Court of Appeal for Ontario

Date: July 21, 2017

Docket: C61867

Judges: LaForme, Watt and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Christopher Husbands Appellant

Counsel

Dirk Derstine and Stephanie DiGiuseppe, for the appellant

Alexander Alvaro, for the respondent

Heard

June 9, 2017

Appeal

On appeal from the conviction entered on December 17, 2014, and the sentence imposed on April 16, 2015, by Justice Eugene Ewaschuk of the Superior Court of Justice, sitting with a jury.

Opinion of the Court

Watt J.A.:

Introduction

[1] One day in early June, about five years ago, Christopher Husbands went to the Food Court at the Eaton Centre. There, he shot seven people. Two died. Five suffered serious injuries, but survived.

[2] At his trial, Christopher Husbands challenged each prospective juror for cause on the ground of racial bias.

[3] Christopher Husbands wanted his challenges for cause tried in a particular way. He asked the trial judge to exercise his inherent jurisdiction to exclude all prospective jurors from the courtroom during the selection procedure, except for the individual prospective juror whose impartiality was being tested, and he wanted the truth of the challenge to be tried by rotating triers.

[4] The trial judge rejected the submission that he had inherent jurisdiction to grant the order sought. Instead, he treated the request as an application under s. 640(2.1) of the Criminal Code and acceded to the defence request under that authority. He ordered that prospective jurors be excluded from the courtroom as each individual challenge was being heard and decided. But, contrary to Husband's wish, the trial judge directed that the same two triers would determine the truth of every challenge for cause. And that is what happened at trial.

[5] The jury found Christopher Husbands guilty of two counts of second degree murder, five counts of aggravated assault and individual counts of criminal negligence causing bodily harm and reckless discharge of a firearm.

[6] Christopher Husbands appeals his convictions. He raises a single ground of appeal. He says that the jury selection procedure followed by the trial judge deprived the court of jurisdiction to try him. The court, he claims, was never properly constituted. A miscarriage of justice occurred. A new trial is required.

[7] The reasons that follow explain why I agree that the manner in which the trial judge directed that the truth of the challenges for cause be tried was fatally flawed. And so it is that I would allow the appeal, set aside the convictions and order a new trial on each offence of which Christopher Husbands was convicted.

The Background Facts

[8] The ground of appeal advanced requires no reference to the circumstances in which the offences occurred. What is necessary, however, is an examination of what occurred once the parties had settled the basis upon which prospective jurors could be challenged for cause.

The Initial Query

[9] The trial judge asked defence counsel (who was also counsel on appeal) whether he wanted the jury panel excluded during the jury selection process. The judge said nothing about exclusion of sworn jurors and did not distinguish between sworn and unsworn jurors.

The Defence Position

[10] Defence counsel made it clear that he was not bringing an application under s. 640(2.1) of the Criminal Code. The trial judge responded immediately. He advised counsel that in the absence of an application under s. 640(2.1), the jury panel would remain in the courtroom during jury selection, and the trial of the truth of each challenge would be decided by rotating triers:

THE COURT: Okay. Okay. If you're not [making an application under s. 640(2.1)] that's the end of the matter and I'll let the jury panel – they'll be in court, we'll do rotating and – but they'll be present in court.

[11] Defence counsel then expressly asked the trial judge, a request he would repeat several times, to exercise his discretion, founded on his inherent jurisdiction to control the jury selection process, to:

i. exclude prospective jurors from the courtroom while the challenge of each individual prospective juror proceeded; and

ii. have the truth of each challenge for cause determined by rotating triers.

[12] On one occasion, defence counsel pointed out that the procedure he sought to have followed was "on consent".

The Position of the Crown

[13] Despite the "on consent" reference by defence counsel during his submissions, the trial judge never asked the trial Crown (not Mr. Alvaro) for any submissions on the issue. The trial Crown said nothing during the entire discussion about how the challenge for cause would be carried out.

The Initial Ruling

[14] The trial judge concluded that the enactment of s. 640(2.1) of the Criminal Code had displaced the common law discretion of trial judges to exclude prospective jurors from the courtroom when the truth of the challenges for cause was tried by rotating triers. The judge said:

THE COURT: The accused, Christopher Husbands has applied to exclude the jury panel during the selection process. Defence counsel reports [sic] to apply to do so pursuant to my common-in-law [sic] inherent discretion. I find that the statutory provision in s. 640(2.1) has displaced that common-in-law [sic] discretion. I therefore rule that the accused has applied under s. 640(2.1) for an order excluding the jurors during the selection process and I so order.

The Renewed Application

[15] Defence counsel persisted. He reiterated his request for rotating triers, explaining that the Criminal Code did not provide any procedure to ensure that static triers were themselves impartial before their selection as triers of the challenge for cause.

The Final Ruling

[16] After defence counsel had concluded his submissions, the trial judge ruled:

THE COURT: All right, thank you. I rule that the selection process will be conducted by two static jurors pursuant to s. 640(2.2) of the Criminal Code.

The Ground of Appeal

[17] Christopher Husbands ("the appellant") advances a single ground of appeal. As I would paraphrase it, he says that the trial judge erred in requiring the truth of the challenge for cause to be decided by static triers in the absence of an application for the exclusion of sworn and unsworn jurors under s. 640(2.1) of the Criminal Code.

Ground #1: Alleged Error in Requiring Static Triers

[18] No further background need be added to what has already been described to settle the environment in which this issue arises for decision in this case.

The Arguments on Appeal

[19] The appellant begins with a reference to s. 640 as the statutory provision that governs the determination of the method used to decide the truth of each challenge for cause. Section 640(2) creates a general or default rule that requires rotating triers as the adjudicative body. But the general rule has an exception, which when properly engaged, permits another method to determine the truth of the challenge for cause.

[20] The single exception to the rotating triers procedure arises from the combined operation of ss. 640(2.1) and (2.2). But this alternative adjudicative forum is not for the asking. And it is not for both parties. What is required is an application by the accused and a determination by the presiding judge that the exclusion of all jurors – sworn and unsworn – is necessary to preserve the impartiality of the jurors. Provided these requirements have been met, the presiding judge has a discretion to order that every challenge for cause be decided by the same two triers, so long as the selection process continues.

[21] The appellant emphasizes that absent an application by the accused, the truth of the challenge for cause cannot be decided by static triers. A trial judge who unilaterally appoints static triers, without an application by the accused, commits jurisdictional error by preventing a properly constituted court from coming into existence.

[22] The appellant says that the amendments to ss. 640(2.1) and (2.2) do not remove a trial judge's inherent jurisdiction to exclude unsworn, but not sworn, jurors from the courtroom, with rotating triers deciding the truth of each challenge for cause. Nor do the amendments confer on a trial judge any inherent authority to designate static triers to determine the truth of each challenge without compliance with the provisions of those amendments.

[23] In this case, the appellant contends, the trial judge made four discrete but related errors. He erred in holding that the amendments removed his well-established authority at common law to exclude unsworn jurors from the courtroom when using rotating triers. He was mistaken in concluding that he could unilaterally order static triers because a request to exclude unsworn jurors triggered the operation of ss. 640(2.1) and (2.2). He wrongly determined that ss. 640(2.1) and (2.2) permitted the use of rotating triers and further erred when he determined that the common law permitted him to choose static triers over rotating triers.

[24] In conclusion, according to the appellant, the trial judge's direction that the challenge for cause be tried by static triers deprived the court of jurisdiction to try him. Such an error exceeds the grasp of the provisos in s. 686(1)(b) of the Criminal Code and requires a new trial.

[25] The respondent characterizes the application of defence counsel as an application to exclude all jurors, sworn and unsworn, during the challenge for cause procedure. Defence counsel never once limited his request for exclusion to unsworn jurors. Nevertheless, the trial judge believed that he had inherent jurisdiction to order rotating triers where he had excluded "all the jurors". But he properly ordered static triers in the circumstances. In the end, the respondent says, any error that may have occurred caused no prejudice to the appellant and did not cause a miscarriage of justice.

[26] The respondent says that the scope of exclusion sought by defence counsel determines whether the adjudicative body will be static or rotating triers. Provided an accused does not seek exclusion of all jurors – sworn and unsworn – rotating jurors may decide the truth of the challenge. That said, where the request seeks exclusion of only unsworn jurors, an accused has no automatic right to rotating triers. The order is discretionary, not mandatory. But where exclusion of all, both sworn and unsworn, is what an accused seeks, such a request is governed by ss. 640(2.1) and (2.2), thus rotating triers are not available.

[27] In this case, according to the respondent, what occurred was an application by the appellant, developed in two stages, to exclude all jurors, sworn and unsworn, but to have the truth of the challenge tried by rotating triers. Defence counsel never properly emphasized or confined his request for exclusion to the exclusion of unsworn jurors or, put another way, never said he did not want sworn jurors excluded. In the end, the respondent says, counsel agreed to have the application treated as an application under s. 640(2.1). In the result, this meant all jurors would be excluded and the truth of the challenge for cause would be decided by static triers.

[28] The respondent advances two alternative arguments. The first is that despite his direction that static triers would determine the truth of each individual challenge, thus that all jurors – sworn and unsworn – would be excluded during the challenges for cause, the trial judge left open the use of rotating triers. But defence counsel failed to advance any argument that would engage the discretion. And the second is that any error or irregularity that occurred can be saved harmless by s. 686(1)(b)(iv) in the absence of any prejudice or a miscarriage of justice.

The Governing Principles

[29] The principles that inform our decision in this case have their origins in both the common law and the Criminal Code. First, the common law principles that describe the inherent authority of a judge presiding in a criminal trial to manage the trial process, including the selection of jurors. Next, the statutory provisions – in particular s. 640 of the Criminal Code – that prescribe the manner in which the truth of challenges for cause is to be determined. Then, the jurisprudence, largely the decisions of this court, interpreting those statutory provisions. And finally, the authority of appellate courts to uphold verdicts rendered at trial despite errors and irregularities in the conduct of the trial.

The Common Law Authority

[30] At common law, a trial judge has the authority to supervise and control the trial process. Sometimes, this authority is characterized as a "discretion", on other occasions, an "inherent jurisdiction". The label is of no great moment. The limits of the authority are not precisely defined, but the authority to manage the conduct of a trial is beyond controversy: R. v. Felderhof, 180 C.C.C. (3d) 498 (Ont. C.A.), at paras. 36-38, 40.

[31] A specific incident of this common law discretion or inherent jurisdiction is the authority to control the jury selection process to make effective use of court resources and to ensure fairness to all participants: R. v. Moore-McFarlane, 160 C.C.C. (3d) 493 (Ont. C.A.), at para. 85; R. v. Noureddine, 2015 ONCA 770, 332 C.C.C. (3d) 114, at para. 38; R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 11; R. v. Murray, 2017 ONCA 393, at para. 47. This authority to control the jury selection process includes the discretion to exclude prospective (unsworn) jurors from the courtroom during the challenge for cause process to ensure the impartiality of the jurors selected to try the case: Grant, at para. 11; Murray, at para. 53; R. v. Swite, 2011 BCCA 54, 268 C.C.C. (3d) 184, at para. 28.

[32] Section 8(2) of the Criminal Code ensures that this discretion remains intact, despite the enactment of the Criminal Code, at least to the extent that it is not altered, varied, modified or affected by the Criminal Code or other federal enactment. But this discretion or inherent jurisdiction cannot be invoked as authority for any order that contravenes a specific Criminal Code requirement: Noureddine, at para. 38; Murray, at para. 47; Swite, at para. 28; R. v. V. (W.), 2007 ONCA 546, at para. 22.

Challenges for Cause under the Criminal Code

[33] Since the enactment of our first Criminal Code in 1892, rotating triers have determined the truth of challenges for cause advanced on the basis that prospective jurors are not indifferent between the parties: Criminal Code, 1892, 55-56 Vic., c. 29, s. 668; Noureddine, at para. 35. Rotating triers remained the exclusive method of trying challenges for cause based on lack of indifference until the current s. 640 was amended by the addition of subsections (2.1) and (2.2), which came into force on May 29, 2008.

[34] Sections 640(2.1) and (2.2) added another method of trying the truth of challenges for cause based on lack of indifference. But this new method has some strings attached. It is only available at the instance of an accused. It cannot be invoked by the Crown. It requires:

i. an application by the accused for an order excluding from the courtroom all jurors, both sworn and unsworn, until the truth of the challenge for cause is determined; and

ii. a finding by the presiding judge that the exclusion is necessary to preserve juror impartiality.

Further, even upon satisfaction of these conditions precedent, an order of exclusion does not issue as of right. The controlling language is the permissive "may", not the compulsory "shall": Noureddine, at para. 35; Grant, at para. 12; Murray, at paras. 43, 45-46.

The Operation of Sections 640(2.1) and (2.2)

[35] The enactment of ss. 640(2.1) and (2.2) did not oust or circumscribe the common law discretion of a trial judge to exclude unsworn jurors from the trial of the truth of the challenge for cause in respect of individual prospective jurors by rotating triers. Put somewhat differently, the amendment explicitly provided trial judges with an additional discretionary authority to control the challenge for cause process and ensure a fair trial. What the amendments did not do, neither expressly nor by necessary implication, was to remove a trial judge's pre-existing discretion to exclude unsworn jurors during the trial of the truth of challenges for cause by rotating triers: Grant, at paras. 18, 37, 41; Murray, at para. 53.

[36] The enactment of ss. 640(2.1) and (2.2) did not alter the character of the pre-existing authority to exclude unsworn jurors during the trial of the truth of individual challenges for cause by rotating triers. An order for exclusion based on the exercise of the trial judge's inherent jurisdiction does not issue as of right. Whether exclusion will be ordered involves the exercise of discretion by the presiding judge, a decision that will depend on the circumstances of each case: Grant, at para. 41; Murray, at para. 53.

[37] The amendments in ss. 640(2.1) and (2.2) do not authorize a trial judge simply to choose one method of trial of the truth of the challenges for cause rather than the other. Static triers may only be ordered upon the satisfaction of the requirements of s. 640(2.1) and (2.2). No application. No static triers. An unsuccessful application. No static triers. There is no inherent jurisdiction to choose or direct static triers. Default requires rotating triers: Swite, at paras. 28-30; Noureddine, at para. 38; V. (W.), at para. 22.

[38] An application by the accused is a necessary pre-condition to the operation of ss. 640(2.1) and (2.2). In assessing whether such an application has been brought, substance trumps form. The fact that the defence has not made a formal application under s. 640(2.1) is not determinative: Grant, at para. 51. A decision by the defence to choose static triers, in the face of a proposed dichotomy between static triers with the panel excluded and rotating triers with the panel included, has been held to amount to the functional equivalent of an application to exclude sworn and unsworn jurors under s. 640(2.1): Grant, at paras. 50-51; Murray, at paras. 57-66.

[39] Similarly, a desire to exclude prospective jurors during the challenge for cause process and satisfaction with properly-vetted static jurors has been found to satisfy the requirement that the accused bring an application: R. v. Mansingh, 2017 ONCA 68, at para. 12; R. v. Kossyrine, 2017 ONCA 388, at paras. 19-21, 28.

The Effect of Errors in the Selection of Triers

[40] Section 686(1)(b)(iv) of the Criminal Code permits appellate courts to dismiss appeals where procedural errors that lead to a loss of jurisdiction over the accused have occurred at trial, provided the Crown can demonstrate that the trial court had jurisdiction over the class of offence of which an appellant was convicted and that the error did not prejudice the appellant. Prejudice takes into account not only the impact of the error or irregularity on the verdict rendered at trial, but also its impact on the actual and apparent fairness of the trial process: Noureddine, at paras. 47-48, 62-64.

[41] It has been held that where a jury has been selected by a challenge for cause procedure disavowed by an accused, thus depriving him or her of the option to invoke the method of selecting the composition of triers, s. 686(1)(b)(iv) cannot preserve the verdict rendered at trial: Noureddine, at paras. 57, 68; Swite, at para. 54; V. (W.), at para. 26. This is so because the court – in particular the jury – has not been properly constituted. And this is so because the process used to determine the truth of the challenge for cause directly contravenes the provisions of the Criminal Code.

The Principles Applied

[42] For several reasons, I would give effect to this ground of appeal, set aside the convictions entered at trial and order a new trial on each count of which the appellant was convicted.

[43] First, as we have already seen, the general or default rule about the trial of the truth of the challenges for cause based on lack of indifference on the part of prospective jurors is that the issue is determined by rotating triers. This method of trial of the challenge includes a judicial discretion to exclude prospective (unsworn) jurors from the courtroom while individual challenges are being decided by the rotating triers, provided sufficient reason is advanced to do so. This authority remains despite the enactment of ss. 640(2.1) and (2.2). The trial judge was wrong to hold otherwise.

[44] Second, trial of the truth of the challenge for cause by static triers, the method directed by the trial judge in this case, is only available where the accused applies to exclude all jurors, both sworn and unsworn, from the courtroom while individual challenges for cause proceed, and where the presiding judge is satisfied that such an exclusionary order is necessary to preserve the impartiality of the jurors.

[45] In this case, defence counsel repeatedly told the trial judge that he was not applying under or invoking s. 640(2.1) of the Criminal Code. It follows ineluctably from the absence of any application, that the provisions of ss. 640(2.1) and (2.2), which alone permit the use of static triers, never became engaged. It necessarily follows from the absence of an application under s. 640(2.1) that no order could be made under that subsection. The absence of an order under s. 640(2.1) engages s. 640(2) which required the trial of the challenge for cause to be determined by rotating jurors.

[46] Third, this is not a case in which it can be said, as the Crown argues, that what happened here was the functional equivalent of an application under s. 640(2.1), thus legitimizing the directed use of static triers.

[47] The language used by defence counsel simply does not bear the interpretation advanced by the Crown. In addition to the express denial of an application under s. 640(2.1), defence counsel sought exclusion of the "panel", a term that refers to prospective or unsworn jurors. Sworn jurors cannot fairly be characterized as members of the "panel". They cease panel membership when selected and sworn or affirmed as jurors to try the case. Further, defence counsel made it abundantly clear that he grounded his claim for the exclusion of the jury panel during the trial of the truth of the individual challenges on the inherent jurisdiction of the trial judge to make such an order.

[48] Fourth, the direction that static triers determine the truth of the challenges for cause contravenes the specific provisions of ss. 640(2.1) and (2.2) of the Criminal Code. Absent satisfaction of the conditions precedent in s. 640(2.1), the trial judge had no authority to order static triers under s. 640(2.2).

[49] Finally, in accordance with the current state of the law concerning the reach of the procedural proviso in s. 686(1)(b)(iv), what occurred here cannot be salvaged.

[50] The trial judge's order denied the appellant the benefits of having the truth of the challenges for cause determined by rotating triers. What is more, this denial occurred in the face of unequivocal statutory language that required, among other things, an application by the accused before static triers could be ordered. This was an application that defence counsel repeatedly said was not being advanced. Expressly and repeatedly, counsel wanted rotating triers. Yet the trial judge forged ahead, despite the entreaties of defence counsel, without any inquiries of the trial Crown about her position and seemingly oblivious to the confining language of the enabling legislation.

Conclusion

[51] For these reasons, I would allow the appeal, set aside the convictions and order a new trial on each offence of which the appellant was convicted. Since there was no appeal of the acquittals of first degree murder, the new trial should be held on a redrafted indictment charging two counts of second degree murder with the remaining counts unchanged.

Released: July 21, 2017

"David Watt J.A."

"I agree. H.S. LaForme J.A."

"I agree. G.T. Trotter J.A."

Footnote

[1] The hearing of the appeal was bifurcated as a result of directions given by the appeal management judge. The panel decided to follow the procedure proposed by the appeal management judge in light of the potential impact of the error alleged on the verdicts rendered at trial.