Fifteen homicide convictions and 12 sexual assault guilty verdicts in Ontario are at risk of being overturned due to a recent appeal ruling on changes to how juries are selected, according to the Crown.
Those numbers, which had not previously been made public, are found in written submissions Ontario prosecutors made to the Supreme Court of Canada last month. The Crown is asking Canada’s top court to hear its appeal of a January ruling from the Ontario Court of Appeal that may cause retrials in dozens of completed criminal cases.
In the murder case R. v. Chouhan, the Court of Appeal ruled on the constitutionality of changes to the jury selection process that took effect on Sept. 19. Among the changes, the federal government abolished peremptory challenges, which gave both Crown and defence lawyers the right to reject a specific number of potential jurors without having to give a reason.
The Court of Appeal upheld the ban on peremptory challenges as constitutional. But the court also ruled that if an accused person had opted for a trial by jury before the law took effect, they should still have had the right to use the challenges.
The ruling meant a new trial for Pardeep Singh Chouhan, who had been convicted of first-degree murder by a jury that had been selected using the new rules.
His retrial, set for April, will now have to be adjourned because of the Crown’s application to the Supreme Court, said his lawyer, Dirk Derstine.
“The fact that the Crown is seeking leave (to appeal) will itself only prolong the uncertainty that people are having about the state of the law,” he told the Star.
The Crown had argued in the lower courts that the new jury selection rules should apply to ongoing cases. While the Court of Appeal found that ongoing cases should have been able to use peremptory challenges, it ruled that some of the other new jury selection rules did apply to those same cases.
In the wake of the Chouhan ruling, Ontario’s courts have scrambled to find out how many other cases are affected by the decision, and are bracing for dozens of costly and lengthy retrials.
That chaos is captured in the Crown’s filing with the Supreme Court, which says about 38 convictions are at risk of being overturned in Ontario, including homicide and sexual assault cases.
“With every day, week and month of uncertainty that passes, the number of jury verdicts potentially lost on appeal will quickly become staggering,” write Crown attorneys Andrea Baiasu, Michael Perlin and Rebecca Law.
“The need for this court’s guidance is paramount. This case raises pressing issues of national importance on which this court can provide clarity.”
One case likely headed for a retrial is the College Street Bar sex assault case, in which bar owner Gavin MacMillan and manager Enzo DeJesus Carrasco were convicted of sexually assaulting and drugging a 24-year-old woman for several hours at the downtown establishment.
The pair was sentenced last month to nine years in prison. They are appealing, and their convictions are expected to be overturned as they were not allowed to use peremptory challenges during jury selection.
The Crown points out in its Supreme Court memorandum that the federal government failed to include provisions in its legislation, Bill C-75, about whether the jury selection changes should apply only to new cases after Sept. 19, or to ongoing cases as well.
The prosecutors also argue that trial judges across Canada have come to different conclusions on the application of the new jury selection changes, though Ontario is the first province to have its appeal court weigh in.
“The unprecedented uncertainty caused by this ongoing divergent application of the law across Canada requires immediate resolution by this court,” the Crown said. “The differences of approach pose an ongoing risk to jury verdicts in cases where it is later determined that the wrong jury selection process was employed. With each day that passes, additional jury trials are resulting in verdicts which are vulnerable on appeal.”
There’s no guarantee that the Supreme Court will agree to hear the appeal. The top court hears appeals from less than three per cent of judgments from the Ontario Court of Appeal, according to the latter court’s website. If the court does hear the appeal, Derstine said he will again challenge the constitutionality of the ban on peremptory challenges.
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Critics have also maintained that the Crown could have dealt with this issue much sooner, before the wrong process was used in so many cases. Daniel Brown, vice-president of the Criminal Lawyers’ Association, said the Ontario government could have asked the Court of Appeal in what’s known as a reference case for guidance on the application of the new jury rules.
“They knew they would be prosecuting serious sexual assaults and homicide cases when they pressed forward with their interpretation of Bill C-75, without seeking any type of guidance from the Court of Appeal,” Brown said.
“If anyone is to blame about the state of affairs right now, it’s the Ontario provincial Crown Attorney’s Office, who insisted on this process.”