R. v. Brown

R. v. Brown Collection Decisions of the Court of Appeal Date 2006-12-22 Docket numbers C33447 Judges O’Connor, Dennis; Rosenberg, Marc; Cronk, Eleanore Ann Subject Criminal Decision Content DATE: 20061222 DOCKET: C33447 COURT OF APPEAL FOR ONTARIO O’CONNOR A.C.J.O., ROSENBERG and CRONK JJ.A. B E T W E E N : HER MAJESTY THE QUEEN Respondent Gregory Lafontaine and Crystal E. Tomusiak amicus curiae - and - LAWRENCE AUGUSTUS BROWN Appellant Lawrence Brown In person Brian McNeely and Kimberley Crosbie for the respondent Heard: November 1 & 2, 2006 On appeal from conviction by Justice W. Brian Trafford of the Superior Court of Justice, sitting with a jury, dated December 11, 1999 and sentence imposed on December 14, 1999. ROSENBERG J.A.: [1] The appellant Lawrence Augustus Brown appeals from his conviction and sentence for first-degree murder and twelve counts of robbery. For reasons that follow, I would dismiss the appeal. [2] At trial, the appellant chose not to be represented. Justice Trafford assigned Mr. Lafontaine to act as amicus curiae to ensure that all issues favouring the appellant’s position were placed before the court. On his appeal to this court, the appellant similarly refused to retain counsel and the court appointed Mr. Lafontaine as amicus. Mr. Lafontaine carried out those responsibilities at trial and before this court with admirable tenacity and skill in the face of ill-considered and abusive comments from the appellant. I reiterate what the Associate Chief Justice said at the conclusion of the oral argument: this court is indebted to Mr. Lafontaine for his efforts. [3] At the opening of this appeal, the appellant requested an adjournment to retain counsel. From the time he was charged, efforts have been made to convince the appellant to retain counsel. It has been over six years since the conclusion of the trial. The appellant placed no material before this court to demonstrate that he had any real intention to retain counsel or that he had taken any steps to do so. The court informed the appellant that the appeal would proceed. The appellant accepted this ruling and indicated that he would be ready to proceed with his submissions the following day. We acceded to his request as to the timing of his submissions. Accordingly, we heard submissions of amicus and the Crown in reply to those submissions and then adjourned the appeal to the following day. The following day, Mr. Lafontaine completed his reply submissions. The appellant was then called upon to make his submissions. He declined, stating that he would not participate in an “unlawful assembly”. THE FACTS [4] On April 5, 1994, four black men entered the Just Desserts café in Toronto. I mention the colour of the skin of the men because, regrettably, race became an important feature of this case. After “casing” the café, the four men left. Minutes later, three of the men returned. They herded the staff and customers to the back of the café where they began to rob them. In the course of the robbery, one of the men shot and killed Georgina Leimonis, a white woman. The initial entrance of the four men and the return of three of them was captured on the café’s surveillance video camera. The video does not show the killing. [5] The Crown alleged that the appellant shot the deceased, and that Gary George Francis and O’Neil Grant were the other two men in the café. The jury convicted the appellant of first-degree murder and robbery and Francis of manslaughter and robbery. Grant was acquitted. ISSUES ON APPEAL [6] In his factum, amicus raises five issues: (i) the propriety of the method of jury selection; (ii) the admissibility of the videotapes; (iii) the admissibility of the recognition witness evidence; (iv) the charge to the jury on identification; and (v) the failure of the trial judge to compel testimony. In oral argument amicus identified the jury selection issue as the key issue in this appeal. I agree with that assessment and will therefore address this issue first. The Selection of the Jury [7] Amicus submits that the jury selection process was fundamentally flawed and that, as a result, the jury was not properly composed. He submits that this was a jurisdictional error requiring a new trial. In order to understand this submission it will be necessary to set out in detail the procedure followed by the trial judge. However, that process was a result of the particular circumstances and context of this unique case. I therefore intend to begin with a very brief explanation of that context. The Context [8] I have said that race became an important feature of this case. The killing of an innocent bystander to a brutal robbery shocked the Toronto community. Media coverage of the murder was intense and some of it, unfortunately, came to focus on the colour of the perpetrators and the victim. The accused and some of their counsel alleged that the justice system was racist and that they could not get a fair trial. The wider Toronto community became engaged in this discussion. In their factum, Crown counsel describe the context in which this trial took place: “Some of the media coverage was inflammatory and racist and had the effect of encouraging an emergent ‘anti-black’ and ‘anti-immigration’ sentiment in the City of Toronto. Voices amongst minority members of the community, meanwhile, expressed worry about the effect of racism on the fairness of these particular criminal proceedings.” The trial judge, in his ruling dismissing the application by the accused for various forms of Charter relief and a stay of proceedings for abuse of process, described some of the media coverage: The topics covered by the media include the events at the restaurant, the death of Ms. Leimonis and its tragic effect on her immediate relatives, the videotape of the incident, the investigation by the police, the arrest of the accused, the bail hearings and reviews, the delays in the prosecution, the immigration policies of Canada and the related parliamentary debates, the value of stricter gun control, the increase in violent crime in Toronto, the fund-raising for the related civil litigation, the other charges against the accused, the involvement of immigrants from Jamaica in criminal activity, the existence of racism in Canada, the value of harsher sentences for violent crimes, the interference with the investigation by the press, the comments by the Minister of Justice, the Minister of Citizenship and Immigration and the Mayor of Toronto, the letters to the editors, the editorial comments of the newspapers, the vigil on the anniversary of the death of Ms. Leimonis, the funding of the police, the selection of the jury and the stay of proceedings against Emile Mark Jones. [9] In his ruling permitting a relatively wide challenge for cause, the trial judge described the effect of the media coverage on the perceived fairness of the system: Suffice it to say by way of overview that race played a part in the media coverage and it was, at times, inflammatory in its tone. Photographs reinforced the inter-racial nature of the crime and commentaries described Toronto as a city losing its innocence. The incident was described as “… urban terrorism …”. This coverage affected the perception by the public of this case and, in particular, the perception of it by white people who do not know any black people and the perception of the police as saviours in a decaying society. It also tended to reinforce in minority groups the feelings of unfair treatment they experience in this society. It leads some to believe there is a correlation between race and crime. [10] The impact of this context is fully revealed in the trial judge’s many rulings. I do not need to set out all the allegations made by the defence or the evidence they called to support these allegations. Suffice to say that, by the time it came to select a jury the trial judge was justifiably concerned about whether the accused and the people of Toronto could have confidence in the criminal justice system’s response to this prosecution and, accordingly, confidence in any verdict delivered by a jury in those circumstances. That concern, in the end, was grounded in the colour of skin of the accused and the victim. The trial judge believed that he had to address that issue and that it was important to do so in the jury selection process. The Jury Selection Method [11] Twelve hundred people were summoned for this trial. In the end, approximately one thousand persons responded to the summons. The potential jurors were summoned in four groups to attend on different days. The exact fashion in which the one thousand people were divided into the four groups is unknown, but it is not suggested that anything turns on this aspect of the case. I assume the selection was made randomly by a court official. The names of the approximately two hundred and fifty persons who attended on any given day were placed in a drum. The court registrar then randomly drew the names from a drum in groups of twenty-five. Each group of twenty-five was assigned a date and time to return to the court to complete the jury selection process. The assignment of date and time was done randomly by the trial judge except in one respect. Groups of twenty-five with black people or people from other identifiable groups were assigned a date more likely to be reached before the jury was selected. Throughout these reasons I will refer to this process as the “come-forward” process. [12] It is this last feature of the come-forward process that amicus submits fundamentally undermined the validity of the jury composition. The trial judge gave these reasons for his decision: The return dates could be randomly selected by drawing them from a box. Alternatively, I, as the trial judge, could randomly pick a return date subject to ensuring those groups of twenty-five with black people on them are assigned a return date that is likely to be reached before the twelve jurors are selected. Similar efforts could be made to facilitate the participation of all other identifiable groups in the process. This latter method is not a fully random one but it does tend to foster the value of representativeness in the process of selecting the jury by ensuring the black people on the panel a reasonable chance of being selected as a juror. This is not to give black people an undue preference in the selection of the jury. It merely ensures they and all other identifiable groups will be considered by the triers and counsel as prospective jurors. In the unique circumstances of this case, this is an appropriate step by the court because it will tend to increase the public confidence in the administration of justice. Black people on the jury panel and all other identifiable groups will have a reasonable chance of being selected as jurors. In my opinion, s. 631 of the Code does not contemplate the selection of return dates. Accordingly, the discretion of the trial judge should be exercised to ensure the essential fairness of the process and to give recognition to the values of the Charter impacting upon jury selection. I will randomly select the return days for each group of twenty-five jurors subject to ensuring all identifiable groups, including those with black people in them, will be assigned a date likely to be reached before the jury of twelve is selected. [13] Crown counsel has attempted to analyze the impact of the trial judge’s decision on the randomness of the jury pool. There are gaps in the available information but the following demonstrates what some of the information shows. The first group to return for the selection process was labelled DD. In this group of twenty-five, only four persons identified themselves as something other than “white”. Group Y was the second group. Six people identified themselves as something other than white. The last complete group to attend for the selection process was group R. Three persons identified themselves as something other than white. Group L was the second last complete group to attend. Five persons identified themselves as something other than white. Group C returned to the court roughly in the middle of the selection process. Ten persons identified themselves as something other than white. [14] Statistics Canada information for 2001 indicates that in Toronto 56.5 per cent of people identified as white, 7.9 per cent as black and 35.6 per cent as “other”. Approximately half of the one thousand person jury pool took part in the come-forward process. Of that group, 67.4 per cent identified as white, 5.9 per cent as black and 26.7 per cent as “other”. [15] It is difficult to draw any firm conclusions from the materials put together by the Crown. However, one thing is clear. The trial judge’s intervention into the random selection process had virtually no real impact on the make-up of the come-forward group when compared to the racial make-up of Toronto. The come-forward group was still overwhelmingly populated by white persons. The trial judge’s intervention did no more than provide some assurance that the accused would have access to some non-whites. Because there is no material relating to the groups that never returned to court, it is impossible to otherwise tell what impact the trial judge’s decision had on the make-up of the come-forward group. [16] Finally, although the trial judge canvassed the proposed come-forward process with the parties, only counsel for one accused and the Crown expressed reservations on jurisdictional grounds. The trial judge gave the accused a veto over his suggested process. No counsel clearly objected to the process on the basis of unfairness or prejudice to their ability to exercise their peremptory challenges. The appellant, who was otherwise very vocal about most aspects of the trial, raised no objection to the process. I do not say that the parties consented to the process, but the lack of objection is telling when the submission is now made that the process was unfair. I now turn to that submission. Analysis of the jury selection process [17] Amicus submits that the jury in this case was not selected in accordance with s. 631 of the Criminal Code. The applicable parts of s. 631[1] provide as follows: 631. (1) The name of each juror on a panel of jurors that has been returned, his number on the panel and his address shall be written on a separate card, and all the cards shall, as far as possible, be of equal size. (2) The sheriff or other officer who returns the panel shall deliver the cards referred to in subsection (1) to the clerk of the court who shall cause them to be placed together in a box to be provided for the purpose and to be thoroughly shaken together. … (3) The clerk of the court shall, in open court, draw out the cards referred to in subsection (1), one after another, and shall call out the name and number on each card as it is drawn, until the number of persons who have answered is, in the opinion of the judge, sufficient to provide a full jury and any alternate jurors ordered by the judge after allowing for orders to excuse, challenges and directions to stand by where (a) the array of jurors is not challenged; or (b) the array of jurors is challenged but the judge does not direct a new panel to be returned. … (4) The clerk of the court shall swear each member of the jury, and any alternate jurors, in the order in which his or her card was drawn and shall swear any other person providing technical, personal, interpretative or other support services to a juror with a physical disability. (5) If the number of persons who answer under subsection (3) or (3.1) is not sufficient to provide a full jury and the number of alternate jurors ordered by the judge, the clerk of the court shall proceed in accordance with subsections (3), (3.1) and (4) until twelve jurors and any alternate jurors are sworn. [18] There were several features of this case that required special arrangements for jury selection. First, because of the intense pre-trial publicity, all potential jurors would be challenged for cause. It was reasonable to believe that a number of jurors would be eliminated because of the impact of the publicity on their ability to judge the case impartially. Second, the three accused and the Crown had amongst them a total of eighty-eight peremptory challenges. Finally, it was expected that the trial would be a very long one and that many potential jurors would be excused on hardship grounds. [19] Thus, a large pool of jurors would be needed, far beyond what a literal interpretation of s. 631 could accommodate. That section contemplates a process whereby out of an array of, perhaps, two hundred persons, the names of twenty to thirty persons are pulled from the drum on a random basis. If the first group of persons is insufficient to complete the jury, the court resorts to s. 631(5) and the procedure is repeated. [20] In this case, that process was not feasible. It was not possible to keep one thousand people waiting. It was not possible to assemble one thousand people every time a pool of twenty or thirty jurors had been exhausted. To apply s. 631 would have resulted in intolerable inconvenience to potential jurors. It would have been unfair to the jurors. As Wein J. said in R. v. VandenElsen (2005), 29 C.R. (6th) 325 (Ont. S.C.J.) at para. 15: A system, which requires hundreds of persons to wait unnecessarily, perhaps in uncomfortable surroundings, does not support the goals of enhancing the administration of justice. In participating in the selection process, a prospective juror forms direct impressions concerning the court system. The impression left should be that the jury service process is a worthwhile participation in democracy. An unnecessarily inefficient system will not enhance those goals. [Footnote omitted.] [21] Since it was not possible to proceed in accordance with s. 631 without causing intolerable inconvenience to potential jurors, the trial judge had an inherent jurisdiction to adopt a process that was consistent with the spirit of s. 631. In my view, the process adopted by the trial judge in this case (dividing the array into groups of twenty-five and having these groups attend on successive days for the selection procedures) was a reasonable one. It was a process that he was entitled to adopt and he did not require the consent of the parties to proceed in this manner. [22] My only concern with the process adopted by the trial judge is his decision to determine the order in which the groups of twenty-five would return by the presence of persons of colour in the group. This process did not give the Crown any unfair advantage but, arguably, it violated s. 631(4). I also do not consider it to be an advisable procedure and it should not be used in the future. There are an almost infinite number of characteristics that one might consider should be represented in the petit jury: age, occupation, wealth, residency, country of origin, colour, sex, sexual orientation, marital status, ability, disability and so on. It would be impossible to ensure this degree of representation in any particular jury. [23] To determine whether this part of the process was reversible error it is necessary to situate the argument in the larger context of the role of the jury. In R. v. Sherratt (1991), 63 C.C.C. (3d) 193 at 203, the Supreme Court of Canada described the rationale for the current criminal jury system: “The jury, through its collective decision making, is an excellent fact-finder; due to its representative character, it acts as the conscience of the community; the jury can act as the final bulwark against oppressive laws or their enforcement; it provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as a whole.” [24] The two characteristics of impartiality and representativeness contribute to the aims described in Sherratt. In fact, in Sherratt at p. 204, the court suggested that “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”. [25] Thus, the Criminal Code and the provincial jury legislation attempt, within reason, to foster these two characteristics. One way in which these two characteristics are encouraged is through random procedures at each stage of the selection process: from the time when the sheriff randomly selects the persons to be members of the array to the random selection of jurors’ names from the drum. However, randomness is not a goal in and of itself. It is a means by which impartiality and representativeness are optimized. The attack on the procedure adopted by the trial judge in this case, based solely on the interference with absolute randomness, fails to take into account that the procedures adopted by the trial judge ensured the necessary impartiality and representativeness. To repeat: the potential jurors were randomly selected from the list of all eligible jurors in Toronto, the names of all potential jurors were randomly selected from the drum and potential jurors were randomly assigned to groups of twenty-five. These procedures were enough to ensure randomness. [26] In his carefully crafted argument, amicus suggests that the trial judge undermined impartiality and representativeness. There is no foundation for this submission. The trial judge’s decision as to the order in which these randomly selected groups of twenty-five returned to the courtroom did not and could not undermine the inherent random nature of the jury. All that the trial judge did was attempt to foster one element of representativeness, racial diversity, that he felt needed emphasis in this case. In his view, that element required emphasis to promote the goals of the jury serving as the conscience of the community and societal trust in the system as a whole. This jury was honestly and fairly chosen; its integrity was not compromised. [27] Amicus also submits that by focusing on colour to determine the order in which the groups came forward, the trial judge ignored other characteristics that the accused might believe were better suited to the issues in this case. He submits that the accused might have preferred to focus on other factors. This is pure speculation and no basis for interfering with the verdict. [28] Finally, amicus places particular emphasis on this court’s decision in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1. That case was decided under the former provisions of the Criminal Code. In short, the trial judge in Rowbotham failed to follow mandatory provisions of the Criminal Code concerning the order in which jurors stood aside by the Crown were recalled. The result of the trial judge’s decision was that the jury was continuously expanded without the stand-asides being reached. This court was particularly concerned that the trial judge may have been motivated by an attempt to redress the balance between Crown and defence (see p. 37).[2] In doing so, the trial judge deprived the accused of a statutory right. That is not what occurred here. Even if the process violated s. 631(4), the accused were not prejudiced in any way. The departure from the strict requirements of s. 631, which did not prejudice the accused nor deprive them of any benefit, does not undermine the validity of the trial. This is confirmed by s. 643(3) of the Criminal Code, which provides that: “Failure to comply with the directions of … section 631 … does not affect the validity of the proceeding.” [29] Accordingly, I would not give effect to this ground of appeal. Admissibility of the Surveillance Videotape Evidence [30] The surveillance videotape was of poor quality and at trial the accused therefore argued that neither the original tape nor the various enhanced versions should have been admitted. Amicus submits that the trial judge erred in admitting the tapes and holding that the probative value of the images outweighed their prejudicial effect. [31] Prior to oral argument, we viewed the videotapes at issue in this appeal. I am satisfied that the trial judge was correct to admit this evidence. While the videotape is not the best, images of the perpetrators are clearly visible – sufficiently so for the jury to make assessments of their identity. Moreover, the person said to be the appellant is seen for the longest time on the video. [32] After hearing evidence and full submissions, [3] the trial judge gave an extensive ruling. He explained why he considered that the tapes had sufficient probative value and would not have misled the jury. [33] Amicus submits that the trial judge erred in his ruling of March 5, 1999, which can be found at [1999] O.J. No. 4865, when he stated that in assessing the expert and other evidence he would take into account “the appearances of the accused in the courtroom”. Amicus submits that this, in effect, was inconsistent with the presumption of innocence. [34] In my view, the trial judge did not err. As he said, the videotape evidence was admissible if it accurately and fairly presented the information it purported to convey. He could easily reach the conclusion that it did by viewing the videotape against the backdrop of the expert and other evidence. He explained why he reached his conclusion based on the expert and other evidence. He also explained why he discounted the opinions of the defence expert. I expect that the trial judge’s reference to the appearances of the accused in the courtroom was nothing more than a way of checking the decision he made based on the other evidence. Had he been the trier of fact, the trial judge would have been required to compare the appearance of the accused in court with the appearances of the perpetrators on the videotape. Similarly, at the stage of threshold reliability, the trial judge was entitled to make the same comparison. He did not begin his analysis from the impermissible starting point that the accused must be the perpetrators depicted in the videotape. [35] Further, the trial judge, in effect, was invited by counsel for Francis to engage in this exercise. Counsel for Francis, who led this part of the defence case, gave one of his experts photographs of Francis for the purpose of comparing them with the images of the perpetrator alleged to be Francis. As Crown counsel points out, defence counsel implicitly acknowledged that taking the appearance of the accused into account was a relevant consideration in assessing the reliability of the videotape. Admissibility of the Recognition Witness Evidence [36] The Crown proposed to call a large number of witnesses who knew the accused, including the appellant, and were able to recognize them from the videotape. After hearing the evidence of all these witnesses, the trial judge permitted the Crown to call only some of them. He also imposed limits on Crown counsel concerning the admission of evidence of the circumstances under which the witnesses came into contact with the appellant. He did this to limit the prejudicial effect of the evidence since some of the witnesses knew the appellant because of his involvement in criminal or discreditable conduct. Crown counsel adhered to these directions. In his cross-examination of some of the witnesses, the appellant elicited some of his own discreditable conduct, despite being warned by the trial judge against doing so. [37] Amicus argues that the recognition witnesses should not have been called because they provided inadmissible non-expert opinion evidence and the witnesses could not articulate their reasons for purportedly recognizing the appellant. He also submits that some of the prejudicial effect of the evidence outweighed its probative value because of the evidence of discreditable conduct given by some of these witnesses. [38] This last issue can be dealt with in short order. As I have said, Crown counsel was scrupulous in adhering to the trial judge’s directions. It was the appellant, conducting his own defence, who elicited most of the prejudicial information. The trial judge assisted the appellant to ensure that he understood the consequences of some of the questions he asked and, on occasion, the appellant would move on to another area. This was not a case where the prejudicial evidence was necessary to understand the frailties of the testimony of the Crown witnesses. If that had been the case, the balance might have shifted in favour of excluding the evidence. Finally, the trial judge gave the jury directions as to the limited use they could make of the evidence of discreditable and criminal conduct. [39] As to the other concerns that amicus raises with respect to the recognition witnesses, I am satisfied that the trial judge was correct to admit the evidence. In R. v. Leaney (1989), 50 C.C.C. (3d) 289 at 303, the Supreme Court of Canada held that this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator. All the witnesses whose testimony was admitted by the trial judge fell into this category. For example, one witness was the appellant’s aunt and had known him for years. Another witness had been his partner for some time. The recognition evidence was also important because the appellant had changed his appearance since the robbery, five years earlier, and the recognition witnesses were familiar with the appellant’s appearance at times close to the robbery. The various witnesses explained why they recognized the appellant as the man in the videotape. The jury was thus in a position to evaluate the probative value of their evidence. The Charge to the Jury on Identification [40] Amicus raises two concerns with the charge to the jury on the identification issue. First, he submits that the trial judge erred in inviting the jurors to compare the image of the perpetrator alleged to be the appellant with the appearance of the appellant in the courtroom by superimposing their mental image of the appellant on the image in the videotape. Amicus submits that this part of the charge undermined the presumption of innocence. [41] I admit to some doubt as to the purpose, feasibility or value of this exercise. However, I cannot see that it had any prejudicial impact on the appellant. In one way or another, the jury would have to compare the images. The trial judge told the jury to be “extremely cautious in making this comparison”. He went on to give the jury very helpful instructions for using the videotape evidence. Looking at the directions as a whole, I am satisfied that this particular part of the charge did not have the effect of undermining the presumption of innocence. [42] The second concern that amicus raises concerns the use of the recognition witness evidence. He submits that the trial judge should have told the jury that even people who have known someone for a very long time can make mistakes in recognition. I doubt that any such direction was called for in this case. This was not a case where the recognition witnesses only had a fleeting opportunity to observe the person. The recognition witnesses had repeated opportunities to view the videotape and adequate time to make the identification. The trial judge gave a very full direction about the frailties of identification evidence. He told the jury that mistakes have been made by identification witnesses and that convincing and honest witnesses can be mistaken. Since there was no eyewitness evidence (none of the people in the restaurant purported to identify the perpetrators), the jury would understand that these directions applied to the recognition witnesses. In my view, the charge to the jury was entirely adequate. Refusal of the Trial Judge to Compel Testimony [43] At trial, amicus asked the trial judge to call two witnesses who, based on their police statements, would testify that the discharge of the gun at the deceased was accidental. The appellant objected to the witnesses being called. The trial judge held that the appellant’s position was not so unreasonable that he should interfere with his conduct of his defence. He refused to call the witnesses. The trial judge’s decision was correct. The appellant was entitled to conduct his own defence. That included deciding whether to testify or call witnesses. The appellant’s decision not to call these witnesses and not to have the trial judge call them was reasonable. The value of their evidence as to the accidental discharge was questionable. Their police statements were inconsistent with all the other evidence in the case and may have been a product, in part, of the fact that English was not their first language and they were speaking with the assistance of interpreters. Further, these witnesses would also have testified that it was the tallest perpetrator who shot the victim. The appellant was the tallest of the three accused. Thus, the proposed evidence had little probative value and the potential for significant prejudicial effect. DISPOSITION [44] Accordingly, I would dismiss the appeal from conviction. The appellant also seeks to appeal his sentence. Since the sentence imposed was the mandatory minimum, there is no right of appeal. I would quash the sentence appeal. Signed: “Marc Rosenberg J.A.” “I agree Dennis O’Connor A.C.J.O. “I agree E.A. Cronk J.A. RELEASED: “DOC” December 22, 2006 [1] There have been some amendments to s. 631 since the trial in this matter. I have used the current version of the section. The amendments are not material to the argument of amicus. [2] There were a large number of accused in Rowbotham and under the former Code provisions their combined peremptory challenges vastly outnumbered the Crown’s peremptory challenges. However, under the former provisions, the Crown could stand aside an unlimited number of potential jurors. [3] The trial judge heard 17 days of testimony and six days of submissions.