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Case Name:
R. v. Riley

Between
Her Majesty the Queen, and
Tyshan Riley, Phillip Atkins and Jason Wisdom

[2009] O.J. No. 1851

247 C.C.C. (3d) 517

Court File No. P299-07

Ontario Superior Court of Justice

M.R. Dambrot J.

Heard: April 17, 2009.

Judgment: April 28, 2009.

(26 paras.)

Criminal law -- Criminal Code offences -- Offences against person and reputation -- Homicide --
First degree murder -- Attempted murder -- Procedural ruling in criminal case where three accused
faced charges of first degree murder, attempted murder and commission of both offences for the
benefit of a criminal organization, where the new procedure under s. 640(2.2) of the Criminal Code
concerning the role of triers on a challenge for cause was held to be mandatory when the jurors
were excluded during the challenge for cause process -- While judges had some leeway in the
procedure they employed in the jury selection process where Parliament was silent, they had none
where a procedure was laid down by the Code -- Criminal Code, s. 640(2.2).

Criminal law -- Procedure -- Jury -- Questioning prospective jurors -- Procedural ruling in

criminal case where three accused faced charges of first degree murder, attempted murder and
commission of both offences for the benefit of a criminal organization, where the new procedure
under s. 640(2.2) of the Criminal Code concerning the role of triers on a challenge for cause was
held to be mandatory when the jurors were excluded during the challenge for cause process --
While judges had some leeway in the procedure they employed in the jury selection process where
Parliament was silent, they had none where a procedure was laid down by the Code -- Criminal
Code, s. 640(2.2).
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Ruling as to whether the new procedure under s. 640(2.2) of the Criminal Code was optional, in the
context of a criminal case where the three accused were being tried on charges of first degree
murder, attempted murder and committing both offences for the benefit of a criminal organization.
The court previously ruled that the accused might challenge prospective jurors for cause and ask
them three questions: one concerning racism, one concerning pre-trial publicity, and one concerning
attitudes towards members of street gangs. The court acceded to a request to have the jurors
excluded from the courtroom during the selection process. The issue then arose whether it was
necessary to comply with the new procedure concerning the role of triers on a challenge for cause in
s. 640(2.2). The section required the first two triers appointed to determine a challenge for cause to
remain the triers throughout the jury selection process if the trial judge had ordered the exclusion of
jurors from the courtroom while the jury was selected pursuant to s. 640(2.1).

HELD: The new procedure was to be followed. It was mandatory when the jurors were excluded
during the challenge for cause process to follow the new, static trier regime in s. 640(2.2) of the
Code. It was both permissible and desirable to vet the prospective triers before appointing them to
determine the truth of the challenges for cause, and this had been done in this case. While it had
been commonplace for trial judges to exercise an inherent power to exclude prospective jurors from
the courtroom during the selection process in recent years, that option did not remain available.
While judges had some leeway in the procedure they employed in the jury selection process where
Parliament was silent on a point, they had no such leeway where a procedure was laid down by the
Criminal Code. The problem of the idiosyncratic trier could readily be eliminated if the trial judge
vetted the triers to ensure that no such trier was selected.

Statutes, Regulations and Rules Cited:

Criminal Code, R.S.C. 1985, c. C-46, s. 640(2.1), s. 640(2.2)

Counsel:

Suhail Akhtar, Maureen Pecknold, Lesley Pasquino and Patrick Clement, for the Crown.

David Midanik, for Tyshan Riley.

David Berg, for Philip Atkins.

Maurice Mirosolin and Brad Burgess, for Jason Wisdom.

1 M. DAMBROT J.:-- Section 640(2.2) of the Criminal Code requires the first two triers
appointed to determine a challenge for cause to remain the triers throughout the jury selection
process if the trial judge has ordered the exclusion of jurors from the courtroom while the jury is
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selected pursuant to s. 640(2.1). This ruling examines whether s. 640(2.2) is optional, and whether
triers can be vetted before a decision is made to appoint them.

BACKGROUND

2 Tyshan Riley, Phillip Atkins and Jason Wisdom are being tried by me, with a jury, on charges
of first degree murder, attempt murder, and committing murder and attempt murder for the benefit
of a criminal organization. The charges relate to the shooting of Brenton Charlton and Leonard Bell
on March 3, 2004, resulting in the death of Mr. Charlton and the wounding of Mr. Bell.

3 I have ruled that the accused may challenge prospective jurors for cause in this case, and ask
them three questions, one concerning racism, one concerning pre-trial publicity, and one concerning
attitudes towards members of street gangs.

4 At the outset of the challenge for cause procedure, counsel for Riley asked that the jurors be
excluded from the courtroom during the selection process. I acceded to his request.

5 The issue then arose whether or not it was necessary to comply with the new procedure
concerning the role of triers on a challenge for cause in s. 640(2.2). I ruled that the new procedure
must be followed, with reasons to follow. These are those reasons.

AMENDMENTS TO THE CRIMINAL CODE

6 Prior to amendments to s. 640(2) of the Criminal Code made in 2008, that section provided that
where a challenge for cause was made on grounds other than that the name of a juror does not
appear on the panel, the last two jurors sworn, and where no jurors have been sworn, two persons
present appointed by the court for the purpose "shall be sworn to determine whether the ground of
challenge is true."

7 The present s. 640(2) continues this procedure, but only where no order is made under s.
640(2.1). Section 640(2.1) provides as follows:

(2.1) If the challenge is for cause and if the ground of the challenge is one that is not
mentioned in subsection (1), on the application of the accused, the court may
order the exclusion of all jurors - sworn and unsworn - from the court room until
it is determined whether the ground of challenge is true, if the court is of the
opinion that such an order is necessary to preserve the impartiality of the jurors.

8 If an order for the exclusion of jurors is made under s. 640(2.1), then the procedure is governed
by s. 640(2.2), which provides:

(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then
exempt from the order, or two persons present who are appointed by the court for
that purpose, shall be sworn to determine whether the ground of challenge is true.
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Those persons so appointed shall exercise their duties until twelve jurors and any
alternate jurors are sworn.

9 As is apparent, the traditional method of determining if a challenge is true by the two most
recently sworn jurors (the rotating method) has been replaced, when the jurors are excluded from
the courtroom, by a determination of the truth of the challenge by the same pair of triers throughout
the process (the static method). In the static method, the triers never become members of the jury.

10 It is interesting to note that in R. v. W.V., [2007] O.J. No. 3247 (C.A.), the trial judge, prior to
the enactment of s. 640(2.2), had followed a procedure similar to that prescribed by s. 640(2.2).
After the initial two triers were replaced as triers by the first two jurors chosen, the trial judge
decided to continue with those same triers for the balance of the jury selection process rather than
replace them in turn as new jurors were selected. The Court of Appeal concluded that the use of the
word "shall" in s. 640(2) made that provision mandatory and required that the challenge for cause
be conducted according to its terms. The trial judge's failure to follow the statutorily mandated
procedure resulted in ten members of the jury being selected by the same two triers who, according
to the explicit language of the Criminal Code, were not the individuals who had jurisdiction to make
that decision. That decision has, in effect, been reversed in relation to cases where s. 640(2.2)
applies.

11 The rationale for the change is evident. It ensures that no juror, sworn or unsworn, can be
tainted by any answer given to the questions asked on the challenge for cause by any other juror, or,
in the case of unsworn prospective jurors, be schooled in the consequences of answering the
questions in a particular manner. Of particular note, if previously sworn jurors decided the
challenge for cause, as had to be the case under the old regime, then they could not be excluded
while serving as triers, and could be tainted by the answers they heard. This cannot happen under
the new regime.

12 There is, however, a cost to this procedure, at least in the eyes of some. Involving jurors in the
selection of the jury ensures that the jurors understand the importance of the rationale for the
questions asked of prospective jurors - the need to decide the case impartially, unaffected, in
particular, by racism - and the high importance placed on it. This benefit is lost when the challenge
for cause is determined exclusively by two triers who will not serve on the jury.

13 In addition, it sometimes happens that one of the initial two triers selected before any jurors
are sworn fulfils the function of a trier idiosyncratically, either because he or she is unable to
understand the instructions given to the triers, or because he or she is a rogue trier. When I speak of
a rogue trier, I am referring to a trier who is not impartial, and whose decision-making reflects that
impartiality. But generally, in the rotating trier process, once the first two triers are replaced by
jurors who have gone through the challenge process, this problem disappears. The concern held by
some judges is that with the static trier procedure, an idiosyncratic trier must remain involved in the
selection of the entire jury, and will disrupt or even hijack the entire selection process. I will attempt
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to provide a potential solution to this problem in this ruling.

IS IT NECESSARY TO COMPLY WITH SECTION 640(2.2) WHENEVER PROSPECTIVE

JURORS ARE EXCLUDED FROM THE COURTROOM?

14 In many cases prior to the amendment to s. 640(2.1), trial judges exercised an inherent
authority to exclude prospective jurors from the courtroom during the challenge for cause process
There is a view that a trial judge is still free to excuse prospective jurors from the courtroom during
the challenge for cause process on the basis of that inherent authority rather than exercising the
authority of s. 640(2.1). If a trial judge exercises this inherent authority, so the reasoning goes, then
the judge may employ the traditional rotating triers method, and refrain from employing the new
static trier method. I am aware of only one written decision that gives effect to this view.

15 In R. v. Sandham et al, [2009] O.J. No. 1853 (Ont. Sup. Ct, February 9, 2009), my colleague
Heeney J. concluded that a rotating trier process could be employed despite the fact that prospective
jurors were excluded during the challenge process. In that case, counsel for one of the accused
asked that the jury panel be excluded, and that jurors be brought in one by one for challenge. Crown
counsel argued that this amounts to an application under s. 640(2.1). Heeney J. did not agree. He
noted that counsel for the accused asked only that unsworn jurors be excluded, not sworn and
unsworn jurors as s. 640(2.2) contemplates, and that the exclusion was not sought to preserve the
impartiality of the jurors, but rather to prevent the prospective jurors from being "schooled" in the
challenge questions.

16 With great respect to Heeney J., and to others who hold a different view, I am of the view that
the option of employing the rotating trier process is not available when the prospective jurors are
excluded. While I acknowledge that it has been commonplace for trial judges to exercise an
inherent power to exclude prospective jurors from the courtroom during the selection process in
recent years, I do not believe that that option remains available. While judges have some leeway in
the procedure they employ in the jury selection process where Parliament is silent on a point, they
have no such leeway where a procedure is laid down by the Criminal Code.

17 This point was made by Sharpe J.A. in R. v. W.V., at paras. 21-22, where he stated:

21 It is also the case that trial judges must be afforded some latitude or discretion
where the Criminal Code does not specifically address the issue. For example, in
R. v. Brown (2002), 166 C.C.C. (3d) 570, this court held, at paras. 17-19, that it is
"preferable" to replace one of the initial triers with the first juror sworn rather
than wait to replace both initial triers until two jurors have been sworn. Similarly,
in R. v. Gayle (2001), 154 C.C.C. (3d) 221, leave to appeal to S.C.C. refused,
[2001] S.C.C.A. No. 359, 160 O.A.C. 199, this court rejected the contention that
the trial judge erred by excusing a potential juror when the two triers could not
agree on whether the prospective juror was partial given the permissive language
of ss. 632 and s. 640(4).
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22 On the other hand, trial judges have no inherent authority to modify the
codified procedure for jury selection even where it may seem expeditious to do
so. In R. v. Gayle, supra, at para. 53, this court stated:

It goes without saying that the statutory provisions governing jury

selection must be followed, and that the discretion I am describing is
limited to what is conferred on a fair reading of those very provisions.

18 I am of the view that jurors may now only be excluded pursuant to s. 640(2.1). Moreover,
respectfully, I view the two considerations relied on by Heeney J. to escape the effect of s. 640(2.2)
as being of no consequence. The fact that counsel in Sandham limited his request to the exclusion of
unsworn jurors, and not sworn jurors, is irrelevant. He obviously did that because he wanted an
order for exclusion, but also wanted rotating triers. The simple answer to this point is that the only
order now available, as a result of the amendment to the Code, is the exclusion of both sworn and
unsworn jurors.

19 As for the conclusion that the grounding of the motion on a concern about "schooling"
prospective jurors rather than preserving their impartiality takes the application out of s. 640(2.1), I
simply say that, for myself, I fail to see that the one differs substantially from the other. The concern
that a schooled juror might answer questions differently than an unschooled juror is ultimately a
concern about partiality. It is a concern that a juror will answer questions falsely, based on
extraneous matters - an acquired understanding of the result that would flow from a particular
answer - rather than giving a true answer based only on the information imparted by the question.
But why are we concerned about this? Of course, it is most unfortunate if an impartial juror
commits perjury in order to evade his or her duty by feigning partiality. But the real concern is that
a partial juror who wants to be on the jury will feign impartiality. As I have said, the concern about
schooling is, ultimately, a concern about preserving the impartiality of the jury that will try the case.

20 An argument has also been made that where the accused makes no request for jurors to be
excluded from the courtroom, but the trial judge makes the order on his or her own motion, s.
640(2.2) can be avoided. Again, I do not agree. First, I do not think that such an order remains
available for the reasons I have already stated. Second, I cannot imagine a judge making such an
order over the objection of the accused. Any such order is inevitably made with the concurrence of
the accused, and effectively on his or her motion.

THE PROBLEM OF THE IDIOSYNCRATIC TRIER

21 I have already described the concern that exists about the problem of an idiosyncratic trier if
the new static trier process is utilized. It seems to me, however, that the problem can readily be
eliminated if the trial judge vets the triers to ensure that no such trier is selected.
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22 In this case, I had the prospective jurors complete a jury questionnaire. With the questionnaire
in hand, I brought the prospective triers into the courtroom one at a time. I proceeded to make some
opening comments to them, and then to ask them modified versions of the approved challenge for
cause questions. I attach my opening comments to the prospective triers as Appendix A. I also
asked them additional questions that arose out of the questionnaire and their answers to the
questions. In the end, I appointed the first and sixth individuals whose names were drawn from the
drum. I excused the second, third, fourth and fifth prospective triers from jury service for reasons
that need not be recounted. I can only say that the result of this procedure has been that we have
enjoyed the services of what all parties to this trial agree are remarkably responsible and thoughtful
triers.

23 It has been suggested that the vetting of jurors in this matter should not be done, since it is not
provided for in the Code. I do not agree. It seems to me that this is a matter that is not specifically
addressed by the Code, in relation to which, in the words of Sharpe J.A., "trial judges must be
afforded some latitude or discretion."

24 It should be remembered that the practice in Ontario of appointing the first two prospective
jurors whose names are drawn from the drum is in fact simply a practice. The Code requires the
judge to appoint "two persons present" as triers, and says nothing more about who they must be, and
how they are to be selected. There is no requirement that they be prospective jurors, or that they be
chosen randomly. We have developed a practice to fill the gap. I see no obstacle to adding a brief
vetting process to that practice to ensure that the challenge process accomplishes what it is intended
to accomplish - the selection of an impartial jury.

DISPOSITION

25 As I have stated, I consider it to be mandatory when the jurors are excluding during the
challenge for cause process to follow the new, static trier regime in s. 640(2.2) of the Criminal
Code, and I have proceeded in that manner in this case.

26 In addition, I consider it to be both permissible, and desirable, to vet the prospective triers
before appointing them to determine the truth of the challenges for cause, and I have done so in this
case.

M. DAMBROT J.
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