ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. R. Dewson, for the Crown
- and -
JASON KAKEKAGUMICK
G. Labine, for the Defendant
Accused
HEARD: October 1, 2019 at Kenora, Ontario
Mr. Justice J.S. Fregeau
REASONS ON APPLICATION
INTRODUCTION
1Jason Kakekagumick (“the accused”) stands charged that he did, on or about October 28, 2017, commit second degree murder on the person of John MacDougall contrary to s. 235(1) of the Criminal Code of Canada (the “Code”).
2Following the conclusion of a preliminary inquiry on November 7, 2018, the accused was committed to stand trial on this charge. The accused is to be tried before a judge and jury in Kenora, Ontario beginning November 19, 2019.
3The accused has brought this Application seeking an Order declaring that the provisions of Bill C-75 which repeal s. 634 of the Code and thereby eliminate peremptory challenges during the jury selection process, apply prospectively only. The Crown opposes the Application and submits that Bill C-75, as it relates to the repeal of peremptory challenges, applies retrospectively.
4The accused has not challenged the constitutional validity of Bill C-75.
DISCUSSION
5As of the date of this endorsement, the following four Ontario Superior Court of Justice decisions on this issue have been released:
R. v. Thomas Lako and William McDonald, 2019 ONSC 5362, heard September 16, 2019, released September 17, 2019;
R. v. Khan, 2019 ONSC 5646, heard September 23 and 24, 2019, released September 30, 2019;
R. v. McMillan, 2019 ONSC 5616, heard September 26, 2019, released October 2, 2019; and,
R. v. Khurshid and Phillips, 2019 ONSC 5825, heard September 30 and October 1, 2019, released October 8, 2019.
6Each of these decisions held that the elimination of peremptory challenges during the jury selection process is a matter of procedure and not the loss of a substantive right such that the repeal of s. 634 of the Code was to operate retrospectively.
7In R. v. Chouhan, 2019 ONSC 5512, heard September 16, 2019 and released September 24, 2019, the accused sought an Order declaring that the repeal of s. 634 of the Code and the elimination of peremptory challenges was a breach of his constitutional rights under ss. 11(d), 11(f) and 7 of the Canadian Charter of Rights and Freedoms. In the alternative, the accused argued that even if the amendments were found to be constitutional, they do not apply retrospectively.
8In Chouhan, McMahon J. held that the repeal of s. 634 of the Code did not violate ss. 11(d), 11(f) and 7 of the Charter. McMahon J. further held that the repeal of s. 634 of the Code and the elimination of peremptory challenges was a procedural amendment which applied retrospectively to eliminate peremptory challenges on all matters before the Court as of September 19, 2019. McMahon J. expressly agreed with the decision of Thomas J. in Lako and McDonald.
9In R. v. Scarlett, 2013 ONSC 562, at para. 43, Strathy J. stated the following:
The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them. Reasons to depart from 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 could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.
10In Lako and McDonald, at para. 11, Thomas R.S.J. distilled the issue before him as follows:
The key task in determining the temporal application of the Amendments in issue…lies not in labelling the provisions “procedural’ or “substantive”, but in discerning whether they affect substantive rights.
11In dismissing the application, Thomas R.S.J. held that the substantive right which Lako and McDonald possessed in the selection of their jury was the right to a fair hearing by an independent and impartial tribunal and that the repeal of s. 634 of the Code did not impair that right. Thomas R.S.J. held that the availability of peremptory challenges under s. 634 of the Code was not a substantive right and that the elimination of peremptory challenges as a result of Bill C-75 therefore operated retrospectively.
12In Khan, at para. 29, Edwards J. held that the provisions of Bill C-75 that will now govern how a criminal jury is selected, including but not limited to the elimination of peremptory challenges, “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.”
13At para. 30 of Khan, Edwards J. concluded that 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.”
14In McMillan, Dambrot J. declined to embark on a full consideration of the issue of retrospectivity of the new jury selection procedures mandated by Bill C-75. Dambrot J. considered the submissions of the accused who argued that the decisions of Thomas R.S.J. in Lako and McDonald and of McMahon J. in Chouhan were plainly wrong and should not be followed.
15After reviewing these cases in the context of the accused’s specific submissions, Dambrot concluded, at paragraphs 9 of McMillan that “I cannot possibly say that the Ontario judges are plainly wrong.” Dambrot J. deferred to the decisions of Thomas R.S.J. and McMahon J. and dismissed the application before him.
16In Khurshid and Phillips, Bielby J. considered the analysis and conclusions in Lako and McDonald, Chouhan, Khan and McMillan. Bielby J. concurred with the logic and findings of Edwards J. in Khan and the reasoning in the Chouhan and Lako decisions and dismissed the application before him.
17In my opinion, there is little utility in reiterating the reasoning and conclusions of my colleagues Thomas R.S.J., Edwards J. and Bielby J. I have read each of their decisions carefully in the context of the accused’s submissions before me. I have found each of these decisions to be logical and consistent with each other. I am not persuaded that these decisions are “plainly wrong.” I agree with each of these decisions and concur that the elimination of peremptory challenges in the jury selection process operates retrospectively.
18The application is dismissed.
The Hon. Mr. Justice J.S. Fregeau
Released: October 17, 2019
COURT FILE NO.: CR-18-60-MO
DATE: 2019-10-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JASON KAKEKAGUMICK
REASONS ON APPLICATION
Fregeau J.
Released: October 17 , 2019
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