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PROCEDURE - Jury - Questioning prospective jurors - Charge or directions

Friday, December 18, 2020 @ 6:11 AM  


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Appeal by three accused from conviction for first-degree murder. The victim was kidnapped and held by armed men for several hours. His hands and feet were bound with duct tape and zip ties. He was shot twice in the head, at close range, with a small-caliber firearm. After that, a hand saw was used to decapitate and dismember his body. The body parts were transported and disposed of. The appellant Theodore argued that he did not receive a fair trial because the trial judge failed to ensure that jurors were properly screened for racial bias and failed to properly instruct jurors on the need to set aside biases, prejudices and stereotypical views about Indigenous persons. Two of the appellants were Indigenous. Theodore was non-Indigenous. The victim was also Indigenous. Theodore argued that racism was so widespread and pervasive in Saskatchewan that there existed an air of reality that jurors would be biased against his co-accused because they are Indigenous. The appellants Bellegarde and Gordon argued that the trial judge’s final instructions to the jury were cumbersome and confusing, failed to properly explain certain aspects of the law and were not functionally adequate. Bellegarde also argued that the trial judge erred by permitting a key Crown witness to testify from a remote location. Because of the nature of the witness’s association to the appellants which stemmed from their mutual involvement in the world of gangs and drug trafficking, the witness feared being subjected to intimidation and violent reprisal if she were required to attend court to give her evidence in person.

HELD: Appeals dismissed. The fact that the trial judge did not ask pre-screening questions of prospective jurors related to racial bias did not constitute legal error. The trial judge was not required, or even permitted, by s. 632(c) of the Criminal Code to question jurors about racial bias as part of the pre-screening process. Even if widespread prejudice against Indigenous persons existed in Saskatchewan, there was no basis to conclude that Theodore’s s. 11(d) Charter rights were violated. The existence of widespread racial prejudice did not mean an apprehension of bias would necessarily exist just because a person on trial was a member of a minority or disadvantaged group. None of the appellants raised any concern about the prospect of widespread prejudice against Indigenous persons during the jury selection process or at any other time during the trial. None of the complaints raised by Theodore rendered his trial unfair or created the appearance of unfairness resulting in a miscarriage of justice. The trial judge selected the proper legal test and examined properly the factors in determining whether the witness could testify remotely. Taking into consideration the nature of the offences, the witness’ relationship to each of the appellants, her role in the events surrounding the commission of the offences and the testimony she gave regarding the reasons for her fears and the concern for her safety, the evidence before the trial judge was more than sufficient to find that an order for remote testimony would enhance, rather than impede, the truth seeking function of the trial. The trial judge properly instructed the jury on the elements of constructive first-degree murder. The trial judge approached her instructions in a step-by-step fashion, referring to each essential element that the Crown had to prove to establish Bellegarde’s guilt. The instructions about post-offence conduct very clearly identified the evidence that was in issue in that regard, clearly and correctly described the use that could be made of the evidence and what issues it related to. The trial judge adequately related the evidence to the issues the jury had to determine. The trial judge’s review of the evidence was adequate as it related to Gordon. Since much of the evidence against Gordon was also relevant to more than one element of the offence, it was unnecessary to repeat it. When the trial judge reviewed the theories of the Crown and Gordon, she did so in a fashion that made clear what questions the jurors had to resolve and framed the issues in a way that signalled to them what evidence was relevant to their consideration.

R. v. Theodore, [2020] S.J. No. 446, Saskatchewan Court of Appeal, R. Leurer, J.A. Tholl and J.D. Kalmakoff JJ.A., November 24, 2020. Digest No. TLD-December142020010