N.B. court decision on new jury selection rules could send ripples through system

A New Brunswick judge's decision that new jury selection rules will not apply to the fitness hearing of accused Fredericton shooter Matthew Vincent Raymond has opened the door to appeals across the country, an Alberta law professor says. 

Justice Fred Ferguson ruled that jury selection will be based on rules followed before Bill C-75 came into effect this month. 

But other judges in Canada have come to different conclusions and decided to apply the new rules to their respective cases. 

Raymond is charged with four counts of first-degree murder in the shooting deaths of Donnie Robichaud and Bobbie-Lee Wright and police constables Sara Burns and Robb Costello on Aug. 10, 2018. Jury selection begins Monday for his fitness hearing.

Bill C-75 removed peremptory challenges that allowed lawyers to reject potential jurors without giving reasons. It also put more power in the hands of the judge to decide which potential jurors should remain and which should be dismissed.

Lisa Silver, a University of Calgary law professor, said the differing opinions among judges on whether to apply the jury-selection rules provide an avenue for appeal on both sides of the issue.

"If I were giving advice to my clients who just were denied the argument that someone else in a different province …received, I would say, 'appeal this,'" she said.

Silver, who appeared before the parliamentary committee that examined the bill, said similar confusion occurred when there was a change to the self-defence sections of the Criminal Code a few years ago.

Different trial judges in different provinces came to a variety of decisions, and they were appealed.

"That likely will happen here," Silver said. "If there are two different decisions, likely some will go, 'OK, well we need clarity.'"

Bill wasn't clear 

Both Silver and Ferguson said the root cause of the divide is an unclear mandate from lawmakers.

Bill C-75, introduced by former justice minister Jody Wilson-Raybould, "significantly amended" the Criminal Code, Ferguson wrote.

The bill was proposed to reform jury selection after an all-white jury acquitted a white Saskatchewan farmer, Gerald Stanley, in the shooting death of a 22-year-old Cree man, Colten Bouchie.

While C-75, which amended several different pieces of legislation, had transitional provisions for some changes, it didn't have any guidance as to whether the new jury selection rules should apply to cases that were already in the system before the new rules came into force Sept. 19.

Since the bill is not clear, "trial judges and counsel are left to sort out which route is the correct one," Ferguson wrote.

At issue with the jury changes is whether a peremptory challenge is a "constitutional right" of an accused. If it's a right, it must remain for cases that happened before Sept. 19. If it's only procedural, it can be eliminated for everyone.

Ferguson ruled it was not just procedural, that it affects a constitutional right, but he said it was not an easy decision.

"I'm fully aware this is a close call," he wrote. "The path to decision is not clear simply because the structure of the existing jury selection process … has remained relatively untouched for a very long time."

However, Ferguson said his judgment isn't necessarily a challenge of Bill C-75 itself.

"This application is not a constitutional challenge of the legislation, at least not yet," he wrote.

The change in Bill C-75 doesn't fit in either procedural or constitutionality categories, he wrote. It falls into a "unique category all [of] its own."

2 cases in Ontario

The two decisions that come from outside New Brunswick are from the Ontario Superior Court of Justice. One has to do with a first-degree murder case, and the other involves two people, one accused of manslaughter and the other of first-degree murder.

In each case, the judge said peremptory challenges are procedural and will be removed from the trial of the three people accused.

Kelly Crowe, spokesperson for the federal Justice Department, said the amendments in Bill C-75 are aimed at "improving the jury selection process to make it more transparent and promote fairness and impartiality."

She said there were no transitional provisions that apply to the jury reforms because "existing law adequately addresses the temporal application of these amendments and are well within the purview of the courts to interpret and apply."