Feb 17, 2021

Criminal Law: Jury Selection

R. v. Esseghaier, 2019 ONCA 672 (CanLII)
Mr. Jaser and Mr. Esseghaier were charged with offences alleged to be terrorism. Before trial, Mr. Jaser’s counsel requested a challenge for cause to determine whether each prospective juror’s ability to decide the case would be affected by pre-trial publicity and the fact each accused was a member of a visible minority and Muslim. At the time, the Criminal Code contemplated using members of the jury pool, referred to as rotating triers or static triers, to decide challenges for cause of prospective jurors (rotating triers are two jurors who change by rotation as each additional jury member is sworn; static triers are two who hear and determine all challenges until the entire jury has been selected and sworn but who do not themselves become members of the jury). At the time, there was uncertainty in the case law regarding whether counsel could ask to have some or all sworn and potential jurors excluded from the courtroom during the hearing of each challenge. Mr. Jaser’s counsel requested rotating triers with unsworn jurors excluded, seeking to avoid exposing unsworn jurors to other jurors’ answers. He stated if the court determined this was not within its jurisdiction, then he chose static triers with unsworn jurors excluded. Mr. Esseghaier made no application in respect of the process. The trial judge ordered static triers with unsworn and sworn jurors excluded. The jury convicted Mr. Esseghaier and Mr. Jaser of terrorism offences. The C.A. held the request to use using rotating triers with unsworn jurors excluded should have been granted and the jury not properly constituted. It held that the error was not cured and the curative proviso in s. 686(1)(b)(iv) of the Criminal Code did not apply; it ordered a new trial. (Oral Judgment rendered Oct. 7, 2020, with reasons to follow)