



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zvolensky, 2017 ONCA 475

DATE: 20170607

DOCKET: C56042, C56152 & C56503

Sharpe, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zdenek Dennis Zvolensky, Nashat Qahwash and
    Ronald Cyr

Appellants

Frank Addario, Andrew
    Furgiuele and Delmar Doucette, for the appellant Zdenek Dennis Zvolensky

Anil K. Kapoor and Sarah
    Harland-Logan, for the appellant Ronald Cyr

John M. Rosen, Paul J.I.
    Alexander and Lindsay Daviau, for the appellant Nashat Qahwash

Jocelyn Speyer and Alison Wheeler, for the respondent

Heard: January 23, 24, 25, and 26,
    2017

On appeal from the convictions entered on April 30, 2012
    by Justice Linda Walters of the Superior Court of Justice, sitting with a jury.

ADDENDUM

[1]

The appellant
    Ronald Cyr requests clarification as to whether further reasons will be
    provided by the court for its refusal to allow him to advance a new
Charter
argument on appeal. The appellant had proposed to argue that ss. 7, 11(d) and
    11(f) of the
Charter
required that clause 6 of s. 3(1) of the
Juries
    Act
, R.S.O. 1990, c. J.3, be expanded to provide that former auxiliary
    police officers are ineligible to serve as jurors.

[2]

The
    appellant moved in writing for leave to advance this argument, which was
    opposed by the Crown. In
R. v. Zvolensky
, 2016 ONCA 947, this court refused to allow the
    argument to be advanced on appeal, but indicated that further reasons would be
    given on this issue in the final judgment dealing with the appeal.

[3]

The
    issue of juror ineligibility is dealt with in paras. 188-197 of the final
    judgment,
R.
    v. Zvolensky
, 2017 ONCA 273. As noted at paras. 196-197, even if the appellants
Charter
argument were successful
    on some basis, ss. 670 and 671 of the
Criminal Code
are a complete answer to
    this ground of appeal. Further, this court noted at para. 195 that there was no
    air of reality to the suggestion that the presence on the jury of a former
    auxiliary police officer who last volunteered for the Hamilton Police Service
    11 years before trial gave rise to a reasonable apprehension of bias. No one
    raised a concern at trial that the jury panel should be vetted to exclude
    persons retired from a police force or any other excluded profession or
    occupation.

[4]

As
    this court pointed out in its decision refusing leave, the general rule is that
    courts of appeal will not permit an issue to be raised for the first time on
    appeal.
R
    v. Reid
,
    2016 ONCA 524, 132 O.R. (3d) 26, at para. 39. The decision to grant or refuse
    leave to permit a new argument is a discretionary decision informed by a
    balancing of the interests of justice as they affect all parties:
Guindon
    v. Canada,
2015 SCC 41, [2015] 3 S.C.R. 3, at para. 22.

[5]

For
    the reasons expressed in paras. 188-197 of our final judgment, we are not
    satisfied that any miscarriage of justice would result from our refusal to
    allow the appellants proposed constitutional argument to be advanced on
    appeal. Dealing with this issue would serve no purpose, given ss. 670 and 671 of
    the
Criminal
    Code
.

Robert J. Sharpe J.A.

David Watt J.A.

G. Pardu J.A.


