Her Majesty the Queen in Right of Canada v. Chiheb Esseghaier, et al.

(Ontario) (Criminal) (By Leave)


Criminal law - Jurors, Challenges for cause, Appeals - Criminal law — Jurors — Challenges for cause — Appeals — Curative proviso — Whether Court of Appeal erred in law in finding that the jury was improperly constituted — Whether curative proviso in s. 686(1)(b)(iv) of the Criminal Code is inapplicable to errors in jury selection process no matter how technical and non prejudicial the error?.


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Mr. Jaser and Mr. Esseghaier were charged with offences alleged to be terrorism. Before trial, Mr. Jaser’s counsel requested a process known as 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 that each accused was a member of a visible minority and a 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 persons who will serve on the jury who change by rotation as each additional jury member is sworn. Static triers are two persons 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 that if the court determined that 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 Court of Appeal held that the request to use using rotating triers with unsworn jurors excluded should have been granted and the jury was 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