Canada: R V. Noureddine: Improper Use Of Static Jurors And The Scope Of The Harmless Error Provision

In the case of R v Noureddine, the accused were acquitted of first degree murder charges and subsequently convicted on charges of second degree murder. Counsel for each accused brought forward a challenge of a juror on the basis of racial bias and indicated that they wished to proceed by rotating triers. Despite this, the trial judge misinterpreted the statutory language and unilaterally imposed static triers in the challenge for cause. On November 12, 2014, the Court of Appeal released its decision and addressed this procedural error in addition to whether or not it could be saved by a curative proviso.

Background Facts

The Criminal Code provides two avenues for appointing jurors: either by rotating triers or static triers. Pursuant to section 638 of the Criminal Code, where counsel advances a challenge to a potential juror, the judge is required to select two persons from the pool of potential jurors who will assess the challenged jurors partiality. If the juror is found to be impartial, they will be sworn  and will subsequently become the new triers. Section 640(2) of the Criminal Code specifies that this rotating method will be used in selecting all juries unless an order is made pursuant to section 640(2.2). Where a challenge for cause is raised, as in this case, a section 640(2.2) holds that "on application of the accused, the court may order the exclusion of all jurors – sworn and unsworn – from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors." Under this static method, the same two triers will act throughout the challenge for cause process and will not become part of the jury that ultimately tries the case.

The decision helpfully illustrates that:

  • Certain errors in the course of jury selection process will prevent the formation of a properly constituted trial court from coming into existence; and
  • The curative proviso contained in section 686(1)(b)(iv) is only applicable where a properly constituted trial court has been formed.

The Court of Appeal unanimously allowed the appeal and quashed the conviction and ordered a new trial on the second degree murder charge. The Court stated:

[37] The trial judge made no reference to the relevant provisions of the Criminal Code. Specifically, he made no reference to the criterion in s. 640(2.1). He misapprehended the nature of the application and purported to dismiss "the application for rotating jurors." The appellants made no such application, but instead insisted on their statutory right under s.640(2) to rotating triers, expressly indicating that no application was being brought under s.640(2.1). Absent that application, static triers could not be used in the challenge for cause process: R v Swite, 2011 BCCA 54, 268 CCC (3d) 184, at paras 28-30.

The Crown argued that s.686(1)(b)(iv), the harmless error provision, was applicable. Pursuant to this curative proviso, appellate courts can dismiss appeals despite procedural errors that lead to a loss of jurisdiction over the accused where the Crown demonstrates that the error did not cause prejudice to the accused.  Nevertheless, the Court disagreed with the applicability of this provision and instead accepted the submission of counsel for the accused, holding that: "[...] procedural irregularities going to jurisdiction that can be cured by the proviso assume a trial before a properly constituted trial court that has somehow lost jurisdiction" (at para 49). Accordingly, the Court held that the court was improperly constituted to try the appellants. The prejudice to the accused lay in the "negative effect the improper use of static triers, over the express objection of counsel, had on the appearance of fairness of the proceedings and the due administration of justice" (at para 64).

The Crown argued that since the jury was not properly constituted to convict on the second degree murder charge, it was equally incapable of acquitting on the first degree murder charge. On this basis, the Crown argued that a new trial should also be ordered on the first degree murder charge. The Court of Appeal rejected this argument, for two reasons. First, the Crown did not appeal the first degree murder charge. Justice Doherty stated that the Crown could have appealed the first degree murder charge  since "For appeal purposes, the acquittal on the first degree murder charge is distinct from the conviction on the included offence of second degree murder" (at para 76). Secondly, the court held that R v Cloutier ([1979] 2 SCR 709) was binding authority for the principle that an appellate court cannot allow a case to be retried on charges that a lower court has previously acquitted the accused of. The Court held that the improper use of static triers did not impact the Crowns' rights in any way and rendered the conviction on the charge of second degree murder voidable by the accused.

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