
impairs the appearance of fairness, compromises the transparency of the trial
proceedings and is at odds with the open court principle. As set out by this
court in
R. v. F.E.E.
2011 ONCA 783 at para. 51:

Proof of actual prejudice is not a condition precedent to
demonstration of a miscarriage of justice. An appearance of unfairness will
suffice. [Citation omitted.]

[24]

The
Crown submits that, as in
Kakegamic
, the failure of the appellants
trial counsel to object should weigh strongly in favour of dismissing the
appeal. In
Kakegamic
this court applied the proviso to cure a breach
of s. 650(1) arising from discussions between the trial judge and prospective
jurors carried out of earshot of the accused. The present case, however, is
more problematic than
Kakegamic
. In
that
case
,
with one
exception,
trial counsel were able to hear the exchange that
occurred between the judge and potential jurors. In applying the proviso this
court held that, to the reasonable observer, the presence of counsel during the
conversations ensures that the interests of the appellant are fully protected
and erases the appearance that the trial judge is engaged in private
conversations concerning matters that are unknown to the accused. (para. 41) The
presence of counsel during the communications with the potential jurors distinguished
Kakegamic
from
Barrow
. In
Barrow
, the trial judge
carried out the questioning out of earshot of all counsel as well as the
accused and over the objections of counsel for the accused.

[25]

Although
I view the exclusion of counsel as highly problematic, I am, following a
careful review of the record, nonetheless satisfied that in the circumstances of
this case, the errors occasioned no prejudice or appearance of unfairness and
thus fall within the ambit of the curative proviso. I arrive at that conclusion
for several reasons.

[26]

First,
the appellants trial counsel was present throughout the entire jury selection process
and raised no objection. He did not ask to be included in the exchanges with
potential jurors, nor did he ask the trial judge to ensure that the exchanges
with the potential jurors be placed on the record. Although the failure to
object is not determinative, it is nonetheless an important factor in the
assessment of prejudice pursuant to s. 686(1)(b)(iv):
R. v. Kakegamic
,
para. 38,
R. v. Khan
, 2001 SCC 86, per LeBel J., concurring, at paras.
85-86;
Barrow
, at p. 717.

[27]

Second,
by proceeding in categories as he did, the trial judge effectively indicated to
counsel and to this court on appeal, the reason for each of the exclusions,
thus minimizing the gaps in the record that s. 650(1) strives to avoid. I draw
some comfort that this indeed was the case from the comments the trial judge
made when the fifth potential juror came forward, explaining her difficulty in
English. The judge noted that the category of concern over language would be
dealt with later, suggesting that he adhered to the procedure he outlined.

[28]

Third,
there is no reason to suggest that the process of jury selection was carried
out in anything but a manner free from prejudice to the accused. As disclosed
by the record, when the trial judge was unsure of whether a concern raised by a
potential juror justified excusing that juror, he raised it with counsel and sought
submissions. Nothing in the trial record or tendered on appeal suggests that
any of the prospective jurors were excused improperly.

[29]

Fourth,
all of the potential jurors who engaged in private conversations with the judge
were excused. As a result, we know that no one selected for the jury had
engaged in private conversations and neither the Crown nor the appellants
trial counsel used any of their peremptory challenges to challenge a juror who
engaged in a private conversation. Further, whenever a potential juror was not
excused, the explanation for the trial judges decision was placed on the
record so that counsel would not be left to guess as to why that potential
juror was left on the list.

[30]

Fifth,
the exclusion of the accused was, in a sense, inadvertent: neither the trial
judge nor counsel seems to have considered that the private conversations with
the prospective jurors might engage the accuseds right to be present under s.
650(1) of the
Criminal Code
. This inadvertence may be explained, in
part, by the fact that the trial took place before this courts decision in
Kakegamic
.
The trial judges comments on the record indicate that he was motivated by
concern that potential jurors not be embarrassed or reluctant to raise personal
issues that might impact on their potential jury service.

[31]

Although
I am satisfied that no prejudice occurred in this case and that the proviso can
safely be applied, I should not be taken to condone the practice of trial
judges engaging in private conversations with potential jurors. I acknowledge
that, as
Kakegamic
explains
,
trial judges are properly concerned about the legitimate privacy interests of
prospective jurors. A person called for jury duty is carrying out a public duty
and should not be required to publicly disclose matters that are highly personal
and sensitive. Nevertheless,
in Kakegamic
, this court explained that
the trial judge should strive to ensure that all conversations with prospective
jurors are recorded and made part of the trial record. Recording the conversations
enhances the transparency of the proceedings and accountability through
appellate review:
Kakegamic
, at para. 43. In addition, the trial
judge should place a brief explanation on the record each time a juror is
excused.

[32]

In
my view, it is also important for the trial judge, prior to undertaking the
jury selection process, to place on the record the process he or she proposes
to follow and seek comments from counsel on that process. Counsels concerns may
then be resolved and the selection may proceed in accordance with that process.
I understand, for example, that certain jurisdictions in Ontario follow a
process whereby persons summoned for jury duty who have not been excused from
attending (see for example sections 19, 23 and 24 of the
Juries Act
R.S.O. 1990 c. J.3) can express their concerns on a written form. If the
persons name is called, the person hands the form to the judge presiding over
the selection of the jury. The judge reviews it and then states for the record
whether the potential juror is excused and, with little or no detail, why. The
form, which might contain highly personal information, is available for review
by counsel and the accused and, although it is not filed as an exhibit in the
trial, is retained and serves as a record of the concern expressed by the potential
juror.

[33]

In
summary, therefore, I suggest the following steps for the jury screening and
selection process as a means by which the rights of the accused and the
appearance of the due administration of justice might be preserved while
minimizing intrusions into the privacy interests of prospective jurors:

(i) the trial judge would
first seek agreement with counsel as to the process to be followed in screening
prospective jurors and, if agreement were not forthcoming, would exercise the
discretion to decide on the process and advise counsel of it;

(ii) ensuring that a
record of the exchange between potential jurors and the trial judge is made and
retained; and

(iii) placing a brief statement
or other sufficient indication on the record as to the reason for excusing or
not excusing a potential juror.

[34]

I
acknowledge that these steps were not taken in this case. Nonetheless, in the
particular circumstances of the present case, no prejudice can be said to have
been caused to the appellant or to the appearance of justice. I would therefore
apply s. 686(1)(b)(iv) of the
Code
.

[35]

For
these reason, the appeal is dismissed.

Paul Rouleau J.A.

I agree S.T. Goudge
J.A.

I agree T.D. Ray
J.A.

Released:


