[May 10, 2022] Jury Selection: Judicial Stand-Asides and Gender Balance in a Sexual Assault Case [Reasons by Strathy CJO, with Coroza and George JJ.A. concurring]
AUTHOR’S NOTE: This case is a good news/bad news situation. It was a good result for the accused in getting a new trial and can be used by the defence in similar situations, but it is a body blow to hopes for the an expanded stand-aside role in encouraging diversity in juries. One of the pillars of jury trials: that juries can and do follow jury instructions without question has won out over science which is not getting a fair airing in these hearings. Due to the last minute nature of jury panel challenges (ie. you don't know you need to challenge it until you see it) the scientific evidence is just not being presented to the courts. Extensive studies in the United States with actual jury questionnaires and mock juries studies in Canada show a significant effect in actual outcomes for racial minority accused when one or preferably at least two people from the same racial minority are on the jury. The studies are actually quite illuminating. Once you read them, it is difficult to take the judicial insistence that juries can leave their biases at the door once we tell them to as anything other than an article of faith rather than reason. In this sense, Canadian resistance to American style voir dires on jury selection appears to be perpetuating systemic injustice in order to defend an article of faith and efficiency in jury selection.
Here, the defence was able to win on appeal by aligning itself with the side that seeks to defend the current Canadian jury selection system at all cost. The trial judge sought to use their stand-aside power to obtain more gender diversity on a jury about to start a sexual assault case by standing aside men for the last two selections.
If you are looking to challenge the status quo on jury selection, I recommend the work and potentially evidence of Dr. Evelyn Maeder out of Carleton University: https://carleton.ca/fpa/2021/insight-grant-2021-race-and-jury-decision-making/ If you are looking at how, I recommend mounting a true s.15 argument with expert evidence of this type. Research why prior s.15 applications have failed in this area and you will find it was usually due to a lack of (actual jury [legally unavailable in Canada] and mock jury) studies of differential outcome. The science has come a long way since then.
 The issue on this appeal is whether s. 686(1)(b)(iv) of the Criminal Code, R.S.C. 1985, c. C-46, the curative proviso, should be applied to remedy the trial judge’s error in the use of his authority under s. 633 of the Code to stand aside two potential male jurors and replace them with female jurors, in order to create greater diversity in the jury. For the reasons that follow, I would not apply the proviso. The removal of the two prospective jurors, in the circumstances of this case, was prejudicial to the appellant and compromised the fairness of his trial. I would allow the appeal and order a new trial.
Background and the Trial Judge’s Ruling
 The first ten randomly selected jurors, not otherwise excused, were eight men and two women.
 Juror eleven, a male, had agreed to serve and was about to be sworn. The next member of the panel was also a male. At this point, the trial judge intervened. He observed that he had discretion to discharge jurors in order to maintain the reputation of the administration of justice and to ensure a fair trial and observed that the nature of the offence, sexual assault, “engages issues of interactionsbetween the genders, so to speak.”
 The trial judge invited counsel’s submissions on whether he should exercise his discretion to stand aside some of the male jurors for “better gender balance” on the jury. This exchange, and the submissions and ruling that followed, took place before the ten jury members who had already been sworn and the members of the jury panel waiting in the courtroom.
 Crown counsel at trial submitted that it would be appropriate “to have some gender equality on the jury and not have sort of one side more represented than the other”, not because the genders are “sides”, but because “it would be appropriate to try and balance that out under these circumstances.”
 The trial judge said that “as a general proposition, my view is the Court should try as best it can to select a jury that represents the community in which this alleged event is said to have happened.” He decided to stand aside the two male jurors, making the following ruling:
One of the ways in which the Government has left open the achievement of a representative and fair jury, and therefore, an impartial tribunal, is extending to trial judges the discretion to stand aside candidates if it is deemed in the interest of justice to do so. A jury is founded on the notion that members of the community, when polled more or less at random, will bring together such life experiences and perspectives as to be able to do justice to a given case. Obviously, the random nature of selection will fall short, each and every time, of precisely reflecting the community. But as a general proposition, my view is the Court should try as best it can to select a jury that represents the community in which this alleged event is said to have happened.
I am going, in the circumstances, to exercise my discretion, because it seems to me that a jury that is overwhelmingly represented by one gender so misses the representativeness mark that I ought to intervene, as Parliament has allowed me to consider doing.
 With that, the trial judge stood aside the prospective male juror eleven and the next male member chosen from the panel, so that the two women next in line could join the jury. The jury ultimately selected was therefore composed of eight men and four women.
 At the commencement of proceedings the next day, Tuesday, December 10, 2019, the Crown advised the trial judge that, after reconsidering her position on the effect of Bill C-75 on jury selection, she had concluded her submissions were not correct in law and she was concerned that she had “led the Court astray.” She submitted that s. 633 did not permit the trial judge to stand aside, on the basis of their gender, jurors who were otherwise fit to serve.
 After hearing further submissions, the trial judge affirmed his earlier ruling. ...
Before the amendments, the jurisprudence established that representativeness was established through random selection and the focus was on the process, not the result. The amendments removed the parties as participants in the jury selection process, fundamentally changing that process. The trial judge noted the Minister of Justice’s description of the purpose of the amendments, when introducing the legislation in Parliament, including to “strengthen the power of judges to stand aside some jurors in order to make room for a more diverse jury that will in turn promote confidence in the administration of justice.” In the circumstances of this case, the maintenance of public confidence in the administration of justice would be enhanced if the jury has “meaningful participation from females as well as males.”
R. v. Chouhan
 As mentioned, the trial judge was forced to grapple with the newly amended stand-aside power without the benefit of the Supreme Court’s guidance in Chouhan ... While the Supreme Court split on several issues, a majority upheld the amendments as constitutionally compliant and procedural in nature, and thus, the amendments applied retrospectively and to Mr. Chouhan. The Supreme Court delivered five sets of reasons: the joint reasons of Moldaver and Brown JJ. (with Wagner C.J. concurring), concurring reasons of Martin J. (with Karakatsanis and Kasirer JJ. concurring), concurring reasons of Rowe J., reasons dissenting in part of Abella J., and dissenting reasons of Côté J. The reasons as they apply to the limits of s. 633 of the Code, the amended judicial stand-aside power, are most relevant to this appeal and are discussed in detail in the analysis below.
Submissions on Appeal
 The appellant submits that the curative proviso should not be applied in this case because the appellant suffered real prejudice or a real risk of substantial prejudice by virtue of the trial judge’s decision to stand aside two male jurors in the presence of the ten already sworn jurors and members of the jury panel. The appellant submits that because the jury saw and heard defence counsel objecting to the trial judge’s decision to re-balance the jury, the risk of prejudice is too great: the jury would likely have seen it as an attempt by a male accused to preserve male dominance on the jury. The appellant submits that the trial judge’s instructions to the jury, which did not directly address this issue, would not have mitigated the damage done by this flawed selection process, and a negative impression was inevitable, especially in the minds of the female jurors who were empaneled immediately after witnessing the defence objection.
(1) Was the trial judge’s application of s. 633 a legal error?
 Before turning to the application of the curative proviso, I will briefly explain my conclusion that Chouhan establishes that the trial judge’s application of s. 633 of the Criminal Code was a legal error.
 At paras. 68 to 82 of Chouhan, Moldaver and Brown JJ., writing for themselves and Wagner C.J., clearly and emphatically rejected the argument, advanced by some of the interveners and accepted in the dissenting judgment of Abella J., that the stand-aside power could be used to “actively promote jury diversity”. While the purpose of the provision was “maintaining public confidence in the administration of justice”, that objective did not require achieving a jury that approximated the diversity of Canadian society. On the contrary, “the reasonable, informed observer would lose confidence in a jury selection process that requires trial judges to sacrifice the vital principle of randomness on the altar of diversity and select individual jurors merely on the basis of their race or other aspects of their identity”: at para. 81. At para. 47 of their reasons, they stated that their views were not obiter dicta, because they were necessary in order to respond to the argument of Abella J. that the constitutionality of the abolition of peremptory challenges would require the trial judge's vigorous exercise of challenges for cause and the stand-aside power.
 Rowe J. adopted the reasons of Moldaver and Brown JJ., ...
 Côté J., in dissent, nevertheless agreed with Moldaver and Brown JJ., who, she pointed out, spoke for the majority of the Court in concluding that s. 633 of the Code could not be used to “promote or enhance the diversity of the petit jury”: at para. 316.
 Martin J., writing for herself, Karakatsanis, and Kasirer JJ., disagreed with the approach of the majority to the stand-aside power....
 There has been some conflict in the jurisprudence of the Superior Court concerning whether the opinion of Moldaver and Brown JJ., which Wagner C.J. also signed, represents the opinion of a 5-4 majority of the Court. ...
 In contrast, in R. v. Smith, 2021 ONSC 8405, at paras. 14-21, Petersen J. found that there was no binding appellate authority on the scope of s. 633 of the Code. She came to this conclusion, she said, because only four judges (Wagner C.J., Moldaver, Brown, and Côté JJ.) expressly agreed that the stand-aside power under s. 633 could not be used to obtain jury diversity. ...
 Respectfully, I do not agree. ...
 The separate reasons of Rowe J. were delivered only for the purpose of expanding on an issue addressed by the reasons of Moldaver and Brown JJ. I read his decision as adopting the majority reasons in their entirety, subject only to his additional observations on that one issue. ...
 As I have pointed out, it is significant that Côté J., who agreed with Moldaver and Brown JJ. on the limits of the stand-aside power, expressly observed that their opinion represented the decision of the majority of the Supreme Court on that issue.
 I therefore conclude that Chouhan is binding on this court: the judicial stand- aside power, as amended, cannot be used to actively promote diversity on the petit jury. The trial judge erred by standing aside juror eleven and the next prospective member of the petit jury. The only issue, therefore, is whether this error can be cured by the proviso. [Emphasis by PJM]
(2) Should the curative proviso be applied?
 With respect to the second condition, the Supreme Court in Esseghaier stated that “in the context of applying s. 686(1)(b)(iv) to a procedural error in jury selection, the prejudice inquiry is focused solely upon the risk of depriving accused persons of their right, under s. 11(d) of the Charter, to a fair trial by an independent and impartial jury”: at para. 54. If the appellant establishes that a procedural error led to an improperly constituted jury, the onus shifts to the Crown to show, on a balance of probabilities, that the appellant was not deprived of their right to a fair trial by an independent and impartial jury.
 In Esseghaier, while the use of static triers was not correct in the circumstances, it was one of the two legally sanctioned methods for trying challenges for cause, and not something concocted outside the bounds of the Code. The risk of juror tainting was removed by excluding both sworn and unsworn jurors from the courtroom during the challenge for cause process. The procedure was implemented with care and attention, and it was apparent that the triers, having been properly instructed by the trial judge, took their duties seriously. A reasonable person would perceive both accused to have received a fair trial before an independent and impartial jury.
 The prejudice inquiry is at the crux of this appeal. There is no dispute that the Superior Court had jurisdiction here. I accept the appellant’s submission that the proviso cannot be applied because the jury selection process resulted in a breach of his s. 11(d) Charter right to a fair trial.
 As I have noted, in light of Chouhan, the use of the stand-aside authority to promote a gender-balanced jury was improper and an error of law. Unlike Esseghaier, the jury selection method adopted by the trial judge was not one approved by Parliament or sanctioned by the court – it was “concocted outside the bounds of the Criminal Code”, to use the language of Esseghaier.
 Quite apart from the fact that the entire process took place in the presence of ten sworn jurors and the remainder of the jury panel in the courtroom, the trial judge’s intervention in the process and interference with the principle of randomness would undermine the appellant’s confidence, and public confidence, in the administration of justice: see Chouhan, at para. 81.
Judges appreciate that all jurors, regardless of how they identify, take their oaths or affirmations and their duties very seriously, but in the circumstances of this case, an accused person could reasonably believe that the effect of the trial judge’s intervention would be to tip the scales against them.
 Finally, in this particular case, there is an even greater concern because the trial judge’s comments, the appellant’s submissions, and the trial judge’s initial ruling, which he later affirmed, took place in the presence of the ten sworn jurors and the remainder of the panel. The respondent acknowledges that it would have been preferable had the trial judge raised his concerns in the absence of the jury and had then invited submissions. As matters developed, the jury could reasonably have concluded that in objecting to the trial judge’s ostensibly reasonable suggestion in favour of “gender balance”, the appellant was opposed to diversityand was trying to “keep the deck stacked” in his favour with a predominantly male jury by excluding the two women who were ultimately selected.
 In the circumstances of this case, a reasonable person would not perceive that the appellant had received a fair trial before an independent and impartial jury. The trial judge’s actions were prejudicial to the appellant and a new trial is therefore necessary.
 For these reasons, I would allow the appeal and order a new trial.
[May 11, 2022] Air of Reality - Honest but Mistaken Belief in Consent [Michelle Crighton, Jo'Anne Strekaf, Kevin Feehan JJ.A.]
AUTHOR’S NOTE: The tendency of sexual interactions in criminal cases to be treated like a contract between parties requiring due attention to each detail sometimes leads to devastating outcomes for the accused. Here, the defence of honest but mistaken belief in consent was prevented from even being argued to a jury by a trial judge on the basis of a lack of an air of reality to the argument. The Court of Appeal unanimously overturned the conviction on the basis that the issue should have been left with the jury to decide. In so deciding they held that here the appellant took some steps to determine consent, the question of whether they were reasonable should have been left to the jury.
 The appellant was convicted by a jury of sexually assaulting the complainant. The primary issues at trial were consent and the defence of honest but mistaken belief in communicated consent. ...
 We agree with the appellant that the trial judge erred in law by finding there was no air of reality to the appellant’s claim of his honest but mistaken belief in communicated consent. It is not a defence to a charge of sexual assault that the accused believe that the complainant consented to the activity that forms the subject-matter of the charge where “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”: s 273.2 of the Criminal Code. A finding that "there is an air of reality" to a defence or that a defence "lacks an air of reality" expresses a legal conclusion about the presence or absence of an evidential foundation for a defence, and as such, whether or not there is an air of reality to a defence is a question of law, subject to appellate review: R v Cinous, 2002 SCC 29, para 55,  2 SCR 3.
 In assessing the air of reality to the defence of honest but mistaken belief in communicated consent in a sexual assault trial, the trial judge must consider “whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent”: R v Barton, 2019 SCC 33, para 121,  2 SCR 579. If there is some evidence, then it is for the jury to determine whether the Crown negatived the defence “which could be achieved by proving beyond a reasonable doubt that the accused failed to take reasonable steps”: Barton, para 123.
 The test to be conducted by a trial judge when determining whether there was “air of reality” to the defence that should be put to the jury was outlined in Cinous, at paras 53-54: ...
 The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. See Finta, supra; R. v. Ewanchuk, 1999 CanLII 711 (SCC),  1 S.C.R. 330. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. See R. v. Bulmer, 1987 CanLII 56 (SCC),  1 S.C.R. 782; Park, supra. Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. (emphasis added).
 The evidence of the complainant and that of the appellant diverged substantially as is often the case in sexual assault trials where the primary issue involves consent. In this case, the complainant recorded a portion of the encounter on her cell phone. The appellant’s evidence was that the complainant initiated performing oral sex on him. He asked if he could kiss her and she responded by undoing her belt and lowering her pants. When he began kissing her breasts she said “no”. He paused and looked up at her whereupon she responded by pulling his head back to her breasts. He then continued to kiss her breasts but stopped after her protests escalated. The complainant’s evidence was that he was the aggressor throughout, she was eventually able to access her cell phone to record what was taking place and he finally stopped after her verbal protests escalated.
 The trial judge concluded that there was no air of reality to the defence of mistaken belief in communicated consent on the appellant’s version of events because there was no evidence that he took “reasonable steps” to ascertain whether the complainant was consenting. First, relative to the appellant’s evidence that when he asked the complainant if he could kiss her, she undid her belt and lowered her pants, the trial judge said:
In those circumstances, I see no air of reality to an assertion that there has been any communication - verbal or physical - to the touching of the complainant's breasts.
Second, relative to the appellant’s evidence that when the complainant began protesting as he kissed her breasts, he lifted his head and looked at her, whereupon she pulled his head back to her breasts and continued to rub his hair, the trial judge said the following:
In the circumstances, it is my view that given a -- what I would suggest was a clear signification to the accused that there was a problem that needed to be resolved with respect to the complainant's consent, it was not open to him to simply continue even for a short period of time in his activities, and because he was on notice that there was a problem, he needed to do more than simply lift his head a bit for a period of time. ...
 In our view, where there was evidence that the appellant took some steps, the determination of whether those steps were “reasonable” in relation to the sexual activity that occurred was a matter that should have been left to the jury. We agree with the appellant the trial judge exceeded his role and usurped the jury’s fact-finding role in determining there was no air of reality to the defence in this case. Whether consent was communicated by words or conduct (or both) is highly contextual, and what is required will vary from case to case. Taking the defence evidence at its highest and assuming its truth, the appellant asserted that he took reasonable steps to determine if she was consenting and that her conduct was such that it communicated to him that she was consenting. He also asserted the circumstances confirmed that he understood what she meant. By refusing to put the defence to the jury, the trial judge effectively pre-empted the jury’s role of deciding “the substantive merits of the defence”, that is, what actually happened and from that determining whether the appellant had taken reasonable steps to ascertain consent.
 The appeal is therefore allowed and a new trial ordered.
[May 6, 2022] Sentencing: CSO for illegal gun possession [Doherty, M. Tulloch, and L. Favreau JJ.A.]
AUTHOR’S NOTE: Basically, the value of this ONCA decision is that they are doubling down on what they said Morris, 2021 ONCA 680. CSOs are available in the right circumstances for gun crimes despite the prevalence or non-prevalence of gun crimes in the local jurisdiction.
Introduction [ie. the rejected Conviction Appeal]
 The appellant was convicted of a firearms-related offence and possession of cocaine and marihuana. He was ultimately sentenced to 18 months imprisonment after being given 9 months credit for the time he had spent on restrictive bail terms prior to his conviction.
 At trial, the appellant admitted possession of the narcotics. He denied that he knew the firearm, a sawed off rifle, was in a backpack under a pile of clothing in his closet. The appellant further admitted that he was aware that ammunition for the sawed off rifle was in his jacket hanging in the same closet.
 The conviction appeal is dismissed.
The Sentence Appeal
 ... This was a difficult sentencing. The firearms offence was serious, however, there was much to be said in mitigation of the appellant’s personal blameworthiness and in favour of his rehabilitative potential.
 The trial judge ultimately imposed a net sentence of 18 months on the firearms charge, and a sentence of time served on the drug charges.
 In the course of her reasons for sentence, the trial judge said, at para. 31:
While it is well established that a conditional sentence can provide for general deterrence and denunciation, defence counsel acknowledged during submissions that it provides less denunciation and general deterrence than a sentence of equal length served in custody. For this reason, I view a conditional sentence as outside of the range affirmed by the Court of Appeal. This is particularly true in Toronto in late 2019 and early 2020, after a year when the city has been racked by gun violence. [Emphasis added.]
 We understand the trial judge to be saying that, even where the appropriate sentence is under two years imprisonment, making the conditional sentencing provisions potentially applicable, this court has held that the seriousness of gun offences precludes resort to a conditional sentence. With respect, this court has not made that pronouncement. In fact, in R. v. Morris, 2021 ONCA 680 (released after the trial judge’s reasons for sentence), this court recognized that conditional sentences may well be appropriate in cases like this one: Morris, at paras. 124-28, 180-81.
 ... In light of that error, it falls to this court to determine a fit sentence.
 We agree with counsel’s submissions. The material before the trial judge paints a very positive picture of the appellant. He is a young first offender with considerable potential. Circumstances beyond his control, some of which no doubt reflect systemic racism, diminish his moral culpability. On the record before the trial judge, he was a candidate for a conditional sentence.
 The evidence placed before this court makes an even stronger case for a conditional sentence. The offences took place over five years ago. Since then, the appellant has completed a culinary program through the Toronto District School Board and now works as a chef in a restaurant. He has become a father and lives with his fiancée and child. He has taken on significant childcare and household responsibilities. He has stayed out of trouble and has not been charged with any further offences.
 Given the circumstances of this offender, a conditional sentence on the firearms charge of two years less a day, to be followed by probation for two years, is a fit sentence. The sentence on the drug offences remains a sentence of time served.