Court of Appeal for Ontario

Date: 2017-06-07

Docket: C56042, C56152 & C56503

Judges: Sharpe, Watt and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Zdenek "Dennis" Zvolensky, Nashat Qahwash and Ronald Cyr Appellants

Counsel

Frank Addario, Andrew Furgiuele and Delmar Doucette, for the appellant Zdenek "Dennis" Zvolensky

Anil K. Kapoor and Sarah Harland-Logan, for the appellant Ronald Cyr

John M. Rosen, Paul J.I. Alexander and Lindsay Daviau, for the appellant Nashat Qahwash

Jocelyn Speyer and Alison Wheeler, for the respondent

Heard

January 23, 24, 25, and 26, 2017

Appeal Information

On appeal from the convictions entered on April 30, 2012 by Justice Linda Walters of the Superior Court of Justice, sitting with a jury.

Addendum

[1] The appellant Ronald Cyr requests clarification as to whether further reasons will be provided by the court for its refusal to allow him to advance a new Charter argument on appeal. The appellant had proposed to argue that ss. 7, 11(d) and 11(f) of the Charter required that clause 6 of s. 3(1) of the Juries Act, R.S.O. 1990, c. J.3, be expanded to provide that former auxiliary police officers are ineligible to serve as jurors.

[2] The appellant moved in writing for leave to advance this argument, which was opposed by the Crown. In R. v. Zvolensky, 2016 ONCA 947, this court refused to allow the argument to be advanced on appeal, but indicated that further reasons would be given on this issue in the final judgment dealing with the appeal.

[3] The issue of juror ineligibility is dealt with in paras. 188-197 of the final judgment, R. v. Zvolensky, 2017 ONCA 273. As noted at paras. 196-197, even if the appellant's Charter argument were successful on some basis, ss. 670 and 671 of the Criminal Code are a complete answer to this ground of appeal. Further, this court noted at para. 195 that there was no air of reality to the suggestion that the presence on the jury of a former auxiliary police officer who last volunteered for the Hamilton Police Service 11 years before trial gave rise to a reasonable apprehension of bias. No one raised a concern at trial that the jury panel should be vetted to exclude persons retired from a police force or any other excluded profession or occupation.

[4] As this court pointed out in its decision refusing leave, the general rule is that courts of appeal will not permit an issue to be raised for the first time on appeal. R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 39. The decision to grant or refuse leave to permit a new argument is a "discretionary decision informed by a balancing of the interests of justice as they affect all parties": Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 22.

[5] For the reasons expressed in paras. 188-197 of our final judgment, we are not satisfied that any miscarriage of justice would result from our refusal to allow the appellant's proposed constitutional argument to be advanced on appeal. Dealing with this issue would serve no purpose, given ss. 670 and 671 of the Criminal Code.

Robert J. Sharpe J.A.

David Watt J.A.

G. Pardu J.A.