OSHAWA COURT FILE NO.: CR-18-14742
DATE: 20190930
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KRISTOPHER KHAN
Defendant
Ms. Megan Allan, for the Crown
Mr. Kristopher Khan, Self-Represented,
Mr. Elliot Starer (Amicus)
HEARD: September 23 and 24, 2019
REASONS FOR DECISION (The Repeal of s. 634 & s. 640 of the criminal code and the Issue of Retrospectivity)
EDWARDS j.:
Overview
[1] For a very long time, the procedure for selecting a criminal jury has included peremptory challenges. A very useful review of the history in this regard, can be found in a recent decision of Ferguson J. in R. v. Matthew Raymond (Ruling #4), 2019 NBQB.
[2] On September 19, 2019, what has been commonly referred to as Bill C-75 came into effect. As of that date, there have been some fundamental changes to how a jury is now selected in a criminal jury trial. Peremptory challenges have now been eliminated (s. 634 of the Criminal Code is repealed). The trial judge is now given the power to “stand aside” a juror for reason of “maintaining public confidence in the administration of justice” (s. 633 of the Criminal Code). The challenge for cause remains a part of the jury selection process where it is determined that such a challenge is appropriate. The challenge, however, is no longer determined by “triers”. Rather, the challenge is now determined by the trial judge (s. 640 of the Criminal Code).
[3] When this matter came before me for jury selection on September 19, 2019, Mr. Khan was self-represented. The charges before the court (sexual assault, sexual interference with a person under 16) had previously required the appointment of s. 486.3 counsel to conduct the cross-examination of the complainants. Mr. Starer is s. 486 counsel.
[4] I raised with Mr. Khan and Crown counsel a number of issues relating to Bill C-75, one of which concerned whether the new method of selecting a jury mandated by Bill C-75 would apply to the charges that Mr. Khan was facing, or whether the old method would apply. In short, I raised the issue of retrospectivity.
[5] Meaning no disrespect to Mr. Khan, it was obvious to me that he did not understand the legal implications of the issue raised by the court. With the consent of both Mr. Khan and Crown counsel, I appointed Mr. Starer to act as amicus. I adjourned argument on this issue until September 23, 2019.
[6] These Reasons explain why the new method of choosing a jury will apply to Mr. Khan’s case.
Background
[7] The trial of this matter was scheduled to begin on September 16, 2019. If jury selection had commenced on September 16, there would have been no issue that the old method of selecting a jury would have applied, i.e. both sides would have had 12 peremptory challenges, and the challenge for cause would have been determined by two triers and not the trial judge.
[8] On September 16, 2019, Mr. O’Brien appeared in court on behalf of Mr. Khan, who to this point had been self-representing himself. Despite the fact he had been told by numerous judges over the last 16 months that his trial would proceed on September 16, 2019 with or without counsel, I reluctantly acceded to Mr. O’Brien’s request to adjourn the trial to November 12, 2019, to allow Mr. O’Brien to defend Mr. Khan.
[9] Within days of granting that adjournment Mr. O’Brien, as an officer of the court, brought to my attention that the cheque he had been provided by Mr. Khan to cover his retainer had not been honoured by the bank. I directed that this matter come back before the court on September 19, 2019, to address Mr. O’Brien’s motion to be removed as counsel of record. As Mr. O’Brien made clear, there had been an irretrievable breakdown in the solicitor-client relationship. I removed Mr. O’Brien as counsel of record.
[10] What followed after Mr. O’Brien left the courtroom was a discussion about whether the trial should proceed. Mr. Khan sought an adjournment and it was denied. Thereafter, I raised a number of issues that dealt with whether Bill C-75 applied to Mr. Khan’s trial. I adjourned argument to September 23, 2019, to allow Crown counsel and amicus a chance to consider their positions.
[11] If it is not obvious to the reader, the fact Mr. Khan was in the position of having to argue the issue of retrospectivity was entirely due to the fact he had asked for and was granted an adjournment of the trial from September 16, 2019 to November 12, 2019. If the jury selection process had commenced between September 16 and September 18, 2019, the old system would have applied to the jury selection.
[12] When the matter returned before me on September 23, 2019, Crown counsel took the position that the amendments to the Criminal Code reflected in Bill C-75, as they relate to the method by which a criminal jury is selected, were procedural in nature and thus retrospective. Amicus took a contrary position.
[13] As the argument was unfolding, I provided counsel with three cases that addressed the issue of the retrospectivity of Bill C-75: R. v. Thomas Lako and William McDonald, 2019 ONSC 5362; Raymond (supra); and R. v. Subramaniam, 2019 BCSC 1601. I also advised counsel that in an adjacent courtroom my colleague Lack J., confronted with the same issue of retrospectivity, had followed the decision of Thomas RSJ in Lako.
[14] Since hearing argument, I have also considered the decision of McMahon J. in R. v. Chouhan, 2019 ONSC 5512. I expect there will be many more decisions from across the country that consider the issue of whether Bill C-75 is retrospective. I anticipate that the decisions will go both ways, and in that regard I entirely agree with the comments of Ferguson J. in Raymond, at paras. 109 and 110:
The C-75 changes under review do not neatly fit within the existing analytic framework for determining whether a legislative change is procedural/evidentiary or substantive/vested interest in nature. They fall into a unique category all its own; and so, they should…I am fully aware this is a close call….
[15] The decision of whether the changes in Bill C-75 are substantive or procedural is a close call. With that, I agree with Ferguson J. With respect, I disagree with the end result in both Raymond and Subramaniam.
Analysis
[16] It is beyond dispute that Mr. Khan has the right to have the charges he faces tried by a jury (Canadian Charter of Rights and Freedoms, s. 7 and s. 11(d) and 11(f)). I note as an aside, the constitutionality of Bill C-75 was not argued before me. Nonetheless it is important, in my view, to distinguish between the constitutional right to a jury trial and the method by which a jury is selected. As my Reasons will reflect, one is a clear substantive right and the other is procedural.
[17] Rhetorically, what does the right to a jury trial entail? Does it mean that an accused as a matter of right is entitled to craft who will be empanelled as jurors? The answer to these fundamental questions can be found in the decision of the Supreme Court of Canada in R. v. Kokopenance, 2015 SCC 28. An accused is entitled to a representative jury panel. An accused does not have the right to a petit jury which reflects the proportionality of the population, nor does an accused have the right to have the chosen jury made up of members of the same racial, ethic, religious or sexual group. The same considerations equally apply to the Crown. The Crown has no right to have the jury made up of the same gender or ethnic group as the complainant.
[18] What an accused and the Crown both have is the right to a jury that is randomly chosen in a fair manner. The right to a randomly chosen jury will naturally occur from a broadly-based jury panel. In the absence of any challenge to the panel contemplated by s. 629(1) of the Criminal Code, the court may presume that the panel assembled for jury selection is one that meets the definition of impartiality. As Moldaver J. stated in Kokopenance, supra, at para. 51:
One important clarification about the relationship between representativeness and impartiality is in order. The narrow way in which representativeness is defined in Canadian jurisprudence means that impartiality is guaranteed through the process used to compile the jury roll, not through the ultimate composition of the jury roll or petit jury itself. A jury roll containing few individuals of the accused’s race or religion is not in itself indicative of bias.
[19] What I take from the guidance provided by the Supreme Court in Kokopenance is that an accused, absent a challenge to the array of the panel, has the right to a randomly chosen jury. Under the old method of choosing a jury, this occurred through the process that involved peremptory challenges and in some cases a challenge for cause that utilized triers. Under the new system provided for under Bill C-75, the means by which a randomly chosen jury will be selected no longer involves peremptory challenges or triers. Does this change affect a substantive right?
[20] To differentiate between a substantive right versus a matter of procedure, it is worth repeating the direction provided by the Supreme Court in R. v. Dineley, 2012 SCC 58, at paras. 10 and 11:
…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 is to apply retrospectively…However, new procedural legislation deigned 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…
…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. (Emphasis added)
[21] While the Supreme Court was unanimous on the governing principle, the Court was divided 4-3 on whether the amendment before them (dealing with “the Carter defence”) affected substantive rights and was, therefore, applied prospectively. At para. 10 of Dineley, Deschamps J. for the majority explained the principle behind the presumption against retrospectivity as follows:
…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…
[22] An instructive analysis of the difference between an amendment that affects substantive rights versus a procedural change is found in the decision of the Court of Appeal in R. v. Bengy, 2015 ONCA 397. The issue before the court was whether the new self-defence provisions of The Citizen’s Arrest and Self-defence Act, SC 2012, (which repealed the former ss. 34-37 of the Criminal Code and replaced them with a new self-defence provision found in s. 34 of the Code), affected the substantive rights of the accused. At para. 50, Hourigan J.A. concluded that the amendments were substantive and not procedural in nature because “they impact the content and substance of the defence, as opposed to affecting only the manner in which it is presented. (Emphasis added).
[23] There is a fundamental difference between a legal right and a procedure. In this case, as I have made clear, Mr. Khan has the legal right to a trial by jury. The method, the means, or the procedure by which that right was exercised under the old regime that predated Bill C-75, included peremptory challenges and a challenge for cause adjudicated by “triers”. It is the procedure that has changed post-Bill C-75 – not Mr. Khan’s right to a trial with a jury.
[24] The difference between a “protected right” and the “procedures” that protect it are reviewed by Thomas RSJ in Lako at paras. 27-30, by reference to the decision of the Supreme Court of Canada in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863. At paras. 1 and 2 of Find, the Court defines the right to a jury and the procedure to be followed that gives protection to that right as follows:
Trial by jury is the 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…
[25] The procedures that were in place to ensure that an accused obtained a jury that was impartial are reviewed at paras. 18-20 of Find. The court reviews the two stages by which a jury was ultimately selected. The first stage referred to as the “pre-trial” stage involved the process by which a jury panel was assembled, and the second stage was referred to as the “in-court process”. What is noteworthy, is that the Court refers to both stages as “… procedures designed to ensure jury impartiality.” (para. 20, Find, Emphasis added).
[26] What is also significant in the consideration of whether the elimination of peremptory challenges involves the elimination of a “right” versus a change in “procedure”, can be found in s. 632 of the Criminal Code which allows a judge to excuse a potential juror for various enumerated reasons including “personal hardship or any other reasonable cause”, even before the trial of an accused has even begun.
[27] Routinely, judges of this court receive letters on a daily basis from potential jurors seeking to be excused from jury duty for all manner of reasons. Many of those requests result in jurors either being excused completely from jury duty or having their jury duty deferred. The accused has no input whatsoever into how the judge exercises his or her discretion in this “pre-trial” selection process. In fact, an accused probably never even knows that a not insignificant number of jurors from the panel that is assembled for jury selection in the courtroom have been excused or deferred. If as argued on behalf of Mr. Khan, the so-called “right” to 12 peremptory challenges is fundamental to the selection of a fair and impartial jury, one might argue that the “pre-trial” discretion of a judge to excuse jurors provided for in s. 632 of the Criminal Code is quite inconsistent with that right.
[28] In fact, s. 632 is not inconsistent. It is as the Supreme Court in Find notes in para. 20, part of the procedure designed to ensure jury impartiality. The procedures by which a jury was selected as they existed prior to the implementation of Bill C-75, were there to ensure an accused received a fair trial. A fair trial, however, did not mean that either the Crown or the defence had the right to a jury that represented their particular sexual, ethnic identity or any other interests. Neither the Crown nor the defence was entitled to a jury that would result in the most advantageous trial from their respective perspective. Both sides were entitled under the old jury selection regime – as they are now under Bill C-75, to a fair hearing by an independent and impartial jury.
[29] The amendments that will now govern how a criminal jury is selected do not change in any way, the fundamental right of an accused to an independent and impartial jury. What the amendments will do is affect the manner in which a jury is selected. As such, I agree with the conclusion of McMahon J. in Chouhan, supra, at paras. 111 and 112:
I find that the legislative amendments are procedural in nature. They impact the process of selecting the jury. I conclude the peremptory challenge is not a substantive right that stands on its own. I agree with the conclusion of my brother Thomas J. in R. v. Thomas Lako and William McDonald, 2019 ONSC 5362.
For this reason, following Dineley, I am satisfied the repeal of s. 634 and the amendments to s. 640 of the Criminal Code are retrospective in nature.
[30] I began my Reasons with an indication that this case like many that will follow, was in the words of Ferguson J. in Raymond, a close call. I understand the position asserted on behalf of Mr. Khan; a position that will undoubtedly be asserted in many other cases that will follow. Mr. Khan may have believed he had the right to pick a jury utilizing peremptory challenges and triers in the challenge for cause. Others may disagree, but for the reasons reflected above and as expressed by Thomas RSJ in Lako at para. 41, Mr. Khan does not have a right to the peremptory challenges that are provided for in s. 634 of the Criminal Code. The changes to the method by which a jury is selected mandated by Bill C-75, are procedural in nature and will apply to retrospectively eliminate peremptory challenges on
all matters that come before the court after and including September 19, 2019.
Justice M.L. Edwards
Released: September 30, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KRISTOPHER KHAN
Defendant
REASONS FOR DECISION
Justice M.L. Edwards
Released: September 30, 2019