



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Husbands, 2017 ONCA 607

DATE: 20170721

DOCKET: C61867

LaForme, Watt and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Husbands

Appellant

Dirk Derstine and Stephanie DiGiuseppe, for the
    appellant

Alexander Alvaro, for the respondent

Heard: June 9, 2017

On appeal from the conviction entered on December 17, 2014, and
    the sentence imposed on April 16, 2015, by Justice Eugene Ewaschuk of the Superior
    Court of Justice, sitting with a jury.

Watt J.A.:

[1]

One day in early June, about five years ago, Christopher Husbands went
    to the Food Court at the Eaton Centre. There, he shot seven people. Two died.
    Five suffered serious injuries, but survived.

[2]

At his trial, Christopher Husbands challenged each prospective juror for
    cause on the ground of racial bias.

[3]

Christopher Husbands wanted his challenges for cause tried in a
    particular way. He asked the trial judge to exercise his inherent jurisdiction
    to exclude all prospective jurors from the courtroom during the selection
    procedure, except for the individual prospective juror whose impartiality was
    being tested, and he wanted the truth of the challenge to be tried by rotating
    triers.

[4]

The trial judge rejected the submission that he had inherent
    jurisdiction to grant the order sought. Instead, he treated the request as an
    application under s. 640(2.1) of the
Criminal Code
and acceded to the defence
    request under that authority.  He ordered that prospective jurors be excluded
    from the courtroom as each individual challenge was being heard and decided.
    But, contrary to Husbands wish, the trial judge directed that the same two
    triers would determine the truth of every challenge for cause. And that is what
    happened at trial.

[5]

The jury found Christopher Husbands guilty of two counts of second
    degree murder, five counts of aggravated assault and individual counts of criminal
    negligence causing bodily harm and reckless discharge of a firearm.

[6]

Christopher Husbands appeals his convictions. He raises a single ground
    of appeal.
[1]
He says that the jury selection procedure followed by the trial judge deprived
    the court of jurisdiction to try him. The court, he claims, was never properly
    constituted. A miscarriage of justice occurred. A new trial is required.

[7]

The reasons that follow explain why I agree that the manner in which the
    trial judge directed that the truth of the challenges for cause be tried was
    fatally flawed. And so it is that I would allow the appeal, set aside the
    convictions and order a new trial on each offence of which Christopher Husbands
    was convicted.

THE BACKGROUND FACTS

[8]

The ground of appeal advanced requires no reference to the circumstances
    in which the offences occurred. What is necessary, however, is an examination
    of what occurred once the parties had settled the basis upon which prospective
    jurors could be challenged for cause.

The Initial Query

[9]

The trial judge asked defence counsel (who was also counsel on appeal)
    whether he wanted the jury panel excluded during the jury selection process.
    The judge said nothing about exclusion of sworn jurors and did not distinguish between
    sworn and unsworn jurors.

The Defence Position

[10]

Defence counsel made it clear that he was
not
bringing an
    application under s. 640(2.1) of the
Criminal Code
. The trial judge
    responded immediately. He advised counsel that in the absence of an application
    under s. 640(2.1), the jury panel would remain in the courtroom during jury
    selection, and the trial of the truth of each challenge would be decided by
    rotating triers:

THE COURT: Okay. Okay. If youre not [making an application
    under s. 640(2.1)] thats the end of the matter and Ill let the jury panel 
    theyll be in court, well do rotating and  but theyll be present in court.

[11]

Defence counsel then expressly asked the trial judge, a request he would
    repeat several times, to exercise his discretion, founded on his inherent
    jurisdiction to control the jury selection process, to:

i.

exclude prospective jurors from the courtroom while the challenge of
    each individual prospective juror proceeded; and

ii.

have the truth of each challenge for cause determined by rotating
    triers.

[12]

On one occasion, defence counsel pointed out that the procedure he
    sought to have followed was on consent.

The Position of the Crown

[13]

Despite the on consent reference by defence counsel during his
    submissions, the trial judge never asked the trial Crown (not Mr. Alvaro) for
    any submissions on the issue. The trial Crown said nothing during the entire
    discussion about how the challenge for cause would be carried out.

The Initial Ruling

[14]

The trial judge concluded that the enactment of s. 640(2.1) of the
Criminal
    Code
had displaced the common law discretion of trial judges to exclude
    prospective jurors from the courtroom when the truth of the challenges for
    cause was tried by rotating triers. The judge said:

THE COURT: The accused, Christopher Husbands has applied to exclude
    the jury panel during the selection process. Defence counsel reports [
sic
]
    to apply to do so pursuant to my common-in-law [
sic
] inherent
    discretion. I find that the statutory provision in s. 640(2.1) has displaced
    that common-in-law [
sic
] discretion. I therefore rule that the accused
    has applied under s. 640(2.1) for an order excluding the jurors during the
    selection process and I so order.

The Renewed Application

[15]

Defence counsel persisted. He reiterated his request for rotating
    triers, explaining that the
Criminal Code
did not provide any procedure
    to ensure that static triers were themselves impartial before their selection
    as triers of the challenge for cause.

The Final Ruling

[16]

After defence counsel had concluded his submissions, the trial judge
    ruled:

THE COURT: All right, thank you. I rule that the selection
    process will be conducted by two static jurors pursuant to s. 640(2.2) of the
Criminal
    Code
.

THE GROUND OF APPEAL

[17]

Christopher Husbands (the appellant) advances a single ground of appeal.
    As I would paraphrase it, he says that the trial judge erred in requiring the
    truth of the challenge for cause to be decided by static triers in the absence
    of an application for the exclusion of sworn and unsworn jurors under s.
    640(2.1) of the
Criminal Code
.

Ground #1: Alleged Error in Requiring Static Triers

[18]

No further background need be added to what has already been described
    to settle the environment in which this issue arises for decision in this case.

The Arguments on Appeal

[19]

The appellant begins with a reference to s. 640 as the statutory
    provision that governs the determination of the method used to decide the truth
    of each challenge for cause. Section 640(2) creates a general or default rule
    that requires rotating triers as the adjudicative body. But the general rule
    has an exception, which when properly engaged, permits another method to
    determine the truth of the challenge for cause.

[20]

The single exception to the rotating triers procedure arises from the
    combined operation of ss. 640(2.1) and (2.2). But this alternative adjudicative
    forum is not for the asking. And it is not for both parties. What is required
    is an application by the accused and a determination by the presiding judge
    that the exclusion of all jurors  sworn and unsworn  is necessary to preserve
    the impartiality of the jurors. Provided these requirements have been met, the
    presiding judge has a discretion to order that every challenge for cause be
    decided by the same two triers, so long as the selection process continues.

[21]

The appellant emphasizes that absent an application by the accused, the
    truth of the challenge for cause cannot be decided by static triers. A trial
    judge who unilaterally appoints static triers, without an application by the
    accused, commits jurisdictional error by preventing a properly constituted
    court from coming into existence.

[22]

The appellant says that the amendments to ss. 640(2.1) and (2.2) do not
    remove a trial judges inherent jurisdiction to exclude unsworn, but not sworn,
    jurors from the courtroom, with rotating triers deciding the truth of each
    challenge for cause. Nor do the amendments confer on a trial judge any inherent
    authority to designate static triers to determine the truth of each challenge
    without compliance with the provisions of those amendments.

[23]

In this case, the appellant contends, the trial judge made four discrete
    but related errors. He erred in holding that the amendments removed his
    well-established authority at common law to exclude unsworn jurors from the
    courtroom when using rotating triers. He was mistaken in concluding that he
    could unilaterally order static triers because a request to exclude unsworn
    jurors triggered the operation of ss. 640(2.1) and (2.2). He wrongly determined
    that ss. 640(2.1) and (2.2) permitted the use of rotating triers and further erred
    when he determined that the common law permitted him to choose static triers
    over rotating triers.

[24]

In conclusion, according to the appellant, the trial judges direction
    that the challenge for cause be tried by static triers deprived the court of
    jurisdiction to try him. Such an error exceeds the grasp of the provisos in s.
    686(1)(b) of the
Criminal Code
and requires a new trial.

[25]

The respondent characterizes the application of defence counsel as an
    application to exclude
all
jurors, sworn and unsworn, during the
    challenge for cause procedure. Defence counsel never once limited his request
    for exclusion to
unsworn
jurors. Nevertheless, the trial judge believed
    that he had inherent jurisdiction to order rotating triers where he had
    excluded all the jurors. But he properly ordered static triers in the
    circumstances. In the end, the respondent says, any error that may have
    occurred caused no prejudice to the appellant and did not cause a miscarriage
    of justice.

[26]

The respondent says that the scope of exclusion sought by defence
    counsel determines whether the adjudicative body will be static or rotating
    triers. Provided an accused does not seek exclusion of all jurors  sworn and
    unsworn  rotating jurors may decide the truth of the challenge. That said,
    where the request seeks exclusion of only unsworn jurors, an accused has no
    automatic right to rotating triers. The order is discretionary, not mandatory.
    But where exclusion of all, both sworn and unsworn, is what an accused seeks,
    such a request is governed by ss. 640(2.1) and (2.2), thus rotating triers are
    not available.

[27]

In this case, according to the respondent, what occurred was an
    application by the appellant, developed in two stages, to exclude
all
jurors, sworn and unsworn, but to have the truth of the challenge tried by
    rotating triers. Defence counsel never properly emphasized or confined his
    request for exclusion to the exclusion of
unsworn
jurors or, put another
    way, never said he did not want sworn jurors excluded. In the end, the
    respondent says, counsel agreed to have the application treated as an
    application under s. 640(2.1). In the result, this meant all jurors would be
    excluded and the truth of the challenge for cause would be decided by static
    triers.

[28]

The respondent advances two alternative arguments. The first is that
    despite his direction that static triers would determine the truth of each
    individual challenge, thus that all jurors  sworn and unsworn  would be
    excluded during the challenges for cause, the trial judge left open the use of
    rotating triers. But defence counsel failed to advance any argument that would
    engage the discretion. And the second is that any error or irregularity that
    occurred can be saved harmless by s. 686(1)(b)(iv) in the absence of any
    prejudice or a miscarriage of justice.

The Governing Principles

[29]

The principles that inform our decision in this case have their origins
    in both the common law and the
Criminal Code
. First, the common law
    principles that describe the inherent authority of a judge presiding in a
    criminal trial to manage the trial process, including the selection of jurors.
    Next, the statutory provisions  in particular s. 640 of the
Criminal Code
 that prescribe the manner in which the truth of challenges for cause is to be
    determined. Then, the jurisprudence, largely the decisions of this court,
    interpreting those statutory provisions. And finally, the authority of
    appellate courts to uphold verdicts rendered at trial despite errors and
    irregularities in the conduct of the trial.

The Common Law Authority

[30]

At common law, a trial judge has the authority to supervise and control
    the trial process. Sometimes, this authority is characterized as a discretion,
    on other occasions, an inherent jurisdiction. The label is of no great
    moment. The limits of the authority are not precisely defined, but the
    authority to manage the conduct of a trial is beyond controversy:
R. v.
    Felderhof
(2003), 180 C.C.C. (3d) 498 (Ont. C.A.), at paras. 36-38, 40.

[31]

A specific incident of this common law discretion or inherent
    jurisdiction is the authority to control the jury selection process to make
    effective use of court resources and to ensure fairness to all participants:
R.
    v. Moore-McFarlane
(2001), 160 C.C.C. (3d) 493 (Ont. C.A.), at para. 85;
R.
    v. Noureddine
, 2015 ONCA 770, 332 C.C.C. (3d) 114, at para. 38;
R. v.
    Grant
, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 11;
R. v. Murray
,
    2017 ONCA 393, at para. 47. This authority to control the jury selection
    process includes the discretion to exclude prospective (unsworn) jurors from
    the courtroom during the challenge for cause process to ensure the impartiality
    of the jurors selected to try the case:
Grant
, at para. 11;
Murray
,
    at para. 53;
R. v. Swite
, 2011 BCCA 54, 268 C.C.C. (3d) 184, at para.
    28.

[32]

Section 8(2) of the
Criminal Code
ensures that this discretion
    remains intact, despite the enactment of the
Criminal Code
, at least to
    the extent that it is not altered, varied, modified or affected by the
Criminal
    Code
or other federal enactment. But this discretion or inherent
    jurisdiction cannot be invoked as authority for any order that contravenes a
    specific
Criminal Code
requirement:
Noureddine
, at para. 38;
Murray
,
    at para. 47;
Swite
, at para. 28;
R. v. V. (W.),
2007 ONCA 546, at
    para. 22, leave to appeal refused, 386 N.R. 391 (note).

Challenges for Cause under the Criminal Code

[33]

Since the enactment of our first
Criminal
    Code
in 1892, rotating triers have determined the truth of challenges for
    cause advanced on the basis that prospective jurors are not indifferent between
    the parties:
Criminal Code
, 1892, 55-56 Vic., c. 29, s. 668;
Noureddine
,
    at para. 35. Rotating triers remained the exclusive method of trying challenges
    for cause based on lack of indifference until the current s. 640 was amended by
    the addition of subsections (2.1) and (2.2), which came into force on May 29,
    2008.

[34]

Sections 640(2.1) and (2.2) added another
    method of trying the truth of challenges for cause based on lack of
    indifference. But this new method has some strings attached. It is only
    available at the instance of an accused. It cannot be invoked by the Crown. It
    requires:

i.

an application by the accused for an
    order excluding from the courtroom all jurors, both sworn and unsworn, until
    the truth of the challenge for cause is determined; and

ii.

a finding by the presiding judge that the
    exclusion is necessary to preserve juror impartiality.

Further, even upon
    satisfaction of these conditions precedent, an order of exclusion does not
    issue as of right. The controlling language is the permissive may, not the
    compulsory shall:
Noureddine
, at para. 35;
Grant
, at para. 12;
Murray
,
    at paras. 43, 45-46.

The Operation of Sections 640(2.1) and (2.2)

[35]

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 judges 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.

[36]

The enactment of ss. 640(2.1) and (2.2) did not alter the character of
    the pre-existing authority to exclude unsworn jurors during the trial of the
    truth of individual challenges for cause by rotating triers. An order for
    exclusion based on the exercise of the trial judges inherent jurisdiction does
    not issue as of right. Whether exclusion will be ordered involves the exercise
    of discretion by the presiding judge, a decision that will depend on the
    circumstances of each case:
Grant
, at para. 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.

[39]

Similarly, a desire to exclude prospective jurors during the challenge
    for cause process and satisfaction with properly-vetted static jurors has been
    found to satisfy the requirement that the accused bring an application:
R.
    v. Mansingh
, 2017 ONCA 68, at para. 12;
R. v. Kossyrine
, 2017 ONCA
    388, at paras. 19-21, 28.

The Effect of Errors in the Selection of Triers

[40]

Section 686(1)(b)(iv) permits appellate courts to dismiss appeals where
    procedural errors that lead to a loss of jurisdiction over the accused have
    occurred at trial, provided the Crown can demonstrate that the trial court had
    jurisdiction over the class of offence of which an appellant was convicted and
    that the error did not prejudice the appellant. Prejudice takes into account
    not only the impact of the error or irregularity on the verdict rendered at
    trial, but also its impact on the actual and apparent fairness of the trial
    process:
Noureddine
, at paras. 47-48, 62-64.

[41]

It has been held that where a jury has been selected by a challenge for
    cause procedure disavowed by an accused, thus depriving him or her of the
    option to invoke the method of selecting the composition of triers, s.
    686(1)(b)(iv) cannot preserve the verdict rendered at trial:
Noureddine
,
    at paras. 57, 68;
Swite
, at para. 54;
V. (W.)
, at para. 26. This
    is so because the court  in particular the jury  has not been properly
    constituted. And this is so because the process used to determine the truth of
    the challenge for cause directly contravenes the provisions of the
Criminal
    Code
.

The Principles Applied

[42]

For several reasons, I would give effect to this ground of appeal, set
    aside the convictions entered at trial and order a new trial on each count of
    which the appellant was convicted.

[43]

First, as we have already seen, the general or default rule about the
    trial of the truth of the challenges for cause based on lack of indifference on
    the part of prospective jurors is that the issue is determined by rotating
    triers. This method of trial of the challenge includes a judicial discretion to
    exclude prospective (unsworn) jurors from the courtroom while individual
    challenges are being decided by the rotating triers, provided sufficient reason
    is advanced to do so. This authority remains despite the enactment of ss.
    640(2.1) and (2.2). The trial judge was wrong to hold otherwise.

[44]

Second, trial of the truth of the challenge for cause by static triers,
    the method directed by the trial judge in this case, is only available where
    the accused applies to exclude all jurors, both sworn and unsworn, from the
    courtroom while individual challenges for cause proceed, and where the
    presiding judge is satisfied that such an exclusionary order is necessary to
    preserve the impartiality of the jurors.

[45]

In this case, defence counsel repeatedly told the trial judge that he
    was
not
applying under or invoking s. 640(2.1) of the
Criminal Code
.
    It follows ineluctably from the absence of any application, that the provisions
    of ss. 640(2.1) and (2.2), which alone permit the use of static triers, never
    became engaged. It necessarily follows from the absence of an application under
    s. 640(2.1) that no order could be made under that subsection. The absence of
    an order under s. 640(2.1) engages s. 640(2) which required the trial of the
    challenge for cause to be determined by rotating jurors.

[46]

Third, this is not a case in which it can be said, as the Crown argues,
    that what happened here was the functional equivalent of an application under
    s. 640(2.1), thus legitimizing the directed use of static triers.

[47]

The language used by defence counsel simply does not bear the
    interpretation advanced by the Crown. In addition to the express denial of an
    application under s. 640(2.1), defence counsel sought exclusion of the panel,
    a term that refers to prospective or unsworn jurors. Sworn jurors cannot fairly
    be characterized as members of the panel. They cease panel membership when
    selected and sworn or affirmed as jurors to try the case. Further, defence
    counsel made it abundantly clear that he grounded his claim for the exclusion
    of the jury panel during the trial of the truth of the individual challenges on
    the inherent jurisdiction of the trial judge to make such an order.

[48]

Fourth, the direction that static triers determine the truth of the
    challenges for cause contravenes the specific provisions of ss. 640(2.1) and
    (2.2) of the
Criminal Code
. Absent satisfaction of the conditions
    precedent in s. 640(2.1), the trial judge had no authority to order static
    triers under s. 640(2.2).

[49]

Finally, in accordance with the current state of the law concerning the
    reach of the procedural proviso in s. 686(1)(b)(iv), what occurred here cannot
    be salvaged.

[50]

The trial judges 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.

CONCLUSION

[51]

For these reasons, I would allow the appeal, set aside the convictions
    and order a new trial on each offence of which the appellant was convicted.
    Since there was no appeal of the acquittals of first degree murder, the new
    trial should be held on a redrafted indictment charging two counts of second
    degree murder with the remaining counts unchanged.

Released: DW July 21, 2017

David Watt J.A.

I agree. H.S. LaForme J.A.

I agree. G.T. Trotter J.A.





[1]

The hearing of the appeal was bifurcated as a result of
    directions given by the appeal management judge. The panel decided to follow
    the procedure proposed by the appeal management judge in light of the potential
    impact of the error alleged on the verdicts rendered at trial.


