COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zvolensky, 2016 ONCA 947

DATE: 2016-12-15

DOCKET: M47305 (C56042, C56152 & C56503)

Sharpe, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Zvolensky, Nashat Qahwash and Ronald Cyr

Appellants

Anil K. Kapoor, for the appellants

Jocelyn Speyer and Alison Wheeler, for the respondent

Heard: In writing

On motion (in writing) to permit appellants to raise issues on appeal not raised at trial.

By the Court:

[1] In accordance with the direction of the appeal management judge in an endorsement on November 23, 2016, we have received and considered the parties' written submissions on two issues that the appellants seek to raise as grounds of appeal. The issues relate to the eligibility of a former auxiliary police officer to serve as a juror at the appellants' trial.

[2] The appellants did not discover that one of the jurors at their trial had been an auxiliary police officer until well after the jury had rendered its verdict finding all three appellants guilty of first degree murder. The circumstances in which the appellants became aware of this issue are not material to our disposition of it.

[3] If permitted, the appellants propose to argue:

i. that the juror, as a "person engaged in the enforcement of law", was ineligible to serve as a juror because of the provisions s. 3(1)6 of the Juries Act, R.S.O. 1990, c. J.3 (the statutory interpretation argument); and

ii. that if the statutory interpretation argument fails, s. 3(1)6 should be interpreted in compliance with ss. 7, 11(d) and 11(f) of the Charter so that the ineligibility provision applies to both current and former persons "engaged in the enforcement of law" (the Charter argument).

[4] The respondent acknowledges that the appellants should be permitted to argue that the affected juror's former role as an auxiliary police officer created a reasonable apprehension of bias in relation to that juror. The respondent offers no serious objection to the appellants' advancing their statutory interpretation argument, but resists their pursuit of the proposed Charter argument.

[5] We recognize, as do the parties, a general injunction against appellate consideration of issues not advanced at trial, especially where the objection first advanced on appeal challenges the jurisdiction of the court constituted to try the appellants. We also acknowledge that this general injunction is not unyielding, rather admits of a discretion to consider on appeal an issue not raised at trial if it is in the interests of justice to do so.

[6] In reaching our conclusion, we have considered all the circumstances, including but not only:

i. the state of the trial and proposed appellate record;

ii. fairness to the parties;

iii. the importance of having the proposed issues resolved by the court;

iv. the suitability of those issues for decision; and

v. the broader interests of the administration of justice.

See, R. v. Wookey, 2016 ONCA 611, at paras. 56-57.

[7] In order to assist the parties in the final preparation of their materials for the hearing of the appeal, which is to commence on January 23, 2017, we have concluded that the appellants may advance what we have termed the statutory interpretation argument, but may not advance what we have described as the Charter argument. In our reasons for judgment on the appeal, we will explain why we have reached this conclusion on the issue with which we are concerned here.

Released: December 15, 2016 (RJS)

"Robert J. Sharpe J.A."

"David Watt J.A."

"G. Pardu J.A."