Accused entitled to be present in all parts of jury selection

An accused is entitled to be present throughout trial. Jury selection is a critical part of trial. For rather specific reasons part of jury selection in R. v. Kakegamic, 2010 ONCA 903
was held out of the presence of the accused. That was an error. The Court held:

[28]          In my view, if a procedure is "part of the normal trial process for determining guilt of innocence" it is unnecessary to engage in an ad hoc inquiry as to the significance of that procedure to the rights of the accused in any given case.  Routine jury selection procedures specifically contemplated by the Criminal Code are part of the trial for the purposes of s. 650. 

[29]          I also have difficulty with the distinction suggested in Barrow between inquiries into a juror's potential partiality and inquiries into "personal reasons" for being excused from the jury.  While many of the prospective jurors' problems will be personal in nature, some will raise questions of partiality and some will involve both personal matters and questions of partiality.  For example, a prospective juror may identify a relationship with someone connected with the case or with law enforcement more generally and be uncertain as to whether that relationship should excuse him from the jury.  In raising the question, the juror is raising the possibility of partiality, but may also be raising a personal matter depending on the nature of the relationship.  It is difficult and dangerous to try and draw a bright line between the different types of questions that could arise during an inquiry under either s. 632 or s. 644(1.1.)

[30]          I am also satisfied that on the "vital interests" test relied on by the Crown the s. 632 and s. 644(1.1) inquiries are matters of "vital interests" to the accused.  Section 632 can have a significant impact on the constitution of the group of jurors from which the 12 jurors who will try the case will be chosen.  Section 644(1.1) has a direct impact on the constitution of the jury that tries the case. 

[31]          For the reasons set out above, the "private conversations" between the trial judge and the jurors were part of the appellant's trial.  Absent waiver, he was entitled to hear the conversations between the trial judge and the prospective jurors.  The Crown does not suggest that the appellant waived his right to be present.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

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