Her Majesty the Queen [Respondent] v. Church of Scientology of Toronto and Jacqueline Matz [Appellants]
COURT OF APPEALS C13047
NOT TO BE REMOVED C13207
FROM THIS OFFICE
COURT OF APPEALS FOR ONTARIO
ROBINS, LASKIN and ROSENBERG JJ.A.
BETWEEN: ) Clayton Ruby and Marlys Edwardh
) for the appellant, Church of
) Scientology of Toronto
)
HER MAJESTY THE QUEEN ) John Norris
) for the appellant, Jacqueline Matz
Respondent )
) Michael Bernstein and
) Renee Pomerance for the Crown,
-and- ) respondent
)
) Frank Addario and Peter Rosenthal
CHURCH OF SCIENTOLOGY OF ) for the intervener, Dudley Laws
TORONTO and JACQUELINE MATZ )
) Roslyn J. Levine, Q.C.
Appellants ) for the intervener, Attorney General
) of Canada
)
) Linda McCaffrey, Q.C.
) for the Ministry of Consumer and
) Commercial Relations
)
) Heard: September 9, 10, 11, 12, 13,
) 16 and 17, 1996
TABLE OF CONTENTS
Page
I. INTRODUCTION 1
A. Overview of the Case 1
B. Verdict at Trial 2
C. Theories of the Parties 2
D. Corporate Management Structure 4
E. Crown Witnesses 8
F. Defence Witnesses 12
G. The Breach of Trust Counts 13
1. Breach of Trust at Ontario Provincial Police 14
2. Breach of Trust at Ontario Ministry of the
Attorney General 14
H. Pre-Trial Motions 16
I. Grounds of Appeal 16
II. ORDER OF CLOSING ADDRESSES 17
III. SIMILAR FACT EVIDENCE 18
IV. EXPRESSION OF OPINION BY THE TRIAL JUDGE 20
V. "REPLY" TO DEFENCE COUNSELS JURY ADDRESS 22
VI. CREDIBILITY OF PRINCIPAL CROWN WITNESSES 22
A. Adequacy of the Vetrovec Warning 24
B. Confirmatory Evidence 27
VII. DISCLOSURE 29
-i-
VIII. EXCLUSION OF SECONDARY EVIDENCE 38
A. The Motion to Exclude the Primary Evidence 38
B. The Motion to Exclude the Secondary Evidence 42
C. Analysis 47
1. Causation 47
2. Fairness of the Trial 48
3. Seriousness of the Charter Violation 49
4. The Administration of Justice 52
IX. ELIGIBILITY FOR SERVICE ON A JURY 54
A. Introduction 54
B. Selection of a Jury in Ontario 55
C. The Challenge at Trial to the Array 58
D. Positions of the Parties on Appeal 61
E. The Interveners 62
F. Analysis 63
1. Standing to Make a s. 15 Challenge 65
2. Section 15 Rights of the Appellant Matz 71
3. Section 7 of the Charter 73
4. The Right under the Common Law and the Criminal Code
to a Properly Constituted Jury 76
5. Section 11 of the Charter 78
6. Exclusions Based on Occupation and Marital Status 91
X. CORPORATE CRIMINAL LIABILITY 93
A. Introduction 93
B. Application of the identification Doctrine to a Non-Profit
Religious Corporation 94
1. The Facts 94
2. Ruling of the Trial Judge 97
3. The Issue 97
4. Analysis 98
(a) The Identification Doctrine 98
(b) Does the Identification Doctrine Apply to
Non-Profit Corporations? 100
(c) Sections 7 and 11(d) of the Charter 104
(d) Section 2(a) of the Charter 107
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(e) Section 1 of the Charter 113
(i) Objective 115
(ii) Rational Connection 115
(iii) Minimal Impairment 116
(iv) Proportionality of Effects 122
(f) Section 2(d) of the Charter 123
XI. APPLICATION OF THE IDENTIFICATION DOCTRINE
TO THIS CASE 124
A. The Application of The Rhone 124
B. Trial Judge's Direction on Corporate Criminal Liability 130
XII. SENTENCE 134
A. Introduction 134
B. The Seriousness of the Offence 135
C. Remorse 137
D. Treating the Appellant as a Discrete Entity 140
E. General Deterrence 141
XIII. DISPOSITION 143
-iii-
ROSENBERG J.A.:
1. INTRODUCTION
A. Overview of the Case
On June 25, 1992, the Church of Scientology of Toronto and
Jacqueline
Matz were each convicted of two counts of breach of trust contrary to
s. 111 of the Criminal Code. R.S.C. 1970, c. C-34 (now R.S.C. 1985,
c. C-46, s. 122) following a trial before Southey J. and a jury. The
Church of Scientology of Toronto was fined $250,000 and Jacqueline
Matz was fined $5,000 The Church of Scientology of Toronto appeals
both the convictions and the sentence. Jacqueline Matz appeals the
conviction only.
The charges arose from activities conducted by the intelligence
Bureau within the Guardian's Office, a management arm of the
appellant,
Church of Scientology of Toronto. Between 1974 and 1976,
Scientologists
secured employment with government agencies perceived to be enemies of
the Church, and signed oaths of secrecy as public officials. In breach
of their oaths of office, they then took copies of confidential
documents
from the agencies that employed them and provided them to the Church
of Scientology of Toronto. The appellant Jacqueline Matz, was a "Case
Officer" and "Director of Operations", and was responsible for
supervising the agents who had been planted in the various government
agencies and other organizations.
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B. Verdict at Trial
The indictment originally included twelve counts, consisting of
seven
counts of theft and five counts of breach of trust. The theft counts
related to theft of documents from government agencies and other
organizations. The breach of trust counts related only to government
agencies. As a result of a pre-trial ruling excluding certain evidence
under s. 24(2) of the Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982, being Schedule B of the Canada Act 1982
(U.K.), 1982, c. 11, the Crown was left with no admissible evidence
on the theft counts. These charges were severed from the indictment,
and acquittals were entered. The jury convicted the appellants of
breach of trust in relation to the Ontario Provincial Police and the
Ministry of the Attorney General of Ontario. The appellants were
acquitted on a second count involving the Ontario Provincial Police
and on charges relating to the Metropolitan Toronto Police and the
Royal Canadian Mounted Police.
C. Theories of the Parties
This is was a long and complex trial in which virtually everything
was in issue. Many of the same issues now form grounds of appeal. In
summary, it was the position of the Crown that the appellant Church
of Scientology of Toronto, a non-profit religious corporation, had
authorized members of the Church to infiltrate government agencies
and other organizations such as the Canadian Mental Health Association
in order to obtain
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information that would be of use to the Church. It was the Crown's
theory that the appellant perceived that it was under attack by these
organizations. The appellant resorted to the "plant" operations when
other more direct means, such as break and enter, were judged to be
too dangerous. These operations were run by Jacqueline Matz out of
the Intelligence Bureau which was an arm of the Guardian's Office
within the Church. The Crown relied on the doctrine of corporate
criminal liability as explained in Canadian Dredge & Dock Co., Ltd.
v. The Queen, [1985] 1 S.C.R. 662, which, subject to certain
conditions,
holds a corporation liable for the acts of certain of its agents.
It was the position of the appellant, the Church of Scientology
of Toronto, that it was not legally responsible for the actions of
its "renegade members" in the Guardian's Office who had failed to
follow Church doctrine. The appellant contended that the
information-gathering functions carried out by the Guardian's
Office in Toronto were assigned to it by the Church of Scientology
of California (U.K.) (Guardian Office World Wide), not by the Church
of Scientology of Toronto. The appellant also made the broad
submission
that the doctrine of corporate criminal liability does not apply to
non-profit religious corporations.
-4-
The appellant Matz did not testify. The theory of her defence was
based on gaps in the Crown's case with respect to each of the counts.
In relation to the charge involving the O.P.P., she argued that there
was no breach of trust since the information obtained by the agent
was unimportant. With respect to the count involving the Ministry of
the Attorney General, she argued that the Crown's evidence was
unreliable and that, in one of the incidents relied on by the Crown,
no confidential information seems to have been obtained.
D. Corporate Management Structure
A critical aspect of this appeal concerns the application of the
doctrine of corporate criminal liability to a non-profit religious
corporation. The application of the doctrine is complicated by the
unconventional corporate structure adopted by the various corporate
members of the Church of Scientology, including the Church of
Scientology of Toronto.
At the time material to this case, the Church of Scientology was
a world wide organization with hierarchical structure. L. Ron
Hubbard, the Founder, stood at the top of the hierarchy in England.
Second in command was Mary Sue Hubbard, the Controller. Directly
beneath her was Jane Kember, the Guardian. Below these officials,
Scientology
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organizations were separately incorporated in various cities
throughout the world. The Church of Scientology of Toronto was one
such organization.
The Church of Scientology of Toronto was incorporated as a
corporation
without share capital on September 8, 1967 under the Ontario
Corporations
Act, R.S.O. 1960, c. 71 (now R.S.O. 1990, c. C.38). The administration
of the corporation and, indeed, of all Scientology organizations, was
dictated by a series of policies written by the Founder. L. Ron
Hubbard.
These policies governed a variety of administrative matters, including
the command and communication channels, the positions within the
organization and the division of responsibilities among Scientology
officials.
The Church of Scientology of Toronto was managed through two command
structures. The FLAG Bureau, which was part of the Sea Organization,
was responsible for the day-to-day delivery of Scientology services to
the public at the local Toronto organization ("Org"). The Org was
under
the management and control of an Executive Director. The Executive
Director received direction from his seniors in the FLAG Bureau
network, who received direction from L. Ron Hubbard.
-6-
The other management structure was the Guardian's Office. Its
purpose
was to help L. Ron Hubbard enforce and issue policy to safeguard
Scientology organizations. Like the FLAG Bureau, the Guardian's Office
was run along hierarchical reporting lines. The Guardian's Office
Toronto reported to the Guardian's Office Canada, which in turn
reported to the Guardian's Office World Wide, and ultimately to L.
Ron Hubbard. Directions were sent "down-lines" through the same
structure.
Like the Guardian's Office World Wide and the Guardian's Office
Canada, the Guardian's Office Toronto was comprised of four bureaus,
each of which was delegated a specific sphere of managerial authority.
These bureaus were: the Legal Bureau, the Finance Bureau, the Public
Relations Bureau and the Intelligence Bureau. The purpose of the
Intelligence Bureau was to find out about those whom L. Ron Hubbard
had identified as Scientology's enemies so that attacks could be
diverted before they became public issues. When he established the
Guardian's Office, L. Ron Hubbard issued a policy letter entitled
"The Guardian", which assigned intelligence functions to that office,
and described the purpose of intelligence in colourful terms:
By such studies one can predict which way cats are going
to jump and organize to meet situations which may threaten
Scientology from possible enemies or to take advantage of
situations which might benefit Scientology.
-7-
The Intelligence Bureau of the Guardian's Office Toronto carried the
plant operations that were the subject-matter of the charges.
On the theory of the Crown, while the two management structures, the
FLAG Bureau and the Guardian's Office, had different functions, both
were integral to the operation of the Church of Scientology of
Toronto.
Although the local Guardian's Office took direction from, and reported
to, its senior officials in England, it exercised a senior management
function within the local Church. The management of the local Org
could
not tell the Guardian's Office what to do; in contrast, the Guardian's
Office could, and did, give orders to local management regarding the
safety and security of Scientology. The operations of the Guardian's
Office Toronto were financed by money collected by the local Org.
On the theory of the appellant Church, the Guardian's Office was
separate from the Church of Scientology of Toronto. It was autonomous
and self-ruling and not fixed to any local Church of Scientology. It
had its own doctrine and policy. In particular, the appellant argued
that the intelligence operations were conducted secretly, without the
knowledge of the Church of Scientology of Toronto.
-8-
E. Crown Witnesses
The main witnesses called by the Crown at trial were five former
members of the Church of Scientology. Four of these witnesses occupied
senior management positions in the organization at the time of the
offenses. They participated in and, in some cases, directed the
illegal activities of the Guardian's Office Intelligence Bureau. They
testified under the protection of immunity agreements that required
that they disclose fully and truthfully their knowledge about the
offences before the court. These witnesses were:
(i) Bryan Levman, former Deputy Guardian Canada who was
responsible
for all of the activities of the Guardian's Office in Canada;
(ii) Emile Gilbert, former Executive Director of the Church of
Scientology of Toronto who after being removed from this
position in the Church, became an agent for the Guardian's
Office Canada;
(iii) Kathryn Smith, who worked as a plant at the Ontario Provincial
Police for the Guardian's Office Canada Intelligence Bureau;
(iv) Dianne Fairfield, who held various positions within the
Guardian's Office Canada Intelligence Bureau; and
(v) Marion Evoy, Deputy Guardian Intelligence Canada who was
responsible for the direction of the individuals who were
plants in organizations at the time of the offences.
-9-
The above witnesses testified about various matters, including the
corporate management structures within the Church of Scientology of
Toronto; the role and function of the Guardian's Office within the
Church of Scientology of Toronto; the structure and functioning of
the Guardian's Office Intelligence Bureau; and the specifics of the
plant activities that were the subject-matter of the charges.
It is unnecessary to set out in detail the evidence of each of these
witnesses. However, the evidence of Bryan Levman man was of particular
importance to the Crown's theory of corporate liability, and requires
some elaboration. Mr. Levman established the first Guardian's Office
in Canada in 1970 when he was appointed Assistant Guardian Toronto. At
that time, the Church of Scientology of Toronto was the only
Scientology
organization in Canada. The Guardian's Office Canada was under the
authority of the Guardian's Office United States. In 1973, the
Guardian's
Office Canada was removed from the authority of the United States and
began reporting directly to the Church officials in England, Church of
Scientology of California (U.K.). Mr. Levman became the Deputy
Guardian
Canada and reported to the Guardian World Wide in England.
Between 1971 and 1973, there was no separate Guardian's Office
Toronto.
The Guardian's Office Toronto was established late in 1973 and was
headed
by an Assistant
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Guardian. The of Guardian's Office Canada and the Guardian's Office
Toronto were in the same building in the Church of Scientology
premises
in Toronto. Most of the work conducted by the Guardian's Office Canada
related to the Church of Scientology of Toronto. Although official
appointments of staff to the Guardian's Office Toronto came from the
Guardian's Office World Wide, they were selected from individuals
working in the Toronto Org.
As required by the Corporations Act, the appellant Church had a
board of directors. In the early years, senior officials within the
Church held positions on the board. Mr. Levman, for example, was
president from 1969 to 1973. Mr. Levman testified, however, that
the board of directors exercised no executive or management function.
According to him, the corporate structure as set out in the filings
for government purposes was irrelevant. The true management authority
lay in the Guardian's Office and the FLAG Bureau. Further, the choice
of directors was made by the Guardian's Office.
As noted above, within the Guardian's Offices Toronto and Canada
there were several different bureaus including the Intelligence
Bureaus.
Although the Intelligence Bureau of the Guardian's Office Canada
was responsible for Canada-wide intelligence gathering most of
the intelligence operations were focused in Toronto. The Canada
-11-
Intelligence Bureau therefore worked closely with the Toronto
intelligence Bureau. The Deputy Guardian Intelligence Canada, Marion
Evoy, reported to the Deputy Guardian Canada, Bryan Levman.
In June and July of 1973, Mr. Levman went to the Guardian's Office
World Wide in England. While there, he confirmed that the
intelligence-gathering techniques could include "rip-offs", that is,
the placing of agents and the theft of files. The Guardian World Wide,
Jane Kember, identified targets. She was particularly interested in
the O.P.P., the Ministry of the Attorney General and the Metropolitan
Toronto Police. She made it Mr. Levman's mandate to obtain files from
these organizations. After returning to Canada in the fall of 1973,
Mr. Levman took steps to implement the Guardian's instructions. He
evaluated candidates to be planted in the "enemy" organizations. The
plant operations were under the purview of the Intelligence Bureau of
the Guardian's Office Toronto. Mr. Levman and Ms. Evoy both received
reports on the activities of the plants.
An important event leading to the use of plants rather than more
direct illegal means was the arrest of Alan Coulson and Michael
Chornopesky in April 1974. They were arrested while attempting to
break
into a law firm that was acting for former members of Scientology who
were engaged in litigation with the Church. Levman had ordered this
-12-
break-in as he was to be a witness on an examination for discovery the
following day. When the examination for discovery took place, Levman
was asked if he knew Coulson. Levman lied and denied knowing him. Mr.
Levman and others took elaborate precautions to erase any connection
between Coulson and Chornopesky and Scientology. After this incident,
Jane Kember instructed Levman and Evoy not to conduct break and
enters.
Instead, they were to plant trusted Scientologists within the enemy
organizations.
The Crown also called as witnesses individuals from the various
organizations that had been the targets of the plant operations. These
individuals testified about the employment history and duties of the
individuals whom the Crown alleged to be Scientology plants. In
addition,
in many instances, these witnesses were able to confirm that their
confidential files did, in fact, contain documents and information
that other Crown witnesses reported having been obtained by
Scientology
plants.
F. Defence Witnesses
The appellant Church called a number of witnesses at trial,
including
the former Guardian World Wide, Jane Kember. She testified that she
authorized the illegal activities that were carried out by the
Guardian's
Office Toronto. The bulk of her evidence,
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however, was that illegal activities were a fraud on the of
Scientology
of Toronto and the other Churches of Scientology. She testified that
she abused Church doctrine and the original mandate set out by Mr.
Hubbard in "The Guardian". She drew a distinction between the Church
of Scientology of Toronto and the Guardian's Office. It was her view
that the local Church could not authorize the Guardian's Office to
commit illegal acts. The two command structures were not connected,
and the local Church had no "command value" over the Guardian's
Office.
To the contrary, the Guardian's Office had the ultimate power. Its
activities were kept secret from the local Church.
G. The Breach of Trust Counts
The breach of trust convictions arose from intelligence operations
carried out by the Guardian's Office Intelligence Bureau and directed
at the O.P.P. and the Ministry of the Attorney General. In each
instance,
a plant was placed in the organization to acquire and make copies of
confidential documents. The unauthorized disclosure of information
acquired by the plant through his or her employment, constituted the
breach of trust. As indicated above, as the "Case Officer", Ms. Matz
directed the plants to files of interest and facilitated the
acquisition
of confidential materials.
-14-
1. Breach of Trust at Ontario Provincial Police
The O.P.P. were of interest to the Guardian's Office as it was
believed that they were investigating Scientology. Cynthia Bake became
a plant at the O.P.P. after being approached by a case worker for the
Guardian's Office Intelligence Bureau. Ms. Bake was a "public person"
in the Church of Scientology of Toronto; she was not a staff member,
but talking courses at the Toronto location. She obtained a clerk
position with the O.P.P. Intelligence Branch in the general
headquarters
building. She swore an oath of office and secrecy, and worked in this
capacity from May 1976 until November 1976.
As a plant, Ms. Bake reported to Jacqueline Matz. She testified at
trial that she was pressured by Ms. Matz to find out what was in the
O.P.P. files. She looked in the files, but could not find anything
relating to Scientology. She took another piece of paper, which
referred to the "Moonies", and gave it to Ms. Matz. Eventually, Ms.
Bake did not wish to continue acting as a plant, and she resigned.
2. Breach of Trust at Ontario Ministry of the Attorney General
The breach of trust at the Ontario Ministry of the Attorney General
involved a second plant. Janice Wheeler was a Scientologist who worked
in the Toronto Organization and had been trained as a legal secretary.
In 1974, she secured employment as a secretary
-15-
with the of Attorney General in the Director of Crown Attorneys
branch.
She provided several internal memoranda, sent between people in the
Attorney General's office, to the Guardian's Office Intelligence
Bureau.
In total, Ms. Wheeler obtained approximately two to three file folders
of documents from the Attorney General's office.
Janice Wheeler testified at trial that, as a result of her
employment,
she had access to a key that would open the door to the archives in
the
basement of the Attorney General's office. On three separate
occasions,
Scientologists gained access to the archives to search for files on
Scientology. On one occasion, Ms. Evoy, the Deputy Guardian
Intelligence
Canada, removed a file from the archives and sent it to the Deputy
Guardian Intelligence Office United States. The file was later
discovered
by the F.B.I. during a search of the Scientology premises in the
United
States.
Ms. Evoy described another incident where she met Janice Wheeler at
the Attorney General's of office. After all the staff had left, Ms.
Wheeler took her inside and the two of them looked for files relating
to the Church of Scientology. Ms. Evoy testified that they searched in
the office of Donald MacKenzie, who was a lawyer responsible for some
matters involving Scientology. Nothing was taken on this particular
occasion.
-16-
Ms. Evoy described other occasions when she obtained Ministry files
directly from Janice Wheeler. At one point, the two met in the
bathroom
at the office, and Ms. Wheeler gave Ms. Evoy a file relating to the
Church of Scientology. Ms. Evoy copied the file and returned it to Ms.
Wheeler so that it court be returned to the Ministry.
H. Pre-Trial Motions
The trial judge heard several pre-trial motions in this case. Some
of
the motions are relevant to the grounds of appeal now raised by the
appellants. In particular, the motions concerning exclusion of
evidence,
adequacy of Crown disclosure, and jury selection, will be dealt with
under the relevant ground.
I. Grounds of Appeal
Counsel for the appellants advanced numerous grounds of appeal, some
of which were abandoned at the hearing. The principal remaining issues
in the appeal are:
(i) whether the jury was properly constituted having regard to
the exclusion of certain persons, such as non-citizens, from
the array;
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(ii) whether the identification doctrine of corporate liability as
explained in Canadian Dredge & Dock applies to a non-profit
corporation without share capital established for religious
purposes; and
(iii) whether there was sufficient evidence to meet the test for
corporate criminal liability, and, alternatively, whether
the jury was adequately directed with respect to corporate
criminal liability.
We called on Crown counsel to respond to these issues as well as to
the
sentence appeal.
Before discussing these main grounds of appeal, I turn to several
grounds of appeal that can be disposed of with brief reasons.
II. ORDER OF CLOSING ADDRESSES
In her factum, the appellant Matz argues that the provisions of s.
651 of the Criminal Code that dictate the order of closing addresses
violate her rights under ss. 7 and 11 of the Charter. In view of the
decision of this court in R. v. Rose (1996), 28 O.R. (3d) 602, leave
to
appeal to Supreme Count of Canada granted February 7, 1997 (subsequent
to
-18-
the hearing of this appeal), no oral submissions were made on this
point. This ground of appeal fails.
III. SIMILAR FACT EVIDENCE
The appellants submit that the trial judge erred in permitting the
Crown to introduce evidence of criminal acts, other than those in the
indictment, allegedly committed by members of the Church of
Scientology
of Toronto. For example, he permitted the Crown to lead evidence that
staff from the Guardian's Office had broken into government offices
and other organizations. Evidence was led about the arrest of the two
Scientology members, Coulson and Chornopesky, who had attempted to
break
into a law firm that was acting for former members of Scientology
engaged in litigation with the Church. Evidence was also led of an
attempt to obtain a file from the Ministry of the Attorney General by
impersonation of one of the Ministry's counsel.
In our view, the trial judge did not err by admitting this "similar
act evidence". He initially held that this evidence was admissible as
tending to show that the acts charged were committed with the
knowledge
and authority of the Church of Scientology of Toronto. The evidence
was
relevant to the issue of whether the Guardian's Office was acting on
behalf of the corporate appellant. As this court noted in R. v.
McNamara
et al, (No 1) (1981), 56
-19-
C.C.C. (2d) 193 at 293, "Proof of the repetition of wrongful acts by
the agents of a corporation may be sufficient to permit a jury to
infer
that the acts charged in the indictment were carried out with the
knowledge and approval of those in charge of the corporation."
Some of the evidence, especially that relating to the arrest of
Coulson and Chornopesky, was also admissible as part of the narrative
to explain steps taken by the Guardian's Office in relation to the
charged acts.
By the end of the case, the trial judge had concluded that this
evidence was not relevant to any issue in dispute and he instructed
the
jury accordingly. For example, the trial judge directed the jury as
follows:
The Crown has led evidence of other criminal acts alleged to have
been done by Scientologists. I have not referred to this evidence,
because, if believed, it goes no further than to show that the
criminal acts were committed with the authority of the Guardian
Office in Toronto, and it was for that purpose that I permitted
this similar fact evidence to be given. _But that evidence throws
no light one way or the other on the point to issue as to whether
the persons in the Guardian Office in Toronto were acting within
the field of operation of Church of Scientology of Toronto that
had been assigned to them._
Now, there is a very important point that I asked you to keep in
mind respecting this evidence of other criminal acts. You must not
rely on this evidence as evidence that Church of Scientology of
Toronto had a propensity to condone or authorize criminal offences,
and so was likely to have authorized the criminal acts
-20-
with which it is here charged. _You should not rely on this evidence
of other criminal acts in any way in determining the guilt or
innocence of the individuals accused in any of the counts before
you. It can only be used by you for the limited purpose I have
explained, in determining the guilt or innocence of the corporate
accused, the Church of Scientology of Toronto. And I repeat, in my
view it does not advance the case there,_ because it only takes
you to the Guardian Office, and then you are faced with the
question:
Was the Guardian Office the directing mind of Church of
Scientology
of Toronto in a field of operation assigned to it? And was it not
totally in fraud of that corporation? And was it, by design or
result, for the benefit of that corporation?
[Emphasis added.]
Similar forceful directions to ignore this evidence on the issue of
corporate criminal liability were repeated on several occasions.
The appellants were not unfairly prejudiced by the admission of
this evidence. In fact, the trial judge's instruction to the jury to
ignore this evidence was overly favourable to the appellants. This
ground of appeal fails.
IV. EXPRESSION OF OPINION BY THE TRIAL JUDGE
Mr. Ruby argues that the trial judge repeatedly and forcefully
expressed his opinion on the central issues in the case, and usually
in a manner favouring conviction. In
-21-
our view, is not a fair characterization of the charge to jury when
it is read as a whole. Mr. Ruby takes specific exception to thirteen
comments by the trial judge in the course of the lengthy charge.
However, when those comments are considered in context, it is apparent
that they did not deprive the appellants of a fair trial. This was
a lengthy case with a number of complex issues. It was entirely
appropriate for the trial judge, where possible, to simplify the
issues for the jury. Many of the comments about which the appellants
complain concerned issues that were relatively non-controversial;
other comments were part of a balanced review of the evidence; still
others, when examined in context, actually favoured the defence
position.
It is well established that a trial judge has considerable latitude
to offer opinions in the charge as long as it is made clear to the
jury that they are the sole judges of the facts and that they are
free to reject the trial judge's opinion. See R. v. A.W.E., [1993] 3
S.C.R. 155. In this case, the trial judge repeatedly stressed to the
jury that they were not bound by any of his expressions of opinion on
matters of fact. On all but one occasion to which objection is taken,
he specifically cautioned the jury that they were not bound by his
opinion and that it was a matter for them to decide. The one
instance in which the trial judge did not so caution the jury was a
question of fact concerning the relationship between the Guardian's
Office Canada and the Guardian's Office Toronto. That relationship
was not
-22-
seriously in dispute in the case. Moreover, in the one area of the
case where the distinction was of some import, a plant in the R.C.M.P.
in Ottawa, the jury acquitted the Church. This ground of appeal fails.
V. "REPLY" TO DEFENCE COUNSEL'S JURY ADDRESS
Mr. Ruby argues that the trial judge engaged in "contentious
argument" during his charge by responding to certain remarks in
defence counsel's jury address. In our view, the trial judge's
comments were not inappropriate. Indeed, they were necessitated by
certain statements by defence counsel that were legally incorrect or
would have had the effect of diverting the jury from the real issues
in the case. This ground of appeal fails.
VI. CREDIBILITY OF PRINCIPAL CROWN WITNESSES
Mr. Norris makes a number of submissions with respect to the trial
judge's charge to the jury on the credibility of the principal
Crown witnesses. Five of these witnesses, Bryan Levman, Emile Gilbert,
Kathryn Smith, Dianne Fairfield and Marion Evoy, had formerly been
members of Scientology and testified under the protection of immunity
agreements.
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In 1983, Mr. Levman, Mr. Gilbert and Ms. Smith were declared
"suppressive persons", and expelled from Scientology. When they
learned that the police were investigating the Church of Scientology
of Toronto, they became concerned that they would be charged with
criminal offences. In early 1984, they entered into immunity
agreements with the authorities, which provided that they would not
be prosecuted for any offices arising out of the investigation, on
the condition that they would fully disclose their involvement with
the Church and testify accordingly.
Dianne Fairfield was removed from her post as Assistant Guardian
Social Coordination in Toronto in 1982 after admitting to
representatives
of the FLAG Bureau that she had been involved in criminal activities.
In the fall of 1984, she entered into an immunity agreement with the
authorities. Although the agreement was similar to that of the other
witnesses, it included the additional condition that her information
advance "in a material fashion, the information obtained from previous
witnesses."
In 1981, while Marion Evoy was the Deputy Guardian Canada, she was
investigated by members of the Sea Organization and required to enter
into a programme of confession and punishment because of her
involvement
in illegal acts. She was told to write out a list of her actions and
to
admit, in writing, that she was responsible for all of the actions
-24-
she had directed. Ms. Evoy gradually withdrew from the Church and, in
the fall of 1984, entered into an immunity agreement similar to that
of Ms. Fairfield.
Mr. Norris argues that the trial judge did not give an adequate
warning as to the danger of relying on the evidence of the Crown
witnesses, as required by R. v. Vetrovec, [1982] 1 S.C.R. 811. Mr.
Norris also argues that the evidence relied on by the Crown to confirm
the testimony of the Crown witnesses did not in fact do so. We only
called upon Crown counsel to respond to the latter argument.
A. Adequacy of the Vetrovec warning
In Vetrovec, Dickson J. held that where the trial judge decides that
some caution should be given to the jury about the evidence of suspect
witnesses, no particular rule, formula or direction must be followed.
He held at p. 831 that what may be appropriate is a "clear and sharp
warning to attract the attention of the juror to the risks of
adopting,
without more, the evidence of the witness."
Mr. Norris submits that the language used by the trial judge in this
case did not accomplish this task. He points out that the trial judge
told the jury that they "may consider"
-25-
that they required some confirmatory evidence before accepting the
testimony of the five suspect witnesses.
In our view, examination of the charge as a whole reveals that the
jury was adequately warned of the danger of accepting the witnesses'
testimony. The trial judge reviewed the various factors that would
cause the jury to be cautious, and pointed out the following:
(i) the five witnesses had all participated in the allegedly
illegal acts, and despite their significant role, had not
been prosecuted;
(ii) the witnesses had "bought" their immunity by agreeing to
testify against the Church of Scientology of Toronto;
(iii) the witnesses had come forward not out of a sense of remorse,
but because they believed that they would be charged
themselves;
(iv) Mr. Levman had admired to perjuring himself in civil
proceedings concerning Mr. Coulson and Mr. Chornopesky; and
(v) Ms. Fairfield and Ms. Evoy were required to advance the
Crown's case as a condition of obtaining immunity.
-26-
The trial judge warned that they "should examine very carefully" the
evidence of these witnesses before acting on it. It was in this
context
that the trial judge instructed the jury that they "may consider" that
they required some confirmatory evidence.
In our view, it is insignificant that the trial judge told the jury
that they "may consider" the need for confirmatory evidence rather
than they "should" look for such evidence. In Vetrovec itself, Dickson
J. stated at p. 832 that it would have been sufficient if the trial
judge had said that "it would be wise" to look for supporting
evidence.
When coupled with the extensive reference to the reasons for
approaching
the testimony of the suspect witnesses with caution, the language used
by the trial judge in this case sufficiently conveyed the need for
care in adopting, without more, the evidence of these witnesses.
The trial judge concluded his charge concerning the suspect
witnesses
by suggesting that they were not "ordinary criminals" in that they
had not acted for selfish reasons, but because they thought they were
benefiting their religion. Mr. Norris submits that this final
direction
undermined the earlier caution. We do not agree. It was open to the
trial judge to point out other factors that he considered to be
relevant to the credibility of the witnesses. His concluding comments
would not have led the jury to believe that his much
-27-
lengthier comments detailing the frailties of the witnesses'
credibility
were to be ignored. There is no merit to this ground of appeal.
B. Confirmatory Evidence
Mr. Norris submits that the evidence on which the Crown relied to
support the testimony of the suspect witnesses was not capable of
confirming the evidence in the relevant sense. He argues that to
qualify as confirmatory, the evidence must implicate the accused in
the commission of the offence. It is his position that the evidence
relied on by the Crown merely supported the witnesses' evidence as
to their own roles in the offenses. We called on the Crown to respond
to this ground of appeal.
The trial judge left six items of evidence with the jury as
potentially confirmatory. It is unnecessary to address all of them;
reference to two will suffice. First, Ms. Fairfield and Ms. Evoy both
described the contents of files that had been obtained from the
Metropolitan Toronto Police. The trial judge pointed out that
Sergeant Dimmock described the contents of a file kept by the police
on the Church of Scientology, and that the file contained documents
similar to those described by Fairfield and Evoy.
-28-
Second, Ms. Evoy testified that she had received a file from Janice
Wheeler in the bathroom of the offices of the Ministry of the Attorney
General. She described the file as relating to the application by the
Church of Scientology under the Marriage Act, R.S.O. 1970, c.261 (now
R.S.O. 1990, c.M.3) for authority to solemnize marriages and regarding
a complaint that a title used by the Church resembled that of a
government department. Mr. Polika, who had been counsel for the
Ministry of the Attorney General, testified that these two matters
had been the subject of work within the Ministry at the time.
In my view, this evidence and the four other similar items were
properly left to the jury as potentially confirming the testimony of
the Crown witnesses. The evidence did not merely show the witnesses'
own involvement in the offenses. As Dickson J. made clear in Vetrovec
at pp. 826-28, confirmatory evidence need not, itself, implicate the
accused. Rather, it must confirm some material aspect of the suspect
witness' testimony. Once such confirmation is supplied, the suspect
witness' testimony may be made more credible as a whole.
In this case, the trial judge pointed out that the testimony of
Sergeant Dimmock and Mr. Polika did not directly implicate the
accused.
It did, however, support material aspects of the Crown witnesses'
testimony. It tended to confirm that the Guardian's Office
-29-
had acquired confidential information from the target organizations,
and that it had done so through the illegal plant operations. If Ms.
Evoy, for example, was telling the truth about this aspect of her
testimony, she may have been telling the truth about the purpose of
the plants and who their actions were intended to benefit. In short,
the evidence was capable of strengthening the belief that the Crown
witnesses were telling the truth about the appellants' roles in the
offences.
VII. DISCLOSURE
In their factum, the appellants make a broad attack on the adequacy
of disclosure by the Crown and the trial judge's rulings refusing to
require further disclosure of certain categories of documents. In
particular, the appellants focus on the refusal of the trial judge
to order disclosure of documents in the possession of the Ontario
Ministry of Consumer and Commercial Relations. On the hearing of the
appeal, the appellants abandoned most of these grounds of appeal.
They limited their submissions respecting disclosure to one issue,
namely, whether the Crown was required to provide to the defence an
inventory of all of the material in the possession of the O.P.P. that
had not been disclosed to the defence.
-30-
It is important to place this in its proper context. In his
submissions to the trial judge, Mr. Stewart, counsel for the Crown,
set out a detailed history of the extensive disclosure that had, to
date, been provided to the defence. This history included reference
to the following:
(i) The defence had disclosure of the testimony of four former
Scientologists, taken before the justice of the peace
pursuant to s. 509 of the Criminal Code, prior to the
issuance of process. The transcript consisted of
approximately
300 pages of evidence.
(ii) The defence received copies of all documents to be relied on
by the Crown, and "will-say" statements of witnesses. This
material consisted of several volumes, and was in excess of
2,600 pages.
(iii) The defence received copies of lengthy statements provided to
the police by the five former Scientologists who ultimately
testified at trial.
(iv) The defence received copies of lengthy statements provided to
the police by other individuals who had previously been
affiliated with the Church of Scientology of Toronto, and
whom the Crown did not propose to call as witnesses.
(v) The defence had the benefit of a full and lengthy preliminary
inquiry, during which they had extensive opportunity to
question, by means of cross-
-31-
examination, witnesses called by the Crown. The Crown called
40 witnesses to testify at the preliminary inquiry, many of
whom were subject to lengthy and detailed cross-examination.
The evidentiary portion of the hearing extended over
approximately 31 weeks of court time.
(vi) The defence obtained almost wholesale access to the
Metropolitan Toronto Police files relating to the Church of
Scientology. This included access to an internal report
prepared by the Metropolitan Toronto Police and the O.P.P.
on the activities of the Church of Scientology of Toronto,
which consisted of 1,477 pages, and which was subject to
only minimal editing.
(vii) Toward the conclusion of the preliminary inquiry, on January
25, 1990, counsel for the Crown and defence negotiated and
entered into a broad disclosure agreement, which set terms
governing disclosure of a wide range of documentary materials
that were of interest to the defence.
(viii) Following the preliminary inquiry, the defence continued to
receive further disclosure. For example, defence counsel were
provided with numerous documents relating to the execution
of the search warrant on the premises of the Church of
Scientology of Toronto in March 1983.
-32-
As noted above, toward the conclusion of the preliminary inquiry,
counsel for the Crown and counsel for the defence had signed an
extensive disclosure agreement. This agreement set out a number
of matters that would be disclosed "in the interest of affording
the defence the discovery they seek, and of bringing the preliminary
inquiry to a close". Among other matters, the Crown agreed to disclose
the following:
(i) a photocopy of the notes, in transcript form, made by
Constable John Cunha while he was working in an undercover
capacity for the O.P.P. at the Church of Scientology of
Toronto from January 22, 1981 until May, 26, 1982;
(ii) a photocopy of the notes, in transcript form where
available, made by Constable Barbara Taylor while she was
working in an undercover capacity for the O.P.P. at the
Church of Scientology of Toronto from September 18, 1980
until March 3, 1983;
(iii) Scientology documents accumulated by Constables Cunha and
Taylor while they were on undercover duties;
(ix) a photocopy of all of the notes or diary entries made by
Detective Sergeant Ciampini, the lead investigator,
throughout the investigation from 1972 to December 1, 1984;
-33-
(v) a photocopy of O.P.P. Criminal Investigation Branch file
29080 ("Project 20") memoranda relating to the investigation
of the activities of the Church of Scientology of Toronto
for the period commencing in January 1980 and culminating
in the execution of the search warrant in March 1983;
(vi) documents acquired by the O.P.P. from the F.B.I. in the
United States in early 1980;
(vii) background documents acquired by the O.P.P. in relation
to the Project 20 investigation of the activities of the
Church of Scientology of Toronto from January 1980 until
December 1, 1984;
(viii) background reports or documents relating to the joint
O.P.P.-Metropolitan Toronto Police report of 1977;
(ix) a photocopy of memoranda made by Inspector John Germain or
Detective Sergeant Ciampini in relation to the purpose of
trips to the United States, following the execution of the
search warrant errant, in connection with the Project 20
investigation of the activities of the Church of Scientology
of Toronto; and
(x) a photocopy of reports and documents contained in the O.P.P.
security branch file for the period September 1972 through
1976 relating to the activities of the Church of Scientology
of Toronto.
-34-
In addition to the items included in the disclosure agreement, Crown
counsel had continuously responded to specific requests from defence
counsel. After the trial judge ruled that Crown counsel was not
required to provide an inventory of all of the material not yet
disclosed, defence counsel made specific requests for certain items.
Crown counsel reported to the trial judge that some of these items
had already been disclosed, and that the others would be.
The trial judge also dealt with a specific concern relating to
statements provided to the O.P.P by certain individuals in the
United States. The existence of these statements had been made
known to the defence, but Crown counsel had refused to disclose
the material on the basis that it was irrelevant. The trial judge
reviewed the material and determined that certain items should be
disclosed.
In our view, Crown counsel had met its disclosure obligations and
was not required to provide the inventory sought by the defence. In
R. v. Chaplin, [1995] 1 S.C.R. 727, Sopinka J. dealt with the
procedure where, as here, the Crown claims that it has discharged
its disclosure obligations and Crown counsel denies that he or she
is aware of the existence of any other relevant material. Sopinka
J. held as follows at page 743-4:
In contrast to the above, in some cases, this being one, the
existence of material which is alleged to be relevant is disputed by
-35-
the Crown. Once the Crown alleges that it has fulfilled its
obligation to produce it cannot be required to justify the
nondisclosure of material the existence of which it is unaware
or denies. _Before anything further is required of the Crown,
therefore, the defence must establish a basis which could enable
the presiding judge to conclude that there is in existence further
material which is potentially relevant._ Relevance means that
there is a reasonable possibility of being useful to the accused
in making full answer and defence. The existence of the disputed
material must be sufficiently identified not only to reveal its
nature but also to enable the presiding judge to determine that
it may meet the test with respect to material which the Crown is
obliged to produce as set out above in the passages which I have
quoted from R. v. Stinchcombe [[1991] 3 S.C.R. 326] and R. v.
Egger [[1993] 2 S.C.R. 451].
....
Apart from its practical necessity in advancing the debate
to which I refer above, _the requirement that the defence
provide a basis for its demand for further production serves
to preclude speculative, fanciful, disruptive, unmeritorious,
obstructive and time-consuming disclosure requests. _ In cases
involving wiretaps, such as this appeal, this is particularly
important. Fishing expeditions and conjecture must be separated
from legitimate requests for disclosure. [Emphasis added.]
In view of the extensive disclosure that had already been made by
the Crown in this case, the further demand by the defence is properly
characterized as "speculative, fanciful, disruptive, unmeritorious,
obstructive and time-consuming". Despite the mass of material that
was disclosed to the defence over the many years leading up to the
trial and during the trial itself, defence counsel at the trial and
on the appeal were unable to point to a single document that _might_
exist that would be relevant to the case and that had not been
-36-
disclosed. Put another way, assuming as we must that the defence had
carefully examined all of the disclosed material and the evidence from
the preliminary inquiry, defense counsel were nevertheless unable to
point to anything that suggested that full disclosure of all relevant
material had not been made. In our view, this is particularly telling
since defence counsel were provided with copies of all of the notes of
the lead investigator Detective Sergeant Ciampini, all of the
memoranda
from the O.P.P. file relating to the investigation, and all of the
reports and documents relating to the joint O.P.P.-Metropolitan
Toronto
Police investigation.
In his argument before us, Mr. Norris focused on submissions by
Crown
counsel at trial as an admission that other relevant and undisclosed
material existed. The excerpt from the Crown's statement was as
follows:
Mr. Ruby was saying, basically, "I need a list of everything the
police have, and it's up to the Crown to go into the police files
with the police and provide it. Otherwise, I don't know what's been
withheld. If I have any dispute about it then this material has got
to be lugged into court for you to review." And we take very strong
exception to that approach under Stinchcombe. I certainly was not
looking forward to having any direction from you to go back out to
Mississauga to attempt to determine what, if anything -- _and I am
sure I will find materials. I don't want to mislead you in any way,
because there are so many materials in this case, that if I didn't,
it would be an astonishing fact._ But I didn't want to go back out
and have to inventory materials which the O.P.P. happened to have.
[Emphasis added.]
-37-
In our view, to this statement by Crown counsel was not sufficient
to discharge the burden on the defence as enunciated by Sopinka J.
in Chaplin. To the contrary, when the entirety of Crown counsel's
submissions before the trial judge are reviewed, it is apparent that
counsel believed that he had made disclosure of all relevant documents
of which he was aware. As would be expected in a case of this size and
complexity, Crown counsel could not state categorically that other
relevant documents did not exist. However, as pointed out in Chaplin,
before anything further was required of Crown counsel, the defence had
to establish a basis that could enable the trial judge to conclude
that there was some other potentially relevant material in existence.
Despite all of the tools at its disposal, including the massive
disclosure already made, defence counsel was unable to do so.
Finally, in our view the recent decision of the Supreme Court of
Canada in R. v. Carosella, a judgment of the Supreme Court of Canada,
released February 6, 1997 does not require a different result. In
that case, Sopinka J., for the majority, reaffirmed at para. 36 that
the obligation on the Crown is to produce material that "may" affect
the conduct of the defence. To repeat, Crown counsel in this case
asserted that he had produced all such material. This is not a case
like Carosella where the relevant document had not been disclosed
(because it had been destroyed). The burden was on the appellants
in this case to
-38-
show, per Chaplin, a basis from which the trial judge could conclude
that other potentially relevant material existed. They failed to so.
There is no merit to this ground of appeal.
VIII. EXCLUSION OF SECONDARY EVIDENCE
This ground of appeal arises out of the execution of a search
warrant by the police at the offices of the Church of Scientology of
Toronto. The trial judge found that the manner in which the search
warrant errant was executed violated the appellants' rights under s.
8 of the Charter. As a remedy, the trial judge excluded all of the
documents seized during the search. He also excluded certain
"secondary
evidence" with respect to charges of theft of confidential documents.
In the result the Crown was unable to prove the seven counts of theft
and in separate proceedings the appellants were acquitted on those
charges. The appellants submit, however, that the trial judge erred
in failing to exclude the secondary evidence on the breach of trust
counts.
A. The Motion to Exclude the Primary Evidence
On March 3 and 4. 1983, over a period of about 17 hours, the O.P.P.
executed a search warrant at the offices of the Church of Scientology
of Toronto Approximately two million documents were seized in
purported
execution of the warrant. The search warrant
-39-
referred to several complex offences tax fraud, fraud on the public,
and conspiracy. The appellant was never charged with these offenses.
Soon after the search and seizure, the Church launched an
application
to quash the warrant. It was heard by Mr. Justice Osler who upheld the
validity of the warrant. An appeal by the Church to this court was
dismissed: Re Church of Scientology et al. and the Queen (No. 6)
(1987).
31 C.C.C. (3d) 449. The court held that the fact that the police did
not execute the warrant errant in accordance with its terms could not
retroactively render the warrant invalid. The court, however left open
the effect of the alleged over-seizure. This set the stage for the
hearing before the trial judge.
The trial judge heard extensive evidence concerning the manner in
which the search was carried out. His most important finding was that
the police made a wholesale seizure of documents without regard to the
important limitation in paragraph 16 of the warrant. In that
paragraph,
the police were directed only to seize documents in the described
categories or classes if they related to certain specified time
periods
and related "directly to" the described offences. The trial judge
found that the police seized documents if they fell within the class
of documents and the time period irrespective of whether the documents
related directly to the described offences.
-40-
The police also seized a large number of "pre-clear" folders that
contained confidential information about persons "audited" by the
Church. The warrant authorized the seizure of pre-clear folders only
in relation to members of the Guardian's Office staff. However, 978
pre-clear folders relating to 641 parishioners were seized. Only five
of the seized folders related to Guardian's Office staff. Although
many of the improperly seized pre-clear folders were returned to the
appellant within months of the search, over 200 folders were not.
However, pursuant to a court order, the pre-clear files had been
ordered sealed pending determination of whether those files were
privileged.
in extensive reasons, the trial judge held that the manner in which
the search and seizure was executed was unlawful and constituted a
violation of the appellants' right to protection against unreasonable
search and seizure as guaranteed by s. 8 of the Charter. He found
that the police had not made a good faith attempt to stay within the
boundaries of the warrant. The trial judge rejected the Crown's
submission that the manner in which the search was conducted only
affected the reasonableness of the seizure of the documents outside
the terms of the warrant. He not only held that the seizure of so many
documents not covered by the warrant was unreasonable, but that the
manner in which the search was conducted tainted the entire seizure.
His reasoning is summed up in this portion of his ruling:
Having decided that the manner of search was unlawful in the case
at bar for failure to be governed by the concluding words of
-41-
Paragraph 16 of the warrant, would be inconsistent with the
purpose of s. 8 being that of preventing unjustified searches
before they happen, to now hold that the search and seizure of
some of the documents was not unreasonable because they would
properly have been seized if the search warrant had been properly
executed.
In my judgment, the seizure of the documents which the Crown
seeks to use in evidence was unreasonable because of the unlawful
manner in which the search and seizure was conducted. I do not
intend to lay down a rule of general application. My decision is
limited so the facts of this case, where the search was conducted
by a number of officers, where the provision in the warrant that
was not complied with was probably essential to the validity
of the warrant where the search covered a large number of articles,
and where there was, by anyone's analysis, a very substantial
overseizure. The unlawful manner of search might not have been
significant in a simple case.
The trial judge then turned to the difficult question of whether
the documents obtained as a result of the violation should be
excluded.
He reviewed the factors set out in R. v. Collins [1987] 1 S.C.R. 265.
He held that under the first set of factors, since the documents were
real evidence, their admission would not affect the fairness of the
trial. Under the second set of factors, the trial judge concluded
that the seriousness of the violation strongly favoured exclusion of
the evidence. The appellants place particular emphasis on the
following
part of the trial judge's reasons:
In considering the evidence respecting the search and seizure, I
found that _the police did not act in good faith,_ because so
many of them disregarded the concluding words of Paragraph 16
of the warrant, and there is no question that the evidence which
the Crown seeks to admit could have been obtained in a properly
conducted search [Emphasis added.]
-42-
The trial judge briefly the set of factors from Collins, namely the
effect of excluding the evidence on the integrity of the
administration
of justice. He pointed out that the evidence sought to be excluded
would provide powerful circumstantial evidence "that the thefts had
been committed", but that this would often be the case. The trial
judge
held that, on balance, the evidence should be excluded.
B. The Motion to Exclude the Secondary Evidence
Following the ruling concerning the exclusion of the seized
documents,
the appellants moved to exclude the "secondary evidence". The trial
judge characterized secondary evidence as including all evidence of
whatever nature discovered or generated after the seizure of the
primary evidence. The appellants had sought exclusion of the testimony
of the five witnesses who were discovered by, and gave statements to,
the authorities after the search and seizure. These were the five
ex-Scientologists, Bryan Levman, Marion Evoy, Kathryn Smith, Emile
Gilbert and Dianne Fairfield. The appellants had also sought exclusion
of any evidence discovered as a result of the interviews of these
five witnesses.
The evidence adduced before the trial judge appears to establish
that certain seized documents were immediately used by the police to
attempt to find witnesses. In
-43-
particular, the police had possession of a document "Suppressive
Persons
Declare". This document declared eight persons to be suppressive
persons
and expelled them from the Church. The police knew that these persons
might well be disposal to providing information to the authorities.
Three persons who later became Crown witnesses, Bryan Levman, Emile
Gilbert and Kathryn Smith, are named in this document.
Contact was made with the persons who became Crown witnesses
only after the lead investigator had travelled to the United States
and made contact with David Mayo and his lawyer, Gary Bright. David
Mayo was a former Scientologist based in the United States who had
set up an organization in competition with Scientology and who was
engaged in litigation with the Church of Scientology. Mayo and
Bright acted on behalf of the police in contacting the former
Scientologists and encouraging them to become Crown witnesses. Mayo
conveyed to these potential witnesses that they might be charged.
There was no evidence that Mayo or Bright had been shown any of the
documents that were seized in the search of the Church of Scientology
of Toronto.
The trial judge made a number of important factual findings
concerning the relationship between the seizure and the obtaining
of the testimony of the ex-Scientologists. Those findings may be
summarized as follows:
-44-
(i) over a year elapsed between the date of the unlawful search
and the interviews by the police of the Crown witnesses;
(ii) this delay is explained in part by the magnitude of the
seizure;
(iii) the significance of the delay is reduced by the fact that the
police tried unsuccessfully to interview persons named in the
"Suppressive Persons Declare" within two months of the
seizure;
(iv) two of the seized documents that were subject to solicitor
client privilege were used by the police in the investigation
and questioning of the Crown witnesses and must have assisted
the police in obtaining the cooperation of Emile Gilbert and
Kathryn Smith;
(v) the seized documents identified four entities that had been
targeted by the Church of Scientology of Toronto and were
previously unknown to the police, namely, the Ontario
Medical Association, the Royal Canadian Mounted Police, the
Metropolitan Toronto Police and a law firm acting for persons
engaged in litigation with the Church;
(vi) all of the ex-Scientologists were concerned that they might
be arrested as a result of evidence that would be discovered
in the
-45-
seized documents and this was an important factor in inducing
them to co-operate with the authorities; the trial judge
rejected the evidence of these witnesses to the extent that
they attempted to minimize the importance of the seized
documents in their decision to co-operate with the police;
(vii) it was "quite unrealistic" to suggest that these witnesses
would have decided to come forward and confess their
involvement in acts that occurred almost ten years earlier
had it not been for their fear of incriminating evidence
in the seized documents; and
(viii) the evidence given by these witnesses was influenced by the
contents "real or apprehended" of the seized documents.
Based on these findings, the trial judge held that there was a
causal
connection, if not a temporal connection, between the violation of the
Charter and the evidence obtained from the five ex-Scientologists.
Accordingly, the evidence had been obtained in a manner that infringed
the appellants' Charter rights within the meaning of s. 24(2) of the
Charter.
In deciding whether or not this secondary evidence should be
excluded,
the trial judge again applied the test from Collins. He noted that it
was conceded that the first
-46-
group of factors concerning the fairness of the trial was not
relevant.
As to the second group of factors concerning the seriousness of the
Charter breach, the trial judge reaffirmed his earlier finding that
the violation was a serious one.
The trial judge then turned to the final set of factors relating to
the disrepute to the administration of justice that would arise from
exclusion of the evidence. The trial judge distinguished between the
theft counts and the breach of trust counts. He held that the gravamen
of the offences was the use of Church members to infiltrate various
organizations to obtain copies of documents containing information
that
might help the Church. The most reprehensible aspect of the conduct
was
as the infiltration of the law enforcement agencies as represented by
the breach of trust counts. The theft charges were relatively minor
involving the temporary removal of pieces of paper of a value not
exceeding $200.
The trial judge concluded that the exclusion of the secondary
evidence in connection with the less serious offences of theft under
$200 would not bring the administration of justice into disrepute.
However, to exclude the secondary evidence on the more serious charges
of breach of trust would bring the administration of justice into
disrepute in the eyes of a reasonable person, dispassionate and fully
apprised of the circumstances of the case.
-47-
C. Analysis
An appellate court should not interfere with the decision of a
trial judge respecting the application of s. 24(2) of the Charter
unless the trial judge made an unreasonable finding of fact or a legal
error in applying that provision. See R. v. Grant, [1993] 3 S.C.R.
223. In our view, there is no basis for interfering with the trial
judge's conclusions concerning the admissibility of the secondary
evidence. Accordingly, it is only necessary to deal briefly with the
submissions of the appellants.
1. Causation
Before turning to those arguments, some brief components are
necessary with respect to the threshold issue of whether the secondary
evidence was obtained in a manner that infringed the appellants
Charter
rights. This case was tried before the decision of the Supreme Court
of Canada in R. v. Goldhart [1996] 2 S.C.R. 463. In Goldhart,
reference
is made to the decision of the trial judge in this case. Sopinka J.
held that, to the extent that Southey J. held that a causal connection
between the breach and the evidence was sufficient to trigger the
provisions of s. 24(2), this was an error. Instead, the court is
required to examine the whole of the relationship between the breach
and the evidence. Thus, the court must consider no: only whether there
is a causal connection, but the strength of the connection between
the impugned evidence and the breach. The court must also consider
-48-
whether there existed a temporal link. On the other hand, Sopinka J.
noted that in this case the trial judge had found that illegally
seized documents incriminated the witnesses and were a key factor
in the decisions of the witnesses to come forward and testify for
the Crown.
In our view, Sopinka J.'s reasons in Goldhart imply that it was
open to the trial judge in this case to find that the strength of
the causal connection between the Charter breach and the obtaining
of the secondary evidence was such that the evidence was procured
in a manner that infringed the appellants' Charter rights.
That being said, the fact that the connection between the secondary
evidence and the violation was somewhat more remote than the obtaining
of the primary evidence was a factor to be taken into account in
applying the Collins factors. See R. v. Strachan [1988] 2 S.C.R.
980 per Dickson C.J.C. at p. 1006. I turn now to whether the impugned
secondary evidence should be excluded.
2. Fairness of the Trial
With respect to the first set of Collins factors, we agree with the
trial judge that the admission of this evidence would not affect the
fairness of the trial. This secondary evidence did not have the
quality
of self-incrimination and did not emanate from the
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appellants. To paraphrase the dissenting reasons of Brooke J.A.,
adopted by Sopinka J. in Goldhart at p. 496, this testimony was the
product of the minds of the witnesses themselves and could be known
only if and when they chose to disclose it. It was not enough that
the testimony might not have been obtained but for the illegal search.
As held by Doherty J.A. in R. v. Belnavis (1996), 107 C.C.C. (3d) 195
at 222-3 (Ont. C.A.) and Cory J. in R. v. Stillman, a judgment of the
Supreme Court of Canada, released March 20, 1997 at paras. 72-119,
before admission of this type of evidence will affect the fairness of
the trial, there must be some element of involvement or participation
of the accused in the obtaining of the evidence. That element is
absent in this case. The mere use by the authorities or documents,
created by the accused before the violation, to obtain further
evidence
is not the kind of compelled participation that will render this
after-acquired evidence "conscriptive evidence" so as to affect the
fairness of the trial.
3. Seriousness of the Charter Violation
With respect to the second set of factors, in our view, the trial
judge properly characterized the seriousness of the violation. Ms.
Edwardh argues that the trial judge erred in considering the fact that
the search was completed in a short period of time as a mitigating
factor. This submission concerns the following aspect of the trial
judge's reasons:
The loss of the documents in the illegal seizure caused substantial
hardship to the Church. On the other hand, the police were acting
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in the execution of a valid search warrant the officers had tried
to comply with para. 16 of the search warrant by satisfying
themselves that they seized only documents relating directly to
the offenses alleged in the information the search would have
tested must longer. Officers would have been present in the
Church's premises for a greater period of time, which would have
increased the disruption to the activities of the Church.
The trial judge's comments that had the police complied with
paragraph 16 of the warrant they would have been on the premises for
a greater period of time were not intended to diminish the seriousness
of the violation. He was merely pointing out that this was a factor
to be taken into account in considering the seriousness of the
intrusion into the privacy interests of the Church. There is no
question that had the police undertaken a detailed review of the
documents at the premises, they would have been a constant and
probably oppressive presence for many more days. That was a factor
to be considered.
In Baron v. Canada, [1993] 1 S.C.R. 416 at 451 Sopinka J., for the
court, quoted with approval from the judgment of Hartt J. in R. v.
Burnett. [1985] 2 C.T.C. 227 (Ont. H.C.) as follows:
Where the alleged misconduct is of a complex nature in which funds
are allegedly funnelled through a number of interrelated companies
with a view to hiding their disposition, it seems to me that the
number of documents that may afford evidence of such a violation
may well be very great indeed. In such a case, an entire class
of documents may in fact be necessary to trace the
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transactions. _Granted, many documents in a file may not, in the
final analysis, be relevant to any tax violation. However, it may
be impossible to preclude their relevance without a detailed
examination of all the documents seized._ [Emphasis added]
Hartt J.'s comments were made in the course of considering a
submission
similar to the one made in this case that the overseizure of documents
rendered the search and seizure unreasonable. He had earlier made the
following observation at p. 238:
_A search and seizure of the kind authorized here would take
months to complete if each document had to be examined individually.
To interpret the legislation in the way urged could well lead
to the serious disruption of private and business premises,
could involve inordinate strain on public resources, and might
well found a legitimate complaint that the manner in which a
search is executed is oppressive._ To insist that in all cases
the determination of relevance be based upon the examination of
the documents at the time of the search is similarly impractical.
It seems to me that the search must be as detailed as is necessary
to determine whether the documents may afford evidence of a
violation and that the detail required will depend on how broad
the standards of relevance properly are. [Emphasis added.]
This was a factor to be taken into account in considering the
seriousness of the violation. The trial judge found, in effect, that
the police made no attempt to comply with he provisions of paragraph
16 of the warrant arrant. But this conduct had to be balanced against
the consequences to the appellant of a more detailed review on the
premises. The fact that the police were acting upon a valid search
warrant was also a proper factor to take into
-52-
account. See R. v. Strachan, [1988] 25 C.R. 980; R. v. Goncalves,
[1993]
2 S.C.R. 3; R. v. Plant, [1993] 3 S.C.R. 281 at 300. Counsel for the
respondent also point out that one of the most serious aspects of the
violation, the unauthorized seizure of the pre-clear folders, is
mitigated by the fact that these were immediately sealed in accordance
with a court order.
4. The Administration of Justice
Finally, we agree with the trial judge's view concerning the third
set of factors. In considering the effect of exclusion, the entire
course of events had to be considered. This was not a case where
admitting the evidence would have the effect of condoning unacceptable
conduct by the police. The trial judge had already determined that the
primary evidence should be excluded and that the secondary evidence
should be excluded on the less serious theft charges. It was clearly
open to him to find that the balance shifted in favour of admission
in considering the serious breach of trust charges. The trial judge
was required to balance the long-term consequences on the
administration
of justice of regularly admitting this kind of evidence in the light
of how it was obtained, against the consequences of excluding it. See
R. v. Greffe, [1990] 1 S.C.R. 755 at 797.
In this case, the trial judge found a strong causal link between the
Charter breach and the obtaining of the evidence of the Crown
witnesses.
However, it was also of some
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significance that the evidence obtained from illegal seizure was not
the only factor motivating the witnesses to come forward. The trial
judge mentioned the "domino effect", which was also relevant on the
second branch of the s. 24(2) test. As the trial judge pointed out,
the significance of the seized documents diminished once it became
known that one or two of the other ex-Scientologists were cooperating
with the police. The witnesses were also strongly motivated to
cooperate with the authorities because of their own experience
within Scientology. They had seen that when wrongdoing was detected,
the Church would distance itself from the wrongdoers and, in fact,
offer up the wrongdoers to the authorities and provide no assistance
to them, even though they had been acting on behalf of the Church, or
at least the Guardian's Office. These factors could all properly be
taken into account to strengthen the conclusion of the trial judge
with respect to the third set of Collins factors that exclusion of
the evidence on the breach of trust charges would tend to bring the
administration of justice into disrepute.
The seriousness of the offenses was also a proper factor to
consider.
In Collins, the Supreme Court held that if the admission of the
evidence
would not affect the fairness of the trial and that without the
evidence
serious charges would be dismissed, the seriousness of the offences
favours admission. We do not agree with counsel for the appellants
when she submits that these were not serious offences. I will
deal with this aspect of the case further
-54-
when considering the sentence appeal. It is only necessary to point
out here that these offences had the potential to seriously compromise
the administration of justice in this province. As the trial judge
pointed out, the most reprehensible aspect of the conduct was the
attempt to impair the effectiveness of the targeted law enforcement
agencies, including the various police forces and the Ministry of
the Attorney General. The fact that the repeated efforts of the
appellant to obtain confidential information were largely unsuccessful
did not mitigate the serious nature of the breach of trust offences.
The distinction the trial judge drew between the theft counts and the
breach of trust counts was a reasonable one and we see no basis for
interfering with his conclusion.
I now turn to the principal grounds of appeal.
IX. ELIGIBILITY FOR SERVICE ON A JURY
A. Introduction
In a pre-trial motion before the trial judge, the appellants
challenged the constitutional validity of the jury selection scheme
in the provincial Juries Act, R.S.O. 1990, c.J.3. The focus of the
challenge was the exclusion of non-citizens from the jury pool.
The appellants also challenged the validity of excluding certain
persons by reason of their occupation or the occupation of their
spouse. The trial judge dismissed the motion and the
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jury was selected in accordance with the existing legislative
scheme. The appellants argue that the trial judge erred and,
accordingly, that the jury was not properly constituted. We called
on the Crown to respond to these submissions.
B. Selection of a Jury in Ontario
Although selection of a jury in a criminal case is a matter of
criminal procedure, Parliament has relied upon the provincial
legislation to assemble the panel from which the petit jury will be
selected. Thus, s. 626 of the Criminal Code provides that a "person
who is qualified as a juror according to, and summoned as a juror
in accordance with, the laws of a province" is qualified to serve as
a juror. The Code also requires that the provinces meet certain
standards in their jury selection schemes. For example, under s.
626(2), "no person may be disqualified, exempted or excused from
serving as a juror in criminal proceedings on the grounds of his or
her sex." Pursuant to s. 638(1)(d), the prosecutor or the accused may
challenge a juror for cause on the basis that the juror is an
"alien".1
For the purposes of this appeal, it is only necessary to provide
a cursory outline of the process by which the jury is selected. The
first step in the process is performed by the
-----
1 The term "alien" would seem to be an anachronism. In the
Immigration Act, R.S.C. 1952, c. 145, "alien" is defined as a
person who is not a British subject. See: Bureau v. The King
(1931), 51 Que. K.B.207. The immigration Act, R.S.C. 1985,
c. I-2 makes no reference to "alien".
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Director of Assessment for Ministry of Revenue. Through the of a
computerized database, the Director selects the persons who will
receive jury notices. Those persons in the database who are Canadian
citizens, resident in the municipality and will be a minimum of 18
years of age when summoned, are identified and put into a separate
computer file. The number of persons requested by the sheriff are
randomly drawn from this separate database and mailed jury notices.
For the year 1992, the Sheriff for the Municipality of Metropolitan
Toronto asked the Director of Assessment to send out 30,000 jury
notices. The notice instructs the potential juror to answer a
questionnaire designed to identify persons who would not be eligible
for jury duty in accordance with the provincial legislation. One such
question is whether the potential juror is a Canadian citizen.
Approximately 22,000 individuals responded to the jury notice. From
this group, the sheriff was able to prepare a list of 16,500 qualified
persons. This becomes the jury roll from which jury panels are drawn
for the year.
Panels of eligible jurors are selected from the jury roll to serve
for two weeks. The members of the panel are selected at random. The
petit jury will be selected from this panel in accordance with the
procedure in Part XX of the Criminal Code. Section 629 of the Criminal
Code permits the accused or the prosecutor to challenge the jury panel
as a whole
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(challenge to the array of the panel) on the basis of partiality,
fraud or wilful misconduct on the part of the sheriff or other
official by whom the panel was returned. In this case, the appellants
challenged the array of the panel pursuant to s. 629. They did not
allege any personal state of mind or conduct on the part of the
official who returned the panel, but argued that the system prescribed
by the provincial statute was defective.
Where there is no challenge to the panel or that challenge is
dismissed, the selection of the petit jury commences. Names are
randomly selected from the panel. As those persons come forward they
may be excused by the trial judge under s. 632 because they have
an interest in the proceedings or directed to stand by for reasons
of personal hardship by the trial judge under s. 633. The potential
juror may then be challenged for cause in accordance with s. 638 or
challenged peremptorily under s. 634. In this case, all of the
potential jurors were challenged for cause under s. 638(1)(b) on
the basis that they were not indifferent between the Queen and the
accused. The challenge for cause mainly concerned pre-trial publicity
about the Church of Scientology. At the end of this process, the
petit jury of 12 jurors had been selected to try the case.
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C. The Challenge at Trial to the Array
The challenge at trial to the panel was based on certain exclusions
in the Juries Act. First, the appellants argued that it is a violation
of their ss. 7, 11, and 15 Charter rights to exclude non-citizens
pursuant to s. 2(b) of the Act. Second, they argued that s. 3 of
the Act is similarly unconstitutional in that it excludes medical
practitioners, veterinary surgeons and coroners; and the spouses of
judges, lawyers, and law enforcement personnel. The relevant portions
of ss. 2 and 3 that produce these exclusions are as follows:
2. Subject to sections 3 and 4, every person who,
(a) resides in Ontario;
(b) _is a Canadian citizen;_ and
(c) in the year preceding the year for which the jury is
selected had attained the age of eighteen years or more,
is eligible and liable to serve as a juror on juries in the Ontario
Court (General Division) and in all courts of civil or criminal
jurisdiction in the county in which he or she resides. [Emphasis
added]
3.-(1) The following persons are ineligible to serve as jurors:
1. Every member of the Privy Council of Canada or the
Executive Council of Ontario.
2. Every member of the Senate, the House of Commons of
Canada or the Assembly.
3. Every judge and every justice of the peace.
4. Every barrister and solicitor and every student-at-law.
5. _Every legally qualified medical practitioner and veterinary
surgeon who is actively engaged in practice and every
coroner._
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6. Every person engaged in the enforcement of law including,
without restriction the generality of the foregoing,
sheriffs, wardens of any penitentiary, superintendents,
jailers or keepers of prisons, correctional institutions
or lockups, sheriff's officers, police officers, and
officers of a court of justice.
7. _Any person of the opposite sex to whom a person mentioned
in paragraph 3, 4 or 6 is married or with whom that person
is living in a conjugal relationship outside marriage._
[Emphasis added]
Following the trial in this matter, s. 3(1)7 was repealed by the
Statute Law Amendment Act (Government Management and Services), 1994,
S.O. 1994, c.27, s. 48(1).
The core of the appellants' argument was that non-citizens represent
a significant percentage of people, approximately 14% of the
population
of Metropolitan Toronto, and are unfairly excluded from the
opportunity
to serve on juries. The appellants called evidence as to the manner
in which the panels are selected in Ontario. They also called expert
evidence concerning the function of the jury and expert evidence
concerning immigration.
The appellants argued that this exclusion is irrational since many,
if not most, of this group can competently perform jury service. The
appellants pointed to s. 27 of the Charter, which requires that the
Charter be interpreted in a manner "consistent with the preservation
and enhancement of the multicultural heritage of Canadians." They
relied upon the evidence of their expert that the non-citizen
community
is "disenfranchised" because it
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is deprived of the opportunity for jury service. It was also his
evidence that giving non-citizens the opportunity to serve on a jury
would "increase the opportunity for minority opinions to be expressed
in the fact-finding process."
The evidence adduced by the appellants shows that of the 1.7 million
residents of Metropolitan Toronto over the age of 18, approximately
1.5 million are Canadian citizens. Almost one-half of the 1.7 million
residents were not born in Canada and most, close to three-quarters
of this group, have become Canadian citizens. Thus, on its face, the
pool of potential citizens from which the panel would be selected is
a highly diverse group in terms of ethnic and cultural background. I
will make further reference to the statistical and other evidence as
it
becomes necessary in considering the arguments raised by the
appellants.
In his reasons for judgment, the trial judge applied Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143, concluding that
non-citizens were a discrete minority and that exclusion of such a
large group of persons from jury duty was a breach of the appellants'
s. 11 right under the Charter to a representative jury. The trial
judge
held, however, that this breach constituted a reasonable limit under
s. 1 of the Charter. With respect to the exemptions in s. 3 of the
Juries Act such as physicians and spouses of lawyers, the trial judge
found that excluding these groups did not violate the guarantee to a
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representative jury because their exclusion would not materially
reduce the representativeness of the jury panels.
D. The Positions of the Parties on Appeal
The appellants argue that exclusion of non-citizens under s. 2 of
the Juries Act and exclusion of other persons by reason of their
occupation or marital status under s. 3 of the Act, violate ss
15.7.11(d) and 11(f) of the Charter. They argue that they have a
right under ss. 7 and 11 to a properly constituted jury. They argue
that a properly constituted jury is one selected from a panel which
has in turn been selected in a manner that does not violate any of
the provisions of the Charter and especially s. 15. Alternatively,
they argue that they have a constitutional right to a jury selected
from a representative pool and, as found by the trial judge, exclusion
of large groups of potential jurors from the jury roll on the basis
of irrelevant characteristics such as immigration status violates this
constitutional right. They also argue that in the case of Jacqueline
Matz who is a non-citizen, the exclusion of non-citizens violates her
rights under s. 15 of the Charter.
The respondent submits that the appellants are attempting to attack
otherwise valid provincial legislation because it infringes the s. 15
equality or other rights of potential jurors. The respondent argues
that these appellants have no standing to argue the violation
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of s. 15 rights of potential jurors. The respondent concedes that the
appellants, or at least the individual appellant Matz, have a personal
right under s. 11 of the Charter to a representative jury roll.
However,
the respondent argues that the Juries Act provisions guarantee the
constitutionally required representativeness.
E. The Interveners
Two interveners were granted leave to make submissions on this
issue. In support of the appeal is Mr. Laws, a black Canadian citizen
who was convicted of conspiring to commit offences under the
Immigration Act, R.S.C. 1985, c.I-2. At his trial, he challenged
the constitutionality of s. 2 of the Juries Act on the basis that
prohibiting non-citizens from jury duty effectively reduces the
representation of his peers on the jury panel. His application was
dismissed at trial: R. v. Laws (1994), 19 C.R.R. (2d) 269. Mr. Laws'
appeal is pending in this court and the Juries Act issue forms one
of the grounds of appeal. His intervener status in this case was
granted on the ground that while the "Scientology evidence is general
as to implications of citizenship, the Laws' evidence is specific to
the black population of Metro Toronto": R. v. Church of Scientology
of Toronto (1996), 92 O.A.C. 313. The Attorney General of Canada,
the respondent in the Laws appeal, intervened in this appeal to
support the constitutionality of the Juries Act.
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Mr. Laws submits that any requirement of citizenship has a
differential impact on black residents of Toronto in that a greater
proportion of black residents would be excluded from jury duty than
would the rest of the population. His position was supported with
evidence including the statistics that 34.1% of the black residents
of Toronto are non-citizens, while only 14.4% of the non-black
residents are non-citizens. The Attorney General of Canada argued
that the Juries Act meets the standard of representativeness required
by ss. 7.11(d) and 11(f) of the Charter. Both interveners argue that
the exclusion of non-citizens as it effects the _racial_
representation
on a jury was not raised in the Scientology case, and should be left
for the Laws appeal.
F. Analysis
To analyze the issues raised in this appeal and the Crown's
response,
it is critically important to focus on the source and nature of the
rights asserted. As I will explain below, it is my view that the
appellants seek to rely upon the s. 15 Charter rights of other persons
and cannot do so. In the context of this case, the validity, of the
jury selection process must be measured by the rights guaranteed to
accused persons under s. 11 of the Charter. However, because it is
central to the appellants' argument, I will deal first with the s. 15
claim. I will then consider the subordinate arguments based upon s. 7
of the Charter, the Criminal Code and the common law. Finally, I will
deal with s. 11 of the Charter.
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In my view, the appeal raises following issues:
Exclusion of Non-citizens
Section 15 of the Charter
1. Do the appellants as accused have standing to challenge the
validity of the Juries Act exclusions based on R. v. Big M Drug
Mart Ltd., [1985] 1 S.C.R. 295 or on any other basis?
2. Does the appellant Matz, as a non-citizen, have standing to
challenge the validity of the Juries Act exclusion of
non-citizens?
Section 7 of the Charter, the Common Law and the Criminal Code
3. Do the principles of fundamental justice as guaranteed by s. 7
of the Charter include a right to a jury selected without
discrimination?
4. Does the common law or the Criminal Code give the appellants a
right to a jury selected without discrimination?
Section 11 of the Charter
5. Do the Juries Act provisions infringe the appellants' right to
a representative jury pool as guaranteed by s. 11 of the Charter?
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Exclusions Based on Occupation and Marital Status
6. Are the exclusions based upon occupation or marital status in
s. 3 of the Juries Act invalid?
Section 15 of the Charter
1. Standing to Make a s. 15 Challenge
Unless the appellants had standing to challenge these provisions,
the trial judge was bound to give effect to them, as are we. The
jurisdiction of the trial judge and of this court to deal with the
appellants' equality claim under s. 15 and provide an appropriate
remedy lies either in s. 24 of the Charter or s. 52 of the
Constitution
Act, 1982. Section 24 gives a remedy only to a person whose rights
have been infringed. See R. v. Belnavis (1996), 107 C.C.C. (3d) 195
at 207 (Ont. C.A.). Section 24 does not give these accused a remedy
based on an alleged infringement of the equality rights of
non-citizens
who may have been excluded from the jury pool.
Section 52 is broader and gives a court the right to hold
legislation
to be of no force and effect where that legislation infringes the
Charter even if the accused's own rights or freedoms have not been
infringed. Still, litigants do not have unlimited resort to s. 52 and
the courts have refused to deal with the validity of a statutory
provision where the party
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seeking to challenge the legislation does not have standing. Most
recently, see Ontario Home Builders' Association v. York Region Board
of Education (1996), 137 D.L.R. (4th) 449 at 471-72 (S.C.C.) per
Iacobucci J. Also see Benner v. Canada (Secretary of State), a
judgment of the Supreme Court of Canada, released February 27, 1997,
where Iacobucci J. held, at para. 78, that a party "cannot generally
rely upon the violation of a third party's Charter rights".
The appellants' principal claim to s. 15 standing to raise the
validity of the Juries Act provisions is based on the doctrine from
Big M Drug Mart. In that case, Big M Drug Mart Ltd. was charged
with violating the Lord's Day Act, R.S.C. 1970, c.L-13 by selling
products from one of its retail stores on Sunday. It sought to defend
the charge on the basis that the Act violated the guarantee to freedom
of religion under s. 2(a) of the Charter. The Crown argued that the
accused had no standing to challenge the validity of the law since,
as a corporation, it could have no religion. Dickson C.J.C. rejected
that argument and explained at p. 313 the basis upon which the accused
corporation could challenge the legislation:
_Any accused, whether corporate or individual, may defend a
criminal charge by arguing that the law under which the charge
is brought is constitutionally invalid._ Big M is urging that
the law under which it has been charged is inconsistent with
s. 2(a) of the Charter and by reason of s. 52 of the Constitution
Act, 1982, it is of no force or effect.
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The argument that the respondent, by reason of being a
corporation, is incapable of holding religious belief and
therefore incapable of claiming rights under s. 2(a) of the
Charter, confuses the nature of this appeal. A law which
itself infringes religious freedom is, by that reason alone,
inconsistent with s. 2(a) of the Charter and it matters not
whether the accused is a Christian, Jew, Muslim, Hindu,
Buddhist, atheist, agnostic or whether an individual or a
corporation. _It is the nature of the law, not the status of
the accused, that is in issue._ [Emphasis added]
The doctrine in Big M Drug Mart gives an accused the right to defend
a criminal charge by arguing that the _law under which the accused is
charged_ is unconstitutional. That is not the defence raised here.
In my view, Big M Drug Mart does not stand for the proposition that
an accused may assert the personal rights of other actors in the
proceedings, except where the possible infringement of those rights
affects the accused's rights. In this case, the appellants must show
that the manner in which the jury panel was selected infringed
their rights as accused persons. Their rights as accused flow
primarily from s. 11(d) and (f) as persons "charged with an offence",
and I will deal with those rights below.
The courts have given the Big M Drug Mart doctrine a generous
interpretation, permitting accused to challenge the law under which
they are charged provided that some accused's rights would be
infringed by prosecution for that offence. In R. v. Morgentaler,
[1988] 1 S.C.R 30, the accused physicians were entitled to challenge
the constitutionality of former s. 251 (the abortion provision) of
the Criminal Code, on the basis that the section
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under which they were charged limited women's rights under s. 7.
However, as I read the various judgments in the Supreme Court, it
was the possibility of criminal prosecution of women seeking an
abortion under s. 251 that was the foundation for the s. 7 argument.
For example, Dickson C.J.C. (Lamer J. concurring) expressed the
violation of s. 7 in the following terms at pp. 56-7:
Section 251 clearly interferes with a woman's bodily integrity
in both a physical and emotional sense. Forcing a woman, _by
threat of criminal sanction_, to carry a foetus to term unless
she meets certain criteria unrelated to her own priorities and
aspirations, is a profound interference with a woman's body and
thus a violation of security of the person. [Emphasis added.]
The reasons of Beetz J. (Estey J. concurring) and Wilson J. are to a
similar effect, at pp. 81 and 161 respectively.
In my view, the result in Morgentaler does not support the
appellants' claim to standing, nor does R. v. Wholesale Travel Group
Inc., [1991] 3 S.C.R 154 or R. v. M. (C.) (1995), 98 C.C.C. (3d) 481
(Ont. C.A.). The common thread in all these cases is that because of
their status as accused, the accused persons have been accorded
standing to challenge the provisions under which they were charged,
provided that the rights of some potential accused would be infringed.
We were referred to no case that gave an accused standing to assert
s. 15 rights of some other persons in the justice system.2
-----
2 Although not relied upon by the appellants, I have considered
whether R. v. S. (RJ) (1995), 96 C.C.C. (3d) 1 (S.C.C.) could
support the position of the appellants. The
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Further, I see no policy basis to extend Big M Drug Mart to permit
the appellants to assert the s. 15 rights of potential jurors. The
Supreme Court of Canada has repeatedly affirmed the personal nature
of s. 15 rights. In Andrews v. Law Society of British Columbia at p.
163, McIntyre J. pointed out that s. 15(1) was not a general guarantee
of equality; "it does not provide for equality between individuals
or groups within society in a general or abstract sense". In R. v.
Swain, [1991] 1 S.C.R. 933 at p. 992, Lamer C.J.C. also noted the
personal nature of s. 15 rights. He pointed out that the inquiry will
"focus largely on whether the law has drawn a distinction
(intentionally
or otherwise) between the _claimant_ and others based on personal
characteristics". Based on this interpretation of s. 15, I can see no
basis to grant standing to the appellants to argue the equality rights
of a highly diverse group of
-----
accused R.J.S. was charged with break, enter and theft. The
principal
Crown witness was to be his alleged accomplice J.P.M. At the opening
of the trial J.P.M., who was separately charged with the same
offence,
brought a motion to quash the subpoena on the basis that it
infringed
his Charter right to remain silent. This motion was successful and
the accused was acquitted. A Crown appeal to this court was allowed.
On further appeal to the Supreme Court, the Crown raised a standing
issue. Iacobucci J. writing for the majority of the Court held that
it was necessary to distinguish two different cases. In the first
case, the privilege claim of the witness has been improperly
rejected. It may be that no party would have a right to appeal the
verdict on that basis. Iacobucci J. left that issue open. However,
where the claim has been improperly allowed, it was open to the
Crown to appeal on the basis that the evidence was improperly
rejected and it was open to the accused to respond by arguing in
support of a privilege that was affirmed. The accused's further
appeal to the Supreme Court was but an extension of that response.
That is not the case here. The appellants' own equality rights
are not at stake and they cannot acquire standing to make the
initial application by attempting to rely upon the standing that
some potential juror might have had to start the process.
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which they cannot personally be members, namely non-citizen potential
jurors. The Big M Drug Mart doctrine does not afford the appellants
standing to argue that the equality rights of potential jurors have
been infringed.
Similar principles apply where an accused seeks to challenge the
procedural provisions under which he or she is tried. Thus, in R. v.
Bain, [1992] 1 S.C.R. 91, the accused was able to challenge the
validity of the stand aside provisions (former s. 634) of the Criminal
Code, even though there was no evidence that the process had been
abused in his case. In fact, the trial judge made his ruling before
any jurors had been selected. The accused was, however, asserting a
personal right under s. 11(d) of the Charter to be tried by an
impartial
tribunal. He was claiming that by reason of the stand aside
provisions,
the selection process operated unfairly towards him and in favour of
the Crown. This is confirmed by the judgment of Cory J., for the
majority, at p. 103:
The section is so heavily weighed in favour of the Crown that
viewed objectively it must give that legal fictional paragon,
the reasonable person, fully apprised of the manner in which a
jury may be selected, an apprehension of bias. This must be so
since the jury, _as a result of the selection process, would
appear to be favourable to the Crown._ [Emphasis added.]
The rights asserted by the appellants in this case under s. 15 are
entirely different. It is a claim, not that the jury roll by reason
of exclusion of non-citizens deprived them of a trial by
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an impartial tribunal, but that non-citizens were deprived of _their_
rights to participate on a jury. As in Bain, the appellants' rights
are located in s. 11, sot s. 15.
2. Section 15 Rights of the Appellant Matz
The corporate appellant concedes that it has no direct claim to
rights under s. 15 of the Charter. The appellant Matz, however,
attempts to assert a direct s. 15 violation based on her own status
as a non-citizen. To the extent that this is merely a recasting of
the argument based on Big M Drug Mart, it must fail. Matz has no
right as an accused to assert a claim for the equality rights of
potential jurors.
In the event I am wrong about Matz's lack of standing to argue
s. 15, in my view, Matz's equality rights as a non-citizen have not
been infringed. As I understand it, Matz also asserts a s. 15
violation on the theory that, as a member of a discrete and insular
minority, the disqualification of persons like her from jury service
violates her own right to be treated without discrimination as
mandated by s. 15. I accept, of course, that the Supreme Court in
Andrews has held that non-citizens who are permanent residents of
Canada fall into an analogous category to those enumerated in s. 15.
That, however, is not the end of the inquiry. Section 15(1) provides
as follows:
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Every individual is _equal before and under the law and has the
right to the equal protection and equal benefit of the law_ without
discrimination and, in particular, without discrimination based
on race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability. [Emphasis added.]
In Eaton v. Brant County Board of Education (1996), 142 D.L.R.
(4th) 385, Sopinka J., speaking for the court on this issue, pointed
out that while there was a division within the court in Miron v.
Trudel [1995] 2 S.C.R. 418 and Egan v. Canada, [1995] 2 S.C.R. 513
as to some of the principles relating to the application of s. 15 of
the Charter, there was common ground on some points. In particular,
he noted at para. 62 that there is general agreement that "before a
violation of s. 15 can be found, _the claimant_ must establish that
the impugned provision creates a distinction on a prohibited or
analogous ground which withholds an advantage or benefit from, or
imposes a disadvantage or burden on, _the claimant_." [Emphasis
added.] The appellant Matz, the claimant, cannot meet that threshold
requirement.
Matz was in no way subjected to disadvantageous treatment by reason
of any distinction on the analogous ground of her immigration status.
She received equal benefit and equal protection of the law without
discrimination due to ha immigration status. The impugned provisions
of the Juries Act did not withhold any advantage or benefit from, nor
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impose a disadvantage or burden on her.3 She was not, and could not,
be summoned as a potential juror in her own case and s. 15 rights of
hers were violated by the provisions.
Matz makes a related claim that by reason of the Juries Act
exclusions she was denied the benefit of the views and experiences
of other non-citizens. This, however, is a claim based on lack of
representativeness of the array. It is a claim she can make as an
accused and her right, if any, to this degree of representativeness
is located not in s. 15 but in s. 11 as a person "charged with an
offence". I deal with that claim below.
3. Section 7 of the Charter
The appellants also seek to rely on s. 7 of the Charter which
guarantees everyone the right to life, liberty and the security of
the person, and the right not to be deprived thereof except in
accordance with the principles of fundamental justice. Even though,
according to
-----
3 It is unnecessary to decide whether the intervener Laws has
made out that kind of impact. That issue should be left to the court
hearing his appeal. Both Laws and the federal Crown, the respondent
in the Laws appeal, urged us to avoid deciding that issue in this
appeal. The Attorney General of Canada submitted that "the issue
of race as a quality of representativeness, not raised by the
appellants in this appeal, should be left for the Court in the Laws
appeal." I agree. The issue is highly complex and the relationship
between ss. 11 and 15 in the context should be developed on the
basis of a proper record and by parties with standing to raise the
issue. See comments of C. Petersen, "Institutionalized Racism: The
Need for Reform of the Criminal Jury Selection Process" (1993),
38 McGill L.J. 147, especially at 163-65 the author looks at the
question of jury representativeness in the context of the s. 15
jurisprudence from the point of view of the victim and the potential
juror, as well as the accused.
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Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R 927, the
appellant corporation cannot invoke s. 7, the appellant Matz as a
person whose liberty interests are at stake clearly can rely on the
fundamental justice guarantee in s. 7. However, the fundamental
justice
guarantee in s. 7 adds nothing to her claim. In the context of this
case, s. 7 does not offer greater protection than the specific
guarantee
under s. 11(d) and (f). See R. v. Genereux, [1992] 1 S.C.R. 259 at 310
per Lamer C.J.C. The potential impairment of the appellant Matz's
liberty interest arises from her status as an accused, not by reason
of her immigration status. Her right to fundamental justice must be
seen within that context.
The claim based on s. 7 of the Charter is an attempt, indirectly,
to acquire standing to argue the equality rights of potential jurors.
The appellant Matz attempts to avoid the standing requirements in
s. 15 by arguing that an accused has a right under s. 7 as a matter
of fundamental justice to a properly constituted jury. She defines
a properly constituted jury as one selected in a manner that does
not violate any of the provisions of the Charter, in particular s. 15.
The appellant was entitled to a properly constituted jury, but as the
Juries Act and the Criminal Code stood at the time, this panel was
selected according to law and the jury was properly constituted.
If the appellant had no standing to challenge these provisions on
the basis of s. 15, the trial court and this court were bound to give
them effect
-75-
Matz also seeks to rely upon this court's decision in Philippines
(Republic) v. Pacificador (1993), 16 C.R.R. (2d) 299. In that case,
the appellant, who was subject to proceedings under the Extradition
Act, R.S.C. 1985, c. E-21, argued that his rights under s. 7 of the
Charter were violated. Had he been subject to surrender under the
Fugitive Offenders Act, R.S.C. 1985, c.F-32, the demanding state
would have had to meet a higher standard of proof. The appellant
could not gain direct access to s. 15 of the Charter because there was
no basis for arguing that the different tests in the two Acts were
discriminators within the meaning of s. 15 as explained in cases
such as Andrews.
The appellant in Pacificador argued, however, that it is a principle
of fundamental justice that all persons must be treated equally before
the law, except to the extent that distinctions in their treatment
can be justified by some reasonable or rational legislative policy.
Doherty J.A. accepted that the equality rights created by s. 15 are
principles of fundamental justice, but held at p. 13 that this did
not "alter the required analysis or yield a different concept of
equality." Since the different tests for committal under the two Acts
do not result in discriminatory treatment within the meaning of s. 15,
"the appellant's argument that _his_ equality rights as enshrined in
s. 7 of the Charter are infringed must fail." [Emphasis added.]
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Pacificador is of no assistance to the appellant in this case. Even
if s. 7 of the Charter incorporates the equality rights under s. 15,
it
only incorporates the equality rights of the person whose liberty
is at stake. It is that person who is entitled to proceedings in
accordance with the principles of fundamental justice. The liberty
of non-citizens who may be affected by the alleged discriminatory
nature of the Juries Act was not at stake in this prosecution.
4. The Right under the Common Law and the Criminal Code to a Properly
Constituted Jury
The appellants argue that at common law and under the Criminal Code,
they are entitled to trial by a properly constituted jury. I doubt
that reference to the common law adds anything to this argument since
the detailed provisions of the Criminal Code and the provisions of
the Juries Act have probably largely supplanted the common law
respecting jury selection. What has been said above in relation to
s. 7 of the Charter applies with equal force to the argument based
upon the common law and the Criminal Code, and only a few additional
comments are necessary.
The appellants place particular reliance upon the decision of this
court in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.). In that
case, the trial judge did not comply with the statutory requirements
for selecting the jury. After the jury panel had been
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exhausted, rather than proceed under former s. 571 of the Criminal
Code by ordering a tales, the trial judge purported to increase the
size of the original panel. In the result, those potential jurors
who had been stood aside by the prosecutor under former s. 563 were
never recalled. The accused's appeal from conviction was allowed
and a new trial ordered. The following passage at p. 37 summarizes
the reasons of the court and is relied upon by the appellants here:
[The trial judge's] duty is to follow the statute. He must not
enter upon a course of action that prevents resorting to the
"stand-asides" when that result is called for under the Code.
_He must follow the (constitutionally valid) statute._
....
In the result, because _the process actually adopted by the
trial judge was not authorized by law,_ and deprived the
appellants of a statutory right conferred on them by s. 571 of
the Criminal Code, the appellants were deprived of a trial by
a jury lawfully constituted. This error in itself requires a
new trial. [Emphasis added.]
The appellants take a broad view of the emphasized portions and
argue that the process followed in this case to summon the jury panel
was not authorized by law since that process discriminated against
non-citizens and others. Put shortly, they argue that although the
trial judge was bound to follow a constitutionally valid statute,
equally he was bound not to follow a constitutionally infirm statute.
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While this proposition is probably true in the abstract, it does
not apply to this case. The impugned legislation was validity enacted
and until set aside by a competent court, the sheriff and the other
officials charged with the responsibility of summoning the jury panel
were bound to follow the legislative scheme. Where, as here, the
procedure mandated by the legislation is followed, the jury has been
lawfully constituted. The appellants' lack of standing to make the
equality arguments prevents them from arguing that the statutes are
constitutionally infirm on that basis.
5. Section 11 of the Charter
The appellants concede that they are not entitled to a petit jury
that is "representative". They argue, however, that the selection
process cannot be structured so as to ensure that the jury will not
be representative. The appellants do not distinguish, in terms of
representativeness, between the selection of the jury roll, which
consists of a pool of some 22,000 persons who may be summoned for
jury duty during the year, and the selection of the jury panel of
one to two hundred people summoned for jury duty that week and from
which the appellants' petit jury was selected. Since the exclusion of
non-citizens and others operates at the level of the jury roll, I will
assume that the appellants claim a right to a representative roll.
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The appellants argue that the deliberate exclusion of certain
groups,
especially non-citizens, results in an unrepresentative roll. Thus,
selection of the panel in the manner mandated by the Juries Act
ensures that the petit jury will not be representative. The appellants
submit that the right to a representative pool is implied by the
guarantees in s. 11(d) and (f) of the Charter. Those provisions are
as follows:
11. Any person charged with an offence has the right
....
(d) to be presumed innocent until proven guilty according to law
in a fair and public hearing by an independent and impartial
tribunal;
....
(f) except in the case of an offence under military law tried before
a military tribunal, to the benefit of trial by jury where the
maximum punishment for the offence is imprisonment for five
years or a more severe punishment ....
The Crown submits that the corporate appellant has no standing to
rely upon s. 11 of the Charter. It is argued that the right asserted
depends upon s. 11(f) and a corporation has no right to trial by jury.
See P.P.G. Industries (Canada) v. Canada (Attorney General) (1983). 3
C.C.C. (3d) 97 (B.C.C.A.). It is unnecessary to resolve this difficult
question since the appellant Matz is charged with offences carrying
a maximum punishment of five years, and thus clearly had the right
to a jury under s. 11(f). Moreover, I am not convinced that the right
to a representative jury roll is wholly subsumed within s. 11(f). The
right to a representative jury roll is also a means of ensuring
impartiality. Exclusion of identifiable
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groups from the jury panel on the basis, for example, of race or
religion casts doubt on the integrity of the process and risks the
creation of the appearance of bias, thereby possibly violating an
accused's right under s. 11(d) to trial by an independent and
impartial
tribunal.
No question of standing otherwise arises. In other words, the right
asserted by the appellants to a representative jury roll is a right
guaranteed to them by s. 11 as accused persons. The fact that the
appellant Matz happens to be a non-citizen is beside the point. She
could raise the question of representativeness even if she were a
citizen. Equally, her right to a representative jury roll is not a
right to a roll that shares any distinctive characteristics that she
may possess. It is the quality of representativeness in the jury roll
that is at stake, not the particular make-up of any of the panels
randomly selected from that roll.
In R. v. Sherratt, [1991] 1 S.C.R. 509, L'Heureux-Dube J. discussed
the important rode of the jury in criminal litigation. She pointed out
that by reason of its collective decision-making, the jury is an
excellent fact finder. In a passage of particular interest in this
case at p. 523, she held that the jury "due to its representative
character" acts as the conscience of the community. The jury can act
"as the final bulwark against oppressive laws or their enforcement;
it provides a means whereby the public increases its
-81-
knowledge the of the criminal justice system and it increases,
through the involvement of the public, societal trust in the system
as a whole."
The justification for the representative nature of the jury is not
simply to assure that the case is tried by an impartial tribunal. The
representative character of the jury also furthers important societal
or community interests by instilling confidence in the criminal
justice
system and acting as a check against oppression. The accused and the
community have an interest in maintaining the representative character
of the jury system. In Sherratt, L'Heureux-Dube J. made several other
comments concerning the nature of the representative character of the
jury. Thus, she stated at p. 524 that the modern jury was not meant
to be a tool of either the Crown or the defence but rather "was
envisioned as a representative cross-section of society, honestly
and fairly chosen".
In Sherratt, L'Heureux-Dube J. found that the selection of a jury
in a criminal case engages two related Charter rights. First, the
guarantee in s. 11(f) to the benefit of trial by jury implies that
the jury will be impartial and representative. Second, s. 11(d) of
the Charter explicitly guarantees the accused the right to be
tried by an impartial tribunal. The selection of the jury panel
in accordance with provincial legislation, incorporated through
s. 626 of the Criminal Code, is the primary vehicle for ensuring
representativeness. The in-
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court procedure set out in Part XX of the Criminal Code is the
mechanism for ensuring that the petit jury is impartial. This case
involves only the question of representativeness. The appellants do
not attack the impartiality of this petit jury, which was selected
following a challenge for cause of each juror in accordance with
the Criminal Code.
The content of the right to a representative jury as that right
may be guaranteed by s. 11 is a matter of first impression in this
court. The respondent submits, however, that the issue has been
determined by the Supreme Court in Sherratt. The respondent relies
upon the following passages from the reasons of L'Heureux-Dube J.
at pp. 524-26:
Increasingly, however, ever, many countries have since repealed
property, sex and race qualifications for jurors and have
legislated other expansions in the number of *citizens eligible
for jury duty* ... These later developments only serve to
underscore the previously articulated rationales for the
existence of the jury.
....
The perceived importance of the jury, and the Charter right to
jury trial is meaningless without some guarantee that it will
perform its duties impartially *and represent, as far as is
possible and appropriate in the circumstances, the larger
community*. Indeed, without the two characteristics of
impartiality and representativeness, a jury would be unable to
perform properly many of the functions that make its existence
desirable in the first place. Provincial legislation guarantees
representativeness at least in the initial array. *The random
selection process, coupled with the sources from which the
selection is made, ensures the representativeness of Canadian
criminal juries: see the provincial Jury Acts. Thus, little
if any objection can be made*
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*regarding this crucial characteristic of juries. Schulman
and Meyers, ["Jury Selection", in Studies on the Jury, Law
Reform Commission of Canada (1979)] make this clear at p.408*
of they discussion:
Jury qualification *requirements in Canadian provinces
are considerably different than those in the United States
or England. The American Bar Association Standards for trial*
by jury, as recommended by the Advisory Committee on the
Criminal Trial, say that - "The names of those persons who
may be called for jury service should be selected at random
from sources which will furnish a representative cross-section
of the community." _Canadian laws by and large have long met
the standard_. [Underlining in original. Bold added.]
The respondent points out that L'Heureux-Dube J. referred in these
passages to "citizens" eligible for jury duty and stated that the
random selection process coupled with the sources from which the
selection is made as provided in the provincial Jury Acts "ensures"
the representativeness of Canadian criminal juries. The appellants
submit, however, that the approv