COURT FILE NO.: CR-17-0000737-0000
DATE: 2019-12-18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SINBAD MARSHALL
Craig Coughlan and David Steinberg, for the Crown
Mitchell Huberman and Christopher Hicks, for the Defendant, Sinbad Marshall
HEARD: October 21, 2019
R.F. GOLDSTEIN J.
Ruling on the elimination of peremptory challenges
[1] Sinbad Marshall was charged with first degree murder in the death of Stella Tetsos. The Crown alleged that Mr. Marshall beat Ms. Tetsos to death in her own home in November 2015. I was assigned as the trial judge. The jury was picked commencing on October 25, 2019. Prior to the jury pick, Mr. Marshall’s counsel sought a ruling that recent amendments to the Criminal Code eliminating peremptory challenges operated retrospectively. In other words, Mr. Marshall’s counsel wanted to conduct the jury pick using peremptory challenges even though that procedure had been eliminated by Parliament. The Crown opposed such a ruling.
[2] The question - whether or not the new provisions operate prospectively or retrospectively is obvious. The answer is not. There are no transitional provisions that would assist trial courts. Learned and respected judges in this province and others have reached different conclusions. None are obviously wrong. It is possible that an appeal court could determine that refusing peremptory challenges results in an improperly constituted jury: R. v Esseghaier and Jaser, 2019 ONCA 672; R. v. Noureddine, 2015 ONCA 770. That result is not inevitable; but it is obviously highly consequential. Trial judges are acutely aware that the answer could go to the jurisdiction to try the offence and the offender.
[3] On October 22, 2019, I ruled that the elimination of peremptory challenges did not operate retrospectively. Mr. Marshall did not have a right to use peremptory challenges when picking the jury. I found that the right to a jury trial is a substantive right. The right to peremptorily challenge jurors is a procedural right. I indicated that my reasons would follow. These are my reasons.
BACKGROUND
[4] A prosecutor or an accused person had a right to challenge a potential juror on the grounds that the potential juror is “not indifferent as between the Queen and the accused”: s. 638(1)(b). Prior to the recent amendments s. 640 of the Criminal Code set out the procedure for determining whether the challenge was “true”. Two “triers” made that determination. In other words, the triers determined whether the potential juror was “not indifferent” as between the prosecution and the accused person. If the person was determined to be partial, then he or she could not be sworn in as a juror.
[5] There were two types of jurors: rotating and static. Rotating triers simply meant that the last two sworn jurors would try the challenge. Since someone had to try the challenge for the first two sworn jurors, the Criminal Code stated that the “court” selected the first two triers. Trial judges commonly selected the first two members of the jury panel to be randomly selected from the drum as the first two triers.
[6] In practice, selecting a jury using rotating triers looked like this: the clerk of the court usually called up the first two potential jurors and swore them in. The next potential juror would be sworn in to answer a challenge for cause question. The question would be put by counsel – usually defence counsel, but sometimes rotated between Crown and defence. The potential juror would answer the question. The two triers would then confer and decide whether the potential juror was indifferent as between the prosecution and the defence. If the triers determined that the potential juror was not indifferent, then that potential juror could not be sworn in as a juror and would be dismissed or stood aside by the trial judge. If the potential juror was found not to be indifferent, then the prosecution or defence could exercise a peremptory challenge: Criminal Code s. 634(1). Generally, each accused received twelve challenges. In case of murder or high treason, each accused received twenty challenges. The prosecution received a number of challenges equal to the total granted to the accused: for example, where two persons were tried together for murder, the prosecution would have 40 peremptory challenges: Criminal Code, s. 634(2), (4).
[7] When the first juror was sworn, the first trier would be excused and that first juror would become a trier. When the second juror was sworn the second trier would be excused and the second juror would become a trier. The process would continue with the last sworn juror becoming a new trier until a jury was picked.
[8] An accused person could, on application, ask a trial judge to order static triers to determine the truth of the challenge. The procedure was exactly the same, except that the court could appoint two triers to hear all of the challenges. At the end of the process, the two triers would be dismissed.
[9] The history of the use of static and rotating triers was set out by Justice Doherty in Nourredine.
BILL C-75
[10] Paragraph (c) of the Summary of 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, commonly known as Bill C-75, stated the following:
This enactment amends the Criminal Code to, among other things:
(c) abolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice.
[11] Bill C-75 received Royal Assent on June 21, 2019. That was after Mr. Marshall was charged with first degree murder but prior to has arraignment before the jury panel and the commencement of his trial.
[12] Section 640(1) of the Criminal Code now states:
640 (1) If a challenge is made on a ground mentioned in section 638, the judge shall determine whether the alleged ground is true or not and, if the judge is satisfied that it is true, the juror shall not be sworn.
[13] Section 634 of the Criminal Code, which granted peremptory challenges to the prosecution and the defence, has simply been repealed.
[14] There is a general presumption against the retrospective operation of legislation where substantive rights are concerned: Peel Police v. Ontario (Special Investigations Unit), 2012 ONCA 292 at para. 72; R. v. Dinely, 2012 SCC 58 at para. 10.
[15] The question of whether Mr. Marshall had a right to a jury pick depended on whether the right to challenge a potential juror was a substantive right or a procedural right. Generally, changes to a substantive right operate retrospectively. Parliament is presumed not to eliminate a substantive right in the absence of some indication to the contrary. Where the right is merely procedural, there is no such presumption: Dinely, at paras 49-51 (Cromwell J. in dissent, but not on this point); Interpretation Act, ss. 43, 44.
[16] Parliament often enacts transitional provisions. Those provisions are usually designed to assist courts in interpreting whether a new provision is designed to operate retrospectively or prospectively. There are no transitional provisions in Bill C-75.
PRESUMPTIVE v. PROCEDURAL RIGHTS
[17] Mr. Hicks makes two principal arguments in favour of retrospectivity. First, he argues that the right to challenge jurors is a substantive right. The presumption against retrospectivity does not, therefore, apply. Second, an accused person has the right to participate in selecting his or her jury.
[18] Prior to my decision in this case, B. Thomas R.S.J. considered the issue in R. v. Lako and MacDonald, 2019 ONSC 5362, as did McMahon J. in R. v. Chouhan, 2019 ONSC 5512. To the contrary was the decision of Ferguson J. in R. v. Raymond (No. 4), 2019 NBQB 203.
[19] After I made my decision, other courts weighed in: see, for example, R. v. Craig, 2019 ONSC 6732, a decision of Dawe J. where he took a different approach from Thomas R.S.J. Some of these decisions concerned only retrospectivity; some concerned both retrospectivity and constitutionality.
[20] After my decision, but prior to the release of these reasons, the Ontario Court of Appeal set down an expedited hearing of the appeal of Chouhan. As of the time of the release of this decision, that Court had not yet heard the appeal.
[21] In R. v. Lako and McDonald, Thomas R.S.J. found that ultimately the right to a peremptory challenge was a procedural right. The substantive right is the Charter right to a fair and impartial jury. In doing so, he considered several cases that distinguished between substantive and procedural rights. For example, in Dinely the Supreme Court determined that altering a previously available statutory defence was clearly an alteration of a substantive right.
[22] In Chahoun, McMahon J. followed Thomas R.S.J. for the same reasons. He stated:
Mr. Chouhan has an absolute right to be tried by an independent and impartial jury. I have concluded that the elimination of the peremptory challenge process does not breach or impair Mr. Chouhan's right to a fair trial, and an independent and impartial jury.
[23] Most of McMahon J.’s reasons dealt with a Charter challenge to the elimination of peremptory challenges. He found no breach.
[24] In my view, based on the decisions at the time, deference required me to follow Thomas R.S.J. and McMahon J. unless I was convinced that their analysis was “plainly wrong”: R. v. Scarlett, 2013 ONSC 562.
[25] That was the position taken by Dambrot J. in R. v. MacMillan and Carrasco, 2019 ONSC 5616. The heart of Dambrot J.’s analysis of the difference between the two approaches was this:
The Ontario judges say that the legislation is retrospective because it is procedural and does not affect the fair trial rights of the accused, particularly their right to be judged by an independent and impartial tribunal. The accused, and the New Brunswick and British Columbia judges, do not claim that the amendments affect the right of an accused to a fair and impartial jury. Rather, they instead say that the amendments affect the procedures that protected that right by altering the "balance" in the procedural provisions. The Ontario judges say that that is the wrong test. I agree with them. The applicant's approach would make most procedural amendments to the Criminal Code retrospective. But more importantly, I cannot possibly say that the Ontario judges are plainly wrong.
[26] I agree with Dambrot J.’s analysis and apply it here.
[27] I am fortified in my decision by R. v. R.S., 2019 ONCA 906. The Court of Appeal ruled that the provisions of Bill C-75 dealing with the right to a preliminary inquiry did not have retrospective effect. While not precisely on point, the decision addresses other provisions in the same legislation.
DISPOSITION
[28] The application was dismissed.
R.F. Goldstein J.
Released: December 18, 2019
COURT FILE NO.: CR-17-0000737-0000
DATE: 2019-12-18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SINBAD MARSHALL
RULING ON THE ELIMINATION OF PEREMPTORY CHALLENGES
R.F. Goldstein J.