R. v. Daniel, 2019 ONSC 6920

COURT FILE NO.: CR-18-40000182-0000

DATE: 20191202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROYDEN DANIEL

Tara Brun, for the Crown

John Fennel, for Mr. Daniel

HEARD: November 12, 2019

Davies J.

A. Overview

1Mr. Daniel is charged with sexual assault and sexual interference. He has elected to be tried by judge and jury.

2On September 19, 2019, after Mr. Daniel made his election, a number of changes to the jury selection process came into effect, including the repeal of s. 634 of the Criminal Code, R.S.C. 1985, c. C-46, which entitled Crown and defence to a certain number of peremptory challenges.¹

3Mr. Daniel argued that abolishing peremptory challenges should not apply retrospectively to his case. He did not challenge the retrospective application of any of the other amendments to the jury selection process in Bill C-75. Nor did he challenge the constitutionality of the amendments.

4The only question on this application is whether the abolition of the peremptory challenge regime affects Mr. Daniel’s substantive rights. If it does, the amendment would apply to future cases only, not to Mr. Daniel’s case. If the repeal of s. 634 does not affect any substantive rights, the new regime would apply in his case.

5On November 13, 2019, I ruled that the repeal of s. 634 does not affect Mr. Daniel’s substantive rights and the abolition of peremptory challenges applies retrospectively to his case. These are my reasons for that decision.

6My decision was made in this matter before the Court of Appeal for Ontario released its decision in R. v. R.S., in which the Court held that the provisions in Bill C-75 limiting the availability of preliminary inquiries applies only prospectively because they affect a defendant’s substantive rights.² My decision was also made before the decision in R. v. Craig was released, in which Dawe J. found, relying on the Court of Appeal’s decision in R. v. R.S., that the elimination of peremptory challenges apply prospectively only because it negatively affects the defendant’s right to a jury trial.³ These reasons are based on the law it was at the time when the application was decided and should be read with this context in mind.

B. Legislative Amendments

7Section 634 of the Criminal Code granted the Crown and the defence a certain number of peremptory challenges in each case. If s. 634 applies in this case, Mr. Daniel and the Crown would each be entitled to 12 peremptory challenges.

8The repeal of s. 634 of the Code was part of broader reforms to the jury selection process. For example, the power to stand aside prospective jurors in s. 633 of the Criminal Code has been expanded to now allow a trial judge to stand aside a juror in order to “maintain public confidence in the administration of justice.” The challenge for cause process has also been amended: Trial judges are now tasked with deciding whether a prospective juror is acceptable or not acceptable, a task that was previously performed by jurors or prospective jurors acting as “triers”.

9Bill C-75 does not contain any transitional provisions for the repeal of s. 634 or the other amendments to the jury selection process. In other words, there is nothing in the legislation that explains whether the amendments are to apply retrospectively or prospectively only.

C. Does the abolition of peremptory challenges apply retrospectively?

10Legislative changes that affect substantive rights are presumed to apply prospectively unless it is clear that Parliament intended that they apply retrospectively.⁴ If, on the other hand, new legislation affects only the procedure to be followed and does not affect any substantive rights, it is presumed to apply to both pending and future cases.

11At the time this application was heard and decided, the question of whether the amendments to the jury selection process apply retrospectively had been considered by several judges of the Superior Court of Justice in Ontario. Some cases dealt only with the question of whether the amendments affect a substantive right, whereas others also considered whether the amendments to the jury selection process violate a defendant’s rights under ss. 7 or 11 of the Charter. In each Ontario case where the only issue was whether the repeal of s. 634 applies to existing cases, the court found that that amendment does not affect any substantive rights and it has retrospective application.⁵ There were conflicting decisions out of this Court on whether the abolition of peremptory challenges violates ss. 7 or 11(d) of the Charter. ⁶

12For example, in Chouhan, McMahon J. held that the amendments to the jury selection process, including the abolition of peremptory challenges, do not violate the Charter.⁷ He found that the safeguards that remain in place – the requirement for a representative panel, random selection and the ability to challenge for cause – will ensure the defendant’s right to an impartial jury is protected. The abolition of peremptory challenges does not interfere with that right. Having found the amendments constitutional, McMahon J. then addressed whether they apply retrospectively or prospectively. He found the amendments are procedural in nature and, as a result, apply retrospectively.

13In R. v. King, Goodman J. held that the abolition of peremptory challenges violates the defendant’s right to a fair trial before an independent and impartial jury under ss. 11(d) and 11(f) of the Charter. He also found that the legislation is overbroad, and therefore violates s. 7 of the Charter. He found that the repeal of s. 634 cannot be saved under s. 1 of the Charter. Goodman J. considered the changes to the challenge for cause process separately and held that they do not violate the Charter. Having declared the repeal of s. 634 of no force and effect, Goodman J. did not have to decide whether the elimination of the peremptory challenges applies retrospectively or prospectively.

14Finally, in R. v. Gordon, Forestell J. found that the decision in King, that the abolition of peremptory challenges violates s. 11(d) was plainly wrong, because it was “grounded in an unsupported conclusion that peremptory challenges guarantee representativeness and that the right of an accused to a fair and impartial trial includes a right to directly participate in jury selection through the exercise of peremptory challenges.”⁸ She also found that the decision in King, that the amendments violate s. 7 of the Charter was wrong. Forestell J. found that the amendments to the jury selection process were constitutional but did not consider whether they apply retrospectively.

15The issue of whether the changes to the jury selection process apply retrospectively has also been considered by the Supreme Court of British Columbia⁹ and the New Brunswick Court of Queen’s Bench.¹⁰ Those courts both found that the abolition of peremptory challenges affected a vested right and applies prospectively only.

16The decision of a judge of a coordinate jurisdiction is not binding on me. Nonetheless, I should follow the decision of another judge of the Ontario Superior Court of Justice unless it is plainly wrong.¹¹ To do otherwise would create uncertainty for defendants and the Crown, and could result in inequitable application of the law. Respecting judicial comity avoids creating conflicting decisions from the same Court with the same legal import.¹²

17The principle of judicial comity only applies, however, when there are no conflicting decisions from courts of coordinate jurisprudence on the issue at hand. When there are conflicting decisions, I am entitled to follow the decision I think is correct.¹³

18All the Ontario cases that dealt with the narrow issue of whether the abolition of peremptory challenges affects substantive rights held that it does not and that the amendment applies retrospectively. Nonetheless, the import of the decision in King is that repealing s. 634 is more than purely procedural and affects the substantive rights of the defendant. If the repeal of s. 634 violates a defendant’s rights under ss. 7 or 11 of the Charter, as Goodman J. found in King, it would follow that doing away with peremptory challenges is not purely procedural, but rather affects substantive rights. On that analysis, to the extent the amendment could be saved under Charter s. 1, it would be presumed to apply prospectively only.

19Being faced then with decisions from Ontario that conflict on the broader issue of whether the amendments to the jury selection affect substantive rights, it was open to me to follow the line of authorities I thought was correct. I agree with Forestell J. that the decision in King is clearly wrong. I prefer the reasoning in Gordon, Chouhan and Lakos and McDonald that eliminating the peremptory challenges does not impair the fair trial rights of Mr. Daniel or his ability to be judged by an independent and impartial tribunal. I find the amendments are purely procedural, and therefore apply retrospectively. The jury in Mr. Daniel’s trial will be selected according to the new amendments to the Code.

Davies J.

Footnotes

1. 1Bill C-75: An Act to amend the Criminal Code, the Youth Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25 [Bill C-75].
2. 22019 ONCA 906, 2019 CarswellOnt 18776.
3. 32019 ONSC 6732, O.J. No. 5934.
4. 4R. v. Dineley, 2012 SCC 58, 3 S.C.R. 272, at para. 10.
5. 5R. v. Lako and McDonald, 2019 ONSC 5362, O.J. No. 4666; R. v. Khan, 2019 ONSC 5646, O.J. No. 4918; R. v. McMillan, 2019 ONSC 5616, O.J. No. 5038; R. v. Khurshid, 2019 ONSC 5825; R. v. Kakekagumick, 2019 ONSC 6008, O.J. No. 5286; R. v. Muse, 2019 ONSC 6119.
6. 6R. v. Chouhan, 2019 ONSC 5512, O.J. No. 4797; R. v. King, 2019 ONSC 6386, 2019 CarswellOnt 17827; R. v. Gordon, 2019 ONSC 6508, 2019 CarswellOnt 18348.
7. 7Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
8. 8Supra at para. 42.
9. 9R. v. Subramanian, 2019 BCSC 1601, 158 W.C.B. (2d) 390.
10. 10R. v. Raymond, 2019 NBQB 203, 57 C.R. (7th) 1.
11. 11R. v. Scarlett, 2013 ONSC 562, O.J. No. 644, at para. 43.
12. 12Re Handsard Spruce Mills Ltd., 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), at 591.
13. 13Young et al. v. 503708 Ontario Ltd, 1986 CanLII 2471 (Ont. H.C.J.).```