WEDNESDAY, OCTOBER 13th, 1999
--- Upon commencing at 9:45 a.m.
--- Accused present
--- In the absence of the jury
THE COURT: Yes, Ms. Mulligan.
MS. MULLIGAN: Good morning.
THE COURT: Good morning.
MS. MULLIGAN: I have provided some further caselaw, Your Honour. I won't argue it all now, obviously, because I think a lot of it deals with the standard to be applied. However, I would simply refer to Cameron, it's from the Ontario Court of Appeal, as being the law certainly in this province, and Madam Registrar has the caselaw there, and rely on Cameron that it may just be an appearance, in that case there was no actual prejudice found and no prejudice was necessary according to our Court of Appeal, just the appearance of justice that was really the issue and upon that basis they refused to apply the proviso, the 686 proviso, that there had been no miscarriage because the confidence of the public in the system of justice could be shaken by what had occurred. That was simply a case where a police officer who was related to the deceased in fact had dinner with the jury when they had been sequestered, he was part of the group guarding the jury. There was no improper conduct, no conversation about the case, no attempt to influence the jury in any way and no actual prejudice was
shown yet a new trial was ordered as a result of the trial judge's decision that he need not do anything in that case, that the jury could continue on.
With respect to what should be asked of juror number nine I would respectfully submit that I maintain my position from yesterday that we know what the facts are, I don't think they're in dispute, so any I don't think the juror should be closely questioned on the facts of what occurred. It is my position that the facts as stated are enough to discharge the juror and if there's any questioning it should be with respect to whether he has discussed with other jurors and, if so, what was discussed. I suspect my friends will be asking for a question as to whether Mr. Patterson still feels that he can be impartial. In my submission it's irrele- vant to the question of whether there is an appearance of partiality or an appearance perceived by us, so in my submission that question doesn't get us very far on the issue that I'm raising. It may in fact be that he feels he can still be impartial but that doesn't seem to be the test pursuant to our Court of Appeal. So my suggestion is that he only be questioned if he has discussed this with other jurors and, if so, what has been discussed.
THE COURT: Yes?
MR. MORRIS: I'll adopt Ms. Mulligan's submissions.
THE COURT: Thank you.
Yes?
MR. DANDYK: Yes, Your Honour.
Ms. Mulligan has also provided among the cases an extract from R.D.S. from the Supreme Court of Canada in relation to the case, I believe it was from the Maritimes, where it was the case involving an African-Canadian youth and findings by the judge in relation to police bias and so on and comments made therein, and then different -- actually sort of split all over is the judgments as to what the appropriate test is, so I understand we have at least an extract but I think we have an extract, it's hard to tell because numbers are missing off the page. I brought the text with the full position from the Canadian Criminal Cases. But what we know from bias in any case is, and we will recall it from the argument at the beginning of this trial, is that it's a reasonably or it's a properly informed reasonable person, and so if we use that analysis very clearly the question becomes we should know all of those things and, with respect, it is entirely appropriate then to ask if this juror feels they can in fact be impartial, that's the test, and surely the reasonable person looking at it would want to know that and what we would, with respect, have is an innocuous search for information and totally unrelated to the case unlike some of the cases we've seen, and surely that question is the
appropriate one because the one thing we have to realize is whatever opinions may exist, whatever the public may think it's informed by the realities and the realities are, and we know it, we acknowledge it in challenge for cause. We acknowledge that ---
THE COURT: Well I don't think you have to develop that point too much. It seems to me that in Cameron they didn't say that the questioning of the constables and the jurors was irrelevant, they simply said that notwithstanding their reassurances in the particular circumstances of that case they had to find, and so I don't know -- at least in the headnote it doesn't say ---
MR. DANDYK: Yes.
THE COURT: --- that the questioning was irrelevant, just that in the end it didn't -- in the exercise of the discretion at the end of the day it didn't overcome the other difficulties.
MR. DANDYK: Yes, and I think in actual fact, and I haven't had an chance to read Cameron this morning because these were handed to me when I was down in the county library and Ms. Mulligan just handed these two and I haven't had an opportunity to review them.
In any case the other aspect is it is well like Mercier, which I referred to yesterday, that if there's a blatant situation that visually gives a concern such as in Mercier it was the Crown going in and actually erasing material off the board in the juryroom that gives a concern, and
in Cameron of course it is communications during deliberation wherein they're having dinner together and, with respect, our facts are very different. So the Crown is of the view, and I suppose the preamble has to be, I mean we have to be fair to this juror because this juror obviously will not know and I think the explanation has to be given, the Court I would have to think would have to indicate to the juror that, you know, there is no suggestion by anyone as to impropriety, however, you know, given the nature of the respective roles Officer Lamarche cannot pursue this matter and will not pursue this matter, you know, and nothing should be drawn from that, and an issue now arises as to the communication with her and, you know, whatever has occurred and then simply lead to the question: despite that interaction does the juror or can the juror still remain impartial and base their opinion or base their ultimate conclusions only on the evidence heard in court, sort of the review of the test that exists in law. In that way, with respect, we get to the necessary information that an informed person would have to properly assess as to any appearance of unfairness.
The Court's indulgence.
If it wasn't clear, in the Crown's respectful submission, I suppose there should not per se be a question of why and so on, and I believe Ms. Mulligan gave the same viewpoint. I think
we know what the facts are and no one is attri- buting any blame or anything else, so it would simply be whether the person can still remain impartial and that, of course, goes back on people may have viewpoints, people may have assessed things and they're entitled to, I mean obviously the juror has sat through the trial, obviously the juror has certain assessments, and, with respect, if we ask any such questions of motivations we potentially open up information as to deliberations or thought processes and that's not the concern, nor should we be asking, they have a right to those themselves and those should be kept private. The issue becomes can the person remain impartial.
I think those are the submissions, Your Honour. Thank you.
Actually before I finish I've provided some additional materials as well. The additional materials provided by myself are The Criminal Pleadings and Practice in Canada Second Edition from Justice Ewaschuk and the portions would appear to be or the dates appear to be August of '99, May of '99 and December of '98, and in fact if I look at the portions in relation to the test they would appear to be December '98 as to the real danger test still being active and alive. So the one caution I guess I give is, and Cameron obviously is applicable, but the one caution I give is counsel yesterday, Ms. Mulligan, tried to suggest that we
look strictly at bias and so on and it can assist somewhat, but in relation to the discharge of a juror that is a specific test that arises and she suggested that the Supreme Court had overruled it and, with respect, I don't think that is the case.
THE COURT: What is this case now?
MR. DANDYK: This is Ewaschuk's text, it summarizes and refers to certain cases. In the midst of Ewaschuk what I have provided additionally is reference is given to Thorpe, and that's a U.K. ---
THE COURT: I consider this an important issue, what is the appropriate test, and you see one involves jurors and it comes up in that connection as you've just mentioned, it also comes in connection with accused, with judges in another context, in another way. I'm almost tempted to say or believe that you can almost fuse the languages between a real danger and a reasonable apprehension of bias and I'm saying this for the benefit of counsel for comment because obviously an unreal apprehension of bias would never be a basis on which to get rid of anybody, and a real danger is obviously not an unreal danger. So the language strikes me as very very close between the two tests even if they're applied in different situations, and then I think what you do is you look at the facts and then if there's any magic in the language you would apply it but I don't see any particular magic in the language.
MR. DANDYK: Your Honour, actually that's exactly the position the Crown has come to, so that the Court summarized it.
THE COURT: All right.
MR. DANDYK: I don't think I need to repeat further.
I provided an additional case, Thorpe from the U.K. where there was such communication and the juror reported it, and then there was indication of assurances of no influence on deliberations, so they go into the impartiality aspect. That's a case from -- I guess it's 96 Reports but a '95 case from the U.K. Court of Appeal. And the other case I've provided is Jolivet from April 14th '98 from 125 C.C.C. (3d) at 210, and it's the Quebec Court of Appeal again restating the test. I do notice of course they do distinguish - and I haven't had a chance, I just had this copied, I haven't even had a chance to review it - they distinguish Cameron and then refer to Hanna and in fact apply Taillefer. Now I think -- and I haven't seen why they distinguish Cameron but with the Court's assessment and with looking at Hanna they speak of real possibility, real danger or reasonable apprehension. I think the Court's assessment is correct, you look at it realistically, it has to be reasonable and that was the type of submissions I was making before. You necessarily need as a result an informed member of the public when you focus on that issue of appearance and I believe at the end of the day
yesterday Ms. Bair was going in the same direc- tion, so I think in actual fact the viewpoint is as the Court has indicated and the Crown is of that view.
THE COURT: All right.
Yes?
MS. MULLIGAN: I agree with Your Honour that the words don't really matter, so does the Supreme Court of Canada, and that's what I was trying to indicate yesterday. In R.D.S. at page 390 the Supreme Court says almost precisely what Your Honour said, although obviously not as articulately.
THE COURT: That's a given.
MS. MULLIGAN: It does say that it doesn't matter what the language is, whether it's a real likelihood or a real suspicion or bias is probable. It relies on Justice de Grandpré in Committee for Justice, we all remember that case, ---
THE COURT: Yes.
MS. MULLIGAN: --- and that test has been applied over the ages in Canada and that's the test, but I think Your Honour has said it effectively that there's not one term that applies, whether it be real danger, real likelihood, reasonable apprehension, it all fuses into whether the objective person who must be reasonable views it with informed, you know, informed and knowledgeable about the situation and whether the apprehension is as well reason-
able so it's a twofold test and I think Your Honour has it correctly.
THE COURT: So it does seem like the Crown and defence agree that I shouldn't ask questions which might elicit some responses dealing with motivations like 'What prompted you to go to her?' and all that sort of thing, and both sides seem to agree on that, that I should presumably, if I follow exactly the submissions given by both counsel, the only thing I should ask if I agree with the Crown, for example, is simply that 'Do you think you can well and truly try the case now in the light of this request?'
MS. BAIR: I would think that there could also be questions as to what actually happened just to make sure that the versions coincide, that we are dealing with the precise facts that we think we're dealing with. From his perspective I think that would matter.
THE COURT: I see.
Anything further?
MS. MULLIGAN: Well my position of course is that there should be a further inquiry as to whether he's discussed Detective Lamarche
THE COURT: With the other jurors, yes, yes, and if that might have in his -- well at least on what people said affect their view of the case. I see. All right.
(Addressing the court constable): Perhaps you might go and get Mr. Patterson, please.
I might indicate for the sake of the record that this morning I had Mr. Kilrea intercept the juror before he got to the juryroom and take him somewhere else so there's no possibility at least of contamination this morning.
MR. DANDYK: I do notice, before the juror arrives, Your Honour, Cameron and Jolivet seems to distinguish it on the facts but agrees on the principles at pages -- it looks like page 233 and 234, so they don't disagree on principle actually.
THE COURT: All right.
This is an in camera matter now. I think someone is in the courtroom and ---
MS. MULLIGAN: He's a student that works for me, Your Honour, but I will have him wait outside.
THE COURT: All right. Thank you.
MS. MULLIGAN: Detective Ralko was just inquiring if it matters if they're in the courtroom.
THE COURT: No, I think they're staff.
JUROR NO. 9: Good morning.
THE COURT: Good morning, Mr. Patterson, please come in and sit down.
JUROR NO. 9: I'm getting nervous.
THE COURT: I understand, and I'm going to set you totally at ease. You notice that there's no public here ---
JUROR NO. 9: Yeah.
THE COURT: --- at all in the courtroom and that's because this is an in camera matter that we're going to do, and you'll notice you're sitting there and you weren't put under oath
like any of the other witnesses because you're a judge and we judges never go under oath, okay? So that's the next part of it.
And I want to tell you that I will ask all the questions and the lawyers will ask none of the questions, which I love, and that's a very distinct advantage for me and it's appropriate because you are a judge and as judges we don't have to put up with questions from lawyers, okay? That's what it boils down to.
Now the questions that I will be asking you are in the spirit just of getting information and it has nothing to do with crossexamining you or attempting to trick you in any way whatsoever, so the questions are all openended and nonpressing and so on. We'll just get on with it and you'll see what I mean.
Q.This comes from what I understand was a request made of Detective Heather Lamarche outside of court yesterday, perhaps in the morning, I think?
A.Yeah.
Q.All right. Just let me ask you if you made a request yesterday of Detective Sergeant Lamarche, what was your request?
A.You see what happened, you know, I know a lot of people ---
Q.M'hmmhmm.
A.--- and I went to that gas station at the corner of Bank Street and Sunnyside, you know, I know the attendants there, so that young lady she goes to Immaculata, and we started talking ---
Q.Yes?
A.--- and I asked what careers that she'd like to pursue ---
Q.Okay.
A.--- and she said she'd like to be a policeman ---
Q.Right.
A.--- and she's talking about her careers by taking courses and so forth, you know.
Q.Yes?
A.I said "Well, I go to the court almost every day and I see some policemen and so forth, and if you have no objections I'll get your name and give it to one of the policemen and I'm sure they'll be more than happy to assist you", you know?
Q.M'hmm-hmm.
A.It was an innocent thing and I thought in the circumstances I was doing something very good, you know?
Q.Yes.
A.I never thought it would be magnified into this thing.
Q.You never know.
So yesterday, then, did you make a request or did you speak to Detective Lamarche?
A.I told her about it ---
Q.Yes?
A.--- and I had the girl's telephone number so I gave it to the other policeman to say "Can you kindly give it to her because ---