COURT FILE NO.: CR-17-10000701-000 and CR-17-10000826-0000
DATE: 20191002
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
GAVIN MacMILLAN
– and –
ENZO DE JESUS CARRASCO
Counsel:
Rick Nathanson and Pamela Santora, for the Crown
Breana Vendebeek, Sean Robichaud and Chantelle LaFitte, for Gavin MacMillan
Uma Kancharla, for Enzo de Jesus Carrasco
HEARD: September 26, 2019
M. Dambrot J.:
[1] On September 19, 2019, certain amendments to the Criminal Code governing the process for the selection of juries came into force. These amendments make the following four significant changes to the former jury selection process: (1) they eliminate the right of the Crown and the accused to make peremptory challenges to prospective jurors; (2) they remove the authority of triers to decide the truth of challenges for cause, and place that authority in the trial judge; (3) they add “maintain public confidence in the administration of justice” to the existing grounds (“reasons of personal hardship” and “any other reasonable cause”) upon which a trial judge may stand a prospective juror by; and (4) they clarify that trial judges have the discretion to exclude both sworn and unsworn jurors from the courtroom during the challenge for cause process.
[2] As is common, Parliament did not address the question whether these changes apply retrospectively, or only prospectively. In the few short days that these amendments have been in force, there are four reasoned decisions that I am aware of on this issue, two in Ontario, one in New Brunswick and one in British Columbia. Unfortunately, they are divided. I say that it is unfortunate because, whichever position is correct, it is inevitable that in many trials in this country juries will be empanelled in a manner that is not legally correct. There is a risk that appellate courts will not forgive these errors, and that many cases will have to be retried.
[3] The accused MacMillan asks me to make the third decision in Ontario on this issue, and to depart from the decision of my two colleagues who have ruled that the amendments are retrospective.
A Preliminary Matter
[4] At the outset of the argument, I raised with counsel whether or not it is appropriate for Ontario trial judges to be asked repeatedly to consider and rule on this issue while we wait for our Court of Appeal to resolve the issue for us, at least until the matter wends its way to the Supreme Court. In this regard, I brought to their attention the decision of Strathy J., as he then was, in R. v. Scarlett, 2013 ONSC 562, at para 43, holding that decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them. Cogent reasons to depart from such a decision include: (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances can be summed up by saying that the earlier judgment should be followed unless the subsequent judge is satisfied that it is “plainly wrong.” I note that the decision in Scarlett has been followed repeatedly in Ontario.
[5] Counsel for the accused argued that the two Ontario decisions (the decision of Thomas R.S.J. in R. v. Lako, 2019 ONSC 5362 and the decision of McMahon J. in R. v. Chouhan, 2019 ONSC 5512) are plainly wrong. More specifically she says:
a) With respect to subsequent decisions, she argued that while not subsequent, the Ontario decisions do not take into account the New Brunswick decision in R. v. Raymond, 2019 NBQB 203, and the British Columbia decision in R. v. Subramanian, 2019 BCSC 1601, each of which reached the opposite conclusion.
b) With respect to overlooking binding caselaw, she argued that both Thomas R.S.J. and McMahon J. erred in their appreciation of the test for retrospectivity in R. v. Dineley, 2012 SCC 58.
c) With respect to full consideration, she argued that the two Ontario cases are of limited usefulness, since they considered only the retrospectivity of the elimination of peremptory challenges, while she raises, and the New Brunswick and British Columbia judges considered the retrospectivity of the entire package of jury selection amendments.
[6] It seems to me that the placement of these arguments in the three categories is strained, and that they are better considered together to determine whether or not the Ontario judgments are plainly wrong.
Are the Ontario Judgments Plainly Wrong?
[7] I begin with the last argument. In effect, counsel argues that I am free of the Scarlett rule because the Ontario judgments dealt with a narrower issue than the one raised in this case: retrospectivity of the elimination of peremptory challenges versus retrospectivity of the entirety of the new jury selection scheme. I can deal with this issue very briefly. It is, of course, true that the challenge in the two Ontario cases was focussed on the elimination of peremptory challenges. In response, I note two points. First, it is impossible to assess any of the changes to the jury selection process in isolation. The overall effect of the entire package must necessarily be considered, and was considered at least to some degree in those cases. Second, what really distinguishes the Ontario cases from the New Brunswick and British Columbia cases is the fundamental analytical approach taken to retrospectivity, to which I will come momentarily. Had the challenge been broader in the Ontario cases, the two judges would have broadened the result, but that result would have been the same. The approach they each took makes the result inevitable. All of the amendments to the jury selection process would have been found to have a retrospective effect.
[8] That brings me to the accused’s second argument. Did the Ontario judges misapprehend Dineley? In Lako, Thomas R.S.J. concluded that the elimination of peremptory challenges neither impairs the fair trial rights of the accused nor their ability to be judged by an independent and impartial tribunal. In Chouhan, McMahon concluded that the elimination of the peremptory challenge process does not breach or impair Mr. Chouhan's rights to a fair trial and to an independent and impartial jury. Counsel fastens on the words “impair” and “breach” used by my two colleagues. She rightly notes that the Court in Dineley was concerned with new legislative provisions that “affect” substantive rights, not only those that “impair” or “breach” such rights. Undoubtedly “affect” is a broader term than either “impair” or “breach”. But it could hardly be imagined that either judge was unaware of what Dineley said. They both quoted the very passage in Dineley containing the word focussed on by the defence. Moreover, immediately after saying that the elimination of the peremptory challenge process does not breach or impair Mr. Chouhan's right to a fair trial, McMahon J. stated that he found the legislative amendments to be procedural in nature, and that they impact the process of selecting the jury, but do not impact a substantive right. Impact has the same meaning as affect. Indeed, counsel for the applicant used that very word to refer to the test in Dineley in their written argument. They wrote, “To affect a right does not mean that there must be a positive or negative impact. In fact, the impact on the right could be neutral, however the right would be affected where the change in the legislation impacts or alters the right.” Clearly, neither Thomas R.S.J. nor McMahon J. misapprehended Dineley.
[9] As noted by Crown counsel, the real complaint made by the accused is this. The Ontario judges say that the legislation is retrospective because it is procedural and does not affect the fair trial rights of the accused, particularly their right to be judged by an independent and impartial tribunal. The accused, and the New Brunswick and British Columbia judges, do not claim that the amendments affect the right of an accused to a fair and impartial jury. Rather, they instead say that the amendments affect the procedures that protected that right by altering the “balance” in the procedural provisions. The Ontario judges say that that is the wrong test. I agree with them. The applicant’s approach would make most procedural amendments to the Criminal Code retrospective. But more importantly, I cannot possibly say that the Ontario judges are plainly wrong.
[10] As a result, I will defer to the decisions of Thomas R.S.J. and McMahon J. I will not embark on a full consideration of the issue of retrospectivity of the new jury selection procedures.
Disposition
[11] The application is dismissed. We will proceed to pick a jury in accordance with the amended procedure.
M. DAMBROT J.
RELEASED: October 2, 2019
COURT FILE NO.: CR-17-10000701-000 and CR-17-10000826-0000
DATE: 20191002
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
GAVIN MacMILLAN
– and –
ENZO DE JESUS CARRASCO
REASONS FOR DECISION
DAMBROT J.
RELEASED: October 2, 2019