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PROCEDURE - Jury - Challenges for cause - Empanelling - Appeals - Powers of appellate court

Friday, March 05, 2021 @ 2:17 PM  


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Appeal by the Crown from a judgment of the Ontario Court of Appeal that set aside the convictions of two accused for terrorism offences and ordered a new trial. In 2013, the respondents Esseghaier and Jaser were charged with terrorism offences. The parties agreed that challenges for cause were necessary to ensure the impartiality of the jury. The trial judge refused Jaser’s request to exclude prospective jurors during the challenge for cause process by rotating triers. The trial judge imposed static triers in accordance with Jaser’s alternate position. Esseghaier and Jaser appealed their subsequent convictions on several grounds, including errors in the jury selection process. The appeal was bifurcated to address the jury selection issue first. The Court of Appeal found the trial judge should have granted Jaser’s request and that the imposition of static triers meant the jury had been improperly constituted. It concluded that the convictions could not stand, and the error could not be cured by the operation of the curative proviso in s. 686(1)(b)(iv) of the Criminal Code.

HELD: Appeal allowed; convictions restored. The jury was improperly constituted. The trial judge erred in concluding that the common law discretion to exclude prospective jurors while using rotating triers had been ousted. His alternative conclusion that even if the discretion existed, he would not have exercised it, was unreasonable. The curative proviso in s. 686(1)(b)(iv) of the Criminal Code could be applied to cure jury selection errors. Limiting the proviso’s application to cases where the jury was properly constituted would be plainly inconsistent with the purpose of the section, which was to expand the remedial powers of courts of appeal to engage with jurisdictional errors and assess any prejudice that might have flowed from them. The proviso could be used in the within proceeding as both statutory requirements in the proviso were met. The trial court had jurisdiction over the class of offence, as the offences at issue were indictable and the Ontario Superior Court of Justice had jurisdiction over all indictable offences. There was no prejudice to either respondent. The procedure used, though technically incorrect, was one of two alternatives by which Parliament sought to ensure that an accused’s right to a fair trial by an independent and impartial jury was protected. The actual implementation of the procedure by the trial judge and the static triers was handled with the requisite care and attention to ensure the fair trial rights of the respondents were protected. While Esseghaier and Jaser did not receive the specific jury selection process they wanted, the law did not demand procedurally perfect justice, but fundamentally fair justice, which is what they received. The remaining grounds of appeal were remitted to the Court of Appeal for determination.

R. v. Esseghaier, [2020] S.C.J. No. 102, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., October 7, 2020. Digest No. TLD-March12021011SCC