R V. Noureddine: Improper Use Of Static Jurors And The Scope Of The Harmless Error Provision

In the case of R v Noureddine, the accused were acquitted of first degree murder charges and subsequently convicted on charges of second degree murder. Counsel for each accused brought forward a challenge of a juror on the basis of racial bias and indicated that they wished to proceed by rotating triers. Despite this, the trial judge misinterpreted the statutory language and unilaterally imposed static triers in the challenge for cause. On November 12, 2014, the Court of Appeal released its decision and addressed this procedural error in addition to whether or not it could be saved by a curative proviso.

Background Facts

The Criminal Code provides two avenues for appointing jurors: either by rotating triers or static triers. Pursuant to section 638 of the Criminal Code, where counsel advances a challenge to a potential juror, the judge is required to select two persons from the pool of potential jurors who will assess the challenged jurors partiality. If the juror is found to be impartial, they will be sworn and will subsequently become the new triers. Section 640(2) of the Criminal Code specifies that this rotating method will be used in selecting all juries unless an order is made pursuant to section 640(2.2). Where a challenge for cause is raised, as in this case, a section 640(2.2) holds that "on application of the accused, the court may order the exclusion of all jurors - sworn and unsworn - from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors." Under this static method, the same two triers will act throughout the challenge for cause process and will not become part of the jury that ultimately tries the case.

The decision helpfully illustrates that:

Certain errors in the course of jury selection process will prevent the formation of a properly constituted trial court from coming into existence; and The curative proviso contained in section 686(1)(b)(iv) is only applicable where a properly constituted trial court has been formed. The Court of Appeal unanimously allowed the appeal and quashed the conviction and ordered a new trial on the second degree murder charge. The Court stated:

[37] The trial judge made no reference to the relevant provisions of the Criminal Code. Specifically, he made no reference to the criterion in s. 640(2.1). He misapprehended the nature of the application and purported to...