Don't Pre-Judge! Jury Vetting and the Supreme Court of Canada

Next Wednesday and Thursday, the Supreme Court of Canada will be hearing the appeals of Tung Chi Duong, Vinicio Cardoso, and Ibrahim Yumnu, which raise the issue of jury vetting: a process where the prosecution does a pre-court check of potential jurors. The three Ontario co-accused were convicted of first-degree murder and conspiracy to commit murder involving a contract killing. The Crown’s office, upon receipt of the jury panel lists containing the names of potential jurors, requested police enforcement authorities to do criminal record checks of the listed individuals and to make any comments “concerning any disreputable persons we would not want as a juror.” The Crown did not disclose the information received through this pre-vetting process to the defence, although there was some evidence trial counsel was aware of this practice. The information was used by the trial Crown in selecting the jury for the trial.

In terms of the legislative authority to perform such a check, neither the Criminal Code rules relating to the jury selection process in court nor the pre-trial rules found in the provincial Juries Act, as enacted at the time of the trial, permitted the procedure. It should be noted that the Ontario Juries Act has since been amended, under s.18.2, to provide a procedure for police to pre-check a potential juror for the presence or absence of a criminal record. Such a check is required under s. 4(b) to determine if a potential juror is ineligible to serve as a juror due to a prior conviction for “an offence that may be prosecuted on indictment.” The phrase “may be prosecuted on indictment” refers to the mode of trying the accused’s case in the criminal courts.  An indictable offence is considered to be a more serious crime and carries a higher penalty than a less serious summary conviction offence. Certain indictable offences give the accused the right to have the trial in the Superior Court as opposed to Provincial Court. Some indictable offences, such as murder, also give the accused the right to a jury trial.

Generally, pre-vetting of jurors is not an acceptable practice in Canada. Such a pre-trial process is contrary to the fundamental principles of justice, which require the offender to be tried before an independent and impartial jury. Since the advent of the Charter, this fundamental principle has been constitutionally protected under s. 11 (d) and is inexorably bound up with another core criminal law principle: the presumption of innocence. I have written at length on the historical significance of the presumption in earlier postings. More generally, this procedural right to a fair trial is also protected under section 7 of the Charter as the principle lies at the very heart of the administration of justice.

The issue is one of impartiality under the Charter. Section 11(d) protects an offender’s right to a fair trial before an independent and impartial jury. Permitting pre-vetting of jurors has the potential effect of selecting biased juries, which are neither independent nor impartial, but based on selected criterion. The resultant effect is a pre-packaged or pre-determined jury, which would therefore favour the party using the pre-selection process. In other words such a jury would “pre-judge” the issues.

Even the potential for bias is contrary to our concept of trial fairness. As discussed by Justice Cory in the Bain case, apprehension of jury bias is to be avoided as the mere appearance of impartiality would be contrary to Charter principles. Although the concept holds the administration of justice to a high standard of impartiality, the apprehension of bias must be reasonably held. Thus, the question to be determined on the issue of bias is as follows: would reasonable and right-minded persons find there a reasonable apprehension of bias in the circumstances.

This question brings us back to the Duong, Cardoso, and Yumnu case. On appeal to the Court of Appeal for Ontario, appellate counsel did not refer to the arguments as outlined above but focused instead upon the Crown’s lack of disclosure of the vetting process. In the appellant’s view, this lack or delay of disclosure compromised the defence’s ability to make full answer and defence under s. 7 of the Charter. This position was easily dismissed by Justice Watt, speaking on behalf of the Court, as there was no evidence of any actual or perceived unfairness of the selection of the jury based on this non-disclosure. Unfortunately it appears the defence will be making the same arguments before the Supreme Court of Canada as revealed by a perusal of the appellant Yumnu’s factum.

However, a large number of Intervenors have filed material and will be making submissions on the issue such as the Criminal Lawyers’ Association, the Ontario Crown Attorneys’ Association, David Asper Centre for Constitutional Rights, Information and Privacy Commissioner of Ontario, Canadian Civil Liberties Association, and the British Columbia Civil Liberties Association. It remains to be seen what arguments will be finally presented on this issue and it will be of great interest to see how the Supreme Court of Canada ultimately deals with the issue of pre-vetting a jury.

In the next posting, I will continue the discussion through the international perspective on the efficacy and issues surrounding jury vetting.

Reading The Riot Act

Riots or violent disturbances of the peace are part of the human psyche. As early as 44 B.C., when the Roman mobs attacked the houses of Brutus and Cassius in an angry response to the untimely death of Julius Caesar on the Ides of March, the world has since experienced riots in every era. Riots occur for a multitude of reasons: from student protest as in the 1229 University of Paris students’ strike to revolution as in the Boston Tea Party of 1773 and from the various race riots in the United States throughout the 1900’s to the obscure reason of advant-garde music, when in 1913 the audience in the Paris Théâtre des Champs-Élysées listening to the debut of Stravinsky’s Rite of Spring ballet broke out in a violent booing frenzy. There have been riots over various alcoholic beverages as in the London Gin Riots of 1743 or the Beer Riots in Bavaria in 1844 or then only ten years later, the Portland Rum Riot. Sadly, I missed the Champagne Riot in 1911 France. However, increasingly, riots are not about protest but about a lack of sportsmanship or too much sportsmanship as in the case of the recent hockey related riots in Canada.

The Stanley Cup Riots, and I use the plural as there has been more than one (two in Vancouver, five in Montreal, one in Edmonton during playoffs), have been particularly egregious, costing the municipalities millions of dollars in damaged property and even millions more in prosecuting and punishing the participants. The Nika Riot of AD 532 might have been the first sports related riot, happening in the Hippodrome at Constantinople, then the centre of the remaining Roman Empire in the East. The two factions, Blue and Green, were supporting their chosen chariot race teams when both sides demanded the city release Blue and Green prisoners, who had been arrested, earlier, for disturbing the peace. In a moment, this sporting event became political and over the next few days a not unfamiliar scene played out as the Emperor Justinian first apologized and, when the mob was still not pacified, then slaughtered thirty thousand Blue and Greens in the Hippodrome. Ironically, it was Justinian who codified all Imperial laws into the Codex. See my previous posting on the codification of our criminal laws into the Criminal Code.

Although we no longer “read the riot act,” as they no doubt did in 18^th Century England when the Riot Act was first enacted, our criminal law does prohibit “unlawful assemblies and riots” under the Criminal Code. The 1715 Riot Act gave a Justice of the Peace or another person so authorized to disperse “groups of twelve people or more being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the publick peace” upon proclaiming:

Our sovereign Lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God save the King.

If the crowd did not disperse within an hour of this proclamation, the authorities had the right to “seize and apprehend” the rabble-rousers who would be subject to the death penalty.

Although the Riot Act was finally repealed in 1973, the Canadian offences of unlawful assembly and riot, under sections 63 and 64 of the Criminal Code respectively, are a distant reminder of the original crime. Instead of twelve people “unlawfully, riotously, and tumultuously” assembled, the Canadian counterpart, unlawful assembly under s. 63, requires three or more persons “with intent to carry out any common purpose” who:

cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Similarly, section 64, defines the offence of riot as an unlawful assembly, presumably as per s.63, “that has begun to disturb the peace tumultuously.” Therefore, an unlawful assembly is about to become a riot, although not quite there, while a riot is exactly that: a full-blown tumultuous affair.

The defining term for these offences, in both the Criminal Code offence and the 1715 original crime, is the word “tumultuously.” To understand the meaning of this word, which is not defined in the Criminal Code, case law is needed. In the Berntt case, arising from the first Vancouver Stanley Cup Riot in 1994, at issue was the clarity of the meaning of the word “tumultuously” as found in s.64.

Defence argued the term was vague and therefore did not provide a clear understanding of the essential requirements of the crime. Without such clarity, defence argued, the accused’s ability to make full answer and defence was compromised. To try an individual on the basis of a vague law and, therefore, to potentially deprive the individual of his or her liberty if convicted would be contrary to the principles of fundamental justice under s.7 of the Charter.

The British Columbia Court of Appeal, in deciding the issue, referred to the 1992 Supreme Court of Canada decision in R. v. Nova Scotia Pharmaceutical Society and Justice Gonthier’s comments on the importance of limits, provided by clear language, which delineate our laws and permit legal debate. However, language provides boundaries only and are mere guidelines as stated by Justice Gonthier in the following passage:

Semantic arguments, based on a perception of language as an unequivocal medium, are unrealistic.  Language is not the exact tool some may think it is.  It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance.  All it can do is enunciate some boundaries, which create an area of risk.  But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made.  Guidance, not direction, of conduct is a more realistic objective. 

With guidelines comes context and in the end, the court found the word “tumultuously” must be read in conjunction with the other words used in the offence such as “riot” and “unlawful assembly,” which connotes a violent disturbance as opposed to an uproarious, perhaps even jubilant, crowd. History also imbued the term with particular meaning as the crimes, through their very definition, related back to old England and the Riot Act.

Thus, as they say, what goes around comes around and what was once a crime is still a crime. Interestingly, the discussion of boundaries and limits is exactly what the crimes of unlawful assembly and riot are all about: it is the lack of boundaries and limits that marks the behaviour as crimes as opposed to a Canada Day event on Parliament Hill where the crowd gathers in celebration and bon ami.

Sadly, as a coda to this posting, Ryan Berntt, the accused in question, was shot in the head by a police officer’s rubber bullet during the riot and sustained brain damage. In the end, it is individuals, both in the crowd and out of the crowd, who suffer the most. It is the individuals, not the crowd, who stand charged or must face the inevitable morning-after clean up. Perhaps this sobering reality is worth remembering. 

The Criminal Code of Canada: Codification and Reform

Whenever we read of a sensational arrest in the paper or we follow the latest celebrity trial, we are invoking the criminal law. Most of us, lawyers and lay people included, know the criminal law is found generally in the Criminal Code (drug offences are also federally created but are found in the Controlled Drugs and Substances Act and not in the Criminal Code). Lawyers are taught in first year Constitutional Law why the criminal law is created by Parliament: due to the Division of Powers between Provincial Legislatures and Parliament as found in the Constitution Act, 1867, which gives the Federal government exclusive authority to create criminal law.  But many of us do not know why this power resulted in a codified criminal law as opposed to the hodge-podge of criminal statutes as found in the United Kingdom.

Although the first Criminal Code was not adopted until 1892, it was conceived much earlier by our first Prime Minister, John A. MacDonald, who envisioned a codified criminal law as an important element of Confederation. Codification seemed to be on the mother country’s mind as well in 1878 as a codification of British criminal law, Bill 178, written by Sir James Fitzjames Stephen, received Second Reading in the House of Commons but died on the order paper. So too, other Commonwealth nations, such as India, Jamaica, Australia, and New Zealand, flirted with, or in some cases enacted, codified criminal laws.

Even a subsequent Royal Commission could not resuscitate the UK version of the Code. Canada, not being near as critical of the draft English Code, imported many aspects of the draft into the first Criminal Code in 1892. The rest, as they say is history as the Code has maintained its status since, albeit with amendments and renumbering along the way.

Let’s trace the crime of theft as an example. Prior to the enactment of the Criminal Code in 1892, theft was defined through British statute and common law. Indeed, the first consolidation of crimes, which occurred in 1869, included the crime of larceny: the old common law offence of theft. Presently, theft is particularized in our Criminal Code under s.322 as follows:

Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent 

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or 

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Historically, there were numerous statutes in England, which pertained to specific forms of theft such as embezzlement, animal theft, shoplifting, pickpocketing, housebreaking, and the like. Presently in England, although a general definition of theft can be found in the Theft Act, 1968, one would have to also look at other statutes for the specific form of theft involved. For example, the basic definition of theft in the Theft Act, 1968 states:

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

However, one would have to look at the Theft (Amendment) Act, 1996 for the crime of “dishonestly retaining wrongful credit.” The Canadian equivalent, of course, is theft and can be easily found under s.322.

Over the years there have been calls to reform the Code to simplify many of the complex and convoluted sections but to no avail: today’s Criminal Code reads much the same as it has for the past fifty years. Much of the difficulty stems from the amendments to the Code, which adds onto existing sections an ever-increasing number of subsections instead of making new sections by re-numbering and re-structuring the Code. For more on this, read my previous blog on lists where I outline the 33 sections found between the search warrant section under s. 487 and the execution of the search warrant found at s.488.  

Clearly, there is still work to do. In 2012, when the Code celebrates its 120^th anniversary, the Federal government should take up the call to reform in order to provide Canadians with a cogent and relevant Criminal Code, which will promote the principles of justice and be a model for developing democracies.   

Why Is This Still A Crime? Crime Comics and the Criminal Code

Today, in my criminal law class, we discussed what is a “crime.” We defined “crime” as any form of human behaviour designated by lawmakers as criminal and subject to penal sanctions.” This definition of crime is both narrow and broad: broad as any form of behaviour can be considered a crime, yet narrow as it is only those behaviours so designated by the law makers, which are considered crimes.

Let’s look at that premise more closely. Any behaviour, so designated, can be a crime. For example, opium was legal until the turn of the century when the 1908 Opium Act was enacted. On the other hand, coffee is legally consumed in Canada but was historically subject to bans and restrictions in many countries such as Turkey and pre-Revolutionary France.

Furthermore, no matter how morally repugnant certain behaviour may be, the conduct is only criminal if so designated. In other words, it is not a crime unless our government says so. Clearly then, criminal law is fluid: it changes over time in accordance with  society’s fundamental values.

And yet, there are crimes still found in our Criminal Code, which do not resonate with today’s values and leave us to wonder why the behaviour is still designated as criminal. Section 163(1)(b), which makes it illegal for anyone to make, print, publish, distribute, or sell a “crime comic,” is a case in point.

A crime comic, as defined under s.163(7), is a “magazine, periodical, or book that exclusively or substantially comprises matter depicting pictorially” the commission of crimes, either real or fictitious, or any events leading to the commission of a real or fictitious crime. Thus a crime comic, deemed illegal under the Criminal Code, can easily be that super hero comic book purchased at the corner store or that cool graphic novel on Louis Riel.

Where did this crime come from? In this instance, we can blame the United States. In the 1940s a genre of comic books known as “crime comics” appeared. In truth, some of the comics were in “bad taste” depicting gory scenes of violence, however, the bulk of the comics were inevitably the triumph of good over evil. Either way, the books did not, as suggested by the Senate Subcommittee on Juvenile Delinquency, promote or contribute to the commission of crimes by juveniles.

In fact, despite the very public contention of American psychologist Dr. Fredric Wertham that the crime comic books were connected to the increase in juvenile crimes, there was no scientific basis for this position. Unfortunately, by the time the true facts were exposed, the issue had become so political the government was moved to regulate the comic book industry. In Canada, the result was even more significant as the Criminal Code was amended in 1949 to add crime comics as an offence “tending to corrupt morals.”

In the 1950s, the offence was tested by a group of comic book vendors in Manitoba. Mr. Roher, the chosen offender, was convicted of selling a crime comic, specifically “No. 62, April, Dick Tracy.” The cover of the comic book is particularly gruesome as it depicts Dick Tracy floating in the water, near death, while a once masked villain shoots at him. Definitely a crime is being committed but we all know, Dick Tracy, the crime fighter will prevail. He even says so in the corner of the cover as he studies his radio watch, which cries out: "calling all crime stoppers." This fact, however, was meaningless in the eyes of the law as Mr. Roher was convicted of selling this crime comic.

In upholding the conviction in 1953, Chief Justice McPherson describes, in detail, the “bloodthirsty” events illustrated in the comic. According to McPherson C. J., “the legislature wished to enact laws to protect the children of this country from the evil effects of being subjected to publications dealing with crime.”

The Chief Justice also considered the defence available under the section, which is still preserved in the present day offence, known as the defence of the “public good” whereby:

No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

In dismissing comics as serving the public good, the Chief Justice commented on the defence as follows:

The only defence under this section I have ever heard suggested is that by reading these publications the child acquires a desire to read. To me it is a strange basis upon which to start child education and, logically considered, could be quite easily adapted to other phases of training; for instance, by starting children on "home-brew" they might become connoisseurs of fine liquors and whisky and eventually experiment with a drink of milk!

Clearly, the Chief Justice was not a fan of the funnies! Or was he really just a man of his times, immersed in the hysteria of the moment and in tune with the public fear caused by the increase in juvenile crimes? This may explain why the conviction was upheld and why the crime found its way into the Criminal Code, but it does not explain why this crime is still part of our criminal law.

Perhaps we could imagine an inappropriate comic, aimed at children, which we would not want published and sold but do we need the criminal law to regulate that scenario? Furthermore, as the section now reads, appropriate material could be subject to the offence, despite the defence of public good, such as the graphic novel by Chester Brown on Louis Riel or the Fantastic Four.

So, why this is still a crime is a valid question to ask and a valid question to keep asking as society changes and our laws do not. By questioning and asking “why,” we are ensuring that our laws reflect who we are as a society and if they do not, then it is incumbent upon our law makers to provide an acceptable answer.