Docket No.: CAC 160371 Date: 20010227 NOVA SCOTIA COURT OF APPEAL [Cite as: R. v. Lawrence, 2001 NSCA 44] Flinn, Chipman and Cromwell, JJ.A. BETWEEN: DONNA CORA LAWRENCE and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT Counsel: Allan F. Nicholson and Patricia Fricker, for the appellant William Delaney, for the respondent Appeal Heard: October 4, 2000 Judgment Delivered: February 27, 2001 THE COURT: Appeal dismissed per reasons for judgment of Flinn, J.A.; Chipman and Cromwell, JJ.A. concurring. FLINN, J.A.: BACKGROUND [1] Following a trial in the Supreme Court, before Justice Simon MacDonald and a jury, the appellant was convicted of four offences, under the Criminal Code of Canada R.S.C. 1985, c. C-46, arising out of her operation of a motor vehicle. The appellant was convicted of criminal negligence causing death (s. 220); causing death in the operation of a motor vehicle while impaired by alcohol (s. 255(3)); criminal negligence causing bodily harm (s. 221) and causing bodily harm in the operation of motor vehicle while impaired by alcohol (s. 255(2)). [2] The appellant appeals her conviction, and raises numerous grounds of appeal. In none of these grounds of appeal does the appellant take the position that the jury’s verdict is unreasonable and cannot be supported by the evidence. Nevertheless, it would be helpful, before dealing with the appellant’s grounds of appeal, to provide background, and to set out in some detail the evidence which the jury heard in this case. [3] On May 28, 1997 the appellant and Barbara MacRae were driving their respective motor vehicles, in opposite directions, on Highway 105, the Trans-Canada Highway. At South Haven, Nova Scotia, few miles northeast of Baddeck, the appellant’s motor vehicle strayed into the opposite lane, facing oncoming traffic, and, particularly, the MacRae motor vehicle. The MacRae motor vehicle veered to the left, into the opposite lane, to avoid the appellant’s motor vehicle. Just as the MacRae motor vehicle made that maneuver, the appellant’s motor vehicle veered back into its own lane. The two vehicles collided, head-on. The only passenger in the MacRae vehicle (Barbara MacRae’s mother-in-law) was killed. Both the appellant, who was alone in her car, and Barbara MacRae were injured. Both testified that they remembered nothing of the circumstances of the collision. [4] The following summarizes the evidence which the jury heard at this trial. [5] Scott MacLean testified that on the day of the accident, between 3:00 and 3:15 in the afternoon he was driving from Sydney to Baddeck on Highway 105. He had just passed the turn off to Englishtown when he came upon motor vehicle that was parked across the yellow (centre) line making it necessary for him to come to complete stop. The female driver of the other vehicle backed her car up and Mr. MacLean was able to proceed on his way. He then noticed that the driver of this other vehicle followed behind him for “a couple of kilometers.” He saw the vehicle weave from side to side within its own driving lane. Just prior to the turn off to St. Ann’s, Mr. MacLean saw the other driver pull off to the side of the road. Mr. MacLean went on to Baddeck, completed his business there, and proceeded back towards Sydney. On his return to Sydney, as he approached the area of South Haven, he came upon the accident in question. He identified one of the cars involved in the accident as the appellant’s car, the same car that he had stopped to avoid near the Englishtown turn off, green car with blonde haired woman as the driver. Mr. MacLean testified that when he first noticed the appellant’s car, which had been blocking the highway, it appeared to him as though she was reading map, and he thought that she could have been lost. [6] Frank MacRae also testified. His mother, Marjorie MacRae, was the passenger in Barbara MacRae’s motor vehicle. Barbara MacRae is Frank MacRae’s sister-in-law. Mr. MacRae had been visiting in-laws near Baddeck. He left Baddeck some time between 2:30 and 2:45 p.m. on the day of the accident and was travelling to North River. En route, and by coincidence, he drove up behind Barbara MacRae’s motor vehicle. On the right-hand side of Highway 105, at the village of Glen Tosh, Barbara MacRae pulled her vehicle off the road and into United Church property where her husband and father-in-law were working. Frank MacRae followed. There was brief discussion, and then the motor vehicles proceeded on their way, with Mr. MacRae driving his van immediately behind Barbara MacRae’s motor vehicle. He testified as to what he, then, observed, as follows: Q. What type of speeds would you have been traveling at? A. From the church, when we left the church. Q. Yes or as you got along little farther. A. We were doing roughly between 80 and 90 kilometers. We were getting close to our turn off so there was no need of us going that fast. Q. What did you notice take place then? A. Well just before the turn-off noticed the car coming into Barbie’s lane. Q. And how would that compare to your lane? What lane were you in? A. was in Barbie’s lane too. Q. Okay so you noticed car coming into the lane, how far into the lane? A. When first noticed it could see the driver’s side wheel coming over the yellow line and just kept on coming. Q. How far over the yellow line did the car get? A. Pretty well the width of the car. She came right across. Q. Did you notice anything about the driver of that car at that time? A. noticed the driver was leaning towards the driver’s door. Q. Anything else? A. No. And further: Q. After you saw this and you saw the vehicle over there, what took place next? A. then seek (sic) Barbie swerve over to the opposite lane and when she done that again noticed the other driver done the exact same thing and they collided. Q. How would you describe the way they came together the two vehicles came together. A. It looked just like when they struck. Q. You’re indicated it looked like when they struck? A. Yes. Q. What took place then? A. Barbie’s car spun right around and was facing back towards Baddeck. Q. And what happened to the other car? A. The other car was cross-ways in the road. 7) Mr. MacRae stopped his van and checked the occupants of his sister-in-law’s car. He could not open either of the front doors, and he determined that there was nothing that he could do to help. He testified that he then heard woman calling for help and went to the other motor vehicle where the appellant was in the driver’s seat of her car. He testified that he did not see any cuts or blood or any other apparent injuries to the appellant. [7] It was suggested to Mr. MacRae, in cross-examination, that he did not smell any alcohol emanating from the appellant at that time, to which he answered “That was the last thing on my mind.” [8] Barbara MacRae, the driver of the other motor vehicle involved in the collision testified that on the date of the accident she had been at the Baddeck Hospital visiting sick relative. Her mother-in-law had been there as well, and Barbara MacRae had agreed to drive her mother-in-law home. She testified that, after leaving Baddeck, they stopped at the United Church in Glen Tosh on the Trans-Canada Highway where her husband and father-in-law were working; and, after short period, they proceeded back onto the highway, with Marjorie MacRae occupying the front passenger seat. Barbara MacRae testified that she remembers nothing from that point until she was in an ambulance after the collision. She spent some time in hospital in May and June of 1997 and walked with the assistance of cane as result of injuries which she received in this accident. [9] Constable Daniel Borke testified to being on duty as an R.C.M.P. officer in the Baddeck detachment on May 28, 1997. He was on duty when the call came in concerning the accident and was the first officer to arrive at the scene. He received the telephone call at 12 minutes after three on the afternoon of May 28, 1997, and arrived at the scene approximately five minutes later. The ambulance attendant was already there. He testified that he noticed woman sitting in the back seat of the green car with the ambulance attendant talking to her. He noticed that there was road map, of Nova Scotia, spread open inside the car. He testified that his main responsibility was to secure the scene of the accident and direct traffic. [10] Sergeant Austin MacKenzie, member of the R.C.M.P. stationed in Baddeck, attended at the scene of the accident at approximately 3:20 p.m. on that day. He took number of photographs of the accident scene which were exhibits at the trial. Sergeant MacKenzie testified that he saw the appellant in the ambulance. He was three to four feet away from her, and standing outside the ambulance, when he detected fairly strong smell of alcoholic liquor from her. He also indicated that her eyes were bloodshot and glassy and her movements were “that of an impaired person to my eyes.” He checked the appellant’s vehicle, and noticed the smell of alcohol coming from the vehicle. He noticed open maps in the vehicle. He seized thermos from the vehicle noticing that there was small amount of liquid in it from which he could detect the smell of liquor. He acknowledged under cross-examination that there was nothing in the thermos to be analyzed. [11] Edmond Osborne Burke, an auxiliary member of the R.C.M.P., testified that he came upon the scene of the accident in question. He recognized the appellant as the lone occupant of the Chrysler motor vehicle. He asked the appellant if she was okay and she replied that she was. He observed that the appellant appeared to be disoriented and confused, her eyes were bloodshot and she was unsteady and weaving; however he indicated that he did not notice any smell of alcoholic beverage while speaking to the appellant; although he explained that he did not have close contact with her and that during most of the time he was near her, he was outside the vehicle. He was not face to face with the appellant. [12] Shane MacFarlane testified that he came upon the scene of the accident. He approached the Chrysler vehicle and noticed that both air bags had been exploded. He spoke to the woman in the Chrysler vehicle. He noticed that her speech was slurred and when he bent over her he detected smell of alcohol. She also appeared disoriented. [13] Dr. Roland Genge was qualified to give opinion evidence in the field of general medicine. He testified that he was called to the Baddeck Hospital after the accident had occurred. He testified that he first encountered the appellant as she was standing in corridor of the hospital in Baddeck, and indicated: The patient was eh, standing in the corridor and walking in the corridor of the hospital when arrived accompanied by an R.C.M.P. Officer. She did not appear to have had any serious injuries. She was walking, in my estimation, with stagger, she smelled of alcohol, questioned the patient as to any complaints that she had and it was indicated to me that she complained of soreness in her right foot only. Subsequent examination, in the examination room, showed that her vital signs were normal, her color was normal, there was no visible head injury or injury that could ascertain by feeling her head. Her neck was supple indicating there was probably no injury to the neck. [14] Dr. Genge concluded that the appellant was intoxicated. [15] Duncan MacLean, an ambulance attendant, arrived at the scene of the accident. He went, first, to the Chrysler vehicle and examined woman who was sitting in the rear seat. While he noticed no obvious injuries, he immediately detected smell of alcohol on her breath and noticed that she appeared to be slightly disoriented. [16] Ronald Bonnar testified that he came upon the scene of the accident as he was driving westbound on the Trans-Canada Highway. He went to the Chrysler motor vehicle and checked on woman who was in the back seat of that vehicle. He testified that she was looking for some gum in her purse, that she seemed quite upset and concerned about the people in the other vehicle. He testified that he did not detect any odour of alcohol during the time that he was with the woman. He agreed that statement which he subsequently gave to the police fairly summarized the woman’s account of the accident. The statement indicated: she said that she had bent down to get something, when she looked up she had drifted over the line and onto their side of the road, then she said she pulled the wheel back, she pulled the wheel back to get back onto her side of the road and doesn’t recall anything after that. [17] Travis MacNeil is paramedic. On arrival at the scene he went to the Chrysler motor vehicle to speak to the appellant. The appellant declined Mr. MacNeil’s suggestion that he put collar on her neck and did not want him to take her blood pressure. She did not want to get on stretcher to go to the ambulance, yet she complained of pain in her right foot. Initially, Mr. MacNeil did not detect the smell of alcoholic beverage from the appellant but eventually did so. He took the appellant by ambulance to the Baddeck Hospital and turned her over to Lynn Dunlop, nurse. [18] Lynn Dunlop is registered nurse who lived in Baddeck. She testified that she first dealt with the appellant in an outpatient room at the Baddeck Hospital. She testified that the appellant was staggering and did not want to sit down. Ms. Dunlop detected smell of alcohol from the appellant. She concluded that the appellant was intoxicated. [19] Janet MacCuspic is also registered nurse employed at the Baddeck Hospital who saw the appellant in corridor in the hospital. She noticed some unsteadiness in the appellant’s manner of walking; however, she did not smell an odour of alcohol from the appellant, but indicated that she was no closer than five to six feet from the appellant and that she had poor sense of smell. [20] Sally MacDonald, licensed practical nurse, working at the Baddeck Hospital testified that she saw the appellant shortly before 4:00 o’clock on the afternoon in question. She helped the appellant walk down corridor to washroom. She noticed that the appellant was staggering and she smelled alcohol. She concluded that the appellant was intoxicated. On cross-examination she admitted that in her statement to the police she said “I thought could smell alcohol from her breath” and, as result, acknowledged that this implied some doubt as to whether she did in fact smell alcohol. [21] Patricia Nicholson was interim director of nursing at the Baddeck Hospital on the day in question. She testified that she recalled seeing the appellant arrive at the hospital that afternoon. She testified that she noticed flushed appearance, glassy eyes, and strong smell of alcohol. She felt that the appellant was intoxicated. [22] Fred Lewis, licensed mechanic, gave opinion evidence on the condition of the two vehicles. He testified that he could find no mechanical defect in either car that could have caused or contributed to the accident. [23] Constable Michael Towle, member of the R.C.M.P. stationed in Baddeck, testified as to photographs which he took of the accident scene which were exhibits at the trial. Having attended at the scene at the time of the accident he testified that the weather was clear and mild and the road was dry. The accident scene was between 4/10 and 5/10 of kilometer west of the St. Ann’s turn off from Highway 105. Constable Towle testified that he went to the ambulance where he noted the appellant was trying to get out of seat in the ambulance while the ambulance attendant was asking her to remain seated. The appellant ignored the ambulance attendant and continued to try to get out of the seat, ending up on the floor of the ambulance. The appellant got out of the ambulance at which time Constable Towle noticed that she was having co-ordination problems, she had glassy eyes, and she was talking about having to get to the Gaelic College. Constable Towle noticed that the appellant’s speech was slurred and he detected strong smell of alcoholic beverage on her breath. Constable Towle formed the opinion that the appellant’s ability to operate motor vehicle was impaired by alcohol. He testified that he advised the appellant that she was under arrest for the impaired operation of motor vehicle. Shortly thereafter the appellant was taken to the Baddeck Hospital by ambulance and Constable Towle accompanied her. Upon leaving the ambulance Constable Towle took possession of the appellant’s purse. [24] At the hospital, Constable Towle noticed the appellant stagger as she proceeded down hallway and he detected strong odour of alcoholic beverage from her breath. [25] At approximately 4:16 p.m. on May 28, 1997, Dr. Genge informed Constable Towle that there was no medical reason to keep the appellant at the hospital. Constable Towle took the appellant to the Baddeck detachment of the R.C.M.P. At the detachment, Constable Towle testified that the appellant asked him for some eye drops from her purse. Constable Towle looked in her purse and found Visine, liquid mouth drops and cranberry juice bottle 1/4 full of substance he believed to be mouth wash. He did not find the particular eye drops that the appellant requested. [26] At 5:12 p.m. on the day in question the appellant was placed in the cells at the detachment. At approximately 6:00 o’clock that afternoon Constable Towle learned that there had been fatality as result of the accident and he was aware that the appellant’s husband was on his way to the detachment. Shortly thereafter, the appellant’s husband arrived and in her husband’s presence, Constable Towle informed the appellant that there had been fatality. The appellant was released at 8:55 p.m. that evening. [27] Corporal Almey gave opinion evidence as collision analyst. He took photographs, made measurements and later produced plan of the collision site. Constable Almey concluded that prior to the accident the Chrysler vehicle was travelling westbound in the eastbound lane and that the Ford Tempo vehicle was travelling eastbound in the eastbound lane and that both vehicles turned so as to collide in the westbound lane. [28] Dr. Bernard MacLean testified on behalf of the defence, having been qualified as general medical practitioner. He was not the appellant’s family doctor but on May 31, 1997, three days after the accident, he examined the appellant and noticed bruise on her foot. X-rays confirmed that the appellant’s foot was fractured in two places and that the nature of the fractures would have made walking difficult. The appellant reported to Dr. MacLean some retrograde amnesia. Dr. MacLean also detected positive neurological sign consistent with some kind of central nervous system injury, in layman’s terms, concussion. Dr. MacLean also testified that the appellant did not complain of nor did she display any signs of headaches, dizziness, vomiting or disorientation all of which are signs that he would look for in person who had received head injury. [29] Allison Tupper is professional engineer who was qualified to give opinion evidence with respect to accident reconstruction. He also attended at the scene, took measurements and photographs. Mr. Tupper concluded: As result of review, consideration and analysis have reached the opinion that it can be said with the highest degree of probability that; 1, collision occurred at or near the center of the westbound lane between the westbound Chrysler Sebring and the eastbound Ford Tempo. At material times preceding the collision, Ms. Lawrence had been driving her westbound car at speed of about 88 kilometers per hour while in the wrong or eastbound lane. When about 75 feet away from the eventual point of impact, Ms. Lawrence started to steer to her right and bring her car back into its proper lane. Meanwhile, Ms. MacRae was driving her eastbound car in the eastbound lane at speed of about 82 kilometers per hour and when about 50 feet away from the eventual point of impact she started to steer to her left in an apparent attempt to avoid collision with the oncoming car, just as that car moved back into its proper lane. No. 7, the two cars collided front to front when separated at an angle of about 35 degrees. [30] Mr. Tupper further concluded that the appellant applied her brakes immediately prior to the collision since there was evidence of braking, 16 feet prior to the impact with the other vehicle. [31] Ronald Lawrence, the appellant’s husband, testified that he woke at 5:30 a.m. on the morning of May 28, 1997 and found his wife, the appellant, working at her computer. Later that morning, at around 10:00 a.m., he noticed that she was still working on the computer. He testified that his wife continued working until approximately 12:30 p.m. when she left to go to the Gaelic College at St. Ann’s. He noticed nothing unusual about her appearance. [32] When he learned of the accident he travelled to Baddeck and met Constable Towle at the R.C.M.P. detachment. He testified that his wife did not seem to be impaired, to him, and when Constable Towle told him that his wife was in shock, he attributed her very quiet mood to that shock. [33] The appellant testified that on May 28, 1997 in connection with her duties as an employee of the Nova Scotia Government, she had speaking engagement at the Gaelic College. She had intended to be there by 3:30 p.m. on May 28, 1997. She testified that she had never been to St. Ann’s Gaelic College before and that she had never driven on that portion of Highway 105. She testified that she left her home in Harvre Boucher, Antigonish County, at 12:30 p.m. on the day in question and stopped at her office to pick up some materials. She then went to Baddeck, and went on from there in an attempt to find the Gaelic College. [34] When she was first asked about the last thing she recalled before the accident she replied: think leaving the office. had no memory of the accident or even the day of the accident until several weeks later. And in my mind now, can see passing Baddeck, but don’t know if that’s something am remembering or something that am assuming. know was at the office and picked up the slides, that is the last thing can say really know for sure. 8) The appellant went on to testify that she was “absolutely positive that remember being very frustrated that had missed where was supposed to be, and know was reading map.” She did not remember being stopped crossways on the road, nor did she remember the witness Mr. MacLean at all. She did remember seeing Osborne Burke’s face and remembered being in the ambulance. She also recalled being brought into the Baddeck Hospital and seeing Dr. Genge. 9) She identified the thermos that had been seized from her car and explained that she routinely used it to carry juice in the car. She said she did not have juice in the thermos on the day of the accident. 10) She testified she had not been drinking alcohol at all on the day of the accident. She testified that she was not aware that there were breath drops in her bag. With respect to the mouthwash, she testified that the Ocean Spray bottle found in her car contained mouthwash. The appellant was asked if she had any specific recollection of using mouthwash on the date of the accident. She testified: A. Well, as my normal routine would have used it before left home. Brushed my teeth and used mouth wash. After that don’t have any idea. 11) On cross-examination the appellant was shown photograph in which was depicted sign for the Gaelic College. When it was suggested to her that this was fairly conspicuous sign, she indicated: didn’t see it. did not see that sign on the date in question and it wasn’t the sign that was looking for. wasn’t looking for road sign, was looking for college sign, and don’t know when that picture was taken either. 12) Following submissions of counsel and the trial judge’s charge to the jury, the jury returned verdicts of guilty on each of the four counts in the indictment. APPELLANT’S GROUNDS OF APPEAL 13) The appellant raises 12 grounds of appeal which will deal with in the order in which counsel for the appellant put them in his submissions, both written and oral. 14) 1st Ground of Appeal That the learned trial judge erred in law in refusing to grant stay of all charges even though he found that the appellant’s right to counsel under s. 10(b) of the Charter had been violated by Officer Towle when he failed to advise the appellant of the full extent of her legal jeopardy. The trial judge further erred in law by making inconsistent findings concerning the impact of the Charter breach upon the refusal charge in his attempt to fashion remedy. 15) Prior to the commencement of the trial, the charges against the appellant included charge of refusing breathalyzer demand. Counsel for the appellant brought an application to have all charges against the appellant stayed on the basis that her right to retain and instruct counsel without delay, pursuant to s. 10(b) of Canadian Charter of Rights and Freedoms, had been violated. The only evidence heard on this application was that of Constable Towle of the R.C.M.P. 16) Constable Towle testified that on May 28, 1997, at 4:16 p.m., he read breathalyzer demand to the appellant. He indicated: asked her if she understood the demand, she indicated she did, and subsequently read her her rights to counsel and asked her if she understood then and eh, explained them to her because she gave indications she didn’t quite understand them and she wished to talk to counsel. 17) Constable Towle took the appellant to an interview room in the R.C.M.P. detachment in Baddeck, opened telephone book to the yellow pages for lawyers and left the appellant in the room with telephone and the telephone book. After few minutes, Constable Towle knocked on the door and asked if the appellant needed assistance. The appellant indicated that she wished to call lawyer in Port Hawkesbury, Mr. Wayne MacMillan. Constable Towle located Mr. MacMillan’s telephone number, underlined it, and left the appellant to make her phone call. short time later, the appellant opened the door to the interview room and asked Constable Towle to come in. She indicated that her counsel wished to speak to him. Constable Towle had conversation with Mr. MacMillan in which he told him that it was his belief that the appellant’s ability to drive motor vehicle was impaired by alcohol at the time of the accident and that there were serious injuries which resulted from the accident, with the possibility of fatality. Constable Towle asked Mr. MacMillan if he was going to tell the appellant that there was possibility of fatality and Mr. MacMillan’s reply was, “I don’t know if that’s good idea.” This conversation occurred at 4:43 p.m. and lasted for two to three minutes. Constable Towle again left the interview room and the appellant resumed her telephone conversation with Mr. MacMillan. 18) At 5:11 p.m. Constable Towle checked on the appellant and asked her if she was almost finished conferring with counsel and she indicated that she was. At 5:12 p.m. Constable Towle entered the interview room and asked the appellant if she was going to comply with the breathalyzer demand. The appellant asked Constable Towle what her options were. He replied that she could take the test, pass or fail, or she could refuse the test at which time she would be charged with the offence of refusal. Constable Towle then asked her again if she was going to comply with the demand and her response was, “I guess not.” Constable Towle’s evidence continued: At that point informed her by saying that that would be considered refusal and did she understand that by refusing she would be charged with the offence of refusal. She didn’t quite comprehend that, explained it to her, she understood it, at which point she asked if there were any other charges pending and eh....yeah any other charges pending. 19) On cross-examination, Constable Towle was asked the following question and gave the following answer. Q. Based on the evidence, what if anything did you conclude as to whether or not Mr. MacMillan had explained to her there was strong possibility of fatality? A. The way she framed the question to me was that he had advised her that there were other charges that could be laid because of the injuries, because had informed him that there were serious injuries. 48) Constable Towle indicated that he could not tell her what charges were pending until she decided whether or not she was going to take the test. 49) The appellant again asked if there were other charges and Constable Towle indicated that there was strong possibility of other charges as there were serious injuries to the people in the other vehicle. Constable Towle again asked the appellant if she was going to comply with the breathalyzer demand and she replied, “no am not” at 5:17 p.m. 50) Constable Towle then advised the appellant that she would be charged with the offence of refusing the breathalyzer. Constable Towle did not release the appellant on an appearance notice at that time because, although he knew there were serious injuries to people in the other vehicle, he did not know the extent of these injuries. Also, the appellant did not have transportation and Constable Towle knew that her husband was on his way to the R.C.M.P. detachment in Baddeck. 51) At approximately 5:40 to 5:45 p.m., Constable Towle learned that there had been fatality as result of the accident. At approximately 5:50 to 5:55 p.m., the appellant’s husband arrived at the R.C.M.P. detachment. 52) Constable Towle indicated: spoke to Mr. Lawrence, advised him of the situation at hand, advised him that had just recently learned of death in the accident and that his wife had not been informed of that yet, wanted him aware of that so when brought her down and told her that, that he would be able to comfort her and assist her. 53) Constable Towle then released the appellant from the cells, and advised her, in her husband’s presence, that there had been death as result of the accident and that there were going to be further charges. He advised her that he did not know of all the charges at that time due to his lack of knowledge of the condition of the driver of the other vehicle but he told her that there would be charges of refusing the breathalyzer, impaired driving causing death and criminal negligence causing death. The appellant was released from custody at approximately 7:00 p.m. 54) On the basis of these facts, counsel for the appellant requested a finding that the appellant’s s. 10 Charter rights were violated because she was not fully apprised of the extent of her jeopardy, with a corresponding right to consult counsel with respect to that jeopardy, before having to respond to a breathalyzer demand. He requested the trial judge to stay the refusal charge, and all other charges as well. [55] The ruling of the trial judge is somewhat ambiguous. In the course of that ruling he said the following: For purposes of the Charter Application, am satisfied the officer had the reasonable and probable grounds to make the demand and the demand was properly made as requested under the section. [56] He then said: Constable Towle had duty to communicate to Ms. Lawrence her right to counsel. In order for Ms. Lawrence to properly communicate with her counsel she ought to have known the extent of her jeopardy. am also satisfied there is an onus on the police to take steps to make sure Ms. Lawrence understands her jeopardy fully when she deals with her right to counsel. [57] The trial judge concluded: .. conclude that Ms. Lawrence’s s. 10(b) rights were violated. She did not have true appreciation of the consequences of giving up her protected charter rights. [58] With respect to remedy, the trial judge said that although he found the appellant’s s. 10(b) Charter rights to have been violated, he found that this was not one of those clearest of cases that warranted stay of all charges. [59] The trial judge then said the following: am satisfied, however, that the adverse inference ought not to be allowed to be used and argued by the Crown on this case on the other charges. say other charges because am satisfied that the refusal test was properly done, properly responded to, she had counsel for that, and differentiate that charge from the other charges with all due respect to Mr. Nicholson’s position. It is the adverse inference which arises from the refusal that is the only evidence that was elicited that would be of great benefit to the Crown in this case. [60] The trial judge ruled that the Crown would not receive the benefit of any adverse inference that might arise from the appellant’s refusal to take the breathalyzer test. At subsequent hearing, prior to the trial, the trial judge ordered that the refusal charge be severed from the other charges which are the subject of this trial. [61] While the ruling of the trial judge is ambiguous, when it is looked at in its entirety the trial judge appears to be saying that the appellant’s s. 10(b) Charter rights were violated because she was not fully apprised of the extent of her jeopardy, and permitted to consult with counsel with respect to that, before having to respond to breathalyzer demand. [62] In view of my conclusion with respect to this ground of appeal, it is not necessary for me to decide if the trial judge was correct in concluding that the appellant’s s. 10(b) Charter rights were violated. [63] Counsel for the appellant, on this appeal, is contending that the trial judge should have stayed all of the charges against the appellant; namely, the charge for refusing the breathalyzer demand, and the charges of criminal negligence and impaired driving as well. [64] In my opinion there is no merit to this position. [65] Firstly, this appeal is not the proper forum for the appellant to argue that the trial judge should have stayed the charge of refusing the breathalyzer demand. The appellant was not tried on that charge. [66] Secondly, accepting, without deciding, that the appellant’s s. 10(b) Charter rights were breached (because she was not fully apprised of the extent of her jeopardy, and permitted to consult counsel with respect to that, prior to having to respond to the breathalyzer demand) such breach had no effect on the charges of impaired driving and criminal negligence. The jury could not, and did not, hear any evidence concerning the breathalyzer demand or the refusal of the appellant to comply with that demand. Therefore, the only evidence from the appellant, which arose out of the circumstances involving the breach of her s. 10(b) Charter rights, was not heard by the jury. [67] Counsel for the appellant contends that if the appellant had been properly advised of the extent of her jeopardy, and had been able to consult counsel with respect to that, she might have taken the breathalyzer test and she might have passed the test. Had she done so, that would have countered all of the Crown’s evidence of the indicia of impairment which supported the charges of negligence and impaired driving. For this reason, counsel contends, the charges of criminal negligence and impaired driving should have been stayed as well. There was no evidence before the trial judge, on the voir dire, from which such inferences as counsel for the appellant suggests, could reasonably be drawn. [68] Thirdly, the trial judge refused to stay all of the charges against the appellant because he found “that this is not one of those clearest of cases” warranting stay. That is the proper test for granting stay of proceedings. Further, stay of proceedings is discretionary remedy, and appellate interference with the exercise of that discretion is not warranted unless the trial judge misdirects himself, or his decision is so clearly wrong as to amount to an injustice (see Canada, Minister of Citizenship and Immigration v. Tobiass et al., 1997 CanLII 322 (SCC), [1997] S.C.R. 391. It has not been demonstrated on this appeal that there is any basis for this court to interfere with the decision of the trial judge to refuse to stay these charges. [69] 2nd Ground of Appeal That the learned trial judge erred in law in making the following conclusions in his rulings concerning the lost evidence, i.e., the mouthwash suspected by Officer Towle of containing alcohol. A. That Constable Towle’s explanation for the loss of the mouthwash seized from the appellant’s purse was satisfactory in that he, Constable Towle, was satisfied that the mouthwash was of no importance once the refusal was entered; B. That the level of relevance of the missing evidence fell short of establishing serious impairment of the right to make full answer and defence even though the allegation of alcohol-induced impairment, evidenced primarily by the alleged smell of alcohol on the appellant’s breath, was key to the prosecution of all the charges, fact verified by the Crown Attorney in his closing address; C. That the learned trial judge, in revisiting the issue of the lost evidence at the commencement of the trial, simply reiterated his earlier ruling without taking into consideration the interim developments occasioned by the successful defence motion to sever the refusal charge from the remaining four counts in the indictment which dealt with impairment and relied on the smell of alcohol as proof of alleged impairment; D. That in both the initial and the subsequent ruling by the learned trial judge, he failed to consider the impairment-related charges in concluding that there was no abuse of process arising from the negligent handling and subsequent loss of the evidence. [70] It is necessary to refer to some further background to put this ground of appeal in perspective. [71] Counsel for the appellant also brought an application seeking stay of proceedings on all charges on the basis of breach of her rights under the Charter due to the loss of evidence by the R.C.M.P. Counsel claimed that the appellant’s rights to full answer and defence had been compromised by the fact that this evidence had been lost. The appellant did not call evidence on this application. The evidence was, principally, through Constable Towle. [72] Constable Towle indicated that while the appellant was attempting to locate counsel, she asked Constable Towle if he would look in her bag for her eye drops. He did so and while looking in her bag, noticed an Ocean Spray bottle, 1/4 full of blue substance which he took to be mouthwash from its smell. Constable Towle seized that bottle, placed it in his personal locker and the following day logged it into temporary exhibit locker. [73] Constable Towle indicated that while he retained the above bottle, after the appellant’s refusal to take breathalyzer test, he no longer considered it of great significance. [74] By agreement, the evidence of Constable MacDonald was placed before the court by the Crown Attorney in the following manner: the officer indicates that he received the exhibit, 475 or 473 milliliter bottle of Ocean Spray approximately one quarter full of liquid, believed to be mouthwash and one metal container thermos and he received those from Constable Towle, Constable Towle put them in temporary exhibit locker and from there, Constable MacDonald took them and put them in the main exhibit locker and when he went to retrieve them the thermos was there but the bottle containing the mouth, the substance believed to be mouthwash wasn’t. [75] The bottle of mouthwash was never found. [76] The trial judge ruled that Constable Towle’s conduct in this matter did not amount to an abuse of process. The trial judge also found that the loss of this evidence did not cause a breach of the appellant’s right to make full answer and defence under s. 7 of the Charter. The trial judge said: reject the Defence Counsel’s contention that the conduct of the Crown, and in particular Constable Towle, the R.C.M.P. amounted to an abuse of process. am not satisfied this was done for any improper motive to be attributed to the Crown, R.C.M.P. and in particular Constable Towle. Although as say, it was probably through negligence the mouthwash was lost. am satisfied the mouthwash was lost in circumstances that did not amount to an abuse of process. Mr. Nicholson argued on behalf of the accused his right to make full answer in defence was prejudiced by the loss of the mouthwash. He said he would have been able to have it analyzed and be able to use the amount of alcohol contained in the mouthwash to justify the smell of alcohol on Ms. Lawrence’s breath. This of course was the first sign to Constable Towle observed that she had been drinking. There was no evidence heard at the Voir Dire about Ms. Lawrence drinking any of the mouthwash that is the subject matter of the missing item. As Mr. Nicholson pointed out, there are numerous witnesses who said they didn’t smell alcohol on her breath. There are other witnesses that say they did. As well, am satisfied that Mr. Nicholson through Constable Towle can bring out the matter of the mouthwash and the fact that it contains alcohol and the smell. The Crown as much conceded this. The only difficulty seems to be what percentage of alcohol was in the particular mouthwash in question. When you consider the type of jar, cranberry juice jar, the amount of mouthwash remaining, it is questionable suggest as to just how much weight this would have with jury. am satisfied that the accused can overcome any obstacles such as this through cross examination of the witnesses called on behalf of the Crown. am not satisfied that the stay as requested by the accused is proper in this particular matter. In fact, even if were to find there was breach of the accused’s charter of rights, think quite clearly that to grant stay in the serious charges involving death and bodily injuries, based on the allegations of the amount of the missing mouthwash as alleged here would in fact bring the administration of justice into dispute. In conclusion, although the mouthwash could be helpful to the defence when analyzing their cross examination of witnesses, find the level of relevance, while it might be sufficient to meet the test for disclosure as set out in Stinchcombe, it falls far short of establishing serious impairment of the right to make full answer and defence by the accused. [77] Counsel for the defence renewed this application at later time during the proceeding and the trial judge rejected that application for substantially the same reasons. [78] The principles which are applicable in assessing whether lost evidence results in breach of one’s s. Charter rights are set out by Justice Roscoe of this court in R. v. B.(F.C.) (2000), 2000 NSCA 35 (CanLII), 182 N.S.R. (2d) 215. 79) In my opinion, in submitting that the lost mouthwash affected the ability of the appellant to make full answer and defence, counsel for the appellant is overstating the significance of the mouthwash to this trial in the extreme. The mouthwash was not pertinent to the defence. The subject of mouthwash was not even raised by defence counsel, initially, in his direct examination of the appellant. Following recess, at the conclusion of the direct examination of the appellant, counsel for the appellant requested permission of the trial judge to ask question which he had neglected to ask. He then asked the appellant series of questions concerning mouthwash. The appellant could not remember if she had used mouthwash on the day of the accident. She could only testify as to her usual routine; namely, to have brushed her teeth and used mouthwash before she left home. No other evidence was called by the defence concerning mouthwash, such as the type used by the appellant, its alcohol content, if any, the smell which it produces, or otherwise. 80) In my view there is no merit to this ground of appeal. 81) 3rd Ground of Appeal will deal with the third ground of appeal together with the 11th ground of appeal later in these reasons. 82) 4th Ground of Appeal That the Crown Attorney’s opening address was prejudicial, inflammatory, and unheeding of both the role of the Crown in adversarial proceedings and the objections of defence counsel and the learned trial judge. 83) have carefully reviewed the opening address of counsel for the Crown. The trial judge found it to be objectionable that Crown counsel went into too much detail as to what the witnesses he proposed to call would say. The trial judge spoke to counsel about that in the presence of the jury, and reminded the jury that what counsel says witness saw and observed is proof of nothing and the jury was to consider only what the witnesses say. 84) Counsel for the appellant has not pointed to anything specific in this address (nor do consider there to be anything in that address) that is of such an inflammatory nature as to have prejudiced the appellant from having fair trial. I would dismiss this ground of appeal. 85) 5th Ground of Appeal will deal with the 5th ground of appeal along with the 12th ground of appeal later in these reasons. 86) 6th Ground of Appeal That the learned trial judge erred in finding that the Crown Attorney’s actions in collaborating with the MacRae family’s civil lawyer, who the Crown admitted was taking notes for him in the courtroom, did not amount to sufficient grounds either for disqualifying the Crown Attorney or for finding an abuse of process. 87) On the third day of the trial, and during the re-direct examination of the paramedic, Travis MacNeil, an exchange took place between counsel as to whether matter had already been dealt with on direct and cross-examination, and whether it was proper redirect examination. The jury was excused while the matter was argued before the trial judge. During this discussion, counsel for the Crown asked if he could check with counsel for the MacRae family (who was present in court on watching brief taking notes). In the discussion which ensued, counsel for the appellant submitted to the trial judge that Crown counsel was not being impartial by collaborating with the MacRae family lawyer and that such conduct amounted to an abuse of process. 88) In dealing with the matter the trial judge spoke of the need that justice must be seen to be done, that Crown counsel must present the evidence in fair and impartial manner, and that Crown counsel not act in collaboration with the MacRae family lawyer. Having made those comments the trial judge said that he was satisfied that the Crown had not abused the process, and that from his observations during the trial the Crown counsel was acting in an impartial manner, and that as far as the trial judge was concerned Crown counsel was still fulfilling his role as Crown counsel in this matter. In my opinion, counsel for the appellant has not demonstrated that the trial judge should have declared mistrial, or that there is any basis on which this court can interfere with the exercise of his discretion in not declaring mistrial. 89) I would dismiss this ground of appeal. 90) The 7th, 9th and 10th grounds of appeal will be dealt with in considering the 12th ground of appeal; and will deal with the 8th ground of appeal along with the 11th ground of appeal. 91) 11th Ground of Appeal consideration of the appellant’s ground of appeal number 11 also involves consideration of ground of appeal numbers 3, and 11 which are set out as follows: 3rd Ground of Appeal That the learned trial judge erred in law in not expressly stating to the final lot of jurors that ground for general exemption was personal knowledge of the facts of the case although such direction had been given to the initial jury array in no uncertain terms. 8th Ground of Appeal That the learned trial judge erred in law in ruling that he was without jurisdiction to hear the motion for mistrial based on the allegation of juror bias. He further erred in law in ruling that he declined jurisdiction to hear the mistrial application having already found that he did not have such jurisdiction in the first place. 11th Ground of Appeal That the appellant’s right to fair trial as guaranteed under ss. and 11(d) of the Canadian Charter of Rights and Freedoms further was breached as result of juror bias. The appellant intends to make application to introduce fresh evidence that, it is submitted, will establish that juror [name of juror], immediately before being sworn in as juror, stated to another potential juror, Gordon Matheson, that she had already decided the appellant was guilty as charged. 92) With respect to the 3rd ground of appeal, this trial was held in Baddeck, Nova Scotia. Initial jury selection was held in Sydney, Nova Scotia about one week before the trial. During jury selection in Sydney the trial judge, in addressing the jury panel on exemptions, said the following: Now the reason you might want to seek exemption, if you do, and the reasons that we will grant exemptions consist of, that you are related to the accused; you have close personal relationship with the accused; you have personal knowledge of the events surrounding this particular trial; or possibly you are related to one of the crown witnesses. 93) When the trial began, one week later in Baddeck, unexpected developments resulted in the loss of some of the members of the jury who had been selected to serve. The sheriff was required to go out to the streets of Baddeck to enlist potential candidates. In the final selection process the trial judge did not repeat, as specific ground for seeking exemption, juror’s close personal knowledge of the events surrounding this particular trial. 94) Considering the various factors which take into account, later in these reasons, in dismissing the appellant’s 11th ground of appeal, this particular omission by the trial judge is not significant. I would therefore dismiss this ground of appeal. 95) consideration of the 8th and 11th grounds of appeal involves the following background information. 96) Counsel for the appellant sought leave of the court to introduce fresh evidence on the hearing of this appeal, particularly as it relates to ground of appeal number 11. The Crown did not oppose this application except to the extent that the evidence sought to be introduced was otherwise inadmissible, because it was hearsay. With the exception of the evidence that was hearsay the court agreed to admit and consider the evidence because the purpose of that evidence was to challenge the validity of the trial process itself (see R. v. Cole (1996), 1996 CanLII 5286 (NS CA), 152 N.S.R. (2d) 321 (N.S.C.A.) also R. v. W.W. and I.W. (1995), 1995 CanLII 3505 (ON CA), 100 C.C.C. (3d) 225 Ont. C.A.). 97) The substance of the evidence in question is as follows. Gordon Matheson of Baddeck, Nova Scotia is employed with the Nova Scotia Government at the Baddeck Provincial Building. He was in his office on the 21st of June, 1999 when he was approached by the sheriff’s deputies. He was asked to appear at the courthouse in 20 minutes as he was prospective juror in the trial which is the subject of this appeal. He reported to the courthouse between 11:30 a.m. and 12:00 noon on that day. He and another person, whom will refer to as Juror No. 12, waited approximately 10 minutes before being called into the courtroom. Mr. Matheson and Juror No. 12 were seated together, making small talk, before the judge came into the courtroom. Juror No. 12 said to Mr. Matheson at this time “I don’t know why they would be having trial over this, the woman was drunk and on the wrong side of the road.” 98) Mr. Matheson deposed that he felt this was an inappropriate thing to say and that nothing further was said about the matter. 99) Because he and his wife knew some of the witnesses at the trial, Mr. Matheson said that he was not selected for the jury and was released. Juror No. 12 was selected. Mr. Matheson gave statement to private investigator with respect to this matter on July 7th, six days after the jury had rendered its verdict in this case. 100) This matter came to the attention of counsel for the defence on July 2nd, the day following the jury’s verdict. Counsel for the defence spoke with counsel for the Crown and indicated that he was going to make an application before the trial judge for declaration of mistrial. The application was made on August 13th and heard by the trial judge on September 7th. The trial judge decided, correctly in my view, on the basis of the decision of this court in R. v. Gumbly (1996), 1996 CanLII 5245 (NS CA), 155 N.S.R. (2d) 117 that verdict having been rendered and the jury having been discharged, he had no jurisdiction to consider the motion for mistrial. 101) That is sufficient to dispose of the appellant’s 8th ground of appeal. 102) As to the 11th ground of appeal, the question that must be addressed is whether the statement made by Juror No. 12, before assuming her role as juror, don’t know why they would be having trial over this, the woman was drunk and on the wrong side of the road. establishes reasonable apprehension of bias, such that the appellant’s right to trial before an impartial tribunal has been breached. If it does, would have no recourse but to order new trial. The fact that the reasonableness of the verdict, on the evidence, is not raised as ground of appeal by the appellant is irrelevant. In R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] S.C.R. 537 Justice La Forest and Justice Cory, writing jointly for the majority, said at p. 543-44: The properly drawn conclusion that there is reasonable apprehension of bias will ordinarily lead inexorably to the decision that new trial must be held. In circumstances where reasonable apprehension of bias is demonstrated the trial judge has no further jurisdiction in the proceedings and there is no alternative to new trial. The significance of reasonable apprehension of bias was considered by this Court in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] S.C.R. 623, at p. 645: As have stated, it is impossible to have fair hearing or to have procedural fairness if reasonable apprehension of bias has been established. If there has been denial of right to fair hearing it cannot be cured by the tribunal's subsequent decision. decision of tribunal which denied the parties fair hearing cannot be simply voidable and rendered valid as result of the subsequent decision of the tribunal. Procedural fairness is an essential aspect of any hearing before tribunal. The damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it, is void. [Emphasis added.] If that be true of proceeding before an administrative tribunal it must apply with even greater force to criminal trial. 103) As to the test which should be applied for finding reasonable apprehension of bias, Justice Cory said the following in R. v. (R.D.), 1997 CanLII 324 (SCC), [1997] S.C.R. 484 at p. 530-531: The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, [1978] 1. S.C.R. 369, at p. 394: [T]he apprehension of bias must be reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. [The] test is "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. ." This test has been adopted and applied for the past two decades. It contains two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold": R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that would add that the reasonable person should also be taken to be aware of the social reality that forms the background to particular case, such as societal awareness and acknowledgment of the prevalence of racism or gender bias in particular community. The appellant submitted that the test requires demonstration of "real likelihood" of bias, in the sense that bias is probable, rather than "mere suspicion". This submission appears to be unnecessary in light of the sound observations of de Grandpré J. in Committee for Justice and Liberty, supra, at pp. 394-95: can see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', 'reasonable suspicion of bias', or 'real likelihood of bias'. The grounds for this apprehension must, however, be substantial and entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience". (emphasis in original) Nonetheless the English and Canadian case law does properly support the appellant's contention that real likelihood or probability of bias must be demonstrated, and that mere suspicion is not enough. [citations omitted] Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for finding of real or perceived bias is high. It is finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is serious step that should not be undertaken lightly. The onus of demonstrating bias lies with the person who is alleging its existence: Bertram, supra, at p. 28; Lin, supra, at para. 30. Further, whether reasonable apprehension of bias arises will depend entirely on the facts of the case. (Emphasis added) 104) The test for partiality set out in S.(R.D.) governs jurors as well as judges. But the test must be applied by paying close attention to all of the circumstances related to the alleged bias, including the type of bias alleged, its source, the point in the proceedings at which the allegation arises and distinctions between the roles and experiences of prospective jurors as compared to professional judges. 105) S.(R.D.) makes clear that partiality consists of both an attitude and behaviour based upon it: see, for example, Cory, J. at 107. As Doherty, J.A. said in R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (Ont. C.A.); leave to appeal denied [1994] S.C.R. x; at 336, “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.” Having opinions or knowledge, of itself, is not the issue. Impartiality does not demand that prospective jurors have no opinions or knowledge of the case, but only that they can set them aside. 106) In this case, both the type and source of the alleged bias are highly relevant to the question of whether reasonable person, fully apprised of the circumstances, would apprehend bias as result of the comment revealing the prospective juror’s knowledge and opinion concerning the case. 107) turn first to the source of the bias alleged. Deane, J. in Webb and Hay v. The Queen (1994), 181 C.L.R. 41 (Aus. H.C.) suggested at §12 that allegations of juror bias may be grouped into four main (although at times overlapping) categories related to the source of the alleged bias: disqualification by interest, disqualification by conduct, disqualification by association and disqualification by extraneous information. The source of the alleged bias is relevant to how reasonable person would react to an allegation in particular circumstances. For example, with respect to disqualification by interest or association, the age old maxim that one cannot be judge in one’s own case will be relevant. Such situations are recognized as ones of “obvious partiality” as that term is used in connection with s. 632 of the Criminal Code and do not arise from the prospective juror’s lack of understanding of the criminal trial process or the role and duty of the jury. The appearance of bias in such case cannot likely be removed by the judge’s instructions or cautions. Much the same may be said about bias based on conduct. Allegations of misconduct by or in relation to jurors will generally involve actions by jurors after they have received cautions and directions from the judge or improper actions by others that compromise the integrity of the jury’s deliberations. Further instructions from the judge will provide modest, if any, assurance that the fault which has already occurred will be corrected. To the extent that the juror’s misconduct might be thought to arise from ignorance of the process, the fact that it has occurred gives rise to serious doubts that future instructions will be more successful in undoing it than those already given were in preventing it. 108) Unlike the situations just discussed, the allegation of bias in this case falls into Deane, J.’s fourth category in which the source of the alleged bias is extraneous information. The concern is that previously held opinion, expressed before the juror has received instruction from the judge or taken the oath of office, has prevented the juror from behaving impartially. 109) Special considerations are relevant with respect to this sort of allegation. The first is that reasonable person would not expect prospective juror to come to court having heard nothing about the case. As the Ontario Court of Appeal said in v. Hubbert (1976), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279; aff’d 1977 CanLII 15 (SCC), [1977] S.C.R. 267, “Prior information about case, and even the holding of tentative opinion about it, does not make partial juror sworn to render true verdict according to the evidence.” As noted earlier, knowledge of and opinions about the case (i.e., the attitudinal component of bias) do not alone constitute partiality. Partiality consists of the inability to put them aside. 110) The second is that the statement by this prospective juror suggesting extraneous knowledge was made before taking the oath. It is common experience that people in informal settings may engage in “loose talk” which is quickly forgotten when they, themselves, undertake the solemn duty and responsibility of judging. Here, the statement was made before there was any instruction about the process, before the taking of the juror’s oath and before detailed instructions on what was expected by the judge. The strong statements of view made by this juror are, of course, troubling. However, they were made by prospective juror. They were not made by professional judge who would be taken at the time of making such remarks to understand the process and his or her responsibilities in it. Nor were they made by selected and sworn juror who, at the time they were made, had taken the oath of office and received appropriate instruction about his or her role and responsibilities. These circumstances are ones which reasonable person would take into account in assessing whether the juror was partial. 111) The nature of the alleged bias is also relevant to this assessment. The bias alleged here has been referred to as “specific” bias because it relates to the particular facts of the case. Concerns about bias based on extraneous knowledge tend to arise from unreflective comment and in absence of knowledge or understanding of the trial process or the juror’s role. reasonable person, fully apprised of the circumstances, could attribute statements of this kind to lack of knowledge concerning the trial process and the juror’s role rather than to any inability of the prospective juror to judge impartially. Moreover, reasonable person could think that an allegation of bias based on extraneous knowledge is likely to be overcome by the taking of the oath of office and proper judicial instruction on the role and responsibilities of jurors. The situation, and the reasonable perception of it, might be different where it is alleged that there was some deep-seated, generic bias, such as racial prejudice. Such bias tends to be deeply ingrained, difficult to put aside even with conscious effort and less likely to yield to judicial instruction: see v. Williams, 1998 CanLII 782 (SCC), [1998] S.C.R. 1128 at 1138. 112) Finally, any challenge after the fact must be placed in the context of the detailed and comprehensive provisions relating to jury selection in the Criminal Code. After the fact inquiries concerning juror’s alleged bias resulting from extraneous information must be undertaken with great circumspection. There can rarely be anything resembling full inquiry into or investigation of the allegation. Moreover, in cases other than those of obvious partiality, the Code entrusts the determination of juror partiality, when challenged prior to trial, to other jurors, not to judges. judge will rarely be doing service to the jury system by increasing judicial intrusion into jury deliberations. As Dickson, C.J. said in R. v. Barrow, 1987 CanLII 11 (SCC), [1987] S.C.R. 694 at 714, “The Code sets out detailed process for the selection of an impartial jury. ... Overall it is comprehensive scheme designed to insure as fair jury as 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.” Where there is no other evidence of juror misconduct and the alleged bias arises from statements by prospective juror evidencing knowledge or opinions about the case and is raised after the fact, the results of properly conducted jury selection process should be set aside only in compelling circumstances. 113) Since the test for apprehension of bias involves the conclusion of an informed person, will now review the circumstances which are present in this matter as part of the process of determining if the appellant has met the onus described by Justice Cory in S.(R.D.). 114) We know very little about the statement of Juror No. 12 which is alleged to give rise to apprehension of bias; namely, don’t know why they would be having trial over this, the woman was drunk and on the wrong side of the road. except that it was made, and the Crown does not dispute that fact. Mr. Matheson, to whom the statement was made, felt that it was inappropriate, yet he did not report it to anyone associated with the trial until after the trial had concluded. With no further information about the statement, or about Juror No. 12 who made that statement, we have to assume from the statement itself that Juror No. 12 had formed preliminary view about the case before she assumed her role as juror. We do not know the source of that view. 115) Having made this statement, Juror No. 12, after having been selected to serve as juror, took an oath of office as follows: Do you swear you shall well and truly try and true deliverance make between our sovereign lady the Queen and the accused at the bar, whom you shall have in charge, and true verdict give, according to the evidence, so help you God? 116) On number of occasions, the jurors were reminded, both by the trial judge and by counsel, that it was their duty to decide the case only on the basis of the evidence they heard. 117) Included in his opening remarks to the jury the trial judge said the following: You have been selected as the judges of the facts by both the accused Ms. Lawrence and the prosecution. It is your duty to consider and to weigh the evidence without sympathy or prejudice for or against any party to this trial because as you know it is important that justice not only be done but that it be seen to be done. You must not discuss this case with anyone nor let anyone tell you anything about it outside the courtroom. would ask you also not to discuss the case amongst yourselves until all of the evidence has been tendered because this would help to avoid the early danger of making premature conclusion about the matter when in fact all of the evidence is not before you. Your role is one of being patient, and carefully listening to the evidence. Now if you’ve heard or read anything about this case it is your duty to banish any such recollection from your mind. You must, as said earlier, decide this case as to whether or not the accused is innocent or guilty solely from the evidence that you hear in the courtroom during this trial. 118) At the close of the Crown’s case, the court adjourned for the weekend. Prior to the adjournment the trial judge said the jury: just want to remind you of one little thing that we did before. That you not discuss this case with your friends if you can at all possible, and you are only to go on the evidence you receive here in the courtroom during the course of the trial, anything you read or see don’t pay any attention to that. Okay. 119) In his address to the jury, counsel for the appellant said the following: It is your role as judges to assess the evidence that you have heard, make findings of fact based on the evidence that you have heard. Based on what you have heard here in court. 120) In his charge to the jury at the conclusion of the trial, the trial judge said the following to the jury: As told you before you must base your decision only on the evidence you heard in this courtroom during the course of this trial. You cannot base your evidence on matters that you might have read or heard about outside the courtroom. Only the evidence that is sworn and given before you in the courtroom is what you are to consider in light of the instructions that give to you today. So again, anything you might have heard or read outside the courtroom has nothing whatever to do with this case as far as your consideration is concerned. You are only to consider what you heard on the witness stand, the arguments of counsel and my charge to you. As judges of the facts it is your duty to decide those facts in this case as they have been repeated in the courtroom and as you find them to be. When you go to the jury room of course as have said, before, you must consult with one another, listen to one another, deliberate with view of reaching just verdict based on the evidence that you’ve heard in the courtroom. So in conclusion want to say am confident that you have taken your oath seriously and you will recall it is an oath to well and truly try this charge and to render true verdict according to the evidence and that’s the evidence you’ve heard in the courtroom on the witness stand and through the exhibits. That’s your oath. 121) In addition to the above the jurors, of course, received clear and careful instructions with respect to the presumption of innocence, and the onus on the Crown in criminal case to prove the guilt of the accused beyond reasonable doubt. 122) Following the trial judge’s instructions, the jury commenced their deliberations at 12:15 p.m. on June 30, 1999. The jury, of twelve, deliberated for six hours before being sequestered for the night. In that six-hour period the jury asked to hear the evidence of Dr. Genge, and they asked for further instructions from the trial judge on the issue of negligence. The jury resumed deliberations the next morning. They deliberated all morning and returned their verdict at 2:10 p.m. on July 1, 1999. The verdict, as is required, was unanimous. 123) The juror’s oath of office, together with the careful and detailed instructions given to the juror, are, in part, reasons why there is an initial presumption in this country that juror will be indifferent or impartial and perform his or her duties in accordance with the oath of office. See R. v. Hubbert (1976), 1975 CanLII 53 (ON CA), 29 C.C.C. 279 (Ont. C.A.), also R. v. Williams, 1998 CanLII 782 (SCC), [1998] S.C.R. 1128 per McLachlin, J. at p. 1139. 124) In R. v. Pan (1999), 1999 CanLII 3720 (ON CA), 134 C.C.C. (3d) (appeal heard, and reserved, December 8, 2000, [1999] S.C.C.A. No. 370) five member panel of the Ontario Court of Appeal was considering, inter alia, the constitutionality of the common law exclusionary rule of evidence prohibiting any inquiry into the deliberations of jury. In its assessment of this rule, the reasons for judgment of four of the five member panel referred to other safeguards which are in place to ensure that an accused may be convicted only on the basis of legally admissible relevant and probative evidence properly adduced before the trier of fact. Paragraphs 120 and 121 of the judgment are as follows: The appellants correctly note that one of the basic tenets of our legal system is the principle that an accused may be convicted only on the basis of legally admissible, relevant and probative evidence properly adduced before the trier of fact. This requirement derives from the basic requirement of fairness. The appellants are also correct in noting that the danger of juries making use of impermissible and irrelevant considerations is well recognized in our jurisprudence. Indeed, many of our rules are intended to guard against that eventuality and ensure that jurors properly discharge their oaths. Crown counsel lists some of these safeguards in her factum: the availability of peremptory challenges which permit some screening of prospective jurors; the availability of challenges for cause where there is demonstrated realistic potential for partiality; the juror’s oath or affirmation which is intended to bind the conscience of some who might otherwise be disposed to decide matters based on assumptions and preconceptions; the judicial exclusion of evidence where the risk that it might be misused outweighs its probative force; judicial instructions in the charge to the jury; the sequestration of jurors during the deliberation process; the non-publication of proceedings taking place in the absence of the jury; the requirement of unanimity; and the polling of individual jurors. 125) now return to the critical question that must be addressed with respect to this appeal in accordance with the test for apprehension of bias. What would an informed person viewing the matter realistically and practically and having thought the matter through conclude? Given all of the circumstances which have set out, is it reasonable to conclude that the statement made by Juror No. 12 raises reasonable apprehension of bias such that the appellant would not have received fair trial? 126) While the uninformed may have suspicions, in my opinion, and in the circumstances of this case as have described them, an informed person would not conclude that the statement in question, of Juror No. 12, raises reasonable apprehension of bias such that the appellant would not have received fair trial from the 12-member jury panel. 127) In similar set of circumstances, the British Columbia Court of Appeal reached the same conclusion in the case of R. v. L.H.S. (1999), 1999 BCCA 307 (CanLII), 122 B.C.A.C. 300; [1999] B.C.J. No. 1073. 128) The circumstances which compel me to this conclusion are: 1. The statement by Juror No. 12 was made before she took an oath to decide the case according to the evidence. The 11 other jurors took the same oath; 2. The importance of deciding the case only on the evidence heard in the courtroom was stressed to all of the members of the jury by the trial judge on several occasions during the course of the trial; 3. All members of the jury were given clear and careful instructions with respect to the presumption of innocence and the onus on the Crown to prove the appellant’s guilt beyond reasonable doubt; 4. There is nothing in the transcript of the proceedings of this trial that would indicate that the jury in this case acted in any way other than in accordance with their oath of office and the instructions of the trial judge. For example, there is no suggestion in the record, either from jury questions, requests for help from the Foreman, or otherwise, which might lead an informed person to conclude that Juror No. 12 had ignored her oath or had improper influence upon her fellow jurors. Further, as required, the verdict of the jury was unanimous. 129) In this day and age of mass media reporting, it is unrealistic to think that person who is prospective juror comes to perform the role of juror without any information with respect to the facts of the matter about to be tried. This is especially so in small town like Baddeck, Nova Scotia, where this motor vehicle accident occurred, and where the offences were tried. The prospective juror may also have preliminary view about the case. It is equally unrealistic to think that this prospective juror, upon taking the oath of office and receiving instructions from the trial judge, cannot ignore the information previously received about the case and consider only the evidence presented at trial; likewise, to put aside any previously held views, and perform his or her duties according to the oath of office. 130) It may very well be different matter if the preliminary views of the prospective juror were based on deep-seated racial, or other, prejudice toward the accused, or in cases of “obvious partiality” to which have referred earlier in these reasons. There is no evidence of either in this case. 131) For all of the above reasons, I would dismiss this ground of appeal. 132) 12th Ground of Appeal That the cumulative effect of events herein argued to have occurred both during the police investigation of the May 28, 1999, incident, and the course of the appellant’s trial, justifies this honourable court in granting either new trial or entering judicial stay on all charges against the appellant arising from the May 28th incident. 133) Counsel for the appellant also includes within the broad issues described in ground of appeal number 12 grounds 5, 7, and 10 which are as follows: 134) 5th Ground of Appeal That the trial Judge erred in law by failing to grant mistrial when the Cape Breton Post newspaper article, referring to the refusal charge which had been severed from the four remaining counts in the indictment, was brought to the court’s attention the day following its publication. 135) 7th Ground of Appeal That the learned trial judge erred in law in treating the “can-say” statement of Lynn Dunlop, crucial Crown witness on the issue of the appellant’s alleged impairment, as equivalent to sworn statement and allowing the Crown motion to conduct direct-examination on the witness based on what the learned trial judge deemed to be appropriate disclosure to defence counsel of the “can-say” statement. 136) 9th Ground of Appeal That the learned trial judge erred in law in not responding to defence counsel’s contention, early in the trial, that the four count indictment was duplicitous, particularly given that upon reading the Crown Attorney’s “Theory of the Crown”, prior to giving his jury charge, the learned trial judge was under the impression that the Crown was “scrubbing the criminal negligence charges.” 137) 10th Ground of Appeal That the learned trial judge erred in law in not vigorously ensuring trial fairness first, by prohibiting the juror, Joe Guillena, either before or after he had been selected as the jury foreperson, from carrying his briefcase into the jury room; second, in allowing the Crown Attorney repeatedly to revisit issues that the Crown had not properly explored during direct examination; and third, in not declaring mistrial when it was discovered, on the second day of deliberation, that the jury had access, in the jury room at the Sydney location, to books and materials, including nine copies of three-page document outlining three-pronged test for reaching possible verdict exclusive of the test that if you believe the evidence of the accused you must acquit. 138) Counsel for the appellant made no submission, either in his factum or in his oral presentation on grounds 5, 7, and 10 of his notice of appeal. He indicated, only, that they would be dealt with in conjunction with his 12th ground of appeal. 139) In his factum dealing with the 12th ground of appeal, counsel for the appellant says the following concerning grounds 5, 7, and 10: Grounds No. 5, 7, and 10, in addition to the other arguments made in this legal brief, point to occurrences in the trial itself that cumulatively bring the appellant’s right to fair trial and the integrity of the judicial system into question. 140) have considered these grounds of appeal, and in my view, they do not, either individually or cumulatively, warrant intervention by this court with the jury’s verdict. Further, with respect to the other grounds of appeal which I have dismissed in these reasons for judgment, since they do not, individually, involve errors of law, they cannot, cumulatively, warrant this court’s intervention. 141) In the result I would dismiss this appeal. Flinn, J.A. Concurred in: Chipman, J.A. Cromwell, J.A.
The appellant was convicted of criminal negligence causing death, causing death in the operation of a motor vehicle while impaired by alcohol, criminal negligence causing bodily harm, and causing bodily harm while under the influence of alcohol. The appellant advanced several grounds of appeal, including that her s. 10 Charter rights had been infringed because she had not been informed of the extent of her jeopardy, namely that there had been serious injuries and perhaps a fatality, before having to respond to a breathalyser demand. She claimed that this should have resulted in a stay of all charges. She also alleged that lost evidence resulted in a breach of her s. 7 Charter right to make full answer and defence. Dismissing the appeal, that assuming without deciding that the appellant's s. 10 Charter right was breached, no evidence was obtained as a result of the breach which was heard by the jury. Further, the evidence which was lost was not an issue in the trial. Finally, there were no errors by the judge on any of the other grounds advanced for appeal.