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  • Lewis Waring

Caution Required As Curative Proviso Restores Convictions - D. Grohl

By amending the Criminal Code (“the Code”) to add section 686(1)(b)(iv), Parliament provided the appeal courts the ability to remedy errors in the procedure of a criminal trial, provided such an error was generated by the trial court and the accused had not suffered prejudice as a consequence of that error.1 In doing so, the legislature sent the higher courts of Canada a clear message to not allow justice to fail as a consequence of unimportant trial errors. In R v Essaghaier (“Essaghaier”), an early 2021 case, the Supreme Court of Canada (“the Court”) ruled on whether errors in jury selection fall under section 686(1)(b)(iv) of the Code as a procedural irregularity.2

The accused in Essaghaier, E and J, were charged with several crimes relating to terrorism. Specifically, they were charged for participating in the planning of a plot to derail a train to kill passengers and a plan to kill specific prominent people with a sniper rifle.3 The Crown and J jointly made a motion requesting that challenges for cause (the process by which jury members are interviewed and approved or rejected based on their existing biases) be used when selecting the jury as the facts were of a politically sensitive nature.

The two methods by which this challenge for cause procedure might be done are by either rotating trier or static triers. A rotating triers procedure involves different jury members making each decision as to whether a prospective jury member should be approved while a static triers procedure entails two would-be jurors making all the decisions as to the challenges for cause, after which they are dismissed.5 J had requested the trial judge allow the use of rotating triers that are jury members but to exclude all prospective jury members other than the one being assessed from the courtroom so as not to train them on how to answer such that they would succeed in being approved.6 However, there was some debate at the time in Ontario, as a result of a Parliamentary procedural amendment introducing static triers, as to whether trial judges still had the discretion in common law to exclude prospective jury members.7

The trial judge in Essagbaier was of a mind that the introduction of static triers by Parliament supplanted the role of judge’s discretion in excluding prospective jurors for a rotating triers procedure, and that his hands were tied. The trial judge also provided a statement that, even if he could do so, he would not as it would be an improper administration of justice.8 Accordingly, the trial proceeded with jury selection using the static triers procedure for challenges for cause with all prospective and appointed jurors excluded from the courtroom during the proceedings.9

The trial in Essagbaier ended with E and J receiving convictions which resulted in life sentences, which they then appealed.10 The Court of Appeal for Ontario (“the ONCA”) fell opposite the trial judge, deciding that the common law discretion to exclude prospective jurors from a rotating triers procedure did exist and furthermore that he should have used it in this case.11 The ONCA rejected the possibility of saving the conviction through section 686(1)(b)(iv) of the Code, as this improper constitution of the court removed their ability to justly preside over the offence. Furthermore, even if the ONCA did have that jurisdiction, the veneer of fairness was imputed such that would cause prejudice to the accused.12 Thus, the ONCA reversed the convictions and ordered a new trial, a decision which the Crown then appealed to the Court.

The Court agreed with the ONCA that the jury for both E and J was not put together using proper procedures, as the trial judge had the discretion to exclude prospective jurors when conducting the rotating triers procedure, and it would have been unreasonable for him not to do so.13 The Court then moved to consider whether section 686(1)(b)(iv) of the Code should have been used by the ONCA to save the convictions.

Section 686(1)(b)(iv) of the Code includes a requirement that the trial court must have “jurisdiction over the class of offence of which the appellant was convicted”. The accused argued that this meant that proper jurisdiction was a prerequisite for a conviction to be saved under this section and therefore that the section could not save a conviction given by jury that was improperly constituted in the first place.14

The Court in Essagbaier disagreed, arguing that this interpretation of section 686(1)(b)(iv) would be inconsistent with the objective Parliament intended to impart to the higher courts, that being to avoid innocuous offences of unnecessary complexities being used as a method of frustrating justice. Additionally, the Court provided evidence that the “jurisdiction over the class of offence” language was intended to restrict the proviso to apply only when the trial court had been authorized through statute to handle that manner of case.15 As the trial court in Essagbaier had the authority to try the offences of which E and J were convicted, the jurisdiction requirement of section 686(1)(b)(iv) was found to have been satisfied.16

Section 686(1)(b)(iv) also requires that the accused had “suffered no prejudice” as a result of the procedural error at trial in order to be applicable.17 The Court, in attempting to determine how “prejudice” should be interpreted in this context, inferred that, in the context of improper jury selection, prejudice would mean that the accused had not received “a fair trial by an independent and impartial jury”.18 The Court found that, at trial, while E and J had not received the exact procedure requested by J, the procedure they did receive (static triers with no jurors present) was concocted by Parliament specifically to provide an independent and impartial jury.19 Given Parliament’s intent, the Court decides that, as the accused are entitled to justice, but not the exact perfect justice they might request, and given that fair justice is what they received, that the conviction should be cured by section 686(1)(b)(iv) of the Code.20

Essagbaier is a small but meaty case, one which emphasizes a portion of the Code admirably designed to protect the administration of justice in the face of a complex and demanding system, one that even experienced members of the court could run afoul of and, without this proviso, might cause the undoing of just outcomes at trial with their imperfect management. However, a pessimist might look at section 686(1)(b)(iv) and find it convenient that such a forgiving law so liberally applied by the Court is done for the benefit of the state to convict its citizens. The outcome may have been pleasant in Essagbaier, but if the Court expands this proviso to cure larger and more substantial errors in trial procedure, that will definitely be something to pay close attention to and to be wary of.


1 Criminal Code, RSC 1985, c. C‑46, s. 686(1)(b)(iv). [Criminal Code]

2 R v Esseghaier, 2021 SCC 9 at paras 2, 3. [Esseghaier]

3 Ibid at para 12.

4 Ibid at para 15.

5 Ibid at paras 16, 17.

6 Ibid at para 20.

7 Ibid at para 19.

8 Ibid at paras 22, 23.

9 Ibid at paras 6, 24.

10 Ibid at paras 25, 26.

11 Ibid at para 28.

12 Ibid at para 29.

13 Ibid at paras 31-33.

14 Ibid at paras 35, 44.

15 Ibid at paras 43, 46, 47.

16 Ibid at para 49.

17 Criminal Code, s. 686(1)(b)(iv).

18 Esseghaier at para 54.

19 Ibid

20 Ibid at para 57.


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