Court File and Parties

COURT FILE NO.: 295/18

DATE: 2019/12/13

SUPERIOR COURT OF JUSTICE – ONTARIO

Re: Her Majesty the Queen, Respondent

J.H., Applicant

Before: Justice J.C. George

Counsel: Jason Miller, for the Crown Geoff Snow, for the Applicant J.H.

Heard: December 2, 2019

Date: December 13, 2019

ENDORSEMENT

[1] The Applicant is charged with one count of sexual assault and one count of simple assault. His trial commences December 16, 2019 and is expected to last five days. He has elected to be tried by a court composed of a judge and jury.

[2] When this trial date was selected the Applicant was entitled to twelve peremptory challenges pursuant to s. 634 of the Criminal Code. On September 19, 2019 Bill C-75 came into force eliminating peremptory challenges. On November 4, 2019 Goodman J. found that the repeal of s. 634 violated ss. 7, 11(d) and 11(f) of the Charter and declared it of no force and effect; R v. King 2019 ONSC 6386.

[3] The Applicant asks that I affirm King and allow him to exercise peremptory challenges. In the alternative, he seeks a finding that the amendments relating to challenges operate prospectively and do not apply to his trial. In the further alternative, he asks that I exercise my discretionary authority to protect the integrity of the trial process and allow twelve peremptory challenges. In the further alternative, he seeks permission to make submissions as to whether members of the jury panel ought to be excused or directed to stand by, one at a time and in the absence of the jury.

[4] The Applicant acknowledges that other Superior Court judges have upheld the legislation, but contends that s. 52(1) requires that once a Superior Court judge finds a law inconsistent with the Constitution – which Goodman J. did - the law is of no force and effect for all future proceedings, notwithstanding prior conflicting decisions.

[5] He cites the Supreme Court’s comments R. v. Ferguson, 2008 SCC 6 where at para 65 the majority writes:

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: see Osborne, per Wilson J. In cases where the requirements for severance or reading in are met, it may be possible to remedy the inconsistency judicially instead of striking down the impugned legislation as a whole: Vriend; Sharpe. Where this is not possible – as in the case of an unconstitutional mandatory minimum sentence – the unconstitutional provision must be struck down. The ball is thrown back into Parliament’s court, to revise the law, should it choose to do so, so that it no longer produces unconstitutional effects. In either case, the remedy is a s. 52 remedy that renders the unconstitutional provision of no force or effect to the extent of its inconsistency. 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.

[6] The Applicant highlights the fact that s. 52(1) of the Constitution Act and s. 24(1) of the Charter are distinct. Unlike s. 24(1), s. 52(1) does not create a personal remedy. He argues that such a ruling applies to all future cases, including those in courts of coordinate jurisdiction.

[7] The Crown points to what I will call the “constitutional seven” – those Superior Court decisions that have upheld the constitutionality of the repeal of s. 634: R. v. Brooks, 2019 ONSC 6866; R. v. Johnson, 2019 ONSC 6754; R. v. Gordon, 2019 ONSC 6508; R. v. Fan, Unreported Decision of MacDonnell J. from October 2, 2019; R. v. Chouhan, 2019 ONSC 5512; R. v. Muse, 2019 ONSC 6119; and R. v. Maggiore and Sharpe, 2019 ONSC 6212.

[8] It argues that I should approach the Applicant’s request in two stages. First, I must determine whether King is binding. If I find that it is, then we are done. The amendment in respect of peremptory challenges is of no force and effect (until the Court of Appeal decides otherwise or Parliament addresses the problem) and the parties are entitled to twelve peremptory challenges. Second, if I am not bound, I must then determine whether King, or the constitutional seven, is plainly wrong. At that point I would be left with no choice but to decide which line of reasoning is correct.

[9] I agree with the Crown that, in circumstances like those present here, doctrinal considerations suggest that a s. 52(1) declaration is not binding. I appreciate that, in the normal course, it is far preferable to strike down a law rather than work around a constitutional deficiency on a case-by-case basis. In fact, this is not just preferable, the Supreme Court tells us that this is the only way to avoid endless litigation, across different cases within the same territorial jurisdiction, on a question that has already been decided.

[10] However, we must at the same time recognize that this flows from the principle of stare decisis which dictates that, absent exceptional circumstances, lower courts must follow the decisions of higher courts. The principle of judicial comity, while similarly requiring deference and respect of other judicial decisions, is somewhat more flexible. Judicial comity, as applied to courts of coordinate jurisdiction, means that, unless there are compelling reasons not to do so, a colleague’s decision should be followed. Correctness, and whether the other court was “plainly wrong”, are considerations but not determinative.

[11] In Ferguson the court rejected case specific remedies for mandatory minimum penalties that violate the Charter. This made perfect sense. What Ferguson did not do was fundamentally alter the relationship between courts of coordinate jurisdiction. Which means, to blindly apply Ferguson to this instance would lead to an absurdity. It must be the case that another Superior Court judge can disagree with Goodman J., especially where several of his colleagues had already determined that the amendments are valid and constitutional. That then begs this question: If King does not have the effect of retrospectively binding those other judges, why would it bind me now? The answer is, it does not.

[12] I agree with the Crown that policy considerations demand that, in circumstances like these, a s. 52(1) declaration is not binding. This is so for two reasons. First, to conclude that in all cases such a finding binds all courts at the same level would be to interpret Ferguson much too literally. Consider that passage from Ferguson which indicates that a finding of unconstitutionality does not just apply to the case at hand but effectively removes it from the “statute books”. To interpret that literally would be to say that no appellate court could even revisit the issue. That of course is not and cannot be true. At para. 17 of its factum the Crown puts it this way:

Those passages [from Ferguson] could not have been intended to be read so literally; because, so read, they would suggest that no court can reconsider a s. 52(1) declaration. There is, however, no dispute that an appellate court in a later case could hold that a declaration was wrongly issued or overrule it and find the law constitutionally valid. This flows naturally from the ordinary rules of stare decisis governing the relationship between lower and higher courts. There is no support for a broader interpretation of s. 52(1) as ousting the rules of horizontal precedent while preserving the rules of vertical precedent.

[13] Second, King post-dates several of the constitutional seven cases including Chouhan, Fan, Muse, and Maggiore and Sharpe. To say that King is binding means the findings of validity in each of those cases are only persuasive. To take this argument through to its logical conclusion would be to say that King overrules all of the constitutional seven cases. As a matter of common sense that cannot be true. Superior Court judges can certainly disagree with each other, but in no way can one directly overturn another’s judgment, let alone bind them in future cases.

[14] I must now determine whether it is King that is wrongly decided, or the constitutional seven. I am of the view that King is plainly wrong. I fail to see how the right to a fair trial comprised of a jury, which is Charter protected, necessarily means the parties must have the right to exercise peremptory challenges. The Applicant will have a fair trial. The Applicant will be judged by a jury of his peers who will act independently and impartially. He is entitled to this under the law. What the law does not now allow for is the exercise of peremptory challenges. This has no bearing on the Applicant’s Charter protected right to a jury trial. He requested one and he will have one. His jurors will be randomly selected and will only serve if they survive the judicial vetting process.

[15] I will in a moment directly address whether the elimination of peremptory challenges affects a substantive right, but if it does not - which many of my colleagues have held and which is a reasonable conclusion - how could it then be a Charter protected right? The former is debatable and an issue upon which reasonable people can disagree. The latter is a straightforward question for which the answer is clear.

[16] I say that King is wrong for several other reasons. First, despite the amendments the accused is still entitled to participate in the jury selection process through challenges for cause and the enhanced stand aside provisions. Second, on the issue of representativeness, it would be near impossible to guarantee a representative petit-jury. The important question is whether the jury roll is representative, and while there are certainly systemic problems that often prevent this from occurring (seen often in the context of Indigenous representation), the exercise of peremptory challenges has no bearing on or relevance to that issue.

[17] Furthermore, an accused can still directly participate in the selection process by making submissions within the new and enhanced stand aside provision. And, again, if they so choose and if sufficient grounds exist, they can challenge a juror for cause. Which means, and I agree with the Crown on this point, the real issue is not whether an accused can participate but rather whether they have the ability to control the outcome of that participation, which an accused is not entitled to. McMahon J. puts it this way in Chouhan at para. 54:

…if either party can articulate reasons why a prospective juror would not be impartial, the judge would clearly have the ability to stand aside a prospective juror to maintain public confidence in the administration of justice. This process would be transparent and open. It also may be reviewable. It provides another degree of transparency and fairness to ensure the jury is impartial.

[18] Defence counsel will be able to address lingering questions about a particular juror’s suitability, impartiality or competence. Should such concerns be raised, I will ensure that counsel’s submissions are made in the absence of the jury and remaining panel members.

[19] In King Goodman J. expressed concern over the scope of the new stand-by provision. In his view its breadth and processes are not fully articulated. On this point I agree. However, that does not render it unconstitutional. First of all, Judges are presumed to exercise their discretion in a Charter compliant manner. Second, over time case law will develop adding body and meaning to the provision. That does not mean the provision, as it now stands, is deficient. In fact, our common law system is predicated on jurisprudential guidance evolving over time, which is often preferable to overly rigid statutory rules.

[20] I turn now to the issue of retrospectivity. Notwithstanding several Ontario decisions to the contrary the Applicant asks that I find the amendments do not operate with retrospective effect. To accept the Applicant’s argument would require a finding that RSJ Thomas was plainly wrong in Lako and McDonald, 2019 ONSC 5362. I am unable to do that.

[21] In my view Lako and McDonald, and those other cases that agree with its findings, were correctly decided. The changes apply retrospectively as they are purely procedural and do not affect substantive rights.

[22] People often conflate this basic question – whether a change is substantive or procedural in nature – with whether it places an accused in a better or worse position than before. This is not the right question to ask. With some constitutional restraints, Parliament can change evidentiary and procedural laws and rules even if they are disadvantageous to an accused. Consider these comments from the Court of Appeal in R. v. Bickford (1989), 1989 CanLII 7238 (ON CA), 51 C.C.C. (3d) 181:

As a matter of fundamental principle, a statute is not to be construed as having a retrospective operation unless such a construction is made evident by its term or arises by necessary implication. However, the presumption against retrospective construction has no application to enactments which relate only to procedural or evidentiary matters. Speaking generally, no person can be said to have a vested right in procedure or a right in the manner of proof that may be used against him. Corroboration is a procedural or evidentiary matter going only to proof of the offence. An accused has no right to have the charge against him proved by corroborated evidence or to require corroboration as a pre-condition to his conviction. His right is to be tried according to law; that is, in accordance with the evidentiary rules and procedural requirements in effect at the time of his trial.

The amendments in question clearly do not alter the essential elements of the offence with which this respondent is charged; the substance of the law he is alleged to have violated remains unchanged.

[23] The issue in Bickford – whether a child’s testimony must be corroborated (which the law once required) – is closer to resembling a substantive right than peremptory challenges. That is to say, the changes considered in Bickford were far more consequential than the changes I am considering here. The Applicant’s argument is essentially that an accused’s subjective perception of their jury amounts to a vested right, which is an argument I must reject.

[24] In the result, I find that the amendments do not affect the Applicant’s substantive rights and therefore operate retrospectively. In the event I am wrong, I find that even if the elimination of peremptory challenges is to affect a substantive right it has not vested and cannot be vested unless and until an accused is called upon to exercise it. For the Applicant that has not yet happened.

[25] The Applicant argues that, even with the elimination of peremptory challenges from the Criminal Code, I retain the inherent right at common law to permit them nonetheless. I disagree. Whether you agree with its legislative decision or not, Parliament discarded peremptory challenges for a reason: to eliminate the ability of a party to exclude potential jurors for what often amounted to capricious – and sometimes racist – reasons.

[26] I find that I have no inherent authority to modify the codified procedure for jury selection. In the event I am wrong and I indeed do have that authority, no articulable reason has been advanced to justify the use of my discretion in that way in this case.

[27] The last issue to address is whether to permit counsel to make application to excuse or stand aside a juror in the absence of the jury panel, one at a time.

[28] Section 632 of the Criminal Code grants broad power to excuse jurors from service. It provides as follows:

632. The judge may, at any time before the commencement of a trial, order that any juror be excused from jury service, whether or not the juror has been called pursuant to subsection 631(3) or (3.1) or any challenge has been made in relation to the juror, for reasons of

(a) personal interest in the matter to be tried;

(b) relationship with the judge presiding over the jury selection process, the judge before whom the accused is to be tried, the prosecutor, the accused, the counsel for the accused or a prospective witness; or

(c) personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused.

[29] Before the amendments a judge had the ability to stand aside a panel member. This power is now expanded. Under the old regime a judge could direct a potential juror to stand by for reasons of personal hardship or any other reasonable cause. Now, a juror can also be stood aside in order to maintain “public confidence in the administration of justice”. This is to ensure that potential jurors are impartial and capable of performing their duties.

[30] The selection process once worked like this: The presiding judge would consider whether to excuse, or stand aside, a potential juror once their number was randomly selected and asked to come forward. That decision was often made without inviting submissions from counsel. The Applicant takes the position that he should be permitted to make submissions for each potential juror whose number is selected - one at a time and immediately following the judicial vetting process - in the absence of the panel and potential juror.

[31] At paras 91 to 93 of his factum, the Applicant elaborates on why he believes this is necessary:

91. It is submitted it is necessary to exclude all jurors while counsel are making submissions as to why a potential juror should be excused or stood aside in order to ensure that no bias or prejudice is created or exacerbated by counsel’s submissions, particularly in the event the application to excuse or stand aside the juror is dismissed and the juror remains on the jury.

92. It is submitted the subjective belief of an accused person that a juror is not impartial is a relevant factor in determining whether a juror’s inclusion on the jury would compromise public confidence in the administration of justice. As held in R. v. Gayle, “an accused may have a “hunch” about a prospective juror that cannot be proved. A lingering doubt about a juror’s partiality would taint the perception of a fair trial”.

R. v. Gayle, 2001 CanLII 4447 (ON CA), [2001] OJ No 1559 at para 59 (CA).

93. Therefore, it is submitted evidence need not be called in support of the application to excuse or stand aside a juror, and the judge can rely on the submissions of counsel articulating the subjective belief of the Applicant, whether or not there is an objective basis for the belief.

[32] The Applicant asks that we follow the practice typically used before the amendments. That is, twenty numbers (or whatever number of potential jurors can be agreed upon) be selected. As those selected come forward, I would provide them an opportunity to advise of any reason why they think they should be excused. Once this judicial vetting process is complete and we have twenty potential jurors assembled, he wants each to be asked to step forward and face the accused with the Registrar then directing the accused and potential juror to look upon each other. As I understand it, the Applicant wants the selected twenty, as well as the entire panel, excluded as this unfolds. In addition, at the point submissions are made he also wants the potential juror who just faced the accused to be excluded from the courtroom.

[33] I am of the view that it would be completely inappropriate to, as we once did, have each potential juror and the accused look upon each other before hearing from counsel. This is a recipe for disaster. In the absence of peremptory challenges it actually makes no sense whatsoever, for three reasons. First, this appears to be an attempt to do through the back door what cannot be done at the front. Second, it is inviting submissions and a consideration of factors that are no longer relevant to the selection process. What could I possibly hear as a submission in this context? The accused does not like the way the potential juror looks? He does not like the way the way the potential juror looked at him? To entertain this would be to allow for what the elimination of peremptory challenges was intended to avoid: excluding people because a party or counsel do not like the cut of their jib. Third, to go down this road is to put counsel in the position of potentially being a witness, which I must take all reasonable steps to avoid.

[34] I find that this particular procedure was specific to, and only makes sense, when peremptory challenges are being exercised.

[35] The long and short of it is this. If I am not going to permit that particular procedure, and given there is no challenge for cause, there is no value in excluding the panel at that stage. The better course is to simply select the jury in accordance with the new procedure; seat twelve jurors (or fourteen if there is a need for alternates); and then retire to another courtroom, outside the view of the panel and those selected to serve, with counsel then being afforded the opportunity to make whatever stand-aside submissions they wish. This is the procedure we will follow.

[36] In the result I dismiss the Application and affirm that the newly amended jury selection provisions will apply at the Applicant’s trial.

“Justice J.C. George”

Justice Jonathon C. George

Date: December 13, 2019