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  • Lewis Waring

the Curative Proviso Under s. 686(1)(b)(iv) of the Criminal Code - Cody Dangerfield

R. v. Esseghaier (“Essegbaier”) was the first case of the Supreme Court of Canada (“the Court”) to address whether section 686(1)(b)(iv) of the Criminal Code, a curative proviso that allows appellant courts to cure procedural errors during a trial and uphold convictions, can be used when the errors occur during the jury selection process. In Essegbaier, the Ontario Court of Appeal (“the ONCA”) had overturned the convictions of the accused on the grounds that section 686(1)(b)(iv) can only apply to trials that have jurisdiction over the offences being tried. Due to this limitation, section 686(1)(b)(iv) does not apply when the jury has not been properly constituted because the jury partly comprises the court’s jurisdiction. Speaking for the Court’s majority in Essegbaier, Moldaver and Brown JJ did not agree with the appellant court’s reasoning and interpreted the proviso broadly, keeping in line with previous court decisions regarding section 686(1)(b)(iv) and the purpose behind the enactment of the proviso. The ruling in Esseghaier provides increased remedial powers for appellant courts, allowing them to save convictions when there are small technical errors throughout the trial process.

Plot to derail train leads to terrorism charges

In 2013, Esseghaier and Jaser were charged with various terrorism-related offences in connection with a plot to derail a passenger train, including: conspiracy to damage transportation infrastructure with intent to endanger safety for the benefit of a terrorist group, conspiracy to commit murder for the benefit of a terrorist group, and participating in or contributing to the activity of a terrorist group. The two accused had furthermore concocted a back-up plan to kill prominent persons with a sniper rifle if the train plot failed.

Jaser acknowledged the high-profile nature of their case and the public concern against Islamic extremism, and thus, wished to have rotating triers while determining the challenges for cause during the jury selection process, while excluding prospective jurors to limit the biases within the jury. The trial judge believed static triers would better address the issue of jury partiality and denied Jaser’s request. The trial judge further believed he did not have the authority to exclude prospective jurors if rotating triers were used.

Two methods of challenging jurors for cause

Under the old Criminal Code rules that applied at the time of the trial, while challenging jurors for cause, the judge would appoint two members of the jury pool to act as triers. These jurors would decide, based on challenges from the accused, Crown, or judge, whether a prospective juror was partial or impartial.

There were two methods employed in this trying process. According to one method, rotating triers selected a juror who would replace one of the triers and take on the responsibility of deciding the impartiality of the next jurors who would then replace another trier if selected. This process would continue until the jury was filled.

According to the second method of jury selection, static triers were appointed at the beginning of the process and stayed throughout the entire jury selection process. After the conclusion of the selection process, these static triers were released from their duty and were prohibited from joining the jury. Additionally, the trial judge excluded both sworn and unsworn jurors while trying challenges to cause. In Esseghaier, the jury was selected using the static-triers method. At trial, Esseghaier was convicted on all counts, while Jaser was convicted on all counts but one. Both of the accused were sentenced to life imprisonment with parole ineligibility for ten years and both subsequently filed for an appeal.

Both accused succeed on appeal

The ONCA found that the trial judge erred in his refusal of Jaser’s request for rotating triers with prospective jurors excluded and that this error could not be saved under section 686(1)(b)(iv) of the Criminal Code. As a result, the ONCA found that the convictions should be overturned and a new trial ordered. This decision was made in spite of the fact that section 686(1)(b)(iv) contains a curative proviso that allows a court of appeal to cure any procedural errors in the trial that would normally invalidate a conviction, provided the court has jurisdiction over the offence being tried and the appellant suffered no prejudice through the error. Instead of utilizing this curative proviso, the appellant court followed the ONCA’s prior decision of R v Noureddine (“Noureddine”), which stated that the curative proviso cannot save errors during jury selection that amount to an improperly constituted jury. The ONCA in Nourreddine limited the scope of section 686(1)(b)(iv) in this way because, without a properly constituted jury, a court, being made up of a judge and jury, lacked jurisdiction over any criminal offence. The Crown’s leave to appeal was granted by the Court.

The Court, seeing no prejudice, restores the convictions

Moldaver and Brown JJ, speaking for the Court’s majority, discussed whether the trial judge’s error could be saved by the curative proviso in section 686(1)(b)(iv) by analyzing issues of jurisdiction and prejudice. The majority argued that the wording within the proviso should be interpreted broadly and that thus jurisdiction over the class of offence should pertain to: superior courts having jurisdiction to try any indictable offences, provincial courts trying any summary offences, and criminal courts trying any offences not listed in section 469 of the Criminal Code. The ONCA’s narrow interpretation, echoing Noureddine, that jurisdiction would be negated when there are procedural errors during jury selection, was overruled. Since, in the Court’s opinion, the appellants suffered no prejudice throughout the trial due to the error, the curative proviso applied, saving the trial judge’s error and restoring the convictions.

Esseghaier continues the path set by earlier decisions of the Court. One such decision was R. v. Khan (“Khan”), in which Arbour J articulated the need for the remedial power set out in section 686(1)(b)(iv) to correct procedural errors. In Khan, Arbour J stated that, prior to the enactment of section 686(1)(b)(iv), Parliament had acknowledged issues surrounding procedural irregularities and the need to expand appellant courts’ power to cure these irregularities and uphold convictions that would otherwise be overturned without the proviso.

Another earlier decision which set the path for the decision in Esseghaier was R v Kakegamic (“Kakegamic”). Decided eleven years prior to Esseghaier, the ONCA in Kakegamic had found that the curative proviso of section 686(1)(b)(iv) could cure a procedural error during the jury selection process when the appellant had suffered no prejudice as a result of the error. R v Sinclair (“Sinclair”) soon followed the ONCA’s decision in Kakegamic. This argument arising from Kakegamic and endorsed in Sinclair added further credence to Moldaver and Brown JJ’s argument in Esseghaier. Furthermore, it must be noted that the ONCA in Esseghaier adopted its prior position taken in R. v. Bain (“Bain”), namely, that the jury selection process could not be saved by section 686(1)(b)(iv)’s curative proviso. Although Bain was overruled by the Court on appeal, the majority’s decision did not address section 686(1)(b)(iv). In Bain’s dissent, Gonthier J agreed with the ONCA’s narrow interpretation of the proviso. However, this interpretation was never reiterated in any subsequent Court cases.

Limiting loopholes while maintaining trial integrity

The line of cases cited by the Court in Esseghaier suggest that the ONCA had erred in its refusal to use section 686(1)(b)(iv) to uphold the trial court convictions, especially considering that Kakegamic and Sinclair had both been recently decided by the ONCA. In addition to being out of line with relevant case law, the ONCA’s decision to overturn the convictions was also contrary to the purpose behind the curative proviso of section 686(1)(b)(iv).

On the other hand, the Court’s broad interpretation of section 686(1)(b)(iv) in Esseghaier was in line with the purpose of the proviso. Section 686(1)(b)(iv) was enacted to address the growing complexities inherent in criminal procedure as new common law rules were being incorporated and new provisions were gradually being added to the Criminal Code. As new intricate rules and guidelines came into effect, procedural errors became more prevalent. Without secction 686(1)(b)(iv)’s curative proviso, convictions could be routinely overturned as a result of insignificant errors that had little or no effect on the actual outcome. The ruling in Esseghaier thus helped to limit legal loopholes, decreasing the ability of the criminally accused to exploit them on appeal in cases where a well-meaning trial judge had overlooked a technical detail and made a small procedural error. Additionally, the latter half of section 686(1)(b)(iv) states that an appellant must have suffered no prejudice due to a court’s error, providing a safeguard which limits appellate courts’ remedial power.

As a result of Esseghaier, errors during the jury selection process will no longer prevent convictions from being upheld in courts of appeal under the curative proviso. The broad interpretation of section 686(1)(b)(iv) in this important decision provides some leeway for judges who make small errors in procedure. However, Esseghaier should not be presented as a decision which bestows increased powers on trial judges who would either intentionally or recklessly err out of convenience or to influence the outcome of a jury’s deliberations. Instead, trial judges should strive to uphold the various procedural rules outlined in the Criminal Code, stay up informed of prior court decisions and, therefore, use curative provisos like s. 686(1)(b)(iv) sparingly.


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