Court File and Parties
COURT FILE NO.: CR-18/1358 DATE: 2019-12-04 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Muhammad Asif
BEFORE: Stribopoulos J.
COUNSEL: Mr. G. Hendry, for the Crown Ms. U. Kancharla, for the Accused
HEARD: December 3, 2019
Endorsement
[1] Section 634 of the Criminal Code conferred authority on both the prosecutor and the accused to peremptorily challenge prospective jurors as part of the jury selection process. On September 19, 2019, the repeal of s. 634 became effective: see An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25, ss. 269, 406.
[2] Before the repeal of s. 634, Mr. Asif elected to be tried by a court composed of judge and jury. At his first trial, which predated September 19, 2019, the parties exercised peremptory challenges. However, that trial resulted in a mistrial. Mr. Asif’s second trial, once again with a jury, was scheduled to commence before me yesterday.
[3] On this pre-trial ruling, delivered with the jury panel assembled and waiting for jury selection to begin, I am required to decide whether the repeal of s. 634 operates retrospectively or prospectively. The answer turns on whether the repeal of peremptory challenges is only a matter of jury selection procedure, or if it affects substantive rights: see R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at paras. 10-11. This will control whether or not the parties are entitled to exercise peremptory challenges as part of the jury selection process in this case.
[4] Mr. Asif submits that the amendment eliminates what was formerly his statutory right to participate in the selection of the jury that will decide his fate. He claims that this is not merely a matter of procedure. He argues that his ability to influence the selection of the jury that will try the charges against him affects a substantive right. Therefore, the repeal should only operate prospectively.
[5] In contrast, the Crown, consistent with the position taken by the Ministry of the Attorney General for Ontario throughout the province, submits that the amendment is purely procedural. The Crown argues that the repeal of s. 634 only serves to alter the process by which juries are to be selected. It does nothing to change the essential features of the accused's right to a jury trial. As a result, the repeal should operate both retrospectively and prospectively.
[6] Unfortunately, Parliament did not expressly address whether it meant for the amendment to operate only prospectively or also retrospectively. To date, there has been a great deal of litigation addressing this issue. As a consequence, there are now many conflicting decisions on this question both across the country and within Ontario.
[7] The majority of judges of this court who have addressed the issue have concluded that the change is purely procedural and, therefore, operates retrospectively: see R. v. Lako, 2019 ONSC 5362; R. v. Chouhan, 2019 ONSC 5512; R. v. MacMillan, 2019 ONSC 5616; R. v. Khan, 2019 ONSC 5646; R. v. Khursid, 2019 ONSC 5825; R. v. Kakekagumick, 2019 ONSC 6008; R. v. Muse, 2019 ONSC 6119; R. v. Maggiore, 2019 ONSC 6212.
[8] That said, there is a lack of unanimity amongst the judges of this court who have addressed the issue. A few judges have held that by eliminating the ability of an accused to directly influence the composition of the jury, the amendments affect a substantive right and, therefore, only operate prospectively: see R. v. Craig, 2019 ONSC 6732; R. v. Gong (November 18, 2019), Newmarket, CR-17-3973 (Ont.S.C.); R. v. Bakker (November 25, 2019, Brampton, CR-18-1333 (Ont.S.C.).
[9] Most of the decisions from outside of Ontario conclude that the amendments impinge on a substantive right and only apply prospectively: see R. v. Subramaniam, 2019 BSSC 1601; R. v. Nazarek, 2019 BSSC 1798; R. v. S.B., 2019 ABQB 836; R. v. Levaillan, 2019 ABQB 837; R. v. Kebede, 2019 ABQB 858; R. v. Dorion, 2019 SKQB 266; R. v. Stanley, 2019 SKQB 277; R. v. Ismail, 2019 MBQB 150; R. v. LeBlanc, 2019 NBQB 241; R. c. Lindor, 2019 QCCS 4232; R. c. Bebawl, 2019 QCCS 4393; R. v. Raymond, 2019 NBQB 203; but see R. v. Cumberland, 2019 NSSC 307.
[10] From my review of the cases, it is apparent that there are sound arguments to be made on both sides of this question. These cases illustrate the often-difficult interpretive challenge faced by courts when required to draw the sometimes-tenuous distinction between procedure and substance.
[11] The principle of judicial comity, which assists in promoting consistency, certainty, and predictability in the law, would ordinarily require that I follow the decisions of judges of this court who have already addressed this issue: see R. v. Chan, 2019 ONSC 783, at para. 36. Departure from the decision of a judge of this court would only be justified if I were to conclude that it was "plainly wrong": see R. v. Scarlett, 2013 ONSC 562, at para. 43, per Strathy J. (as he then was).
[12] Given the conflicting decisions by judges of this court, there is no clear line of authority that judicial comity requires me to follow in deciding the question before me. Whatever I decide, the opportunity for judicial comity on the question at issue has passed. Until the Court of Appeal for Ontario has an opportunity to provide authoritative guidance, there will undoubtedly be more conflicting decisions in this province. If divisions emerge as between Canada's appellate courts, the question will likely need to be decided by the Supreme Court of Canada.
[13] Ultimately, I see little utility in engaging in an analysis that has already been exhaustively undertaken by other judges in this and other provinces. As between the decisions of judges who have already addressed this issue in Ontario, I find the reasons of Justice Dawe, in Craig, to be the most persuasive. Accordingly, I share his view that the repeal of s. 634 affects a substantive right.
[14] In essence, it does so by eliminating the ability of the parties to influence the composition of the jury that will ultimately decide the case. The peremptory challenge has long formed a part of our jury system. The rationale for peremptory challenges is that they allow the parties to remove prospective jurors based on unprovable but perceived concerns about a potential juror. Peremptory challenges enhance the confidence of the parties in the impartiality of the jury and their perception regarding the fairness of the trial. In my view, characterizing the elimination of this ability to directly influence the composition of the jury as only “procedural” fails to acknowledge that for the litigants, the ability to exercise peremptory challenges during the jury selection process is a matter of real substance.
[15] Mr. Asif’s statutory right to use peremptory challenges during the jury selection process vested before September 19, 2019. As a result, the parties shall be permitted to exercise peremptory challenges as part of the jury selection process in this case.