The process by which juries are selected and what defence counsel are required to do if they are not in agreement with the way the trial judge wants to proceed was front and centre in two Ontario Court of Appeal decisions this month.
Both appeals stemmed from the actions of now retired Superior Court justice Eugene Ewaschuk and his interpretations of an amendment to the Criminal Code in 2008, which permits “static triers” — the same two people — to consider whether any other juror is acceptable under a challenge for cause.
It is the fourth time that the conduct of Ewaschuk presiding over murder trials with respect to jury selection and this section of the Criminal Code has been before the Court of Appeal in the past 18 months.
A new trial was ordered in late 2015 for two men convicted of murder in R. v. Noureddine because of flaws in the jury selection process.
Last year, the Court of Appeal upheld murder convictions imposed on two accused in R. v. Grant & Vivian.
Earlier this month, the Court of Appeal agreed in R. v. Kossyrine and in R. v. Murray that Ewaschuk made errors in how the jury selection process was conducted but that it was not sufficient to order new trials. In Murray, however, the appeal was granted because the frequency of interruptions by Ewaschuk during the testimony of a key witness would lead a reasonable observer to conclude “that the trial judge had cast his lot with the prosecution,” the Court of Appeal stated.
Michael Lacy, a vice president of the Criminal Lawyers’ Association and one of the appellant lawyers in Noureddine, says it was not an easy task for defence counsel appearing in front of Ewaschuk to suggest he was applying a section of the Criminal Code incorrectly.
“He was one of the most senior criminal law judges in the province who ran his courtroom with an iron fist,” says Lacy, a partner at Brauti Thorning Zibarras LLP.
“He would persuasively tell counsel he knew what he was doing,” Lacy says.
Ewaschuk is not the only Superior Court judge in the Toronto area in recent years that preferred a process where the same two people decided who could be considered to be sworn in as juror, notes criminal appeals lawyer Mark Halfyard.
“There is guidance now” as a result of these recent decisions, says Halfyard, a lawyer at Rusonik O’Connor Robbins Ross Gorham & Angelini LLP in Toronto.
Traditionally, the challenge for cause of potential jurors was carried out by “rotating triers” who would determine if someone was impartial and could then be considered by the Crown and defence for selection as a juror. The amendments in 2008 provided for the same two people to carry out this duty only if the accused successfully brought an application in court for fixed triers and for all members of the jury pool, sworn and unsworn, to be excluded from the courtroom during this process.
During the jury selection process in Noureddine, lawyers for both defendants expressly stated they did not want fixed triers. Over their objections, Ewaschuk imposed that method.
The Court of Appeal in its decision rejected the trial judge’s view that he had the “inherent jurisdiction” to do so.
“That authority does not, however, extend to orders that contradict the requirements of the Criminal Code,” wrote Justice David Doherty.
In appeals heard to date on this issue since Noureddine, the Court of Appeal has focused on the specifics of what a defence lawyer requested at the time of jury selection.
“Substance trumps form,” wrote Justice David Watt in the decision this month in Murray, echoing the view of Justice John Laskin in Kossyrine.
In that case, a jury convicted Dmitri Kossyrine of murder for his role in the planned killing of Glen Davis, a conservationist and philanthropist.
Ewaschuk indicated in that trial that he preferred static triers because he thought it was more efficient for jury selection.
The defence did not bring an application for this method, but it agreed with the judge as long as the two triers were “properly vetted” and all prospective jurors were excluded from the courtroom during jury selection.
The Court of Appeal concluded in Kossyrine that the defence lawyer effectively “got what he wanted” in the process, so the jury was not improperly constituted.
It also noted that in an “appropriate case” in the future, this kind of jury selection error will not result in a new trial if it is considered a “procedural irregularity” that did not prejudice an accused.
Defence counsel in Murray asked for rotating triers with prospective jurors excluded from the courtroom so their answers would not potentially have an impact on others.
“They can’t have the best of both worlds,” Ewaschuk said about the defence request.
If potential jurors were excluded, then static triers would be used, he stated.
Ewaschuk misinterpreted this section of the Criminal Code, the Court of Appeal stated in Murray.
“The trial judge was wrong to limit the available modes of trial of challenge for cause to the binary choice he put to counsel,” it wrote.
Rotating triers can be used along with prospective jurors excluded from the courtroom. However, since the defence lawyer never expressly objected to the decision made by the trial judge, it was not a basis for a new trial, wrote Watt on behalf of the Court of Appeal panel.
Earlier this year, the Court of Appeal came to a similar decision in its ruling in R v. Mansingh, a case involving weapons offences. Superior Court Justice Robert Goldstein indicated that it was his preference to use static triers if potential jurors are excluded during the process.
The defence did not object and, as a result, this was rejected as a ground of appeal.
There is at least one more murder appeal involving this jury selection method presided over by Ewaschuk that the Court of Appeal is scheduled to hear.
Going forward, it is clear that trial counsel “have to make a significant issue over this process” if a judge is not complying with the Criminal Code provisions, says Halfyard.
“The trial judge has a job to do, but so does counsel,” notes Lacy.
“You want to object forcefully but in a respectful fashion,” he adds.