Her Majesty the Queen v. Noureddine Her Majesty the Queen v. Sheridan

[Indexed as: R. v. Noureddine]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Laskin and Lauwers JJ.A.

November 12, 2015

128 O.R. (3d) 23 | 2015 ONCA 770

Case Summary

Criminal law — Appeals — Orders on appeal — Accused acquitted of first degree murder and convicted of second degree murder — Accused successfully appealing convictions on ground that error in jury selection rendered court improperly constituted to try them — Appellate court raising issue of impact of error on verdict of acquittal on first degree murder — Crown arguing that new trial should be directed on first degree murder charge on basis that if court improperly constituted neither conviction nor acquittal could stand notwithstanding absence of Crown appeal against acquittal — Improper use of static triers for challenge for cause rendering second degree murder convictions voidable at instance of accused but having no impact on acquittals on first degree murder charge — New trial ordered for second degree murder.

Criminal law — Trial — Defences — Duress — Trial judge refusing to leave duress with jury — Accused not testifying — Absence of evidence to provide air of reality to requirement for duress that reasonable person in accused's circumstances having no safe avenue of escape — Trial [page24 ]judge not erring in refusing to leave defence where no basis upon which jury could have doubt about safe avenue of escape.

Criminal law — Trial — Jury trial — Challenge for cause — Defence counsel seeking exclusion of prospective (non-sworn) jurors from courtroom during challenge for cause process but not requesting order under s. 640(2.1) of Criminal Code for exclusion of all jurors and making it clear that accused wanted rotating triers to decide challenge for cause — Trial judge erring by unilaterally deciding to use static triers and to exclude all jurors during challenge for cause — Trial judge not having inherent jurisdiction to order static triers in absence of application by accused under s. 640(2.1) — Sections 670 and 671 of Code not applying as accused were deprived of their statutory right to rotating triers — Curative proviso in s. 686(1)(b)(iv) of Code not applying when static triers used over objections of accused — Error in jury selection rendering court improperly constituted to try accused — Misuse of static triers prejudicing accused — New trial ordered — Criminal Code, R.S.C. 1985, c. C-46, ss. 640(2.1), 670, 671, 686(1)(b) (iv).

Criminal law — Trial — Jury trial — Questions from jury — During closing Crown relying on chart setting out alleged consistencies in evidence of accomplices — During his closing argument counsel for N referring to same chart to argue were inconsistencies in among accomplices — Jury asking to hear counsel's comments on evidence chart again — Counsel for S objecting — Trial judge erring in finding that S's objection foreclosed answering jury's question — N prejudiced as attacking evidence of accomplices being central to his defence and as judge did not say which counsel objected they may have inferred N's counsel was responsible for them not receiving answer.

N and S were charged with first degree murder. At trial, they advanced a race-based challenge for cause. Counsel for S sought the exclusion of prospective (non-sworn) jurors from the courtroom during the challenge for cause process, but did not make an application under s. 640(2.1) of the Criminal Code for an order excluding all jurors and made it clear that S wanted rotating triers to be used to decide the challenge for cause. Counsel for N also indicated that his client wanted rotating triers. The trial judge unilaterally decided that static triers would be used and that he would exclude all jurors, sworn or unsworn, during the challenge for cause process.

The Crown relied on a chart during closing argument to support the argument that the accomplices were consistent in their evidence. In his closing argument, counsel for N referred to the same chart in an attempt to demonstrate the many material inconsistencies in the evidence of three witnesses. During their deliberations, the jury asked to hear again the Crown's review of the evidence chart and counsel for N's comments on the evidence chart. S objected to providing the jury with the evidence chart or any portion of the Crown's or counsel for N's closing address. The trial judge held that S's position effectively foreclosed answering the jury's question and instructed the jury that as an unspecified counsel had objected to providing the requested material, he could not assist them.

S and N were acquitted of first degree murder and convicted of second degree murder. They appealed.

Held, the appeal should be allowed. [page25 ]

Prior to 2008, rotating triers were used to rule on challenges for cause. The Code was amended in 2008 to permit the accused to apply for an order under s. 640(2.1) to exclude all potential and sworn jurors from the courtroom during challenges for cause, which must be allowed if a trial judge concluded it is necessary to do so "to preserve the impartiality of the jury", thus leaving static triers to deal with challenges for cause. The trial judge erred in using static triers in the absence of an application by the accused under s. 640(2.1) for the exclusion of all jurors. His decision to use static triers, despite the requirement in s. 640(22) of the Code that rotating triers be used, could not be justified as an exercise of his inherent jurisdiction. Sections 670 and 671 of the Code, which speak of omissions and irregularities in the jury selection process that will not affect the validity of any subsequent verdict, had no application as the trial judge's ruling deprived the accused of their statutory right in s. 640(2) of the Code to rotating jurors. The curative proviso in s. 686(1)(b)(iv) of the Code had no application in a circumstance in which the accused did not consent to the use of static triers, even in the absence of an application pursuant to s. 640(2.1). While s. 686(1)(b)(iv) can be applied to serious procedural errors that result in a loss of jurisdiction, the use of static triers in these circumstances rendered the court improperly constituted to try the accused. The verdicts had to be quashed for that reason alone. The misuse of static triers, over the objections of counsel, also resulted in prejudice to the accused because of the impact on the appearance of the fairness of the proceedings and the due administration of justice.

The trial judge erred in finding that S's objection foreclosed answering the jury's question. There is no legal principle that, unless all counsel agree, the jury cannot be provided with assistance in recalling the arguments advanced by counsel. The jury was entitled to the assistance that they sought despite S's objection. N was prejudiced by the judge's reply both because attacking alleged inconsistencies in the accomplices' evidence was an important part of N's defence and because the judge did not tell the jury which counsel objected to their request, which left open the possibility that the juror could have incorrectly inferred that counsel for N was responsible for the denial of the assistance that they sought.

An order for a new trial on the first degree murder charges was not available. The Crown did not appeal the acquittal on the first degree murder charges. The improper use of static triers rendered the conviction on the charges of second degree murder voidable at the instance of the accused but had no impact on the acquittals returned on the main charge of first degree murder. A new trial should be ordered on the second degree murder charge.

R. v. B. (A.) (1997), 1997 CanLII 1902 (ON CA), 33 O.R. (3d) 321, [1997] O.J. No. 1578, 100 O.A.C. 81, 115 C.C.C. (3d) 421, 7 C.R. (5th) 238, 34 W.C.B. (2d) 369 (C.A.); R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3, 87 D.L.R. (4th) 449, 133 N.R. 1, J.E. 92-189, 51 O.A.C. 161, 69 C.C.C. (3d) 481, 10 C.R. (4th) 257, 7 C.R.R. (2d) 193, 15 W.C.B. (2d) 81, revg 1989 CanLII 262 (ON CA), [1989] O.J. No. 111, 31 O.A.C. 357, 47 C.C.C. (3d) 250, 68 C.R. (3d) 50, 45 C.R.R. 193, 7 W.C.B. (2d) 90 (C.A.); R. v. Brown, 2005 CanLII 3939 (ON CA), [2005] O.J. No. 609, 194 O.A.C. 372, 194 C.C.C. (3d) 76, 28 C.R. (6th) 315, 64 W.C.B. (2d) 42 (C.A.); R. v. Cece (2004), 2004 CanLII 31690 (ON CA), 72 O.R. (3d) 321, [2004] O.J. No. 3938, 190 O.A.C. 220, 189 C.C.C. (3d) 294, 63 W.C.B. (2d) 176 (C.A.); R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, [1979] S.C.J. No. 67, 99 D.L.R. (3d) 577, 28 N.R. 1, 48 C.C.C. (2d) 1, 12 C.R. (3d) 10, 3 W.C.B. 377; R. v. Katoch, [2009] O.J. No. 3456, 2009 ONCA 621, 246 C.C.C. (3d) 423, 253 O.A.C. 87, 70 C.R. (6th) 177; R. v. Rowbotham, 1988 CanLII 147 (ON CA), [1988] O.J. No. 271, 25 O.A.C. 321, 41 C.C.C. (3d) 1, 63 C.R. (3d) 113, 35 C.R.R. 207, 4 W.C.B. (2d) 30 (C.A.); R. v. Swite, [2011] B.C.J. No. 175, 2011 BCCA 54, 84 C.R. (6th) 358, 299 B.C.A.C. 168, 268 C.C.C. (3d) 184, 93 W.C.B. (2d) 838; R. v. V. (W.), [2007] O.J. No. 3247, 2007 ONCA 546, consd [page26 ]

Other cases referred to

Crane v. Director of Public Prosecutions, [1921] All E.R. Rep. 19, [1921] 2 A.C. 299, 90 L.J.K.B. 1160, 125 L.T. 642, 85 J.P. 245, 37 T.L.R. 788, 65 Sol. Jo. 642, 27 Cox C.C. 43, 15 Cr. App. Rep. 183 (H.L.); R. v. Aravena, [2015] O.J. No. 1910, 2015 ONCA 250, 333 O.A.C. 264, 333 C.R.R. (2d) 126, 20 C.R. (7th) 131, 323 C.C.C. (3d) 54, 121 W.C.B. (2d) 360; R. v. Ashini, 1989 CanLII 7156 (NL CA), [1989] N.J. No. 227, 79 Nfld. & P.E.I.R. 318, 51 C.C.C. (3d) 329, 8 W.C.B. (2d) 552 (C.A.); R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. 84, 45 D.L.R. (4th) 487, 81 N.R. 321, J.E. 88-71, 87 N.S.R. (2d) 271, 38 C.C.C. (3d) 193, 61 C.R. (3d) 305, 3 W.C.B. (2d) 205; R. v. Bird, 1952 CanLII 388 (ON CA), [1953] C.C.S. NO. 535, [1953] O.W.N. 26, 104 C.C.C. 286, 15 C.R. 303 (C.A.); R. v. Cloutier, 1988 CanLII 199 (ON CA), [1988] O.J. No. 570, 27 O.A.C. 246, 43 C.C.C. (3d) 35, 4 W.C.B. (2d) 300 (C.A.) [Leave to appeal to S.C.C. refused [1989] S.C.C.A. No. 194, 104 N.R. 160n, 37 O.A.C. 320n, 50 C.C.C. (3d) vi]; R. v. Dwyer, 1979 CanLII 53 (SCC), [1980] 1 S.C.R. 481, [1979] S.C.J. No. 117, 97 D.L.R. (3d) 385, 27 N.R. 488, 47 C.C.C. (2d) 1, 10 C.R. (3d) 20 at 49, 14 C.R. (3d) 136, 3 W.C.B. 379, revg 1978 CanLII 2513 (ON CA), [1978] O.J. No. 3787, 42 C.C.C. (2d) 83, 10 C.R. (3d) 20 at 26 (C.A.); R. v. Guillemette, 1986 CanLII 59 (SCC), [1986] 1 S.C.R. 356, [1986] S.C.J. No. 24, 27 D.L.R. (4th) 682, 66 N.R. 19, J.E. 86-453, 26 C.C.C. (3d) 1, 51 C.R. (3d) 273, 16 W.C.B. 373; R. v. Jaser, [2014] O.J. No. 6431, 2014 ONSC 7528, 120 W.C.B. (2d) 360 (S.C.J.); R. v. Kakegamic, [2010] O.J. No. 5671, 2010 ONCA 903, 272 O.A.C. 205, 265 C.C.C. (3d) 420, 92 W.C.B. (2d) 579; R. v. Khan, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 2001 SCC 86, 207 D.L.R. (4th) 289, 279 N.R. 79, [2002] 3 W.W.R. 1, J.E. 2002-24, 160 Man. R. (2d) 161, 160 C.C.C. (3d) 1, 47 C.R. (5th) 348, 51 W.C.B. (2d) 446; R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 56 O.R. (3d) 737, [2001] O.J. No. 4646, 152 O.A.C. 120, 160 C.C.C. (3d) 493, 47 C.R. (5th) 203, 52 W.C.B. (2d) 37 (C.A.); R. v. Paquette, 1976 CanLII 24 (SCC), [1977] 2 S.C.R. 189, [1976] S.C.J. No. 62, 70 D.L.R. (3d) 129, 11 N.R. 451, 30 C.C.C. (2d) 417, 39 C.R.N.S. 257; R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324, [1993] O.J. No. 2157, 65 O.A.C. 122, 84 C.C.C. (3d) 353, 24 C.R. (4th) 81, 21 W.C.B. (2d) 121 (C.A.) [Leave to appeal to S.C.C. refused (1993), 17 O.R. (3d) xvii, [1994] 1 S.C.R. x, 1994 CanLII 19081 (SCC), [1993] S.C.C.A. No. 481, 72 O.A.C. 159n, 87 C.C.C. (3d) vi, 1994 CanLII 19087 (SCC), 28 C.R. (4th) 403n]; R. v. Pottinger, 1990 CanLII 10935 (ON CA), [1990] O.J. No. 289, 37 O.A.C. 262, 370 O.A.C. 262, 54 C.C.C. (3d) 246, 76 C.R. (3d) 393, 9 W.C.B. (2d) 708 (C.A.) [Leave to appeal to S.C.C. refused [1990] S.C.C.A. No. 201, 119 N.R. 352n, 41 O.A.C. 267n, 58 C.C.C. (3d) vii, 79 C.R. (3d) xxiv]; R. v. Riley, 2009 CanLII 22571 (ON SC), [2009] O.J. No. 1851, 247 C.C.C. (3d) 517 (S.C.J.); R. v. Roy, [2010] B.C.J. No. 1999, 2010 BCCA 448, 220 C.R.R. (2d) 272, 295 B.C.A.C. 191, 261 C.C.C. (3d) 62, 80 C.R. (6th) 119, 90 W.C.B. (2d) 667; R. v. Ryan, [2013] 1 S.C.R. 14, [2013] S.C.J. No. 3, 2013 SCC 3, 275 C.R.R. (2d) 241, 324 N.S.R. (2d) 205, 290 C.C.C. (3d) 477, 438 N.R. 80, 2013EXP-223, J.E. 2013-115, EYB 2013-216560, 353 D.L.R. (4th) 387, 98 C.R. (6th) 223; R. v. Sandham, 2009 CanLII 22574 (ON SC), [2009] O.J. No. 1853, 248 C.C.C. (3d) 46 (S.C.J.); R. v. Sheridan, [2010] O.J. No. 4884, 224 C.R.R. (2d) 308 (S.C.J.); R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, 269 O.A.C. 359, 263 C.C.C. (3d) 59, 93 W.C.B. (2d) 641; R. v. Sinclair (2013), 114 O.R. (3d) 284, [2013] O.J. No. 418, 2013 ONCA 64, 302 O.A.C. 185, 100 C.R. (6th) 108, 300 C.C.C. (3d) 69, 105 W.C.B. (2d) 508; R. v. Sullivan, 1991 CanLII 85 (SCC), [1991] 1 S.C.R. 489, [1991] S.C.J. No. 20, 122 N.R. 166, J.E. 91-516, 55 B.C.L.R. (2d) 1, 63 C.C.C. (3d) 97, 3 C.R. (4th) 277, 12 W.C.B. (2d) 495; R. v. Varcoe, [2007] O.J. No. 1009, 2007 ONCA 194, 222 O.A.C. 197, 219 C.C.C. (3d) 397, 46 C.R. (6th) 299, 73 W.C.B. (2d) 305; R. v. Varga, 1985 CanLII 3567 (ON CA), [1985] O.J. No. 52, 7 O.A.C. 350, 18 C.C.C. (3d) 281, 44 C.R. (3d) 377, 13 C.R.R. 351, 15 C.R.R. 122, 14 W.C.B. 9 (C.A.); R. v. White, 2009 CanLII 42049 (ON SC), [2009] O.J. No. 3348 (S.C.J.)

Statutes referred to

Civil Code of Quebec, C.Q.L.R. c. C-1991, arts. 1416-1422 [page27 ]

Criminal Code, 1892, 55-56 Vic. ch. 29, s. 668(8)

Criminal Code, R.S.C. 1985, c. C-46, ss. 17 [as am.], 638(1)(b), 640, (2) [as am.], (2.1), (2.2) [as am.], (3) [as am.], 643(3), 670, (a), 671, Part XXI [as am.], ss. 676(2) [as am.], 686(1)(b)(iii), (iv), (6), (8)

Authorities referred to

Friedland, Martin L., Double Jeopardy (Oxford: Clarendon Press, 1969)

APPEAL by the accused from the convictions returned by a jury presided over by Ewaschuk J. of the Superior Court of Justice on November 22, 2010 and on appeal from the sentences imposed on December 15, 2010.

Victor Giourgas and Marco Sciarra, for appellant Noureddine.

Michael Lacy and Sam Scratch, for appellant Sheridan.

Roger Pinnock and Amy Alyea, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: —

I Overview

[1] The appellants (Sheridan and Noureddine) and Bryan Smith were charged with first degree murder. Michelle Sterling was charged on the same indictment with second degree murder. Smith and Sterling eventually pleaded guilty to manslaughter and testified at the appellant's trial. A fifth person, Jennifer Dunsford, was separately charged and pled guilty to manslaughter. She also testified against the appellants.

[2] Sheridan and Noureddine were found not guilty of first degree murder, but guilty of second degree murder. The trial judge sentenced Sheridan to life imprisonment without eligibility for parole for 18 years. He sentenced Noureddine to life imprisonment without eligibility for parole for 15 years.

[3] Sheridan and Noureddine appeal conviction and sentence.

[4] Counsel for the appellants advanced several grounds of appeal, some applicable to both and some only to one or the other. Counsel, however, focused on what they claim is a fatal flaw in the jury selection process. For the reasons that follow, I accept that submission and would quash the convictions and order a new trial on the charge of second degree murder.

[5] With one exception arising out of the trial judge's answer to a question from the jury, I would reject the other grounds of appeal. Most do not require comment in light of my conclusion with respect to the jury selection issue. I will, however, address Noureddine's argument that duress should have been left as [page28 ]a defence and his submission that the trial judge failed to properly answer one of the jury's questions.

II The Evidence

[6] A brief summary of the evidence and description of the positions of the parties at trial will suffice for the purposes of these reasons.

[7] The Don Yard (the "yard") is a lot located near Lakeshore Boulevard in Toronto used for storing movie trailers. The owner of the yard hired Sheridan to provide security. He lived in a trailer at the yard with his girlfriend, Jennifer Dunsford.

[8] Sheridan used and trafficked in cocaine. Noureddine and Smith, also cocaine users, knew Sheridan and assisted him in his drug trafficking business. They spent time at the yard with Sheridan. Michelle Sterling was a friend of the owner of the yard. At some point, she began to spend time at the yard and became involved with Sheridan.

[9] Sheridan dominated this entourage. Each had a nickname indicative of their position in the hierarchy that existed within the group. Sheridan was called "Colonel" and Noureddine was referred to as "Captain".

[10] Andre Pelliccione, the victim, knew the owner of the yard. On the evening of August 21, 2008, he arrived at the yard looking for the owner. Noureddine, acting on Sheridan's instructions, told Mr. Pelliccione he was not allowed in the yard and demanded that he leave. Mr. Pelliccione refused.

[11] Sheridan confronted Mr. Pelliccione. An argument ensued. Pelliccione indicated that if he was forced to leave, he would be back, armed and with friends. Sheridan had reason to believe that Mr. Pelliccione, who had recently been released from the penitentiary, was a dangerous person.

[12] As Sheridan and Mr. Pelliccione argued, Sheridan pepper sprayed Mr. Pelliccione. Sheridan, Smith and Noureddine attacked Mr. Pelliccione, repeatedly punching and kicking him until he lay on the ground semiconscious.

[13] On Sheridan's orders, Mr. Pelliccione was dragged back into the yard, badly hurt but still alive. He was repeatedly beat, kicked and struck with rocks and a cement block by the three men, Ms. Dunsford and Ms. Sterling. The beatings were administered at different places in the yard, including inside one of the trailers. Eventually, Mr. Pelliccione succumbed to his injuries. The forensic evidence indicated he was alive while he was in the trailer.

[14] On Sheridan's instructions, Mr. Pelliccione's body was wrapped in a covering and placed in a dumpster. Again, on [page29 ]Sheridan's instructions, attempts were made to clean up the crime scene and destroy potential evidence, including the clothing worn by the attackers.

[15] The Crown relied largely on the evidence of Smith, Dunsford and Sterling. All three fell squarely within the "Vetrovec" witness category and the trial judge instructed the jury accordingly. While the evidence of the three "Vetrovec" witnesses was consistent in many respects, there were differences in the details provided by each of those witnesses.

[16] The Crown also relied on Sheridan's statement to the police. The Crown argued that the statement was a confession to murder. The trial judge instructed the jury that the statement was admissible only against Sheridan.

[17] It was the Crown's position that Sheridan was in charge during the events that culminated in Mr. Pelliccione's death. According to the Crown, it was Sheridan who initially attacked Mr. Pelliccione, decided that Mr. Pelliccione must die after the initial attack had incapacitated him, and orchestrated the subsequent assaults on Mr. Pelliccione. The Crown contended that in his statement, Sheridan explained that he decided to kill Mr. Pelliccione to avoid Mr. Pelliccione seeking revenge against him for the initial assault.

[18] The Crown argued that Noureddine fully participated in the attacks on Mr. Pelliccione from the beginning to the end. He punched and kicked Mr. Pelliccione at various times and administered at least one severe blow to Mr. Pelliccione's head with a large piece of concrete.

[19] The Crown accepted that Noureddine acted on Sheridan's instructions. However, the Crown argued that his subordinate role in the murder, while reflective of the nature of his relationship with Sheridan, did not render Noureddine's conduct any less culpable.

[20] Neither Sheridan nor Noureddine testified.

[21] Counsel for Sheridan acknowledged that Sheridan was guilty of manslaughter. He submitted, however, relying on portions of Sheridan's statements, that Sheridan was not present when the fatal blows were struck by the others and that he was undecided at that time whether Mr. Pelliccione should be killed or released. As the trial judge put it in his description of Sheridan's position: "[Sheridan] lost control of his troops, who killed Pelliccione without his concurrence, without his direction, without his approval."

[22] Counsel for Noureddine argued that the evidence of the Crown witnesses was so unreliable and inconsistent that the jury could not possibly make any determination as to the nature [page30 ]of Noureddine's involvement in the various attacks on Mr. Pelliccione. Specifically, counsel argued that the jury could not be satisfied beyond a reasonable doubt that Noureddine had participated in the attack on Pelliccione in the trailer during which the fatal blows were struck. In his closing address, counsel submitted that the jury should acquit Noureddine of murder. He said nothing about Noureddine's liability for manslaughter.

[23] At trial, counsel for Noureddine submitted that the trial judge should instruct the jury on the defence of duress. The trial judge refused to do so, holding that there was no air of reality to the defence.

III The Jury Selection Issue

(a) The trial proceedings

[24] Counsel for both appellants at trial advanced a race-based challenge for cause pursuant to s. 638(1)(b), relying on R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324, [1993] O.J. No. 2157, 84 C.C.C. (3d) 353 (C.A.), leave to appeal to S.C.C. refused (1993), 17 O.R. (3d) xvii, [1994] 1 S.C.R. x, [1993] S.C.C.A. No. 481, 87 C.C.C. (3d) vi. The merits of a challenge for cause must be decided by two triers selected according to s. 640 of the Criminal Code, R.S.C. 1985, c. C-46. If the triers decide that the challenge is "true", that is that the prospective juror is partial, the juror cannot be sworn. If the triers decide that the challenge is "not true", that is that the juror is impartial, the juror can be sworn, subject to the exercise of a peremptory challenge by either the Crown or the accused: Criminal Code, s. 640(3); R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, [1979] S.C.J. No. 67.

[25] Section 640(2) dictates that the triers shall be the last two jurors sworn, or if no jurors have been sworn, two persons present and appointed by the court. Consequently, as the jury selection proceeds, the triers of the challenge rotate as jurors are selected to serve on the jury. The case law uses the phrase "rotating triers" to describe this process for the selection of the triers.

[26] Section 640(2.2) provides for a single exception to the use of rotating triers to decide challenges for cause. If the judge makes an order under s. 640(2.1), excluding all jurors during the challenge process, s. 640(2.2) provides that the same two persons should act as triers throughout the challenge for cause process. Those triers are selected by the judge and do not become part of the jury that ultimately tries the case. When this process is used, the triers are described as "static" triers. [page31 ]

[27] At trial, counsel for Sheridan sought the exclusion of prospective (non-sworn) jurors from the courtroom during the challenge for cause process. She was concerned that the answers prospective jurors might give during the challenge for cause could be affected if they had heard the answers given by previous prospective jurors and saw the results those answers had on the outcome of the challenge for cause. Counsel made it clear that she was not asking for an order excluding sworn jurors from the selection process. She made it equally clear that her client wanted rotating triers to be used to decide the challenges for cause. Counsel said:

I would urge Your Honour for the reasons articulated by the various courts in the book of authorities that I have provided regarding the importance of getting an impartial jury, that we proceed in the fashion outlined in s. 640(2), and that's to have rotating jurors, since there is no application under s. 640(2.1) and that's certainly not an order that I am requesting.

[28] Counsel for Noureddine also indicated that his client wanted rotating triers to determine the challenge for cause.[^1]

[29] Crown counsel at trial expressed no preference as to the procedure to be followed. Counsel did indicate, however, that absent an order under s. 640(2.1), the trial judge could not use static triers.

[30] The trial judge unilaterally decided that static triers would be used to decide the challenge for cause, and that he would exclude all jurors, sworn and unsworn, during the challenge for cause process. His reasons for so holding are brief:

The application for rotating jurors is dismissed. In as much as the sworn and unsworn jurors will be excluded, the triers of cause will be static jurors. I find that the court has inherent jurisdiction to make that order.

(b) The arguments

[31] Counsel for the appellants submits that the trial judge's decision to use static triers is directly contrary to the provisions of the Criminal Code requiring the use of rotating triers unless an order under s. 640(2.1) has been made. Counsel contends that the failure to follow the Criminal Code provisions and use [page32 ]rotating triers resulted in a trial before a court improperly constituted to try the appellants. Counsel further argues that the error is fundamental and renders irrelevant any inquiry into the potential prejudice to the appellants flowing from the error. Alternatively, he submits that if prejudice is relevant, the Crown cannot satisfy the court that the error caused no prejudice to the appellants. He submits that the Criminal Code clearly gives the accused the right to rotating triers unless the accused chooses to bring a motion under s. 640(2.1). The trial judge's ruling depriving the accused of that right must, on counsel's submissions, create the appearance of unfairness and therefore prejudice the appellant.

[32] Crown counsel concedes that the trial judge erred in using static triers. She acknowledges that the Criminal Code specifically addresses the one situation in which static triers may be used and that the trial judge had no inherent jurisdiction to use static triers in other situations. Crown counsel argues, however, that the trial judge's error is not necessarily fatal and that a prejudice inquiry is necessary. She submits that there is no prejudice, actual or inferred, flowing from the use of static triers.

(c) Analysis

(i) The error

[33] I agree with counsel for the appellants and the Crown that the trial judge erred in using static triers. The error is apparent from the language of the relevant provisions in the Criminal Code:

640(2) If the ground of a challenge is one that is not mentioned in subsection (1) and no order has been made under subsection (2.1), the two jurors who were last sworn -- or, if no jurors have been sworn, two persons present who are appointed by the court for the purpose -- shall be sworn to determine whether the ground of challenge is true.

(2.1) If the challenge is for cause and if the ground of the challenge is one that is not mentioned in subsection (1), on the application of the accused, the court may order the exclusion of all jurors -- sworn and unsworn -- from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors.

(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until 12 jurors -- or 13 or 14 jurors, as the case may be, if the judge makes an order under subsection 631(2.2) -- and any alternate jurors are sworn. [page33 ]

[34] Section 640(2) provides for rotating triers by requiring that challenges for cause shall be tried by "the two jurors who were last sworn", or if no jurors have been chosen, by two persons selected by the trial judge. The use of rotating triers to determine challenges for cause ensures that the challenges will be decided by a variety of triers in the course of the selection of the jury. Rotating triers avoids the risk, present when static triers are used, that a single person, chosen as a trier, with a skewed sense of impartiality, could profoundly affect the jury selection process and ultimately the impartiality of the jury empanelled to try the case.

[35] The use of rotating triers has been a feature of the Canadian jury selection process since at least 1892, when the first Criminal Code was enacted: Criminal Code, 1892, 55-56 Vic. ch. 29, s. 668(8). Prior to amendments in 2008 (S.C. 2008, c. 18, s. 26), the Code provided exclusively for the use of rotating triers: see R. v. V. (W.), [2007] O.J. No. 3247, 2007 ONCA 546, at para. [19]. The 2008 amendments introduced the use of static triers, but only if an accused had successfully brought an application under s. 640(2.1) for the exclusion of all jurors, sworn and unsworn, from the court during the challenge for cause process. A trial judge can make an order under s. 640(2.1) for the exclusion of all jurors only if satisfied that the order was "necessary to preserve the impartiality of the jurors". Only the accused can bring a motion under s. 640(2.1).

[36] An exclusion order made under s. 640(2.1) makes it impossible to use sworn jurors as rotating triers during the challenge for cause process. Sworn jurors cannot simultaneously be excluded from the courtroom during the challenge for cause process and act as triers of the challenge. Section 640(2.2) solved that dilemma by requiring the judge, if he made an order under s. 640(2.1), to use static triers, who do not become part of the jury, to decide the challenges for cause. On a plain reading of the amendments, static triers are not simply an alternative to rotating triers. They are used only where the exclusion of all jurors is necessary to preserve the impartiality of the jury ultimately selected.

[37] The trial judge made no reference to the relevant provisions of the Criminal Code. Specifically, he made no reference to the criterion in s. 640(2.1). He misapprehended the nature of the application and purported to dismiss "the application for rotating jurors". The appellants made no such application, but instead insisted on their statutory right under s. 640(2) to rotating triers, expressly indicating that no application was being brought under s. 640(2.1). Absent that application, static triers [page34 ]could not be used in the challenge for cause process: see R. v. Swite, [2011] B.C.J. No. 175, 2011 BCCA 54, 268 C.C.C. (3d) 184, at paras. [28-30].

[38] The trial judge also referred to his "inherent jurisdiction". It is unclear whether he regarded that jurisdiction as the source of his power to make an order for the use of static triers, an order for the exclusion of all jurors, sworn and unsworn, from the challenge for cause process,[^2] or both. The trial judge's power to control the jury selection process to make effective use of court resources and ensure fairness to all parties is well recognized: see R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 56 O.R. (3d) 737, [2001] O.J. No. 4646 (C.A.), at para. [85]. That authority does not, however, extend to orders that contradict the requirements of the Criminal Code: see R. v. Swite, at para. [28]; R. v. V. (W.), at para. [22]. The trial judge's decision to use static triers despite the requirement in s. 640(2), that rotating triers be used, cannot be justified as an exercise of the trial judge's inherent jurisdiction.

(ii) The effect of the error on the convictions

[39] Crown counsel submits that the failure to use rotating triers does not automatically vitiate the convictions. She relies on provisions in Part XXI of the Code which provide that certain errors in the jury selection process have no effect on verdicts. Counsel refers to ss. 643(3), 670 and 671. Counsel also relies on s. 686(1)(b)(iv), the harmless error provision applicable to procedural errors.

[40] Section 643(3) provides that the "failure to comply" with certain specified Criminal Code provisions during the jury selection process does not affect the validity of the trial. Section 640, the provision in issue here, is not one of the enumerated sections. Section 643(3) cannot assist the Crown.

[41] Sections 670 and 671 can be considered together. Both speak of omissions and irregularities in the jury selection process that will not affect the validity of any subsequent verdict. Section 670(a) speaks of irregularities in "the summoning or empanelling of the jury". Section 671 refers to "omission[s] to [page35 ]observe the directions" set out in any act regulating the jury selection process.

[42] This court described the operation of the predecessor to s. 670 in R. v. Rowbotham, 1988 CanLII 147 (ON CA), [1988] O.J. No. 271, 41 C.C.C. (3d) 1 (C.A.), at p. 33 C.C.C.:

We take it to be established by a considerable body of authority that both s. 572(3) and 598(a) [now s. 670] apply only to irregularities and have no application where the error is such that the accused has been deprived of a statutory right, or an error depriving an accused of the right to a trial by a jury lawfully constituted.

[43] The trial judge's ruling requiring static triers deprived the appellants of their "statutory right" in s. 640(2) to rotating triers: see, also, R. v. Varga, 1985 CanLII 3567 (ON CA), [1985] O.J. No. 52, 18 C.C.C. (3d) 281 (C.A.), at p. 288 C.C.C. Section 670 does not answer the appellant's argument.

[44] The reasoning in Rowbotham has equal application to s. 671. That section seems directed at the authorities who are responsible for the various procedures associated with gathering and empanelling jurors. An accused's statutory right to rotating triers during the challenge for cause process cannot be described as a "direction" to those authorities.

[45] R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, at p. 717 S.C.R., provides a further reason for the inapplicability of ss. 670 and 671 to the error made in this case. In Barrow, the chief justice noted that the predecessor sections to ss. 670 and 671 were applicable only when objections to the jury selection process are raised for the first time after a verdict. The complaint with respect to the improper use of static triers was squarely raised at trial by the appellants. Sections 670 and 671 have no application.

[46] Crown counsel relies primarily on s. 686(1) (b)(iv) to support her argument that the improper use of static triers is not necessarily fatal. The section provides:

686(1) . . . [T]he court of appeal

(b) may dismiss the appeal where,

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby.

[47] Section 686(1)(b)(iv) operates in tandem with s. 686(1)(b)(iii) to avoid quashing convictions on account of procedural or legal errors that could not realistically have had any impact on the verdict, the fairness of the trial or the appearance of the fairness of the trial. Section 686(1) (b)(iv) was enacted in [page36 ]response to a series of cases holding that the improper exclusion of the accused during a trial, even if brief, inadvertent and non-consequential, gave rise to a loss of jurisdiction that could not be cured by resort to the harmless error of law provision in s. 686(1)(b)(iii).

[48] Section 686(1)(b)(iv) allows appellate courts to dismiss appeals despite procedural errors that lead to a loss of jurisdiction over the accused if the Crown can show that the error did not prejudice the accused. In short, the legal harmless error analysis in s. 686(1)(b)(iii) is extended to cover procedural errors going to jurisdiction: see R. v. Cloutier, 1988 CanLII 199 (ON CA), [1988] O.J. No. 570, 43 C.C.C. (3d) 35 (C.A.), at pp. 43-46 C.C.C., leave to appeal to S.C.C. refused [1989] S.C.C.A. No. 194, 50 C.C.C. (3d) vi.

[49] Counsel for the appellants accept that s. 686(1) (b)(iv) can be applied to serious procedural errors that result in a loss of jurisdiction: R. v. Cloutier (1988), at p. 51 C.C.C.; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, at paras. [15-18]. They contend, however, as acknowledged in Cloutier (1988), that there are certain errors, including some errors made in the course of the jury selection process, that prevent a properly constituted trial court from coming into existence. Counsel argues that these errors are so fundamental as to be beyond a mere "procedural irregularity" and cannot be cured by s. 686(1)(b)(iv). Counsel contends that the procedural irregularities going to jurisdiction that can be cured by the proviso assume a trial before a properly constituted trial court that has somehow lost jurisdiction: see R. v. Cloutier (1988), at p. 46 C.C.C.; R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, at paras. [119-21].

[50] There is substantial support in the case law for the appellants' submission. In R. v. Bain, 1989 CanLII 262 (ON CA), [1989] O.J. No. 111, 47 C.C.C. (3d) 250 (C.A.), this court considered the application of s. 686(1)(b)(iv) to the trial judge's failure to follow the Criminal Code provisions relating to Crown peremptory challenges and Crown stand asides. The trial judge had held the provisions unconstitutional. In allowing the Crown appeal, Finlayson J.A., at p. 4 (QL), explained why the predecessor to s. 686(1)(b)(iv) had no application to the error made by the trial judge:

In this case, we are dealing with a more fundamental matter. If the jury selection process does not comply with the relevant sections of the Code, the court never obtains jurisdiction to proceed to trial. It is not a question of an apparent loss of jurisdiction during the trial because of the temporary absence of the accused. It is rather a question of whether or not the court was properly constituted in the first place. [page37 ]

[51] On appeal to the Supreme Court of Canada, the majority held that the impugned sections of the Code were unconstitutional, restored the acquittal and did not need to consider the possible application of the procedural curative proviso: R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3. Gonthier J., speaking for the minority, would have upheld the constitutionality of the provisions. His analysis of s. 686(1)(b)(iv), at p. 136 S.C.R., echoed that of Finlayson J.A.:

. . . a jury is more than an incident or a procedural tool in a trial case. The jury is the court, together with the trial judge. If the jury is not constituted according to the rules, the court exists no more than if the judge had been unlawfully appointed. In the case at bar, the problem is not one of application of the jury selection rules, which could have been saved by s. 686(1)(b)(iv) of the Code. The rules were changed. The jury was selected pursuant to other rules than those set out in the Code. There was therefore no trial court properly constituted, and the proper sanction is annulment.

[52] In R. v. V. (W.) and R. v. Swite, this court and the British Columbia Court of Appeal held that s. 686(1)(b)(iv) could not be used to render harmless the improper use of static triers to decide challenges for cause. In V. (W.), a case decided before the 2008 amendments to s. 640, Sharpe J.A. held, at para. 26:

. . . the trial judge's failure to follow s. 640(2) cannot be described as a minor procedural irregularity. Parliament expressly directed that jurors are to act as triers on the challenge for cause in a rotating fashion. That statutorily mandated procedure specifically assigns jurisdiction to decide the important issue of the impartiality of each prospective juror to a new combination of triers. By requiring that the triers rotate, s. 640(2) has the effect of ensuring, to the maximum extent possible, that the responsibility for determining the challenge for cause is shared by all jurors but the last juror selected. By spreading the authority to decide the challenge for cause in this manner, s. 640(2) guarantees that a variety of views and perspectives will be brought to bear on the fundamental question of how the jury is to be constituted. In my view, a departure from this carefully constructive scheme for deciding who shall sit in judgment of the accused cannot be described as a minor procedural defect, nor is it an error that can be cured by applying s. 686(1)(b)(iv) as that section has been interpreted by this court and by the Supreme Court of Canada. The court that tried and convicted and the appellant was improperly constituted. As the trial court never had jurisdiction to try the appellant, s. 686(1)(b)(iv) has no application.

(Emphasis added)

[53] In Swite, decided after the 2008 amendments, the Crown argued that the availability of static triers after the 2008 amendments, albeit only where an order had been made under s. 640(2.1), changed the nature of the error made by the trial judge who improperly used static triers and made the facts of V. (W.) distinguishable from the situation in Swite. The Crown argued that because static triers were a possibility after the 2008 amendments, the improper use of static triers did not [page38 ]result in an improperly constituted court, but rather resulted in a procedural irregularity potentially curable under s. 686(1)(b)(iv). After a careful review of the relevant case law, especially V. (W.), Prowse J.A. held, at para. 54:

Here, I again find myself in agreement with the analysis of Mr. Justice Sharpe in [V. (W.)] in which he described the error as one depriving the accused of a trial before a properly constituted court -- one consisting of a judge and a properly selected jury. In this case, the jury was selected by a process disavowed by Mr. Swite and which effectively deprived him of his statutory "right" (albeit by default) under s. 640(2), in the absence of an application pursuant to s. 640(2.1), to be tried by a jury selected by rotating triers.

[54] On this appeal, Crown counsel takes up the argument rejected in Swite. She submits that a distinction must be drawn between the use of a procedure that is never statutorily available and the use of one that is available, albeit not in the circumstances of the particular case. Crown counsel argues that only the former renders the court improperly constituted.

[55] I cannot accept the distinction urged by the Crown. Just as in V. (W.), the use of static triers in this case contravened the applicable Criminal Code provisions. In V. (W.), those provisions prohibited the use of static triers. Under the present legislation, the Code equally prohibits the use of static triers unless (1) the accused brings and motion for the exclusion of all jurors during the challenge process; and (2) the trial judge determines that such an order is necessary to protect the impartiality of the jury. In V. (W.), and in this case, the process used to determine the appellants' challenges for cause directly contravened the controlling Criminal Code provisions.

[56] Counsel for Mr. Sheridan's analogy to cases in which the court's jurisdiction depends upon the election of the accused as to her mode of trial is an apt one. If an accused has an election, a court's authority to try the particular offence depends on the accused's choosing to be tried in that court. Absent that election, a conviction cannot stand. It is no answer to assert that since the court would have had jurisdiction, had the accused elected trial in that court, and the accused received a fair trial, she suffered no prejudice and the verdict should stand: see R. v. Varcoe, [2007] O.J. No. 1009, 2007 ONCA 194, 219 C.C.C. (3d) 397, at paras. [14-22]; R. v. Dwyer, 1978 CanLII 2513 (ON CA), [1978] O.J. No. 3787, 42 C.C.C. (2d) 83 (C.A.), at 91-93 C.C.C., revd 1979 CanLII 53 (SCC), [1980] 1 S.C.R. 481, [1979] S.C.J. No. 117, at p. 7-9 (QL); see, also, R. v. Pottinger, 1990 CanLII 10935 (ON CA), [1990] O.J. No. 289, 54 C.C.C. (3d) 246 (C.A.), at p. 251-52 C.C.C., leave to appeal to the S.C.C. refused [1990] S.C.C.A. No. 201, 119 N.R. 352n. Just as in the election cases when the proper constitution [page39 ]of the court depended on the accused's choice of that forum for her trial, the proper constitution of the jury, and hence the court depends on the accused effectively requesting the use of static triers by bringing a motion under s. 640(2.1).

[57] I agree with the analysis and holding in Swite. In doing so, I emphasize that in Swite, as in this case, the appellants did not want to use static triers to determine the challenges for cause. They made their position clear to the trial judge. It may be that s. 686(1)(b)(iv) could be applied if an accused had agreed to the use of static triers, but had failed to bring the required motion under s. 640(2.1). An accused's willingness to use static triers may be enough to render the court properly constituted during the selection process. The failure to bring the appropriate motion may be characterized as a procedural irregularity potentially curable under s. 686(1)(b)(iv). Again, the analogy to the election cases is helpful. Some cases have applied s. 686(1) (b)(iv) to cure errors in the election procedure when it was clear that the accused was tried in the forum of his choice: e.g., see R. v. Roy, [2010] B.C.J. No. 1999, 2010 BCCA 448, at paras. [6-10].

[58] In acknowledging that the consent of an accused to the use of static triers may have an impact on the availability of s. 686(1)(b)(iv), I do not intend to depart from the analysis in V. (W.). In V. (W.), the accused had agreed to the use of static triers, but at the time, the Criminal Code provisions demanded the use of rotating triers to determine challenges for cause in all situations.

[59] Crown counsel referred to four cases in which this court subjected errors made in the jury selection process to the harmless error inquiry under s. 686(1)(b)(iv). In three of those cases, R. v. Katoch, [2009] O.J. No. 3456, 2009 ONCA 621, 246 C.C.C. (3d) 423; R. v. B. (A.) (1997), 1997 CanLII 1902 (ON CA), 33 O.R. (3d) 321, [1997] O.J. No. 1578 (C.A.); and R. v. Cece (2004), 2004 CanLII 31690 (ON CA), 72 O.R. (3d) 321, [2004] O.J. No. 3938 (C.A.), the errors did not involve the failure to comply with a specific statutory component of the jury selection process, but instead involved judicial orders which this court found went beyond the power of the trial judge to control the selection process. For example, in Katoch, the trial judge allowed the accused to withdraw a challenge for cause when prospective jurors answered no to the first three questions posed in the challenge for cause process. The Code says nothing about withdrawing a challenge for cause. Rosenberg J.A., after acknowledging that the case law indicated that the trial judge did not have the power to withdraw the challenge once it had commenced, said, at para. 55: [page40 ]

However, that error is of a different nature than that in [V. (W.)] The trial judge in [V. (W.)] failed to comply with a specific statutory component of the jury selection process. In contrast, the Criminal Code does not expressly prohibit a party from withdrawing or abandoning a challenge for cause, as happened in this case. Additionally, the procedure followed in this case did not undermine the impartiality of the jury.

[60] In the fourth case, R. v. Brown, 2005 CanLII 3939 (ON CA), [2005] O.J. No. 609, 194 C.C.C. (3d) 76 (C.A.), the trial judge had granted the accused and the Crown an extra peremptory challenge after excusing a selected juror during the ongoing jury selection process. This court held, at paras. 45-49, that the trial judge did not have the inherent power to increase the number of peremptory challenges allocated by the relevant provisions of the Criminal Code. The court, however, at para. 44, characterized the error as an error "of law" and applied s. 686(1)(b)(iii), the harmless error provision applicable to errors in law. Clearly, the court did not regard the error as jurisdictional much less as an error that impacted on the constitution of the court.

[61] Consistent with V. (W.) and Swite, I would hold that this court was improperly constituted to try the appellants. The verdicts must be quashed for that reason alone. I will, however, address the prejudice argument as, in my view, counsel for Sheridan is correct in his submission that the misuse of static triers to determine the challenge for cause resulted in prejudice to the appellants.

[62] The prejudice inquiry mandated by s. 686(1) (b)(iv) looks both to actual prejudice to the accused, and prejudice to the due administration of justice: see R. v. Kakegamic, [2010] O.J. No. 5671, 2010 ONCA 903, 265 C.C.C. (3d) 420, at paras. [35-39]; R. v. Sinclair (2013), 114 O.R. (3d) 284, [2013] O.J. No. 418, 2013 ONCA 64, 300 C.C.C. (3d) 69, at paras. [21-25]. In assessing prejudice when a serious procedural error has been made, an appellate court may infer prejudice from the error without requiring the accused to demonstrate prejudice. The Crown may of course rebut the inference of prejudice: R. v. Khan, at para. [16].

[63] An attempt to determine whether the appellants suffered any actual prejudice leads quickly to speculation. It is impossible to say whether the improper use of static triers had any actual effect on the constitution of the jury ultimately selected to try the appellants. Nor is it possible to gauge the impact, if any, of the improper jury selection process on the impartiality of the jury selected.

[64] In my view, the prejudice in this case lies in the negative effect the improper use of static triers, over the express objection of counsel, had on the appearance of the fairness of the [page41 ]proceedings and the due administration of justice. Three factors combined to lead me to that conclusion:

the use of rotating triers to decide challenges for cause benefits the jury selection process;

static triers are an alternative method used to determine challenges, but only where necessity dictates the use of static triers; and

it is for the accused and only the accused to decide whether to initiate the motion that may ultimately result in the use of static triers.

[65] Using rotating triers to decide challenges brings at least two benefits to the jury selection process. First, rotating triers avoids the risk that the entire jury selection process could be tainted by a single static trier who is unable or unwilling to properly assess the partiality of prospective jurors. Second, the use of rotating triers gives most of the jurors who ultimately try the case a role in the selection of their fellow jurors. That role potentially promotes both a sense of responsibility in individual jurors and of cohesiveness in the jury selected to try the case.

[66] The preferred position afforded rotating triers in the challenge for cause process is apparent from the 2008 amendments. Those amendments require the use of rotating triers except when an order has been made under s. 640(2.1) excluding all jurors during the challenge for cause process. As outlined above, that order makes it impossible to use rotating triers during the challenge process. I read the amendments as acknowledging the value of rotating triers in the challenge for cause process. That value may be sacrificed, but only if the judge is satisfied, on the accused's motion, that the exclusion of all jurors is necessary to preserve the impartiality of the jury.

[67] The amendments also recognize that the potential benefits of rotating triers are particularly important to an accused, as it is the accused who will usually challenge for cause. The significance of rotating triers to the accused in particular is reflected in the amendments by allowing only the accused to bring the motion under s. 640(2.1) which, if successful, will lead to the use of static triers.

[68] Ultimately, the trial judge's order denied the appellants the benefits of using rotating triers to determine the challenges for cause made by the appellants. Equally important, the denial of the benefit of rotating triers occurred in the face of clear statutory language providing that only the accused could bring the [page42 ]motion necessary to the use of static triers. Finally, the denial occurred despite the express and repeated insistence of the appellants that rotating triers be used. These factors combined to create the appearance of unfairness and compromised the due administration of justice.

(iii) The effect of the error on the acquittals

[69] The appellants were acquitted of first degree murder. In the course of oral argument, the court inquired as to the impact on the acquittals if, as the appellants contended, the error in the jury selection rendered the court improperly constituted to try the appellants. Counsel provided helpful written submissions.

[70] Crown counsel takes the position that the acquittals cannot stand. She submits that if the court was not properly constituted to convict the appellants on the included charge of second degree murder, it could not be properly constituted to acquit the appellants on the main charge of first degree murder. Crown counsel submits that if the court proposes to quash the convictions and order a new trial based on the error in the jury selection process, it should make an additional order under s. 686(6) of the Criminal Code requiring that the new trial be on the charge of first degree murder.

[71] The Crown has not appealed the acquittals on the first degree murder charge. Nor does the Crown seek leave to extend the time to bring an appeal from those acquittals. Instead, the Crown submits that a new trial on the charge of first degree murder is the inevitable legal consequence of the position advanced by the appellants that the improper jury selection rendered the court improperly constituted to try the appellants.

[72] The position taken by the Crown is a principled one. I take the Crown to be acknowledging that it would be unfair and contrary to the spirit underlying the principle against double jeopardy were the Crown to seek to appeal the acquittals on first degree murder absent any suggestion that those acquittals were tainted by legal error. The Crown submits, however, that no unfairness arises if the retrial on the first degree murder is the logical consequences of the appellants successfully arguing that the court was not properly constituted to try the charges against them.

[73] The logic of the Crown's submission is difficult to deny. How can a jury not be properly constituted to say the word "guilty" in reference to the included charge of second degree murder, but be properly constituted to say the words "not guilty" in relation to the main charge of first degree murder? See R. v. Ashini, 1989 CanLII 7156 (NL CA), [1989] N.J. No. 227, 51 C.C.C. (3d) 329 (C.A.), at pp. 335-36 C.C.C.; [page43 ]Crane v. Director of Public Prosecutions, [1921] 2 A.C. 299, [1921] All E.R. Rep. 19 (H.L.), per Lord Parmoor, at pp. 335-36 A.C. Despite the logic, however, the anomalous result should the Crown's position be accepted is also evident. The appellants, having successfully challenged their second degree murder convictions, would become the beneficiaries of an order placing them in jeopardy of convictions on the more serious charge of first degree murder. The phrase "pyrrhic victory" comes to mind.

[74] I would reject the Crown's submission for two reasons. The first involves a consideration of the powers this court on an appeal from conviction and, the second, an examination of the controlling case law.

[75] If an accused appeals from conviction on an included offence, this court cannot set aside the acquittal returned on the main charge absent an appeal by the Crown from that acquittal: R. v. Guillemette, 1986 CanLII 59 (SCC), [1986] 1 S.C.R. 356, [1986] S.C.J. No. 24, at p. 361 S.C.R.; see, also, R. v. Bird, 1952 CanLII 388 (ON CA), [1953] C.C.S. NO. 535, 104 C.C.C. 286 (C.A.), at p. 289 C.C.C. Section 686(8), which allows this court to make orders ancillary to an order allowing an appeal from conviction if "justice requires", does not extend to an order setting aside an acquittal returned on the merits on a related charge at the same trial: R. v. Sullivan, 1991 CanLII 85 (SCC), [1991] 1 S.C.R. 489, [1991] S.C.J. No. 20, at pp. 505-506 S.C.R.

[76] The Crown could have appealed the acquittal on the first degree murder charge. For appeal purposes, the acquittal on the first degree murder charge is distinct from the conviction on the included offence of second degree murder. Section 676(2) gives the Crown a right of appeal on the main charge even if there is a conviction on the included offence. It follows in my view that the acquittal on the main charge is not put in issue when an accused exercises his right to appeal a conviction returned on the included offence. An order directing a new trial on the main charge of first degree murder, available had the Crown successfully appealed from the acquittal on that charge, cannot be regarded as an order ancillary to the order made on the appeal brought by the accused quashing his conviction on a charge of second degree murder.

[77] Apart from an analysis of the powers available to an appellate court under Part XXI, binding authority examining the consequences of the kind of error that occurred in the jury selection in this case leads to the same result. On those authorities, only the party whose interest was adversely affected by the error made in the jury selection process can rely on that error to [page44 ]set aside a verdict returned by the jury: R. v. Cloutier (1979), at pp. 23-24 C.C.C.; R. v. Rowbotham, at pp. 724-26 C.C.C.

[78] In Cloutier (1979), the accused was charged with importing a narcotic into Canada. The jury acquitted. The Quebec Court of Appeal allowed the Crown appeal, holding that the trial judge had wrongly excluded certain evidence and misdirected the jury. Maynard J.A. also held that the trial judge had wrongly held that the accused could not peremptorily challenge a juror after unsuccessfully challenging that juror for cause.

[79] The accused appealed to the Supreme Court of Canada. The majority of that court held that the trial judge had not erred in excluding the challenged evidence and that his instructions to the jury did not demonstrate reversible error. The court did hold, however, that the trial judge had erred in denying the accused the right to exercise a peremptory challenge after a juror had been unsuccessfully challenged for cause. The Crown argued that the error in the jury selection process, standing alone, vitiated the acquittal returned by the jury. The majority of the Supreme Court of Canada rejected this submission, allowed the appeal and restored the acquittal returned by the jury.

[80] Pratte J., for the court on this issue, acknowledged, at p. 724 S.C.R., that the error in the jury selection would have entitled an accused who had been convicted to have the conviction "annulled" without any demonstration of prejudice flowing from the error. Pratte J. then considered whether the Crown could rely on that error as a basis for nullifying the acquittal returned by the jury. In holding that the Crown could not rely on the error, Pratte J. distinguished between a "relative nullity" and an "absolute nullity".[^3] He explained that a "relative nullity" could be relied on only by a party whose personal interests had been adversely affected by the error.

[81] Pratte J. next examined the nature of the error made in the jury selection process. He held that the denial of the accused's right to peremptorily challenge prospective jurors was a right personal to the accused in which the prosecution had no interest. He reasoned that the interests of the prosecution in the jury selection process were in no way compromised by the denial of the accused's personal right to exercise a peremptory challenge after a challenge for cause had failed. He explained, at pp. 725-26 S.C.R.: [page45 ]

The rights of the Crown as to the empanelling of the jury were respected in every particular. The prosecution may not complain that appellant's rights were violated for the simple reason that the rights were purely personal, and moreover the judge's error with respect to the appellant was corrected by the verdict of acquittal.

[82] In Rowbotham, this court applied Cloutier (1979) to a different error made in the jury selection process. Under the Criminal Code as it stood at the time, the Crown was allowed to "stand aside" jurors. The Code provided, however, that if the jury panel and any additional talesmen had been considered and rejected and a jury still not selected, the stand aside jurors had to be brought back for reconsideration. Under the relevant Code provisions, the Crown could not stand aside the same juror twice.

[83] In Rowbotham, the trial judge decided that instead of recalling the stand asides, he would continually augment the jury panel with additional prospective jurors from other jury panels. After a detailed analysis of the relevant provisions of the Criminal Code, this court said, at p. 37 C.C.C.:

In the result, because the process actually adopted by the trial judge was not authorized by law, and deprived the appellants of a statutory right conferred on them by 571 of the Criminal Code, the appellants were deprived of a trial by a jury lawfully constituted. This error in itself requires a new trial.

(Emphasis added)

[84] Some of the accused in Rowbotham had been acquitted on some counts and convicted on others. The Crown had not appealed the acquittals. The Crown argued, however, that if the court was not lawfully constituted because of the error in the jury selection, the acquittals must also be set aside.

[85] In rejecting the Crown's submission, this court, at p. 73 C.C.C., distinguished between verdicts that were "void" and those that were "merely voidable": see M. Friedland, Double Jeopardy (Oxford: Clarendon Press, 1969), at pp. 77-86. Applying the analysis from Cloutier (1979), the court held that the failure to recall the stand asides deprived the accused of a statutory right to have the stand asides reconsidered but had no negative impact on any right of the Crown in the jury selection process. Consequently, while the convictions were voidable at the instance of the accused, the Crown could not rely on the errors as a basis upon which to set aside the acquittals on other counts in the indictment. Using the language of double jeopardy cases, the convictions were "voidable" but the acquittals were not.

[86] The error that occurred in this case fits easily within the analysis provided in Cloutier (1979) and Rowbotham. The failure to use rotating triers to decide the challenge for cause as [page46 ]required by the Criminal Code denied the appellants the right to use rotating triers. That right is clearly as personal to the accused as is the right to exercise a peremptory challenge.

[87] The failure to use rotating triers had no impact on any of the Crown's rights in the jury selection process, or in the manner in which the Crown proceeded during that process. The Crown did not initiate the challenge for cause process, did not challenge any jurors for cause, and was for all intents and purposes a bystander throughout the challenge for cause process. In my view, the improper use of static triers rendered the conviction on the charge of second degree murder voidable at the instance of the accused but had no impact on the acquittals returned on the main charge of first degree murder.

IV The Other Grounds of Appeal

[88] Counsel raised several other grounds of appeal. The court did not require submissions from the Crown on most of them. I will address the argument that duress should have left with the jury and the argument that trial judge failed to properly answer one of the jury's questions.

(i) Did Noureddine have a defence of duress?

[89] Noureddine was potentially liable for Mr. Pelliccione's murder either as the perpetrator or an aider and abetter. On a pre-trial motion, the trial judge held that the statutory defence of duress in s. 17 of the Criminal Code, which denied the defence to perpetrators of murder, was unconstitutional. He read the section down to allow for the defence in limited circumstances in murder cases: R. v. Sheridan, [2010] O.J. No. 4884, 224 C.R.R. (2d) 308 (S.C.J.).

[90] The duress defence in s. 17 of the Criminal Code applies only to perpetrators. The common law defence of duress is available to persons charged as aiders and abetters, including persons charged with murder: R. v. Paquette, 1976 CanLII 24 (SCC), [1977] 2 S.C.R. 189, [1976] S.C.J. No. 62.

[91] Subsequent to the trial judge's duress ruling, the Supreme Court of Canada and this court have examined the statutory and common law defence of duress in some detail and delineated the essential elements of the defence: R. v. Ryan, [2013] 1 S.C.R. 14, [2013] S.C.J. No. 3, 2013 SCC 3; R. v. Aravena, [2015] O.J. No. 1910, 2015 ONCA 250, 323 C.C.C. (3d) 54. I will assume without deciding that the statutory defence of duress is available to a person charged with being the perpetrator in a murder. I also consider counsel for Noureddine's submission that the trial judge should have left the defence of [page47 ]duress with the jury on the basis that the defence as described in Ryan and Aravena applies to both the statutory and common law defence of duress.

[92] The duress defence is available in very limited circumstances. The rationale for limiting the availability of the defence is fully explained in Ryan, repeated in Aravena and need not be restated here.

[93] As with any defence, duress can only be left with the jury when there is an air of reality to that defence. An air of reality exists if it is realistically open to a jury, on the entirety of the evidence, to have a reasonable doubt as to the existence of each of the essential elements of the duress defence: see R. v. Aravena, at para. [27]. The six constituent elements of the duress defence are concisely summarized in Ryan, at para. [81].

[94] I will not examine each element, but will focus on the requirement that there be no safe avenue of escape for the person who claims to have acted under duress. The safe avenue of escape requirement in the defence is explained in Ryan, at para. [65]:

In other words, a reasonable person in the same situation as the accused and with the same personal characteristics and experience would conclude there was no safe avenue of escape or legal alternative to committing the offence. If a reasonable person similarly situated would think there was a safe avenue of escape, the requirement is not met and the acts of the accused cannot be excused using the defence of duress because they cannot be considered as morally involuntary.

[95] Noureddine did not testify. An accused's failure to testify does not foreclose a duress defence although, practically speaking, it will have a negative effect on the availability of the defence in most cases. I find nothing in the evidence to support the contention that a reasonable person in Noureddine's situation, with Noureddine's characteristics and experience, could not have declined further participation in the attack and left the yard at some time prior to Mr. Pelliccione's death.

[96] On the evidence, Noureddine was fully involved from the outset in the beating administered to Mr. Pelliccione at various places in the yard. When asked by the court to refer to the evidence said to support the absence of any safe avenue of escape, counsel referred to two answers given by the witness Smith, during examination-in-chief. Both answers related to events that occurred after Mr. Pelliccione, who had been badly beaten by Noureddine and others, had been taken into one of the trailers. It would appear that the final fatal blows were administered in the trailer.

[97] In the first of the two answers, Smith testifies as to his thoughts and, specifically, his belief that Sheridan "could pop out [page48 ]of anywhere and just shoot anyone of us at any time". Whatever value Smith's evidence about his thoughts may have had on the objective component of the safe avenue of escape requirement, it provides no evidence as to what Noureddine thought or how he perceived the situation at the relevant time.

[98] In the second answer referred to by counsel, Smith indicates to Dunsford and Sterling that they should return to the trailer because Sheridan is "probably gonna kill youz". It is unclear whether Noureddine even heard this comment. More importantly, there is no evidence as to what effect, if any, it had on Noureddine's decision to remain and continue his participation in the ongoing attack of Mr. Pelliccione.

[99] The two answers given by Smith, stretched to their fullest probative value from the defence point of view, go no further than to indicate that when Mr. Pelliccione was being held in the trailer, Smith was concerned that Sheridan might kill one or more of the persons in his entourage if they did not do as instructed by Sheridan. The evidence does not speak to the absence of any safe avenue of escape for Noureddine. Indeed, on Smith's evidence, Sheridan left Noureddine, Dunsford and Sterling with Mr. Pelliccione in the trailer in the moments immediately preceding the fatal blows.

[100] The absence of any realistic basis upon which the jury could have a doubt as to whether Mr. Noureddine had a safe avenue of escape is enough to conclude that the defence should not have been left. I make no comment on whether there was any air of reality to the other elements of the duress defence.

(ii) The jury question

[101] In his closing argument, Crown counsel referred, at some length, to the evidence of Dunsford, Smith and Sterling. Using a chart as an aid to his argument, counsel attempted to demonstrate the many consistencies among the evidence of the three accomplices. In his closing argument, counsel for Noureddine, using the same chart, attempted to demonstrate the many material inconsistencies in the evidence of the three accomplices.

[102] During the deliberations, the jury asked to

[h]ear again the transcript of the Crown's review point by point of the evidence chart, and counsel for Noureddine's comments on the evidence chart, or to see the evidence chart on the monitors again.

[103] The jury's reference to the "evidence chart" was a reference to the chart Crown counsel had used as an aid in his closing address.

[104] Crown counsel and counsel for Noureddine agreed that the jury was entitled to an answer to the question. They also [page49 ]appeared to agree that the jury wanted to rehear the submissions of Crown counsel and counsel for Noureddine as they related to the "evidence chart". Counsel for Sheridan took the position that neither the "evidence chart", nor any portions of the address of the Crown or counsel for Noureddine should be provided to the jury in response to the questions.

[105] The trial judge held that counsel for Sheridan's position effectively foreclosed giving the jury any assistance in recalling the arguments of Crown counsel and counsel for Noureddine. He told the jury:

You have requested the Crown's evidence chart and Mr. Noureddine's comments on the evidence chart. This relates to matters that do not constitute evidence at trial, but only commented upon during the jury addresses. So that I could comply with your request, if all counsel were to accede to it. Unfortunately not all counsel were agreed. Thank you.

[106] The trial judge's answer to the jury's question was wrong in law and potentially prejudicial to Noureddine. There is no legal principle that unless all counsel agree, the jury cannot be provided with assistance in recalling the arguments advanced by counsel. The trial judge's response to the question suggests a fundamental difference between assisting the jury in recalling evidence and assisting the jury in recalling arguments about the evidence. The distinction is untenable and unfounded in the case law. The jury's question about counsel's submissions required an answer that was responsive to the question and fair to all parties.

[107] The jury's question indicates that the jury wanted to hear the substance of Crown counsel and counsel for Noureddine's closing arguments as they related to the "evidence chart" used by the Crown during its closing. The jury was entitled to receive that assistance. The exact form in which the assistance should be delivered required careful attention to the interests of both appellants and the Crown. For example, it would arguably be unfair to give the "evidence chart" to the jury as that would be tantamount to providing the jury with a written summary of one side's argument of the case. The exact format of the answer to the question would depend significantly on the submissions made by counsel.

[108] Although the jury's question did not refer to counsel for Sheridan's submissions, Sheridan had a legitimate interest in the response to be given to the question. While the trial judge was wrong in holding that Sheridan could effectively veto any answer to the jury's question, Sheridan was entitled to an answer that protected his interests. That answer may have required reference to Sheridan's position as it related to the evidence described in the "evidence chart". [page50 ]

[109] The trial judge was required to answer the jury's question. Counsel for Sheridan's position did not relieve him of that responsibility. The trial judge erred in failing to provide the jury with the assistance it requested.

[110] The potential prejudice to Noureddine flowing from the trial judge's failure to answer the jury's question is twofold. First, the jury wanted a summary of Noureddine's position as it related to the accomplice's evidence. His attack on that evidence was central to his defence. The failure to provide that summary for the jury may well have diminished the force of the arguments advanced on behalf of Noureddine.

[111] Second, Noureddine was prejudiced by the trial judge's statement to the jury that at least one counsel had effectively blocked the trial judge from answering the jury's question. I think the jury, upon hearing that at least one counsel did not want the question answered, could reasonably have concluded that it could not have been the Crown who did not want the Crown's "evidence chart" provided to the jury. The jury could equally have concluded that counsel for Sheridan had no interest in the answer to the question. If the jury followed that path, counsel for Noureddine would be viewed, wrongly, as responsible for preventing the jury from receiving an answer to their question. Noureddine would certainly be prejudiced if the jury saw his lawyer as the roadblock to the information it had requested.

V. Conclusion

[112] I would allow the appeal, quash the convictions for second degree murder and order a new trial on the charge of second degree murder.

Appeal allowed.

Notes

[^1]: In the transcript (Vol. 1, p. 553, l. 30), counsel for Noureddine is said to have asked for the exclusion of "sworn" jurors. It seems that counsel misspoke, or there is an error in the transcript and the word "sworn" should be "unsworn". Counsel for Noureddine made it clear that Noureddine wanted to use rotating triers. When rotating triers are used, sworn jurors cannot be excluded from the entirety of the challenge for cause process since sworn jurors act as the triers of the challenge until replaced by another sworn juror.

[^2]: The nature and scope of any power the trial judge may have, apart from an order under s. 640(2.1), to exclude some or all jurors during the challenge for cause process is a matter of controversy in the Ontario Superior Court. That issue is not before this court on this appeal: see R. v. Jaser, [2014] O.J. No. 6431, 2014 ONSC 7528 (S.C.J.), at paras. [35-42]; R. v. Riley, 2009 CanLII 22571 (ON SC), [2009] O.J. No. 1851, 247 C.C.C. (3d) 517 (S.C.J.), at para. [18]; R. v. Sandham, 2009 CanLII 22574 (ON SC), [2009] O.J. No. 1853, 248 C.C.C. (3d) 46 (S.C.J.), at paras. [55-56]; R. v. White, 2009 CanLII 42049 (ON SC), [2009] O.J. No. 3348 (S.C.J.), at paras. [32-37].

[^3]: The language of "relative" and "absolute" nullity seems to be borrowed from the civil law of Quebec: see Civil Code of Quebec, C.Q.L.R. c. C-1991, arts. 1416-1422.

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