



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zvolensky, 2016 ONCA 947

DATE: 20161215

DOCKET: M47305 (C56042, C56152 & C56503)

Sharpe, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Zvolensky, Nashat Qahwash and Ronald Cyr

Appellants

Anil K. Kapoor, for the appellants

Jocelyn Speyer and Alison Wheeler, for the respondent

Heard: In writing

On motion (in writing) to permit appellants to raise issues on
    appeal not raised at trial.

By the Court:

[1]

In accordance with the direction of the appeal management judge in an
    endorsement on November 23, 2016, we have received and considered the parties
    written submissions on two issues that the appellants seek to raise as grounds
    of appeal. The issues relate to the eligibility of a former auxiliary police
    officer to serve as a juror at the appellants trial.

[2]

The appellants did not discover that one of the jurors at their trial
    had been an auxiliary police officer until well after the jury had rendered its
    verdict finding all three appellants guilty of first degree murder. The
    circumstances in which the appellants became aware of this issue are not
    material to our disposition of it.

[3]

If permitted, the appellants propose to argue:

i.

that the juror, as a person engaged in the enforcement of law, was
    ineligible to serve as a juror because of the provisions s. 3(1)6 of the
Juries
    Act
, R.S.O. 1990, c.  J.3 (the statutory interpretation argument); and

ii.

that if the statutory interpretation argument fails, s. 3(1)6 should be
    interpreted in compliance with ss. 7, 11(d) and 11(f) of the
Charter
so that the ineligibility provision applies to both current and former persons engaged
    in the enforcement of law (the
Charter
argument).

[4]

The respondent acknowledges that the appellants should be permitted to
    argue that the affected jurors former role as an auxiliary police officer
    created a reasonable apprehension of bias in relation to that juror. The
    respondent offers no serious objection to the appellants advancing their
    statutory interpretation argument, but resists their pursuit of the proposed
Charter
argument.

[5]

We recognize, as do the parties, a general injunction against appellate
    consideration of issues not advanced at trial, especially where the objection
    first advanced on appeal challenges the jurisdiction of the court constituted
    to try the appellants. We also acknowledge that this general injunction is not
    unyielding, rather admits of a discretion to consider on appeal an issue not
    raised at trial if it is in the interests of justice to do so.

[6]

In reaching our conclusion, we have considered all the circumstances,
    including but not only:

i.

the state of the trial and proposed appellate record;

ii.

fairness to the parties;

iii.

the importance of having the proposed issues resolved by the court;

iv.

the suitability of those issues for decision; and

v.

the broader interests of the administration of justice.

See,
R. v. Wookey
, 2016 ONCA 611, at paras.
    56-57.

[7]

In order to assist the parties in the final preparation of their
    materials for the hearing of the appeal, which is to commence on January 23,
    2017, we have concluded that the appellants may advance what we have termed the
    statutory interpretation argument, but may not advance what we have described
    as the
Charter
argument. In our reasons for judgment on the appeal, we
    will explain why we have reached this conclusion on the issue with which we are
    concerned here.

Released: December 15, 2016 (RJS)

Robert J. Sharpe J.A.

David Watt J.A.

G. Pardu J.A.


