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 - Defence counsel applying to challenge potential jurors for cause and requesting rotating triers with unsworn jurors excluded - Trial judge ordering static triers with unsworn and sworn jurors excluded - Whether Court of Appeal erred in law in finding jury improperly constituted - Whether curative proviso in s. 686(1)(b)(iv) of the Criminal Code is applicable to cure error in jury selection process?.
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Chiheb Esseghaier and Raed Jaser were charged with terrorism-related offences. They elected trial before a jury. A pre-trial motion brought jointly by Crown counsel and counsel for Mr. Jaser sought directions regarding jury selection. 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 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 for rotating triers and to have unsworn prospective jurors excluded from the courtroom during the hearing of each challenge. Mr. Jaser’s counsel sought rotating triers with unsworn prospective jurors excluded from the courtroom. The trial judge ordered static triers with all sworn and unsworn jurors excluded. A jury was selected. Mr. Jaser and Mr. Esseghaier were tried. 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 could not be cured by the curative proviso in s. 686(1)(b)(iv) of the Criminal Code. It ordered a new trial.
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