R. v. Bragg, 2019 NLSC 235

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Bragg , 2019 NLSC 235 Date : December 23, 2019 Docket : 201801G6077 Her Majesty The Queen v. STEVEN BRAGG Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 19, 2019

Summary: On 23 December 2017 the accused was charged with a single count of first degree murder. The offence is alleged to have been committed on 11 November 2017. The accused’s trial is scheduled to commence before a judge and jury on 20 January 2020. The jury selection amendments in Bill C-75, which came into force on 19 September 2019, while facially procedural, affect the substantive right of the accused to the “benefit of trial by a jury” within the meaning of

section 11(

f) of the Charter . In the case of the accused, the amendments do not operate retrospectively and jury selection will be conducted under the Criminal Code as it was prior to 19 September 2019. Appearances: Lisa M. Stead and

Paul J. Thistle Appearing on behalf of the Crown Robert W. Buckingham and Robert B. Hoskins Appearing on behalf of the Applicant Authorities Cited: CASES CONSIDERED: R. v. Raymond , 2019 NBQB 203 ; R. v. Butler (18 December 2019), St. John’s 201901G0542 (N.L.S.C.); R. v. Craig , 2019 ONSC 6732 ; R. v. R.S., 2019 ONCA 906 ; R. v. Dineley , 2012 SCC 58 ; R. v. Gong (18 November 2019), Newmarket, CR- 17-00003973 (Ont. Sup. Ct.); R. v. LeBlanc , 2019 NBQB 241 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 ; Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982 REASONS FOR JUDGMENT Burrage, J. : INTRODUCTION [ 1 ] On 23 December 2017 the accused, Steven Bragg, was charged with a single count of first degree murder, contrary to section 235(1) of the Criminal Code , R.S.C. 1985, c. C-46 [1] . The offence is alleged to have been committed on 11 November 2017. Mr. Bragg’s trial is scheduled to commence before a judge and jury on 20 January 2020. [ 2 ] On 19 September 2019, Bill C-75: (

An Act to amend the Criminal Code, the Youth Criminal Justice Act, S.C. 2002, c. 1 and other Acts ), came into effect. In R. v. Raymond , 2019 NBQB 203 , Ferguson, J. provided the following useful

summary of the principal jury selection amendments in this Bill (at paragraph 7): 7.

The principal jury selection amendments: 1) eliminate the right to the use of peremptory challenges in the selection of the jury (s. 269 repealing s. 634); 2) alter the decision-maker for challenges for cause for prospective jurors from either rotating jurors drawn from the jury panel or sworn jurors or static triers drawn from the jury panel and vest that power in the judge (s. 272 replacing s. 640(1)); 3) broaden the power of the judge to stand jurors aside so that in the future a potential juror can be stood aside for reasons beyond personal hardship or other reasonable cause as set out in s. 633 of the Code to include the somewhat elusive but broad power of: "...maintaining public confidence in the administration of justice..." (s. 269 amending s. 633); 4) clarify the power to the trial judge to exclude all jurors both sworn and unsworn from the courtroom until it is determined whether the ground of a challenge for cause is true if the judge is of the opinion that the order is necessary to preserve the impartiality of the jurors (s. 272 amending s. 640(2)), and 5) provide that at any point in the trial where the number of sworn jurors falls below ten the judge may, with the consent of the parties discharge the jury, continue the trial and render a verdict (s.273 amending s. 644). [ 3 ] As a consequence of these amendments, should Bill C-75 apply to Mr.

Bragg’s trial, he will lose his right to challenge prospective jurors on a peremptory basis. He will also lose the ability to have members of the community - the triers - determine whether potential jurors are impartial, pursuant to a challenge for cause based on widespread media coverage. [ 4 ] Mr. Bragg argues that Bill C-75 affects his vested rights, as well as substantive rights, and therefore cannot have a retrospective effect. Rather, the process for selecting his jury ought to be as it was prior to 19 September 2019. In the alternative, Mr.

Bragg argues that the new amendments, individually and cumulatively, are unconstitutional as violating his

section 7 , 11(d) , and 11(

f) Charter [2] rights, and are therefore of no force or effect. [ 5 ] The Crown initially took the position that Bill C-75 operated retrospectively in Mr. Bragg’s case. However, following the decision of Marshall, J. in R. v. Butler (18 December 2019), St. John’s 201901G0542 (N.L.S.C.) the Crown now takes the position that all jury amendments in Bill C-75 operate prospectively. This change in position is not unprecedented, as the courts come to grips with this issue. [3] The Crown maintains its position that the jury amendments in Bill C-75 are constitutional.

Analysis [ 6 ] Do the amendments to the jury selection procedure relating to peremptory challenges and/or challenge for cause, wrought by

Bill C-75, operate prospectively, or retrospectively in the case of Mr. Bragg? Since 19 September 2019, when these amendments came into effect, a great deal of judicial ink has been devoted to this thorny question, ink which might have been spared had Parliament enacted a transitional provision, or otherwise stated whether the amendments were to operate retrospectively, or prospectively. However, it appears that little or no attention was paid in drafting Bill C-75 to this important question.

While there are transitional provisions relating to other amendments, none apply to the jury selection amendments under review. [ 7 ] At the time of argument, this Court was aware of no less than 28 Superior Court decisions from other provinces in Canada on the topic, with 11 on the side of a retrospective effect and 17 treating the amendments as prospective.

A table of these decisions, as provided to counsel during a case management hearing on 5 December 2019, is attached as Appendix “A” to this decision. [ 8 ] Notably, as it relates to this jurisdiction, on 18 December 2019, in an oral decision, Marshall, J. ruled in the case of Butler that the peremptory challenge amendments in Bill C-75 operate prospectively. In doing so, Marshall, J. adopted the reasoning and analysis of Dawe, J. in R. v. Craig , 2019 ONSC 6732 . [ 9 ] In addition, the Ontario Court of Appeal has now entered the fray regarding the abolition of preliminary inquiries (see R. v.

R.S. , 2019 ONCA 906 ), concluding that this amendment affects a substantive right of the accused and therefore operates prospectively. [ 10 ] Needless to say, this court is no longer sailing into unchartered waters. Therefore, I shall not repeat all of what has been said regarding Bill C-75.

Suffice it to say that of the foregoing decisions, all of which I have read and considered, like Marshall, J., as it relates to the abolition of peremptory challenges, I find the reasoning of Dawe, J. in Craig to be persuasive and adopt the analysis and conclusions as set forth in that decision. [ 11 ] In reliance on the Supreme Court of Canada judgment in R. v. Dineley , 2012 SCC 58 , the general principles regarding the temporal effect of legislation are succinctly captured in Craig , as follows (at paragraph 10 ): 10.

The general principles that determine whether legislation should be interpreted as acting retrospectively or prospectively are discussed at length by both the majority and the dissent in R. v. Dineley , 2012 SCC 58 , [2012] 3 S.C.R. 272, which is now the leading Supreme Court of Canada judgment on the issue. These principles can be summarized as follows: (a) "[T]he cases in which legislation has retrospective effect must be exceptional": Dineley , supra at para. 10 ; (

b) Legislation that affects "vested or substantive rights" will be presumed to operate prospectively unless "it is possible to discern a clear legislative intent that it is to apply retrospectively": Dineley , supra at para. 10 ; (c) "[N]ew procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases": Dineley , supra at para. 10 ; (

d) However, procedural provisions that "affect substantive rights ... are not purely procedural and do not apply immediately": Dineley , supra at para. 11 ; (

e) The "key task" of a court dealing with this issue "lies not in labelling the provisions 'procedural' or 'substantive', but in discerning whether they affect substantive rights": Dineley , supra at para. 11 ; (f) "[C]onstitutional rights are necessarily substantive", and "[w]hen constitutional rights are affected, the general rule against the retrospective application of legislation should apply": Dineley , supra at para. 21 . (

g) Even if a law that infringes a Charter right is found to be justified under s. 1 , this "does not alter the fact that constitutional rights are affected" and accordingly does not displace the principle that the law should operate only prospectively in the absence of a clear legislative statement to the contrary: Dineley , supra at para. 21 . [ 12 ] In applying these principles Dawe, J. went on to conclude (at paragraphs 53-57): 53.

However, I need not resolve these questions here, because I am satisfied that whether or not the Bill C-75 jury selection amendments infringe s. 11(f), the elimination of the peremptory challenge "impinges on or negatively affects" defendants' exercise of their right to a trial by jury. Dineley holds that laws that "affect" constitutional rights should generally be understood as operating prospectively . Deschamps J.'s use of the term "affects" rather than "infringes" must in my view be understood as intentional, and as Dambrot J. noted in R. v.

McMillan , supra "[u]ndoubtedly 'affect' is a broader term than either 'impair' or 'breach' " (at para. 8). I do not accept the Crown's argument that the Dineley presumption of prospective effect only applies when there is an actual infringement of Charter rights. This narrow reading of Dineley cannot in my view be reconciled with the Ontario Court of Appeal's analysis in R.S. , supra , where Doherty J.A. concluded that removing the statutory right to a preliminary inquiry had a "meaningful and direct impact on

an accused's liberty and security of the person interests", but where there was no suggestion that defendants' s. 7 Charter rights wouldactually be infringed by the amendment at issue. 54. One thing is ordinarily said to "affect" something else if it "has an effect on" or "makes a difference" to the second thing. In myview, the elimination of peremptory challenges from the jury selection process "has an effect on" the constitutional right to a jury and"makes a difference" to the exercise of this right, even if it does not go so far as to infringe the right.

Juries empaneled under the newselection system will often be differently constituted than the juries that would have been selected if the parties had been able to exerciseperemptory challenges. In at least some cases this will affect the outcome of the trial. The Bill C-75 amendments importantly changewhat it means to have a jury trial in a criminal case, whether or not these changes are constitutional. 55.

Moreover, the ability of the defence to assert a small measure of direct control over the composition of the jury by makingperemptory challenges has long been recognized as "an important part of the jury selection process" that has considerable value to thedefendant whose liberty will be at stake in the trial. As discussed above, the peremptory challenge is meant to "heighten an accused'sperception that he/she has had the benefit of a fairly selected tribunal".

As in R.S., supra it does not matter whether some, all or only afew defendants will regret the loss of this statutory right and feel less confident that they are receiving a fair trial, although there is noparticular reason to suppose that the impact of the change will not be widely felt. From the accused's perspective, the loss of the statutoryright to peremptorily challenge prospective jurors diminishes the value of having a Charter-protected right to a trial by jury.

At leastsome defendants who might otherwise have elected a trial by jury may for this reason now choose not to exercise this constitutional right. 56. The Crown argues that the fact that a legislative change may affect a defendant's tactical choices regarding Charter rights is notdeterminative.

As an example, the Crown notes that a change to the rules of evidence - which has always been understood as a proceduralchange that is presumed to act retrospectively - may strengthen the Crown's case against a defendant by making previously inadmissibleevidence admissible, which may in turn induce the defendant to waive his or her constitutionally protected right to a trial.

While I agreethat not every legislative change that could influence an accused's choice about exercising Charter rights can necessarily be seen as"affecting" those rights within the meaning of Dineley, the difference between the situation here and the Crown's example is that the BillC-75 amendments directly affect the nature of the right guaranteed by s. 11(f). A trial by jury conducted under the new jury selectionscheme will be meaningfully different from a trial by jury conducted under the previous system, for better or worse. In my view, theamendments directly "affect" the s. 11(

f) right, whether or not they rise to the level of infringing that right. 57. I should add a similar argument about how s. 11(

f) rights are affected by the elimination of peremptory challenges was recentlyraised before my colleague Bird J in R. v. Gong, supra. Like me, she also had the benefit of the Ontario Court of Appeal's very recentdecision in R.S., supra. She also concluded that the elimination of peremptory challenges "affects" s. 11(

f) rights with the meaning ofDineley. I agree with her analysis and her conclusion. [emphasis added] [13] In Craig, Dawe, J. addressed the loss of peremptory challenges, as did Marshall, J. in Butler and Bird, J. in R. v. Gong (18November 2019), Newmarket, CR-17-00003973 (Ont. Sup. Ct.). However, in Gong, Bird, J. also addressed the change in the challengefor cause procedure through the abolition of triers.

Neither Butler nor Craig involved a challenge for cause and, as such, I regard Dawe,J.’s endorsement of Gong as speaking to the elimination of peremptory challenges. [14] I raise this, for while I am in agreement with Craig and Butler, and for that matter, Gong, on the treatment of peremptorychallenges, with due respect, I

part company with Bird, J. in her treatment of the abolition of triers. Bird, J. came to the conclusion thatthe new challenge for cause procedure does not affect the accused’s substantive rights and therefore applies retrospectively. [15] Rather, with regard to the abolition of lay triers, I agree with the following observation of Ferguson, J. in Raymond (atparagraph 21): 21.

Granting the judge the power to decide challenges of potential jurors for cause warrants further comment and analysis as doesbroadening the judge's power to stand aside a potential juror where doing so advances the maintenance of public confidence in theadministration of justice. The ousting of sworn or unsworn jurors from the challenge for cause process represents a judicial intrusion intothe otherwise the long-standing rules regulating the jury selection process through the use of civilians for the arguably the mostimportant part of determining impartiality.

It is one that sees the power of the triers drawn from the jury panel or sworn members of thejury displaced by empowering a superior court judge to take over that role. The effect is to allow the judge to shape the overall makeupof the jury as a result of the power shift. See: the caution by Dickson C.J. with respect to granting additional powers in the jury selectionprocess to trial judges as set out in R. v. Barrow, (SCC), [1987] 2 S.C.R. 694 (S.C.C.) at paragraph 37. [emphasis added] [16] Turning to the “combined affect” of the amendments Ferguson, J. goes on to say (at paragraphs 90 – 92): 90.

It is difficult not to conclude that the combined effect of eliminating the peremptory challenge provisions, vesting of the decision-making powers in the judge with respect to challenge for cause of potential jurors and the broadening of judicial powers to standpotential jurors aside found in C-75 have stripped both sides in the jury selection process of, as Dickson C.J. put it (and to repeat) in theopening words of the following excerpt from Barrow:

...substantial powers in the process and sets up a mechanism to try the partiality of a potential juror when challenged for cause. The trier of partiality is not the judge but a mini-jury of two potential or previously selected jurors (s. 569(2)). Overall, it is a comprehensive scheme designed to ensure as fair a jury as is possible and to ensure that the parties and the public at large are convinced of its impartiality. Any addition to this process from another source would upset the balance of the carefully defined jury selection process.

This is especially the case of any attempt to add to the powers of the judge . Parliament has decided that the issue of partiality is a question of fact that must be decided by two of the jurors themselves, not by the judge. The province cannot give the judge any power to make decisions as to partiality and any judge who attempts to participate in such decisions usurps the function of the jurors established by s. 569(2). Usurpation of this sort is so severe an error of law by the judge that it mandates a new trial, even if no prejudice to the accused can be shown ( Guérin v. R ., supra ).

The judge's role is to supervise trials of partiality, not to decide them. Emphasis added) 91. Unarguably the amendments remove the right of the accused to have input into who shall try any challenges for cause by doing expressly what Chief Justice Dickson said in Barrow should not be the case, that is, by adding important additional powers with respect to the jury selection and thus composition process to the judge.

The expansion of the power of the judge to stand aside an undefined number of potential jurors in order to craft the composition of the jury is a further derogation of defence counsel's power in the selection process. 92. Previously, the accused could determine whether, in a challenge for cause, the triers would be drawn from the unsworn/sworn jurors who would rotate for each challenge or static triers who would try all challenges lodged during the selection process. See: Esseghaier at paragraphs 29-32. As noted, C-75 vests the power to adjudicate challenges for cause solely in the hands of the judge.

The change leaves the accused with only the power of persuasion to convince the judge overseeing the jury selection process to accept or not to accept the advice of counsel. [ 17 ] In a similar vein, Walsh, J. in R. v. LeBlanc , | 2019 NBQB 241 , stated (at paragraphs 36 and 43 : 36. It is in this sense that the amendments taken together "affect" substantive rights, without necessarily infringing those constitutional rights . I adopt the meaning of "affects" as given by defence counsel in R v. McMillan , supra : ... "To affect a right does not mean that there must be a positive or negative impact.

In fact, the impact on the right could be neutral, however the right would be affected where the change in the legislation impacts or alters the right". 43. It is in this re-balancing effort of Parliament through the combination of amendments to obtain greater representativeness on the petit jury that necessarily affects/impacts the constitutionally protected rights of an accused as guaranteed by

Section 11 (

d) and (

f) of the Charter (whether positively, negatively, or neutrally is to be seen). Put differently, the amendments seek to alter the content of those rights through procedural machinery. For this reason, the procedural changes "affect" substantive rights. To do so retrospectively would simply not be fair . [emphasis added] [ 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. [ 19 ] In conclusion, I find that Bill C-75 does not operate retrospectively in the case of Mr. Bragg’s trial. The jury selection scheduled for 20 January 2020 will be conducted under the Criminal Code as it was prior to 19 September 2019. [ 20 ] In light of my conclusion that the amendments do not apply to Mr. Bragg’s case, I need not decide on the constitutionality of Bill C-75, argued, as it was, in the alternative. _____________________________ Donald H. Burrage Justice APPENDIX Bill C-75 Jury Amendment Decisions Statutory

Interpretation

Procedural (Retrospective): Tab Judgment Citation Date 1 R v Cumberland, (Keith J) 2019 NSSC 307 Sept 5, 2019 2 R v Lako, (Thomas J) 2019 ONSC 5362 Sept 17, 2019 3 R v Chouhan , (McMahon J) 2019 ONSC 5512 Sept 24, 2019 4 R v Khan , (Edwards J) 2019 ONSC 5646 Sept 30, 2019 5 R v McMillan , (Dambrot J) 2019 ONSC 5616 Oct 2, 2019 6 R v Khurshid & Phillips , (Bielby J)* 2019 ONSC 5825 Oct 8, 2019 7 R v Kakekagumick, (Fregeau J) 2019 ONSC 6008 Oct 17, 2019 8 R v Muse , (Brown J) 2019 ONSC 6119 Oct 29, 2019 9 R v Gordon, (Forestell J) 2019 ONSC 6508 Nov 12, 2019 10 R v Stewart, (Champagne J) 2019 MBQB 171 Nov 22, 2019 11 R v Campbell, (Boswell J) 2019 ONSC 6285 Nov 25, 2019 *Currently unavailable Substantive (Prospective): Tab Judgment Citation Date 12 R v Subramaniam , (Saunders J) 2019 BCSC 1601 Sept 20, 2019 13 R v Raymond, (Ferguson J) 2019 NBQB 203 Sept 23, 2019 14 R v Dorion, (Danyliuk J) 2019 SKQB 266 Oct 3, 2019 15 R c Lindor, (Downs JCS) 2019 QCCS 4232 Oct 9, 2019 16 R v Nazarek , (Ehrcke J) 2019 BCSC 1798 Oct 11, 2019 17 R v Ismail, (Martin J) 2019 MBQB 150 Oct 16, 2019 18 R v LeBlanc , (Walsh J) 2019 NBQB 241 Oct 16, 2019 19 R v Stanley, (Hildebrandt J) 2019 SKQB 277 Oct 17, 2019 20 R. c Simard, (Royer JCS) 2019 QCCS 4394 Oct 22, 2019 21 R v.

Ermine, (Tochor J) [unreported SK] Oct 23, 2019 22 R v Levaillant , (Michalyshyn J) 2019 ABQB 837 Oct 24, 2019 23 R c Bebawi, (Cournoyer JCS) 2019 QCCS 4393 Oct 25, 2019 24 R v SB, (Ackerl J) 2019 ABQB 836 Oct 30, 2019 25 R v King , (Goodman J) 2019 ONSC 6386 Nov 4, 2019 26 R v Kebede, (Nixon J) 2019 ABQB 858 Nov 14, 2019 27 R v Gong, (Bird J) [unreported ON] Nov 18, 2019 28 R v Craig , (Dawe J) 2019 ONSC 6732 Nov 22, 2019 Constitutionality Judgment Citation Date R v Chouhan , (McMahon J) 2019 ONSC 5512 Sept 24, 2019 R v Muse , (Brown J) 2019 ONSC 6119 Oct 29, 2019 R v King , (Goodman J) 2019 ONSC 6386 Nov 4, 2019 R v Gordon , (Forestell J) 2019 ONSC 6508 Nov 12, 2019

Bill C-75 Preliminary Inquiry Amendment Appeal Decisions Tab Judgment Citation Date 29 R v RS , (Doherty, Watt, Trotter JJA) 2019 ONCA 906 Nov 18, 2019