“Be careful what you wish for, you may just get it” is a variation on an old Yiddish curse: May you get what you wish for. It serves as apt reminder for counsel preparing to select a jury in a criminal trial with the assistance of the challenge for cause procedure.
Challenges for Cause
R v. Kossyrine is the fourth appeal to grapple with the effect of the 2008 amendment to the Criminal Code sections that govern challenges for cause.
All of the cases arise from trials presided over by the now retired Justice Ewaschuk. Only one of them (R. v. Nourredine) resulted in a new trial. The quick takeaway for counsel is that form will not supersede substance. The appellate court will look to the submissions of counsel to determine whether the jury was properly constituted. The failure to make a “formal” request to exclude the jury panel will, in most cases, be inconsequential.
Mr. Kossyrine was charged with murder for his role in the death of a successful businessman Glen Davis. The murder and the investigation that followed attracted a great deal of media attention. When Mr. Kossyrine went to trial, he applied to challenge prospective jurors for cause, on the basis of the pre-trial publicity. The Criminal Code permits the accused to challenge jurors for bias that may arise from pre-trial publicity.
Amendments to the Criminal Code
Before 2008, challenges for cause were decided by “rotating” triers. The last two jurors sworn – or if no juror had been sworn, two persons appointed by the court decided whether the next prospective juror was impartial.
In 2008, Parliament amended s. 640(2) of the Criminal Code to provide for a second method of deciding the challenges for cause. That is, “static” triers could now be used decide on the suitability of the jurors. These static triers were appointed by the trial judge and they alone would decide all of the challenges until the jury was selected. Unlike rotating triers, static triers do not become members of the jury that will decide the case. The accused was required to make a request under s. 640 (2.1) to challenge the jurors in the absence of the entire panel.
In the early days after the amendment there was a debate amongst trial judges about whether, even with rotating triers, a judge had the discretion to exclude the panel of jurors during the challenge for cause process.
Quite understandably, especially for challenges based publicity, the accused did not want the entire panel of possible jurors to be present in the courtroom when the questions were asked. One can imagine the reaction of the group when questions about the publicity surrounding the case were heard. Undoubtedly, many in the group would immediately search Google, thereby frustrating the protection ostensibly provided by process in the first place.
Up until this time, some judges took a rather narrow view of the amended section. The choice was clear to this camp, you either take static triers with the jury panel excluded from the courtroom, or you take rotating triers and the panel remains in the courtroom during questioning.
R. v. Kossyrine
In Kossyrine, the accused did not make a formal application under s. 640(2.1). If he had, then the judge would have excluded the panel. On appeal, Kossyrine complained that the judge’s use of static triers to decide the challenges for cause resulted in an improperly constituted jury. The Court of Appeal disagreed and held that to give effect to this position would be to elevate form over substance.
The court looked to the exchanges between counsel and the judge to determine what the accused was really seeking. In this case, leaving aside the trial judge’s strong preference for static triers, defence counsel never objected to the use of static triers or raised the possibility of using rotating triers. The real concern was about the publicity surrounding the case so he wanted all prospective jurors out of the room during questioning. Defence counsel’s concern was about the static triers being properly vetted. The judge took this into account and offered counsel the chance to object to anyone selected. Counsel ultimately expressed satisfaction with this approach.
The appeal failed because the court concluded that while Kossyrine did not make the formal application under s. 640(2.1), he still got what he asked for. Defence counsel was clear that its primary concern was that the panel be excluded during the questioning and expressed satisfaction about the use of static triers.
The result in all four of the related appeals has been driven by the position defence counsel took at trial. Only in Noureddine was a new trial ordered. In that case, defence counsel not only did not apply under s. 640(2.1), she repeatedly insisted on using rotating triers. Despite her objection, the judge ordered static triers. Doherty J.A. held that this order deprived the accused of his right to choose the method of deciding challenges for cause.
The other two appeals were resolved in much the same way as in Kossyrine. While it was true that no formal application under s. 640(2.1) was made, the defence got what it wanted and, in substance, made the requisite application.
The important lesson to be taken from these appeals is that counsel must know precisely how it wants to challenge the jury and must be fearless in saying so on the record. Any effort to gain a new trial on the basis of a failure to comply with the relevant section will be decided based on the substance of the request and not its form.
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