R. v. Gayle

R. v. Gayle Collection Decisions of the Court of Appeal Date 2001-04-27 Docket numbers C28699 Judges Osborne, Coulter Arthur Anthony; Doherty, David H.; Sharpe, Robert J. Subject Criminal Decision Content DATE: 20010427 DOCKET: C28699 COURT OF APPEAL FOR ONTARIO OSBORNE A.C.J. O., DOHERTY and SHARPE JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) ) Maurice A. Charles, Melvyn Green and Jonathan Dawe, for the Appellant Respondent ) ) - and - ) ) CLINTON GAYLE ) ) Michael Bernstein, for the Respondent Appellant ) ) Heard: February 13 & 14, 2001 On appeal from convictions for first degree murder and attempted murder by Justice John David Watt, sitting with a jury, on January 11, 1996. SHARPE J.A. OVERVIEW [1] On June 16, 1994, two white police officers, Todd Baylis and Michele Leone, were on a routine foot patrol at a Toronto apartment complex known to be frequented by drug traffickers. They encountered the appellant, Clinton Junior Gayle, who is black. A struggle ensued and exchange of gunfire followed. Baylis was shot in the head at close range and killed. Both Leone and the appellant were wounded. According to Leone, the appellant attacked Baylis, attempted to flee, and in the ensuing struggle pulled his gun and shot Baylis dead and wounded Leone. The appellant denied attacking Baylis and insisted that he simply attempted to evade the two police officers. He says they pursued him without lawful cause, discharged pepper spray in his face, and then fired at him as he fled. In fear for his life, he drew the loaded gun he was carrying and returned the fire, killing Baylis and wounding Leone in self-defence. [2] The appellant was charged with the first degree murder of Baylis and with the attempted murder of Leone. After a 21-day jury trial, he was convicted on both counts and sentenced to life imprisonment, without eligibility for parole for 25 years, for first degree murder, and to a concurrent sentence of life imprisonment for attempted murder. [3] The appellant raises several grounds of appeal. The three principal grounds of appeal relate to the manner in which the jury was selected. The appellant submits: (1) that the trial judge erred in limiting the questioning of perspective jurors as to possible racial bias; (2) that the trial judge erred in excusing a prospective juror after the triers were unable to agree on a challenge for cause; and (3) that the Crown improperly exercised its peremptory challenges in a discriminatory manner, eliminating two black jurors found to be impartial on the challenge for cause. The appellant further submits that the trial judge erred in law in admitting certain evidence regarding the appellant’s immigration status and criminal record, as well as on a number of points in his instructions to the jury. On these grounds of appeal, we only found it necessary to call on counsel for the respondent with respect to the trial judge's ruling on the appellant's application pursuant to R. v. Corbett, [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385 to exclude part of his criminal record admitted by the trial judge on the issue of the appellant's credibility. FACTS [4] The contentious grounds of appeal do not require detailed review of the evidence. On June 16, 1994, Constable Todd Baylis, a 27-year-old white male who had been a police officer for three years, was on duty with his partner of eight months, Constable Michele Leone. Leone, then 30 years old, had been a police officer for two years. Baylis and Leone were instructed to conduct a routine foot patrol of an apartment complex on Trethewey Drive in Toronto. The purpose of the patrol was to increase police visibility in response to a reported increase in drug trafficking in the area of the apartment complex. [5] While conducting the patrol, Baylis and Leone encountered the appellant, Clinton Junior Gale, a black man then 26 years old. The appellant had in his possession 14.5 grams of crack cocaine and a fully-loaded illegal semi-automatic handgun. At the time, the appellant was subject to a deportation order that was under appeal. The precise nature of the encounter, which ultimately led to the death of Baylis and the wounding of both Leone and Gale, was hotly contested at the appellant's trial on charges of first degree murder and attempted murder before judge and jury. The two key witnesses were Leone and the appellant. They gave conflicting versions of what led to the violent encounter that resulted in tragic consequences for all concerned. [6] There was no dispute that when Baylis and Leone began their "walk-through" of the apartment complex, they were both acting in the course of their duties as police officers. The Crown's theory, based principally on the evidence of Leone, was that the appellant assaulted Baylis by punching him in the chest. The two officers pursued the appellant with the intention of arresting him for assaulting Baylis. They chased the appellant and caught him, but he struggled in an attempt to flee. Leone used pepper spray in an attempt to subdue the appellant but the appellant only increased his efforts to break free. According to Leone, the appellant was the first to draw his gun. He shot Baylis in the head at close range and wounded Leone. Leone then returned fire and wounded the appellant. [7] The appellant testified in his own defence. It was his evidence that he saw the two officers as he climbed a set of stairs. He insisted that because he was carrying crack cocaine and an illegal handgun, he wanted to avoid any contact with the police. The appellant testified that he turned to go back down the stairs away from the two officers. They responded to his apparent evasion by giving chase. He denied having done anything that would provide a lawful basis for Baylis and Leone to pursue and arrest him and denied that he had assaulted Baylis. He claimed that the two officers caught up to him as he was trying to unlock a door that led to the parking garage. He testified that he was forcibly accosted by the officers. They sprayed him with pepper spray, but he managed to struggle free and ran up the stairs and out of the building. The appellant testified that as he fled, Leone drew his gun and fired a shot at him that missed. Fearing for his life, he drew his own gun and returned fire, killing Baylis and wounding Leone. The position of the defence was that Baylis and Leone were acting unlawfully in attempting to arrest the appellant and that the appellant acted in self-defence. [8] Both the Crown and the defence relied on other aspects of the evidence as supporting their respective theories of the case. The Crown argued that the expert evidence indicating that the appellant's gun was defective and jammed after two shots were fired corroborated its theory that the appellant had fired the first two shots. The Crown's case was also bolstered by an independent witness who heard two initial shots followed several seconds later by further shots with a different pitch. The Crown also relied on the fact that Baylis had been shot in the head at close range. [9] The appellant maintained that Leone's evidence at trial was inconsistent with a statement he gave shortly after the shootings to fellow police officers when he said that the incident started with Leone and Baylis pursuing the appellant when they saw him "bolt" as they approached. The defence also argued that Leone's account of the shootings was contradicted by forensic evidence indicating that the appellant had been shot first, in the back. The defence also relied on an audiotape of a “911” call recorded after the shooting began that indicated at least three shots were fired after Leone placed a distress call. ISSUES 1. Did the trial judge err by limiting the Appellant’s questioning of prospective jurors as to racial bias? 2. Did the trial judge err by dismissing a prospective juror after the triers were unable to agree on the resolution of a challenge for cause, rather than resorting to the procedure contemplated by s. 640(4)? 3. Did the Crown improperly exercise its peremptory challenges by challenging two prospective black jurors? 4. Did the trial judge err in admitting evidence of the appellant's immigration status and prior criminal record? 5. Did the trial judge err in his instructions to the jury? ANALYSIS Issue 1: Did the trial judge err by limiting the Appellant’s questioning of prospective jurors as to racial bias? [10] The appellant sought to challenge prospective jurors for cause in three areas pursuant to s. 638(1)(b) of the Criminal Code. First, as the case had attracted widespread pre-trial publicity, the appellant proposed questions related to exposure to that publicity, including information the prospective juror might have acquired regarding the appellant’s lifestyle and background. Second, as the case involved the death of one police officer and the serious wounding and credibility of another, the appellant proposed questions concerning connections with the police and attitudes regarding the credibility of the police. Third, as charges involved a violent and highly disputed encounter between a black accused and two white police officers resulting in the death of one officer and the serious wounding of the other, the appellant sought to pose eight questions related to possible bias based on his race and immigration status. [11] Before jury selection began, the trial judge considered the questions prospective jurors would be asked on the challenge for cause. The eight questions proposed by the appellant on the question of racial bias were the following: Bias Based on Race and Immigration Status I am now going to ask you a series of questions about racial minorities and black people. Take your time when answering. For each question you simply have to answer “I agree”, “I disagree” or “I’m not sure”. 13. Would you agree or disagree that some races are, by their nature, more violent than others? 14. Would you agree or disagree that blacks come from a less able race, and this explains why they are not as well off as whites and other races? 15. Would you agree or disagree that it is appropriate for black people and white people to marry each other? 16. Would you agree or disagree that you have a favourable attitude toward black people? 17. Would you agree or disagree that there are too many black people living in Toronto? 18. Would you agree or disagree that discrimination against racial minority groups is no longer a problem in Canada? 19. Do you think the views you hold about black people will affect your ability to judge the evidence in this case without bias, prejudice or partiality [or “fairly and neutrally”]? 20. Would your ability to judge the evidence in this case fairly and neutrally be affected by the fact that Mr. Gayle is an immigrant from Jamaica? [12] Crown counsel conceded that challenge for cause was appropriate in all three areas, but submitted that the questions to be put to prospective jurors should be limited. With respect to pre-trial publicity, Crown counsel offered a shorter list of questions excluding questions related to the appellant’s background and lifestyle. Crown counsel submitted that prospective jurors should only be asked if a member of their immediate family is employed as a police officer. On the issue of race and immigration status, the Crown took the position that a single question based on the decision in R. v. Parks (1993), 15 O.R. (3d) 324, 84 C.C.C. (3d) 353 (C.A.) be allowed in the following terms: Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is a black accused? [13] Both parties called expert evidence regarding the proposed questions relating to racial bias that I will review below. After the expert evidence had been heard, the appellant abandoned proposed questions 16 and 18 and agreed to amalgamate questions 19 and 20. In his ruling, the trial judge made no explicit findings on the expert evidence and gave no reasons, but made the following ruling: Each prospective juror may be challenged for cause upon the ground articulated in s. 638(1)(b) of the Criminal Code. The questions that may be asked and the preamble that precedes them are, as follows: On June 16, 1994, Police Constable Todd Baylis of the Metropolitan Toronto Police Force died of a gunshot wound suffered during an encounter at an apartment building on Tretheway Drive in Etobicoke. Police Constable Michele Leone and the accused, Clinton Junior Gayle, also suffered gunshot wounds during this encounter. With the approval of the trial judge, I am going to ask you a series of questions about certain aspects of this case. Please listen to each question carefully. 1. Have you seen, heard or read anything about this case or this accused, Clinton Junior Gayle, on television, radio or in newspapers or through discussions with others? Please answer this question “YES” or “NO”. (IF QUESTION 1 IS ANSWERED “YES”) 2. From what you have seen, heard or read about this case or the accused, on television, radio, in newspapers or in discussion with others, have you formed ANY opinion about the guilt or innocence or the accused, Clinton Junior Gayle? Please answer this question “YES” or “NO”. (IF QUESTION 2 IS ANSWERED “YES”) 3. Despite any opinion that you have formed about the guilt or innocence of the accused, Clinton Junior Gayle, would you be able to set that opinion aside and decide this case only on the evidence that you see and hear given in this courtroom and in accordance with the instructions of the trial judge? 4. Are you related to or closely-connected with, whether through employment, social relationship or otherwise, any member of a Police Force? Please answer this question “YES” or “NO”. (IF QUESTION 4 IS ANSWERED “YES”) 5. Would your relationship to or close connection with any member of a Police Force affect your ability to decide this case fairly and impartially only on the evidence that you see and hear given in this courtroom and in accordance with the instructions of the trial judge? 6. Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the person charged is a black Jamaican immigrant and the victims are white police officers? [14] No issue is taken with the trial judge’s ruling with respect to the questions relating to pretrial publicity or association with the police. The appellant does, however, take issue with the ruling with respect to racial bias and submits that the trial judge erred in limiting the appellant to one question. The appellant argues that the single “rolled-up” question, modeled on the question approved in Parks, was inadequate as it provided no basis for the triers to determine from a negative answer whether the prospective juror was claiming to be free of racial prejudice or, instead, was admitting to such prejudices but was claiming to be able to set them aside. [15] The trial judge's ruling was made after the decision in Parks, but before the Supreme Court of Canada’s decision in R. v. Williams, [1998] 1 S.C.R. 1128, 124 C.C.C. (3d) 481. The appellant places considerable reliance on the distinction drawn in Parks and particularly in Williams between attitudes of racial bias on the one hand, and the impact such attitudes might have upon the behaviour of a juror when deciding the case on the other. In essence, the appellant’s position is that the questions not allowed by the trial judge would have provided the triers with relevant information regarding the attitudes of the prospective jurors towards racial bias or prejudice. The appellant asserts that the elimination of the disputed questions left the triers with nothing more than the prospective jurors’ self-assessment of their own racial attitudes. The appellant submits that the trial judge erred in excluding these questions, as information about attitudes would have better equipped the triers to determine both attitudinal and behavioural partiality, whether conscious or unconscious. [16] The appellant points out that with respect to other challenges for cause based on partiality, the standard practice, followed in the present case with respect to pre-trial publicity and associations with the police, is to pose two separate questions: the first relating to the existence of an opinion or association, and the second to the juror's ability to put that opinion or association to one side and decide the case impartially. The appellant submits that the same pattern should be followed with respect to racial partiality. [17] In Parks at p. 364 C.C.C., Doherty J.A. described the two components of partiality: Partiality has both an attitudinal and behavioural component. It refers to one who has certain preconceived biases, and who will allow those biases to affect his or her verdict despite the trial safeguards designed to prevent reliance on those biases…A partial juror is one who is biased and who will discriminate against one of the parties to the litigation based on that bias. To be relevant to partiality, a proposed line of questioning must address both attitudes and behaviour flowing from those attitudes. The dual aspect of partiality was also discussed by McLachin J. in Williams. At p. 492 C.C.C., she suggested that the question for the triers on a challenge for cause based on an allegation of racial bias was two-fold: It is for the triers on the challenge for cause to determine: (1) whether a particular juror is racially prejudiced in a way that could affect his or her partiality; and (2) if so, whether the juror is capable of setting aside that prejudice. Similarly, at p. 496 C.C.C., when discussing the right of the defence to question prospective jurors, McLachlin J. referred to the attitudinal and behavioural aspects of partiality as two distinct matters of inquiry: The defence may question potential jurors as to whether they harbour prejudices against people of the accused’s race and if so, whether they are able to set those prejudices aside and act as impartial jurors. (Emphasis added) [18] While these statements clearly support the appellant’s contention that there are two discrete aspects of partiality to be addressed by the triers, I do not read them as requiring discrete questions on each aspect of partiality. That, it seems to me, is obvious from the fact that in both Parks and Williams, rolled-up questions addressing both aspects of partiality were said to be appropriate. In Parks, a case dealing with a black accused charged with the second degree murder of a white victim, Doherty J.A. found that the trial judge should have allowed a question along the following lines: “Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is black and the deceased is a white man?” In Williams, McLachlin J. indicated her approval of the questions allowed by the first trial judge, who had declared a mistrial preceding the trial in which no challenge for cause was allowed. Those questions were in the following terms: (1) Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is an Indian? (2) Would your ability to judge the evidence in the case without bias, prejudice, or partiality be affected by the fact that the person charged is an Indian and the complainant is white? [19] Nor do I accept the respondent’s submission that we should regard Parks and Williams as having decided, as a matter of stare decisis, that questions along the lines of those approved in those cases will always be appropriate. The precise nature of the questions to be put to prospective jurors must be determined by the trial judge in the light of the circumstances of each case and in light of evidence called on the issue. Trial judges have an important and well-recognized discretion with respect to challenges for cause: see R. v. Barnes (1999), 46 O.R. (3d) 116, 138 C.C.C. (3d) 500 (C.A.). This discretion was emphasized in Parks at p. 363 C.C.C.: The trial judge must be given some latitude in deciding whether to permit a proposed inquiry. In reviewing that decision, an appellate court cannot simply decide whether it would have allowed or disallowed the questions. The appellate court must be concerned only with whether the trial judge’s decision can be justified as a proper exercise of his or her discretion: R. v. Hubbert, supra, at p. 291. [20] In R. v. Griffis (1993), 16 C.R.R. (2d) 322 (Ont. Gen. Div.) at p. 331, Macdonald J. described the discretion of the trial judge with respect to challenges for cause in the following terms, quoted with approval by this court in R. v R. (R.) (1994), 19 O.R. (3d) 448, 91 C.C.C. (3d) 193 at p. 205: In my respectful opinion, each case must be decided on its facts, and a broad discretion is given to trial judges in order to ensure that the jury selection process results in an impartial tribunal and a fair trial in the circumstances of each case. [21] The discretion does not, of course, amount to a licence for the judge to do as he or she pleases. As Parks and Williams both demonstrate, an appellate court will intervene with respect to the exercise of discretion in relation to challenges for cause in appropriate circumstances. As explained by McLachlin J. in Williams at p. 490 C.C.C.: Judicial discretion, however, must be distinguished from judicial whim. A judge exercising his discretion to permit or refuse challenges for cause must act on the evidence and in a way that fulfills the purpose of s. 638(1)(b) – to prevent persons who are not indifferent between the Crown and the accused from serving on the jury. [22] What considerations should be taken into account in deciding what questions to present on a challenge for cause? The paramount and overriding consideration with regard to the challenge for cause is to ensure an impartial jury. As Parks and Williams establish, steps should be taken to deal with the very real risk that stereotypical thinking, often based upon unconscious and ingrained racial assumptions, will get in the way of impartiality. These attitudes are difficult to identify and combat. They are described as being "buried deep in the human psyche" in Williams at p. 491 C.C.C. and as "resistant to judicial cleansing" in Parks at p. 371 C.C.C. There are, however, other relevant principles to be considered by the trial judge. The first is that under Canadian law, the starting point is that prospective jurors are presumed to be impartial and indifferent between the Crown and the accused: Williams at p. 489 C.C.C. A related principle is that, to the extent possible, inquiries that invade the privacy of prospective jurors and attempt to probe personal feelings, opinions, and beliefs are to be avoided: Parks at p. 360 C.C.C.; Williams at p. 501, 503 C.C.C.; R. v. K. (A.) (1999), 445 O.R. (3d) 641, 137 C.C.C. (3d) 225 at p. 253 (Ont. C.A.). Another important value is the need to ensure an orderly and efficient trial process: Williams at p. 501 C.C.C.. The trial judge is required to "supervise and control the challenge process so that it remains within the bounds of a legitimate inquiry into the impartiality of potential jurors": Parks at p. 362 C.C.C. But, again to quote Doherty J.A. in Parks at p. 379 C.C.C., a passage adopted in Williams at p. 503 C.C.C., "fairness cannot ultimately be measured on a balance sheet" and the design of appropriate jury selection procedures is not to proceed on the basis of a cost-benefit exercise. In the end, the paramount value is impartiality. Impartiality trumps the other values, and where those other values would stand in the way of ensuring an impartial jury, they must yield. [23] In light of these principles, the issue for this court is whether by limiting the appellant to the single, Parks-style question, the trial judge ignored the evidence or otherwise exceeded the permissible limits of his discretion. [24] I turn to the evidence. At trial, the appellant led expert evidence from two social scientists, Dr. Frances Henry, a professor of anthropology at York University with a special interest in racism and Dr. Richard Lalonde, a professor of psychology at York University who was qualified as an expert in test construction in social psychology. Dr. Henry was critical of the reliance on one question to assess what she described as “this extraordinarily complex piece of human behaviour”. Together with Dr. Lalonde, she developed the eight proposed questions set out above. These questions were drawn from research literature on racial prejudice. Dr. Henry had used variants of three of the questions in her own research. However, she had not pre-tested the proposed questions, nor could she offer any empirical studies on the relative effectiveness of the questions as opposed to a single Parks-style question in the context of a jury trial. She did testify that her own research confirmed the efficacy of questions 13, 15, and 17 in identifying racial prejudice. Dr. Henry expressed the opinion that the proposed questions would enhance the prospective jurors' understanding of the Parks questions and “that their candour in answering the Parks question would be raised". Dr. Henry also testified as to the “racialization” and “Jamaicanization” of crime in Toronto, the identification in the public perception of “people of Jamaican origin or Jamaican ethnicity…with a predisposition to criminal activity and to the committing of crime itself.” She expressed the view that the risk of prejudice among prospective jurors was “enormous”. [25] Dr. Lalonde testified that the Parks question was “extremely complex” from a psychological perspective, and that the proposed questions were simpler and more understandable. In Dr. Lalonde’s view, the Parks question invited a “socially appropriate response” while the proposed questions offered prospective jurors “the opportunity to know what is meant by prejudicial attitudes, to give them a chance to reflect upon their attitudes, their beliefs, before answering the fundamental question, which is their ability to judge the evidence without being influenced by these components.” The proposed questions would also, he stated, provide the triers with a context in which to evaluate the prospective jurors' “pronouncement on their ability to evaluate the evidence without bias.” Dr. Lalonde testified that the proposed questions had been drawn from published sources and that they had a proven track record, although he agreed that it would be preferable to pre-test them for use in the jury trial context. [26] The respondent led the evidence of Prof. Jonathan Freedman, a professor of psychology at the University of Toronto with extensive experience and expertise in psychology and the law, and the measurement of attitudes, including the attitudes of jurors. Prof. Freedman testified that the measurement of racial prejudice was an extremely difficult task, complicated by a number of factors. People do not wish to appear to be racially prejudiced and might tailor answers to attitudinal questions accordingly, giving what they perceive to be socially acceptable, rather than strictly truthful, answers. It is difficult to design questions that have sufficient clarity and precision to identify attitudes born of racial prejudice. To ensure effectiveness, the questions should be pre-tested and refined, and a scale should be developed to assess the answers. [27] Prof. Freedman agreed that racism is prevalent in modern Canadian society and that racist attitudes could affect the outcome of a jury trial. He also agreed that, in principle, appropriately designed attitudinal questions would provide the triers with relevant information regarding the attitudes of prospective jurors. He maintained the view, however, that the single, Parks-style rolled-up question was preferable to the questions proposed by the appellant. [28] Prof. Freedman identified two defects in the questions proposed by the appellant. In his view, proposed questions 13, 14, 15, 16, and to a lesser extent, proposed questions 17 and 18 were "transparent" and failed to address the problem that some prospective jurors would be prone to give what they perceived to be the socially desirable response. In his view, asking these questions would create the risk that the honest and introspective juror, willing to admit to some prejudice, would be excluded, while those jurors who fail to recognize or admit their prejudicial attitudes, and who are susceptible to giving the response that seems socially desirable, would be included. He also testified that questions 13, 14, 16, 17, and 18 were ambiguous or "double-barreled", and that they lacked the precision necessary to provide effective assistance to the triers. [29] The advantage of the Parks-style rolled-up question, according to Prof. Freedman, was that it is an "absolutely straight-forward question", the answer to which can readily be assessed by the triers. While it is not an easy question to answer and requires considerable introspection, it is easily understood and "not in the least bit ambiguous." In Prof. Freedman's view, the triers would have been worse off with the series of questions proposed by the appellant than with the single Parks question: "I think that they would have more difficulty with the series of questions, even if they were good questions, than they would with one question, unless the questions were really excellent." He pointed out that the answers to the proposed questions could not be relied on as accurately revealing attitudes towards racism: [W]ith questions that haven't been tested, we don't know their validity, we don't know how they hang together, and even if we did we can't tell the juries because we're not going to give them a course in scale construction or anything like that. They have to judge it. I think it's exceedingly difficult for them to do it. … I think they would do better on one question where the answer was perfectly clear… [30] While Prof. Freedman was in favour of asking attitudinal questions in principle, he pointed out that "you'd really have to work at those questions, not bring together a group of questions that are ambiguous and difficult to evaluate." [31] Throughout a vigorous cross-examination, Prof. Freedman maintained his position that the single Parks question was preferable to the series of questions proposed by the appellant. He agreed that the Parks question gives triers little to go on and that it required the triers to trust the self-assessment of the prospective juror. However, he maintained that the information to be gleaned from the appellant's proposed questions would not be helpful: My difficulty with this set of questions is that it may not provide useful information to the trier. I mean, I sympathize with the attempt to do better than Parks, I just don't think even if the questions were worded unambiguously, I think it’s not so simple. [32] The issue whether the additional questions proposed by the appellant would assist the triers in determining whether prospective jurors were impartial was, in the end, very much a disputed question of fact. It is unfortunate that, despite hearing this evidence and the extensive arguments of counsel over the course of a four-day voir dire, the trial judge made no explicit factual findings, nor did he provide reasons for his order limiting the appellant to the single, rolled-up question modeled on that used in Parks. He was not, of course, strictly required to give reasons. From the order he made, it would seem that the inevitable inference is that he preferred the evidence of Prof. Freedman to that of the experts called by the appellant. [33] In my view, the evidence of Prof. Freedman provided an adequate factual basis for the trial judge's ruling. While the task of this court is made more difficult by the trial judge's failure to make any explicit findings, there was a solid foundation in the evidence for the ruling he made. I am not persuaded that there is any basis on this record for this court to interfere with his decision to limit the appellant to a single, rolled-up question on the challenge for cause based on racial partiality. [34] I wish to emphasize that these reasons should not be read as foreclosing the possibility of appropriately framed attitudinal questions being put to jurors on challenges for cause. Such questions have been allowed in the past. In Griffis, Macdonald J. was presented with apparently uncontradicted expert evidence from one of the witnesses who testified for the appellant in the present case, supporting distinct questions on attitudes to racial issues. He allowed the questions, concluding at p. 108 “that Parks has not narrowed my discretion respecting the form and number of questions to be permitted in challenges for cause involving the trial of black persons who are accused of a criminal offence...” It seems to me that it is important to maintain a flexible and open-minded approach on this issue. Parks and Williams reinforce the need for vigilance against the very real risk that the right of an accused person to a fair trial may be undermined by racist attitudes, whether conscious or subconscious. Trial judges should avoid adopting a routine, mechanical or formulaic approach in this difficult and sensitive area. It may well be that with the benefit of experience and the help of expert analysis on how best to uncover and assess racial bias, the challenge for cause process can be improved over time. However, in the circumstances of the present case I am not satisfied that there is any basis for this court to interfere with the decision made by the trial judge and I would accordingly dismiss this ground of appeal. Issue 2: Did the trial judge err by dismissing a prospective juror after the triers were unable to agree on the resolution of a challenge for cause, rather resorting to the procedure contemplated by s. 640(4)? [35] The procedure for determining challenges for cause is set out in s. 640 of the Criminal Code: 640.(1) Where the ground of a challenge is that the name of a juror does not appear on the panel, the issue shall be tried by the judge on the voir dire by the inspection of the panel, and such other evidence that the judge thinks fit to receive. (2) Where the ground of a challenge is one not mentioned in subsection (1), the two jurors who were last sworn, or if no jurors have then been sworn, two persons present whom the court may appoint for the purpose, shall be sworn to determine whether the ground of challenge is true. (3) Where the finding, pursuant to subsection (1) or (2) is that the ground of challenge is not true, the juror shall be sworn, but if the finding is that the ground of challenge is true, the juror shall not be sworn. (4) Where, after what the court considers to be a reasonable time, the two persons who are sworn to determine whether the ground of challenge is true are unable to agree, the court may discharge them from giving a verdict and may direct two other persons to be sworn to determine whether the ground of challenge is true. [36] Since 1992, trial judges have been given the discretion to excuse jurors in the following terms: 632. The judge may, at any time before the commencement of a trial, order that any juror be excused from jury service, whether or not the juror has been called pursuant to subsection 631(3) or any challenge has been made in relation to the juror, for reasons of (a) personal interest in the matter to be tried; (b) relationship with the judge, prosecutor, accused, counsel for the accused or a prospective witness; or (c) personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused. [37] On the third day of jury selection, after ten jurors had been selected, an issue arose with respect to a challenge for cause. In answer to the questions relating to pre-trial publicity, a prospective juror testified that he had formed an opinion about the guilt or innocence of the appellant. However, he also stated that despite that opinion, he would be able to decide the case on the evidence and in accordance with the instructions of the trial judge. The two triers were unable to agree whether the prospective juror was partial or impartial. The trial judge gave them a further instruction on the test they were to apply. They deliberated further, but were still unable to agree. The trial judge then indicated that he proposed to excuse the prospective juror. Counsel for the appellant asked that the issue be submitted to other triers. He noted that s. 640(4) was phrased in permissive terms, but submitted that the trial judge had no authority “to dismiss a prospective juror who has otherwise passed all of the initial hurdles or qualifications, and whose suitability has been placed in the hands of the triers.” [38] The trial judge indicated that there were “practical” problems submitting the issue to two more triers. He did not want to draw two triers from the body of the court as they had watched the proceedings, and the other prospective jurors had been temporarily excused from the courthouse while the selection process continued. The trial judge also indicated that he was reluctant to take to triers from those remaining in the panel, thereby reducing the number of available prospective jurors. The appellant’s counsel stated that his point of substance was a jurisdictional one, but indicated that he appreciated the practical advantages of excusing the prospective juror, and recognized that in its terms, s. 640(4) is discretionary. Crown counsel agreed with the proposed course indicated by the trial judge. The trial judge ruled as follows: I think in the circumstances of this particular case I will discharge the prospective -- or excuse the prospective juror from further service, on the basis that the triers appear unable to agree on whether the prospective juror is or is not impartial. After a reasonable period of time they have twice reported disagreement on the issue. In the circumstances, it seems to me appropriate and fair to both the defence and the prosecution that the prospective juror about [whose impartiality] there appears some doubt be excused from service. [39] The appellant concedes that he suffered no tangible prejudice on account of the prospective juror being excused, but submits that the trial judge erred in failing to follow the procedure contemplated by s. 640(4) and that the error is incurable. The respondent submits that in the circumstances, the trial judge had the discretion to excuse the prospective juror pursuant to the language of 640(4) itself and pursuant to s. 632. [40] It is well established that a trial judge has no authority to avoid the process mandated by the Criminal Code by assuming the power to decide contested issues of the partiality of prospective jurors . The leading case is the decision of Dickson C.J.C. in R. v. Barrow, [1987] 2 S.C.R. 694, 38 C.C.C. (3d) 193. In Barrow, there had been extensive pre-trial publicity. The trial judge effectively created his own process for determining whether prospective jurors were impartial. At the commencement of the selection process, he addressed the entire panel and asked those prospective jurors who felt that they could not be impartial to come forward. Out of the hearing of the accused and his counsel, and over counsel’s objection, the trial judge examined the prospective jurors under oath and considered their claims. Using this procedure, he excused thirty-six of the eighty-three prospective jurors. Dickson C.J.C. held that the procedure adopted by the trial judge deprived the accused of his statutory right to be “present” throughout the whole of his trial. Dickson C.J.C. rejected on constitutional grounds the submission that the procedure was permitted under a broadly worded provincial provision allowing judges to excuse prospective jurors. Provincial legislation, he held at p. 208 C.C.C., related only to the administrative task of assembling a jury panel and had to be interpreted so as to conform to the constitutional limits of provincial jurisdiction. Provincial legislation had no application to the trial process itself nor to “the precautions necessary to ensure an impartial jury.” Once that point was reached, Dickson C.J.C. stated at pp. 208-09 C.C.C., the procedure mandated by the Criminal Code for the selection of an impartial jury governed: The Code sets out a detailed process for the selection of an impartial jury. It gives both parties substantial powers in the process and sets up a mechanism to try the partiality of a potential juror when challenged for cause. The trier of partiality is not the judge but a mini-jury of two potential or previously selected jurors (s. 569(2)). Overall, it is a comprehensive scheme designed to ensure as fair a jury as is possible and to ensure that the parties and the public at large are convinced of its impartiality. Any addition to this process from another source would upset the balance of the carefully defined jury selection process. This is especially the case of any attempt to add to the powers of the judge. Parliament has decided that the issue of partiality is a question of fact that must be decided by two of the jurors themselves, not by the judge. The province cannot give the judge any power to make decisions as to partiality and any judge who attempts to participate in such decisions usurps the function of the jurors established by s. 569(2). Usurpation of this sort is so severe an error of law by the judge that it mandates a new trial, even if no prejudice to the accused can be shown (R. v. Guérin and Pimparé, supra). The judge’s role is to supervise trials of partiality, not to decide them. [41] Similarly, in R. v. Guérin and Pimparé (1984), 13 C.C.C. (3d) 231 (Que. C.A.), it was held that the trial judge had erred by ignoring the procedure mandated by the Criminal Code for the determination of challenges for cause and appropriating for himself the role of questioner of the prospective jurors and trier of the issue of their impartiality. Bisson J.A. at p. 245, made reference to the very specific procedure of s. 569(4) (now s. 640(4)) as evidencing Parliament’s intention to exclude the judge from having a deciding role on impartiality: Parliament has manifested so precisely its intention to confide this decisional power in two persons other than the judge that it specified that if the two jurors could not reach a decision on the challenged prospective juror’s impartiality, it was not the judge who would then decide, but rather two other persons who would be sworn to hear anew the evidence with respect to the aptitude of the prospective jurors (s. 569(4)). [42] This passage was applied in the only authority to which we were referred dealing with the very issue that arose in the present case, R. v. Brigham (1988), 44 C.C.C. (3d) 379 (Que. C.A.). There, as in the present case, the trial judge had excused a prospective juror after the triers were unable to agree. Jacques J.A., at p. 382, referred to the above passage from Guérin and Pimparé and stated: “The jurisprudence has interpreted this provision as meaning that a judge cannot decide this question himself. Therefore, the judge does not have the choice of applying s. 569(4) [now 640(4)] or not.” This, it should be noted, was but one of four successful grounds of appeal raised by the appellant and it was only briefly considered. [43] In R. v. Sherratt, [1991] 1 S.C.R. 509, 63 C.C.C. (3d) 193 at pp. 209-10, L’Heureux-Dubé J. agreed with the judgment of this court in R. v. Hubbert (1975), 11 O.R. (2d) 464, 29 C.C.C. (2d) 279 at p. 293 (aff’d (1976) 33 C.C.C. (2d) 207n (S. C. C.) that trial judges have jurisdiction to excuse jurors for “obvious partiality,” for example “if the juror is the uncle of the accused, or the wife of a witness, or the brother of the investigating police officer, he ought not to serve.” However, L’Heureux-Dubé J. added at p. 213 C.C.C. that this jurisdiction applies only “to consensual, uncontested matters of partiality and not where the challenge for cause is grounded on some pertinent allegation as in Barrow, supra and Guérin, supra.” L’Heureux-Dubé J. was insistent at p. 211 that the trial judge has no role to decide disputed issues of partiality: There is absolutely no room for a trial judge to increase further his/her powers and take over the challenge process by deciding controversial questions of partiality. If there exist legitimate grounds for a challenge for cause, outside of the obvious cases addressed by the Hubert, supra, procedure, it must proceed in accordance with the Code provisions… [44] The respondent submits that these authorities must now be read in light of s. 632(c), added to the Code in1992, conferring upon trial judges a broad discretion to excuse jurors for any “reasonable cause that, in the opinion of the judge, warrants that the juror be excused.” The effect of this provision was considered by Moldaver J.A. in R. v. Betker (1997), 33 O.R. (3d) 321, 115 C.C.C. (3d) 421 at pp. 448-49 (C.A.). Commenting on the extent to which a trial judge could avoid a challenge for cause by inviting prospective jurors who felt they might not be able to decide the case impartially to come forward, Moldaver J.A. categorically rejected the suggestion that s. 632 allowed this type of informal judicial cleansing as a substitute for the challenge for cause procedure specified in s. 640. Noting that s. 632 had been enacted one year after the decision in Sherratt, Moldaver J.A. stated that s. 632 codified the power to excuse prospective jurors for the matters of obvious partiality referred to in subsections (a) and (b), and that it added a more general power to excuse for other matters of obvious partiality. He added, however, that to the extent “the alleged ground of partiality is not obvious, then, if the matter is to be pursued, recourse must be had to s. 638(1)(b) [providing for challenges for cause] and the principles which govern its application.” [45] In my view, Barrow and Guérin and Pimparé are distinguishable from the case at bar. Both cases involved profound and pervasive interventions by the trial judge in the challenge for cause process amounting to what Bisson J.A. described in Guérin and Pimparé at p. 245 as a “systematic take-over” by the trial judge of the procedure contemplated by the Criminal Code for the determination of the impartiality of the jury. Similarly, the concerns expressed in Sherratt and Betker related to situations where the trial judge simply ignored the Criminal Code provisions for the determination of challenges for cause by two triers and substituted an entirely different procedure whereby the judge made that very determination. [46] I do not accept that it would be fair to characterize what occurred in the present case as the usurpation by the trial judge of the process to decide challenges for cause. Up to the point where the two triers were unable to agree on the impartiality of the prospective juror, the trial judge followed the procedure required by s. 640 to the letter. Unlike the situation in Barrow and Guérin and Pimparé, at no time did he purport to decide himself whether or not prospective jurors were or were not impartial. The nature of the discretion claimed here is much narrower. To determine whether it exists and whether it was properly exercised requires consideration both of the language used by Parliament in defining the discretion of the trial judge in such circumstances, and of the precise situation that arose. [47] When one turns to the language used by Parliament to define the powers of the trial judge, one finds the hallmarks of a discretionary power. Turning first to s. 640(4), the provision relied on by the appellant, the duties of the trial judge are defined in permissive rather than mandatory language. Where the two triers are unable to agree, “the court may discharge them from giving a verdict and may direct two other persons to be sworn…” Section 11 of the Interpretation Act, R.S.C. 1985, c. I-21, says that the expression “shall” is to be construed as imperative and the expression “may” as permissive. [48] The discretionary nature of the power of the trial judge is enhanced by the language of s. 632 which expressly applies “whether or not…any challenge has been made in relation to the juror” and confers upon the trial judge the discretion to excuse jurors for “any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused.” The appellant insists on strict compliance with the provisions of the Criminal Code. The difficulty the appellant faces is that those very provisions accord the trial judge a measure of discretion. [49] When one turns to the situation the trial judge faced, one finds that there was a clearly articulated and proper basis for the exercise of his discretion. At the time the two triers were unable to agree, no other triers were immediately available. I do not accept that the situation fell within that being considered in R. v. Wade, [1990] O.J. No. 1768 (C.A.) where it was said that "once the trial of the truth of the challenge is in the hands of the triers, it must be disposed of by them." Here, the truth of the challenge was no longer in the hands of the two triers due to their inability to decide it. It would have been possible to swear two fresh triers, perhaps two people taken off the street, but that would have involved a delay in the proceedings and, had the two triers come from those remaining in the panel, a depletion of the jury panel. The fact that the triers could not agree indicated that the impartiality of the juror was not established. In view of the answer the prospective juror had given to the question regarding pre-trial publicity, it is highly likely that had the juror been found impartial by two other triers, the appellant would have used one of his peremptory challenges to remove him from the jury. [50] Another factor not mentioned by the trial judge but raised during the argument of the appeal is that, in the unlikely event the prospective juror were selected and not peremptorily challenged, that person would have been placed in the invidious position of serving on the jury with one of the triers who had not accepted his sworn assurance that he could decide the case impartially. In order to avoid delaying the trial, reducing the panel of prospective jurors, and almost certainly causing the appellant to use one of his remaining peremptory challenges, the trial judge excused the prospective juror. In my view, given the terms of ss. 640(4) and 632(c), he had the discretion to do so. [51] I recognize that the decision of the Quebec Court of Appeal in Brigham, supra, is to the contrary, insofar as s. 640(4) is concerned. However, the jury selection issue in that case was but one of several raised, and it did not receive detailed consideration by the court. Moreover, the case may be distinguished on the ground that when it was decided, s. 632 had not been enacted. [52] I would add that it seems to me highly desirable that trial judges be accorded a measure of discretion to ensure that the jury selection process proceeds in a fair and efficient manner. In Hubbert, at p. 291 C.C.C., this court referred to the principle “that the trial Judge has a wide discretion and must be firmly in control of the challenge process.” The jury selection process, and especially challenges for cause, are bound to produce unforeseen and unforeseeable contingencies that require immediate practical resolution. The paramount concern must be to ensure that an impartial jury is selected. [53] In my view, it would be wrong to insist upon a rigidly technical approach that could well impair the efforts of trial judges to ensure that an impartial jury is selected and that the rights of the accused are respected. 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. In the present case, as I have already mentioned, there is no suggestion that the trial judge’s decision to excuse the prospective juror impeded the selection of an impartial jury or resulted in any prejudice to the appellant. Indeed, by excusing the prospective juror, the only impact on the appellant was that he was possibly saved one of his peremptory challenges. The trial judge's actions fall into the category described by Moldaver J.A. in Betker, supra, at p. 449 C.C.C., as “harmless" causing "no prejudice to the appellant" and giving him a benefit "to which he was not entitled.” In my view, an appellate court should be wary of interfering in such circumstances. I would dismiss this ground of appeal. Issue 3: Did the Crown improperly exercise its peremptory challenges by challenging two prospective black jurors? [54] At trial, ninety-one prospective jurors were called. Of these, thirty-seven were excused by the trial judge on grounds of personal hardship. Twelve were found not to be impartial by the triers and, as just explained, the trial judge excused a thirteenth was after the triers could not agree on his impartiality. Of the remaining forty-one prospective jurors, ten were peremptorily challenged by the Crown and nineteen by the defence, leaving the twelve who were selected. Crown counsel used peremptory challenges to eliminate from the jury two prospective black jurors, the first after juror 6 had been selected, and the second after juror 8 had been selected. No objection was made by the appellant's trial counsel. Indeed, the trial record is silent on the racial identity of the two prospective jurors who were challenged in this manner and it was only through affidavit evidence, proffered as fresh evidence on appeal, that the two prospective jurors were identified as black. We have no evidence as to the racial make-up of the panel from which the jury was selected. It does, however, appear to be common ground that two of the twelve jurors were members of a visible minorities but that none of twelve jurors was black. [55] The appellant submits that the Crown's use of peremptory challenges to eliminate two prospective black jurors: (1) violated "the appellant's right to a representative jury, as guaranteed by s. 11(f) of the Charter"; (2) infringed the appellant's right to equality guaranteed by s. 15 of the Charter; and (3) infringed the prospective jurors' right to equality guaranteed by s. 15 of the Charter (a) Was there a violation of the appellant's right to the benefit of trial by jury pursuant to s. 11(f) of the Charter? [56] Canadian law recognizes the importance of a representative jury. The importance of representativeness, along with impartiality, was discussed in R. v. Sherratt, at p. 204 C.C.C. per L’Heureux-Dubé J.: "[W]ithout 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.” Representativeness was described at p. 204 C.C.C. as a “crucial characteristic of juries” to which “little if any objection can be made”. Representativeness was also accepted as an important characteristic of the jury in R. v. Bain, [1992] 1 S.C.R. 91, 69 C.C.C. (3d) 481 at p. 530, per Stevenson J. Gonthier J., dissenting in the result but not on this point, stated at p. 494 C.C.C. that “[t]he well-informed observer certainly knows that a jury should be impartial, representative and competent". In Williams at p. 500 C.C.C., McLachlin J. described a "representative jury pool" as one of the safeguards included in the s. 11(d) right to a fair trial and impartial jury. Securing a representative jury enhances impartiality and, as this Court stated in R. v. Church of Scientology of Toronto (1997), 33 O.R. (3d) 65, 116 C.C.C. (3d) 1 at 61 “[t]he 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.” [57] However, it is equally clear that an accused person does not have the right to insist that he or she is tried by a jury that includes one or more individuals who share some particular racial, cultural, ethnic, linguistic or other such characteristic: R. v. Laws (1998), 41 O.R. (3d) 499, 128 C.C.C. (3d) 516 at p. 538 (C.A.); R. v. Kent (1986), 27 C.C.C. (3d) 405 at p. 421 (Man. C.A.). In the multi-racial society in which we live, the random selection of juries cannot be expected to result in panels that include members having specific racial identities. No one can reasonably complain of being tried by a jury that did not happen to be representative in its membership. As stated by McLachlin J. in R. v. Biddle, [1995] 1 S.C.R. 761, 96 C.C.C. (3d) 321 at p. 340, representativeness is a means to ensuring impartiality, "[b]ut it should not be elevated to the status of an absolute requirement." It follows that to the extent that the appellant's argument rests on nothing more than the fact that he was tried by a jury that did not include a black member, he fails to make out a violation of his Charter rights. [58] The issue of representativeness is most often considered in relation to the composition of the panel from which the petit jury is to be selected: see e.g. Church of Scientology of Toronto; Laws. The appellant does not challenge the racial composition of the array. However, it cannot be the case that concern about the exclusion of jurors on racial grounds is exhausted once an appropriate array of potential jurors has been assembled. The Charter right of equality, the right to the benefit of trial by jury and the right to a fair and impartial trial must also be considered in relation to the process that is used to select the jury that will try the case. Just as those Charter rights cannot be frustrated or thwarted by the manner in which the array is assembled, nor can they be impeded by shortcomings in the jury selection process. As was stated in Sherratt, at p. 204 C.C.C., the jury selection process should operate so as to achieve, “as far as is possible and appropriate in the circumstances” a jury that is representative of our society. [59] An important part of the jury selection process is the right of both the Crown and the defence to exercise peremptory challenges. The very essence of a peremptory challenge is that its exercise requires no justification or explanation. Peremptory challenges ordinarily may be exercised on grounds that are not provable and unable to withstand objective scrutiny: R. v. Cloutier, [1979] 2 S.C.R. 709, 48 C.C.C. (2d) 1 at pp. 20-21. No doubt the right of peremptory challenge is often exercised in an effort to secure what the party hopes will be a sympathetic jury. The justification for allowing peremptory challenges is that they foster confidence in the jury trial process. An accused may have a "hunch" about a prospective juror that cannot be proved. A lingering doubt about the juror's partiality would taint the perception of a fair trial. In a passage adopted in R. v. Bain at p. 525 C.C.C. and in Cloutier at p. 20 C.C.C., Blackstoneexplained this as follows (W.D. Lewis, ed., Commentaries on the Laws of England, vol. 4 (Philadelphia: Rees Welsh & Co., 1897) at p. 1738): As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life), should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. [60] By offering each side a limited number of peremptory challenges, the law allows the parties to eliminate unproveable but perceived concerns about the propensities of jurors and thereby enhance confidence in the impartiality of the jury and the fairness of the trial. [61] There is little authority on the extent to which a court can review the exercise of a peremptory challenge by the Crown. While I do not think the circumstances of the present call for this court's intervention, I would not want these reasons to be read as eliminating the possibility, as there may well be instances in which it would be appropriate for a court to do so. There are two important legal principles that lead me to that view. First is the well-established principle of our law that the Crown bears a particular responsibility in conducting a criminal prosecution: see e.g. R. v. Boucher, [1955] S.C.R. 16; R. v. Savion (1980), 52 C.C.C. (2d) 276 (Ont. C.A.). It is not appropriate for Crown counsel to seek a conviction at all costs. Counsel’s duty is to lay credible and relevant evidence before the trier of fact, assisting the trier to ensure that justice will be done. In this sense, it is said that the Crown’s responsibilities are “quasi-judicial”. [62] Peremptory challenges are not incompatible with the Crown’s quasi-judicial role, but the Crown should exercise peremptory challenges in a manner that is in keeping with its quasi-judicial role. Indeed, as L’Heureux-Dubé J. held in Sherratt, supra at p. 209 C.C.C., one of the justifications for peremptory challenges is that they may be used by the Crown in the exercise of its responsibility to ensure that the accused is given a fair trial. The accused may, for example, not have sufficient information to challenge for cause a member of the panel who should be excluded. [63] Peremptory challenges can also, in certain circumstances, produce a more representative jury depending upon both the nature of the community and the accused. As Gonthier J. stated in Bain, at p. 497 C.C.C., “the Crown prosecutor in the jury selection process has a duty to ensure that the jury present the three characteristics [of] impartiality, representativeness and competence.” At p. 501 C.C.C., Gonthier J. added that "systematic attempts by the Crown at handpicking the jury to obtain a conviction would be contrary to its role in the jury selection process and an abuse of its powers." [64] The second principle that constrains the discretionary powers of the Crown is that the Crown must exercise the discretion accorded to it in conformity to Charter principles and values: see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at p. 1078, per Lamer J. dissenting in part, but not on this point. In R. v. Brown, [1999] O.J. No. 4867 (Gen. Div.) at para. 5, Trafford J. held that the imprecise discretion conferred on the Crown to peremptorily challenge prospective jurors had to be interpreted and limited by ss. 11(d) and 15 of the Charter, and that the Criminal Code "does not expressly or by necessary implication confer a power on the Crown Attorney to challenge a prospective juror in a discriminatory manner on the basis of race." I prefer to leave to another day the question whether, as held by Trafford J. at para. 8, the defence must establish "a tenable allegation of mala fides on the part of the Crown" to raise this issue. I do, however, agree with the proposition accepted by Trafford J. that the Crown's exercise of discretion in relation to peremptory challenges is not immune from judicial scrutiny. See also Bain at pp. 506-07 C.C.C., per Gonthier J. I adopt Trafford J.'s statement at para. 11 that "[t]he application of racial stereotypes, intentionally or unintentionally, is a destructive form of racism that has no part to play in the selection of a jury." [65] I note as well that there is a significant body of opinion to the effect that the inappropriate use of peremptory challenges by the Crown has impeded the selection of members of racial minorities for jury service and undermined public confidence in the jury selection process: see Brown at para. 11; Report of the Aboriginal Justice Inquiry of Manitoba (Winnipeg: Queen's Printer, 1991), c. 9.; K. Roach, "Challenges for Cause and Racial Discrimination" (1995) 37 Crim. L.Q. 410 at 422; M. Henry & F. Henry, "A Challenge to Discriminatory Justice: The Parks Decision in Perspective" (1996) 38 Crim. L.Q. 333 at 337-8; C. Petersen, "Institutional Racism: The Need for Reform of the Criminal Jury Selection Process" (1993) 38 McGill L.J. 147 at 173-74; Department of Justice Canada, "Multiculturalism, Representation and the Jury Selection Process in Canadian Criminal Cases" (Working Document), by D. Pomerant (Ottawa: Research and Statistics Directorate, 1994). The problem has been recognized in the United States, where the courts have assumed the power to review the exercise of peremptory challenges to eliminate members of racial minorities from the jury: Batson v. Kentucky, 476 U.S. 79 (1986). [66] In my view, it follows from the quasi-judicial nature of the Crown's discretionary powers and from the overriding values of the Charter that there are circumstances where a court will review and constrain the exercise of the Crown's right of peremptory challenge. It seems to me that if the exercise of the power is at odds with the quasi-judicial nature of the Crown's duty, or at odds with the basic rights and freedoms guaranteed by the Charter, a court can and should intervene as has been done in relation to other discretionary Crown powers: see R. v. Pizzacalla (1991), 69 C.C.C. (3d) 115 (Ont. C.A.). In particular, it is my view that public confidence in the administration of justice would be seriously undermined if Crown counsel were permitted to exercise the power of peremptory challenge on racial or ethnic grounds. The rationale for peremptory challenges is to foster confidence in the fairness and impartiality of jury trials. The Crown should not be permitted to subvert that rationale by using peremptory challenges to achieve precisely the opposite result. [67] I would add here that reviewing the Crown's discretion to challenge for cause on racial or other similar grounds is less drastic than what might be required if the power could not be reviewed. If it were established that peremptory challenges had been systematically used to eliminate ethnic or racial minorities from juries, the only acceptable alternative to reviewing the exercise of the power could well be the elimination of peremptory challenges altogether. That was the fate that befell the Crown's right to stand aside prospective jurors when the majority of the Supreme Court of Canada concluded that it was not possible to effectively constrain the power in a manner that complied with Charter guarantees: see the judgment of Cory J. in Bain. [68] In the present case, however, I am not satisfied that the appellant has made out a case for this court to intervene. In my view, the insurmountable difficulty the appellant faces with respect to this ground of appeal is that the matter is raised for the first time on appeal. At trial, no objection was taken to the Crown's exercise of peremptory challenges or to the composition of the jury that was selected to try the case. The first time any reference was made to the issue was during the sentencing proceedings when the appellant stated, "I don't think it was fair for the prosecutor not to have no black on the jury panel." The result is a complete lack of a factual record sufficient to allow this court properly to review the Crown's use of peremptory challenges in the jury selection process. [69] It has been consistently held that, as a general rule, a party cannot raise on appeal an entirely new argument which has not been raised at trial and for which there is an incomplete factual record. In R. v. Trabulsey (1995), 97 C.C.C. (3d) 147 at 154 (Ont. C.A.), Labrosse J.A. reviewed the jurisprudence in this area and after articulating the "general rule", went on to say: In such cases it can only be speculated what the evidence might have been had the issues been explored factually at trial. Furthermore, it may have been necessary to adduce evidence at trial in relation to these issues. See R. v. Perka (1984), 14 C.C.C. (3d) 385 at 391, 13 D.L.R. (4th) 1, [1984] 2 S.C.R. 232, and R. v. Ryan (1992), 12 C.R. ( 4th) 173 at 174, 54 O.A.C. 379, 15 W.C.B. (2d) 269 (C.A.). In R. v. Brown ( 1993), 83 C.C.C. (3d) 129 at 133-4, 105 D.L.R. (4th) 199, [1993] 2 S.C.R. 918, Madame Justice L'Heureux-Dubé, dissenting, but not on this point, succinctly expressed the basis for the general basis for entertaining issues on appeal which were not raised at trial: … the general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases. Moreover, society's expectation that criminal matters would be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have closely adhered to the rule that such tactics will not be permitted. [70] In my view, for this issue to be considered, it is imperative that it be raised at trial, so as to provide an opportunity to conduct a thorough review of all the relevant facts. I cannot accept that an accused person should be heard on this ground of appeal where he has remained silent on the issue at the time the jury is being selected, proceeded to trial, and then raised the issue for the first time after conviction. Crown counsel should have been given an opportunity to address the issue in a timely fashion, at the outset of the trial, rather than after the conclusion of a 21-day trial and more than five years after the jury returned its verdict. Raising the matter in a timely fashion would also afford the trial judge the opportunity to order an immediate remedy appropriate to the circumstances, a possibility now long lost through the passage of time. [71] For these reasons, I would dismiss this ground of appeal. b) Did the Crown's exercise of peremptory challenges infringe the appellant's right to equality guaranteed by s. 15 of the Charter? [72] The appellant also submits that the Crown's use of peremptory challenges constituted a violation of his s. 15 rights. It is difficult to see what this adds to the s. 11(f) claim that I have already considered. To the extent that it does add anything, it encounters precisely the same difficulty. It was not raised at trial with the result that before this court, there is an inadequate factual record for its proper consideration. (c) Did the Crown's exercise of peremptory challenges the prospective jurors' right to equality guaranteed by s. 15 of the Charter? [73] In Church of Scientology of Toronto, this court held that an accused person had no standing to assert the s. 15 rights of individuals deprived of their right to serve on the jury. I can see no basis to distinguish the circumstances of this case and accordingly, to the extent that the appellant relies on the s. 15 rights of the two jurors who were challenged, I would dismiss this ground of appeal on the basis that the appellant has no standing to raise it. [74] I would, accordingly, also dismiss this ground of appeal. Issue 4 Did the trial judge err in admitting evidence of the appellant's immigration status and prior criminal record? [75] The appellant was subject to a deportation order and had a lengthy criminal record consisting of fourteen prior convictions, including convictions for attempted theft, escape lawful custody (three convictions), possession of narcotics (three convictions), possession for the purpose of trafficking (two convictions), possession of an unregistered weapon (two convictions), and assault with intent to resist arrest. (a) Deportation order [76] The trial judge allowed the Crown to lead evidence as to the appellant's immigration status. The appellant submits that this evidence ought not to have been admitted as it had no probative value and was prejudicial, calling attention to his status as a Jamaican immigrant who had been convicted of a criminal offence. We did not find it necessary to call upon the respondent to answer this allegation. In my view, the fact that the appellant was under a deportation order was admissible as tending to support the Crown's theory that the appellant had a motive to use lethal force to avoid apprehension by the police. The fact that motive could also be inferred from the appellant's possession of illegal drugs and a weapon does not exclude further evidence going in the same direction. The trial judge gave a careful limiting instruction on the use the jury could make of prior misconduct. I see no merit in this ground of appeal. (b) Prior convictions [77] The Crown brought an unsuccessful application to lead as similar fact evidence the underlying facts of the convictions for escape lawful custody, assault with intent to resist arrest, and the weapons offences. On the appellant's Corbett application, the trial judge excluded the conviction for assault with intent to resist arrest, but refused to exclude any other conviction. The trial judge gave no reasons for this ruling. It is conceded by the appellant that the trial judge gave a proper limiting instruction with respect to the use of the evidence of prior convictions. [78] The appellant concedes the conviction for attempted theft had a bearing on his credibility and that in light of his admission that he was in possession of narcotics and an illegal gun, he suffered no significant prejudice as a result of evidence being led on his narcotics and weapons convictions. He submits, however, that the trial judge erred in failing to exclude the three convictions for escape lawful custody. It is argued that these convictions should have been excluded along with the conviction for assault with intent to resist arrest, on the ground that there was a very real risk that the jury would improperly use them as showing the appellant’s propensity to escape from the police. [79] Despite the trial judge's failure to give reasons for this ruling, in my view it is apparent from the record that there was an adequate basis for the trial judge's ruling and I would not interfere with it. [80] First, the appellant launched an all-out attack on the credibility of Leone, labeling him a liar and as being guilty of a murderous assault. This attack on the credibility of the Crown's lead witness was plainly a factor weighing in favour of permitting cross-examination on the appellant's criminal record: Corbett at p. 399 C.C.C.. [81] Second, the convictions for escape lawful custody were offences that could well be seen as having a direct bearing on the appellant's credibility in that their nature, number, and close proximity painted a picture of an individual who had little regard for the rules of society and, in particular, an individual who had little or no respect for the administration of justice. [82] Third, the trial judge gave a careful and appropriate limiting instruction with respect to the use it could make of the appellant's criminal record. In Corbett, at pp. 399-400 C.C.C., Dickson C.J.C. stated, [i]n my view, the best way to balance and alleviate these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value. [83] Fourth, the impugned decision is one of discretion, and an appellate court should accord considerable deference to the trial judge's assessment of how to strike the appropriate balance between prejudice and probative value: see Corbett at pp. 404-5 (per Dickson C.J.C.), 428-35 (per La Forest J.) C.C.C. In my view, there was a basis for the trial judge's ruling, and no adequate grounds have been shown for the interference of this court. [84] Accordingly, I would dismiss this ground of appeal Issue 5 Alleged errors on the trial judge's charge to the jury [85] The appellant contented that the trial judge's jury charge was deficient in a number of areas. The principal complaints related to the instructions on unanimity and disagreement, reasonable doubt, provocation, self-defence, and the fact-finding process. It was also argued that the trial judge erred in failing to specially caution the jury that Leone had an interest in the outcome of the case and that his evidence should be approached with caution. Finally, the appellant submitted that the trial judge erred in instructing the jury on the use it could make of Leone's out-of-court statements shortly after the shooting when he was being taken to the hospital. [86] As I have already noted, we did not find it necessary to call upon the respondent to address these submissions and, as they are without merit, it is unnecessary for me to address them in detail. In the circumstances of this case, the trial judge's jury instructions were fair and adequate and they could not have resulted in any prejudice to the appellant. CONCLUSION [87] For these reasons, I would dismiss the appeal. “Robert J. Sharpe J.A.” “I agree C.A. Osborne A.C.J.O.” “I agree D.H. Doherty J.A.” RELEASED: April 27, 2001