Legal Spiritual Rights

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., CATZMAN and GOUDGE JJ.A.

B E T W E E N :

Andras Schreck, Frank

HER MAJESTY THE QUEEN Addario, Peter Rosenthal
for the appellant

Respondent
and Fergus O Donnell, Jeff

Jeff Kehoe, Bradley Reitz
DUDLEY LAWS for the respondent

Appellant David Lepofsky and
Philip Downes

and for the intervener

THE ATTORNEY GENERAL FOR ONTARIO

Heard: April 27, 28, 1998

Intervener

BY THE COURT:

INTRODUCTION

[1] The appellant was tried before Whealy J. and a jury on an indictment containing seven counts. Counts 1, 2 and 3 alleged a conspiracy to smuggle illegal aliens into the United States; counts 4 and 5 alleged a conspiracy to smuggle named persons into the United States; and counts 6 and 7 alleged a conspiracy to smuggle named persons into Canada.

[2] During the trial, a mistrial was declared with respect to counts 4 and 5. A re-trial on those counts is scheduled to be held in the near future. The jury found the appellant guilty of all of the remaining counts. His application, following conviction, for a stay of proceedings on the ground that he had been entrapped was dismissed. Convictions were entered on counts 1, 6 and 7; counts 2 and 3 were stayed on the basis of the rule against multiple convictions. The appellant was fined $5,000 and was sentenced to 9 months' imprisonment on each of counts 1, 6 and 7, to be served concurrently.

[3] The appellant appeals against conviction and sentence.

THE EXCLUSION OF CERTAIN MEMBERS OF THE PUBLIC FROM THE COURTROOM

[4] This ground of appeal relates to the exclusion from court of members of the public for wearing head coverings which were apparently worn for religious purposes. It is not suggested that the public generally did not have access to the trial of the appellant.

[5] On November 15th, 1993 the following comments were made by the trial judge and counsel during the hearing of pre-trial motions:

Mr. Pistyner: Good morning, Your Honour.

The Court: I see some hats in the room; they must come off, no exceptions.

Mr. Pistyner: Good morning, Your Honour. If I might address the Court.

The Court: Anybody insist upon wearing a hat may leave.

Voice: Not a hat, Your Honour.

The Court: It is. It is a head covering, and get out.

Voice: I will not leave willingly, it is not a hat.

Mr. Kellerman: If I could speak, Your Honour. It is a religious matter.

The Court: I do not care. I am not quarrelling with his religion, he is just not going to be in the court room.

After several further exchanges between the trial judge, counsel and an unidentified spectator, the trial judge concluded as follows:

The Court: I won't have any comments from the audience. You are more than welcome to be here, it is a public court room, but the rules are made by me and I just made the first ruling.

[6] On November 22, 1993 the trial judge made a more formal order in relation to the acceptable headwear of spectators, in part as follows:

Attire normally acceptable in school should be the standard. However, male heads must be bare and if females wear head cover, it must not interfere with other members of the public or be flamboyant.

Some head coverings, by their shape, colour and design, are obvious and easily recognizable as signalling to the eye an adherent of a well-established and recognizable race, culture, national or religious community; one of those communities who is clearly within the purview of the Charter. I am unable to think of any such community who has adapted a headdress which lacks the dignity and uniformity that I have been speaking of. Even among those communities, headdress in court will only be permitted if it is an article of faith demanded by that well established and recognizable religious community. [Emphasis added.]

[7] On January 5, 1994 the trial judge made a further ruling with respect to the wearing of headdresses as well as a ruling in relation to the application of behalf of the appellant that the matter proceed before another trial judge on the basis of a reasonable apprehension of bias related to his earlier rulings with respect to the wearing of headdresses and other matters.

[8] As part of his ruling, the trial judge made the following observations:

As yet the court has not called upon the Crown to make any submissions, and in my view would not be of any assistance. Furthermore, to do so would be to dignify these submissions with some sense of reality. These submissions have no more substance than shadows which, when examined in the light of day, disappear without a trace.

The right of an individual spectator to enter a court is by no means absolute. If refused entry by the order of the presiding judge, on any basis, an application for violation of the Charter of Right belongs to the spectator and not to any party to the proceedings. In my view, only if the public is wholly or substantially excluded from the court can the accused in the criminal case raise any such issue under s.11(d) of the Charter. [Emphasis added.]

[9] An affidavit of one Michael Taylor sworn on December 10, 1993 which was filed before the trial judge deposed, in part, as follows:

On Monday, November 22, 1993, I attended the court of Justice A.C. Whealy at the Metropolitan Toronto Court House, at about 12:15 p.m. and sat in the court. After 5 minutes or so, I was approached by the court bailiff and was told that the judge did not allow "hats" in his court. I asked the officer "is the judge aware that I am a Muslim and that my headdress is a part of my religious practice?" The officer said that there were no exceptions and that I would either have to take my "hat" off or leave the court. I refused to take my headdress off and was therefore asked to leave the court, which I did peacefully. On my way out of the courtroom I heard Justice Whealy saying, "Muslims do not wear hats." I wear my headdress daily and regard it as part of my religious practice and not a "hat" or something to protect my head from the elements. I wear a headdress as it is regarded as a symbolic act to identify myself as a Muslim and because it is an act of religious merit and piety.

On Thursday, November 25, 1993 I again attempted to attend the court of Justice Whealy but I was prevented from entering by a uniformed police officer who advised me that "no hats" were permitted in the courtroom of Justice Whealy.

[10] At no time was there any application by counsel for the Crown to request any order with respect to the dress code of spectators in the courtroom.

[11] There was no evidence tendered before the trial judge with respect to what types of headdress might be worn for religious purposes.

[12] In R. v. S. (R.D.) 1997 CanLII 324 (S.C.C.), (1997), 118 C.C.C. (3d) 353 at 385 (S.C.C.), Cory J. wrote of the importance of the court's recognizing the pluralistic nature of Canada:

Canada is not an insular, homogeneous society. It is enriched by the presence and contributions of citizens of many different races, nationalities and ethnic origins. The multicultural nature of Canadian society has been recognized in s. 27 of the Charter. Section 27 provides that the Charter itself is to be interpreted in a manner that is consistent with the preservation and enhancement of the multicultural heritage of Canadians. Yet our judges must be particularly sensitive to the need not only be fair but also to appear to all reasonable observers to be fair to all Canadians of every race, religion, nationality and ethnic origin. This is a far more difficult task in Canada than it would be in a homogeneous society. Remarks which would pass unnoticed in other societies could well raise a reasonable apprehension of bias in Canada. [Emphasis added.]

[13] In R. v. Butler (reflex-logo) reflex, (1984), 63 C.C.C. (3d) 243 at 252 (B.C.C.A.), Esson J.A. stated as follows:

The application of the principle of equality before the law may well require a reasonable recognition by the court of individual differences in religious belief, dress and like matters.

[14] The relevant statutory enactment regarding exclusion of the public from a courtroom is s. 486(1) of the Criminal Code, R.S.C. 1985, c. C-46 which reads:

Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the court room for all or part of the proceedings, he may so order.

[15] The general principle of favouring open courts is well established. In Re Southam Inc. and the Queen (No. 1) (1983), 41 O.R. (2d) 113 (C.A.), the fundamental issue on appeal was whether holding trials of juveniles in camera is a breach of "opinion and expression" and whether free access to the courts is a fundamental right or freedom. Writing for the Court, MacKinnon A.C.J.O. stated, at p. 119:

There can be no doubt that the openness of the courts to the public is one of the hallmarks of a democratic society. Public accessibility to the courts was and is felt a necessity; it is a restraint on arbitrary action by those who govern and by the powerful.

[16] In Attorney-General of Nova Scotia et al. v MacIntyre 1982 CanLII 14 (S.C.C.), (1982), 65 C.C.C. (2d) 129 at 145-47 (S.C.C.), Dickson J. stated:

It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the Court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings.

The authorities have held that subject to a few well-recognized exceptions, as in the case of infants, mentally disordered persons or secret processes, all judicial proceedings must be held in public. The editor of Halsbury's Laws of England, 4th ed. vol. 10, para. 705, p. 316, states the rule in these terms:

In general, all cases, both civil and criminal, must be heard in open court, but in certain exceptional cases, where the administration of justice would be rendered impracticable by the presence of the public, the court may sit in camera.

At every stage the rule should be one of public accessibility and concomitant judicial accountability...

In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance. One of these is the protection of the innocent.

[17] In Canadian Broadcasting Corporation v. New Brunswick (Attorney General) 1996 CanLII 184 (S.C.C.), (1996), 2 C.R. (5th) 1 (S.C.C.), the respondent pleaded guilty to sexual assault and the provincial court judge ordered the exclusion of the public and the media from the courtroom during the portions of sentencing where the particular acts would be dealt with. The public and the media were excluded for a total of approximately twenty minutes. In ordering a new trial, LaForest J. commented, at p. 12:

The importance of ensuring that justice be done openly has not only survived: it has now become "one of the hallmarks of a democratic society" ... [citation omitted]. The open court principle, seen as "the very soul of justice" and the "security of securities", acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule of law.

[18] In R. v. Vandevelde 1994 CanLII 3862 (SK C.A.), (1994), 89 C.C.C. (3d) 161 (Sask. C.A.), the appellant appealed his conviction on five counts of sexual exploitation. One of the issues on appeal was whether the trial judge erred in excluding the public from the trial during the testimony of the young complainant. The fundamental issue dealt with on appeal was whether the accused can obtain a fair trial where the trial, or portions thereof, are not held in public. Vancise J.A. stated, at p.166:

The right to a public trial is a fundamental tenet of natural justice. It has been said nothing is more important than the public administration of justice ... [citation omitted]. Sir William Blackstone in his Commentaries on the Laws of England Vol. III (1768), at pp.371-2, described how evidence was given in the law courts:

And all this evidence is to be given in open court, in the presence of the parties, their attorneys, the counsel, and all by-standers, and before the judge and jury: each party having liberty to except to its competency, which exceptions are publicly stated, and by the judge are openly and publicly allowed or disallowed, in the face of the country: which must curb any secret bias or partiality that might arise in his own breast.

Vancise J.A. then canvassed the prevailing authorities with respect to exclusion of the public and summarized them as follows at pp. 172-73:

The purposes set out in Scott v. Scott, [[1913] A.C. 417 (H.L.)], for which the common law permits a departure from the fundamental principle that a trial should be held in public are similar to those contained in s.486(1), with the addition of the interest of public morals. Thus, the overriding principle is that the trials must be held in public, in open court, unless the trial judge (as defined in the section) decides that it is necessary to exclude the public or any member of the public. The trial judge's discretion is not unfettered in that respect. He or she may do so only if the interest of justice requires it having regard to the conditions set out in s.486(1), that is:

1. it is in the interest of public morals;

2. it is necessary to maintain order in the court-room;

3. it is in the interest of the proper administration of justice.

There must be a significant evidentiary foundation on which the trial judge can base such an order. The party applying for the order, usually the Crown, must satisfy the trial judge that the ends of justice will be frustrated unless the order is made or that it is in the interest of public morals or in the interest of the proper administration of justice that the order be made.

The Court of Appeal concluded that the trial judge did not have a sufficient evidentiary base upon which the ruling could be justified. The conviction was set aside and a new trial was ordered.

[19] There does not appear to be any reported Canadian case which has attempted an analysis of the numbers excluded from a court room which would lead to a conclusion that there had been a denial of a public trial.

[20] In the U.S. case of People v. Garrett, 637 N.E.2d 615 (1994), the Appellate Court of Illinois held that the defendant's constitutional right to a public trial was breached when his parents were excluded from the courtroom. In another U.S. case, that of Addy v. State, 849 S.W.2d 425 (1993), the Court of Appeals of Texas stated that the barring of only some members of the public from the courtroom does not necessarily mean that an accused has been denied a public trial but any such barring of members of the public must be done for compelling reasons. The court further stated at p. 429:

The presence of an accused's friends in the courtroom lends moral support to the accused and helps insure honest proceedings. If an accused is denied the presence of his friends, he is denied a public trial, unless the trial court can articulate on the record some compelling reason for excluding them.

[21] Trial judges are entitled to maintain a discretion to exclude members of the public when circumstances warrant. However, this discretion should not be exercised arbitrarily. Furthermore, the discretion should not be exercised in the absence of an evidentiary foundation and must be exercised in accordance with the Charter.

[22] In our view the trial judge erred when he made the following statements in relation to the exercise of his discretion:

(a) Some head coverings, by their shape, colour and design, are obvious and easily recognizable as signalling to the eye an adherent of a well established and recognizable race, culture, national or religious community; one of those communities who is clearly within the purview of the Charter. [Emphasis added.]

(b) It is important to re-assert the principle that adherence to a major, recognizable religion that demands headdress is a basic condition of acceptability... . [Emphasis added.]

[23] There was no basis on which the trial judge could distinguish between a requirement of a particular faith and a chosen religious practice. Freedom of religion under the Charter surely extends beyond obligatory doctrine.

[24] The trial judge further erred in suggesting that only certain communities are clearly within the purview of the Charter. No individuals or religious communities enjoy any less Charter protection than the major and recognizable religions.

[25] There is nothing in the record which would reasonably assist us to determine the number of people excluded from the courtroom as a result of the rulings of the trial judge in relation to headdress. The affidavit of Michael Taylor indicates that the court attendants were turning away males wearing hats for an undetermined period of time.

[26] In our view the rulings by the trial judge as to headdress did not deprive the appellant of a public trial. However the trial judge by his rulings may well have inadvertently created the impression of an insensitivity as to the rights of minority groups.

[27] As Cory J. stated in R. v. S. (R.D.) as quoted above at p. 385:

Yet our judges must be particularly sensitive to the need not only be fair but also to appear to all reasonable observers to be fair to all Canadians of every race, religion, nationality and ethnic origin.

[28] We are therefore of the opinion that the trial judge erred in excluding certain members of the public from the courtroom, and that this may well have resulted in creating an atmosphere that undermined the appearance of a fair trial. However, having regard to our disposition of this appeal on grounds relating to the wiretap authorization, which are dealt with hereafter, we do not consider it necessary to form a concluded view whether the ground of appeal now under consideration is in itself sufficient to constitute reversible error.

THE CONSTITUTIONALITY OF THE EXERCISE OF THE CROWN'S DISCRETION WITH RESPECT TO HYBRID OFFENCES

[29] It is submitted by the appellant that the Crown's common law discretion to choose the mode of trial in hybrid offences such as s. 94(1) of the Immigration Act, R.S.C. 1985, c. I-2, is contrary to principles of fundamental justice in that it gives the prosecution an unreviewable and unfettered discretion to elect the mode of trial and the consequent procedure and penalty.

[30] The appellant is not challenging any particular section of the Criminal Code or of the Immigration Act which creates a hybrid offence. Rather the appellant is challenging the common law interpretation of such sections which confer on the Crown the discretion to elect between proceeding summarily or by indictment.

[31] It is submitted by the appellant that there should be a mechanism in place for ascertaining and correcting possible arbitrary decision-making respecting the election as to the mode of trial.

[32] The appellant's submissions are encapsulated by the comments in P.G. Barton's The Power of the Crown to Proceed by Indictment or Summary Conviction, (1971-72) 14 C.L.Q. 86 at 96:

... the choice to proceed by indictment or by summary conviction cannot be based on evidential considerations since the substantive offence is identical in both cases. Thus, one is left with the view that it must be based on either expediency, politics, or a desire to treat a particular person harshly. One can see how a sense of due process might be offended since this decision is not one of low-visibility but of non-visibility.

[33] The appellant submits that because the exercise of the Crown's discretion is not subject to judicial review and contest it is therefore manifestly unfair and offends the principles of fundamental justice in the Charter.

[34] At trial the appellant challenged the constitutionality of the Crown's discretion to elect the mode of trial for hybrid offences. The trial judge held that the appellant is required to show an abuse of process before the court could examine or interfere with the exercise of the Attorney General's prosecutorial discretion. No specific abuse of process was alleged by the appellant or found by the trial judge.

[35] In R. v. Beare 1988 CanLII 126 (S.C.C.), (1988), 45 C.C.C. (3d) 57, the Supreme Court of Canada considered whether the existence of prosecutorial discretion offended the principles of fundamental justice in s. 7 of the Charter. La Forest J. held at p. 76:

The existence of the discretion conferred by the statutory provisions does not, in my view, offend principles of fundamental justice. Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.

[36] In R. v. T. (V.) 1992 CanLII 88 (S.C.C.), (1992), 71 C.C.C. (3d) 32, the Supreme Court of Canada revisited the reviewability of prosecutorial discretion and L'Heureux-Dubé J. stated at p. 40:

I also wish to refer to the judgment of Giesbrecht Prov. Ct. J. in R. v. Poirier, Man. Prov. Ct., June 7, 1989 (unreported) [citation omitted] ...

In the criminal law process prosecutorial discretion exists throughout the entire process, from the initial investigation stage through to the conclusion of the trial. The people involved in the process, be they police officers ... or other individuals charged with the responsibility of investigating breaches of various laws, or Crown Attorneys, are not the same nor will they necessarily act in the same way in exercising the discretion they have. This may lead to a situation where one person is charged with an offence, while another in seemingly identical circumstances is not; one person is prosecuted by indictment, another by summary conviction; one person is dealt with under one provision of a particular statute while another is dealt with under a different, perhaps harsher provision. As is pointed out by Scollin J. of the Manitoba Court of Queen's Bench in Re Tit and Director of Vital Statistic (reflex-logo) reflex, (1986), 28 D.L.R. (4th) 150 at pp. 152-3, [1986] 4 W.W.R. 238, 42 Man. R. (2d) 38: "The world of democratic theory may be peopled by legal clones, but the real world is not." [Emphasis added.]

[37] In Re Saikaly and the Queen (reflex-logo) reflex, (1979), 48 C.C.C. (2d) 192, this Court considered whether the Attorney General was required to hear submissions from an accused before preferring a direct indictment. MacKinnon A.C.J.O. stated at p. 195:

If the Attorney-General must give a hearing to anyone who might be affected every time he proposes to exercise the discretion conferred upon him by virtue of his office the administration of criminal justice would come to a standstill. The principles which we feel are applicable were enunciated most recently by Viscount Dilhorne in Gouriet v. Union of Post Office Workers et al., [1977] 3 W.L.R. 300 at pp. 319-20. Viscount Dilhorne (a former Attorney General) said the following:

The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the courts.

[38] Courts have recognized that, if any jurisdiction exists to review the conduct of the Attorney General in the exercise of his prosecutorial functions, "it must be exercised only in cases of flagrant impropriety." See R. v. Light 1993 CanLII 1023 (BC C.A.), (1993), 78 C.C.C. (3d) 221 at 246 (B.C.C.A.); R. v. Smythe (1971), 3 C.C.C. (2d) 366 (S.C.C.); R. v. Verrette (1978), 40 C.C.C. (2d) 273 (S.C.C.); R. v. Balderstone (reflex-logo) reflex, (1983), 8 C.C.C. (3d) 532 (Man. C.A.).

[39] In R. v. Power 1994 CanLII 126 (S.C.C.), (1994), 89 C.C.C. (3d) 1 (S.C.C.), the court reviewed the principles of prosecutorial discretion in the context of abuse of process. In this context, L'Heureux-Dubé J. stated at p.10:

The Attorney-General's role in this regard is not only to protect the public, but also to honour and express the community's sense of justice. Accordingly, courts should be careful before they attempt to "second-guess" the prosecutor's motives when he or she makes a decision. Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.

and at p. 15:

That courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case-law. They have been so as a matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice and the fact that prosecutorial discretion is especially ill-suited to judicial review.

[40] In R. v. Durette 1992 CanLII 2779 (ON C.A.), (1992), 72 C.C.C. (3d) 421 at 437-38 (Ont. C.A.), Finlayson J.A. discussed the importance of having the appropriate record before the court could engage in any inquiry related to the exercise of the Crown's discretion:

In order to ask the court to delve into the circumstances surrounding the exercise of the Crown's discretion, or to inquire into the motivation of the Crown officers responsible for advising the Attorney-General, the accused bears the burden of making a tenable allegation of mala fides on the part of the Crown. Such an allegation must be supportable by the record before the court, or if the record is lacking or insufficient, by an offer of proof. Without such an allegation, the court is entitled to assume what is inherent in the process, that the Crown exercised its discretion properly, and not for improper or arbitrary motives.

[41] It has been long established by law in Canada that the exercise of discretion, whether police or prosecutorial, is a cornerstone of the administration of justice. As MacKinnon A.C.J.O. stated in Saikaly as quoted above, at p. 195:

If the Attorney-General must give a hearing to anyone who might be affected every time he proposes to exercise the discretion conferred upon him by virtue of his office the administration of criminal justice would come to a standstill.

[42] It is also argued by the appellant that the decision to proceed by indictment or summary conviction should be made by a judicial officer in order to safeguard an accused from the exercise of discretion being influenced by any improper motives. This proposal would change in a most fundamental manner the principle of a clear separation of roles between the judiciary and law officers of the Crown which has generally served the public well over many generations. It would also undermine the important principle of accountability to the public, whereby the Attorney General must account to the legislature for his or her conduct and that of his law officers.

[43] On appeal the appellant also raised for the first time the issue of whether the common law rule governing the election of mode of trial for hybrid offences is void for vagueness under s. 7 of the Charter.

[44] We agree with the respondent that the doctrine of "vagueness" is inapplicable to the Crown's discretionary powers. The underlying principle of the doctrine of vagueness is that a person subject to sanction cannot be expected to conform to the law if the law is not reasonably comprehensible. In our view the underlying rationales for the vagueness doctrine cannot rationally apply to the exercise of the Crown's discretion.

[45] In conclusion, we are of the opinion that the Crown's discretion in relation to hybrid offences is constitutionally sound and that this ground of appeal must therefore fail.

THE CONSTITUTIONALITY OF THE CITIZENSHIP REQUIREMENT FOR JURORS

[46] The appellant challenged the constitutional validity of the citizenship requirement for jurors at trial.

[47] Section 2 of the Juries Act, R.S.O. 1990, c. J.3, provides:

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) in the county in which he or she resides.

[48] In challenging the citizenship requirement in the Juries Act the appellant argued that the exclusion of black permanent residents who are not citizens contravenes s. 15 of the Canadian Charter of Rights and Freedoms in that it decreases the opportunity of a black accused to find one of his or her own race on the jury array or panel.

[49] The affidavit of Aloysious Snow filed in the application before the trial judge deposed that the citizenship requirement would have a differential impact on black residents of Metropolitan Toronto in that a lower proportion of the black population are citizens than of the non-black population. The statistics indicated that 34.1% of the black residents of Toronto are non-citizens while only 14.4% of the non-black residents are non-citizens. If the citizenship requirement in the Juries Act were removed the probability of choosing a black person on the jury would increase from 3.2 in a hundred to 4.1 in a hundred, representing an increase of .9 per cent.

[50] The application was dismissed by the trial judge.

[51] The appellant submits that there is a three-stage test to determine whether impugned legislation or state action violates s.15 guarantees. A denial of the equality rights protected by this section will be found where:

(i) a legislative scheme creates an inequality. Inequality results where a distinction is drawn on the basis of personal characteristics.

(ii) the distinction drawn is discriminatory. A distinction will be found discriminatory where it imposes a disadvantage or burden on those affected; and

(iii) the discrimination is on a prohibited ground (either enumerated or analogous).

[52] The appellant is black and it is submitted that it is an advantage for a criminal accused to have persons of his own race on the jury, and it is a corresponding disadvantage to have the likelihood of having such persons on a jury systemically diminished.

[53] In R. v. Parks 1993 CanLII 3383 (ON C.A.), (1993), 84 C.C.C. (3d) 353 at 369 (Ont. C.A.), Doherty J.A. stated:

Racism, and in particular anti-black racism, is a part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes .... These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil.

[54] The appellant is not asserting that he has a right to have any particular number of black people on his jury or even on the panel, only that the likelihood of this cannot be systemically diminished. It is submitted that, as the citizenship requirement decreases the probability of a black person on the panel, there is a discrimination as understood in s. 15 of the Charter as it adversely impacts on blacks as compared with non-blacks.

[55] In R. v. Church of Scientology of Toronto 1996 CanLII 1650 (ON C.A.), (1997), 116 C.C.C. (3d) 1 (Ont. C.A.) (application for leave to appeal to the Supreme Court of Canada dismissed without reasons April 9, 1998), the appellant intervened in this court in the submission that it was a violation of ss. 7, 11 and 15 Charter rights to exclude non-citizens pursuant to s. 2(b) of the Juries Act. Rosenberg J.A., in addressing the issue of s. 15 rights in relation to an appellant in Church of Scientology, stated that s. 15 rights were not violated by the impugned provisions of the Juries Act because those provisions "did not withhold any advantage or benefit from nor impose a disadvantage or burden on her." Rosenberg J.A. went on to state, in relation to the intervener Laws, that it was "unnecessary to decide whether the intervener Laws had made out that kind of impact" and that the issue should be left to the court hearing that appeal.

[56] There are, however, some principles enunciated by Rosenberg J.A. in Church of Scientology that are relevant to this ground of the appellant's appeal. Rosenberg J.A. stated at p. 61:

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 [1991 CanLII 86 (S.C.C.), (1991), 63 C.C.C. (3d) 193], L'Heureux-Dubé 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".

and at p. 62:

The right to a representative jury roll is not absolute in the sense that the accused is entitled to a roll representative of all of the many groups that make up Canadian society. This level of representativeness would be impossible to obtain. There are a number of practical barriers inherent in the selection process that make complete representativeness impossible. The roll is selected from a discrete geographical district which itself may or may not be representative of the broader Canadian society.

and at pp. 64-65:

The essential quality that the representativeness requirement brings to the jury function is the possibility of different perspectives from a diverse group of persons. The representativeness requirement seeks to avoid the risk that persons with these different perspectives, and who are otherwise available, will be systemically excluded from the jury roll.

Exclusion of non-citizens does not infringe the representativeness or fair cross-section requirement in this sense. There was no evidence that non-citizens as a group share any common thread or basic similarity in attitude, ideas or experience that would not be brought to the jury process by citizens. The expert evidence led by the appellants was somewhat misleading in this respect. From my review of the evidence, it seems that the expert tended to use non-citizenship opinion as a proxy for minority opinion. The evidence, however, simply does not bear out the inference that exclusion of non-citizens disproportionately excludes minorities from the jury. As pointed out above, almost one-half of the 1.7 million residents of Metropolitan Toronto over the age of 18 were not born in Canada but most, close to three-quarters, have become Canadian citizens.

In the context of jury representativeness, citizenship, like residency in the province, is not an improper basis for defining the parameters of the jury roll. As La Forest J. wrote in Andrews v. Law Society of British Columbia [1989 CanLII 2 (S.C.C.), [1989] 1 S.C.R. 143] at p. 196, "[C]itizenship is a very special status that not only incorporates rights and duties but serves a highly important symbolic function as a badge identifying people as members of the Canadian polity." All free and democratic societies have established a unique status like citizenship to which attach certain rights, privileges and obligations closely related to the concept of self-government. It will be recalled that in speaking of the importance of the jury function, L'Heureux-Dubé J. held in Sherratt that the jury can act as the conscience of the community and as the final bulwark against oppressive laws or their enforcement. I see no reason why this important aspect of self-government should not be reserved for citizens, where, as here, exclusion of non-citizens does not affect the representativeness of the jury roll.

The intervener Laws argues that immigration status is a proxy for other potentially relevant characteristics, especially colour... Thus, he argues that exclusion of non-citizens undermines the representativeness of the jury especially as regards colour.

The evidence presented here, however, fails to demonstrate the point. As noted above, citizens, at least in Metropolitan Toronto, are of all races, colours and national origin. According to the evidence adduced in the Laws case itself, including non-citizens in the panel would increase the likelihood of selecting a black person for the panel by only .9%. In my view, this cannot affect the representative nature of the array. The deliberate exclusion of distinctive groups based on characteristics such as race, sex, colour, religion or national origin might well infringe the requirement of a jury selected from a fair cross-section of the community. Exclusion of certain persons based upon their immigration status is simply not of that quality.

In my opinion, Mr. Laws is making an equality argument. He argues that the exclusion of non-citizens has the effect of excluding a "disproportionate number of his peers" from the panel. I make no comment on whether or not this is a valid argument in the Laws Appeal. It simply does not arise in this case.

[57] As noted earlier, the appellant is not asserting that he has a right to have a particular number of blacks on his jury, or even on the panel. Further, as noted, the appellant makes no argument that the Juries Act constitutes direct discrimination.

[58] The appellant was also unable to articulate clearly any advantage to him as a black person if the number of potential black jurors was marginally increased through removal of the citizenship requirement. To the extent that the advantage was merely an argument in favour of greater representativeness in the jury pool, for the reasons given in Church of Scientology, we are not persuaded that removal of the citizenship requirement would constitute an advantage or impose a burden upon the appellant.

[59] This court was referred to an article by Cynthia Peterson entitled "Institutionalized Racism: The Need for Reform of the Criminal Jury Selection Process" (1993) 38 McGill LJ. 147 at 164. The author states in part:

The equality rights of victims, as well as defendants, are violated when members of their race are excluded from the jury panel. ... The absence of jurors of their own race increases the likelihood that there will be barriers to their ability to convey their version of the facts. In particular, it increases the likelihood that racial stereotyping will influence the jury's evaluation of the evidence.

[60] There is no empirical data to support Ms. Peterson's strongly-held opinion. If she is correct then every jury should include one or more members of the same race of the accused if equality rights are to be protected. In order to accomplish this, it would be necessary to completely restructure the jury selection process. It would also require the abandonment of the principle of the random selection of jurors. Furthermore, in our opinion, it would also reinforce the very type of racial stereotyping that the author apparently abhors. Her proposition, of course, goes much further than the submissions made on behalf of the appellant.

[61] As Rosenberg J.A. held in Church of Scientology, the right to a representative jury is not absolute and in fact would be impossible to obtain in practical terms. He therefore concluded that the citizenship requirement in the Juries Act did not detract from the bringing together of jury panels that were broadly and fairly representative of the community.

[62] In R. v. Sherratt 1991 CanLII 86 (S.C.C.), (1991), 63 C.C.C. (3d) 193 at 204 (S.C.C.), L'Heureux-Dubé J. stated:

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 this selection is made, ensures the representativeness of Canadian criminal juries: see the provincial Jury Acts. Thus, little if any objection can be made regarding this crucial characteristic of juries.

[63] In fact, an accused cannot demand that a member of his race be included on the jury. In R. v. Kent, Sinclair and Gode (reflex-logo) reflex, (1986), 27 C.C.C. (3d) 405 at 421, Matas J.A. writing for the Manitoba Court of Appeal found that deliberate exclusion of persons of a particular racial origin from jury panels would violate the Charter. However, he further held that this does not mean that an accused has the right to be tried before members of his own race at pp. 421-22:

The equality provisions of s. 15 do not require a jury composed entirely or proportionately of persons belonging to the same race as the accused. An accused has no right to demand that members of his race be included on the jury. To so interpret the Charter would run counter to Canada's multicultural and multiracial heritage and the right of every person to serve as a juror (unless otherwise disqualified). It would mean the imposition of inequality. See the comment of Galligan J. in R. v. Bradley and Martin (No. 2) (1973), 23 C.R.N.S. 39 at 40-1:

In my view it would be as much discrimination to insist that a particular number of persons be of a particular race or colour as it would be to say that such persons cannot participate as jurors in the trial process.

As was pointed out by Professor Smith [(1984), 18 U.B.C. Law Rev. 351], at 394:

It does not seem necessary or desirable to rest the argument upon the premise rejected in R. v. LaForte, namely, that trial by peers must involve the actual presence on the jury of persons from the same demographic group as the litigant. The difficulties of that position are obvious. How finely tuned should the definition of the group be ... .

In any event, it is not enough to point to the absence of a member of a particular race on a particular jurors' list as proof of discrimination. Mere assertion is not proof. The jurors' list in the case at bar is racially neutral and must be presumed to provide a fair cross-section of the community and to be reasonably representative.

[64] It is quite properly submitted by the respondent that jury impartiality and jury representativeness should not be confused. Partiality arises where there exists a realistic potential that the jury would not be indifferent to the result. Representativeness is a different concept in that it does not focus on the "state of mind" of the jurors but rather on whether they are drawn randomly from a fair cross-section of the community.

[65] In R. v. Williams, [1998] S.C.J. No. 49, rendered June 4, 1998, the Supreme Court of Canada recognized that the right to an impartial jury is also an anti-discrimination right protected by s.
15. McLachlin J. wrote at para. 48:

The accused's right to be tried by an impartial jury under s. 11(d) of the Charter is a fair trial right. But it may also be seen as an anti-discrimination right. The application, intentional or unintentional, of racial stereotypes to the detriment of an accused person ranks among the most destructive forms of discrimination. The result of the discrimination may not be the loss of a benefit or a job or housing in the area of choice, but the loss of the accused's very liberty. The right must fall at the core of the guarantee in s. 15 of the Charter that "[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination".

[66] However, we are not persuaded that exclusion of non-citizens adversely impacts upon the appellant's right to a trial by an impartial jury. In this respect, we think that it is important to bear in mind that as a result of this court's decision in Parks and the decision of the Supreme Court of Canada in Williams a black accused in this province is entitled to challenge for cause every prospective juror called on the basis of indifference to race. In Williams, McLachlin J. pointed out that although allowing challenges for cause in the face of widespread racial prejudice in the community cannot eliminate the possibility of jury verdicts being affected by racial prejudice, it can have important benefits at para. 50:

All remaining jurors will be sensitized from the outset of the proceedings regarding the need to confront racial prejudice and will help ensure that it does not impact on the jury verdict. Finally, allowing such challenges will enhance the appearance of trial fairness in the eyes of the accused and other members of minority groups facing discrimination: see Parks, supra.

[67] In light of the Parks/Williams challenge for cause and other safeguards to ensure trial fairness, the slight statistical advantage to a black accused of permitting non-citizens to serve on a jury does not constitute an advantage for the purposes of s. 15. The inclusion of non-citizens would not materially increase the possibility that a black juror will in fact end up on the jury, bearing in mind that the statistical probability of choosing a black person on the jury is increased by less than 1%. The burden was on the appellant to show that he was deprived of a real benefit or advantage. He does not meet that burden by merely pointing to these statistics. We are unable to draw the inference that this statistical probability would materially enhance trial fairness for the appellant or any other black accused.

[68] In conclusion we are of the opinion that the citizenship requirement in the Juries Act does not contravene s. 15 of the Charter even though the elimination of the citizenship requirement would increase the probability of choosing a black person on a jury in Metropolitan Toronto from 3.2 in a hundred to 4.1 in a hundred.

THE WIRETAP AUTHORIZATION

[69] The police investigation of the appellant relied in significant measure on evidence gathered pursuant to a wiretap authorization issued on August 19, 1991. The appellant raises various arguments in connection with that authorization. We find it necessary to deal only with his primary challenge, which arises from the process used for disclosure of the contents of the wiretap packet.

[70] In broad outline, the circumstances are these: the appellant applied to the trial judge for disclosure of the wiretap packet. He received an edited copy of the affidavit used to support the wiretap application and a judicial summary of the excluded parts of that affidavit. They were the product of a private meeting between the Crown and the trial judge in chambers. The appellant subsequently moved for further disclosure of the excised portions of the affidavit. The trial judge then had two more private meetings with Crown counsel to discuss the editing, after which he confirmed that there would be no change in the edited copy or the judicial summary. The appellant argues that these three meetings resulted in his exclusion from a part of his trial, and that this error in law is beyond the reach of the proviso found in s. 686(1)(b)(iv). For the reasons that follow, we agree.

[71] On November 16, 1993 the trial judge began to hear pre-trial motions, prior to the empanelling of the jury. One of these motions was the appellant's application to open the wiretap packet and obtain a copy of the affidavit sworn by Sergeant Bowen in support of the wiretap authorization.

[72] This application was granted to the extent that the appellant received an edited copy of the affidavit and a judicial summary of those parts of the affidavit which the editing had excluded. Prior to providing these to the appellant, the trial judge had met in chambers with Crown counsel to receive his submissions about the deletions which ought to be made. The trial judge then edited the affidavit as proposed by the Crown and prepared his judicial summary in consultation with the Crown. The meeting at which all this took place was ex parte. Neither the appellant nor his counsel were present. Nor was a transcript kept.

[73] After reviewing the edited copy of the affidavit and the judicial summary, the appellant moved for further disclosure. The trial judge ruled that the motion was premature. The appellant then sought a ruling as to the scope of permissible cross-examination on the motion held pursuant to R. v. Garofoli 1990 CanLII 52 (S.C.C.), (1990), 60 C.C.C. (3d) 161 (S.C.C.). The trial judge determined that cross-examination was to be limited to whether the authorization was obtained fraudulently and what other investigative procedures were available.

[74] After evidence but prior to argument on the Garofoli motion, the appellant again attempted to renew his request to review the editing of the affidavit but the trial judge indicated that he would not deal with this until the Garofoli motion was finished. Ultimately he dismissed that motion, finding that the appellant had not made out any ground for challenging the wiretap authorization.

[75] At this point, the appellant once again renewed his motion for further disclosure, seeking to have the trial judge reconsider the editing of the Bowen affidavit and inviting him to provide an expanded judicial summary. Following argument, the court recessed and, when the trial judge resumed, he put the following on the record:

Of course, everybody in the court room knows I have just seen both Crown Counsel in the jury room privately solely for the purpose of discussing the editing, and what I have asked the prosecutors to do is speak to the officer in charge of the case or such officer as is necessary to consider certain suggestions I have made and to let me know ten o'clock tomorrow.

[76] The following morning the trial judge opened court with this:

I have gone through the packets again and taken the liberty also this morning in speaking with the Crown Attorney solely about the editing, and I have come to the conclusion that no further information can be disclosed other than what is in the judicial summaries originally prepared, that any information that is not referred to in the summary would almost certainly identify the informant. As a matter of public policy I am not going to include any of that information in the judicial summaries. I am equally persuaded that it is most unlikely that any of the information which is not disclosed could form any substantial or even remote part of the defence to the allegations that are on the indictment (except that it is not my role to advise the defence in any case). But nevertheless I think it worthwhile to mention that I have tried to play that role, I could not conceive that the information being of any use at all. So under the circumstances the second judicial summary will be identical to the first and that is Exhibit A on the motion.

[77] Both these meetings excluded the appellant and his counsel. No transcript was kept of either meeting.

[78] The appellant argues that these circumstances constitute his wrongful exclusion from part of his trial and that the saving provisions of s. 686 of the Criminal Code should not be applied.

[79] It is a fundamental principle of our criminal law that a person charged with an indictable offence is entitled to be personally present at his trial. Its constitutional foundation is the right of an accused to a fair and public trial. This principle is codified in s. 650(1) of the Criminal Code. It is clear that this section is to receive an expansive interpretation, primarily in determining what is part of the "trial" for the purposes of the section: see R. v. Barrow 1987 CanLII 11 (S.C.C.), (1987), 38 C.C.C. (3d) 193 at 202 (S.C.C.).

[80] In argument before us, the Crown conceded that the three private ex parte meetings between the trial judge and Crown counsel were part of the appellant's trial. It did not seek to justify the appellant's absence under any of the exceptions provided in s. 650(2) of the Criminal Code.

[81] This concession was properly made. These meetings were the forum in which Crown counsel advanced his views to the trial judge about what parts of the supporting affidavit should not be revealed to the appellant and what judicial summary of the exclusions should be provided to him. The trial judge's determination of both matters appears to have been made at the first meeting. The second and third meetings resulted in his confirmation of this determination.

[82] The appellant's ability to argue for further disclosure, his ability to cross-examine the deponent of the supporting affidavit, his ability to argue the Garofoli motion itself, and indeed his general ability to make full answer and defence were all affected by what went on at these meetings and the disclosure received as a result. They clearly had a bearing on the substantive conduct of the trial: see R. v. Hertrich, Stewart and Skinner (reflex-logo) reflex, (1982), 67 C.C.C. (2d) 510 at 529 (Ont. C.A.), leave to appeal to the Supreme Court of Canada refused October 14, 1982.

[83] Hence these private ex parte meetings clearly attract the operation of the fundamental principle embodied in s. 650(1) of the Criminal Code. They were a part of the appellant's trial and should not have been conducted in his absence.

[84] Moreover, there is nothing in the Criminal Code section dealing with the Garofoli procedure that would suggest otherwise. Section 187 of the Criminal Code deals with the storage and removal of material filed in support of an application for a wiretap authorization. Following Garofoli, this section was amended to provide inter alia that the editing of wiretap affidavits is, in the first instance, the responsibility of the prosecutor. Section 187(4) now makes this clear. Section 187(7) goes on to speak to the possibility of the trial judge, following submissions, ordering further disclosure of the edited affidavit or providing a judicial summary of the exclusions. This subsection reads as follows:

(7) An accused to whom an edited copy of a document has been provided pursuant to subsection (5) may request that the judge before whom the trial is to be held order that any part of the document deleted by the prosecutor be made available to the accused, and the judge shall order that a copy of any part that, in the opinion of the judge, is required in order for the accused to make full answer and defence and for which the provision of a judicial summary would not be sufficient, be made available to the accused.

[85] Nothing in this subsection erodes the right of an accused to have the submissions of Crown and defence on the editing of the affidavit and the adequacy of the judicial summary made in open court.
[86] Indeed, prior to the amending of s. 187, the relevant jurisprudence made clear that submissions on editing should be made in open court. In Garofoli itself, Sopinka J. suggested the procedure to be followed in disclosing the contents of wiretap affidavits to the accused. He set out the first three steps at p. 194:

1. Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.

2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.

3. After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.

[87] The clear implication of this passage is that the submissions to the trial judge about the editing of the affidavits are to be made in open court where Crown and defence can have the benefit of hearing the other submissions. In R. v. Rowbotham 1988 CanLII 147 (ON C.A.), (1988), 41 C.C.C. (3d) 1 at 43-44 (Ont. C.A.), this court made explicit that the Crown's submissions on the editing initially proposed by the trial judge should be made in open court. In so doing, this court was endorsing the procedure first laid out by Watt J. in R. v. Parmar (reflex-logo) reflex, (1987), 34 C.C.C. (3d) 260 (Ont. H.C.J.).

[88] This requirement of an open process, which is now clearly implicit in s. 187(7), has a principled foundation that was eloquently described by Doherty J.A. in R. v. Durette 1992 CanLII 2779 (ON C.A.), (1992), 72 C.C.C. (3d) 421 at 468 (Ont. C.A.)[1] :

It is obvious that the application for and the granting of the authorization must be done in secret in order to permit effective police investigation of suspected crimes. That secrecy should, however, be maintained only as long as it is essential to the effective operation of the process. When a judicial process such as the granting of a "wiretap" authorization is, of necessity, done out of the public sight, the opportunity for subsequent public examination of that process becomes very important. Public scrutiny of that secret process after the need for secrecy is gone enhances public confidence in the criminal justice system, and encourages those who resort to this invasive investigative tool to do so in a manner that will withstand the light of open court and the heat of the adversary process.

[89] There is no doubt that there is a tension between this requirement and the Crown's ability to make completely unconstrained submissions to the trial judge concerning, for example, whether further disclosure would compromise the identity of a police informant. Indeed, if an accused were of the view that fuller disclosure might result from the Crown being able to make private submissions to the trial judge, s. 650(2)(b) would permit an ex parte meeting such as took place here to be held on consent. Even here a full transcript should be kept. Absent consent, however, the overriding consideration must be as set out by Dickson C.J.C. in Barrow at pp. 203-204:

Martin J.A. in Hertrich identified two important principles that underlie s. 577 [now s. 650]. First, the accused is present to hear the case he or she faces and is thereby able to put forward a defence. Secondly, the accused sees the entire process by which he or she is tried and is able to see that the correct procedure is followed and the trial fair. For Martin J.A., the second principle was the more important one. I agree with him that this second value is of enormous importance to the perceived fairness of the Canadian criminal justice system. The sight of a judge conferring in private with jurors on issues that go to the partiality of the trier of fact can only prompt cynicism in an accused. It should be avoided.

[90] It is no different when the trial judge confers in private with Crown counsel concerning the disclosure to be made to the accused from the wiretap packet.

[91] We therefore conclude that in the circumstances of this case the appellant was wrongly excluded from a part of his trial contrary to s. 650(1) of the Criminal Code. We must therefore turn to a consideration of whether this error in law can be saved pursuant to s. 686.

[92] The relevant proviso is found in s. 686(1)(b)(iv) of the Criminal Code. It reads:

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

(b) may dismiss the appeal where

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

[93] In R. v. Cloutier 1988 CanLII 199 (ON C.A.), (1988), 43 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal to the Supreme Court of Canada refused October 19, 1989, this court discussed the applicability of this proviso to the wrongful exclusion of the accused from a part of his trial. In doing so, the court enunciated the following clear and unequivocal principles drawn from the relevant jurisprudence at pp. 42-3:

(1) [As set out in s. 650(1),] [a]n accused has an absolute right to be present in court during the whole of his trial.

(2) A trial judge has the discretion to cause the accused to be removed from or permit him to be out of court only in the circumstances provided for by s. 577(2) [now s. 650(2)] (which are not applicable on the facts of the case at bar).

(3) The infringement of this right is an error that destroys jurisdiction without the necessity of the accused showing he has suffered prejudice ... [citation ommitted]

(6) [Paraphrased] The denial to the accused of this right is fundamental and cannot be cured by s. 686(1)(b)(iii) since the absence of the accused deprives the court of all jurisdiction.

[94] Writing on behalf of the court, Goodman J.A. went on to address the rationale for the enactment in 1985[2] of s. 686(1)(b)(iv). He wrote, at p. 51:

It is my opinion that the wording of s. 613(1)(b)(iv) [now s. 686(1)(b)(iv)] is such that it clearly indicates that Parliament intended by its enactment to give to the Court of Appeal the right to apply its curative provisions by exercising its discretion in favour of dismissing an appeal in cases where the trial court had jurisdiction over the class of offence of which the appellant was convicted notwithstanding the fact that an error of law had been made by a procedural irregularity which was so serious in nature as to cause a loss of jurisdiction provided that the Court of Appeal is of the opinion that the appellant suffered no prejudice thereby.

In my opinion the concluding words of s. 613(1)(b)(iv) [now s. 686(1)(b)(iv)] make it clear that, although an appellant need not show that he has suffered prejudice in order to deprive the Crown of the curative provisions thereof, if the Court of Appeal is of the opinion that the appellant suffered no prejudice from the exclusion of the appellant from some stage of his trial, it may dismiss the appeal.

[95] Finally, Goodman J.A. made clear that even where the exclusion of the accused from a part of his trial creates no prejudice, this court may refuse to use the proviso to dismiss the appeal if the exclusion sufficiently damages the appearance of justice. He put it this way at p. 52:

There may be cases, for example, where a trial judge excludes an appellant intentionally after it has been brought to his attention that such exclusion is contrary to the provisions of s. 577(1) [now s. 650(1)]. It may be that in such a case, the Court of Appeal is satisfied that an appellant suffered no real prejudice as a result of such exclusion. Nevertheless, it seems to me that in such circumstances the Court of Appeal may refuse to exercise the discretion given to it under s. 613(1)(b)(iv) [now s. 686(1)(b)(iv)] to dismiss the appeal so that justice will not only be done but will be seen to be done.

[96] We agree. The perceived fairness of the criminal justice system is its most vital characteristic. Public confidence requires public scrutiny wherever possible. Private trials which exclude the accused are antithetical to this core value. Where the circumstances of the exclusion of the accused are such as to inflict significant damage on the appearance of justice, the question is not whether there is prejudice to the accused. Rather, the issue is the harm to the criminal justice system itself. In such cases the court should refuse to apply this proviso.

[97] In our view, this is such a case. The three private ex parte meetings between the trial judge and Crown counsel constituted an important part of the trial resulting in significant disclosure decisions affecting the appellant's ability to make full answer and defence. Both the appellant and his counsel were excluded from these meetings. The appellant, therefore, had absolutely no window on this part of his trial. There was no transcript kept so that this court is equally without the ability to know what went on. The exclusion of the appellant was not due to mere inadvertence. Important decisions affecting the trial were made in his absence.

[98] Since no transcript was kept, we do not know what submissions were made by the Crown, and so do not know the basis upon which the decisions were made. We cannot, therefore, conclude that the appellant suffered no prejudice.

[99] More importantly, and apart from the question of prejudice to the appellant, the circumstances of his exclusion from his trial are so at odds with the perceived fairness we require of our criminal justice system that s. 686(1)(b)(iv) is inapplicable.

[100] We therefore conclude that the appellant was wrongly excluded from a part of his trial and that this error in law cannot be cured by the application of s. 686(1)(b)(iv). On this basis the appeal must be allowed and a new trial ordered.

THE USE TO WHICH THE JURY COULD PUT THE EVIDENCE RESPECTING THE MISTRIED COUNTS

[101] During the course of the trial, the trial judge declared a mistrial with respect to counts 4 and 5 of the indictment when the testimony of an expert witness with respect to American immigration law changed at trial from the testimony he had given at the preliminary inquiry. The trial continued with respect to the remaining counts in the indictment. The trial judge instructed the jury that it could consider the evidence on counts 4 and 5 to show a system or, as he described it, a "modus operandi" on the part of the appellant.

[102] Having regard to our disposition of this appeal, we do not find it necessary to deal with the submission of the appellant that this instruction was erroneous. The mistried counts, 4 and 5, are proceeding to a separate trial in the near future and the issue will not arise on the new trial that, we have concluded, must be held with respect to the remaining counts.

CONSPIRACY AND THE SUBSTANTIVE OFFENCE

[103] In his factum, the appellant submitted that the trial judge erred in instructing the jury that the appellant could be found guilty of conspiracy even if the conduct attributed to him would not support a conviction for the substantive offence. This ground of appeal was abandoned in argument in light of the recent decision in United States of America v. Dynar 1997 CanLII 359 (S.C.C.), (1997), 115 C.C.C. (3d) 481 (S.C.C.), and neither the appellant nor the respondent addressed any submissions to the court
on the subject.

ENTRAPMENT

[104] The appellant alleged a number of errors said to have been made by the trial judge in his disposition of the post-conviction entrapment hearing. It was submitted that:

(a) he improperly restricted cross-examination respecting the informer who supplied information to the police at the initial stages of the investigation;

(b) he failed to admit evidence that was admissible for the purpose of the entrapment hearing;

(c) he misstated and misapplied the test for entrapment set out in R. v. Mack 1988 CanLII 24 (S.C.C.), (1988), 44 C.C.C. (3d) 513 (S.C.C.); and

(d) having misstated and misapplied the test for entrapment, he failed to order a stay of the proceedings against the appellant.

[105] The respondent conceded that the trial judge erred in ruling that the appellant had to satisfy both branches of the test formulated in Mack in order to succeed on the entrapment application, but argued that the error was immaterial because the appellant had satisfied neither branch of the test. In the respondent's submission, there was no relevant error and thus no substantial wrong or miscarriage of justice.

[106] While the manner in which the trial judge dealt with the issue of entrapment was in some respects erroneous, we consider that it would be inappropriate, on the state of the record before us, to endeavour to make our own independent finding regarding that issue. As we have concluded that there must be a new trial, we are of the view that the issue of entrapment, if it is pursued, should be left for determination and disposition by the judge presiding at that trial on the basis of such evidence as may be adduced before him or her with respect to that issue.

SENTENCE

[107] In addition to a fine of $5,000, the appellant was sentenced to nine months' imprisonment on each of counts 1, 6 and 7, to be served concurrently.

[108] On the appeal, the appellant submitted that he should have been allowed to serve his sentence in the community through the imposition of a conditional sentence. The respondent argued that a term of imprisonment was an entirely fit response to the appellant's established, long-term, conspiracy, conducted for his own private financial gain, to undermine the immigration systems of Canada and the United States.

[109] Having regard to our conclusion that there must be a new trial, we do not consider it appropriate to deal with the question of sentence on this appeal.

DISPOSITION

[110] For the foregoing reasons, the appeal against conviction is allowed, the convictions are quashed and a new trial is ordered.

Released: