Court File and Parties
COURT FILE NO.: CR-17-6155 DATE: 20200507 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – F.I. and E.M. Defendants
COUNSEL: C. Pakosh, for the Crown P. Lam, for the Defendant, F.I. H. Bassi, for the Defendant, E.M.
HEARD: October 15-18, 21-25, 28-30 and February 18, 2020
Restriction on Publication
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.
Reasons re: Application for a Mistrial
CHARNEY J.:
[1] On October 30, 2019, F.I. was found guilty by a jury of one count of committing a sexual assault contrary to s. 271 of the Criminal Code.
[2] On October 30, 2019, E.M. was found guilty by a jury of one count of being a party to the offence of sexual assault with Mr. F.I. contrary to s. 272(2) of the Criminal Code.
[3] Both counts relate to the sexual assault of the complainant, M.S., on September 23, 2012.
[4] A sentencing hearing was set for February 18, 2020.
Application for Mistrial
[5] At the outset of the sentencing hearing, counsel for the defendants brought an application for a mistrial on the basis of the jury selection process that was used when the jury was chosen on October 15, 2019.
[6] The jury selection proceeded by way of the new procedures that came into force on September 19, 2019 [^1]. Accordingly, no peremptory challenges were made available to either party.
[7] At the outset of the hearing on October 15, 2019, I indicated that I intended to proceed under the new jury selection procedure, indicated how I intended to deal with juror hardship issues, and invited submissions from counsel. Crown counsel agreed with the proposed process, Mr. Bassi stated that my proposed process made sense, and Mr. Lam indicated that he agreed as well. No objection was taken and I was not asked to allow peremptory challenges.
[8] The Court of Appeal released its decision in R. v. Chouhan, 2020 ONCA 40, on January 23, 2020. That decision reversed the trial decision in R. v. Chouhan, 2019 ONSC 5512, and held that the abolition of peremptory challenges affected substantive rights and should not apply to the selection of the jury in cases where the accused had a vested right before September 19, 2019 to a trial by judge and jury as it existed in the prior legislation.
[9] The Court of Appeal noted, at para. 218, that Crown counsel specifically declined to invoke the provisions of s. 686(1)(b)(iv) of the Criminal Code to save as harmless any error in the application of the amendments.
[10] Mr. E.M. and Mr. F.I. have applied for a mistrial on the basis of the Court of Appeal’s decision in Chouhan, arguing that the incorrect jury selection process was used and therefore the jury was not properly constituted.
[11] After hearing submissions from counsel, I gave brief oral reasons dismissing the application for a mistrial, and indicated that I would provide written reasons with my sentencing decision. The sentencing decision was originally scheduled for April 21, 2020, but due to the public health crisis caused by COVID 19, was adjourned to June 3, 2020 by Order of the Chief Justice dated March 15, 2020. That adjournment was extended to at least July 7, 2020, by Order of the Chief Justice dated May 5, 2020. Given these adjournments and the continued uncertainty regarding when the sentencing decision will be scheduled, I have decided to release the written reasons for dismissing the application for a mistrial at this time.
[12] My reasons for dismissing the mistrial application are essentially the same as those given by Phillips J. in R. v. Azzi, 2020 ONSC 848. In that case, like the one before me, counsel did not object to using the new jury selection process and did not ask that peremptory challenges be allowed.
[13] Phillips J. concluded that he was not functus, and that he retained the jurisdiction to declare a mistrial even after the jury had given its verdict. He then decided that while he had the jurisdiction to declare a mistrial, he was of the opinion that a mistrial was not called for in the circumstances.
[14] Other judges have disagreed with Phillips J.’s conclusion that he retained the jurisdiction to declare a mistrial even after the jury had given its verdict, see: R v. Chizanga and Meredith, 2020 ONSC 2749, at para. 10 and R. v. Aristor, 2020 ONSC 2658, at para. 17.
[15] I offer no opinion on the issue of whether I retain the jurisdiction to declare a mistrial after the jury has rendered its verdict, because I share Phillips J.’s opinion that a mistrial is not called for in these circumstances. In his reasons, Phillips J. stated, at paras. 12 – 14:
I consider that this was a sexual assault case. I have no doubt that the complainant is not eager to testify again. The ordeal that this was for her is something to keep in mind.
A successful appeal is not a foregone conclusion. The application of the curative proviso was not decided in R. v. Chouhan, supra. Also, it remains unclear as to whether R. v. Chouhan will itself end up before the Supreme Court of Canada.
I see strong public interest in continuing forward. The public has a reasonable expectation that there be but one trial per indictment. The investment of time, money and emotional capital ought not be lightly squandered. A mistrial should only be declared as a last resort. I am not convinced that such a rare remedy is the only proper outcome in all the circumstances.
[16] These reasons apply with equal force to the case before me and I adopt them. In Chouhan, the defendant challenged the application of the new jury selection process at the commencement of the trial, arguing that they were not applicable to his case because they operate prospectively only. No such challenge was raised in this case, and I therefore agree with Phillips J. that, “[a] successful appeal is not a foregone conclusion”.
[17] Moreover, the Supreme Court of Canada has now granted leave to appeal the Court of Appeal decision in Chouhan, and this also militates against a post-verdict mistrial declaration pending the final resolution of this legal question.
[18] The defendants argue that this case can be distinguished from Azzi, because in Azzi, Phillips J. noted that the Crown had advised that it would not oppose Mr. Azzi’s receiving bail pending appeal. In the present case, the Crown has indicated that she does not yet have instructions on whether to oppose bail pending appeal.
[19] Mr. E.M. and Mr. F.I. have been on bail since their conviction on October 30, 2019. Given the Court of Appeal’s decision in Chouhan, they will certainly appeal their conviction, and it could not be argued that such an appeal is without merit. That said, I do not agree that the Crown’s position on a future bail application should be a factor to consider when deciding whether to declare a mistrial. The merit of a future bail application is a distinct issue, and it would be wrong to declare a mistrial because someone might not qualify for bail pending appeal.
[20] Accordingly, the application for a mistrial is dismissed.
Justice R.E. Charney
Released: May 7, 2020