R. v. Azzi

R. v. Azzi Collection Decisions of the Court of Appeal Date 2022-05-10 Neutral citation 2022 ONCA 366 Docket numbers C68335 Judges Strathy, George R.; Coroza, Steve A.; George, Jonathon C. Subject Criminal Decision Content WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Azzi, 2022 ONCA 366 DATE: 20220510 DOCKET: C68335 Strathy C.J.O., Coroza and George JJ.A. BETWEEN Her Majesty the Queen Respondent and Ziad G. Azzi Appellant Douglas Baum and Samantha Robinson, for the appellant Andreea Baiasu, for the respondent Heard: March 15, 2022 by video conference On appeal from the conviction entered on December 19, 2019 by Justice Kevin B. Phillips of the Superior Court of Justice, sitting with a jury. Strathy C.J.O.: [1] 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[1] 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 [2] The appellant was charged with two counts of sexual assault and one count of harassment of the female complainant. He elected trial by judge and jury. [3] Jury selection for the appellant’s trial commenced on Monday, December 9, 2019, three months after the amendments to Bill C-75 concerning jury selection came into effect on September 19, 2019. Among other things, Bill C-75 abolished peremptory challenges and added a new ground to s. 633, pursuant to which a trial judge can stand aside jurors “for reasons of … maintaining public confidence in the administration of justice”. The trial proceeded on the basis that these amendments were presumptively constitutional and had immediate application. [4] The first ten randomly selected jurors, not otherwise excused, were eight men and two women. [5] 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 interactions between the genders, so to speak.” [6] 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. [7] 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.” [8] The appellant’s trial counsel objected, submitting that with the legislative elimination of peremptory challenges, the trial judge had no option to do what he was proposing. [9] 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. [10] 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. The accused was then put in the charge of the jury and the trial judge gave his preliminary instructions, after which the jury was excused until the following Wednesday, while the trial judge and counsel addressed evidentiary issues. [11] 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. [12] The appellant’s trial counsel reiterated his objection on the basis that s. 633 contemplates the dismissal of jurors based on “reasonable considerations” of the jurors’ personal circumstances, but that “dismissing male jurors in favour of female jurors on a sex assault trial” was a reversible error. [13] After hearing further submissions, the trial judge affirmed his earlier ruling. There was no constitutional challenge to the amendments, and he presumed them to be constitutionally valid. He found that the removal of the peremptory challenge mechanism so changed the jury selection regime that the prior state of the law was no longer operable. 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.” The trial judge said the case required a gender balance, given the nature of the evidence, the degree to which the verdict would hinge on the assessment of personal communications, and the need to avoid twin-myth reasoning. He added that men and women experience life differently when it comes to sexual behaviour. Thus, in his view, s. 633 could extend discretion to intervene in the jury selection process to ensure a gender-balanced jury. [14] The trial proceeded. The jury found the appellant guilty of one count of sexual assault and not guilty of criminal harassment and the second count of sexual assault. He was sentenced to 30 months’ imprisonment. R. v. Chouhan [15] Unfortunately, the trial judge did not have the benefit of the decision of the Supreme Court of Canada in R. v. Chouhan, 2021 SCC 26, 459 D.L.R. (4th) 193, at the time he made his ruling. Although he was referred to the Superior Court decision in Chouhan, he was not referred to the decision of Boswell J. in R. v. Campbell, 2019 ONSC 6285, 59 C.R. (7th) 443, which was released on November 25, 2019, only two weeks before the commencement of the trial. There, Boswell J. had refused to exercise the stand-aside power to increase gender diversity on the jury, because, in his view, “the discretion to stand aside prospective jurors for the purpose of favouring others with particular characteristics is fraught with problems and ought to be exercised only in rare cases. This is not such a case”: Campbell, at para. 16. Boswell J. noted, among other things, that standing aside prospective jurors will not necessarily enhance fairness and could make the selection process appear unfair. The selective use of stand-asides could amount to tinkering with the process and undermine the principles of participation, representativeness, impartiality, and consistent and equal application, which are core features of the jury selection process. It would also be largely unworkable when employed to enhance representativeness. He concluded, at para. 105: In my view, the reasonable and informed public has no less confidence in female jurors than they do in male jurors. The randomized process currently used to compile jury rolls is already “gender blind”. A gender-balanced petit jury is neither a constitutional imperative, nor required to maintain public confidence in the administration of justice. This is not, in other words, one of the rare cases that might justify the use of stand-asides to enhance the diversity, fairness or competence of the jury. [16] 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. In that case, Mr. Chouhan was scheduled to select a jury on September 19, 2019, the same day Bill C-75’s amendments to the jury selection process came into force. He challenged the Code amendments abolishing peremptory challenges on the basis that they violated his Charter rights and argued in the alternative, if constitutional, they should only apply prospectively. 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 [17] The respondent conceded that with the benefit of the Supreme Court’s decision in Chouhan, the trial judge’s use of the amended stand-aside authority in this case resulted in legal error. The focus of oral submissions was on the application of s. 686(1)(b)(iv) of the Criminal Code, namely, whether the curative proviso could cure the error. [18] 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. [19] The respondent submits that the curative proviso can be applied to cure the jury selection error because the appellant was not deprived of his right to a fair trial by an independent and impartial jury and, consequently, suffered no prejudice. A reasonable observer, fully informed of the recent legislative changes to the jury selection rules, would have interpreted defence counsel’s objection as based on legal principles rather than on the identity of the particular jurors who were ultimately chosen to sit or an attempt to preserve a male-dominated jury. That reasonable, well-informed observer would appreciate the nature of this error, being a legal one, made plausibly and in good faith in relation to a novel statutory provision, rather than capricious behaviour on the part of the trial judge. There was no Crown misconduct that would raise a concern of unfairness to the accused. Analysis (1) Was the trial judge’s application of s. 633 a legal error? [20] 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. [21] 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. [22] Rowe J. adopted the reasons of Moldaver and Brown JJ., writing separately on the concern that peremptory challenges and other rules of jury selection should not be constitutionalized under s. 11(d) and (f) of the Canadian Charter of Rights and Freedoms: at paras. 124, 145. [23] 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. [24] Martin J., writing for herself, Karakatsanis, and Kasirer JJ., disagreed with the approach of the majority to the stand-aside power. While Martin J. would have preferred not to address the issue at all, she observed that the practical challenges associated with using the stand-aside authority to enhance jury diversity should not be overstated: at paras. 105, 111-18. [25] 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. The respondent Crown supports the interpretation that the judgment is binding. [26] Two post-Chouhan Superior Court decisions reflect the conclusion that five of nine members of the Supreme Court “proposed limits on the stand aside power, holding that it could not be used to secure a representative petit jury”: R. v. Bhogal, 2021 ONSC 4925, 73 C.R. (7th) 351, at paras. 5-6; R. v. Stanley, 2021 ONSC 6110, at para. 29. [27] 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. In her view, Rowe J.’s adoption of the majority’s reasons was limited to his agreement with their conclusion that the abolition of peremptory challenges was constitutionally valid and applied retrospectively. Petersen J. concluded, therefore, that Rowe J.’s adoption of the reasons of Moldaver and Brown JJ. “does not, however, necessarily extend to the obiter comments that they made about the restrictive use of the stand aside mechanism under s. 633”: at para. 19. [28] Respectfully, I do not agree. To begin with, as noted earlier, Moldaver and Brown JJ. made it clear, at para. 47 of Chouhan, that their observations on s. 633 were not obiter as they went to the heart of Abella J.’s argument that the constitutionality of the abolition of peremptory challenges depends upon trial judges exercising their authority in line with the Charter. Moreover, their observations were necessary to explain why the gap left by the abolition of peremptory challenges could be addressed by other means, to resolve concerns about juror partiality and bias. They noted, however, that it was necessary to address the limits of the amended stand-aside power. [29] 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. Given the majority’s rebuttal of the assertion of Martin J. that the stand-aside issue was unnecessary to the conclusion, and the clear disagreement on the issue, I would find it surprising that Rowe J. would have said nothing about the stand-aside issue had he disagreed with the majority or had intended to ignore the issue. [30] 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. [31] 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. (2) Should the curative proviso be applied? [32] The curative proviso is as follows: 686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, 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; [33] The leading case on the scope and application of the curative proviso is the decision of the Supreme Court of Canada in R. v. Esseghaier, 2021 SCC 9, 454 D.L.R. (4th) 179. The Supreme Court considered whether the proviso could be applied to cure procedural errors that occurred during the jury selection process – in that case, the process for trying challenges for cause, using either rotating triers or static triers. Specifically, whether the trial judge had discretion to exclude prospective, unsworn jurors from the courtroom where rotating triers were being used. The trial judge held that he had no authority to exclude unsworn jurors when the rotating trier process was being used, and even if he had discretion to exclude the jurors, he would not do so. [34] This court found that the trial judge had common law authority to exclude the unsworn jurors and he should have done so, with the result that the jury had been improperly constituted and the error could not be cured by the proviso: 2019 ONCA 672, 57 C.R. (7th) 388, rev’d 2021 SCC 9, 454 D.L.R. (4th) 179. [35] The Supreme Court allowed the Crown’s appeal, holding that the curative proviso could be applied to procedural errors in jury selection, provided the conditions of s. 686(1)(b)(iv) had been met: (1) the trial court had jurisdiction over the offence; and (2) there was no prejudice to the accused. Both conditions were met in that case. While the procedure used was “technically incorrect”, it was one of two alternatives identified by Parliament to ensure the constitutional right to a fair trial by an independent and impartial jury. [36] With respect to the first condition, the Supreme Court made it clear that “jurisdiction” refers to the trial court’s jurisdiction to try the subject-matter of the offence in accordance with the relevant provisions of the Code. [37] 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. [38] 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. [39] In R. v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, which was decided after Esseghaier, this court considered, among other issues, the nature of the “prejudice” inquiry. The appellant alleged his s. 650(1) right to be present at his trial had been violated when critical and substantive issues were discussed and resolved by email between the judge and counsel. He argued that his exclusion created both actual prejudice and the appearance of unfairness. The court ultimately disagreed, specifically concluding the appellant was not prejudiced in this case: at paras. 61-65. Watt J.A., speaking for the court, observed as follows, at paras. 64-65: If a reviewing court is satisfied that what occurred was a procedural error and that the trial court had jurisdiction over the offence of which the appellant was convicted, the proviso inquiry turns its focus to the issue of whether the appellant suffered “no prejudice”: Esseghaier, at para. 50. The precise reach of the proviso in section 686(1)(b)(iv) is without clear definition: Esseghaier, at paras. 51-53. However, it has been held that the term “prejudice” encompasses at least: i. prejudice to the ability of an accused to properly respond to the case for the Crown and to receive a fair trial; and ii. prejudice to the appearance of the due administration of justice. See, E. (F.E.), at para. 33. Whether section 686(1)(b)(iv) will hold harmless the procedural irregularity requires a close examination of all the circumstances including but not only the factors listed in Simon, at para. 123; E. (F.E.), at para. 36. The standard we are to apply to determine the result of the prejudice inquiry under section 686(1)(b)(iv) has not yet been authoritatively settled: Esseghaier, at para. 52. However, an appellant is not required positively to demonstrate prejudice to foreclose the application of the proviso. If the Crown satisfies the appellate court that the procedural error caused the appellant no prejudice, the proviso is available to dismiss the appeal. [40] 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. [41] 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. [42] 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. [43] Given the nature of the charge, a sexual assault allegedly perpetrated by a man against a woman, the appellant could have concluded that removing two men from the jury and replacing them with two women made it more likely that he would be convicted. 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. [44] 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 diversity and was trying to “keep the deck stacked” in his favour with a predominantly male jury by excluding the two women who were ultimately selected. [45] 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. Disposition [46] For these reasons, I would allow the appeal and order a new trial. Released: May 10, 2022 “G.R.S.” “George R. Strathy C.J.O.” “I agree. Coroza J.A.” “I agree. George J.A.” [1] Section 633, as amended effective September 19, 2019 by the enactment of Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, now reads: “The judge may direct a juror who has been called under subsection 631(3) or (3.1) to stand by for reasons of personal hardship, maintaining public confidence in the administration of justice or any other reasonable cause.” The underlined words were added by the amendment.