New Challenges to the New Jury Selection Process on the Basis of Partiality or Bias

R v Esseghaier, 2019 ONCA 672

This case arose from Mr. Esseghaier and Mr. Jaser’s appeals of their convictions of conspiracy to murder for the benefit of a terrorist organization and participating in terrorist activity. They were accused of planning to de-rail a passenger train and at trial, they were sentenced to life in prison.

The accuseds took issue with the selection of their jury. As their case was highly publicized and the accuseds were Muslim (a visible minority) questions were necessary to be put to potential jurors to determine if there is any issue with partiality or bias. Such is called a challenge for cause. A challenge for cause must be tried and a determination made if the cause is true and if the juror must be excluded or not. A layperson, either a “static” or a “rotating” trier will hear and determine the challenges for cause. Static triers will not themselves also be members of the jury, but rotating triers will also serve on the jury.

Mr. Jaser asked for rotating triers to determine challenges for cause and to exclude jurors from the court while such challenges were being heard to prevent potential jurors from hearing the answers of other jurors. Mr. Esseghaier made no applications about such juror issues. The trial judge decided he had no power or discretion to exclude potential jurors during a challenge for cause tried by rotating laypersons due to provisions of the Criminal Code which articulated that jurors could only be excluded where static triers were used. He ordered all jurors (those sworn into the actual jury and potential unsworn jurors) be excluded and the challenges for cause be heard by static triers, instead of rotating, despite Mr. Jaser’s application.

The Court of Appeal ruled the trial judge made an error in holding that he had no discretion to exclude potential jurors while rotating jurors tried the challenges for cause. The accuseds argued they are entitled to a new trial as this error affected substantive and fundamental rights and cannot be remedied by the curative proviso in the Criminal Code.

The Court of Appeal allowed their appeal and outlined three procedural options for challenges for cause: rotating triers with no jurors excluded, rotating triers with unsworn (i.e. potential) jurors excluded, or static triers with all (sworn and unsworn) jurors excluded. Depriving an accused of an option results in an improperly constituted jury. Further, a trial judge ought not to order or force a static trier, where it is not applied for by an accused. Excluding potential jurors while using rotating triers cannot be refused merely because there is a better way to maintain impartiality by excluding all jurors. It effectively removes the ability for an accused to use rotating triers at all; thereby removing a validly available option to an accused.

In searching for a remedy to this error, generally where a jury has been selected by a challenge for cause procedure that deprived an accused the option to select the method of composition of the jury, the verdict cannot stand and the remedying power of the curative proviso in the Criminal Code does not apply. The curative proviso doesn’t apply to fix this error because it only applies to fix errors made by a properly constituted court, to which the jury would not have been properly constituted, and it only applies where no prejudice resulted from the error, to which the prejudice here arose from the negative effect on the appearance of fairness and administration of justice.

However, upon appeal to the Supreme Court of Canada, the top court determined the remedying provision of the Criminal Code, the curative proviso, does indeed apply, and the matter is now sent back to the Court of Appeal to address the other grounds of appeal. Their reasons for the application of the curative proviso are pending.

Commentary

The Ontario Court of Appeal seems to have it right that a judge cannot improperly deprive an accused of an option they rightly had available to them and chose to use. It will be interesting to see the Supreme Court’s reasons for why the proviso does apply considering it is plain the jury would not have been properly constituted if it was done in error by not allowing an accused access to an option they are rightly entitled to. While it is hard to say whether any prejudice or change arose merely out of the method of the challenge, it is clear the prejudice arose from a negative impact on the appearance of fairness and on the administration of justice. A judge ought not to have any right, as the Court properly identified here, to deprive an accused of an option and preference validly available for how to try such issues.

Additionally, given the changes to juries in September 2019 due to Bill C-75 which eliminated peremptory challenges and eliminated layperson triers to challenges for cause (only judges complete such function now), as well as the Supreme Court’s recent determination in R v Chouhan, 2020 ONCA 40 (reasons pending) that such changes have retrospective application; part of the decision of the top court will inevitably have to address the impact such legislative amendments had or did not have based on the timing of this case. Discussion will likely also arise as to whether the two accused faced any prejudice because of such error to justify not using the curative proviso.