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R v Esseghaier - Zelene Elliot

Section 11(f) of the Charter provides that any person charged with an offence in Canada has the right “to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.” 1 Moreover, s 11(d) enshrines the right to a “hearing before an independent and impartial tribunal.” 2 However, what the Charter does not provide for is commentary on what makes up a jury, what makes a jury fair and impartial, and whether the selection process used to determine jury members can affect the fairness of a trial; all issues which were considered before the Supreme Court of Canada [“SCC”] in the recent case of R v Esseghaier.

By way of background, the Respondents in Esseghaier, Mr. Esseghaier and Mr. Jaser, were arrested and charged with a number of terrorism offences. The primary plot in which the Respondents were involved was the derailment of a VIA passenger train, which had the ultimate goal of killing the passengers on the train. 3 They were further involved in a targeted assassination plot. 4

On January 23, 2015, the trial commenced for the Respondents. Mr. Esseghaier self-represented, while Mr. Jaser was represented by counsel. Prior to the trial, a motion was heard pertaining to jury selection and challenges for cause. For you avid blog readers unfamiliar with the term, a challenge for cause arises where, during the jury selection process, there is a reason for which either defence counsel or the Crown has reason to suspect that a potential member of the jury may possess bias. Section 638 of the Code lays out a number of grounds where a challenge for cause may be sought, including (but not limited to): where a juror is not impartial, where a juror is not a Canadian citizen, and where a juror does not speak an official language of Canada. 5 In this case, both Crown and defence counsel agreed that challenges for cause were necessary to ensure impartiality of the jury; likely due to both the sensational and widely publicized nature of the case. 6 At issue in this case however was the actual selection mechanisms used to formulate the jury, and whether this may contribute to a lack of impartiality and independence.

After a challenge for cause is raised, s 640 of the Code permits the challenges to be heard by either static or rotating triers. 7 In effect, where static triers are used, the same triers pick the entire jury, and as a result, the possibility of partiality or bias may emerge in their selection of jury members. However, the static triers would not subsequently form part of the jury. By contrast, where rotating triers are used, the first two members of the jury is selected by two random members of the unsworn jury (these two members would not be sworn in and later excused, not forming part of the jury), with each member of the jury selected during the challenge for cause replacing one of the triers until the entire jury is selected. There is a purported benefit to rotating triers since it minimizes partiality and bias in the jury members selected.

With regard to the actual statutory scheme, s 640(2) of the Code stipulates that rotating triers shall be used in all cases, except where a judge makes an Order under s 640(2.2) of the Code to allow for the use of a static trier in a challenge for cause. Moreover, s 640(2.1) of the Code interacts with both ss 640(2) and 640(2.2). 8 It allows the Court to exclude both sworn and unsworn jurors during the challenge for cause so as to maintain the impartiality of prospective jurors or sworn jurors. In effect, this ensures that already selected jury members or prospective jury members are not tainted during the challenge for cause by hearing the biases and potential impartiality of other potential jury members.

At trial, counsel for Mr. Jaser wanted rotating triers and unsworn jurors excluded, or, in the alternative, he would make an application under both ss 640(2.2) and 640(2.1) to have both static triers of fact with sworn and unsworn jurors excluded. However, the trial judge said that he was not permitted to do so under the common law. Since Mr. Esseghaier was self-represented, the trial judge held that both him and Mr. Jaser were in the same boat with regard to jury selection since they were going to be tried together.

The trial judge’s decision to deny Mr. Jaser’s request for rotating triers with unsworn jurors excluded was challenged at the Ontario Court of Appeal [“ONCA”]. 9 There it was determined that the trial judge erred when he held he did not have discretion to order exclusion of unsworn jurors while rotating jurors tried challenges for cause. 10 Moreover, the ONCA further found that he erred in holding that he should not use his discretion, even if he had it. 11 Ultimately, the ONCA found that this error was not saved under the curative provisio and had negative effects on the proceedings. 12

At the SCC, they determined that the jury for both Respondents was improperly constituted. They held that Mr. Jaser should have had rotating triers with prospective jurors excluded in light of the application, and Mr. Esseghaier should have had rotating triers given its the default process under the Code. 13 With that being decided, the SCC then turned its mind to the curative provisio and s 686(1)(b)(iv) of the Code in particular.

Section 686(1)(b)(iv) of the Code states:

On the hearing of an appeal against a conviction […] the Court of Appeal

(b) may dismiss the appeal where

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; 14

The Court then embarked upon a brief exercise of statutory interpretation in which they looked at the phrase “jurisdiction over the class of offence”. Interestingly, counsel for the Respondents (Mr. Esseghaier and Mr. Jaser) made the argument that the proper way of interpreting this provision was such that where the jury selection process did not comply with the Code, the Court (any court) never obtains the jurisdiction to proceed to trial. 15 However, the SCC rejected this argument and determined that using the jurisdictional guidelines of what offences are heard in what court, Parliament only intended for this provision to apply where the trial court could not hear that type of offence. 16 Consequently, this provision would only apply where one of the three classes of offences (indictable offences under s 469 of the Code and only triable in a superior court, indictable offences not listed in s 469 which are triable in either a superior or provincial court, or summary conviction offences which are only triable in provincial court) were heard in the improper court. 17 In applying this reasoning, the SCC determined that the proper court (the Ontario Superior Court) heard Mr. Esseghaier and Mr. Jaser’s trial, and they had jurisdiction over their specific offences, including conspiracy to commit murder. 18

Finally, the Court considered whether or not Mr. Esseghaier or Mr. Jaser experienced any prejudice due to the improper constitution of their jury. The SCC reminded that the test to show prejudice, pursuant to s 11(d) of the Charter, is such that the accused bears the onus first of finding a procedural error, and then “it shifts to the Crown to show, on a balance of probabilities, that they were not deprived of their right to a fair trial by an independent and impartial jury, and consequently, suffered no prejudice.” 19 While the SCC agreed that there was a procedural error, they ultimately determined that the jury was still selected through a fair mechanism enacted by Parliament, both sworn and unsworn juror were excluded from the courtroom, and the rights of Mr. Esseghaier and Mr. Jaser were protected through a very serious vetting process. Moreover, the triers were properly instructed by the trial judge, they acted seriously, and a reasonable person would perceive that Mr. Esseghaier and Mr. Jaser had a fair trial before an independent jury. 20 This led the SCC to the conclusion that “while Mr. Esseghaier and Mr. Jaser did not receive the exact trial they wanted, our law does not demand perfect justice, but fundamentally fair justice. This is what they received.” 21 In coming to this conclusion, the SCC decided that the appropriate remedy would be to allow the appeal, and restore the convictions of Mr. Esseghaier and Mr. Jaser. 22


This is an interesting case since it is one of few in which the SCC released reasons in 2021 thus far. While a relatively short case, it is one of many cases in which the contents and the application of the curative provisio are at-issue. Much like the standard that lawyers and other professions are held to, it is interesting to note the parallel which the SCC draws which is such that the standard is not perfection for the Crown to show, on a balance of probabilities, that s 11(d) was not violated and the curative provisio to apply. This raises some questions with respect to wrongful convictions and the actual quantification of what constitutes a fair trial with an independent jury. While you may look back on transcripts and get a glimpse of the trial through written word, sometimes actions speak louder than words… and actions are not always recorded for appellate review. With that said, the bulk of what the SCC had to say in Esseghaier does not come as a surprise given its current trends to expedite and reduce trial complexity, and it further helps to delineate the application of the curative provisio and explain the numerous ways a challenge for cause may be lawfully heard. 23


1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 11(f).

2 Ibid, s 11(d).

3 R v Esseghaier, 2021 SCC 9 at para 12, [Esseghaier].

4 Ibid.

5 Criminal Code, RSC 1985, c C-46, s 638, [Code].

6 Esseghaier, supra note 3 at para 4.

7 Code, supra note 5, s 640.

8 Ibid.

9 Esseghaier, supra note 3 at para 27.

10 Ibid at para 28.

11 Ibid at para 28.

12 Ibid at para 29.

13 Ibid at paras 31-34.

14 Code, supra note 5, s 686.

15 Esseghaier, supra note 3 at para 45.

16 Ibid at para 46.

17 Ibid at para 42.

18 Ibid at para 49.

19 Ibid at para 54.

20 Ibid at paras 54-58.

21 Ibid at para 57.

22 Ibid at para 66.

23 The code provisions have changed- SCC ruled that the curative proviso of s. 686(1) (b)(iv) of the CC can be applied to cure jury selection errors.

Check out the Robson Crim MLJ
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