



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cumor, 2019 ONCA 747

DATE: 20190924

DOCKET: C63071

Hoy A.C.J.O., Doherty and
    Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hasan Cumor

Appellant

Jeffery Couse, for the appellant

Tracy Kozlowski, for the respondent

Heard: March 26, 2019

On appeal from the convictions entered
    on December 3, 2015 by Justice Michael Code of the Superior Court of Justice,
    sitting with a jury.

Zarnett J.A.:


I.

Introduction

[1]

The appellant was convicted, by a court composed
    of a judge and jury, of six offences: conspiracy to traffic firearms;
    conspiracy to traffic cocaine; possession of a firearm for the purpose of
    transfer; possession of an unlicensed firearm; possession of a firearm with its
    serial number removed; and possession of property obtained by crime. The
    convictions for conspiracy to traffic firearms and possession of a firearm for
    the purpose of transfer pertained to a Beretta handgun. The convictions for possession
    of an unlicensed firearm and possession of a firearm with its serial number
    removed related to a Ruger 40 semi-automatic handgun. The conviction for
    possession of property obtained by crime related to $10,000 in cash.

[2]

The appellant appeals his convictions. His
    grounds of appeal can be grouped into three categories: a) the procedure chosen
    for trying challenges for cause to select the jury; b) the refusal to sever the
    charges related to the Beretta handgun and cocaine from the charges related to
    the Ruger handgun and the cash; and c) the charge to the jury.

[3]

For the reasons which follow I would allow the
    appeal, set aside the convictions, and direct a new trial based on the jury
    selection procedure ground of appeal. I would not give effect to the other grounds
    of appeal.


II.

Factual Background

[4]

In early 2011, during an investigation into a
    cocaine trafficking ring in Toronto, police intercepted certain telephone communications.
    On them Rukiyo Omar was heard discussing, with Samson Arkivo, the sale of a
    Beretta handgun and cocaine to Arkivo. A third person was also heard in seven
    of the intercepted calls in late January 2011.

[5]

It was conceded at the appellants trial that
    the intercepted communications demonstrated two conspiracies between Arkivo and
    Omar: one in which Omar agreed to sell a Beretta firearm to Arkivo, who
    intended to split the cost with another buyer; and a second in which Omar
    agreed to sell cocaine to Arkivo.

[6]

It was also conceded at trial that the third
    person heard on the intercepted calls was engaged in the conspiracy to sell the
    Beretta handgun; on the intercepted calls the third person spoke to Arkivo to
    arrange for the completion of the Beretta sale. The Crowns theory was that the
    intercepts also established that when Arkivos co-buyer fell through, the third
    person was involved in the agreement to sell cocaine to Arkivo.

[7]

The Crown alleged that the third person on the
    calls was the appellant. At trial, the Crown led evidence of surveillance of
    the appellant and Omar conducted in February 2011, which showed, among other
    things, the appellants use of the telephone on which the intercepted calls
    took place as well as his relationship with Omar. The Crown maintained that the
    evidence confirmed the appellants identity as the third person on the calls.

[8]

On February 8, 2011, police executed a search
    warrant at a residence associated with the appellant and Omar. The Ruger
    handgun was located, concealed between a mattress and box spring in a third
    floor bedroom, and $10,000 in cash was also found concealed in towels on a set
    of shelves in a third floor bedroom. Papers found at the time of the search
    supported a connection between the accused and the third floor bedroom.

[9]

The major issue on the two Beretta charges and
    one cocaine charge was identity, namely, whether the appellant was the third
    person on the intercepted calls. The major issue on the charges concerning the Ruger
    and cash found at the residence searched on February 8, 2011, was whether the
    appellant had knowledge and control of those items.


III.

Procedural History

[10]

Originally, Arkivo, Omar, and the appellant were
    jointly named on an indictment alleging seven counts. The appellant was charged
    with the six counts on which he was eventually convicted. Omar was charged with
    those six counts and one additional count of possession of property obtained by
    crime. Arviko was charged with three counts: conspiracy to traffic firearms; conspiracy
    to traffic cocaine; and possession of a firearm for the purpose of transfer.

[11]

The parties appeared before Molloy J. commencing
    on October 14, 2014 for pre-trial motions. During the course of the motions
    Molloy J. was told that if a jury were selected there would be a
Parks
challenge.
[1]
She then asked counsel which
    category of triers, rotating or static, would be used to hear and decide
    challenges for cause of prospective jurors. Counsel for one of the accused
    wanted the option of rotating triers with the [challenge for cause] question
    only asked to each prospective juror as they enter[ed] the room before the
    triers. When asked by Molloy J. to explain, counsel stated that she was more
    concerned that prospective jurors not hear the challenge for cause question
    until they came into the courtroom than she was about whether the triers were
    rotating or static. When asked for her preference as between rotating and
    static triers, counsel answered that she preferred rotating triers with
    prospective jurors excluded from the courtroom, describing that as her ideal,
    but stated that she could live with static triers. Counsel for the appellant
    described his preference as identical to that of the co-accused.

[12]

On November 28, 2014, Molloy J. released a
    decision which severed the charges against Omar from those against the
    appellant and Arviko, directing that Omar be tried separately:
R. v.
    Arviko, Cumor and Omar
, 2014 ONSC 6627, at para. 37. On the same date, Molloy
    J. issued a ruling in the continuing case against the appellant and Arkivo, that
    the evidence related to the charge of conspiracy to traffic in a firearm, the
    Beretta, could not be used on the other counts:
R. v. Arviko, Cumor and Omar
,
    2014 ONSC 6625, at para.13.

[13]

In January 2015, the case against the appellant
    and Arkivo came on for trial before Brown J. The appellant and Arkivo moved to
    sever three charges based on the intercepts (conspiracy to traffic firearms,
    conspiracy to traffic cocaine, and possession of a firearm for the purpose of
    transfer) from the three search related charges (possession of an unlicensed
    firearm, possession of a firearm with its serial number removed, and possession
    of property obtained by crime). In other words, they sought to sever the
    Beretta related charges and the cocaine related charge from the charges that related
    to the Ruger and the cash. The request was denied:
R. v. Arviko
, 2015
    ONSC 6768, at para. 42.

[14]

Counsel for the appellant noted before Brown J. that
    the parties had agreed as to the challenge for cause procedure: rotating triers
    with the exclusion of unsworn jurors from the courtroom. No formal application
    was heard. Brown J. proceeded on the basis of the parties consent to the
    procedure. A jury was selected using that procedure, but due to the illness of
    Arkivos counsel, a mistrial was declared before evidence was called.

[15]

In November 2015, the trial recommenced before
    the trial judge.

[16]

By the time the matter came before the trial
    judge, he had already decided, in
R. v. Jaser
, 2014 ONSC 7528, revd
    2019 ONCA 672, that the court was without jurisdiction to order exclusion of
    unsworn jurors to preserve juror impartiality while using rotating triers to try
    challenges for cause. In his view, Parliament had removed that jurisdiction in
    2008, when it enacted ss. 640(2.1) and (2.2) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. These sections provided that the court may, upon the
    application of the accused, if necessary to preserve the impartiality of
    jurors, exclude sworn and unsworn jurors during challenges for cause. If such
    an order were made the court was required to appoint static triers to try the
    challenges.

[17]

Counsel for the appellant advised the trial
    judge that he had applied for rotating triers with the exclusion of unsworn
    jurors, and that Brown J. had allowed that procedure, although Brown J. had not
    issued a written ruling. Counsel stated that he was aware of the trial judges
    practice of only allowing static triers if there was to be an exclusion of
    jurors, but submitted that as Brown J. had already permitted the procedure of
    rotating triers with unsworn jurors excluded in this case, it should be
    followed as a matter of judicial comity and fairness.

[18]

The trial judge noted that his own ruling in
Jaser
had predated the ruling of Brown J. Counsel for the appellant responded that he
    believed that the trial judge still had the jurisdiction to order the jury
    selection procedure sought. He expressed a preference for rotating triers over
    static triers due to the risk that would arise from being stuck with two
    triers if one or both triers did not understand their instructions or apply
    them correctly. In counsels words it would create a bit of a mess. He argued
    that although the use of rotating triers did not absolutely eliminate the risk arising
    from misunderstood or misapplied instructions, it minimized the risk. The trial
    judge described a process of vetting the static triers to ensure those selected
    understood their duty. Counsel for the appellant conceded that that would
    ameliorate his concern in part, but returned to the point that in his view Brown
    J. had already made a ruling for rotating triers with unsworn jurors excluded,
    and that the trial judge maintained the jurisdiction to proceed as requested
    because the
Criminal Code
amendments had not ousted the discretion to
    do so. Counsel acknowledged that he would not be making those submissions
    except for Brown J.s prior ruling because Your Honours already decided it,
    but that he might still have brought an application to preserve the issue.

[19]

The trial judge, following his decision in
Jaser
,
    ruled that he did not have jurisdiction to allow the requested procedure and
    was not bound by Brown J.s ruling to allow it. Counsel then brought an
    application under s. 640(2.1) of the
Criminal Code
for the exclusion
    of both sworn and unsworn jurors, which the trial judge granted, directing that
    static triers be used pursuant to s. 640(2.2). He noted that the appellants
    position on rotating triers with unsworn jurors excluded was preserved.

[20]

The jury was selected using the procedure directed
    by the trial judge. At the conclusion of the Crowns case, Arkivo changed his
    plea to guilty.

[21]

The appellants position at trial was that the
    Crown did not prove that he was the third person on the intercepted calls and
    that therefore he was a party to the conspiracies charged, and that the Crown
    did not prove he had knowledge and control of the Ruger and the cash. The
    appellant did not testify.

[22]

The jury convicted the appellant on all six counts.


IV.

Analysis

A.

The Jury Selection Issue

(i)

The Issue

[23]

It is common ground between the parties that the
    trial judges ruling, that he lacked the jurisdiction to order the exclusion of
    unsworn jurors while using rotating jurors, was in error. Subsequent to his ruling
    this court, in
R. v. Grant
, 2016 ONCA 639,
342 C.C.C. (3d) 514,
    at paras. 37, 39 and 41,
held that the jurisdiction and
    discretion to make such an order continued to exist after the 2008 amendments
    to the
Criminal Code
enacting ss. 640(2.1) and (2.2) providing for the
    exclusion of both sworn and unsworn jurors and the appointment of static
    triers. In
R. v. Husbands
, 2017 ONCA 607,
353 C.C.C. (3d) 317,
    leave to appeal refused, [2017] S.C.C.A. No. 364,
at paras.
    35-36, this court stated that such discretion had not been ousted or
    circumscribed by the enactment of ss. 640(2.1) and (2.2). Indeed, the trial
    judges prior decision in
Jaser
,
which he relied upon to make the jury selection ruling in this case, has very
    recently been overruled by this court:
R. v. Esseghaier
, 2019 ONCA 672.

[24]

What is in issue on this appeal is the effect of
    the trial judges error.

(ii)

The Competing Positions

[25]

The appellant argues that the trial judges error
    deprived him of his option for challenges for cause to be determined by
    rotating triers with unsworn jurors excluded from the courtroom while the
    challenges were heard. He argues that this entitles him to a new trial.

[26]

The Crown responds that the appellant merely
    expressed a preference for the rotating trier procedure, asked the trial judge
    to implement it only as a matter of judicial comity because Brown J. had permitted
    it, conceded before the trial judge that the procedure would not have been
    sought but for Brown J.s ruling, and ultimately brought an application under
    s. 640(2.1) for static triers when the appellant was faced with two competing
    options. Moreover, the Crown contends that the process undertaken by the trial
    judge to vet static triers responded directly to the concern about them raised
    by counsel, and therefore removed any hint of prejudice arising from the jury
    selection procedure chosen. The Crown argues that any error can be cured by the
    curative proviso in s. 686(1)(b)(iv) of the
Criminal Code
.

(iii)

The Provisions of the
Criminal Code

[27]

At the time of trial section 640 of the
Criminal
    Code
provided, in relevant part, as follows:

(2)
If the ground of a challenge is one that is not mentioned in subsection (1) and
    no order has been made under subsection (2.1), the two jurors who were last sworn
     or, if no jurors have been sworn, two persons present who are appointed by
    the court for the purpose  shall be sworn to determine whether the ground of
    challenge is true.

(2.1)
If the challenge is for cause and if the ground of the challenge is one that is
    not mentioned in subsection (1), on the 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.

(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.

[28]

Section 686(1)(b)(iv) of the
Criminal Code
provides, in relevant part, as follows:

686(1)
On
    the hearing of an appeal against a conviction or against a verdict that the
    appellant is unfit to stand trial or not criminally responsible on account of
    mental disorder, the court of appeal



(b)
may
    dismiss the appeal where



(iv)
notwithstanding
    any procedural irregularity at trial, the trial court had jurisdiction over the
    class of offence of which the appellant was convicted and the court of appeal
    is of the opinion that the appellant suffered no prejudice thereby



(iv)

The Principles

(1)

The Accuseds Options as to the Category of Triers and Juror Exclusion

[29]

There are three related concepts concerning the
    trial of challenges for cause which are important in this case: the category of
    triers, the persons who could be excluded from the courtroom while challenges
    for cause were heard, and the nature of the accuseds options concerning these
    matters.

[30]

At the relevant time, there were two categories
    of persons who could hear and determine (that is, try) challenges for cause:
    rotating triers and static triers.
[2]
Rotating triers were two individuals who were sworn members of the jury (unless
    none had yet been sworn), and they changed (rotated) as each new juror was sworn.
    Static triers were two individuals who tried challenges for cause but who were
    not and did not themselves become members of the jury:
Criminal Code
, ss.
    640(2), (2.1) and (2.2):
Husbands
, at para. 37.
[3]

[31]

Whether triers were rotating or static was at
    the option of the accused. Rotating triers were the default right of an accused;
    the accused did not have to do anything to be entitled to rotating triers:
Criminal
    Code
, s. 640(2).

[32]

On the other hand, unlike rotating triers,
    static triers would only be used if the accused made an application or its
    functional equivalent under s. 640(2.1) of the
Criminal Code
for the
    exclusion of all sworn and unsworn jurors during the hearing and determination
    of challenges for cause, and the application was granted. Only the accused could
    invoke the precondition to static triers, because only the accused, not the
    Crown, could apply under s. 640(2.1):
Husbands
, at paras. 37-38. Nor did
    the court have the power, without an application by the accused or its
    functional equivalent, to order static triers:
Husbands
, at paras
    37-38.

[33]

Turning to the question of which jurors could be
    excluded from the courtroom during the hearing of challenges for cause, static
    triers and full exclusion went hand in hand. The precondition to static triers
    being used was that an order under s. 640(2.1) had been made for the exclusion
    of all jurors, sworn and unsworn, from the courtroom. However, rotating triers
    could not be used if all jurors, sworn and unsworn, were excluded, since the
    rotating triers who were present to hear and determine the challenges were
    sworn jurors. Rotating triers and full exclusion were mutually exclusive.

[34]

Rotating triers could be used if there was no
    exclusion ordered. And as noted above, the court had a discretion, when
    rotating triers were used, on the request of the accused, to exclude unsworn
    jurors
[4]
from the courtroom to prevent the tainting of unsworn jurors that could result
    from their hearing the questions put to, and answers given by, other unsworn jurors
    before they themselves were questioned:
Grant
, at para. 21;
R. v. Riley
,
    2017 ONCA 650, 137 O.R. (3d) 1, leave to appeal refused, [2018] S.C.C.A. No.
    216, at paras. 62 and 80. This discretion contemplated less extensive exclusion
    than was involved with static triers, which was preconditioned on the exclusion
    of all sworn and unsworn jurors.

[35]

Thus, under the law as it has been settled by
    this court, there were three options an accused could invoke for proceeding
    with a challenge for cause:

a.

rotating triers, as provided in s.
    640(2) of the
Criminal Code
, with no one
    excluded from the courtroom during the hearing and determination of the
    challenges;

b.

rotating triers, as provided in s.
    640(2) of the
Criminal Code
,
with unsworn jurors excluded from the courtroom if the accused requested and
    the court under its common law discretion so ordered ;
[5]
and

c.

sworn and unsworn jurors excluded
    from the courtroom if the accused made an application for that exclusion under
    s. 640(2.1) and the court determined to grant it in which case static triers were
    to be used pursuant to s. 640(2.2) of the
Criminal Code
:
Murray
, at para. 60;
Esseghaier
,
    at para. 28.

[36]

While the court had a discretion
whether
to order exclusion when the accused sought to invoke an option that involved
    it, it was the accused who had the right to choose
which
option to
    seek to invoke:
Esseghaier
, at paras. 15, 25 and 28.

[37]

In order to exercise the choice of option, an
    accused could consider the benefits and disadvantages of rotating triers and static
    triers, and the extent of exclusion that came with rotating and static triers.
    In
Grant
, the court noted two advantages to rotating triers that could
    be important to an accused: the participation of members of a jury in its own
    selection, and the fact that rotation minimized the risk arising from one trier
    who was unable or unwilling to understand and fulfil his or her duty in
    assessing the validity of challenges: para. 21. On the other hand, the static
    trier procedure involved the full exclusion of sworn and unsworn jurors, and
    thus could prevent the tainting of all jurors through listening to the
    challenge for cause questions and answers, including possible tainting of
    already sworn jurors who could not be excluded if rotating triers were used:
Grant
,
    at para. 21. However, it was the accused who had to balance the benefits and
    disadvantages of each option, as it was the accused who chose which jury
    selection option to pursue:
Esseghaier
, at para. 31.

(2)

The Consequences of an Error in the Challenge for Cause Procedure

[38]

A mistaken view held by a trial judge as to the
    options that were available to the accused about the mode of jury selection may
    or may not have a consequence.

[39]

Where the trial courts mistake led to a
    situation where a jury was 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, the verdict cannot stand, and
    the curative proviso in s. 686(1)(b)(iv) of the
Criminal Code
does not
    apply:
Husbands
, at paras. 40-41;
R. v. Noureddine
, 2015 ONCA
    770, 128 O.R. (3d) 23, at paras. 52-53, 57, 61 and 68.

[40]

Conversely, even where the trial court held a
    mistaken view, the
Noureddine
and
Husbands
principle will not apply where, looking at what the accused had asked for in
    substance rather than as a matter of form, the accused got what the accused
    wanted in terms of the jury selection procedure:
Grant
, at paras.
    50-52;
Riley
, at paras. 80 and 85;
Murray
, at paras. 63-66.
    Such an analysis looks at the specifics of the request both in terms of triers
    and exclusion, as well as the advantages and disadvantages identified by the
    accused about the jury selection method as they shed light on what the accused
    in substance sought.

[41]

The curative proviso may apply where the accused
    expressed a willingness for or agreed to static triers, but a formal
    application was not made:
Noureddine
, at para. 57;
Riley
, at
    para. 66.

(v)

Application of the Principles

[42]

A determination of whether the jury was selected
    by a challenge for cause procedure that wrongly deprived the accused of his
    then existing option to select the composition of triers, or whether the accused
    got what he wanted in terms of a jury selection procedure notwithstanding any
    error, turns on the facts of each case. I turn to the salient facts here.

[43]

Before Molloy J., counsel for the appellant supported
    the preference of his co-accuseds counsel for rotating triers with unsworn
    jurors excluded. At the time, however, the primary concern counsel for the
    co-accused expressed was that jurors be excluded. There was no specific articulation
    of why rotating triers were preferred. Counsel for the co-accused went so far
    as to say she could live with static triers, a statement which appellants
    counsel at the time did not contest. If no more had been said, it could be
    concluded that full exclusion and static triers gave the accused what they
    wanted. But here there was more.

[44]

Before Brown J., the parties agreed to a challenge
    for cause procedure of rotating triers with unsworn jurors excluded. That
    agreement is difficult to square with exclusion of all jurors and static triers
    being what the appellant wanted. The agreement to rotating triers with unsworn
    jurors excluded is only consistent with that option being what the appellant
    wanted, and a disavowal of other options.

[45]

That position did not change when the matter
    came before the trial judge. The appellant argued before the trial judge for
    rotating triers with unsworn jurors excluded. He did so on the basis of
    judicial comity and fairness (Brown J. having allowed that procedure), but also
    on the ground that the jurisdiction to make such an order existed (an argument
    which was ultimately determined by this courts subsequent jurisprudence to be
    correct). He also gave reasons for preferring rotating triers to static triers,
    namely to minimize the risk of a static trier who did not understand his or her
    duty. All of this is consistent with the appellant wanting this option.

[46]

Although counsel noted before the trial judge
    that he would not have so argued if Brown J. had not already allowed this
    procedure, given the trial judges already expressed view in
Jaser
, I
    do not interpret counsels statement to be the equivalent of being content with
    static triers or a withdrawal of the appellants selected option. Indeed, counsels
    indication that even if Brown J. had not allowed the procedure he would have
    brought an application to the trial judge for rotating triers with unsworn
    jurors excluded, to preserve his position, indicates that it remained the option
    the appellant wanted and that there was no withdrawal of the right to object if
    the appellant was deprived of the option. The trial judge properly noted, in ruling
    that the option was not available, that the appellants position regarding
    rotating triers with unsworn jurors was preserved, reinforcing this point.

[47]

In these circumstances, I cannot agree with the
    Crown that the appellant got what he wanted because when faced with two
    competing options, counsel for the appellant brought the [s. 640(2.1)]
    application [Emphasis deleted]. The remaining two options were rotating triers
    with no one excluded and static triers with full exclusion. A choice of one
    over the other in these circumstances does not equate to the appellant getting what
    the appellant wanted. These options had both been effectively disavowed when
    the appellant sought rotating triers with unsworn jurors excluded. The trial
    judges error deprived the appellant of the option he chose and restricted the
    appellant to picking between two options he had not selected. There was a third
    option, the one that he did select. That was what the appellant wanted, and
    what he did not get.

[48]

Nor does the fact that the trial judge carefully
    vetted the static triers make that procedure the equivalent of what the
    appellant wanted. Counsel for the appellant had justified his preference for
    rotating triers on the basis of minimizing the risk that a static trier who did
    not understand or apply their instructions would create a bit of a mess.
    Although the trial judge explained to appellants counsel that he would follow
    a careful vetting procedure, and counsel acknowledged that this would
    ameliorate his concern in part, counsel for the appellant persisted in expressing
    a preference for rotating triers. The question of which procedure provided the
    best balance of benefits and disadvantages for a particular accused was under
    the
Criminal Code
provisions in force at the time, a decision of the
    accused. They made the ultimate choice of which procedure to request one for
    the accused to make. The importance of viewing that choice of option as one for
    the accused, as opposed to viewing the options as equivalent, no matter which
    option the accused had chosen, was underscored in
R. v. Swite
, 2011
    BCCA 54, 268 C.C.C. (3d) 184, where the court said, at paras. 58-59:

I also disagree with Crown counsel's
    submission that prejudice cannot be presumed in these circumstances on the
    basis that Parliament has made it clear, through the provision for static
    triers, that either static or rotating triers are capable of properly trying
    the truth of challenges for cause so as to ensure, to the extent possible, an
    impartial jury.

In response to this submission, I return to my
    earlier point that Parliament has not dictated the method by which the triers
    of a challenge are to be selected, but has effectively left that choice with
    the accused. It must be kept in mind that it is the accused whose liberty is at
    stake at trial and whose right to an impartial jury is at issue. In
    effect, Parliament has determined that it is the accused (subject to the making
    of an order under s. 640(2.2)) who has the right to determine by what method
    those who determine his fate will be chosen. The accused has the vested
    interest in the outcome which, in the case of Mr. Swite, was a verdict of
    guilty of first degree murder and the imposition of the statutorily mandated
    sentence of life imprisonment with a minimum period of parole
    ineligibility of 25 years. He is entitled to a trial before a properly
    constituted court. In this case, however, the court was constituted using a
    process whereby jurors were effectively screened by static triers in
    circumstances where rotating jurors were mandated.

[49]

Moreover, this case does not have the features
    present in
Grant
,
Riley
and
Murray
, cases where
this court was able to
    conclude that the accused got what the accused wanted in terms of the jury
    selection procedure, notwithstanding any erroneous view the trial court had
    held as to the options available to the accused.
[6]
Unlike
Grant
, this is not a case where the trial judge recognized a
    discretion to exclude unsworn jurors while using rotating triers but was given
    no reason to exercise it, such that the trial judge did not err in requiring
    the accused to select between the remaining options: at paras. 49-52. It is not
    a case like
Riley
, where the sole concern the accused raised was juror
    exclusion, but he made no mention of rotating triers and applied under s.
    640(2.1): at paras. 80 and 85. It is not a case like
Murray
, where
    counsel for the accused never rejected the use of static triers and made the
    functional equivalent of an application under s. 640(2.1): at paras. 56, 57, 63
    and 65. In each of those cases the court was able to conclude that in substance
    the accused got what the accused wanted. A similar conclusion cannot be reached
    here.

[50]

This case is also different from
R. v. Evans
, 2019 ONCA 715, where this
    court found that the full exclusion of jurors and the appointment of static
    triers gave the accused what they wanted in terms of the jury selection
    procedure. In
Evans
,
    the accused did not seek any ruling that unsworn jurors be excluded while
    rotating triers were used, the accused expressly abandoned such a request, the
    court did not make any ruling denying that option to the accused, and the
    accused expressly invoked and applied under s. 640(2.1) for juror exclusion
    which led to the appointment of static triers, not as a result of an erroneous
    ruling but because the accused wanted exclusion rather than a specific type of
    trier: at paras. 52-59. In contrast, here, the appellant specifically sought
    rotating triers with unsworn jurors excluded, did not abandon that request, and
    there was a ruling as to the non-availability of that option, but with the
    appellants rights arising from having requested that option preserved before
    any application under s. 640(2.1) was made by the appellant.

[51]

This courts jurisprudence makes it clear that
    there is very little scope for the operation of the curative proviso where an
    error has been made that affects the accuseds rights regarding the procedure
    for selecting the jury. In
Noureddine,
two reasons for this were given. First, the result of an error that
    deprived the accused of a jury selection method to which he was entitled is an
    improperly constituted jury, and that is beyond the scope of the errors that
    can be cured by in
curative proviso: at paras. 52-53, 57, 61 and 68;
    see also:
Riley
, at para. 73. Second,
the
curative proviso
can only
    be applied where the Crown shows absence of prejudice to the accused. Prejudice
    extends beyond actual prejudice (which is impossible to gauge in this kind of situation)
    to prejudice to the due administration of justice, which occurs where a jury
    selection method the accused was entitled to under the
Criminal
    Code
was invoked by the accused, but denied in favour of one disavowed by
    the accused:
Noureddine
,

at paras. 62-64, 68; see also:
Swite
,
    at paras. 58-59.

[52]

Where might the curative proviso apply? In
Noureddine
, the court gave as an example a situation where the
    accused agreed to the use of static triers but made no formal application for
    their use: at para. 57.
This
    situation
is not present here. Counsel
    for the appellant did apply for static triers, but only when an option of jury
    selection procedure available to the appellant was erroneously ruled to be unavailable,
    and only after preserving his right arising from his initial choice of jury
    selection procedure. The application ultimately made under s. 640(2) here cannot
    be equated to willingness or agreement to use static triers without a formal
    application in the sense meant in
Noureddine
.

[53]

Accordingly, the principle applied in
Noureddine
and
Husbands
is applicable here. The result it mandates is that the
    appeal be allowed and the verdicts of guilty be set aside on this ground.

B.

Refusal to Sever

[54]

At the commencement of the trial before Brown J.,
    the appellant and Arkivo asked for severance of the counts related to the Ruger
    handgun and the property obtained by crime, from the counts related to the
    Beretta handgun and the conspiracy to traffic cocaine. Only the counts related to
    the Beretta and the conspiracy to traffic cocaine involved Arkivo.

[55]

In support of the requested severance, the appellant
    and Arkivo relied on Molloy J.s ruling on the use of cross-count evidence.
    Molloy J. had held that evidence on the count of conspiracy to traffic in a
    firearm, which pertained to the Beretta, had no relevance to any other count of
    the indictment, had to be kept in a water-tight compartment, and would be
    highly prejudicial to the defence on the other counts. The appellant argues
    that it was an error not to sever the counts in these circumstances, as no
    limiting instruction was capable of curing the risk of prejudice to the
    appellant that would arise from trying the charges together. I disagree.

[56]

A trial judges severance ruling is entitled to
    deference and will only be interfered with on appeal if the judge acted
    unreasonably or if the ruling resulted in an injustice:
R. v. A.C.
,
    2018 ONCA 333, 360 C.C.C. (3d) 540, at para. 21;
R. v. Figliola
, 2011
    ONCA 457, 105 O.R. (3d) 641, at para. 96.

[57]

Counts will be severed where it is in the
    interests of justice to do so:
Criminal Code
, s. 591(3)(a). The
    interests of justice encompass the accuseds right to be tried on the evidence
    admissible against him or her as well as societys interest in seeing that
    justice is done in a reasonably efficient and cost-effective manner. A number
    of factors are to be considered and weighed cumulatively to determine whether
    the interests of justice require severance:
R. v. Last
, 2009 SCC 45,
    [2009] 3 S.C.R. 146, at paras. 17-18, 44 and 47.

[58]

Brown J. considered the relevant factors and
    weighed them appropriately. He accepted Molloy J.s finding that the conspiracy
    to traffic in the Beretta would be prejudicial to the defence on the other counts.
    However, as did Molloy J., he also considered that a limiting instruction telling
    the jury that they could not apply evidence on the Beretta counts to the other
    counts would protect against that prejudice.

[59]

In fact, the trial judge gave a limiting
    instruction.
[7]
The jury is presumed to have acted in accordance with the instructions they
    received:
R. v. Puddicombe
, 2013 ONCA 506, 299 C.C.C. (3d) 543, at
    para. 93, leave to appeal refused, [2013] S.C.C.A. No. 496;
R. v. Hamilton
,
    2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 214.

[60]

Brown J. also considered the legal and factual
    nexus between counts, including that: the two conspiracy counts were based on
    the same intercepted communications; the conspiracy to traffic in cocaine
    evidence was relevant to the  Ruger-related counts and the property obtained by
    crime count, because (as Molloy J. had observed) the evidence obtained from the
    search of the residence included evidence that could tie the appellant to the
    conspiracy; and the charges all arose from the same investigation, meaning that
    in order to present a cohesive narrative, much of the same evidence would be
    required even if there were separate trials. Brown J. also noted that granting
    the application would create a multiplicity of proceedings consisting of
    lengthy trials.

[61]

Brown J. considered the effect, on the appellants
    ability to testify, of hearing the conspiracy-related charges together with the
    Ruger and property obtained by crime charges. He accepted that it was
    objectively reasonable that the appellant could choose to testify on the latter
    charges but not wish to testify on the conspiracy-related charges so as not to
    give the jury an opportunity to identify his voice. He properly considered a
    stated intention to testify as one factor to be balanced.

[62]

However, upon a balancing of all considerations,
    Brown J. concluded that the legal and factual nexus and the benefit to the
    administration of justice in avoiding a multiplicity of proceedings, outweighed
    any factors in favour of severance, and he refused to grant it. In my view,
    that decision did not involve any error that would warrant appellate
    intervention.

C.

The Jury Instruction Grounds

[63]

The appellant raises several concerns with
    respect to the jury instructions.

[64]

The appellant submits that the trial judges
    charge was too lengthy. A jury charge that is unnecessarily confusing constitutes
    an error in law:
R. v. Hebert
, [1996] 2 S.C.R. 272, at para. 8. Here
    the charge took two days to deliver and was 171 pages in length.

[65]

The short answer to this submission is that the
    charge was not confusing, let alone unnecessarily so. The test for a charge is
    whether the jury was properly, not perfectly, instructed:
R. v. Calnen
,
    2019 SCC 6, 374 C.C.C. (3d) 259, at para. 9. Length and detail are not
    independent grounds on which to criticize a jury charge; the question is
    whether the trial judge met his duty to inform the jury of the relevant
    evidence, and to assist the jury in linking that evidence to the issues that it
    must consider in reaching a verdict.:
R. v. Rodgerson
, 2015 SCC 38,
    [2015] 2 S.C.R. 760, at para. 30.

[66]

Here the trial judge conducted a pre-charge
    conference. He implemented some suggestions of counsel, and in respect of other
    suggestions he was entitled to depart from them. For example, the trial judge insisted,
    notwithstanding a suggestion of defence counsel, on reviewing for the jury
    evidence relevant to whether there were conspiracies as alleged even though the
    defence conceded there were. As the trial judge appropriately pointed out, it
    was up to the jury to decide if there was a conspiracy whether or not the
    appellant conceded it.

[67]

The circumstances of the case justified a
    lengthy charge. There were six separate offences charged, including two
    conspiracies. There was wiretap, surveillance, and expert evidence. In
    delivering the charge efforts were made to keep it understandable and
    digestible, by using methods such as taking breaks during the oral delivery of
    the charge, and using headings and subheadings in the written version of the
    charge.

[68]

I agree with the Crown that the charge was comprehensive
    and comprehensible.

[69]

The appellant also argues that the trial judge
    erred in failing to instruct the jury that they should not consider the determination
    they would make about whether the appellant was involved in the conspiracy to
    traffic firearms when they considered whether the appellant was in possession
    of the cash as property obtained by crime. The appellant argues that Molloy J.
    had ruled that evidence irrelevant, yet the trial judge instructed the jury
    they could consider that evidence as relevant.

[70]

This issue was addressed at the pre-charge
    conference. When Molloy J.s ruling about the ability to use evidence of the
    conspiracies as relevant to the property obtained by crime charge was raised,
    counsel for the appellant stated that Molloy J. had been wrong to say it could
    not be used in respect of this charge. The trial judge was not obliged to
    follow a pre-trial ruling which the parties agreed was wrong in law:
R. v.
    R.V.
, 2018 ONCA 547, 141 O.R. (3d) 696, at paras. 97-104, revd on other
    grounds, 2019 SCC 41.

[71]

The appellant further argues that the trial
    judge did not instruct the jury that it needed to be satisfied beyond a reasonable
    doubt on each element of the offence of conspiracy. He says the trial judge
    left the jury with the impression that identity only had to be proven on a
    balance of probabilities.

[72]

I disagree. The trial judge expressly told the
    jury that [a]ll of the elements of a particular offence must be proved
    beyond a reasonable doubt before there can be a conviction for that offence.
    He explicitly stated that the identity of members of the conspiracy was one of
    the elements of the offence of conspiracy and that it had to be proved beyond
    a reasonable doubt before you can convict an accused of this offence. He
    properly instructed the jury that they must find beyond a reasonable doubt that
    the appellant was the voice of the third person on the intercepted
    communications.

[73]

The appellant argues that the jury could have
    taken the trial judge to mean that identity had to be proven on a balance of
    probabilities from his instruction to use that standard on the question of
    whether the appellant was probably a member of the conspiracy so as to make
    co-conspirators statements admissible against him. However, the trial judge
    was clear that it was only for this purpose that the lower standard of proof
    applied. He was equally clear that on the question of identity as an element of
    the conspiracy offences, proof beyond a reasonable doubt was required.

[74]

Finally, the appellant submits that the trial
    judge unfairly undermined counsel prior to the jury commencing deliberation.
    The trial judge had, at the request of appellants counsel, re-called the jury
    to explain the meaning of the word exculpatory. The appellant argues that in providing
    the explanation the trial judge told the jury he thought they were too smart
    not to know what exculpatory meant, suggesting that appellants counsel thought
    otherwise.

[75]

In my view, the entire passage, read in context,
    does not have the undermining effect the appellant contends for, nor could one
    isolated remark have been anything other than harmless in a lengthy trial
    conducted in all respects with appropriate decorum. I would not give effect to
    this ground of appeal.


V.

Conclusion

[76]

Because of my decision on the jury selection
    issue, I would allow the appeal, set aside the convictions, and direct a new
    trial.

Released: AH September 24, 2019


B. Zarnett J.A.
I agree.
Alexandra Hoy A.C.J.O.

I agree. Doherty J.A.





[1]

In a
Parks
challenge, potential jurors
may be asked whether in deciding if
the
    prosecution has proven the charge against t
he
accused t
heir
ability to
    judge the evidence in the case w
ould
be affected by
    the fact that the person charged is a
member of a visible racial
    minority:
R. v. Parks
(1993), 65 O.A.C. 122, 15 O.R. (3d) 324, leave to appeal
    refused, [1993] S.C.C.A. No. 481, at p. 359; see also:
R. v. Spence
,
    2005 SCC 71, [2005] 3 S.C.R. 458, at para. 1;
R. v. Douse
(2009), 246
    C.C.C. (3d) 227, 193 C.R.R. (2d) 264 (Sup. Ct.), at paras. 3 and 68-74.



[2]
In
    amendments to s. 640 of the
Criminal Code
which come into force on
    September 19, 2019, the presiding judge will try challenges for cause: see
An Act to amend the Criminal Code, the Youth Criminal Justice Act and
    other Acts and to make consequential amendments to other Acts
, S.C. 2019, s. 272.



[3]

Ordinarily when static triers are used, the same two
    individuals try all the challenges for cause. The trial judge has a discretion
    to replace static triers with other static triers. But they never become
    members of the jury:
R. v. Province
, 2019 ONCA 638, at paras. 88-94.



[4]
In
R.
    v. Murray
, 2017 ONCA 393, 347 C.C.C. (3d) 529, at para. 54, the court
    wrote: Although the point did not arise in
Grant
, some courts have held
    that this discretion to exclude unsworn prospective jurors when the truth of
    the challenge for cause is tried by rotating triers extends to sworn jurors who
    are not acting as triers:
Swite
, at para. 28;
R. v. English
(1993), 84 C.C.C. (3d) 511 (Nfld. C.A.), at pp. 533-534, leave to S.C.C.
    refused. 87 C.C.C. (3d) vi (S.C.C.).



[5]

See footnote 4.



[6]

See the discussion of these cases in
Esseghaier
, at
    paras. 79-87.



[7]

The appellant complains about the extent of the limiting
    instruction  a point discussed in paragraphs 67-68 below.


