30 mai 2010


Was this illegal?

The fact that Wilbert Coffin was tried before a jury not composed solely of people speaking his language gave rise to several comments. Two justices of the Supreme Court of Canada would have ordered a new trial on the grounds that the empanelling of a mixed jury was illegal. In my book, L’affaire Coffin: une supercherie?, I examine this question in the light of the Jurors’ Act. I report justice Lacroix’ five page decision on this matter. I do not believe that justices Locke’s and Cartwright’s dissidence was justified.
You will notice that justice Brossard expresses his preference for a jury entirely composed of people speaking the language of the accused. But such a jury would not do away with the need for an interpreter when witnesses depose in a language other than the one spoken by the accused and the translation of documents filed in the court written in a language other than the language known by the accused.
After having read the transcripts and the documents of the court, I think that the mixed jury that judged Coffin accomplished its task in the best interest of justice. Moreover, justice Lacroix had designated the attorney-at-law Me J.P. Léopold Flynn as interpreter to assist Coffin during his trial. Called to the Bar, in 1933, this lawyer had a good command of English and French.

Excerpt from the Brossard Report, Vol. 3, Part IX, Chapter 1

In criminal matter, the provisions of a statute of Canada, dating from 1864 that govern the right of an accused to be tried by a jury made up “of at least half » of people speaking his language, that is to say : a jury formed entirely of people speaking his language, or a jury composed with at least half of people speaking his language and, for the rest, people speaking the other official language of the country.
The composition of the jury that judged Coffin has been the subject of studies and decisions of our provincial Court of Appeal and the Supreme Court of Canada. It was for half composed of people chosen from the lists of jurors of French language and for the other half of people chosen from the lists of jurors of English language prepared by the sheriff of the district of Gaspé. We know that Wilbert Coffin did not obtain a jury composed entirely of people speaking English and could only obtain a mixed jury, it was because of the difficulty, if not the impossibility of finding, in accordance with the provisions of the Jurors Act, within a 40 mile radius from the town of Percé where the court was sitting, people of English language having the required qualifications to act as jurors in sufficient number to permit the constitution of a jury composed exclusively of English language.
It appears that if the boundaries within which people should live so that their names would appear on the list of jurors had been more extensive, a panel of exclusively English speaking people could have been established.
Difficulties similar to those presented in Percé on the constitution of a jury are likely to arise in similar circumstances in some other districts of the province.
I suggest that in all cases and at all points of view that a unilingual French-language or English language jury is preferable to a mixed jury and that the choice of the language of this jury should be left entirely to the discretion of the accused, since in our province at least the two languages are official. If the federal authorities were to adopt, at your suggestion, an act in this respect, we would free the judge, who presides over a trial before a jury, of the painful obligation to be called upon, in certain cases, due to purely administrative difficulties, to decide that the means of justice will be better served if a mixed jury is formed rather than a unilingual one requested by the accused.
Our case law is to the effect that the words "jurors who speak the language of the accused" do not apply to the nationality of the jurors, but to their knowledge of "the language of the accused"; Our case law does not define the character of this knowledge of the language that must have the juror, it does not say whether the language spoken by the juror should be that the accused uses mainly; I suggest that while amending the text of certain sections of the Jurors’ Act, one clarifies this point, in order to avoid the repetition of what, according to the evidence shown us, happened in Percé, when two persons, with English names, understanding without doubt the English language but having a better command of the French language, were selected, without objection from whoever, as jurors of English language.
This question about the selection of jurors is tied up in a certain manner to the necessity of providing in each courthouse, wherever they are and whatever their antiquated state, one or more rooms noise proof and wherein the jurors will be able to retire in order to safeguard the strict principle to the effect that during a trial, jurors should not be exposed to be influenced in learning facts that must not be brought to their attention.
The preceding suggestions only derive from the observations that our Commission has collected during this enquiry. It is in the hope that they may help improve the conditions wherein justice is managed that I took the liberty to submit them to you.

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