Supreme Court asked to rule on jury selection decision
Changes to process have upended dozens of criminal cases in Ontario
The Crown is asking the Supreme Court of Canada to hear its appeal over a January ruling that has already upended highprofile Ontario sex assault and murder convictions and threatens dozens more.
The judgment, R v. Chouhan, was released by the Ontario Court of Appeal last month. The province’s top court had been tasked with ruling on the constitutionality of changes made to the jury selection process that took effect on Sept. 19. Among them, the federal government abolished what are known as peremptory challenges, which allowed both Crown and defence lawyers to reject a specific number of potential jurors without having to give a reason.
The court ruled that if an accused person opted for a trial by jury before Sept. 19, they had a right to use peremptory challenges during jury selection, even if it took place after that date.
The ruling potentially affects about 45 completed criminal cases, in which peremptory challenges were not used during jury selection, including murder and sexual assault cases. Those cases may have to be retried as a result of the Chouhan ruling.
The judgment also led to three mistrials being declared in ongoing trials in the days after the appeal ruling was released.
The Crown must first ask the Supreme Court for permission to hear its appeal — known as seeking leave — and there is no guarantee that the court will hear it. The Supreme Court hears appeals from less than three per cent of judgments from the Court of Appeal, according to the latter court’s website.
“The decision to seek leave to appeal to the Supreme Court of Canada was made by the most experienced prosecutors in the criminal law division,” said Brian Gray, a spokesperson for the Ministry of the Attorney General.
Prosecutors will outline their arguments on why the top court should hear their appeal in a memorandum that will need to be filed by mid-March.
Gray said that the federal government’s Bill C-75, which implemented the jury selection changes, did not include provisions that would have provided guidance on whether the amendments should be applied to ongoing court cases. (The federal department of justice has stated publicly that the amendments should only be applied to new cases.)
“Ontario believes this case raises issues of national importance that requires guidance from the Supreme Court of Canada,” Gray said.
The vice-president of the Criminal Lawyers’ Association said the possibility of so many retrials in an already-clogged system could have been avoided if the Ontario government had simply asked the Court of Appeal last year for guidance on whether the changes should only be applied to new cases, rather than maintain that the changes affected ongoing cases as well.
“And so the provincial government’s approach was reckless, it was irresponsible, and it now amounts to a further waste of precious court resources and leaves countless cases in limbo while they delay finding a solution to this problem,” said vicepresident Daniel Brown. “What they should simply do is acknowledge their mistake, retry these cases or find another way to resolve them, and move forward.”
While the Supreme Court decides whether to hear the Chouhan appeal, the Court of Appeal is expected to continue to hear appeals of potentially affected cases which could lead to retrials.
One affected case headed to the Court of Appeal is the College Street Bar case, in which owner Gavin MacMillan and manager Enzo DeJesus Carrasco were convicted by a jury of sexually assaulting and drugging a 24-year-old woman for several hours at the downtown establishment. The pair was sentenced Wednesday to nine years in prison. They are appealing and their convictions are expected to be overturned as they were not allowed to use peremptory challenges during jury selection.
“There is going to be another trial,” said Court of Appeal Justice James MacPherso n Wednesday, at a hearing to determine whether MacMillan should be granted bail pending his appeal.
“This is very unusual.”