Court File and Parties

Court File No.: CR‑18‑30000168‑0000 Date Released Orally: 2020-01-06 Date Released in Writing: 2020-05-08 Superior Court of Justice – Ontario

Re: Her Majesty the Queen And: Jamal Morrison

Before: Copeland J.

Heard: January 6, 2020

Counsel: C. Moore, for the Crown E. Rolfe, for Mr. Morrison

Oral Reasons for Ruling

[1] Mr. Morrison has elected trial by jury. In light of the conflicting case law in the province, I asked counsel this morning for submissions on the statutory interpretation of the changes to the jury selection process made by Bill C75, and in particular, the issue of whether Parliament intended the changes to be retrospective or prospective. Mr. Morrison elected trial by jury prior to these amendments.

[2] As I have noted, there are conflicting decisions in this province by members of this court. Each decision is carefully considered. There are persuasive arguments to be made on both sides of the question. I will not list all of the decisions. Counsel have referred to some of them. They begin with the decision of Justice McMahon in this building in R. v. Chouhan, 2019 ONSC 5512, which is currently under reserve at the Court of Appeal. Subsequent decisions are summarized in the decision of Justice Dawe in R. v. Craig, 2019 ONSC 6732, and Justice Stribopoulos in R. v. Asif, 2019 ONSC 7031.

[3] In light of the conflicting decisions, at least on the issue of peremptory challenges, there is no longer an issue of judicial comity. There are two lines of cases, and my task at this point is to follow the interpretation of the provisions that I find most persuasive.

[4] I agree with the comment of Justice Stribopoulos in Asif at paragraph 10 that distinction between whether provisions are procedural or substantive is often tenuous. It is important to bear in mind that the procedural/substantive analysis is merely a tool to be used in determining the ultimate question, which is what was Parliament's intent regarding whether these provisions would operate prospectively or retrospectively?

[5] In relation to whether the changes involving the elimination of peremptory challenges operate prospectively or retrospectively, I do not intend to replicate the analysis that has already been engaged in, in the cases to date. Having considered both lines of cases, I find the reasons of Justice Dawe in Craig to be very persuasive. For this reason and for the reasons given in the Craig, I conclude that the repeal of s. 634 of the Criminal Code affects a substantive right. For this reason, the amendment operates only prospectively and Mr. Morrison will be permitted to exercise peremptory challenges.

[6] The issue is a little bit different in relation to challenge for cause and the amendment substituting the trial judge for the triers in deciding challenges for cause. It is different in the sense that, as far as I am aware, the case law is not conflicting in this province on whether the change is retrospective or prospective. The decided cases in this province hold that it is a procedural change and is retrospective. However, in other provinces it has been held to affect the substantive right and to be prospective.

[7] In considering the change in the law in relation to challenge for cause, in my view it is necessary to step back and look at the basic issue here, which is what was Parliament's intent about whether these provisions would operate retrospectively or prospectively?

[8] In my view, whatever the merits of the arguments on both sides of this question for individual aspects of the amendments to Bill C75, it cannot have been Parliament's intent that the changes to jury selection in Bill C75 come into effect piecemeal. There is nothing in text of the amendment to suggest that. In addition, the fact that some of the amendments appear interrelated, supports the proposition that all of the jury selection amendments were to have effect at the same time.

[9] To give just one example of this, the expanded stand‑aside power contained in the amendment to s. 633 appears clearly to be linked to the elimination of peremptory challenges.

[10] In light of my ruling that the peremptory challenge amendments apply only prospectively, in my view the same conclusion must follow for the amendments to the challenge for cause provisions.

[11] For these reasons, I find that the jury selection amendments in Bill C75 operate prospectively. Because Mr. Morrison elected trial by jury prior to the amendments, the pre‑Bill C75 selection procedures will apply.

Copeland J.