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