R v Noureddine: The Impact of Imposing Static Triers
In R v Noureddine, 2015 ONCA 770 [Noureddine], the trial judge misunderstood how juries are selected by appointing static triers, rather than rotating triers per section 640(2.1) of the Criminal Code, RSC, 1985, c C-46.
The appellants, Mr. Noureddine and Mr. Sheridan, were both charged with first degree murder. Both were acquitted, but subsequently found guilty of second degree murder.
Rotating Triers versus Static Triers
When there is a request to challenge jurors, pursuant to section 638 of the Criminal Code, each potential juror is asked a series of questions for the purpose of detecting bias. The potential jurors’ answers are assessed by two triers, per section 640 of the Criminal Code. The triers can either find the challenge “true” or “not true”; a “true” response indicates the triers think the juror is partial and cannot be sworn, while a “not true” finding indicates that the potential juror can be sworn.
Since the 2008 amendments to the Criminal Code, there are two methods of appointing triers: rotating triers and static triers. The rotating triers approach requires the judge to select two persons from the potential juror board to be the initial two triers. These triers assess the answers of potential jurors until two jurors are sworn. The jurors that are sworn become the new triers. Rotating triers have existed in Canada since at least 1892, when they featured in the first enactment of the Criminal Code (Noureddine, para 35). Section 640(2) of the Criminal Code stipulates that all juries shall be selected using rotating triers unless the judge makes a section 640(2.2) order. Rotating triers limit the potential bias among jurors increasing the number of triers will preclude the possibility of the entire jury being selected by a single biased trier (Noureddine, para 65).
Static triers, which have been permitted since 2008, can only be appointed pursuant to section 640(2.2) of the Criminal Code, which is triggered if a challenge for cause occurs under section 640(2.1). Section 640(2.1) of the Criminal Code reads, “[i]f 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” (emphasis added). Static triers are selected by the judge and cannot become sworn members of the jury.
The Trial Proceeding
At trial, counsel for both accused brought a raced-based challenge according to section 638(1)(b). The two sets of counsel indicated that they wished to use rotating jurors. Justice Ewaschuck nonetheless imposed static triers.
There were two issues in the appeal. First, did the use of static triers in the jury selection vitiate the convictions? Second, if the convictions were quashed, what could the appellants be charged with in the retrial?
Position of the Crown
The Crown conceded that the trial judge erred by not using rotating triers (Noureddine, para 32), but submitted that this’s error was not fatal as it did not prejudice the case.
Analysis and Application
The Ontario Court of Appeal unanimously allowed the appeal and quashed the conviction. Justice Doherty focused on the errors resulting from Justice Ewaschuck’s appointment of static jurors. A second ground for appeal relating to Justice Ewaschuck’s answer to a jury question was also successful.
Rejecting the Crowns Argument: Why appointing Static Triers was fatal
Justice Doherty held that Justice Ewaschuck denied the appellants their statutory rights, which deprived the lower court of jurisdiction to try the case. Justice Doherty applied the holding in R v Bain,  1 SCR 91: “If the jury selection process does not comply with the relevant sections of the Code, the court never obtains jurisdiction to proceed to trial…It is rather a question of whether or not the court was properly constituted in the first place” (Bain, p 4). Justice Doherty correctly rejected the Crown’s submission that the trial judge’s error amounted to an omission or irregularity that could be saved by either sections 670 or 671 of the Criminal Code. Sections 670 and 671 are intended to save convictions when objections the selection process are only made after the verdict (R v Barrow,  2 SCR 694, 717).
Did the error in jury selection vitiate the acquittals?
Justice Doherty ultimately held that the appellants cannot be tried for first degree murder at the retrial. He provided two reasons for his decision. First, the Crown did not appeal the first degree murder charge. Justice Doherty held that “the acquittal on the first degree murder charge is distinct from the conviction on the included offence of second degree murder.” Second, R v Cloutier,  2 SCR 709 [Cloutier], is a binding authority that precludes an appellate court from allowing the case to be retried on charges for which the appellants were acquitted. In Cloutier the Supreme Court of Canada held that the incorrect empanelling of the jury did not impact the Crown’s rights in the jury selection process, and thus the decision is voidable by the accused. (Noureddine, paras 84-86).
While Justice Doherty’s reasoning that the appellants could not be retried for first degree murder is sound, this holding is nonetheless dissatisfying. Since the jury was improperly constituted, the Superior Court of Justice lacked jurisdiction to hear the case. If the jury lacked jurisdiction to convict for second degree murder, logically they should also lack jurisdiction to acquit for first degree murder.
Justice Ewaschuck fundamentally misinterpreted section 640 of the Criminal Code, which led him to violate the appellants’ statutory rights. As a result of this violation, their convictions, but not their acquittals, were voidable.