RULING ON APPLICATION FOR A DECLARATION THAT THE LEGISLATION REPEALING SS. 633 AND 634 AND AMENDING S. 640 OF THE CRIMINAL CODE IS UNCONSTITUTIONAL AND OF NO FORCE AND EFFECT

INTRODUCTION

[1] The trial of Nicholas Johnson began on November 4, 2019 with pre-trial motions. The jury selection and the evidentiary portion of the proceedings commenced on November 14, 2019.

[2] The Applicant is charged with the second-degree murder of Virgil Jack, contrary to section 235(1) of the Criminal Code.

[3] Bill C-75: An 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 (the Act) was introduced in Parliament on March 18, 2018 and received Royal Assent on June 21, 2019.

[4] On September 19, 2019, the Act received Royal Assent. Clauses 269 and 272 came into force. Clause 269 of the Act replaces sections 633 and 634 of the Criminal Code, thereby eliminating peremptory challenges during the picking of the jury.

[5] Clause 272 of the Act amends section 640 of the Criminal Code. It altered the procedure for dealing with challenges for cause. Under the new procedure, it is the presiding judge who is to determine whether the grounds for the challenge are true. This removed the trier’s role in deciding the validity of a challenge.

[6] On November 12, 2019, after several other pre-trial motions were heard and decided, the Applicant brought this motion challenging the constitutionality of the amendments to the way in which the jury would now be assembled.

[7] I dismissed the application that day with written reasons to follow. These are the reasons.

The Applicant’s Position

[8] The Applicant argued that the changes to the jury selection process affect the independence of the jury and infringe his right to life, liberty, and security of the person. The amendments also infringe his right to a fair and public hearing by an independent and impartial tribunal.

[9] As well, the Applicant argued that the legislative amendments do not simply replace the peremptory challenge but creates a new process whereby he cannot participate in the selection of his jury. The new process completely severs off a fundamental part of the jury’s role and its structure that section 11(f) of the Canadian Charter of Rights and Freedoms guarantees. Moreover, these amendments prevent him from participating in the selection of the jury and obtaining a fair trial, which violates section 7, 11(d), and 11(f) of the Charter.

[10] Section 1 of the Charter cannot, the Applicant maintained, save the provisions. The objective is not sufficiently pressing and substantial to justify overriding the constitutionally protected rights under sections 11(d) and 11 (f) of the Charter. Further, the “Oakes” (R. v. Oakes, [1986] 4 SCJ 103) proportionality test is not met.

[11] The Applicant asked the following constitutional questions:

a. Does the repeal of section 634 of the Criminal Code violate section 7 of the Charter?

b. Does the repeal of section 634 of the Criminal Code violate section 11(d) of the Charter?

c. Does the repeal of section 634 of the Criminal Code violate section 11(f) of the Charter?

d. Do the amendments to the section 640 of the Criminal Code violate section 7 of the Charter?

e. Do the amendments to the section 640 of the Criminal Code violate section 11(d) of the Charter?

f. Do the amendments to the section 640 of the Criminal Code violate section 11(f) of the Charter?

g. If one or more of questions in a. to f. are answered in the affirmative, can the amendments to the Criminal Code be saved under s. 1 of the Charter?

h. If the amendments to the Criminal Code cannot be saved under s. 1 of the Charter,1 can the repeal of s. 634 and the amendments to s. 640 of the Criminal Code be of no force or effect pursuant to section 52 (1) of the Constitution Act, 1982?

i. In the alternative, should an Order be issued declaring that the Application herein is rendered moot by virtue of the non-retrospective effect of the legislation repealing section 634 of the Criminal Code and/or the amendments to s. 640 of the Code.

The Crown’s Position

[12] The Crown is opposed to the following orders being sought by the Applicant, specifically:

i. Repealing the abolishment of peremptory challenges;

ii. Repealing s.633 of Bill C-75, which empowers the trial judge to stand aside jurors to maintain public confidence in the administration of justice;

iii. Repealing s. 640 of Bill C-75, which empowers the judge to decide all challenges for cause; and

iv. An order finding the legislation is not retrospective.

Cases Deciding This Issue

[13] Before the application came to me, Justice J. McMahon dealt with all these issues in R. v. Chouhan, 2019 ONSC 5512 and found:

The repeal of s. 634 of the Criminal Code (peremptory challenges) does not violate ss. 11(d), 11(f) and 7 of the Charter;
The amendments to s. 640 of the Criminal Code (eliminating lay triers and requiring the judge to make the determination on the challenge for cause) does not violate ss. 11(d), 11(f) and 7 of the Charter;
The repeal of s. 634 and the amendments to s. 640 of the Criminal Code operate retrospectively as they affected procedural aspects of the jury pick process.

[14] Although the Applicant did not withdraw this constitutional challenge despite Chouhan and all the cases that followed it in Ontario that found the jury amendments constitutional, retrospective or both, Mr. Bryant candidly acknowledged to me, before the matter was heard, that he did not expect the application to be successful.

[15] I commend Mr. Bryant for his remarks and his continuing adherence to his role as an officer of this Court.

[16] After Mr. Bryant’s acknowledgement and before the application was heard, however, the November 4 decision of R. v. Dale King 2019 ONSC 6386 was released. In that ruling on the same issues dealt with here and by the Chouhan case, A.J. Goodman j., of the Superior Court in Hamilton, Ontario came to different conclusions about the repeal of the peremptory challenge legislation.

[17] In agreeing that the amendments to s. 640 (challenge for cause) of the Code did not violate ss. 11(d), 11(f) and 7 of the Charter, Justice Goodman found the amendments to be constitutional. He also agreed that the provisions were to be applied retrospectively.

[18] However, with respect to the repeal of s. 634 of the Criminal Code (peremptory challenges), His Honor found that the repeal offended ss. 11(d), 11(f) and s. 7 of the Charter of Rights and could not be saved by s.1 of the Charter.

[19] As a result, he declared the repeal of s. 634 of the Code to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982.

THE ISSUES TO BE DECIDED

[20] The Applicant then relied on the reasons in the King case and submits that: first, I should also find that the repeal of the s. 634 is unconstitutional; and, second, as suggested by Justice Goodman, the remedy for the invalidity of that legislation should be that the Crown and the Applicant shall be permitted to exercise their right of peremptory challenges in accordance with ss. 634 and 635 of the Criminal Code, as they existed before September 19, 2019.

[21] Further, the Applicant submits that this Court is bound by the declaration of invalidity in the case of King based on the cases of R. v. Ferguson 2008 SCC 6 and R. v. McCaw 2018 ONSC 3464.

[22] The Crown argues that this Court is not bound by Justice Goodman’s declaration of invalidity. She submits that the principle that the courts should follow decisions of judges of coordinate jurisdiction is not merely a rule of collegiality. It is a principle that contributes to certainty in the law and accordingly to the vitality if the rule of law itself. In that regard, she submits that the decision in Chouhan should be followed by this Court.

[23] The Crown also maintains that the King decision cannot be followed, as the Applicant suggests, because Goodman J. has failed to properly reason why Justice McMahon’s and the judgments that follow it are plainly wrong. The Crown submits that it is the reasoning in the King decision which is plainly wrong.

DISPOSITION OF THE MATTER

[24] I rely on the Chouhan decision in dismissing Mr. Johnson’s application.

[25] The day this application was heard, and court had adjourned, Madam Justice Forestell released R. v. Enrique Gordon 2019 ONSC 6508, which deals with all the issues before me on this matter, including the King decision. She also, in the end, relied on the Chouhan case.

[26] I accept and adopt all her reasons in Gordon for dismissing this application.

[27] In summary, here are the reasons why.

[28] I find that the King decision is plainly wrong, based on the reasons in Gordon and I am not, therefore, bound by the declaration of invalidity of the repeal of the peremptory challenges legislation pronounced in the King case.

[29] Justice Forestell, at paragraph 17 of Gordon, found the following reasons why Justice Goodman was plainly wrong:

[17] I find that he was wrong in his analysis:

In holding that direct participation in the jury selection process by the accused through the peremptory challenge process is a guarantor of representativeness and that therefore the fair trial rights of the accused include a right to participate directly through the use of the peremptory challenge;
In holding that the inability to directly participate in the jury selection process is a violation of the accused’s right under s. 11(d) to a fair trial by an independent and impartial tribunal. In reaching this conclusion, in my view, Goodman J. articulated the correct objective test but failed to apply it;
In holding that the safeguard of the enhanced stand aside provision is ineffective in protecting the fairness of the process because the purpose of “maintaining public confidence in the administration of justice” is too vague and ambiguous;
In considering the adequacy of the safeguards (representativeness of the jury panel, randomness of the selection of the panel and the petit jury, challenge for cause, the discretion of the trial judge to excuse and the discretion of the trial judge to stand aside) individually rather than cumulatively;
In finding the legislation to be overbroad and a violation of s. 7 based on its potential effect to discriminate against minority accused by ignoring the availability of challenge for cause; and
In finding its application overbroad in that it applies in cases where there are no concerns for discriminatory use of the peremptory challenges as there is no basis to conclude that such cases exist.

[30] I also agree with Justice Forestell’s conclusion that in a constitutional case, the decision of judges of coordinate jurisdiction are not binding. In finding that Justice Goodman’s conclusions were plainly wrong, it was open to her not to follow his declaration of invalidity. She asked herself and found, at paragraph 8 to 14 of her ruling that:

Am I bound by the decision of Goodman J declaring the Act repealing s. 634 to be of No Force and Effect?

[9] In R. v Ferguson, Chief Justice McLachlin, writing for the Court, considered what remedy a trial judge is entitled to grant once finding that a particular provision violates the Charter. She explained that:

35 Two remedial provisions govern remedies for Charter violations; ss. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. … Section24(1) has generally been seen – at least until now – as providing a case-by case remedy for unconstitutional acts of government agents operating under lawful schemes whose constitutionality is not challenged. The other remedy section, s. 52(1) of the Constitution Act, 1982, confers no discretion on judges. It simply provides that laws that are inconsistent with the Charter are of no force and effect to the extent of the inconsistency.

[10] She went on to hold that:

59 When a law produces an unconstitutional effect, the usual remedy lies under s.52(1), which provides that the law is of no force or effect to the extent that it is inconsistent with the Charter…s.52(1) does not create a personal remedy. A claimant who otherwise has standing can generally seek a declaration of invalidity under s.52 on the grounds that a law has unconstitutional effects either in his own case or on third parties…

65 The presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case- by-case remedies. To the extent that the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand. It is null and void, and is effectively removed from the statute books.

[11] R. v. Ferguson has been interpreted to mean that when a judge of a Superior Court has declared a law to be invalid under s. 52(1) of the Constitution Act, the declaration is binding on all courts of concurrent or lower jurisdiction. This was the interpretation of Ferguson in R. v. McCaw. In R. v. Chan, (2019 ONSC 783), Boswell J. reached a different conclusion. Relying on the decision of Strathy J. (as he then was), in R. v. Scarlett, Boswell J. concluded that in a constitutional case, the decisions of judges of coordinate jurisdiction were not binding. There is however, strong reason for heightened judicial restraint on the part of judge considering the same issue following a finding by a judge of coordinate jurisdiction that the provision is unconstitutional.

[12] Justice Strathy, in R. v. Scarlett at para. 43 stated:

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., […] R. v. Northern Electric Co. Ltd., […] Reasons to depart from a decision, referred to in Hansard Spruce Mills, include

(a) that the validity of the judgment has been affected by subsequent decisions;

(b) that the judge overlooked some binding case law or a 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…

[13] I agree with the analysis and conclusion of Boswell J. in R. v. Chan and I conclude that I am not bound by the declaration of invalidity by Goodman J. in R. v. King.

[14] I also agree that in this case, where there is a prior decision declaring the Act unconstitutional, I should follow that decision unless it is plainly wrong. The decision should be followed unless there are cogent reasons to depart from it.

[31] As a result, and for these reasons, I find that:

I am not bound by the s. 52(1) declaration of invalidity, by Goodman J., of the repeal of s. 634 of the Criminal Code (peremptory challenges);
The decision of Goodman J. is plainly wrong;
The repeal of s. 634 and the amendments to s. 640 of the Criminal Code are constitutional; and
The legislation repealing s. 634 and the amendments to s. 640 of the Criminal Code operate retrospectively as they affected procedural aspects of the jury pick process.

McWatt J.

Released: November 25, 2019

COURT FILE NO.: CR-18-40000571

DATE: 20191125

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Nicholas Johnson

Ruling

McWatt J.

Released: November 25, 2019

R. v. Johnson, 2019 ONSC 6754

Case Summary

RULING ON APPLICATION FOR A DECLARATION THAT THE LEGISLATION REPEALING SS. 633 AND 634 AND AMENDING S. 640 OF THE CRIMINAL CODE IS UNCONSTITUTIONAL AND OF NO FORCE AND EFFECT

INTRODUCTION

The Applicant’s Position

The Crown’s Position

Cases Deciding This Issue

THE ISSUES TO BE DECIDED

DISPOSITION OF THE MATTER

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 7

Legal Tests 1

Legislation 2