The defendant was found guilty of sexual assault by a jury.
Prior to sentencing, the Court of Appeal released R. v. Chouhan, which held that the elimination of peremptory challenges applied only prospectively.
Because the defendant's right to a jury trial vested before the legislative change, he applied for a mistrial, arguing the jury was improperly constituted and lacked jurisdiction.
The Crown argued the trial judge was functus officio.
The trial judge held that he had the jurisdiction to declare a mistrial post-verdict under the common law powers recognized in R. v. Burke.
However, the judge declined to order a mistrial, noting the availability of bail pending appeal, the ordeal of a retrial for the complainant, and the public interest in avoiding multiple trials, leaving the issue for appellate review.
