R. v. Thomas Lako and William McDonald, 2019 ONSC 5362

COURT FILE NO.: 294-18

DATE: 2019-09-17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

THOMAS LAKO AND WILLIAM MCDONALD

Applicants/Defendants

Jason Miller and Konrad de Koning, for the Respondent/Crown

George Grant and Kuljit K. Bhamra, for the Applicant/Defendant Thomas Lako

David Stoesser, for the Applicant/Defendant William McDonald

HEARD: September 16, 2019.

THOMAS, RSJ.:

The Application

1The applicants have applied for a determination of whether the amendments regarding jury selection that form part of Bill C-75 have retrospective effect. Specifically, their application considers the elimination of peremptory challenges occasioned by the repeal of s. 634 of the Criminal Code.

2The application does not consider other changes in jury selection including challenges for cause or judicial stand asides. Importantly, there is no constitutional challenge to the amending legislation.

The Amending Legislation

3An 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, c. 25, which introduces changes to a number of areas of criminal law in Canada, received Royal Assent on June 21, 2019 with staggered statutory implementation. On September 19, 2019, by operation of law, a number of amendments, including those that amend provisions of the jury selection procedure in the Criminal Code, come into force. The main changes to the jury selection procedures in the Criminal Code are as follows:

(1) Peremptory challenges – s. 634 of the Criminal Code is repealed and peremptory challenges are no longer available.

(2) Judicial “stand by” power – s. 633 of the Criminal Code is amended to allow a trial judge to stand aside a juror for reason of “maintaining public confidence in the administration of justice”, in addition to the pre-existing reasons for standing aside a juror.

(3) Challenge for cause – s. 640 amends the power to determine whether the challenge is true or not, vesting it in the trial judge rather than jurors acting as triers. Further, while it is still the case that if the challenge is true the juror must be excused, a determination that the challenge is not true no longer requires that the juror be sworn. Counsel may now ask, or a Judge may theoretically raise the issue, that the juror be excused (s. 632) or stood by (s. 633).

(4) Continuation of jury trial by Judge alone – s. 644 is amended to provide that if the number of jurors in a jury trial falls below 10, and defence and crown agree, the judge may discharge the jury and continue the trial to completion including rendering a verdict.

4The comments of Arif Virani, Parliamentary Secretary for the Minister of Justice and Attorney General, provide some insight regarding Parliament’s intention in repealing s. 634. His comments below were made at the time of third reading.

5Mr. Virani said the repeal of s. 634 would “improve diversity of juries” and that peremptory challenges “have no place in our courtrooms, given the potential for abuse” … “once this bill has passed, Canada will join countries like England, Scotland and Northern Ireland, which abolished peremptory challenges in 1988.”

6The Act does contain transitional provisions for some amendments (at ss. 354-359 and 384), but none that pertain to jury selection.

Background

7The applicant Thomas Lako (Lako) is charged with manslaughter. On the same indictment, the applicant William McDonald (McDonald) is charged with second degree murder. The offences relate to the same incident alleged to have been committed on May 31, 2012.

8Section 471 of the Criminal Code requires this indictment to be tried by a judge and jury. Subject to the consent of both parties and the trial judge, a judge alone trial is permitted by s. 473. There is no consent here.

9Pre-trial applications which included the consideration of oral evidence were commenced on July 15, 2019 and continued over several days.

10Jury selection is scheduled for September 23 and 24, 2019.

Issues

11The following issues form the substance of the arguments before me and must be determined by this decision:

1. Is the present availability of peremptory challenges a “right”?

2. If it is a right, is it vested or substantive?

Positions of the Parties

12Counsel for the applicants argue that Lako and McDonald have a right to peremptory challenges and that it is in an unrestricted and unfettered right, unlike the challenge for cause provisions captured in s. 638. It is a right to affect the composition of the Court that will try their case.

13They concede that the amending provision is procedural but argue that it is one that affects this substantive right. Further, they argue that this right vested in Lako and McDonald upon being indicted on charges mandating a jury trial. Alternatively, the applicants argue the right has vested because their trial commenced with the calling of evidence on the pre-trial motions. See: R. v. Brahaney, 2016 ONCJ 395 at paras. 36 and 37 (Brahaney); R. v. Poloni, 2008 BCPC 326, [2008] B.C.J. No. 2168 at para. 55 (Poloni); Duhamel v. The Queen, 1984 126 (SCC), [1984] 2 S.C.R. 555 at 563 (Duhamel).

14Crown counsel maintains that s. 634 is strictly procedural. An accused only has a right to a fair and impartial jury, not to a particular procedure to select that jury. As a procedural amendment, the provisions affect all matters before the Court as of September 19, 2019.

Analysis

15To get to the point of the issues as I have defined them, it is necessary to distinguish between legislation that affects substantive rights and that which is purely procedural in order to determine whether it is retrospective in application.

16The relevant sections of the Interpretation Act, R.S.C., 1985, c. I-21, as set out below, provide some assistance:

43 Where an enactment is repealed in whole or in part, the repeal does not

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,

44 Where an enactment, in this section called the “former enactment”, is repealed and another enactment, in this section called the “new enactment”, is substituted therefor,

(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto

(ii) in the enforcement of rights, existing or accruing under the former enactment, and

(iii) in a proceeding in relation to matters that have happened before the repeal;

(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment;

17Justice Cromwell (dissenting but not on this point) considered ss. 43 and 44 of the Interpretation Act in R. v. Dineley, 2012 SCC 58 (Dineley). Dineley considered the retrospective effect of legislative changes eliminating the Carter defence in drinking and driving cases:

48The significance of the distinction between substantive and procedural provisions for statutory interpretation is reflected in the Interpretation Act, R.S.C. 1985, c. I-21. On the one hand, proceedings commenced under a now-repealed provision are to continue under the procedures set out in the new provisions. On the other, the repeal of an enactment does not affect any right acquired under it. I will briefly describe the relevant provisions.

49The first is s. 44. It provides that where a former enactment is repealed and a new enactment is substituted for it, proceedings taken under the former enactment are to be continued in conformity with the new enactment. It further provides that “the procedure established by the new enactment shall be followed as far as it can be adapted thereto . . . in the enforcement of rights, existing or accruing under the former enactment, and . . . in a proceeding in relation to matters that have happened before the repeal”: s. 44(c) and (d)(ii) and (iii). As Professor Sullivan puts it, “[t]hese provisions call for the immediate application of new procedural law to all actions, including those that were pending when the legislation came into force”: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 698.

50The second provision is s. 43. It provides that the repeal of an enactment does not affect any “right, privilege, obligation or liability acquired, accrued, accruing or incurred” under it: s. 43(c). As Professor Sullivan puts it, the repeal does not destroy any right or liability arising under the repealed enactment, i.e. “the repealed law continues to apply to pre-repeal facts for most purposes as if it were still good law” (p. 708).

51Professor Sullivan sums up the cumulative effect of these two provisions as follows: “. . . the application of new substantive law is delayed by the survival of repealed law [but] the application of new procedural law is not” (p. 698).

18Justice Deschamps, writing for the majority in Dineley, considered at paras. 10 and 11 what she called the “hotly contested issue” of whether amendments apply retrospectively:

10There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (Angus v. Sun Alliance Insurance Co., 1988 5 (SCC), [1988] 2 S.C.R. 256, at pp. 266-67; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 57; Wildman v. The Queen, 1984 82 (SCC), [1984] 2 S.C.R. 311, at pp. 331-32). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases (Application under s. 83.28 of the Criminal Code (Re), at paras. 57 and 62; Wildman, at p. 331).

11Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately (P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 191). Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions “procedural” or “substantive”, but in discerning whether they affect substantive rights.

19In the earlier decision of Peel Police v. Ontario (Special Investigations Unit), 2012 ONCA 292 at para. 72, Cronk J.A. added clarity to the common law position regarding procedural legislation:

72I begin with the procedural rights exception to the presumption against the retrospectivity of legislation. At common [page556] law, procedural legislation is presumed to apply immediately, to both pending and future facts. As Sullivan, supra, discusses, at p. 696, this "presumption of immediate application" has been characterized, variously, in these terms: (1) there is no vested right in procedure; (2) the effect of a procedural change is deemed beneficial for all; (3) procedural provisions are an exception to the presumption against retrospectivity; and (4) procedural provisions are ordinarily intended to have an immediate effect. Sullivan also notes, at p. 696, the following early formulation of the rule in Wright v. Hale (1860), 6 H. & N. 227, at p. 232 H. & N.:

[W]here the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.

20Counsel for the applicants point to several authorities they say make it clear that there is a substantive right to peremptory challenges – a right within the meaning of s. 43(c) of the Interpretation Act.

21In R. v. Davey, [2012] S.C.J. No. 25, the Court considered whether input from police officers to the Crown on the suitability of jurors amounted to a miscarriage of justice and resulted in an unfair trial. While the applicants maintain that this decision supports the notion of a right to peremptory challenges, it in fact refers to the jury selection provisions as a “process” and the challenges as an “opportunity.”

22Further, Justice Karakatsanis at para. 31 speaks of the right as guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms, (the Charter):

31Challenges for cause and the court vetting process in ss. 626 to 644 of the Criminal Code are designed to ensure a jury that is eligible, impartial and competent. Subsequent to the amendments to the jury selection process following this Court’s decision in R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, neither party has the right to select a jury, or has the positive power to shape a jury. Jurors are selected at random, and randomness ensures representativeness: R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509, at p. 525. As officers of the court, all counsel have a responsibility to uphold the Charter right, as guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms, to an independent and impartial jury. Either party can challenge a juror for cause, based on objective grounds.

23It must be remembered that I am not here considering an argument that the repeal of s. 634 offends the right guaranteed by s. 11(d) of the Charter.

24The applicants bring to my attention the judgment in R. v. Cloutier, 1979 25 (SCC), [1979], 2 S.C.R. 709, (Cloutier). Cloutier considered the order of challenges and at page 721, the Court said the following:

… There is no logical connection between the challenge for cause and the peremptory chal­lenge, and I do not see any reason why the unsuc­cessful exercise of the right to challenge for cause would have an effect on the right to a peremptory challenge. …

25While the Court clearly calls the peremptory challenge a “right”, it does so in the context of constitutional legislation in force at the time providing for that particular challenge procedure. It does not support the notion of a substantive right to the challenge in the face of changing constitutional legislation.

26The Crown points me to the following case references in support of its position: R. v. Lee, [1989] O.J. No. 2159 at p. 4, considers that jury selection provisions “prescribe a procedure to be followed in empanelling a petit jury …”. In R. v. W.V., [2002] O.J. No. 3247, the Court of Appeal considered “the statutorily-mandated procedure” for selecting the triers in a challenge for cause. In R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 (Find), the Supreme Court considered the appropriateness of an offence-based challenge for cause.

27Paragraphs 1 and 2 of Find define the protected “right” and the “procedures” that protect it:

1 Trial by jury is a cornerstone of Canadian criminal law. It offers the citizen the right to be tried by an impartial panel of peers and imposes on those peers the task of judging fairly and impartially. Since our country’s earliest days, Canadian jurors have met this challenge. Every year in scores of cases, jurors, instructed that they must be impartial between the prosecution and the accused, render fair and carefully deliberated verdicts. Yet some cases may give rise to real fears that, despite the safeguards of the trial process and the directions of the trial judge, some jurors may not be able to set aside personal views and function impartially.

2 The criminal law has developed procedures to address this possibility. One of the most important is the right of the accused to challenge a potential juror “for cause” where legitimate concerns arise. This Court recently held that widespread prejudice against the accused’s racial group may permit an accused to challenge for cause: R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128. In this appeal we are asked to find that charges of sexual assault of children similarly evoke widespread prejudice in the community and also entitle the accused to challenge prospective jurors for cause.

28At paras. 18-20, the Court describes the “procedures” in place to ensure juror impartiality:

18 To provide context and guidance to the determination of this issue, it is necessary to consider the process of jury selection and the place of challenges for cause in that process.

19 The jury selection process falls into two stages. The first is the “pre-trial” process, whereby a panel (or “array”) of prospective jurors is organized and made available at court sittings as a pool from which trial juries are selected. The second stage is the “in-court” process, involving the selection of a trial jury from this previously prepared panel. Provincial and federal jurisdictions divide neatly between these two stages: the first stage is governed by provincial legislation, while the second stage falls within the exclusive domain of federal law (see C. Granger, The Criminal Jury Trial in Canada (2nd ed. 1996), at pp. 83-84; R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, at pp. 712-13).

20 Both stages embody procedures designed to ensure jury impartiality. The “pre-trial” stage advances this objective by randomly assembling a jury pool of appropriate candidates from the greater community. This is assured by provincial legislation addressing qualifications for jury duty; compilation of the jury list; the summoning of panel members; selection of jurors from the jury list; and conditions for being excused from jury duty. These procedures furnish, so far as possible, a representative jury pool: R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509, at pp. 525-26; P. Schulman and E. R. Myers, “Jury Selection”, in Studies on the Jury (1979), a report to the Law Reform Commission of Canada at p. 408.

29Paragraphs 23 and 24 describe the two ways that prospective jurors can be excluded from the jury during the empanelling process:

23 Judicial pre-screening at common law developed as a summary procedure for expediting jury selection where the prospective juror’s partiality was uncontroversial, such as where he or she had an interest in the proceedings or was a relative of a witness or the accused: Barrow, supra, at p. 709. The consent of both parties to the judicial pre-screening was presumed, provided the reason for discharge was “manifest” or obvious. Otherwise, the challenge for cause procedure applied: Sherratt, supra, at p. 534. In 1992, s. 632 of the Criminal Code was enacted to address judicial pre-screening of the jury panel. This provision allows the judge, at any time before the trial commences, to excuse a prospective juror for personal interest, relationship with the judge, counsel, accused or prospective witnesses, or personal hardship or other reasonable cause.

24 The second way members of the jury may be excluded during the empanelling process is upon a challenge of the prospective juror by the Crown or the accused. Both parties are entitled to challenge potential members of the jury as these prospective jurors are called to “the book”. Two types of challenge are available to both the Crown and the accused: (1) a limited number of peremptory challenges without providing reasons pursuant to s. 634; and (2) an unlimited number of challenges for cause, with leave of the judge, on one of the grounds enumerated under s. 638(1) of the Criminal Code.

30Importantly, the Court in Find states at para. 40 that the law presumes that any juror bias will be cleansed by the trial process and that the existence of widespread bias alone is not enough to challenge a party.

31It is instructive to consider what authorities have deemed changes to substantive rights and changes to procedure. The respondent Crown provides the following examples:

Changes – Substantive Rights

a. Altering the existence or content of a previously available substantive defence;

R. v. Dineley, supra at paras. 17 and 22

R. v. Bengy, supra at paras. 31, 45-50

b. Changes affecting constitutional rights, even where justified under section 1;

R. v. Dineley, supra at para. 21

c. Increasing the potential sentence or restrictive collateral consequences of an offence;

R. v. K.R.J., 2014 BCCA 382 at paras. 61-65, aff’d 2016 SCC 31, [2016] 1 S.C.R. 906 at para. 18 (increasing the scope of s. 161 prohibition orders)

d. Removing the right of an accused to appeal to the Supreme Court of Canada in certain circumstances without first obtaining leave.

R. v. Puskas, [1988] 1 S.C.R. 1207 at para. 6.

Procedural Changes

a. Making documentary evidence admissible against the accused even though it was inadmissible at the time of the alleged offence;

Howard Smith Paper Mills Ltd. v. The Queen, supra

b. Making competent and compellable to testify an accused’s spouse, who was not compellable or competent at the time of the alleged offence;

Wildman v. R., supra at pp. 330-32

c. Removing the statutory requirement of corroboration of a child witness that had been in place at the time of the alleged offence thereby having a profound affect on the accused’s defence;

R. v. Bickford (1989), 1989 7238 (ON CA), 51 C.C.C. (3d) 181 (Ont. CA)

d. Changing a straight-indictable offence into a hybrid offence, such that the accused could now be deprived of the right to a trial by jury;

R. v. Hafeez (1996), 1996 437 (ON CA), 27 O.R. (3d) 799 (C.A.)

e. In “faint hope” applications for early parole after a conviction for first degree murder, increasing the number of jurors required to vote in favour of reduced parole ineligibility, from a two-thirds vote to unanimity;

R. v. Chaudhary (1999), 1999 14902 (ON SC), 139 C.C.C. (3d) 547 (Ont. S.C.J.) at paras. 8-12

Fabrikant v. Canada (Attorney General), 2014 QCCA 240 at paras. 42-48

f. Creation of a new “judicial investigative hearing” allowing for the examination of witnesses in camera, and from which other interested parties are excluded;

Application under s. 83.28, supra at paras. 55-66

g. Changes in ancillary sentencing measures that do not affect an offender’s liberty or personal security interests, such as DNA databank and sex offender registrations.

R. v. Hooyer, supra at para. 45

32Ultimately, the accused does not have a right to a favourable jury (Sherratt, para 58). The accused does not have a right to an unbiased jury (Find, para. 41). “The ultimate requirement of a system of jury selection is that it results in a fair trial. A fair trial, however, should not be confused with a perfect trial, or the most advantageous trial possible from the accused’s perspective.” (Find, para. 28)

33In Wildman, the Supreme Court considered amendments to the Canada Evidence Act that made the accused’s wife competent and compellable regarding communications from her husband about the murder of his eight-year-old stepdaughter. The Court found the amendment to be procedural and that the common law dictated there was no vested right in procedure. (Wildman, p. 331)

34Lako and McDonald may have had an expectation that they would have the ability to peremptorily challenge jurors, just as Wildman may have expected his wife could not be compelled to testify and Bickford may have expected the child complainant’s evidence would need corroboration. Expectations, however, do not create rights. (Dikranian v. Quebec, 2005 SCC 73 at para. 39; Rhys-Jones v. Rhys-Jones, 2000 2439 (ON CA), [2000] O.J. No. 1339, Ont. C.A. at para. 23).

35Lako and McDonald do, however, possess a right in the selection of their jury. That right is recognized by the common law and enshrined in s. 11(d) of the Charter as the right to a fair hearing by an independent and impartial tribunal. I am not in a position to find in this application that the repeal of s. 634 impairs the fair trial rights of the accused or their ability to be judged by an independent and impartial tribunal.

36Having answered the first issue in the negative, I need not consider whether there exists here a vested right. I will, however, say that the argument that there is vesting since this trial has commenced cannot be correct. The determination of when a trial commences is highly contextual. The cases come to different conclusions depending on the issue considered. The contention that a trial commences with pre-trial applications, as in Poloni and Duhamel, must recognize that those cases dealt with judge alone trials and the determination of when a judge was seized of a trial. In R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, the Court was considering when an accused’s trial commenced in the context of when an accused could be absent from the courtroom.

37The application of the power to pre-screen jurors before the commencement of the trial is found in s. 632 of the Criminal Code. The s. 634 challenges must follow pre-screening. It must follow that, with respect to jury selection, the trial does not commence until the accused enter their pleas before the jury or when the accused are placed in the charge of the jury. As such, this trial has not commenced for the purposes of how this jury will be selected.

38Finally, I will say that I have been directed to only two cases that have considered these amendments. In R. v. Gardner, 2019 QCCA 726, the Quebec Court of Appeal was considering an argument, first raised on appeal, that the Crown had improperly exercised its peremptory challenges. The Court, at para. 7, said the following:

7Before dealing with this first ground of appeal, it should be noted that the Court is well aware of Bill C-75, which deals with peremptory challenges and sets out the considerations that led Parliament to address this matter. It is clear, of course, that this pending legislation has no retroactive effect.

39In effect recognizing the difference between “retroactive” and “retrospective”, the Court was merely stating that the amendments had no application to those cases already decided.

40The second case is R. v. R.S., 2019 ONCJ 629 (R.S.), released by Justice R. Marion on September 11, 2019. That decision considered the retrospectivity of the amended s. 535 which significantly limits the availability of preliminary inquiries. While Justice Marion found the amendments to s. 535 did not offend a vested or substantive right, he also determined that it affected the jurisdiction of the Ontario Court of Justice and could not be applied retrospectively. That decision is now the subject of a certiorari application before the Superior Court in Windsor. Insofar as R.S. determines the amendments to s. 535 are procedural, it is consistent with my position here.

Conclusion

41The applicants Lako and McDonald do not have a right to the peremptory challenges prescribed by s. 634 of the Criminal Code. The repeal of that section is a procedural change and will act to retrospectively eliminate peremptory challenges on all matters before the Court as of September 19, 2019.