SUPERIOR COURT OF THE STATE OF RIDGEWAY
CITATION: State of Ridgeway v. xJvmma,
2022 RSC 821
DATE OF JUDGEMENT:
December 30, 2022
BETWEEN:
State of Ridgeway
Plaintiff
and
xJvmma
Accused
REASONS FOR JUDGEMENT ON MOTION TO DISMISS
OF THE
HONOURABLE JUDGE KOALAMEDVEDEVA
I. Background
[1] The accused moves to dismiss the Indictment substantially for the reasons that
the grand jury’s composition—of entirely law enforcement officers—prejudiced the
accused and violated her right to due process of law, rendering the Indictment returned
by it null.
[2] A previous motion to dismiss on a similar argument was denied for substantially
the reasons that the argument was not yet ripe, and particularly because there were not
satisfactory grounds to believe that the grand jury was in fact comprised of law
enforcement officers. By the government’s own admission, I can now accept that the
grand jury was indeed comprised of five law enforcement officers, and hence, consider
the renewed motion on due process grounds only.
II. The Right to be Charged by a Grand Jury
[3] The Constitution of the State of Ridgeway provides in art. 1, s. 7 that:
“Public officials or those accused of offenses to be explicitly specified shall
enjoy the right to be charged by grand jury indictment”.
[4] The accused, being a law enforcement officer, has such a right. The government
agrees, but submits that the Constitution merely provides the accused with the right to
be charged by a grand jury, not one comprised of licensed attorneys. I would clarify
that the accused is alleging an infringement of right not because the grand jury was not
comprised of attorneys, but rather because the grand jury was comprised of law
enforcement officers.
[5] Law enforcement officers, the accused argues, are analogous to prosecuting
attorneys in their interest, role, and mandate as state actors; by contrast, the grand jury
was meant to serve as a check on government power. This configuration of two groups
of people sharing the same interests is apparently incompatible when one is supposed
to check and review the work of the other.
[6] The right to be charged by a grand jury unquestionably implies the right to be
charged by a fair grand jury. Bias or prejudice inherent in the configuration of the grand
jury would deny one’s right to due process. A system of justice, if it is to have the
respect and confidence of its society, must ensure not only fairness, but the appearance
of fairness to the informed and reasonable observer. It is a well-established principle
that the decision-maker owes a duty of fairness to the parties before them, and that
fulfilling that duty requires the decision-maker to also appear to be unbiased. This is a
fundamental goal of the justice system in any free and democratic society.
III. Reasonable Apprehension of Bias
[7] Impartiality can be described—perhaps somewhat inexactly—as a state of mind
in which the adjudicator is disinterested in the outcome, and is open to persuasion by
the evidence and submissions. In contrast, bias denotes a state of mind that is in some
way predisposed to a particular result, or that is closed with regard to particular issues.
A helpful explanation of this concept was provided by Scalia J. in Liteky v. U.S., 114
S. Ct. 1147 (1994), at p. 1155:
“The words [bias or prejudice] connote a favorable or unfavorable disposition
or opinion that is somehow wrongful or inappropriate, either because it is
undeserved, or because it rests upon knowledge that the subject ought not to
possess (for example, a criminal juror who has been biased or prejudiced by
receipt of inadmissible evidence concerning the defendant’s prior criminal
activities), or because it is excessive in degree (for example, a criminal juror
who is so inflamed by properly admitted evidence of a defendant’s prior
criminal activities that he will vote guilty regardless of the facts).”
[8] Certainly, partiality and bias are not the same thing:
“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.”
But in any event, a reasonable apprehension of bias of the grand jury is
sufficient to declare that the accused’s rights to due process were infringed.
[9] The test of reasonable apprehension of bias, unintended though the bias may
be, is grounded in the concern that there be no lack of public confidence in the
impartiality of the decision-maker. The question then, is to ask what would an informed
person, viewing the matter realistically and practically, conclude.
[10] I am of the view that an informed outside observer could reasonably conclude
that a grand jury comprised solely of law enforcement officers will appear as biased (1)
for being privy to some knowledge he or she could not otherwise possess without being
referred to him or her under judicial scrutiny and (2) by favouring any dispositions
sought by the government attorney by nature of their status, which only appears as
biased to the observer in the case of law enforcement officers because they, by virtue
of their profession, serve the government’s interests in the criminal justice system.
[11] Accordingly, I would conclude that an infringement of the right to due process
occurred and that a finding of actual bias is unnecessary to proceed.
IV. Fair Cross-Section of Community
[12] Another argument raised by the accused to establish basis for dismissing the
Indictment was that the accused’s grand jury is an unfair representation of the
community, reasoning that a fair cross-section of the community would not constitute
purely of law enforcement officers. Perhaps the construction of the accused’s grand
jury appears tacky, but it does not represent the calibre required for the court to provide
immediate remedial measures as was the case in Smith v. Texas, 311 U.S. 128 (1940)
and Peters v. Kiff, 407 U.S. 493 (1972).
V. Proportionality
[13] Having concluded that a right prescribed by law has been infringed, I now turn
to proportionality. The government sought to justify any potential perceived or actual
bias by arguing (1) that whatever the state of the grand jury’s impartiality or lack
thereof, the government was not involved in the selection of its grand jurors and
therefore cannot be liable for any potential errors or misconduct on the part of the Grand
Jury Office and (2) that there was no less rights-impairing means of empanelling a
grand jury.
[14] More often, in criminal matters, actual or perceived bias is alleged by the
accused, as it is in this case. It may have been true that the government was not involved
in the selection of grand jurors, nothing precludes the government from making a
similar allegation. Indeed, it has a duty to make such a submission in appropriate
circumstances, including when a grand jury has been comprised in a manner that may
be potentially perceived as biased. They accordingly also have a duty to first assess the
fairness and perceived fairness of the grand jury. I therefore reject the government’s
first argument.
[15] Although not explicitly referred to, a proportionality test lies at the heart of the
government's second argument. I will model the test provided in R v. Oakes, [1986] 1
SCR 103, but its elements and principles are readily applied and recognized by
American and European courts.
[16] The right to due process, as with all rights, are, in this case as much as any,
subject to reasonable limitations that can be justifiable, proof of which lay on the
government, to a preponderance of probabilities. The two central pillars of any
justification to limitation of rights are (1) the objective and (2) the means.
[17] First, the objective must relate to societal concerns which are pressing and
substantial and sufficiently important as to warrant overriding a constitutionally
protected right or freedom. Trivial objectives and those discordant with the principles
of a free and democratic society do not gain protection.
[18] I would agree with the government that the objective of empanelling a grand
jury to then investigate and return indictment is a pressing and substantial interest of
society. It is also important enough to warrant limiting the rights of individuals and
groups.
[19] Second, the means used to attain the objective must be proportional. The means
must be (1) rationally connected to the objective, (2) impair a right minimally, and (3)
be proportional in view of the totality of the circumstances, especially with regard to
the importance of the objective.
[20] Establishing rational connection is not an onerous task, and I conclude that the
government was reasonable to suppose that empanelling the accused’s grand jury in
the manner it did may further its objective of enforcing the law.
[21] Establishing minimal impairment is not particularly difficult task either. The
law does not demand perfection, but it does require the impairment to be as little as
possible and for it to fall within a range of reasonable options to achieve the objective.
At a minimum, the government must show that it carefully tailored the impugned
means to the objective.
[22] In this case, I am not satisfied that the government made any effort to choose a
less intrusive and less rights-impairing, but equally effective means of empanelling the
accused’s grand jury. The prejudice the accused has been condemned by a
government’s decision, intentional or not, to infringe on an individual’s rights
prescribed by law cannot be justified absent of a showing of satisfactory evidence that
(1) a range of options were explored, (2) the value of the objective was weighed against
the deleterious effect of that infringement, and (3) the final decision taken is in
accordance with the principles of fundamental justice.
[23] The government made no attempt at showing any evidence that their pressing
and substantial objective could not have been attained through less rights-intrusive
means. The government is not justified in their infringement of the accused’s right to
due process of law.
[24] No further analysis is required.
VI. Rules of Criminal Procedure
[25] I must note that the government’s response cites the Rules of Criminal
Procedure, which prohibits the setting aside of an indictment “on the basis that the
grand jury is composed of persons who are not active attorney”. The analysis taken to
address this present motion is not one of the rules, but one of the law of due process.
To this extent, the Rules of Criminal Procedure are overridden when they infringe on
the accused’s rights prescribed by law.
VII. Conclusion
[26] The composition of the grand jury represents an infringement on the accused’s
right to due process of law, and that infringement is not demonstrably justified or in
accordance with the principles of fundamental justice.
[27] The Indictment is dismissed.
Dated at the City of Palmer, in the State of Ridgeway this 30th day of December, 2022.
“koala4Iife”
Judge koala4Iife
Counsel for the plaintiff State of Ridgeway: RyanJSyndicate and JoshLocke,
Ridgeway.
Counsel for the accused xJvmma: CIifford2, Ridgeway.
