LILLEY: Political meddling with jury selection could cause big problems

Expect more cases to have new trials ordered or appeals of convictions to become successful once new changes to the way juries are selected take place in the coming weeks.

The shocking news that the Ontario Court of Appeal ordered a new trial in the Via Rail terror plot case came down to one issue: How the jury was selected.

The Court of Appeal found the trial judge erred in choosing how the jury was selected based on a 2008 change brought in by the Harper government. Now lawyers are saying a change by the Trudeau government will result in more cases ending up in appeals court.

“We’re going to see more of this,” said criminal defence lawyer Dirk Derstine, who successfully argued for a new trial based on jury selection in the case of convicted murderer Christopher Husbands.

As part of a series of changes in how juries are chosen, it will now be up to a judge and a judge alone to decide if someone is fit to be on a jury. Previously fellow jurors or prospective jurors would decide if someone was believable when they said they could hear a case and decide on a verdict without bias or prejudice.

Now it will be up to a judge to make the determination for each juror and many defence lawyers do not like it.

Ottawa lawyer Michael Spratt worries the change will slow the process of jury selection down because judges are required to provide reasons for their decisions and he argues that could end up being the case here. He also questions the wisdom of the judge being involved in selecting the jury.

“The judge is the referee of the trial and having the ref pick one of the teams leaves questions,” Spratt said.

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