R. v. Paul, 2020 NLSC 14

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Paul , 2020 NLSC 14 Date : February 4, 2020 Docket : 201805G0134 Her Majesty The Queen v. Jared Leon Paul Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , R.S.C. 1985, c. C-46 , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.

CORRECTED JUDGMENT: The text of the original judgment was corrected on February 5, 2020 and a description of the corrections is appended. Before: Justice Glen L.C. Noel Reasons for Oral Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 18, 2019

Summary:

On charges for assault causing bodily harm, forcible confinement and sexual assault, arising prior to the jury selection amendments inBill C-75, where the Accused had made his election to be tried by judge and jury before the amendments coming into effect on 19September 2019, the Court determined the Accused had a vested substantive right to a trial by judge and jury and allowed the parties toexercise peremptory challenges as part of the jury selection process that commenced on 13 January 2020. In keeping with the principle ofjudicial comity, the Court followed two recent decisions of this Court.

Appearances: Douglas E. Howell Appearing on behalf of the Crown John F. Duggan Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Dineley, 2012 SCC 58 , [2012] 3 S.C.R. 272; R. v. Bragg, 2019 NLSC 235; R. v. Butler,(December 18, 2019), St. John's 201901G0542 (N.L.S.C.); R v. Craig, 2019 ONSC 6732; R. v. Gong (18 November 2019), Newmarket,CR-17-00003973 (Ont. Sup. Ct.); R. v. Chouhan, 2020 ONCA 40. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46;

An Act to amend the Criminal Code, Youth Criminal Justice Actand other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25 [Bill C-75]; Canadian Charter of Rights andFreedoms, s. 11,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. REASONS FOR JUDGMENT Noel, J.: [1] In a pretrial ruling prior to the commencement of the Accused’s jury trial on 13 January 2020, I held the parties were eachpermitted to exercise peremptory challenges as part of the jury selection process in accordance with

section 634 of the Criminal Code,R.S.C. 1985, c. C-46 (the “Code”) that existed before its repeal on 19 September 2019. These are my reasons for so deciding. background The Charges and Proceedings [2] The Accused, Jared Leon Paul, was charged on 12 August 2017 with assault causing bodily harm, forcible confinement andsexual assault contrary to sections 267(b), 279(2) and 271, respectively, of the Code. The offences were alleged to have been committedupon the complainant on or between 8 and 10 April 2017.[1] [3] Mr. Paul elected to be tried by judge and jury on 16 January 2018. He was committed on 3 August 2018 to stand trialfollowing the preliminary inquiry. Repeal of

Section 634 of the Code [4]

Section 634 of the Code conferred authority on both the prosecutor and the accused to challenge peremptorily prospectivejurors as part of the jury selection process. The repeal of

section 634 became effective on 19 September 2019:

An Act to amend theCriminal Code, Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25, ss.

269 and 406 [Bill C-75]. [5] Prior to the repeal, based on the nature of the charges for which a sentence of imprisonment exceeding five years may beimposed, both the Crown and accused were permitted 12 peremptory challenges, plus one additional for each alternate juror. Issue [6] The only issue for determination is whether the repeal of

section 634 operates prospectively or retrospectively.[2] The answerdepends on whether the repeal of peremptory challenges is purely a matter of jury selection procedure, or if it affects substantive rights. If determined to be substantive and apply prospectively, the parties could still avail of peremptory challenges.

Analysis [7] Since no transitional provisions were included in the amending legislation, courts have had to grapple with whether the newjury selection amendments apply only to events or conduct occurring on or after the legislation came into effect (prospectively), orwhether it applies as well to events or conduct pre-dating the amendments (retrospectively). Matters considered to be purely proceduralapply retrospectively, whereas matters determined to impact substantive rights apply prospectively: R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at paragraphs 10 and 11.

Jurisprudence from other provincial jurisdictions [8] At the time of my oral ruling, counsel brought to my attention the variance of opinion expressed by courts in other jurisdictionson the effect of the jury selection amendments in Bill C-75 (“the amendments”). The following judgments held the amendments wereprocedural and applied retrospectively: No.

Judgment Citation Date1 R v Cumberland, (Keith J) 2019 NSSC 307 Sept 5, 2019*2 R v Lako, (Thomas J) 2019 ONSC 5362 Sept 17, 20193 R v Chouhan, (McMahon J) 2019 ONSC 5512 Sept 24, 20194 R v Khan, (Edwards J) 2019 ONSC 5646 Sept 30, 20195 R. v Ali, (Brown J)** [unreported ON] Oct 1, 20196 R v McMillan, (Dambrot J) 2019 ONSC 5616 Oct 2, 20197 R v Fan, (MacDonnell J) [2019] OJ No 5869 Oct 2, 20198 R v Khurshid & Phillips, (Bielby J) 2019 ONSC 5825 Oct 8, 20199 R v Kakekagumick, (Fregeau J) 2019 ONSC 6008 Oct 17, 201910 R v Muse, (Brown J) 2019 ONSC 6119 Oct 29, 201911 R v Gordon, (Forestell J) 2019 ONSC 6508 Nov 12, 201912 R v Stewart, (Champagne J) 2019 MBQB 171 Nov 22, 201913 R v Campbell, (Boswell J) 2019 ONSC 6285 Nov 25, 201914 R v Johnson, (McWatt J) 2019 ONSC 6754 Nov 25, 201915 R v Daniel, (Davies Deputy J) 2019 ONSC 6920 Dec 2, 2019 [9] On the contrary, the following judgments held the amendments were substantive and operated prospectively: No.

Judgment Citation Date1 R v Subramaniam, (Saunders J) 2019 BCSC 1601 Sept 20, 20192 R v Raymond, (Ferguson J) 2019 NBQB 203 Sept 23, 20193 R v Dorion, (Danyliuk J) 2019 SKQB 266 Oct 3, 20194 R c Lindor, (Downs JCS) 2019 QCCS 4232 Oct 9, 20195 R v Nazarek, (Ehrcke J) 2019 BCSC 1798 Oct 11, 20196 R v Ismail, (Martin J) 2019 MBQB 150 Oct 16, 20197 R v LeBlanc, (Walsh J) 2019 NBQB 241 Oct 16, 20198 R v Stanley, (Hildebrandt J) 2019 SKQB 277 Oct 17, 2019 9 R. c Simard, (Royer JCS) 2019 QCCS 4394 Oct 22, 2019 10 R v.

Ermine, (Tochor J) [unreported SK] Oct 23, 201911 R v Levaillant, (Michalyshyn J) 2019 ABQB 837 Oct 24, 201912 R c Bebawi, (Cournoyer JCS) 2019 QCCS 4393 Oct 25, 201913 R v SB, (Ackerl J) 2019 ABQB 836 Oct 30, 201914 R v King, (Goodman J) 2019 ONSC 6386 Nov 4, 201915 R v Kebede, (Nixon J) 2019 ABQB 858 Nov 14, 201916 R v Gong (Bird J) [unreported ON] Nov 18, 201917 R v Craig, (Dawe J) 2019 ONSC 6732 Nov 22, 201918 R. v Bakker [unreported ON] Nov 25, 201919 R. v Asif, (Stribopoulos J) 2019 ONSC 7031 Dec 4, 2019 Jurisprudence from our Court [10] Justice Burrage on 23 December 2019 filed his judgment in R. v.

Bragg, 2019 NLSC 235. He concluded (at para. 18): “While

both the abolition of peremptory challenges and lay triers are facially procedural, both in my view affect the accused's substantive right to a trial by jury enshrined in

section 11(

f) of the Charter . As such, both operate prospectively.” [ 11 ] As noted, the issue of challenge for cause and substituting the presiding judge for lay triers was not before me in this case. [ 12 ] Burrage, J. referred in Bragg (at paras 5 and 8 ) to an oral decision in R. v. Butler , (December 18, 2019 ), St. John's 201901G0542 (N.L.S.C.) unreported, wherein Marshall, J. ruled the peremptory challenge amendments operate prospectively. Marshall, J. adopted the reasoning and analysis of Dawe, J. in R v. Craig , 2019 ONSC 6732 .

Burrage, J. also relied on Craig and the treatment of peremptory challenges by Bird, J. in R. v. Gong (18 November 2019), Newmarket, CR-17-00003973 (Ont. Sup. Ct.), unreported. [3] Position of the Parties [ 13 ] The Crown, as it did in Bragg , initially took the position the amendments were procedural in nature and, therefore, operated retrospectively, meaning the jury selection process for Mr. Paul’s trial would be conducted using the “new” procedure. [ 14 ] In light of the recent decisions of Butler and Bragg , the Crown’s position with respect to this issue changed.

Taking into account these decisions and recognition of the principle of judicial comity, the Crown now takes the position if an accused was charged with an offence prior to 19 September 2019, that accused has the right to a jury trial under the “old” provisions, with peremptory challenges and the previous process relating to challenges for cause. [ 15 ] Accordingly, the Crown takes no issue with Mr. Paul’s request that the jury selection process for his trial be conducted in accordance with the provisions of the Code as it was prior to 19 September 2019. [ 16 ] Counsel for Mr.

Paul submitted a written brief taking the position the changes in Bill C-75 do impact on Mr. Paul’s substantive right to participate in the selection of a jury of his peers and should not be applied retrospectively. The authorities cited in paragraph 9, above, were filed in support of the Accused’s position. The Accused points to those cases that have found peremptory challenges are a right under the Canadian Charter of Rights and Freedoms , s. 11 ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 , and therefore substantive, excluding retrospective application. Since Parliament provided no guidance as to how the amendments are to be applied, it was argued silence in the statutory provisions require an

interpretation of no retrospectivity but change on a go-forward basis only. The Key Considerations in My Ruling [ 17 ] Mr. Paul elected trial by judge and jury many months prior to the amendments in Bill C-75. This election was made with the understanding that he had a vested right to peremptory challenges during the jury selection process. If his trial had been held before the amendments came into effect, he and the Crown would have had the right to exercise peremptory challenges.

The Accused should not be placed in any perceived disadvantageous position merely because of the timing of the trial commencement date. To take away his fundamental right after he made his election and before the effective date of the amendments would be unfair to him. Ontario Court of Appeal Decision in Chouhan [ 18 ] After my oral ruling and before the Jury returned its verdict, the Court of Appeal for Ontario rendered its decision on 23 January 2020 in R. v. Chouhan [4] , 2020 ONCA 40 .

The court held that: 1. the amendments abolishing peremptory challenges and substituting the presiding judge for lay triers in the determination of the truth of the challenge for cause do not infringe the appellant’s rights under ss. 11(d) , 11(f) , or 7 of the Charter ; 2. the substitution of the presiding judge as the decision-maker on the challenge for cause, rather than lay triers, is purely procedural, thus applies to both historical and future events and thus to this case; and 3. the abolition of peremptory challenges affected the substantive rights of the appellant, thus it should not have applied to the selection of the jury in his case nor should it apply to the selection of the jury in other cases if the Accused had a vested right before September 19, 2019, to a trial by judge and jury as it existed in the prior legislation. [ 19 ] The trial judge in Chouhan had found that the jury selection changes were procedural and retrospective.

The Court of Appeal allowed the appeal, set aside the conviction, and ordered a new trial on the indictment. [ 20 ] Watt, J.A. made it clear (at para. 212) not all accused charged with an offence before 19 September 2019 have a vested right to a trial by judge and jury under the former Code provisions. For the right to have vested, the accused must have before 19 September 2019: … (

i) been charged with an offence within the exclusive jurisdiction of the Superior Court; (ii) been directly indicted; or (iii) elected for a trial in Superior Court by judge and jury . I include in the third category accused who have formally entered an election as well as those who have made a clear, but informal election, as evinced by the transcript of proceedings or endorsements on the information. Otherwise, the accused's right did not vest, the amendment applies, and no party has a right to peremptory challenges at the trial. [emphasis added] [ 21 ] Mr.

Paul’s statutory right to use peremptory challenges vested because he had elected for a trial by judge and jury before 19 September 2019. As a result, the parties were permitted to exercise peremptory challenges as part of the jury selection process. [ 22 ] Finally, given the Crown’s position and in keeping with the principle of judicial comity of avoiding conflicting decisions from this Court, to do otherwise than allow the peremptory challenges would create unnecessary confusion and uncertainty for other cases coming before the Court.

[ 23 ] I am most grateful to both experienced counsel for their valuable assistance and utmost professionalism demonstrated throughout the proceedings. ______________________________ GLEN. L.C. NOEL Justice APPENDIX Corrections made on February 5, 2020: 1. In paragraph 12, the citation for a judgment of Marshall, J. in R. v. Butler, dated December 18, 2019, is incorrect as it was an unreported oral judgment. The incorrect citation number has been removed from paragraph 12 of this judgment. 2. The filing date for the decision was incorrect and has been changed to reflect the correct filing date of February 4, 2020.