Challenges to Jury Selection in Criminal Courts

Published On: Jul 27,2017

Challenges to Jury Selection in Criminal Courts based on racial prejudicing and the use of “Static Jurors” in the jury selection process. 

In Regina v. Husbands, 2017 ONCA 607, the Ontario Court of Appeal set aside various jury convictions. Those convictions included two counts of second degree murder; five (5) counts of aggravated assault; and numerous other charges that stems from allegations relating to criminal negligence causing death and the reckless discharge of a firearm.  All of those charges related to a shooting at the Toronto Eaton Centre about five (5) years ago that shook the community and gained wide-spread media coverage: http://globalnews.ca/video/1616758/full-video-of-events-before-during-and-after-eaton-centre-shooting-released

The Ontario Court of Appeal found that the Jury was improperly constituted due to the trial judge’s method for assessing challenges of potential jurors for cause.  Mr. Husbands is a black male. At trial his defence counsel in Toronto, challenged the jurors “for cause” on the basis of racial prejudice.   Specifically, those criminal lawyers sought an order from the trial judge to exclude the unsworn potential jurors from the court room and that jurors be deiced by “rotating triers”.   It appears that the Crown consented to this mode of procedure but trial judge made any inquires of the Crown’s position.  The trial court ruled that challenged would be reviewed by two (2) static jurors but that the potential jurors would remain in the Court room due to its perceived obligations under section s. 640(2.2) of the Criminal Code of Canada, which states:

640(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until 12 jurors — or 13 or 14 jurors, as the case may be, if the judge makes an order under subsection 631(2.2) — and any alternate jurors are sworn.

In overturning the guilty verdict, the Court of Appeal made the following rulings:

• The enactment of ss. 640(2.1) and (2.2) did not oust or circumscribe the common law discretion of a trial judge to exclude unsworn jurors from the trial of the truth of the challenge for cause in respect of individual prospective jurors by rotating triers. Put somewhat differently, the amendment explicitly provided trial judges with an additional discretionary authority to control the challenge for cause process and ensure a fair trial. What the amendments did not do, neither expressly nor by necessary implication, was to remove a trial judge’s pre-existing discretion to exclude unsworn jurors during the trial of the truth of challenges for cause by rotating triers: Grant, at paras. 18, 37, 41; Murray, at para. 53;
• [37]         The amendments in ss. 640(2.1) and (2.2) do not authorize a trial judge simply to choose one method of trial of the truth of the challenges for cause rather than the other. Static triers may only be ordered upon the satisfaction of the requirements of s. 640(2.1)and (2.2). No application. No static triers. An unsuccessful application. No static triers. There is no inherent jurisdiction to choose or direct static triers. Default requires rotating triers: Swite, at paras. 28-30; Noureddine, at para. 38; V. (W.), at para. 22.
• [38]         An application by the accused is a necessary pre-condition to the operation of ss. 640(2.1) and (2.2). In assessing whether such an application has been brought, substance trumps form. The fact that the defence has not made a formal application under s. 640(2.1) is not determinative: Grant, at para. 51. A decision by the defence to choose static triers, in the face of a proposed dichotomy between static triers with the panel excluded and rotating triers with the panel included, has been held to amount to the functional equivalent of an application to exclude sworn and unsworn jurors under s. 640(2.1): Grant, at paras. 50-51; Murray, at paras. 57-66. The use of static triers in these circumstances contravened ss.640(2.1)-(2.2); and
• The section 686 Criminal Code curative proviso could not salvage the trial.

The court held at paragraph 50:

[50]         The trial judge’s order denied the appellant the benefits of having the truth of the challenges for cause determined by rotating triers. What is more, this denial occurred in the face of unequivocal statutory language that required, among other things, an application by the accused before static triers could be ordered. This was an application that defence counsel repeatedly said was not being advanced. Expressly and repeatedly, counsel wanted rotating triers. Yet the trial judge forged ahead, despite the entreaties of defence counsel, without any inquiries of the trial Crown about her position and seemingly oblivious to the confining language of the enabling legislation. “Expressly and repeatedly, [defence] counsel wanted rotating triers. Yet the trial judge forged ahead, despite the entreaties of defence counsel, without any inquiries of the trial Crown about her position and seemingly oblivious to the confining language of the enabling legislation” (at para. 50). A new trial was necessary.