About 35 completed criminal cases could be headed for new trials as a result of a major ruling last week from Ontario’s top court on changes to jury selection.
The figure was released Thursday by the Superior Court of Justice, which handles jury trials in the province.
The reason for the possible retrials is a judgment released last Thursday by the Ontario Court of Appeal, in which the top court weighed in on changes made by the federal government last year to jury selection.
One of the key changes made by the government was a ban on what were known as peremptory challenges, which allowed the Crown and defence to each reject a specific number of potential jurors without having to give a reason.
The top court upheld the ban on peremptory challenges as constitutional. But they also found that if an accused person had opted for a trial by jury before Sept. 19 — when the changes took effect — they still had the right to use peremptory challenges even if jury selection only took place after that date.
The ruling has affected dozens of completed and ongoing cases heard after Sept. 19 that used the new rules during jury selection.
A Superior Court spokesperson said Thursday the 35 cases being retried will depend if they each appeal to the Court of Appeal and are successful in having the top court order a new trial.
One such high-profile case is that of Gavin MacMillan and Enzo DeJesus Carrasco, who were found guilty by a jury last November of sexually assaulting and drugging a 24-year-old woman over several hours at the College Street Bar in downtown Toronto.
The Crown is seeking a sentence of 12 years in prison. The judge is expected to deliver his decision on Feb. 12.
Meanwhile, MacMillan is appealing, seeking to have his conviction overturned based on the trial judge’s refusal to allow him peremptory challenges during jury selection. He filed his notice of appeal the same day the Court of Appeal released its ruling.
The number of possible retrials is significant in part because they will have to be accommodated in a system already dealing with hundreds of ongoing cases, said Daniel Brown, the vice-president of the Criminal Lawyers’ Association.
“Some of them may be complex homicide cases or complex sexual assault cases, and that’s a month that will need to be taken away from someone else’s case in order to be accommodated within the timelines set by the Supreme Court for delay,” Brown said.
The Supreme Court has said that cases in Superior Court must be completed within 30 months or risk being tossed for violating an accused person’s right to a trial within a reasonable time.
“The defendants are going to have to pay to start their cases again,” Brown said. “It means that the outcomes of these cases are delayed for both the victims and the defendants who are likely looking for closure on both sides.”
The Superior Court also said that there have so far been three mistrials declared since last Thursday in ongoing cases whose juries were not properly selected: one case was mistried after jury selection but before evidence was called and one sexual assault trial was rescheduled to April.
The third case was that of Peter Johnson. The Crown was one day away from concluding its case in his second-degree murder trial — his third retrial — when the mistrial was declared last Thursday. The jury was dismissed after hearing two weeks of evidence about the fatal shooting of Jeffrey Lewis, 31, at a nightclub in 2006.
Get more of today’s top stories in your inbox
Sign up for the Star’s Morning Headlines email newsletter for a briefing of the day’s big news.
Johnson ended up pleading guilty Monday to the lesser charge of manslaughter, and was released on time served with two years’ probation.
“I feel like we’ve been cheated,” Lewis’ cousin Natasha George told the Star after the guilty plea. “If this is what Jeff’s life is worth?”