As Ontario’s courts grapple with the possibility of having to retry dozens of cases due to a ruling this week on jury-selection changes, critics are slamming the federal and provincial governments for courtroom chaos they say was avoidable.

Potentially dozens of criminal convictions, including some for murder and sexual assault, have been thrown into jeopardy and may be headed for costly and lengthy new trials, following a Thursday ruling from the Ontario Court of Appeal on the federal changes to jury selection.

Among the changes, which took effect Sept. 19, was the removal of what were known as peremptory challenges.

These allowed the Crown and defence in a criminal case to each reject a certain number of potential jurors without having to give an explanation.

The top court upheld the ban on peremptory challenges as constitutional.

But it found that an accused person who opted for a trial by jury prior to Sept. 19 still had the right to use peremptory challenges, even if jury selection only took place after Sept. 19.

The ruling will potentially affect dozens of jury cases that have been heard since Sept. 19, including some that continue, in which peremptory challenges had been denied during jury selection.

Within hours of the ruling being released Thursday, judges at Toronto’s Superior Court pulled the plug on two cases — one dealing with murder charges, the other sexual assault — by declaring mistrials.

The ruling may also affect the high-profile College Street Bar sexual assault trial, in which the bar’s owner and manager were convicted in November of sexually assaulting and drugging a 24-year-old woman over several hours at the downtown Toronto establishment.

One of the convicted men in the case, Gavin MacMillan, indicated in his notice of appeal, filed on the same day the Court of Appeal released its ruling, that he is seeking to have his conviction overturned based on the trial judge’s refusal to allow him peremptory challenges during jury selection.

The vice-president of the Criminal Lawyers’ Association, Daniel Brown, said the potential for dozens of retrials could have been avoided if the federal government had explicitly stated in its legislation that the changes to jury selection were to only apply to new cases after Sept. 19.

Brown also said the provincial government, which is responsible for prosecuting most criminal offences in Ontario, could have asked the Court of Appeal long ago in what is known as a reference case for legal guidance on whether the changes apply to continuing cases or, prospectively, to new cases.

Neither of those things happened. Neither the attorney general of Canada, David Lametti, nor the attorney general of Ontario, Doug Downey, were available for interviews Friday to offer explanations. (Downey told reporters at a media availability that the ministry was reviewing the ruling and he couldn’t comment further.)

“I think the drafters of the legislation failed to make their intentions clear in the drafting process. This isn’t the first piece of legislation that’s ever been written where something is intended to apply only prospectively. A simple indication of that in the legislation would have resolved all of these problems,” Brown told the Star.

“This could have been easily resolved with a reference case (by the Ontario government) to the Court of Appeal, with a single question put to them: Is this legislation prospective or retrospective? And if the answer was that it was only prospective, then they would have known on the front-end how to address all of these cases.

“None of this would have happened if the Ontario government had taken a more proactive approach to this litigation.”

Ontario NDP attorney general critic Gurratan Singh said Downey must explain why the government didn’t seek guidance earlier from the Court of Appeal. He also said the government must immediately come up with a plan to handle a possible influx of dozens of cases sent back for retrials, in what is already an under-resourced court system handling hundreds of cases at the moment.

“We know that this has a potential to create further backlog in an already backlogged system and that’s why I was really disheartened today that there was silence from the attorney general on this matter,” Singh said. “We don’t need silence on this matter. We immediately need a plan put forward on how the attorney general is going to address this further backlog in a manner that doesn’t revictimize victims.”

The chaos that Ontario’s court system now finds itself in can trace its roots back to early 2018, when former federal justice minister Jody Wilson-Raybould introduced Bill C-75, the Liberal government’s massive piece of legislation revamping the justice system. (Wilson-Raybould did not respond to the Star’s requests for comment Friday.)

The elimination of peremptory challenges, included in Bill C-75, was sparked by the Gerald Stanley trial in Saskatchewan, in which Stanley was acquitted of second-degree murder in the death of Colten Boushie, an Indigenous man. Media reports at the time said the defence had been using peremptory challenges to reject any potential juror who appeared Indigenous.

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A number of legal organizations which appeared before the House of Commons’ justice committee or which submitted briefs prior to Bill C-75 becoming law had argued against abolishing peremptory challenges completely. Some expressed concern that the government was moving too swiftly on that issue and that further study was warranted, with a view of reforming that aspect of jury selection, not scrapping it completely.

Some groups highlighted that peremptory challenges were also often used by the defence in trying to craft a more diverse jury when the accused person was racialized or Indigenous.

“By removing peremptory challenges, it will be more difficult to remove jurors who are suspected of having a bias, including a racial bias, which is arguably what this amendment was aiming to prevent,” the Federation of Ontario Law Associations said in its brief to the committee.