COURT FILE NO.: CR-13-10000655-0000

DATE: 20141215

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RAED JASER and

CHIHEB ESSEGHAIER

Croft Michaelson Q.C., Sarah Shaikh and Marcy Henschel, for the Crown

Breese Davies, for Raed Jaser

Chiheb Esseghaier, representing himself

HEARD: December 9, 2014

REASONS FOR JUDGMENT

M.A. Code J.

A. OVERVIEW

[1] The accused Chiheb Esseghaier and Raed Jaser (hereinafter, Esseghaier and Jaser) are charged with a number of terrorism-related offences, including conspiracy to commit murder for the benefit of a terrorist group. Their trial is scheduled to commence in late January 2015 with jury selection.

[2] The present pre-trial Motion was brought jointly, by the Crown and by counsel for Jaser, seeking rulings on the following three issues relating to jury selection:

• First, whether to appoint “additional jurors” pursuant to s. 631(2.2) of the Criminal Code;

• Second, whether to permit challenge for cause in relation to pre-trial publicity and racial/religious prejudices and, if so, what questions to permit;

• Third, whether the method for determining any challenges for cause would be “fixed triers” or “static triers”.

B. THE FIRST ISSUE: APPOINTMENT OF “ADDITIONAL JURORS”

[3] The relatively new power to appoint one or two “additional jurors”, pursuant to s. 631(2.2), was enacted on June 14, 2011 as part of Bill C-2, known as the Fair and Efficient Criminal Trials Act. The legislative policy that lies behind this provision was described as follows in the Library of Parliament’s Legislative Summary, at p. 9:

Bill C-2 amends section 631 to allow for the swearing of up to 14 jurors. The amendment is in response to the increasing amount of time required to hear criminal trials, especially in the case of mega-trials. This can affect the jury’s ability to render a verdict, since it is not uncommon, especially during lengthy trials, for jurors to be discharged in the course of the trial. Such discharges can result in the size of jury being reduced to below the Criminal Code minimum requirement of 10 jurors to render a valid verdict. It may be that there are more than 12 jurors remaining when it comes time to consider the verdict. In such a case, there will be a random selection process that will determine, after the judge’s charge to the jury, which jurors will deliberate.

Also see Law Reform Initiatives Relating to the Mega Trial Phenomenon (2008), 53 C.L.Q. 421 where the various policy initiatives that led to this amendment are discussed.

[4] The statutory test for the exercise of this new power is broad and discretionary, namely, whether appointing “additional jurors” is “advisable in the interests of justice”. The trial in this case is expected to be fairly lengthy. In addition, it involves contentious issues relating to terrorism offences and Islamic extremism. These issues are currently the subject of considerable public concern and discussion in Canada, as a result of recent events. It can be anticipated that jury selection will be difficult. In addition, there is a risk of losing jurors during the course of the trial. Finally, there are sensitive witnesses who will testify in this case and whose testimony raises security issues. Careful arrangements have had to be made in order to obtain their evidence.

[5] In all these circumstances, the Crown seeks the appointment of two “additional jurors”, in order to minimize the risk of a mistrial. Ms. Davies, on behalf of Jaser, is not opposed to the Crown’s request. Esseghaier takes no position in relation to this issue, consistent with his views as to whether the Criminal Code should apply to these proceedings. See: R. v. Esseghaier and Jaser, 2014 ONSC 3885.

[6] I am satisfied that it is advisable in the interests of justice to appoint two “additional jurors” in this case. There are many circumstances that could arise, as the trial unfolds, where one or two jurors will have to be discharged. In a trial of this nature, as outlined above, the risk of a mistrial justifies appointing two “additional jurors”.

[7] Accordingly, the Order sought by the Crown pursuant to s. 631(2.2) is granted. Each accused will have two additional peremptory challenges, in accordance with s. 634(2.01), for a total of fourteen peremptory challenges each. The Crown will have twenty-eight peremptory challenges, pursuant to s. 634(4). If thirteen or fourteen jurors remain, at the end of the trial, the procedure for reducing the jury to twelve members set out in s. 652.1(2) will be followed, prior to the jury beginning its deliberations.

C. THE SECOND ISSUE: CHALLENGE FOR CAUSE

[8] The present case has been referred to as the “Via Rail conspiracy”, both in the media and in public statements occasionally made by politicians. This name is drawn from the allegations set out in Count One of the Indictment, which involve a plan to de-rail a passenger train. The trial has undoubtedly acquired a high public profile, especially in the current climate where public concerns about terrorism offences and Islamic extremism have become pronounced. In addition, some of the more recent media coverage has been unusual and, arguably, improper.

[9] In all these circumstances, Mr. Michaelson and Ms. Davies have agreed that challenges for cause are necessary and appropriate, in relation to pre-trial publicity and racial/religious prejudices. The only dispute is as to the number and the form of the questions.

[10] The law in this area is now well-settled. In brief summary, the following principles apply:

• First, there is a presumption that jurors will carry out their duties with impartiality. This presumption is based on long experience with the practice of trial by jury. Unless the presumption is rebutted, challenge for cause is not permitted;

• Second, the presumption of impartiality can be rebutted upon a showing that there is a “realistic potential for the existence of partiality” in the circumstances of a particular case. Pre-trial publicity and race-based prejudices are the most common ways in which the presumption can be rebutted;

• Third, once the presumption has been rebutted and challenge for cause has been permitted, the trial judge has considerable discretion in determining the number and form of the questions. Relevant considerations, in this regard, are whether the proposed questions will “unnecessarily … invade the privacy of the potential jurors, or unnecessarily … prolong the trial”;

• Fourth, there are two relevant issues that a challenge for cause should inquire into, namely, whether a particular source of prejudice or lack of partiality exists in the prospective juror and whether the prospective juror can set it aside. These two avenues of inquiry are often referred to as the “attitudinal component” and the “behavioural component” of lack of partiality.

See: R. v. Spence (2005), 2005 SCC 71, 202 C.C.C. (3d) 1 (S.C.C.); R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97 (S.C.C.); R. v. Williams (1998), 1998 782 (SCC), 124 C.C.C. (3d) 481 (S.C.C.); R. v. Parks (1993), 1993 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont. C.A.); R. v. Sherratt (1991), 1991 86 (SCC), 63 C.C.C. (3d) 193 (S.C.C.).

[11] Applying the above principles, there are six questions that are appropriate in the present case, in my view. The first three questions address pre-trial publicity and the last three questions address racial/religious prejudices. Both sets of questions include preambles. The six questions that I have settled on are an amalgam of what Mr. Michaelson and Ms. Davies proposed. The six questions and two preambles are as follows:

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?

[12] I will briefly set out my reasons for disallowing certain other proposed questions and terms.

[13] The areas of disagreement between the parties, in relation to pre-trial publicity, were relatively narrow. Ms. Davies submitted that two separate and additional questions should be permitted, asking whether the prospective juror had “talked about this case with anyone” or had “heard anyone talk about this case”. Dawson J. permitted these two additional questions in R. v. Ahmad et al, 2010 ONSC 256, [2010] O.J. No. 3341 (S.C.J.). In my view, these two proposed questions are linked to the first question that I have permitted, about media coverage of the case. Any discussions about the case would generally have arisen after someone sees, hears, or reads about the case in the media. Otherwise, members of the public would be unlikely to know about the case. As a result, I have amalgamated the two further questions into the first question by adding the words, “or through discussions with others”. This is the approach that was taken by Watt J., as he then was, in R. v. Gayle (2001), 2001 4447 (ON CA), 154 C.C.C. (3d) 221 at para. 13 (Ont. C.A.). It has the advantage of shortening and focusing the process.

[14] Ms. Davies also submitted that two further questions should be permitted about the strength of the prospective juror’s memory of any media coverage and about the strength of any opinion formed on the basis of that media coverage. She submitted that these two questions could be framed as multiple choices, that is, by asking whether the memory or opinion is “strong, fair, or poor”. Alternatively, the questions could be framed more simply by asking whether the memory or opinion is “strong”. In my view, there are a number of objections to this kind of question. First of all, they distract the prospective juror from the core attitudinal and behavioural issues that are addressed in the three main questions that I have permitted. Second, they invite further debate and discussion about the meaning of a prospective juror’s inevitably impressionistic answers (for example, that a memory is “faint” or that an opinion is “not firm”). Finally, they unduly prolong the inquiry. In addition, I note that questions about the strength of any racial prejudice have never been regarded as necessary and have never been included in the standard Parks question. See: R. v. Johnson, 2010 ONSC 5190, [2010] O.J. No. 3970 (S.C.J.); R. v. Borden, [2014] O.J. No. 4726 (S.C.J.).

[15] The areas of disagreement between the parties, in relation to racial/religious prejudices, were also narrow. Ms. Davies sought a further addition to the preamble, submitting that it would make the subject of racial prejudice less accusatory or threatening. The addition she sought was as follows: “For some people, this [impartiality] may be difficult because of their upbringing, experiences, or exposure to prejudicial attitudes or behaviour.” Rady J. permitted a somewhat similar addition to the standard Parks preamble in R. v. Borden, supra. In my view, this addition is neither necessary nor desirable. It unduly lengthens and complicates the standard Parks preamble, which is already long enough. It is important to get to the actual questions and a lengthy preamble runs the risk of confusing and distracting the prospective juror, requiring repetition of the question, and unduly prolonging the process. Furthermore, our now twenty year long experience with the standard Parks question has generally been regarded as successful and “there should be a solid foundation made out for any change before we embark on lengthening or complicating or otherwise altering the established process”, as Nordheimer J. put it in R. v. Johnson, supra at para. 14. I did agree with Ms. Davies that one improvement could be made to the standard Parks question, by putting the point about racial/religious prejudice first. As a result, the questions that I have permitted state at the beginning that the accused men “are members of a visible minority” and “are Muslim”, which immediately identifies the issue.

[16] Finally, Ms. Davies submitted that the Parks question should be re-framed, in order to ask whether the prospective juror is “at all unsure” as to his/her impartiality, due to the race/religion of the accused. Rady J. permitted a similar change to the standard Parks question in R. v. Borden, supra, allowing counsel to ask the prospective juror whether he/she “might be even slightly hesitant” as to his/her impartiality, due to the accused’s race. It will be recalled that the standard Parks question asks whether the prospective juror’s ability to be impartial “would … be affected” by the accused’s race/religion.

[17] In my view, there are a number of objections to this proposed revision to the standard Parks question. Once again, it seeks to depart from the tried and true experience of the courts over the past twenty years, with the standard Parks question, without any real basis for the departure. Furthermore, it frames the question in a way that invites uncertainty, distraction from the main issues, and further debate and discussion. For example, an honest juror could answer “yes” to Ms. Davies’ proposed question (“are you at all unsure …”), when he/she is only one or two percent unsure about his/her impartiality and is entirely confident that he/she can set aside such a minimal degree of uncertainty. Such a juror could be improperly excluded by the triers, out of an abundance of caution, unless follow-up questions were asked about the meaning of “yes”. Finally, I note that we instruct the triers to decide the issue of impartiality on a balance of probabilities. Framing the question on the basis of a different and lower standard is, at best, minimally probative in relation to the correct standard of persuasion. See: R. v. Douglas (2002), 2002 38799 (ON CA), 170 C.C.C. (3d) 126 (Ont. C.A.); R. v. Li (2004), 2004 18634 (ON CA), 183 C.C.C. (3d) 48 (Ont. C.A.).

[18] For all these reasons, I decided that the six questions and two preambles set out above should be permitted but that that some of the further variations and additions requested by the defence should not be permitted.

D. THE THIRD ISSUE: “STATIC TRIERS” VERSUS “ROTATING TRIERS”

[19] The third and last issue on this Motion is whether the challenges for cause that I have permitted should be decided by “rotating triers” or by “static triers”. This issue has given rise to a number of decisions in this Court, since passage of the 2008 amendments to the Criminal Code which created the “static trier” procedure. Unfortunately, the decisions of this Court are not consistent.

[20] The traditional method of deciding challenges for cause, based on alleged partiality, was with “rotating triers”. This method of determining the issue remains in the Criminal Code today in s. 640(2). Its main characteristic is that, as each juror is chosen and sworn, that juror takes on a role in trying the issue of whether the next potential juror is impartial. See: R. v. Brown (2002), 2002 41937 (ON CA), 166 C.C.C. (3d) 570 at paras. 17-19 (Ont C.A.); R. v. Vincent (2007), 2007 ONCA 546, 87 W.C.B. (2d) 761 at paras. 19 and 26 (Ont. C.A.). This traditional “rotating” method of deciding challenges for cause used to be mandatory and exclusive, as explained in Vincent.

[21] The “rotating” method of deciding challenges for cause is time consuming and repetitive, as each new pair of triers has to be instructed as to their duties. As a result, these instructions sometimes have to be repeated twelve times, while picking the jury. Challenges for cause used to be rare and exceptional. In the last twenty years, it has become a commonplace procedure. Furthermore, the requisite instructions to the triers used to be rudimentary but they are now more demanding. As a result of these two phenomena, the “rotating” method of determining challenges for cause has placed added stress on the justice system. Moldaver J.A., as he then was, commented on these developments in R. v. Douglas, supra at paras. 16 and 19, speaking for the Court:

In sum, failure to instruct the triers on the nature and importance of their task and the procedure they are to follow in arriving at their decision can have a dramatic impact on the jury selection process. It carries with it the very real risk that suitable jury candidates will be rejected and unsuitable ones accepted. These risks can lead to the selection of a jury that is neither fair nor impartial, thereby defeating the very purpose of the challenge for cause process.

Unquestionably, the prospect of repeating over and over again the same instructions to each new trier is a daunting one. Trial judges can be forgiven for viewing the process as cumbersome, repetitive, and wasteful and it is understandable that they would look for ways to speed it up. Regrettably, in some instances, this can lead to impermissible corner-cutting.

[22] An additional and far more significant difficulty with the “rotating” method of deciding challenges for cause, was that it required the sworn jurors to remain present in the court room while subsequent prospective jurors were called forward and challenged for cause. The sworn jurors would, therefore, hear everything that any completely unsuitable prospective juror might say during the challenge for cause process. Once again, when challenges for cause were exceptional, this problem rarely arose. Once challenges for cause became commonplace, as well as lengthy and time-consuming, the problem became more pronounced and gave rise to the risk of mistrials.

[23] The best example of this further problem with the “rotating triers” procedure was in the Mount Cashel Orphanage sexual abuse trials in Newfoundland. A public inquiry into the Christian Brothers, and the allegations of sexual abuse at the Orphanage, was conducted in 1989-1990. It resulted in widespread publicity, including cable television coverage of the proceedings and the publication of two books. In R. v. English (1993), 84 C.C.CC (3d) 511 (Nfdl. C.A.), jury selection began in June 1991 with challenge for cause, using the mandatory and exclusive means available at the time, namely, “rotating triers”. Goodridge C.J.N. described what happened, given the strong views that existed amongst prospective jurors concerning the Christian Brothers (at pp. 523 and 533-4 C.C.C.):

Some of the prospective jurors were obviously partial and some of these made adverse remarks heard by those jurors already selected.

The second point raised by counsel for the appellant was that the jurors as selected remained in the court-room while subsequent prospective jurors were examined. Many of these, of course, were found to be partial and their partiality was determined by the remarks which they made. Counsel contended that these remarks had the potential to influence the jurors in their decision.

The Criminal Code is silent on the question of whether the prospective jurors or the selected jurors should remain in court during the questioning of each prospective juror on a challenge for cause. In this case, the prospective jurors remained out of the court-room but the selected jurors remained in the court-room and could hear the questions and answers. They all of course had been subjected to basically the same type of questioning and must have known by the nature of the very process that some of the jurors would be partial. It should not surprise them, therefore, that some opinions adverse to the appellant might be expressed.

The process of protecting jurors from perverse influences has gone far. Jurors, of course, are excluded from voir dires and publication of evidence given at voir dires is banned for the duration of the trial. The jurors are admonished not to discuss the case among themselves or with others. The process of the challenge for cause and the trying of prospective jurors so challenged must take place and at least two jurors must always, necessarily, be present while they try a prospective juror for impartiality on a general challenge. The last juror only, unless he or she was one of the initial triers, will escape the duty of trying prospective jurors.

Each pair of jurors trying a prospective juror will hear some adverse statements. If selected jurors not trying a prospective juror remain in court, they will hear all of the adverse statements, if any, made by subsequent prospective jurors.

If the chosen jurors not trying prospective jurors are excluded from court while remaining prospective jurors are being selected, the successive pairs of triers must necessarily remain.

The only result of exclusion is that fewer jurors will hear the adverse statements. It is a matter of degree. From a legal point of view, if exposure of jurors to adverse views contaminates the jury, the contamination is no less complete by the fact that some jurors are less contaminated than others.

While it would be preferable that the chosen jurors except the triers remain out of court while subsequent jurors are picked, it is not a legal requirement.

This argument, therefore cannot be sustained. [Emphasis added.]

[24] Another good example of the risk of a mistrial, if sworn jurors remain in court during the challenge for cause process, is found in R. v. Swite (2011), 2011 BCCA 54, 268 C.C.C. (3d) 184 at paras. 21 and 22 (B.C.C.A.) where the following occurred:

At the direction of the trial judge, the panel was excluded during the challenge for cause of each prospective juror, but once a juror was sworn, that juror remained in the courtroom during the challenge for cause of subsequent jurors. Twelve jurors and two alternate jurors were sworn. During the course of selecting the second alternate juror, and in the presence of the jurors who had been selected and sworn, prospective juror number 306 stated:

JUROR 306: I have a few reasons why I’d like to be excused.

THE COURT: Mm-hmm.

JUROR 306: First reason is I have information that I know myself that proves the defendant is guilty.

This prospective juror was excused, and the trial judge gave a warning to the other jurors to disregard this person’s comments. Defence counsel moved for a mistrial, but that application was dismissed. No issue is taken with that ruling on this appeal. [Emphasis added.]

[25] As can be seen from cases like English and Swite, one means adopted by some trial judges, in order to control the risk of tainting during the challenge for cause process, was to exclude the panel from the court room. However, the Criminal Code was silent on this issue and the common law or inherent discretion to exclude the panel, or not exclude it, was entitled to significant deference on appeal. As Charron J.A. put it in R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 160 C.C.C. (3d) 493 at paras. 2 and 85 (Ont. C.A.), speaking for the Court in a case where the trial judge had refused to exclude the panel during the challenge for cause process:

The grounds of appeal against conviction relate to the challenge-for-cause process … both appellants contend that the challenge-for-cause process was fundamentally flawed because the trial judge (a) refused to exclude the jury panel during the process; (b) gave inadequate instructions to the triers;

I do not agree with the appellants’ contention that there should be any firm rule on whether the jury panel should be excluded from the courtroom during the challenge-for-cause process. This matter falls within the trial judge’s discretion in controlling the challenge-for-cause process so as to prevent its abuse and ensure that the process is fair to the prospective juror as well as to the accused person. On appeal, the trial judge’s decision is entitled to deference and should not be interfered with unless the appellant can demonstrate that the trial judge committed a clear error in principle in the exercise of his or her discretion, or that the trial judge’s decision resulted in a miscarriage of justice. In this case, I am not persuaded that there is any cause to interfere with the trial judge’s decision not to exclude the entire panel.

[26] Views differed amongst trial judges as to whether the panel should be excluded during the challenge for cause process. See, e.g. R. v. Tomlinson, [2007] O.J. No. 4743 (S.C.J.) where Archibald J. explained why he declined to exclude the panel during the challenge for cause process. Furthermore, excluding the panel of prospective jurors was, at best, a partial remedy to the problem of tainting because at least some of the sworn jurors would have to remain in court in order to act as “rotating triers”, as Goodridge C.J.N. pointed out in English.

[27] It can be seen that the traditional method of determining challenges for cause, by way of “rotating triers”, led to a number of difficulties. These difficulties became more pronounced as challenges for cause became more important and more frequent. I would summarize the problems as three-fold:

• First, the process was seen as “cumbersome, repetitive and wasteful”, as Moldaver J.A. put it in R. v. Douglas, supra. Furthermore, the failure to give sufficient instructions to each set of “rotating triers” had led to the reversal, on appeal, of a number of trials, some of which were lengthy trials. See: e.g. R. v. Douglas, supra; R. v. Li, supra; R. v. Brown, supra; R. v. Moore-McFarlane, supra;

• Second, the process gave rise to a real risk of tainting of both the prospective jurors and the sworn jurors, as illustrated by a case like R. v. English, supra. That risk could be partially remedied, by excluding the panel, but it could not remedy the problem of tainting the “rotating triers” themselves. As Goodridge C.J.N. put it in R. v. English, supra: “if exposure of jurors to adverse views contaminates the jury, the contamination is no less complete by the fact that some jurors are less contaminated than others”;

• Third, even the partial remedy of excluding the panel during the challenge for cause process was not uniformly applied by the judiciary. It was a discretionary common law or inherent power, with no clear standards, and the discretion was largely non-reviewable on appeal. See, e.g.: R. v. Moore-McFarlane, supra; R. v. Tomlinson, supra.

[28] In 2008, Parliament amended s. 640 by enacting an entirely new method of determining challenges for cause. The new method has come to be known as “static triers” and it is accompanied by the remedy of “exclusion of all jurors – sworn and unsworn”. This process is set out in two new sub-sections, as follows:

(2.1) CHALLENGE FOR CAUSE – 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) EXCLUSION ORDER – 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.

[29] It can be seen that the new procedure, enacted in 2008, has gone some distance towards solving all three of the problems associated with the old mandatory “rotating triers” procedure. First of all, the new procedure is much simpler and it is more expeditious as the “static triers” only need to be instructed once as to their duties. A practice has developed of handing the “static triers” written instructions, reading these instructions once, and then urging the triers to review the instructions again whenever they need a refresher. The old error of inadequate instructions, seen in cases like Douglas, Li, Brown, and Moore-McFarlane, is unlikely to be repeated under this new regime.

[30] Second, the problem of tainting has been completely solved as the new procedure provides for “exclusion of all jurors – sworn and unsworn”, while the “static triers” alone are exposed to whatever any unsuitable prospective juror might blurt out. The risk of a mistrial during lengthy challenge for cause processes, as seen in cases like English and Swite, cannot arise under the new procedure.

[31] Finally, the remedy of exclusion of jurors is no longer an ill-defined common law or inherent discretion. It is now a statutory power based on a clear and constant standard, namely, whether exclusion is “necessary to preserve the impartiality of the jurors”.

[32] The new legislation, in my view, was not a mere technical amendment to some minor procedural provision, as has been suggested. It effected a significant change to jury selection practices by legislating an entirely new procedure. Two separate Attorneys-General stated in Parliament that the purpose of the legislation was “to better protect the impartiality of prospective jury members” and to “improve the process with respect to the challenge of jurors to assist in preserving the jury’s impartiality”. In other words, the legislation was directed at a very important substantive purpose, namely, protecting and improving juror impartiality. See: R. v. White (2009), 84 W.C.B. (2d) 446 at para. 18 (Ont. S.C.J.) where these statements by the two Ministers are set out.

[33] In spite of its apparently beneficial and remedial nature, the new legislation has led to one remaining controversy. That controversy has become the subject of the third issue on the present Motion in this case, that is, whether the challenge for cause should proceed under s. 640(2) with “rotating triers”, or under s. 640(2.2) with “static triers”, in a case where “juror impartiality” is an issue.

[34] Ms. Davies, on behalf of Jaser, seeks to utilize the traditional method of “rotating triers” during the challenge for cause process. However, she also seeks exclusion of the panel of prospective jurors, pursuant to the old common law or inherent discretion. She, necessarily, does not seek exclusion of the sworn jurors since they will be required in court in order to act as “rotating triers”. Mr. Michaelson, on behalf of the Crown, submits that the old common law discretion to exclude jurors has been supplanted by the statutory power to exclude under s. 640(2.1), in those cases where the reason for exclusion is “to preserve the impartiality of the jurors”. When exercising these new statutory powers, the “static trier” procedure is mandatory under s. 640(2.2). When pressed as to the purpose for seeking exclusion of the panel, but not exclusion of the sworn jurors, Ms. Davies conceded that preserving the impartiality of the prospective jurors, by protecting them from tainting, was one of the reasons for her Application. She also conceded that keeping the sworn jurors present in court, in order to act as “rotating triers”, would risk tainting the sworn jurors. However, she submitted that this latter risk was more manageable than tainting the panel and that, in any event, it had to be balanced against Jaser’s desire to pick the jury with the assistance of “rotating triers”. In this regard, there is no suggestion that Jaser enjoys a constitutional right to choose his preferred method of jury selection. It is simply a statutory procedure that Parliament is free to alter and amend. Ms. Davies agrees that the only issue on the present Motion is one of statutory interpretation of the 2008 amendments.

[35] There is divided authority in Ontario as to whether a common law or inherent discretion to exclude the panel has survived the 2008 amendments. In R. v. Riley et al (2009), 2009 22571 (ON SC), 247 C.C.C. (3d) 517 (Ont. S.C.J.), Dambrot J. was trying a high profile gang-related homicide where challenge for cause had been allowed on the basis of pre-trial publicity, race, and attitudes concerning street gangs. The defence sought exclusion of the jurors on grounds that essentially related to impartiality. Dambrot J. ruled that there was no longer any common law or inherent power to order exclusion of the jurors on these grounds, that the defence was essentially making an Application under s. 640(2.1), and that “static triers” was now the mandatory procedure in these circumstances. I have followed the decision in Riley in numerous trials over the past five years, as have most judges in Toronto conducing criminal jury trials.

[36] However, there is a contrary line of authority which Dambrot J. acknowledged in Riley. In particular, in R. v. Sandham et al (2009), 2009 22574 (ON SC), 248 C.C.C. (3d) 46 (Ont. S.C.J.), another high profile gang-related homicide, Heeney J. held that the common law or inherent discretion to exclude the panel still remained after the 2008 amendments. He excluded only the panel of prospective jurors and allowed the traditional method of “rotating triers” to be used, while the sworn jurors remained in the court room. A number of other judges have followed Sandham and have declined to follow Riley. See, e.g.: R. v. Huard (2009), 2009 39058 (ON SC), 247 C.C.C. (3d) 526 (Ont. S.C.J.); R. v. White, supra.

[37] In my view, there is a reasoned way to reconcile these two lines of authority. Some of the concern expressed about the decision in Riley, in my view, arises from a failure to appreciate that Dambrot J.`s reasons are limited to a case where “juror impartiality” is the basis for the application to exclude jurors (whether sworn or unsworn) from the court room. It is true that there are certain passages in Riley, if read in isolation, that suggest a broader ratio. For example, at para. 18, Dambrot J. stated:

I am of the view that jurors may now only be excluded pursuant to s. 640(2.1) …

… the only order now available, as a result of the amendment to the Code, is the exclusion of both sworn and unsworn jurors. [Emphasis added.]

These pronouncements, standing alone, could be taken to mean that no common law or inherent discretion exists to excuse groups of prospective jurors, for example, for the purpose of simply managing court room space and conveniencing the jurors. This seems to be the way in which Sproat J. interpreted Riley in his judgment in R. v. White, supra at para. 35, where he stated:

I have discussed the means by which the exclusion of prospective jurors allows for effective utilization of courtroom space, expedites the selection process and minimizes the inconvenience and expense to prospective jurors. Armed with this information there is no reason to infer that Parliament intended by the static triers amendment to negate these benefits.

[38] In my view, there is nothing in Riley or in the 2008 amendments, that alters or limits the common law discretion of trial judges to manage the jury panel in a way that “allows for effective utilization of courtroom space, expedites the selection process and minimizes the inconvenience and expense to prospective jurors”, as Sproat J. put it in White. If these were the only reasons for excluding the panel, s. 640(2.1) would not be engaged at all and there would be no statutory impediment to utilizing “rotating triers” under s. 640(2). What Dambrot J. was dealing with in Riley, and what the 2008 amendments deal with, is protecting the impartiality of the jurors by excluding them during the challenge process. The two key passages in Riley, which set out this ratio of the decision, are found at paras 11 and 19:

The rationale for the change [to s. 640] is evident. It ensures that no juror, sworn or unsworn, can be tainted by any answer given to the questions asked on the challenge for cause by any other juror, or, in the case of unsworn prospective jurors, be schooled in the consequences of answering the questions in a particular manner. Of particular note, if previously sworn jurors decided the challenge for cause, as had to be the case under the old regime, then they could not be excluded while serving as triers, and could be tainted by the answers they heard. This cannot happen under the new regime.

As for the conclusion that the grounding of the motion on a concern about “schooling” prospective jurors rather than preserving their impartiality takes the application out of s. 640(2.1), I simply say that, for myself, I fail to see that the one differs substantially from the other. The concern that a schooled juror might answer questions differently than an unschooled juror is ultimately a concern about partiality. It is a concern that a juror will answer questions falsely, based on extraneous matters – an acquired understanding of the result that would flow from a particular answer – rather than giving a true answer based only on the information imparted by the question. But why are we concerned about this? Of course, it is most unfortunate if an impartial juror commits perjury in order to evade his or her duty by feigning partiality. But the real concern is that a partial juror who wants to be on the jury will feign impartiality. As I have said, the concern about schooling is, ultimately, a concern about preserving the impartiality of the jury that will try the case.

[39] When read properly, the decision in Riley stands for the proposition that an Application to exclude jurors, whether sworn or unsworn, in order to preserve their impartiality, is now covered by the statutory regime found in s. 640(2.1) and s. 640(2.2). The legislation expressly states that this is its purpose, two Attorneys-General stated in Parliament that this was its purpose, and judicial experience with cases like English indicates that the legislation will achieve this purpose.

[40] If Riley has been read too broadly, it seems to me that Sandham has also been read too broadly. In my view, Sandham does not preserve a common law or inherent discretion to exclude prospective jurors in any case where the defence simply prefers to use “rotating triers” but remains concerned about juror impartiality. Heeney J. never said this. He expressly acknowledged, like Dambrot J., that the 2008 amendments address situations where the need “to preserve the impartiality of the jurors” is what is at stake. He went on to find that juror impartiality “is not the reason advanced for excluding the unsworn jurors” in the particular case that was before him. These passages are found at paras. 52-54 of the judgment:

Parliament appears to be dealing with a situation where, in order to preserve the impartiality of the jurors, it is necessary to completely insulate them from the challenge for cause process except, obviously, for their own.

That is not the case here. No-one has any difficulty with the jurors participating in the challenge process as triers, and no-one has any difficulty with the jurors remaining in the jury box after being sworn, while other prospective jurors are challenged.

Furthermore, the statutory basis for an order under s. 640(2.1) is “that such an order is necessary to preserve the impartiality of the jurors”. Impartiality in the sense in which it is used in this part of the Code means impartiality as between the accused and the Queen. That is not the reason advanced for excluding the unsworn jurors. Instead, the reason for bringing jurors in one by one is so that they will not be exposed to the challenge process being repeated time after time with all jurors who precede them, and thereby become schooled in the process. The concern is that a juror might learn what answers tend to result in the juror being excused from serving on the jury. This has nothing to do with impartiality. The concern is not bias or prejudice, but rather the possibility that a juror might improperly engineer his own rejection. [Emphasis added.]

[41] As I read these passages in Sandham, the sole reason for ordering exclusion of the panel in that case was to prevent suitable but irresponsible prospective jurors from shirking jury duty. It may be difficult to accept these findings, that the exclusion of prospective jurors in Sandham had “nothing to do with impartiality”, given the notorious facts of that case. Nevertheless, it was for Heeney J. to make that finding, after hearing counsel’s Application, and it was on the basis of that finding that he held that s. 640(2.1) was not engaged. Accordingly, Sandham is not inconsistent with Riley as Heeney J. appeared to acknowledge that s. 640(2.1) would apply in a case where the need “to preserve the impartiality of the jurors” was engaged.

[42] I am satisfied, in the present case, that juror impartiality is the fundamental reason for the need to exclude prospective jurors. This is a case dealing with volatile issues of great public concern, where an unknown number of prospective jurors are likely to hold strong views that could taint other jurors, whether sworn or unsworn. Parliament has expressly legislated in this area, in s. 640(2.1) and s. 640(2.2), and common law or inherent discretion no longer exists as a means of addressing the issue. As Sharpe J.A. explained, speaking for the Court in R. v. Vincent, supra at paras. 21-2:

It is also the case that trial judges must be afforded some latitude or discretion where the Criminal Code does not specifically address the issue. For example, in R. v. Brown (2002), 2002 41937 (ON CA), 166 C.C.C. (3d) 570, this court held, at paras. 17-19, that it is “preferable” to replace one of the initial triers with the first juror sworn rather than wait to replace both initial triers until two jurors have been sworn. Similarly, in R. v. Gayle (2001), 2001 4447 (ON CA), 154 C.C.C. (3d) 221, leave to appeal to S.C.C. refused, (2001) 160 O.A.C. 199, this court rejected the contention that the trial judge erred by excusing a potential juror when the two triers could not agree on whether the prospective juror was partial given the permissive language of ss. 632 and s. 640(4).

On the other hand, trial judges have no inherent authority to modify the codified procedure for jury selection even where it may seem expeditious to do so. In R. v. Gayle, supra, at par. 53, this court stated:

It goes without saying that the statutory provisions governing jury selection must be followed, and that the discretion I am describing is limited to what is conferred on a fair reading of those very provisions. [Emphasis added.]

[43] Ms. Davies made it clear, in the alternative, that she was bringing an Application under s 640(2.1), if her common law Application failed. I accept this alternative position. In my view, an Order under s. 640(2.1) is appropriate in this case, for the reasons set out above. Indeed, I cannot conceive of a case where there would be legitimate concerns about preserving the impartiality of the panel but no similar concerns about preserving the impartiality of the sworn jurors. In all such cases, the appropriate order is to exclude all jurors, both sworn and unsworn, pursuant to s. 640(2.1).

[44] As a result of that order, jury selection will proceed in this case with the use of “static triers”. The Criminal Code is silent as to the procedure for appointing the two “static triers”. This remains a matter of broad common law discretion. Like Dambrot J. in Riley, I am of the view that it is appropriate to screen the “static triers”, by looking for suitable candidates and by asking prospective candidates a series of questions. The “static triers” are carrying out an important judicial function and they must be carefully selected. My practice has been to select a few likely candidates and then inquire into their antecedents, their attitudes, and their experience with decision-making in matters that require good judgment. My practice has also been to look to counsel, once I have tentatively identified a good candidate, and seek counsel’s concurrence. I intend to follow this practice which, in my experience, has consistently produced excellent triers.

[45] If I am wrong about the effect of the 2008 amendments, and if some residual common law or inherent discretion still exists to exclude only the prospective jurors, in a case where juror impartiality is the issue, I would not exercise such a discretion. In my view, it would be an improper exercise of inherent jurisdiction to exclude only the prospective jurors, in order to protect them from tainting. If the risk of tainting exists, as it does in this case, the far greater concern is with tainting the sworn jurors. The inherent jurisdiction of the Court has been described as a residual power “to enable the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner” and in circumstances where “those powers … are essential to the administration of justice and the maintenance of the rule of law”. See: R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78 at para. 24 per. Binnie J., speaking for eight members of the Court.

[46] In my view, a limited order protecting only prospective jurors from tainting, but ignoring the far greater danger of tainting the sworn jurors, would not “fulfil the judicial function of administering justice … in an … effective manner”. In particular, 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). Accordingly, I would not grant such an order, if the common law power still exists. Once again, when this position was put to Ms. Davies, she advanced her alternative position seeking an order pursuant to s. 640(2.1), in the event that a common law order would not be granted. As explained above, I have accepted M