Sep 11, 2020

R v Rose, 2020 ONCA 306

R. v. Rose, 2020 ONCA 306 (CanLII)

Key Takeaways:

  • "Alternate" and "additional" jurors are different, and a judge confusing the two can invalidate the trial.
  • Evidence of prior convictions, even when factually relevant to the case, must be treated carefully and given alongside proper jury instructions. A judge's reasons for conviction into evidence is highly prejudicial, as are sentencing submissions, while carrying little evidentiary value.
  • Introduction

    Conroy and Kharla Rose (“the appellants”) were convicted before a judge and jury of several charges in relation to alleged drug trafficking. On appeal, they raised several issues with the original trial.

  • The trial judge did not follow the proper procedure for dismissing an additional juror;
  • The trial judge should not have admitted evidence of Conroy’s prior convictions; and
  • Kharla argued that she did not receive a trial within a reasonable time as required by s. 11(b) of the Charter.
  • Held: Appeals allowed on two of the three grounds, new trial ordered. The s. 11(b) application appeal is dismissed.


    In July 2010 the police executed search warrants at an apartment and a house in London, Ontario. After this, they arrested the appellants and charged with possession of proceeds of crime in the amount of nearly $500,000 in cash plus two cars. They were also charged with one count of money laundering.

    The prosecution brought an application in July 2015 to bring evidence relating to Conroy’s prior charges and convictions. This was allowed, and a significant amount of this prior conviction evidence was allowed in. In August and October 2015, Kharla brought her s. 11(b) application, which was dismissed. The appellants represented themselves at trial, and were convicted by the jury on all counts.

    Issue One: Alternate and Additional Jurors

    The trial began in March 2017. 12 jurors were selected, with two extra sworn in as “alternate number one” and “alternate number two.” These jurors were present when evidence began. One juror was excused early in the trial, and alternate number one took their place. The second alternate juror was later dismissed and did not deliberate. When the jury was present, the trial judge referred to the second alternate juror as “additional juror number 13.”

    “Alternate” and “additional” jurors exist for different purposes and are governed by different procedures of the Criminal Code. Section 631(2.1) provides that a judge may select one or two “alternate” jurors. Section 631(2.2) provides that a judge may have one or two “additional” jurors sworn.

    Alternate jurors exist to replace jurors that may be excused, abscond, or otherwise be unavailable in the time between when the jury is selected and the beginning of the evidence. They are not intended to hear evidence. Instead, they are present at the beginning of evidence to replace any absent juror. Alternate jurors are therefore excused before the evidence begins if there is a full jury present without them at that point.

    Additional jurors exist to replace jurors lost during the course of the evidence, which may be a concern during long trials. Unlike alternate jurors, additional jurors are intended to remain throughout the evidence. If additional jurors remain when deliberations begin, s. 652.1 provides a procedure for reducing the jury to 12 members. If there are more than 12 jurors remaining after the charge to the jury, then the judge selects the one or two additional jurors that will be dismissed at random by drawing cards from a box. The judge discharges any juror whose number is drawn.

    To summarize: alternate jurors remain only to the point that the evidence begins, additional jurors remain until the jury retires to deliberate. They are excused at these points, respectively, if no longer required.

    The issue in this case was that the trial judge used the term “alternate” to describe the extra jurors but treated them as “additional” jurors by letting them remain present throughout the evidence. Juror 13, the last additional juror, was also dismissed instead of being chosen, contrary to the procedure set out in s. 652.1.

    The Court agreed with the appellants that this was an error. The trial judge failed to discharge a juror randomly and contravened the Code. Even though there’s no actual issue with the impartiality of the jury, the failure to follow the procedure tainted the appearance of jury impartiality. This was serious enough to order a new trial.

    Issue Two: The Prior Conviction Evidence

    The Crown applied to show evidence of Conroy’s prior drug trafficking-related charges, of which he was convicted in 2011. At the time of the application, both the appellants and the Crown said they would create an agreed statement of facts to admit the evidence of the prior convictions. This did not happen, and instead at trial the Crown called several officers to testify about the convictions. The jury was also allowed to see the reasons for the convictions, as well as reasons for judgement on a related hearing and an order dismissing Conroy’s appeal of the conviction.

    The appellants argued that although the facts of the convictions were relevant to the present case, admitting the judge's reasons for the decision was highly prejudicial and warrants a new trial.

    Evidence of prior disreputable conduct is normally inadmissible, unless its usefulness to prove something in the current trial (its "probative value") outweighs any prejudicial effect on the minds of the judge or jury.

    The Court stated that the convictions were admitted in a very problematic manner. The trial judge did not balance to probative value and the prejudicial effect of the evidence. The Court then substituted their own findings, stating “Had the judge conducted the balancing exercise, it is difficult to see how she could have admitted the reasons.”

    The Crown wanted to enter the evidence to show the source of the money that was at issue in this case. However, the reasons for conviction of the earlier charges were more prejudicial than probative on this factual issue. Giving the jury the sentencing reasons was also highly prejudicial and had no relevance to the current case. Finally, the judge made an error by giving an inadequate jury instruction, providing no guidance to the jury about how these reasons should be used. The judge also told the jury that the convictions should be treated as “similar fact evidence”, despite the fact that the Crown conceded that it was not, in fact, similar fact evidence. Admitting the reasons without adequate correcting instructions was a fatal error, necessitating a new trial.

    Issue Three: The s. 11(b) Application

    Section 11(b) of the Charter states "any person charged with an offence has the right to be tried within a reasonable time." If an accused succeeds on their s. 11(b) application and proves that the delay in getting to their trial was unreasonably long, a Superior Court may remedy this by ordering a "stay of proceedings" meaning that the trial cannot go forward, and the accused is let go.

    The original application judge noted that there was a delay of five years, two months and 11 days between Kharla’s arrest on August 3, 2010 and her anticipated trial date on October 14, 2015. The judge initially dismissed the appeal, finding that while the overall length of the delay was concerning, the Crown did everything in their power to move the case along. The complexity of the case, multiple adjournments, and changing of counsel also contributed to the delay.

    The Court found that even though the judge misstated a key test when refusing to stay the proceedings, she still correct found that the delay in this case was reasonable.

    The framework for evaluating whether to stop proceedings due to delay changed dramatically after R v Jordan was released in 2016. The current case, tried in 2015, was analyzed under the previous framework, known as the Morin framework. Nonetheless, Jordan applies to cases in the system prior to Jordan’s release.

    Under Jordan, any case tried in the Superior Courts is 30 months from the date of arrest. Any time below this ceiling is presumed to be reasonable delay. Above that, the Crown has to prove to the court that the delay was not unreasonable because of exceptional circumstances. If the Crown cannot do this, then the proceedings will be stayed. For cases in the system prior to Jordan’s release, there is also a transitional exception that may justify a delay that exceeds the presumptive ceiling if it is justifiable using Morin.

    In the Jordan analysis, the delay caused by the conduct of the defence is subtracted from the total delay, leaving the net delay. In this case, there was 12.5 months of defence delay deducted from the total delay of 63 months and one week, leaving a net delay of 50.75 months, which is still higher than the 30-month presumptive ceiling in Jordan.

    The burden then fell to the Crown to prove that the case the time has taken is justified by exceptional circumstances. They relied on the transitional exceptional circumstances, which allowed them to use the old Morin framework. The Court applied the following factors to determine whether the net delay is unreasonable.

  • The length of the delay;
  • Waiver of time periods;
  • The reasons for delay, including:
    • The accused’s actions;
    • The Crown’s actions;
    • Limited on institutional resources; and
    • Other reasons for delay; and
  • Prejudice to the accused.
  • The Court found that altogether, 16 months and twelve days of the total delay can be categorized as “institutional delay”, or time spent by both parties waiting for an appropriate trial date. Morin guidelines state that 18 months of institutional delay is acceptable. There were two months and 13 days of Crown delay, leaving the rest of the delay as neutral. Since Kharla did not suffer any specific prejudice and this was a transitional case, the Court found that the application judge did not make an erorr in dismissing the s. 11(b) application.