COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Esseghaier, 2019 ONCA 672

DATE: 20190827

DOCKET: C61095 & C61185

Rouleau, Hourigan and Zarnett JJ.A.

DOCKET:
    C61095

BETWEEN

Her Majesty the Queen

Respondent

and

Chiheb Esseghaier

Appellant

DOCKET:
    C61185

AND BETWEEN

Her Majesty the Queen

Respondent

and

Raed Jaser

Appellant

Erin Dann and Janani Shanmuganathan,
amicus curiae

Chiheb Esseghaier, by video conference

Frank Addario and Megan Savard, for the appellant, Raed
    Jaser

Kevin Wilson and Ian Bell, for the respondent

Heard: February 19, 2019

On appeal from the convictions entered on March 20, 2015
    and the sentences imposed on September 23, 2015 by Justice Michael Code of the Superior
    Court of Justice, sitting with a jury.

Zarnett J.A.:

I.

Introduction

[1]

The appellants Raed Jaser (Jaser) and Chiheb
    Esseghaier (Esseghaier) were jointly tried by a court composed of a judge and
    jury. They were convicted of conspiracy to commit murder for the benefit of a
    terrorist group and of two counts of participating in terrorist activity. Esseghaier
    was also convicted of conspiracy to damage transportation infrastructure with
    intent to endanger safety for the benefit of a terrorist group. The trial judge
    sentenced them to life in prison.

[2]

The appellants have appealed their convictions and
    sentences raising a number of grounds. Watt J.A. directed that one ground of
    appeal, concerning the selection of the jury at trial, be argued first. These
    reasons address that ground of appeal.

[3]

The offences with which the appellants were
    charged included a plan to de-rail a passenger train. The prosecution alleged
    the appellants had been motivated by Islamic extremism and had planned
    terrorist attacks on non-Muslim targets or victims. There had been significant
    pre-trial media coverage.

[4]

Accordingly, Jasers counsel and the Crown
    agreed, and the trial judge accepted, that challenges for cause of prospective
    jurors were necessary. Questions were developed to be put to each prospective
    juror inquiring whether pre-trial publicity and the fact that each appellant
    was a member of a visible minority and a Muslim would, given the nature of the
    charges, affect the prospective jurors ability to decide the case against each
    appellant on the evidence at trial without partiality.

[5]

When a potential juror is challenged for cause,
    the challenge must be tried and a determination must be made as to whether the
    challenge is true before the potential juror may be sworn and become a member
    of the jury. The
Criminal Code
,
    R.S.C., 1985, c. C-46,
contemplates two different
    categories of triers of challenges: rotating triers and static triers.
[1]
Rotating triers are two
    persons who will serve on the jury, and they change (rotate) as each additional
    jury member is sworn: s. 640(2). Static triers are two persons who hear and
    determine all challenges until the entire jury has been selected and sworn, but
    who do not themselves become members of the jury: ss. 640(2.1) and (2.2).
[2]

[6]

On an application to resolve jury selection
    issues, Jaser sought rotating triers to determine challenges for cause as
    mandated by s. 640(2) of the
Criminal Code
. He
    asked the court to exercise its inherent jurisdiction to exclude unsworn jurors
    from the courtroom while challenges were heard in order to protect jury
    impartiality by avoiding exposing unsworn jurors to other jurors answers. Jasers
    counsel indicated that if and only if the court ruled it lacked the inherent
    jurisdiction to order the exclusion of unsworn jurors while using rotating
    triers, then Jaser would apply under s. 640(2.1) of the
Criminal Code
for the exclusion from the courtroom of sworn and unsworn jurors,
    with the result that challenges for cause would be determined by static triers
    under s. 640(2.2). Counsel described this scenario in oral argument as very
    much our alternate position.

[7]

Esseghaier was not represented by counsel at
    trial. He refused the assistance of any counsel who would conduct a defence based
    on the
Criminal Code
rather than the Holy
    Quran.
Amicus curiae

had been appointed for
    him by the trial judge with a limited role. Although Esseghaier did not make
    submissions about whether jurors should be challenged for cause or about the
    questions they should be asked, the questions the trial judge ruled would be
    asked were as much about him as Jaser. Esseghaier made no application in
    respect of the process for trying such challenges, whether the triers should be
    rotating or static, or about what jurors should be excluded during the process.
    He did not make specific submissions about how Jasers application should be
    determined.

[8]

The trial judge ruled that he had no common law discretion
    or inherent jurisdiction
[3]
to exclude unsworn jurors during a challenge for cause tried by rotating
    triers. He held the discretion to do so had been removed when ss. 640(2.1) and
    (2.2) of the
Criminal Code
were enacted, which
    provided that all unsworn and sworn jurors could be excluded, but only where static
    triers were used. He also held that if he had such a discretion he would not
    exercise it because it would be wrong to make an order limited to the exclusion
    of only unsworn jurors when the
Criminal Code
,
    in s. 640(2.1), provided a full and effective statutory remedy of excluding
    sworn and unsworn jurors. He instead ordered that all jurors, unsworn and sworn,
    be excluded under s. 640(2.1) and that challenges for cause be heard and determined
    by static triers. The jury selected by this process then tried the charges against
    both appellants.

[9]

Decisions of this court rendered subsequent to
    the trial judges ruling on the jury selection process make it clear that he
    erred when he held he had no common law discretion to exclude unsworn jurors while
    rotating jurors tried the challenges for cause. Although at the time of his
    ruling there was a split in trial level case law about the existence of that
    discretion, this courts jurisprudence subsequently settled that issue in the
    opposite manner to the way the trial judge did. No party challenges that conclusion.
    The issue on this appeal is the extent and effect of the error.

[10]

The appellants argue that they are entitled to a
    new trial as the error involved a fundamental right of the appellants about the
    process by which the jury was selected and therefore its proper constitution. They
    argue that this type of error cannot be cured by the curative proviso in s.
    686(1)(b)(iv) of the
Criminal Code
.

[11]

The Crown argues that the error did not deprive
    Jaser of an option for jury selection to which he was entitled because the
    trial judge said that even if he had the discretion to order what Jaser sought
    he would not have done so. Moreover, Jaser asked, in the alternative, for the static
    trier procedure that was implemented. Esseghaier is similarly disentitled to
    relief as he did not participate in the jury selection process by his own
    choice.

[12]

For the reasons which follow, I would allow the
    appeal.

[13]

Contrary to the Crowns submissions, the trial
    judges alternative holding, that if he had a discretion to exclude unsworn
    jurors while using rotating triers he would not have exercised it, was the
    product of a legally erroneous view of the nature and scope of the discretion.
    The circumstances for the exercise of the discretion were present.

[14]

Nor would I give effect to the Crowns arguments
    that Jaser cannot complain because he indicated he would make a s. 640(2.1)
    application if the court ruled it did not have the discretion he was seeking to
    have exercised, or that Esseghaiers non-participation disentitles him to
    relief.

[15]

There are three procedural options for a
    challenge for cause: (1) rotating triers with no one excluded from the
    courtroom while challenges are heard and determined; (2) rotating triers with
    unsworn jurors excluded from the courtroom;
[4]
and (3) static triers with sworn and unsworn jurors excluded. While the court
    has a discretion whether to order exclusion when the accused seeks to invoke an
    option that involves it, pursuant to the
Criminal Code
the accused has the right to choose which option to invoke. A
    wrongful deprivation of an option the accused properly seeks to invoke results
    in an improperly constituted jury.

[16]

The trial judges errors deprived Jaser of the option
    which he had properly sought to invoke, rotating triers with unsworn jurors
    excluded from the courtroom. Jasers alternate position did not reflect a
    change of mind or a withdrawal of what he had originally sought; it was simply
    a choice between the remaining two options when the one he had sought was
    improperly denied. In these circumstances the procedure implemented, static
    triers, flowed directly from those errors.

[17]

Esseghaier refused to meaningfully participate
    in the challenges for cause (and all other aspects of the trial), but that does
    not mean it does not matter what method was used to determine those challenges.
    He never gave up his right to rotating triers as he never invoked the
    alternative of static triers. One jury was selected for both appellants, the
    challenge for cause questions pertained to both, and the trial judge properly
    recognized that Esseghaier would have the benefit of any successful challenges
    for cause by Jasers counsel. In the circumstances of this case it cannot be
    said that a jury improperly constituted for one accused was properly constituted
    for the other.

[18]

Nor is this a case in which the curative proviso
    in s. 686(1)(b)(iv) of the
Criminal Code
is
    applicable.

II.

Analysis

A.

The Law as Currently Stated

[19]

Because of the nature of the issues in this appeal, it is helpful to
    review what occurred in this case through the lens of the law as subsequently
    stated by this court.

(i)

Rotating Triers and Static Triers

[20]

The
Criminal Code
permits challenges for cause on the basis
    that the juror is not impartial: s. 638(1)(b).

[21]

Section 640 of the
Criminal Code
deals with the procedure for
    hearing and determining challenges for cause. In 2008, the
Criminal Code
was amended to add ss. 640(2.1) and (2.2). At the time of trial, in relevant
    part, s. 640 of the
Criminal Code
provided 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.

[22]

Section 640(2) is the default rule. The accused need do
    nothing to be entitled to rotating triers. Unless an application is brought,
    and an order is made under s. 640(2.1), challenges for cause are determined by
    rotating triers, that is, the two jurors who were last sworn or if none have
    been sworn, two persons present who are appointed by the court for that
    purpose:
R. v. Husbands
, 2017 ONCA 607, 353
    C.C.C. (3d) 317, leave to appeal refused, [2017] S.C.C.A. No. 364, at para. 37.

[23]

On the other hand, static triers will be used
    only if the accused seeks a specific order. Only if an application is made by
    the accused resulting in an order under s. 640(2.1) for the exclusion of all
    sworn and unsworn jurors, is s. 640(2.2) triggered. This provision requires the
    appointment of two static triers, that is, two fixed persons who determine
    whether challenges are true until the entire jury is empaneled, but who do not
    themselves become jury members.

[24]

Thus, unlike rotating triers which are the
    accuseds right without the need to take any action, for static triers to be
    used, there are preconditions. First, there must be an application under s. 640(2.1)
    by the accused for the exclusion of all sworn and unsworn jurors during the
    hearing and determination of challenges for cause. Second, the application must
    succeed and an order under s. 640(2.1) must be made. As this court stated in
Husbands
: No application. No static triers. An unsuccessful application. No
    static triers.: at para. 37.

(ii)

The Accuseds Option

[25]

As the preconditions to static triers can only
    be initiated by the accused, the result is that the method of trying challenges
    for cause  rotating triers or static triers  is a function of the accuseds
    choice. If the accused does not invoke the procedure for static triers, the
    result will be rotating triers. And only the accused may make a s. 640(2.1) application
    which can lead to the appointment of static triers. The Crown may not. Nor can
    the Court make orders under ss. 640(2.1) and (2.2) in the absence of an
    application by the accused or its functional equivalent. Whether there has
    been an application by the accused invoking the option that will involve static
    triers is determined not only by whether a formal application has been made,
    but by looking at what the accused in substance has asked for; in other words,
    it is assessed on a substance over form basis:
Husbands
, at paras. 34, 38-39, 41 and 44-49. If the accused does not, on a
    substance over form basis, invoke the option of static triers, the result will
    be rotating triers.

(iii)

The Options and Their Content

[26]

Prior to the 2008 amendments it was accepted
    that, although the
Criminal Code
was silent
    about exclusion of any jurors from the courtroom when rotating triers were
    determining challenges for cause, the trial judge had a common law discretion
    to order the exclusion of unsworn jurors. This discretion was exercised when it
    was necessary to preserve the impartiality of the unsworn jurors, which may
    have otherwise been compromised if they were present to hear questions put to
    and answers given by other jurors before they themselves were questioned:
R.
    v. Grant
, 2016 ONCA 639, 342 C.C.C. (3d) 514, at paras.
    11 and 22.

[27]

In 2016, in
Grant
, this court held that the 2008 enactment of ss. 640(2.1) and (2.2)
    did not oust the common law discretion:

at paras. 34, 37 and 39. As this court said in 2017 in
Husbands
, the 2008 amendments did not remove a trial judges pre-existing
    discretion to exclude unsworn jurors during the trial of the truth of
    challenges for cause by rotating triers.... [or] 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.: at paras. 35-36; see
    also: paras. 31-32. Exclusion of sworn and unsworn jurors under s. 640(2.1),
    and its consequence, static triers under s. 640(2.2), added an alternative
    procedure; it did not replace what pre-existed: at para. 35.

[28]

Accordingly, there are, properly considered
    three options for proceeding with a challenge for cause, two involving rotating
    triers and one static triers:

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
    pursuant to the common law discretion if the accused requests and the court in
    its discretion so orders;
[5]
and

c.

sworn and unsworn jurors excluded from the
    courtroom if the accused makes application for that exclusion under s. 640(2.1)
    and the court determines to grant it in which case static triers are used
    pursuant to s. 640(2.2) of the
Criminal Code
:
Murray
, at para. 60.

(iv)

Factors Relevant to Choosing the Option

[29]

There can be good reasons for preferring
    rotating triers to static triers that could inform an accuseds decision as to
    which option to invoke. In
Grant
,

this court noted, at para. 21:

Using rotating triers benefits the process of selecting the
    jury in two ways: by avoiding the risk the process could be tainted by a single
    static juror who does not properly assess the partiality of prospective jurors;
    and by promoting a sense of responsibility in individual jurors and a sense of
    cohesiveness in the jury chosen.
These potential benefits
    are particularly important to the accused
. [Emphasis added]

[30]

On the other hand, there can be advantages to the alternative procedure,
    including the broader exclusion that will be in place if static triers are
    used. In
Grant
this court stated, also at para. 21:

On the other hand, if rotating triers are used, the sworn jurors
    could be tainted by the answers to a challenge for cause given by a prospective
    juror; if static triers are used, none of the members of the jury can be
    tainted by answers given by any other prospective juror.

[31]

In considering these comparisons, two points must be kept in mind.
    First, given that it is the accused who has the option to invoke the method of
    selecting triers, it is the accused who initially balances these perceived
    advantages in deciding which option to seek to invoke. Second, both the category
    of triers and the extent of exclusion must be considered together. If rotating
    triers are to be used, all sworn jurors cannot be excluded because rotating
    triers are sworn jurors  they must be present to hear and determine
    challenges. Accordingly, if an accused wants rotating triers, the accused
    cannot seek exclusion of all jurors; the accused can only seek exclusion of
    unsworn jurors. That is the extent of that option.
[6]

B.

The Facts Leading up to The Trial Judges Jury Selection
    Procedure Ruling

[32]

It is not in dispute that challenges for cause
    of prospective jurors in this case were warranted. As the trial judge noted the
    case was referred to in the media, and even in public statements by politicians,
    as the Via Rail conspiracy. The trial had attracted a high public profile, in
    a climate of public concern about terrorism and Islamic extremism:
R.
    v. Jaser
, 2014 ONSC 7528,
at para. 8 (
Jaser
    (Jury Selection Ruling)
).

[33]

The trial judge ultimately ruled six questions
    with two preambles to be appropriate for the challenges for cause. The
    questions show the nature of the potential concerns the challenge for cause
    procedure was to address. I reproduce them below:

Chiheb Esseghaier and Raed Jaser are charged with
    terrorism-related offences. Among other things, the prosecution alleges that
    they planned to de-rail a passenger train. The prosecution alleges that their
    actions were motivated by Islamic extremism.

1.Have you seen, heard or read anything about this case in any
    form of media, for example, from the radio, the television, the internet,
    newspapers or magazines, or through discussions with others?

2.As a result of anything you have seen, heard or read, have
    you formed an opinion about the guilt or innocence of either or both of the
    accused?

3.(If applicable) Despite any opinion you may have formed,
    would you be able to set that opinion aside and decide the case based only on
    the evidence at trial and the instructions of the trial judge?

As His Honour will tell you, in deciding whether or not the
    prosecution has proved the charge against an accused, a juror must judge the
    evidence presented at trial without bias, prejudice or partiality.

1.The two men charged are members of a visible minority. Would
    your ability to judge the evidence in this trial without bias, prejudice or
    partiality, be affected by the fact that the persons charged are members of a
    visible minority?

2.The two men charged are Muslim. Would your ability to judge
    the evidence in this trial without bias, prejudice or partiality, be affected
    by the fact that the persons charged are Muslim?

3.Finally, would your ability to judge the evidence in this
    trial without bias, prejudice or partiality, be affected by the fact that the
    persons charged are Muslims who are alleged, in part, to have planned terrorist
    attacks on non-Muslim targets or victims?
Jaser (Jury Selection Ruling)
,
at para. 11.

[34]

On November 27, 2014, counsel for Jaser and the
    trial judge discussed jury selection, including the procedure to try challenges
    for cause. Counsel for Jaser made it clear that no request for static triers
    was being made. He stated: We are not making that request [for static triers].
    [W]ere not applying to have both sworn and unsworn [jurors] excluded pursuant
    to either (2.1) or (2.2). Counsel for Jaser was clearly interested in having
    unsworn jurors excluded while challenges for cause were determined by rotating
    triers. Counsel for Jaser answered Yes to the trial judges question: You
    want sworn jurors to sit there and watch the, the challenge for cause go on?.
    (On the law, as it now has been settled, this was an available option to pursue).

[35]

The trial judge was candid with counsel on
    November 27, 2014 that his view was that the 2008 amendments had removed the common
    law discretion to exclude unsworn jurors while using rotating triers. The trial
    judge said that he had already issued rulings on this legal point in other
    cases, that the trial decision in
R. v. Riley
(2009)
, 247 C.C.C. (3d)
    517 was to be followed, rather than a contrary trial level decision,
R.
    v. Sandham
(2009), 248 C.C.C. (3d) 46. (This courts
    subsequent decisions settled that issue in line with
Sandham
). He said that counsel for Jaser was going to have a bit of an
    uphill battle persuading him otherwise.

[36]

A formal application respecting jury selection issues,
    including the procedure to be used was scheduled to be heard on December 9,
    2014.

[37]

Esseghaier had by this point made it clear that
    he did not recognize Canadian law and wanted to be tried under the Holy Quran.
    He refused to be represented by counsel who would follow the
Criminal
    Code
rather than the Holy Quran. In light of this, the
    trial judge appointed
amicus
[7]
on
    April 11, 2014 for the limited role of responding to the trial judges need for
    relevant submissions on contested, uncertain, complex, and important points of
    law or of fact, but not for the purpose of assisting in Esseghaiers defence:
R.
    v. Jaser
, 2014 ONSC 2277, at paras. 39-43 (
Jaser
    (Amicus Ruling)
).

[38]

Despite the appointment of
amicus
, Esseghaier remained self-represented:
Jaser (Amicus
    Ruling)
, at para. 43. The trial judge noted when he
    appointed
amicus

that Esseghaier did not want
    the benefit of any success that (counsel for Jaser) might achieve, on behalf
    of Jaser, on any pre-trial Motions. [and] does not want this work to have any
    impact on his own case.:
Jaser (Amicus Ruling)
, at para. 17.

[39]

On November 27, 2014, the trial judge discussed
    with
amicus
whether he needed to be present on
    December 9, 2014 when the application about jury selection was to be argued.
Amicus
advised that the issue impacts on Mr. Esseghaier, obviously but
    he could not define (sic) Esseghaiers wishes.
Amicus
expressed the view that the positions to be advanced by counsel for
    Jaser would help Esseghaier as he thought Jaser and Esseghaier are in the same
    boat as far as concerns about jury selection go. The trial judge suggested
    that Jasers counsel would cover the field adequately but left the decision, as
    to whether to attend on December 9, 2014 to
amicus
, offering not to take up his time unless he had something to add
    that they had missed.

[40]

Jaser filed a factum in relation to the jury
    selection procedure issue on December 5, 2014. It requested an order excluding
    unsworn jurors from the courtroom during the challenge for cause process while
    rotating triers were used, noting that the use of rotating triers is mandated
    by s. 640(2) of the
Criminal Code
.

[41]

Jasers factum for the jury selection
    application, in a section entitled Rotating versus Static Triers stated that
    the use of rotating triers was statutorily mandated and cited the benefits of
    using rotating triers. It argued that the court had an inherent jurisdiction,
    in its discretion, to order the exclusion of unsworn jurors while using
    rotating triers in the same manner as pre-existed the 2008 amendments, that the
    enactment of the 2008 amendments had not displaced that discretion, and that
    discretion should be exercised here to preserve juror impartiality. It stated
    that Jaser was not applying pursuant to subsection (2.1) for the exclusion of both
    sworn and unsworn jurors, that such an application was a precondition for
    using static triers, and that Jaser has not sought an order under subsection
    (2.1), and therefore, there was no jurisdiction to appoint static triers and
    Jaser was entitled to rotating triers.

[42]

Jasers factum then stated that:

If, but only if
, this Honourable Court is of the view that subsection (2.1) displaces
    its inherent jurisdiction to order the exclusion of unsworn jurors during the
    challenge for cause process, the Applicant [Jaser] will make an application
    pursuant to subsection (2.1) in order to preserve juror impartiality.
    [Emphasis added.]

[43]

The jury selection application was heard on
    December 9, 2014. In oral submissions, counsel for Jaser described her position
    seeking exclusion of unsworn jurors and the use of rotating triers as a balance
    of a number of factors including some protection against partiality and the value
     of having the jury participate in its own selection. She described the
    intention to bring an application under s. 640(2.1) as very much our alternate
    position; an option to be exercised only if faced with otherwise having all jurors
    present for the entire selection process.

[44]

On December 9, 2014,
amicus
was not present for oral argument. There is no indication in the
    record that
amicus

expressed any view about
    the statement in Jasers factum that an application would be brought under s. 640(2.1)
    under certain circumstances. The circumstances in which the application would
    be brought have been clearly stated above.

[45]

Esseghaier was present for the application by
    video on December 9, 2014. After Jaser and the Crown had made submissions the
    trial judge asked Esseghaier if he had any submissions. His response did not
    relate to the jury selection process.

C.

The Trial Judges Jury Selection Ruling and the
    Empanelment of the Jury

[46]

The trial judge dismissed Jasers application to
    exclude unsworn jurors. He held the only route to exclusion was to exclude
    sworn and unsworn jurors both under s. 640(2.1) which together with s. 640(2.2)
    had removed the courts pre-2008 discretion to exclude unsworn jurors while
    using rotating triers to preserve impartiality:
Jaser (Jury
    Selection Ruling)
, at para. 42.

[47]

The trial judge treated the indication in
    Jasers factum and in his dialogue with counsel, that in the event of such a
    ruling Jaser would apply under s. 640(2.1), as the application itself. He made
    an order excluding all sworn and unsworn jurors and requiring the appointment
    of static triers. To make that order, he was satisfied that such an exclusion
    order was necessary to preserve the impartiality of the jury: s. 640(2.1);
Jaser
    (Jury Selection Ruling)
, at paras. 42-44.

[48]

The trial judge stated that even if he had the
    discretion to exclude unsworn jurors with rotating triers he would not exercise
    that discretion, since it would be wrong to make such a limited and
    ineffective common law order, when a full and effective statutory remedy was
    readily available, pursuant to s. 640(2.1).:
Jaser (Jury Selection
    Ruling)
, at para. 46. He felt that a limited order
    protecting only prospective jurors from tainting would ignore the danger of tainting
    sworn jurors, which could be addressed under the statutory remedy:
Jaser
    (Jury Selection Ruling)
, at para. 45.

[49]

After the trial judge made his jury selection
    ruling, Esseghaier was provided with a memorandum by the trial judge which,
    among other things, stated that if Esseghaier wished to challenge a juror for
    cause and he satisfied the trial judge such a challenge was appropriate, he
    could submit proposed questions for the trial judge to rule upon. The
    memorandum also advised Esseghaier that Jaser had been permitted to challenge
    prospective jurors for cause and that [y]ou, of course, will have the benefit
    of any of these challenges, if they are successful. It also described the static
    trier procedure the trial judge ordered.

[50]

The jury was selected pursuant to the procedure
    the trial judge ordered. Jaser through counsel participated in the challenges.
    Esseghaier did not participate in the challenges.

D.

The Extent of The Trial Judges Error

[51]

The parties agree that the trial judge erred
    when he held that he lacked common law discretion to order exclusion of unsworn
    jurors while rotating jurors tried challenges for cause, and that ss. 640(2.1)
    and (2.2) removed the discretion that had existed before those provisions came
    into force. That holding is contradicted by this courts subsequent decisions,
    starting with
Grant
. The parties disagree,
    however about the extent of that error and its effect. Because the extent of
    the error may impact its effect, I discuss the extent of the error first.

[52]

The Crown does not agree that Jasers
    application for exclusion of unsworn jurors while using rotating jurors would,
    on a correct view of the law, have necessarily been granted. The Crown relies
    on the fact that the trial judge stated that even if he had a discretion he
    would not have exercised it to grant the application for exclusion of unsworn
    jurors and rotating triers.

[53]

I do not agree with the Crowns position. In
    making the s. 640(2.1) order which he did, the trial judge was satisfied that
    exclusion was necessary for the preservation of impartiality of jurors.
Preservation
    of impartiality is a relevant consideration in an application for exclusion of
    unsworn jurors while using rotating triers as well
. The trial
    judge however effectively held that since a s. 640(2.1) order would do a better
    job of preserving impartiality by excluding both sworn and unsworn jurors, an order
    for exclusion of unsworn jurors while using rotating triers should not be made.
    There are several problems with this.

[54]

First, the discretion, properly viewed, was not
    ousted, circumscribed, or altered in any way by the enactment of s. 640(2.1):
Husbands
, at para. 35. Yet the trial judges approach was to compare s.
    640(2.1), which he considered to be a full and effective statutory remedy, to
    the more limited exclusion available under the discretion, and to consider the very
    existence of s. 640(2.1) a sufficient reason not to exercise the common law
    discretion. This treats the enactment of s. 640(2.1) as ousting, circumscribing,
    and altering the common law discretion.

[55]

Unless the accused has applied under s. 640(2.1),
    granting an order under s. 640(2.1) is not an option for the court. Jasers
    indication that he would apply under s. 640(2.1) was conditioned on the court
    determining it lacked the jurisdiction to order the exclusion of unsworn jurors
    while using rotating triers. A consideration of whether a discretion to do so
    should be exercised had to be premised on the existence of the jurisdiction and
    therefore no s. 640(2.1) application by Jaser. It was an error of law for the
    trial judge to refuse to exercise a discretion based on a view that a remedy
    not sought by Jaser would have better achieved his ends. Approaching the matter
    in that manner is inconsistent with the existence of the option of using rotating
    triers with unsworn jurors excluded, a jury selection method the accused has
    the right to invoke.

[56]

Further, the trial judge gave no consideration
    to the fact that choice of rotating triers necessarily precludes excluding all sworn
    and unsworn jurors. As long as the accused wishes rotating triers, it is beside
    the point to focus on the advantages of full exclusion  those are not advantages
    that can be available with rotating triers. Jasers argument noted the benefits
    of rotating triers, particularly the benefit of the jury participating in its
    own selection. That benefit, unavailable if all jurors are excluded, was identified
    by Jasers counsel as a reason he was seeking the exclusion of unsworn jurors
    only, and has been identified by this court in
Grant
as a benefit that is particularly important to the accused. The discretion
    to exclude unsworn jurors while using rotating triers cannot properly be
    refused on the basis that there is a better way to ensure jury impartiality, that
    is, by the exclusion of all jurors, when doing so negates the ability to use
    rotating triers. This approach makes the discretion unavailable.

[57]

Finally, Esseghaier had not brought a s.
    640(2.1) application.
Amicus
had expressed the
    view on November 27, 2014 that he thought the position taken on behalf of Jaser
    would help Esseghaier, but at that point the only position Jasers counsel
    had expressed was for rotating triers with exclusion of unsworn jurors. At the
    time, counsel for Jaser had stated that he was not applying under s. 640(2.1).
    Esseghaier himself had said nothing to indicate he was in favour of any method
    of jury selection, let alone that contemplated by s. 640(2.1).

[58]

Accordingly, Esseghaiers rights were the
    default rights in s. 640(2), namely, to rotating triers. Leaving aside the
    issue of whether, if there are two accused and one applies under s. 640(2.1)
    and the other does not, the default rights of one accused to rotating triers
    must always trump the other accuseds application under s. 640(2.1), the
    default rights of one accused are at least a factor to be considered. Granting
    Jasers application for exclusion of unsworn jurors while using rotating triers
    would have been consistent with Esseghaiers default right to rotating triers. The
    trial judge gave no consideration to this.

[59]

Accordingly, in my view, the extent of the trial
    judges error is this: he erred in holding that the pre-existing discretion to
    order exclusion of unsworn jurors while challenges for cause are tried by
    rotating triers had been removed, and he erred in stating that he would not
    have exercised the discretion in favour of exclusion of unsworn jurors with
    rotating triers even if he had it. The result is, on the correct legal
    approach, Jasers application to exclude unsworn jurors with rotating triers should
    have been granted, and the trial judge erred in not doing so.

[60]

Having defined the extent of the error I turn to
    the arguments about its effect.

E.

The Effect of the Error

(i)

Positions of the Parties

[61]

Jaser argues that the effect of the trial
    judges error was an improperly constituted jury; the result of such an error
    is that the verdicts arrived at by a court composed with that jury cannot
    stand. The decisions of this court which have set aside verdicts where a jury
    was selected by static triers without a proper choice by the accused of that
    option are applicable, namely:
R. v. Noureddine
, 2015 ONCA 770, (2015) 128 O.R. (3d) 23 and
Husbands
. Jaser argues that he made no valid s. 640(2.1) application; the
    trial judge gave effect to his notice that he would bring such an application
    under s. 640(2.1) on the basis of legal errors which deprived Jaser of what he
    really wanted and was entitled to  his statutory right to rotating triers with
    unsworn jurors excluded pursuant to a proper exercise of the common law
    discretion to do so.

[62]

Amicus
argues that Esseghaier made no
    application under s. 640(2.1). He did nothing that was the functional
    equivalent of such an application. Moreover, his default right to rotating
    triers was not considered by the trial judge when he ordered static triers. The
    effect is that the jury was improperly constituted because static triers were
    improperly appointed in respect of Esseghaier. In any event, if the jury was
    improperly constituted for Jaser, it was improperly constituted for both, Jaser
    and Esseghaier.

[63]

Jaser and
amicus
argue that the curative proviso in s. 686(1)(b)(iv) of the
Criminal
    Code
cannot be invoked to preserve the verdict.

[64]

The Crown argues that the jury was properly
    constituted for Jaser because Jaser made an alternative application under s.
    640(2.1). The trial judges error did not deprive Jaser of a choice between his
    two statutory options: rotating triers or static triers. Recognizing that this
    court has dealt with a number of cases where the trial judge entertained a
    mistaken view about the existence or extent of the common law discretion, this case
    has the strongest similarities to those which have allowed verdicts to stand,
    such as
Grant, R. v. Atkins
,

2017 ONCA 650, 137 O.R. (3d) 1, leave
    to appeal refused, [2018] S.C.C.A. No. 216, and
Murray.
Moreover,
this is a
    case where the curative proviso could be applied.

[65]

The Crown also argues that the jury was properly
    constituted for Esseghaier because he made no application to challenge for
    cause. His failure to make a s. 640(2.1) application did not affect whether the
    jury was properly constituted for him. Jaser made an alternative s. 640(2.1) application
    and since Esseghaier did not participate in the challenges for cause his active
    concurrence to that alternative application was unnecessary.

(ii)

Discussion

[66]

All parties agree that the cases from this court that
    have dealt with the results of mistaken views about jury selection procedure
    fall along a range. The facts of each case matter as they determine whether the
    case falls within or outside a basic principle.

[67]

The principle is 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, the verdict cannot stand and s. 686(1)(b)(iv) of the
Criminal
    Code

(the curative proviso) does not apply:

Husbands
, at paras. 40-41;
Noureddine
, at paras. 57 and 68.

Noureddine

and
Husbands
not
    only lay down that principle, they are examples of where
it was applied.

[68]

In
Noureddine,

the
    accused brought an application for rotating triers and the trial judge
    purported to exercise an inherent jurisdiction, without any application by the
    accused, and over express objection of the accused, to order static triers.
    This court held that there could be no inherent jurisdiction that contradicted
    the requirements of the
Criminal Code

which
    provide that it is the accused who has to make an application under s. 640(2.1)
    before static triers can be ordered. The result of the error was to render the
    court improperly constituted because the accused was deprived of his statutory
    right in the absence of an application under s. 640(2.1) to be tried by a jury
    selected by rotating triers: at paras. 53-57.

[69]

In
Noureddine
,
the court considered
    whether the curative proviso in s. 686(1)(b)(iv) of the
Criminal
    Code
could be applied. That provision states:

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

[70]

The Court gave two reasons why this type of
    error is beyond the reach of the curative proviso. First, an error in the
    method of selecting the jury leads to an improperly constituted court, and thus
    falls outside the curative proviso, which is available to cure errors by a properly
    constituted court: at paras. 52-53 and 61.

[71]

Second, the curative proviso can only be applied
    where no prejudice to the accused results from the error. Prejudice means more
    than actual prejudice which, in this type of situation, is not possible to
    gauge as it is not possible to say whether the improper use of static triers
    had any actual effect on the constitution of the jury ultimately selected to
    try the accused. Prejudice includes prejudice to the due administration of
    justice, which the court found to arise from this type of error:

In my view, the prejudice in this case lies in the negative
    effect the improper use of static triers, over the express objection of
    counsel, had on the appearance of the fairness of the proceedings and the due
    administration of justice. Three factors combined to lead me to that
    conclusion:

-

The use of rotating triers to decide challenges for cause benefits the
    jury selection process;

-

Static triers are an alternative method used to determine challenges,
    but only where necessity dictates the use of static triers; and

-

It is for the accused and only the accused to decide whether to initiate
    the motion that may ultimately result in the use of static triers.

Noureddine
,
at para. 64.

[72]

In
Noureddine
, the court noted as important to its analysis of
    the applicability of the curative proviso that the accused did not want to use
    static triers to determine the challenges for cause. They made their position
    clear to the trial judge. It may be that s. 686(1)(b)(iv) could be used if an
    accused had agreed to the use of static triers. An accuseds willingness to
    use static triers may be enough to render the court properly constituted during
    the selection process.: para. 57. In
Noureddine
, the court gave an
    example that this sort of situation could arise where an accused agreed to the
    use of static triers but failed to make a formal application: para. 57.

[73]

In
Husbands
, the trial judge ordered static triers in the
    absence of a defence application and in the face of express, repeated statements
    by defence counsel that no application under s. 640(2.1) was being brought and counsel
    wanted rotating triers: at paras. 45 and 50. The verdicts were set aside; the curative
    proviso could not salvage what occurred: para. 49.

[74]

The error that occurred here had the same effect as what occurred in
Noureddine
and
Husbands
. In
Noureddine
and
Husbands
,

the
    error imposed static triers on accused who did not want them, did not apply for
    them, and expressly wanted rotating triers with unsworn jurors excluded. The result
    was to deprive the accused of the option of having rotating triers.

[75]

In this case, the trial judges error deprived Jaser of his option of
    selecting rotating triers with unsworn jurors excluded. When Jaser invoked this
    option, he did so clearly preferring it to static triers in part because it
    involved rotating triers, his statutory right, and in part because it involved
    exclusion under the common law discretion. He made it clear that absent a
    ruling that the option did not exist, a ruling that was in error, he disavowed
    static triers and was expressly making no application that would trigger their
    appointment.

[76]

The error forced Jaser to elect between the two remaining options, rotating
    triers with no one excluded or static triers with sworn and unsworn jurors both
    excluded, when he ought not to have had to do so. This does not equate to a
    willingness to use static triers with a mere absence of a formal application,
    the situation the court used in
Noureddine
to describe where the curative
    proviso might apply.

[77]

The error also deprived Esseghaier of his default right to rotating
    triers, which he had invoked by doing nothing to select static triers:
R.
    v. Swite
, 2011 BCCA 54, 268 C.C.C. (3d) 184, at para. 54.

[78]

But the Crown says other case law from this court shows the principle
    applied in
Noureddine
and
Husbands
is not applicable where on
    a realistic view of what occurred each appellant got what he wanted in terms
    of the jury selection procedure. In Jasers case his alternate position that
    he would apply under s. 640(2.1) reflected what he wanted in the state of
    affairs then existing, that is, the realistic eventuality at the time that the
    trial judge might rule as he did. In Esseghaiers case, considering that he
    distanced himself from the challenge for cause process completely, it cannot be
    said that he did not get what he wanted.

[79]

The accused got what the accused wanted jurisprudence starts with
Grant
.
    In
Grant
, the trial judge ordered the exclusion of all jurors, sworn
    and unsworn, and appointed static triers. There was no formal application under
    s. 640(2.1). The defence had originally requested rotating triers with the
    panel out. The trial judge recognized that he had a discretion to so order
    but was given no reason by defence counsel to make that order. Although he took
    a narrower view of the discretion than he ought to have, the defence had an
    onus to persuade him that the panel should be excluded. [and] did not put
    forward any reason for doing so.: para. 49.

[80]

This court held that the trial judges exercise of discretion should not
    be interfered with: para. 49. It went on to state, at paras. 50-51:

Having been given no reason for using rotating triers but
    excluding unsworn jurors, the trial judge gave counsel a choice: rotating
    triers with the panel in, or static triers with the panel out. After briefly consulting
    with each other, defence counsel reversed their earlier position and chose
    static triers. They evidently wanted the jury panel out. Counsel for Grant
    summed up the defences position: [I]f we are stuck with the legislation and
    the Court does not want to exercise discretion to allow rotating triers and the
    jury out, then well take the static triers.

The defence did not make a formal application under s. 640(2.1)
    to have the sworn and unsworn panels excluded, and to have the trial judge
    appoint static triers. But I would treat their decision to choose static triers
    as, in effect, an application to exclude both unsworn and sworn jurors.
    Otherwise form would supersede substance. Had the trial judge asked one
    additional question, Are you then applying for an order under s. 640(2.1),
    defence counsel would undoubtedly have answered yes.

[81]

In
Grant
, the jury
was found to have
    been properly constituted: para. 52.

[82]

Although the Crown relies heavily on
Grant
, in my view, it does not support the Crowns position. In
Grant
, the trial judge recognized that he had a discretion to exclude
    unsworn jurors with rotating triers and this court found he had made no
    reversible error in refusing to exercise it. The choice he then put to the
    defence  rotating triers with no exclusion, or exclusion of all jurors and
    static triers, and the defence choice of static triers  was not the product of
    legal error on the trial judges part, but of the defence failure to provide
    any reason for using rotating triers excluding unsworn jurors. In the case at
    bar, the trial judge erroneously concluded he had no such discretion, and his
    conclusion that if he had a discretion he would not exercise it was flawed. The
    choice of static triers with all jurors excluded, which Jaser had given
    notice he would apply for if the court held it did not have the discretion to
    use rotating triers and exclude unsworn jurors, was a choice borne of the trial
    judges legal error, rather than a failure of Jaser to support a proper
    exercise of the common law discretion for the option he had invoked.

[83]

Nor does the decision in
Atkins
assist the Crown. The argument was made there that the trial judge
    had erroneously considered that he no longer had the discretion to use rotating
    jurors and exclude unsworn jurors. The argument did not succeed. The circumstances
    were very different from those present here.

[84]

In
Atkins
,

the defence, having raised a concern
    about juror impartiality did not request the exclusion of prospective jurors
    from the courtroom while using rotating triers. No mention of rotating triers
    was made at all. The only request was to invoke s. 640(2.1), which the trial
    judge granted:

Despite familiarity with the previous practice of discretionary
    exclusion and rotating triers, none of the experienced counsel mentioned, much
    less suggested or sought, trial of the challenge by rotating triers with the
    panel excluded. No one objected to static triers. The only reasonable inference
    in the circumstances is that what mattered most to counsel was that the
    prospective (unsworn) jurors be excluded, not the manner in which the triers of
    the challenge were selected  Trial counsel sought exclusion of prospective
    jurors during the challenge for cause. They achieved the result they sought by
    expressly invoking s. 640(2.1). They made no submissions about the selection
    procedure for the triers of the challenge, saying nothing to indicate a
    preference for rotating over static triers. They cast their lots under s.
    640(2.1). It is too late now to reverse field.
Atkins
, at paras. 80
    and 85.

[85]

There is no similarity between
Atkins
and this case.
    Jaser sought rotating triers with unsworn jurors excluded, expressed a clear
    preference for rotating triers, and made submissions on why rotating triers were
    preferable and on why the discretion existed, an argument which was correct. To
    the extent Jaser indicated he would apply under s. 640(2.1), it was only in the
    circumstances of a jury selection procedure option that did exist being held
    not to exist. Jaser did not achieve the result he sought, in the sense used in
Atkins
.
    Nor are the circumstances in
Atkins
applicable to Esseghaier.

[86]

Nor in my view is the Crown assisted by this courts decision in
Murray
,
    a case that the court considered to be close to the line: para. 56. In
Murray
,
    the trial judge had erred by indicating that in a challenge for cause there
    were two options: rotating triers with no one excluded or static triers with
    sworn and unsworn jurors excluded. Defence counsel had selected static triers
    when told these were his two options. Although there was a third option,
    rotating triers with the unsworn jurors excluded from the courtroom, [a]t no
    point did defence counsel object to the use of static triers or say that he did
    not wish static triers. [D]efence counsels primary request was that unsworn
    prospective jurors be excluded from the courtroom during the trial of the
    challenge for cause. [D]efence counsel never rejected the use of static triers.
    [H]e appeared satisfied with the trial judges proposal about how the static
    triers would be selected.: paras. 57, 63 and 65.

[87]

The circumstances here differ markedly from those in
Murray
.
    Jaser had rejected the use of static triers by arguing in favour of rotating
    triers and expressly disclaiming any application for them except in a
    circumstance that is the result of the error in question. Whereas in
Murray
the primary request was exclusion, here Jasers request was also premised on
    the advantages of rotating triers themselves.

[88]

Two other cases in which the
Noureddine
/
Husbands
principle was not applied because the defence got what it wanted are
    instructive. They also present markedly different situations from those present
    here.

[89]

In
R. v. Mansingh
,
2017 ONCA 68, defence counsel stated that he wanted prospective
    jurors excluded. Counsel was told by the trial judge that his preference was
    for static triers but was invited to make submissions on rotating triers.
    Counsel responded that he mainly wanted the panel excluded and actually like[d]
    static triers: at para. 8. Defence counsel went on to discuss with Crown
    counsel the steps to vet static triers and after the trial judge indicated the
    triers could be vetted stated: then I think that would accommodate my biggest
    concerns: at para. 9. An appeal based on the use of static triers without a
    formal application under s. 640(2.1) failed on the basis that the defence got
    what it wanted. That conclusion is inapplicable here.

[90]

Also different from this case is
R.
    v. Kossyrine
, 2017 ONCA 388, 138 O.R. (3d) 91, where
    the court stated at para. 28:

In the case before us, as in
Mansingh
, Kossyrine
    wanted static triers. Unlike in
Noureddine,
Kossyrine did not ask for
    rotating triers or object to the trial judges practice of using static triers.
    His sole concern was that the static triers the trial judge identified be
    properly vetted. This courts conclusion in
Mansingh
is entirely
    appropriate in this case: [c]ounsel got what he wanted and, in substance, if
    not in form, made the requisite application under s. 640(2.1). The jury in
    this case was thus properly constituted.

III.

Conclusion

[91]

The trial judges error here took one of the three options, the
    exclusion of unsworn jurors while using rotating triers, away from Jaser. Jaser
    sought that option. He made a case for it and was entitled to it. Unlike the
    cases the Crown relies upon, it did not become unavailable to him because he
    failed to mention it, failed to express a preference for it, failed to support
    a proper exercise of discretion to obtain it, failed to object to static
    triers, or because he actually liked static triers. On a substance over form
    basis, what Jaser wanted was this option. He did not get it.

[92]

I would not give the alternative request of Jaser for static triers the
    effect the Crown contends for. It became operative only due to a legal error by
    the trial judge, one Jaser had attempted to prevent from occurring. At the
    point that his notice that he would pursue the alternative of a s. 640(2.1)
    application became operative, that is, the trial judges ruling that he lacked
    the discretion that he in law had, Jaser had already been deprived of his
    preferred option to invoke a method of selecting the composition of triers that
    the law entitled him to select. A choice of which of the remaining options
    should be used, in those circumstances, cannot cure the error.

[93]

Nor do I agree with the Crown that the jury was properly constituted for
    Esseghaier because he did not participate in the challenge for cause process.
    The Crowns analogy to its inability to challenge an acquittal of an accused by
    an improperly constituted jury, because the Crown is a bystander to the
    challenge for cause process, is not apt. The right to use rotating triers is a
    right which is personal to the accused. The improper use of static triers can
    only create rights in an accused to challenge convictions, not in the Crown to
    challenge acquittals:
Noureddine
, at paras. 73-87.

[94]

Here, one jury was selected for both appellants. In the circumstances of
    this case, as the jury was not properly constituted for Jaser, it cannot be
    considered to have been properly constituted for Esseghaier.

[95]

In my view, the curative proviso cannot be applied in this case. As
    pointed out in
Noureddine
,

beyond the issue of the curative provisos

application to a
    question that affects the proper constitution of the jury, and thus of the
    court which tried the appellants, the curative proviso cannot be applied unless
    there was no prejudice to the accused. As in
Noureddine
, the question
    here is not actual prejudice, which in these kinds of circumstances is
    impossible to gauge, but prejudice to the due administration of justice flowing
    from the denial of a jury selection method which was in law properly invoked:
Noureddine
,

at paras. 62-64. The type of
    willingness or agreement to the use of static triers discussed in
Noureddine
as a reason why the curative proviso might be applicable are not present
    here.

[96]

I would allow the appeals, set aside the convictions and direct a new
    trial.

Released: BZ August 27, 2019

B. Zarnett J.A.
I agree.
Paul Rouleau J.A.

I agree.
C.W. Hourigan J.A.

[1]
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:
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.

[2]

The trial judge has inherent jurisdiction 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.

[3]

This authority has been characterized as a common law
    discretion on some occasions and as an inherent jurisdiction on others. The
    difference is of no significance to the issues here. In this decision I refer
    to it as a common law discretion or discretion.

[4]

Some courts have considered that under this option sworn
    jurors, other than those acting as rotating triers, could also be excluded: see
    the discussion in
R. v. Murray
, 2017 ONCA 393,
    138 O.R. (3d) 500, at para. 54. It is not necessary to decide that point in
    this case.

[5]

See footnote 4.

[6]

See footnote 4.

[7]

Not Ms. Dann or Ms. Shanmuganathan, who were appointed for
    this appeal and appeared as
amicus
in this court.