Court of Appeal for Ontario

Date: August 27, 2019

Docket: C61095 & C61185

Judges: Rouleau, Hourigan and Zarnett JJ.A.

Docket: C61095

Between

Her Majesty the Queen

Respondent

and

Chiheb Esseghaier

Appellant

Docket: C61185

And Between

Her Majesty the Queen

Respondent

and

Raed Jaser

Appellant

Amicus Curiae: Erin Dann and Janani Shanmuganathan

Appearances:

• Chiheb Esseghaier, by video conference
• Frank Addario and Megan Savard, for the appellant, Raed Jaser
• Kevin Wilson and Ian Bell, for the respondent

Heard: February 19, 2019

On appeal from: The convictions entered on March 20, 2015 and the sentences imposed on September 23, 2015 by Justice Michael Code of the Superior Court of Justice, sitting with a jury.

Zarnett J.A.:

I. Introduction

[1] The appellants Raed Jaser ("Jaser") and Chiheb Esseghaier ("Esseghaier") were jointly tried by a court composed of a judge and jury. They were convicted of conspiracy to commit murder for the benefit of a terrorist group and of two counts of participating in terrorist activity. Esseghaier was also convicted of conspiracy to damage transportation infrastructure with intent to endanger safety for the benefit of a terrorist group. The trial judge sentenced them to life in prison.

[2] The appellants have appealed their convictions and sentences raising a number of grounds. Watt J.A. directed that one ground of appeal, concerning the selection of the jury at trial, be argued first. These reasons address that ground of appeal.

[3] The offences with which the appellants were charged included a plan to de-rail a passenger train. The prosecution alleged the appellants had been motivated by Islamic extremism and had planned terrorist attacks on non-Muslim targets or victims. There had been significant pre-trial media coverage.

[4] Accordingly, Jaser's counsel and the Crown agreed, and the trial judge accepted, that challenges for cause of prospective jurors were necessary. Questions were developed to be put to each prospective juror inquiring whether pre-trial publicity and the fact that each appellant was a member of a visible minority and a Muslim would, given the nature of the charges, affect the prospective juror's ability to decide the case against each appellant on the evidence at trial without partiality.

[5] When a potential juror is challenged for cause, the challenge must be tried and a determination must be made as to whether the challenge is true before the potential juror may be sworn and become a member of the jury. The Criminal Code, R.S.C., 1985, c. C-46, contemplates two different categories of triers of challenges: rotating triers and static triers.[1] Rotating triers are two persons who will serve on the jury, and they change (rotate) as each additional jury member is sworn: s. 640(2). Static triers are two persons who hear and determine all challenges until the entire jury has been selected and sworn, but who do not themselves become members of the jury: ss. 640(2.1) and (2.2).[2]

[6] On an application to resolve jury selection issues, Jaser sought rotating triers to determine challenges for cause as mandated by s. 640(2) of the Criminal Code. He asked the court to exercise its inherent jurisdiction to exclude unsworn jurors from the courtroom while challenges were heard in order to protect jury impartiality by avoiding exposing unsworn jurors to other jurors' answers. Jaser's counsel indicated that if and only if the court ruled it lacked the inherent jurisdiction to order the exclusion of unsworn jurors while using rotating triers, then Jaser would apply under s. 640(2.1) of the Criminal Code for the exclusion from the courtroom of sworn and unsworn jurors, with the result that challenges for cause would be determined by static triers under s. 640(2.2). Counsel described this scenario in oral argument as "very much our alternate position".

[7] Esseghaier was not represented by counsel at trial. He refused the assistance of any counsel who would conduct a defence based on the Criminal Code rather than the Holy Qur'an. Amicus curiae had been appointed for him by the trial judge with a limited role. Although Esseghaier did not make submissions about whether jurors should be challenged for cause or about the questions they should be asked, the questions the trial judge ruled would be asked were as much about him as Jaser. Esseghaier made no application in respect of the process for trying such challenges, whether the triers should be rotating or static, or about what jurors should be excluded during the process. He did not make specific submissions about how Jaser's application should be determined.

[8] The trial judge ruled that he had no common law discretion or inherent jurisdiction[3] to exclude unsworn jurors during a challenge for cause tried by rotating triers. He held the discretion to do so had been removed when ss. 640(2.1) and (2.2) of the Criminal Code were enacted, which provided that all unsworn and sworn jurors could be excluded, but only where static triers were used. He also held that if he had such a discretion he would not exercise it because it would be wrong to make an order limited to the exclusion of only unsworn jurors when the Criminal Code, in s. 640(2.1), provided a "full and effective statutory remedy" of excluding sworn and unsworn jurors. He instead ordered that all jurors, unsworn and sworn, be excluded under s. 640(2.1) and that challenges for cause be heard and determined by static triers. The jury selected by this process then tried the charges against both appellants.

[9] Decisions of this court rendered subsequent to the trial judge's ruling on the jury selection process make it clear that he erred when he held he had no common law discretion to exclude unsworn jurors while rotating jurors tried the challenges for cause. Although at the time of his ruling there was a split in trial level case law about the existence of that discretion, this court's jurisprudence subsequently settled that issue in the opposite manner to the way the trial judge did. No party challenges that conclusion. The issue on this appeal is the extent and effect of the error.

[10] The appellants argue that they are entitled to a new trial as the error involved a fundamental right of the appellants about the process by which the jury was selected and therefore its proper constitution. They argue that this type of error cannot be cured by the curative proviso in s. 686(1)(b)(iv) of the Criminal Code.

[11] The Crown argues that the error did not deprive Jaser of an option for jury selection to which he was entitled because the trial judge said that even if he had the discretion to order what Jaser sought he would not have done so. Moreover, Jaser asked, in the alternative, for the static trier procedure that was implemented. Esseghaier is similarly disentitled to relief as he did not participate in the jury selection process by his own choice.

[12] For the reasons which follow, I would allow the appeal.

[13] Contrary to the Crown's submissions, the trial judge's alternative holding, that if he had a discretion to exclude unsworn jurors while using rotating triers he would not have exercised it, was the product of a legally erroneous view of the nature and scope of the discretion. The circumstances for the exercise of the discretion were present.

[14] Nor would I give effect to the Crown's arguments that Jaser cannot complain because he indicated he would make a s. 640(2.1) application if the court ruled it did not have the discretion he was seeking to have exercised, or that Esseghaier's non-participation disentitles him to relief.

[15] There are three procedural options for a challenge for cause: (1) rotating triers with no one excluded from the courtroom while challenges are heard and determined; (2) rotating triers with unsworn jurors excluded from the courtroom;[4] and (3) static triers with sworn and unsworn jurors excluded. While the court has a discretion whether to order exclusion when the accused seeks to invoke an option that involves it, pursuant to the Criminal Code the accused has the right to choose which option to invoke. A wrongful deprivation of an option the accused properly seeks to invoke results in an improperly constituted jury.

[16] The trial judge's errors deprived Jaser of the option which he had properly sought to invoke, rotating triers with unsworn jurors excluded from the courtroom. Jaser's alternate position did not reflect a change of mind or a withdrawal of what he had originally sought; it was simply a choice between the remaining two options when the one he had sought was improperly denied. In these circumstances the procedure implemented, static triers, flowed directly from those errors.

[17] Esseghaier refused to meaningfully participate in the challenges for cause (and all other aspects of the trial), but that does not mean it does not matter what method was used to determine those challenges. He never gave up his right to rotating triers as he never invoked the alternative of static triers. One jury was selected for both appellants, the challenge for cause questions pertained to both, and the trial judge properly recognized that Esseghaier would have the benefit of any successful challenges for cause by Jaser's counsel. In the circumstances of this case it cannot be said that a jury improperly constituted for one accused was properly constituted for the other.

[18] Nor is this a case in which the curative proviso in s. 686(1)(b)(iv) of the Criminal Code is applicable.

II. Analysis

A. The Law as Currently Stated

[19] Because of the nature of the issues in this appeal, it is helpful to review what occurred in this case through the lens of the law as subsequently stated by this court.

(i) Rotating Triers and Static Triers

[20] The Criminal Code permits challenges for cause on the basis that the juror is not impartial: s. 638(1)(b).

[21] Section 640 of the Criminal Code deals with the procedure for hearing and determining challenges for cause. In 2008, the Criminal Code was amended to add ss. 640(2.1) and (2.2). At the time of trial, in relevant part, s. 640 of the Criminal Code provided as follows:

(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.

[22] Section 640(2) is the default rule. The accused need do nothing to be entitled to rotating triers. Unless an application is brought, and an order is made under s. 640(2.1), challenges for cause are determined by rotating triers, that is, the two jurors who were last sworn or if none have been sworn, two persons present who are appointed by the court for that purpose: R. v. Husbands, 2017 ONCA 607, 353 C.C.C. (3d) 317, leave to appeal refused, [2017] S.C.C.A. No. 364, at para. 37.

[23] On the other hand, static triers will be used only if the accused seeks a specific order. Only if an application is made by the accused resulting in an order under s. 640(2.1) for the exclusion of all sworn and unsworn jurors, is s. 640(2.2) triggered. This provision requires the appointment of two static triers, that is, two fixed persons who determine whether challenges are true until the entire jury is empaneled, but who do not themselves become jury members.

[24] Thus, unlike rotating triers which are the accused's right without the need to take any action, for static triers to be used, there are preconditions. First, there must be an application under s. 640(2.1) by the accused for the exclusion of all sworn and unsworn jurors during the hearing and determination of challenges for cause. Second, the application must succeed and an order under s. 640(2.1) must be made. As this court stated in Husbands: "No application. No static triers. An unsuccessful application. No static triers.": at para. 37.

(ii) The Accused's Option

[25] As the preconditions to static triers can only be initiated by the accused, the result is that the method of trying challenges for cause – rotating triers or static triers – is a function of the accused's choice. If the accused does not invoke the procedure for static triers, the result will be rotating triers. And only the accused may make a s. 640(2.1) application which can lead to the appointment of static triers. The Crown may not. Nor can the Court make orders under ss. 640(2.1) and (2.2) in the absence of an application by the accused or its "functional equivalent". Whether there has been an application by the accused invoking the option that will involve static triers is determined not only by whether a formal application has been made, but by looking at what the accused in substance has asked for; in other words, it is assessed on a substance over form basis: Husbands, at paras. 34, 38-39, 41 and 44-49. If the accused does not, on a substance over form basis, invoke the option of static triers, the result will be rotating triers.

(iii) The Options and Their Content

[26] Prior to the 2008 amendments it was accepted that, although the Criminal Code was silent about exclusion of any jurors from the courtroom when rotating triers were determining challenges for cause, the trial judge had a common law discretion to order the exclusion of unsworn jurors. This discretion was exercised when it was necessary to preserve the impartiality of the unsworn jurors, which may have otherwise been compromised if they were present to hear questions put to and answers given by other jurors before they themselves were questioned: R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at paras. 11 and 22.

[27] In 2016, in Grant, this court held that the 2008 enactment of ss. 640(2.1) and (2.2) did not oust the common law discretion: at paras. 34, 37 and 39. As this court said in 2017 in Husbands, the 2008 amendments did not "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.... [or] 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.": at paras. 35-36; see also: paras. 31-32. Exclusion of sworn and unsworn jurors under s. 640(2.1), and its consequence, static triers under s. 640(2.2), added an alternative procedure; it did not replace what pre-existed: at para. 35.

[28] Accordingly, there are, properly considered three options for proceeding with a challenge for cause, two involving rotating triers and one static triers:

a. rotating triers as provided in s. 640(2) of the Criminal Code with no one excluded from the courtroom during the hearing and determination of the challenges;

b. rotating triers as provided in s. 640(2) of the Criminal Code with unsworn jurors excluded from the courtroom pursuant to the common law discretion if the accused requests and the court in its discretion so orders;[5] and

c. sworn and unsworn jurors excluded from the courtroom if the accused makes application for that exclusion under s. 640(2.1) and the court determines to grant it in which case static triers are used pursuant to s. 640(2.2) of the Criminal Code: R. v. Murray, 2017 ONCA 393, at para. 60.

(iv) Factors Relevant to Choosing the Option

[29] There can be good reasons for preferring rotating triers to static triers that could inform an accused's decision as to which option to invoke. In Grant, this court noted, at para. 21:

Using rotating triers benefits the process of selecting the jury in two ways: by avoiding the risk the process could be tainted by a single static juror who does not properly assess the partiality of prospective jurors; and by promoting a sense of responsibility in individual jurors and a sense of cohesiveness in the jury chosen. These potential benefits are particularly important to the accused. [Emphasis added]

[30] On the other hand, there can be advantages to the alternative procedure, including the broader exclusion that will be in place if static triers are used. In Grant this court stated, also at para. 21:

On the other hand, if rotating triers are used, the sworn jurors could be tainted by the answers to a challenge for cause given by a prospective juror; if static triers are used, none of the members of the jury can be tainted by answers given by any other prospective juror.

[31] In considering these comparisons, two points must be kept in mind. First, given that it is the accused who has the option to invoke the method of selecting triers, it is the accused who initially balances these perceived advantages in deciding which option to seek to invoke. Second, both the category of triers and the extent of exclusion must be considered together. If rotating triers are to be used, all sworn jurors cannot be excluded because rotating triers are sworn jurors – they must be present to hear and determine challenges. Accordingly, if an accused wants rotating triers, the accused cannot seek exclusion of all jurors; the accused can only seek exclusion of unsworn jurors. That is the extent of that option.[6]

B. The Facts Leading up to The Trial Judge's Jury Selection Procedure Ruling

[32] It is not in dispute that challenges for cause of prospective jurors in this case were warranted. As the trial judge noted the case was referred to in the media, and even in public statements by politicians, as the "Via Rail conspiracy". The trial had attracted a high public profile, in a climate of public concern about terrorism and Islamic extremism: R. v. Jaser, 2014 ONSC 7528, at para. 8 ("Jaser (Jury Selection Ruling)").

[33] The trial judge ultimately ruled six questions with two preambles to be appropriate for the challenges for cause. The questions show the nature of the potential concerns the challenge for cause procedure was to address. I reproduce them below:

Chiheb Esseghaier and Raed Jaser are charged with terrorism-related offences. Among other things, the prosecution alleges that they planned to de-rail a passenger train. The prosecution alleges that their actions were motivated by Islamic extremism.

1. Have you seen, heard or read anything about this case in any form of media, for example, from the radio, the television, the internet, newspapers or magazines, or through discussions with others?

2. As a result of anything you have seen, heard or read, have you formed an opinion about the guilt or innocence of either or both of the accused?

3. (If applicable) Despite any opinion you may have formed, would you be able to set that opinion aside and decide the case based only on the evidence at trial and the instructions of the trial judge?

As His Honour will tell you, in deciding whether or not the prosecution has proved the charge against an accused, a juror must judge the evidence presented at trial without bias, prejudice or partiality.

1. The two men charged are members of a visible minority. Would your ability to judge the evidence in this trial without bias, prejudice or partiality, be affected by the fact that the persons charged are members of a visible minority?

2. The two men charged are Muslim. Would your ability to judge the evidence in this trial without bias, prejudice or partiality, be affected by the fact that the persons charged are Muslim?

3. Finally, would your ability to judge the evidence in this trial without bias, prejudice or partiality, be affected by the fact that the persons charged are Muslims who are alleged, in part, to have planned terrorist attacks on non-Muslim targets or victims?

Jaser (Jury Selection Ruling), at para. 11.

[34] On November 27, 2014, counsel for Jaser and the trial judge discussed jury selection, including the procedure to try challenges for cause. Counsel for Jaser made it clear that no request for static triers was being made. He stated: "We are not making that request [for static triers].… [W]e're not applying to have both sworn and unsworn [jurors] excluded pursuant to either (2.1) or (2.2)." Counsel for Jaser was clearly interested in having unsworn jurors excluded while challenges for cause were determined by rotating triers. Counsel for Jaser answered "Yes" to the trial judge's question: "You want sworn jurors to sit there and watch the, the challenge for cause go on?". (On the law, as it now has been settled, this was an available option to pursue).

[35] The trial judge was candid with counsel on November 27, 2014 that his view was that the 2008 amendments had removed the common law discretion to exclude unsworn jurors while using rotating triers. The trial judge said that he had already issued rulings on this legal point in other cases, that the trial decision in R. v. Riley (2009), 247 C.C.C. (3d) 517 was to be followed, rather than a contrary trial level decision, R. v. Sandham (2009), 248 C.C.C. (3d) 46. (This court's subsequent decisions settled that issue in line with Sandham). He said that counsel for Jaser was "going to have a bit of an uphill battle" persuading him otherwise.

[36] A formal application respecting jury selection issues, including the procedure to be used was scheduled to be heard on December 9, 2014.

[37] Esseghaier had by this point made it clear that he did not recognize Canadian law and wanted to be tried under the Holy Qu'ran. He refused to be represented by counsel who would follow the Criminal Code rather than the Holy Qu'ran. In light of this, the trial judge appointed amicus on April 11, 2014 for the limited role of responding to the trial judge's need for relevant submissions on contested, uncertain, complex, and important points of law or of fact, but not for the purpose of assisting in Esseghaier's defence: R. v. Jaser, 2014 ONSC 2277, at paras. 39-43 ("Jaser (Amicus Ruling)").

[38] Despite the appointment of amicus, Esseghaier remained self-represented: Jaser (Amicus Ruling), at para. 43. The trial judge noted when he appointed amicus that Esseghaier did not want "the benefit of any success that (counsel for Jaser) might achieve, on behalf of Jaser, on any pre-trial Motions.… [and] does not want this work to have any impact on his own case.": Jaser (Amicus Ruling), at para. 17.

[39] On November 27, 2014, the trial judge discussed with amicus whether he needed to be present on December 9, 2014 when the application about jury selection was to be argued. Amicus advised that the issue "impacts on Mr. Esseghaier, obviously" but he could not "define" (sic) Esseghaier's wishes. Amicus expressed the view that the positions to be advanced by counsel for Jaser would help Esseghaier as he thought Jaser and Esseghaier "are in the same boat" as far as concerns about jury selection go. The trial judge suggested that Jaser's counsel would "cover the field adequately" but left the decision, as to whether to attend on December 9, 2014 to amicus, offering not to take up his time unless he had something to add that they had missed.

[40] Jaser filed a factum in relation to the jury selection procedure issue on December 5, 2014. It requested an order excluding unsworn jurors from the courtroom during the challenge for cause process while rotating triers were used, noting that the "use of rotating triers is mandated by s. 640(2) of the Criminal Code".

[41] Jaser's factum for the jury selection application, in a section entitled "Rotating versus Static Triers" stated that the use of rotating triers was statutorily mandated and cited the benefits of using rotating triers. It argued that the court had an inherent jurisdiction, in its discretion, to order the exclusion of unsworn jurors while using rotating triers in the same manner as pre-existed the 2008 amendments, that the enactment of the 2008 amendments had not displaced that discretion, and that discretion should be exercised here to preserve juror impartiality. It stated that Jaser was not applying "pursuant to subsection (2.1) for the exclusion of both sworn and unsworn jurors", that such an application was a precondition for using static triers, and that Jaser "has not sought an order under subsection (2.1)", and therefore, there was no jurisdiction to appoint static triers and Jaser was entitled to rotating triers.

[42] Jaser's factum then stated that:

"If, but only if, this Honourable Court is of the view that subsection (2.1) displaces its inherent jurisdiction to order the exclusion of unsworn jurors during the challenge for cause process, the Applicant [Jaser] will make an application pursuant to subsection (2.1) in order to preserve juror impartiality." [Emphasis added.]

[43] The jury selection application was heard on December 9, 2014. In oral submissions, counsel for Jaser described her position seeking exclusion of unsworn jurors and the use of rotating triers as a balance of a number of factors including some protection against partiality and the "value … of having the jury participate in its own selection". She described the intention to bring an application under s. 640(2.1) as "very much our alternate position"; an option to be exercised only if faced with otherwise having "all jurors present for the entire selection process".

[44] On December 9, 2014, amicus was not present for oral argument. There is no indication in the record that amicus expressed any view about the statement in Jaser's factum that an application would be brought under s. 640(2.1) under certain circumstances. The circumstances in which the application would be brought have been clearly stated above.

[45] Esseghaier was present for the application by video on December 9, 2014. After Jaser and the Crown had made submissions the trial judge asked Esseghaier if he had any submissions. His response did not relate to the jury selection process.

C. The Trial Judge's Jury Selection Ruling and the Empanelment of the Jury

[46] The trial judge dismissed Jaser's application to exclude unsworn jurors. He held the only route to exclusion was to exclude sworn and unsworn jurors both under s. 640(2.1) which together with s. 640(2.2) had removed the court's pre-2008 discretion to exclude unsworn jurors while using rotating triers to preserve impartiality: Jaser (Jury Selection Ruling), at para. 42.

[47] The trial judge treated the indication in Jaser's factum and in his dialogue with counsel, that in the event of such a ruling Jaser would apply under s. 640(2.1), as the application itself. He made an order excluding all sworn and unsworn jurors and requiring the appointment of static triers. To make that order, he was satisfied that such an exclusion order was "necessary to preserve the impartiality of the jury": s. 640(2.1); Jaser (Jury Selection Ruling), at paras. 42-44.

[48] The trial judge stated that even if he had the discretion to exclude unsworn jurors with rotating triers he would not exercise that discretion, since "it would be wrong to make such a limited and ineffective common law order, when a full and effective statutory remedy was readily available, pursuant to s. 640(2.1).": Jaser (Jury Selection Ruling), at para. 46. He felt that a limited order protecting only prospective jurors from tainting would ignore the danger of tainting sworn jurors, which could be addressed under the statutory remedy: Jaser (Jury Selection Ruling), at para. 45.

[49] After the trial judge made his jury selection ruling, Esseghaier was provided with a memorandum by the trial judge which, among other things, stated that if Esseghaier wished to challenge a juror for cause and he satisfied the trial judge such a challenge was appropriate, he could submit proposed questions for the trial judge to rule upon. The memorandum also advised Esseghaier that Jaser had been permitted to challenge prospective jurors for cause and that "[y]ou, of course, will have the benefit of any of these challenges, if they are successful." It also described the static trier procedure the trial judge ordered.

[50] The jury was selected pursuant to the procedure the trial judge ordered. Jaser through counsel participated in the challenges. Esseghaier did not participate in the challenges.

D. The Extent of The Trial Judge's Error

[51] The parties agree that the trial judge erred when he held that he lacked common law discretion to order exclusion of unsworn jurors while rotating jurors tried challenges for cause, and that ss. 640(2.1) and (2.2) removed the discretion that had existed before those provisions came into force. That holding is contradicted by this court's subsequent decisions, starting with Grant. The parties disagree, however about the extent of that error and its effect. Because the extent of the error may impact its effect, I discuss the extent of the error first.

[52] The Crown does not agree that Jaser's application for exclusion of unsworn jurors while using rotating jurors would, on a correct view of the law, have necessarily been granted. The Crown relies on the fact that the trial judge stated that even if he had a discretion he would not have exercised it to grant the application for exclusion of unsworn jurors and rotating triers.

[53] I do not agree with the Crown's position. In making the s. 640(2.1) order which he did, the trial judge was satisfied that exclusion was necessary for the preservation of impartiality of jurors. Preservation of impartiality is a relevant consideration in an application for exclusion of unsworn jurors while using rotating triers as well. The trial judge however effectively held that since a s. 640(2.1) order would do a better job of preserving impartiality by excluding both sworn and unsworn jurors, an order for exclusion of unsworn jurors while using rotating triers should not be made. There are several problems with this.

[54] First, the discretion, properly viewed, was not ousted, circumscribed, or altered in any way by the enactment of s. 640(2.1): Husbands, at para. 35. Yet the trial judge's approach was to compare s. 640(2.1), which he considered to be a "full and effective statutory remedy", to the more limited exclusion available under the discretion, and to consider the very existence of s. 640(2.1) a sufficient reason not to exercise the common law discretion. This treats the enactment of s. 640(2.1) as ousting, circumscribing, and altering the common law discretion.

[55] Unless the accused has applied under s. 640(2.1), granting an order under s. 640(2.1) is not an option for the court. Jaser's indication that he would apply under s. 640(2.1) was conditioned on the court determining it lacked the jurisdiction to order the exclusion of unsworn jurors while using rotating triers. A consideration of whether a discretion to do so should be exercised had to be premised on the existence of the jurisdiction and therefore no s. 640(2.1) application by Jaser. It was an error of law for the trial judge to refuse to exercise a discretion based on a view that a remedy not sought by Jaser would have better achieved his ends. Approaching the matter in that manner is inconsistent with the existence of the option of using rotating triers with unsworn jurors excluded, a jury selection method the accused has the right to invoke.

[56] Further, the trial judge gave no consideration to the fact that choice of rotating triers necessarily precludes excluding all sworn and unsworn jurors. As long as the accused wishes rotating triers, it is beside the point to focus on the advantages of full exclusion – those are not advantages that can be available with rotating triers. Jaser's argument noted the benefits of rotating triers, particularly the benefit of the jury participating in its own selection. That benefit, unavailable if all jurors are excluded, was identified by Jaser's counsel as a reason he was seeking the exclusion of unsworn jurors only, and has been identified by this court in Grant as a benefit that is particularly important to the accused. The discretion to exclude unsworn jurors while using rotating triers cannot properly be refused on the basis that there is a better way to ensure jury impartiality, that is, by the exclusion of all jurors, when doing so negates the ability to use rotating triers. This approach makes the discretion unavailable.

[57] Finally, Esseghaier had not brought a s. 640(2.1) application. Amicus had expressed the view on November 27, 2014 that he thought the position taken on behalf of Jaser would "help" Esseghaier, but at that point the only position Jaser's counsel had expressed was for rotating triers with exclusion of unsworn jurors. At the time, counsel for Jaser had stated that he was not applying under s. 640(2.1). Esseghaier himself had said nothing to indicate he was in favour of any method of jury selection, let alone that contemplated by s. 640(2.1).

[58] Accordingly, Esseghaier's rights were the default rights in s. 640(2), namely, to rotating triers. Leaving aside the issue of whether, if there are two accused and one applies under s. 640(2.1) and the other does not, the default rights of one accused to rotating triers must always trump the other accused's application under s. 640(2.1), the default rights of one accused are at least a factor to be considered. Granting Jaser's application for exclusion of unsworn jurors while using rotating triers would have been consistent with Esseghaier's default right to rotating triers. The trial judge gave no consideration to this.

[59] Accordingly, in my view, the extent of the trial judge's error is this: he erred in holding that the pre-existing discretion to order exclusion of unsworn jurors while challenges for cause are tried by rotating triers had been removed, and he erred in stating that he would not have exercised the discretion in favour of exclusion of unsworn jurors with rotating triers even if he had it. The result is, on the correct legal approach, Jaser's application to exclude unsworn jurors with rotating triers should have been granted, and the trial judge erred in not doing so.

[60] Having defined the extent of the error I turn to the arguments about its effect.

E. The Effect of the Error

(i) Positions of the Parties

[61] Jaser argues that the effect of the trial judge's error was an improperly constituted jury; the result of such an error is that the verdicts arrived at by a court composed with that jury cannot stand. The decisions of this court which have set aside verdicts where a jury was selected by static triers without a proper choice by the accused of that option are applicable, namely: R. v. Noureddine, 2015 ONCA 770, (2015) 128 O.R. (3d) 23 and Husbands. Jaser argues that he made no valid s. 640(2.1) application; the trial judge gave effect to his notice that he would bring such an application under s. 640(2.1) on the basis of legal errors which deprived Jaser of what he really wanted and was entitled to – his statutory right to rotating triers with unsworn jurors excluded pursuant to a proper exercise of the common law discretion to do so.

[62] Amicus argues that Esseghaier made no application under s. 640(2.1). He did nothing that was the functional equivalent of such an application. Moreover, his default right to rotating triers was not considered by the trial judge when he ordered static triers. The effect is that the jury was improperly constituted because static triers were improperly appointed in respect of Esseghaier. In any event, if the jury was improperly constituted for Jaser, it was improperly constituted for both, Jaser and Esseghaier.

[63] Jaser and amicus argue that the curative proviso in s. 686(1)(b)(iv) of the Criminal Code cannot be invoked to preserve the verdict.

[64] The Crown argues that the jury was properly constituted for Jaser because Jaser made an alternative application under s. 640(2.1). The trial judge's error did not deprive Jaser of a choice between his two statutory options: rotating triers or static triers. Recognizing that this court has dealt with a number of cases where the trial judge entertained a mistaken view about the existence or extent of the common law discretion, this case has the strongest similarities to those which have allowed verdicts to stand, such as Grant, R. v. Atkins, 2017 ONCA 650, 137 O.R. (3d) 1, leave to appeal refused, [2018] S.C.C.A. No. 216, and Murray. Moreover, this is a case where the curative proviso could be applied.

[65] The Crown also argues that the jury was properly constituted for Esseghaier because he made no application to challenge for cause. His failure to make a s. 640(2.1) application did not affect whether the jury was properly constituted for him. Jaser made an alternative s. 640(2.1) application and since Esseghaier did not participate in the challenges for cause his active concurrence to that alternative application was unnecessary.

(ii) Discussion

[66] All parties agree that the cases from this court that have dealt with the results of mistaken views about jury selection procedure fall along a range. The facts of each case matter as they determine whether the case falls within or outside a basic principle.

[67] The principle is 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", the verdict cannot stand and s. 686(1)(b)(iv) of the Criminal Code (the curative proviso) does not apply: Husbands, at paras. 40-41; Noureddine, at paras. 57 and 68. Noureddine and Husbands not only lay down that principle, they are examples of where it was applied.

[68] In Noureddine, the accused brought an application for rotating triers and the trial judge purported to exercise an inherent jurisdiction, without any application by the accused, and over express objection of the accused, to order static triers. This court held that there could be no inherent jurisdiction that contradicted the requirements of the Criminal Code which provide that it is the accused who has to make an application under s. 640(2.1) before static triers can be ordered. The result of the error was to render the court improperly constituted because the accused was deprived of his statutory right in the absence of an application under s. 640(2.1) to be tried by a jury selected by rotating triers: at paras. 53-57.

[69] In Noureddine, the court considered whether the curative proviso in s. 686(1)(b)(iv) of the Criminal Code could be applied. That provision states:

686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the 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

[70] The Court gave two reasons why this type of error is beyond the reach of the curative proviso. First, an error in the method of selecting the jury leads to an improperly constituted court, and thus falls outside the curative proviso, which is available to cure errors by a properly constituted court: at paras. 52-53 and 61.

[71] Second, the curative proviso can only be applied where no prejudice to the accused results from the error. Prejudice means more than actual prejudice which, in this type of situation, is not possible to gauge as it is not possible to say whether the improper use of static triers had any actual effect on the constitution of the jury ultimately selected to try the accused. Prejudice includes prejudice to the due administration of justice, which the court found to arise from this type of error:

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 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.

Noureddine, at para. 64.

[72] In Noureddine, the court noted as important to its analysis of the applicability of the curative proviso that the accused "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 used if an accused had agreed to the use of static triers.… An accused's willingness to use static triers may be enough to render the court properly constituted during the selection process.": para. 57. In Noureddine, the court gave an example that this sort of situation could arise where an accused agreed to the use of static triers but failed to make a formal application: para. 57.

[73] In Husbands, the trial judge ordered static triers in the absence of a defence application and in the face of express, repeated statements by defence counsel that no application under s. 640(2.1) was being brought and counsel wanted rotating triers: at paras. 45 and 50. The verdicts were set aside; the curative proviso could not salvage what occurred: para. 49.

[74] The error that occurred here had the same effect as what occurred in Noureddine and Husbands. In Noureddine and Husbands, the error imposed static triers on accused who did not want them, did not apply for them, and expressly wanted rotating triers with unsworn jurors excluded. The result was to deprive the accused of the option of having rotating triers.

[75] In this case, the trial judge's error deprived Jaser of his option of selecting rotating triers with unsworn jurors excluded. When Jaser invoked this option, he did so clearly preferring it to static triers in part because it involved rotating triers, his statutory right, and in part because it involved exclusion under the common law discretion. He made it clear that absent a ruling that the option did not exist, a ruling that was in error, he disavowed static triers and was expressly making no application that would trigger their appointment.

[76] The error forced Jaser to elect between the two remaining options, rotating triers with no one excluded or static triers with sworn and unsworn jurors both excluded, when he ought not to have had to do so. This does not equate to a willingness to use static triers with a mere absence of a formal application, the situation the court used in Noureddine to describe where the curative proviso might apply.

[77] The error also deprived Esseghaier of his default right to rotating triers, which he had invoked by doing nothing to select static triers: R. v. Swite, 2011 BCCA 54, 268 C.C.C. (3d) 184, at para. 54.

[78] But the Crown says other case law from this court shows the principle applied in Noureddine and Husbands is not applicable where on a realistic view of what occurred each appellant "got what he wanted" in terms of the jury selection procedure. In Jaser's case his "alternate position" that he would apply under s. 640(2.1) reflected what he wanted in the state of affairs then existing, that is, the realistic eventuality at the time that the trial judge might rule as he did. In Esseghaier's case, considering that he distanced himself from the challenge for cause process completely, it cannot be said that he did not get what he wanted.

[79] The "accused got what the accused wanted" jurisprudence starts with Grant. In Grant, the trial judge ordered the exclusion of all jurors, sworn and unsworn, and appointed static triers. There was no formal application under s. 640(2.1). The defence had originally requested rotating triers with the "panel out". The trial judge recognized that he had a discretion to so order but was given no reason by defence counsel to make that order. Although he took a narrower view of the discretion than he ought to have, the "defence had an onus to persuade him that the panel should be excluded.… [and] did not put forward any reason for doing so.": para. 49.

[80] This court held that the trial judge's exercise of discretion should not be interfered with: para. 49. It went on to state, at paras. 50-51:

Having been given no reason for using rotating triers but excluding unsworn jurors, the trial judge gave counsel a choice: rotating triers with the panel in, or static triers with the panel out. After briefly consulting with each other, defence counsel reversed their earlier position and chose static triers. They evidently wanted the jury panel out. Counsel for Grant summed up the defence's position: "[I]f we are stuck with the legislation and the Court does not want to exercise discretion to allow rotating triers and the jury out, then we'll take the static triers."

The defence did not make a formal application under s. 640(2.1) to have the sworn and unsworn panels excluded, and to have the trial judge appoint static triers. But I would treat their decision to choose static triers as, in effect, an application to exclude both unsworn and sworn jurors. Otherwise form would supersede substance. Had the trial judge asked one additional question, "Are you then applying for an order under s. 640(2.1)", defence counsel would undoubtedly have answered "yes".

[81] In Grant, the jury was found to have been properly constituted: para. 52.

[82] Although the Crown relies heavily on Grant, in my view, it does not support the Crown's position. In Grant, the trial judge recognized that he had a discretion to exclude unsworn jurors with rotating triers and this court found he had made no reversible error in refusing to exercise it. The choice he then put to the defence – rotating triers with no exclusion, or exclusion of all jurors and static triers, and the defence choice of static triers – was not the product of legal error on the trial judge's part, but of the defence failure to provide any reason for using rotating triers excluding unsworn jurors. In the case at bar, the trial judge erroneously concluded he had no such discretion, and his conclusion that if he had a discretion he would not exercise it was flawed. The "choice" of static triers with all jurors excluded, which Jaser had given notice he would apply for if the court held it did not have the discretion to use rotating triers and exclude unsworn jurors, was a choice borne of the trial judge's legal error, rather than a failure of Jaser to support a proper exercise of the common law discretion for the option he had invoked.

[83] Nor does the decision in Atkins assist the Crown. The argument was made there that the trial judge had erroneously considered that he no longer had the discretion to use rotating jurors and exclude unsworn jurors. The argument did not succeed. The circumstances were very different from those present here.

[84] In Atkins, the defence, having raised a concern about juror impartiality did not request the exclusion of prospective jurors from the courtroom while using rotating triers. No mention of rotating triers was made at all. The only request was to invoke s. 640(2.1), which the trial judge granted:

Despite familiarity with the previous practice of discretionary exclusion and rotating triers, none of the experienced counsel mentioned, much less suggested or sought, trial of the challenge by rotating triers with the panel excluded. No one objected to static triers. The only reasonable inference in the circumstances is that what mattered most to counsel was that the prospective (unsworn) jurors be excluded, not the manner in which the triers of the challenge were selected … Trial counsel sought exclusion of prospective jurors during the challenge for cause. They achieved the result they sought by expressly invoking s. 640(2.1). They made no submissions about the selection procedure for the triers of the challenge, saying nothing to indicate a preference for rotating over static triers. They cast their lots under s. 640(2.1). It is too late now to reverse field.

Atkins, at paras. 80 and 85.

[85] There is no similarity between Atkins and this case. Jaser sought rotating triers with unsworn jurors excluded, expressed a clear preference for rotating triers, and made submissions on why rotating triers were preferable and on why the discretion existed, an argument which was correct. To the extent Jaser indicated he would apply under s. 640(2.1), it was only in the circumstances of a jury selection procedure option that did exist being held not to exist. Jaser did not achieve the result he sought, in the sense used in Atkins. Nor are the circumstances in Atkins applicable to Esseghaier.

[86] Nor in my view is the Crown assisted by this court's decision in Murray, a case that the court considered to be close to the line: para. 56. In Murray, the trial judge had erred by indicating that in a challenge for cause there were two options: rotating triers with no one excluded or static triers with sworn and unsworn jurors excluded. Defence counsel had selected static triers when told these were his two options. Although there was a third option, rotating triers with the unsworn jurors excluded from the courtroom, "[a]t no point did defence counsel object to the use of static triers or say that he did not wish static triers.… [D]efence counsel's primary request was that unsworn prospective jurors be excluded from the courtroom during the trial of the challenge for cause.… [D]efence counsel never rejected the use of static triers.… [H]e appeared satisfied with the trial judge's proposal about how the static triers would be selected.": paras. 57, 63 and 65.

[87] The circumstances here differ markedly from those in Murray. Jaser had rejected the use of static triers by arguing in favour of rotating triers and expressly disclaiming any application for them except in a circumstance that is the result of the error in question. Whereas in Murray the primary request was exclusion, here Jaser's request was also premised on the advantages of rotating triers themselves.

[88] Two other cases in which the Noureddine / Husbands principle was not applied because the defence "got what it wanted" are instructive. They also present markedly different situations from those present here.

[89] In R. v. Mansingh, 2017 ONCA 68, defence counsel stated that he wanted prospective jurors excluded. Counsel was told by the trial judge that his preference was for static triers but was invited to make submissions on rotating triers. Counsel responded that he mainly wanted the panel excluded and "actually like[d]" static triers: at para. 8. Defence counsel went on to discuss with Crown counsel the steps to vet static triers and after the trial judge indicated the triers could be vetted stated: "then I think that would accommodate my biggest concerns": at para. 9. An appeal based on the use of static triers without a formal application under s. 640(2.1) failed on the basis that the defence "got what it wanted". That conclusion is inapplicable here.

[90] Also different from this case is R. v. Kossyrine, 2017 ONCA 388, 138 O.R. (3d) 91, where the court stated at para. 28:

In the case before us, as in Mansingh, Kossyrine wanted static triers. Unlike in Noureddine, Kossyrine did not ask for rotating triers or object to the trial judge's practice of using static triers. His sole concern was that the static triers the trial judge identified be properly vetted. This court's conclusion in Mansingh is entirely appropriate in this case: "[c]ounsel got what he wanted and, in substance, if not in form, made the requisite application under s. 640(2.1)". The jury in this case was thus properly constituted.

III. Conclusion

[91] The trial judge's error here took one of the three options, the exclusion of unsworn jurors while using rotating triers, away from Jaser. Jaser sought that option. He made a case for it and was entitled to it. Unlike the cases the Crown relies upon, it did not become unavailable to him because he failed to mention it, failed to express a preference for it, failed to support a proper exercise of discretion to obtain it, failed to object to static triers, or because he actually liked static triers. On a substance over form basis, what Jaser wanted was this option. He did not get it.

[92] I would not give the alternative request of Jaser for static triers the effect the Crown contends for. It became operative only due to a legal error by the trial judge, one Jaser had attempted to prevent from occurring. At the point that his notice that he would pursue the alternative of a s. 640(2.1) application became operative, that is, the trial judge's ruling that he lacked the discretion that he in law had, Jaser had already been deprived of his preferred option to invoke a method of selecting the composition of triers that the law entitled him to select. A choice of which of the remaining options should be used, in those circumstances, cannot cure the error.

[93] Nor do I agree with the Crown that the jury was properly constituted for Esseghaier because he did not participate in the challenge for cause process. The Crown's analogy to its inability to challenge an acquittal of an accused by an improperly constituted jury, because the Crown is a bystander to the challenge for cause process, is not apt. The right to use rotating triers is a right which is personal to the accused. The improper use of static triers can only create rights in an accused to challenge convictions, not in the Crown to challenge acquittals: Noureddine, at paras. 73-87.

[94] Here, one jury was selected for both appellants. In the circumstances of this case, as the jury was not properly constituted for Jaser, it cannot be considered to have been properly constituted for Esseghaier.

[95] In my view, the curative proviso cannot be applied in this case. As pointed out in Noureddine, beyond the issue of the curative proviso's application to a question that affects the proper constitution of the jury, and thus of the court which tried the appellants, the curative proviso cannot be applied unless there was no prejudice to the accused. As in Noureddine, the question here is not actual prejudice, which in these kinds of circumstances is impossible to gauge, but prejudice to the due administration of justice flowing from the denial of a jury selection method which was in law properly invoked: Noureddine, at paras. 62-64. The type of "willingness" or agreement to the use of static triers discussed in Noureddine as a reason why the curative proviso might be applicable are not present here.

[96] I would allow the appeals, set aside the convictions and direct a new trial.

Released: August 27, 2019

"B. Zarnett J.A."

"I agree. Paul Rouleau J.A."

"I agree. C.W. Hourigan J.A."

Footnotes

[1] In amendments to s. 640 of the Criminal Code which come into force on September 19, 2019, the presiding judge will try challenges for cause: 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, s. 272.

[2] The trial judge has inherent jurisdiction to replace static triers with other static triers, but they never become members of the jury: R. v. Province, 2019 ONCA 638, at paras. 88-94.

[3] This authority has been characterized as a "common law discretion" on some occasions and as an "inherent jurisdiction" on others. The difference is of no significance to the issues here. In this decision I refer to it as a "common law discretion" or "discretion".

[4] Some courts have considered that under this option sworn jurors, other than those acting as rotating triers, could also be excluded: see the discussion in R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at para. 54. It is not necessary to decide that point in this case.

[5] See footnote 4.

[6] See footnote 4.

[7] Not Ms. Dann or Ms. Shanmuganathan, who were appointed for this appeal and appeared as amicus in this court.