Dozens of criminal convictions in Ontario, including for murder and sexual assault, could be in jeopardy and sent for costly retrials following a ruling Thursday by the province’s top court on jury selection changes.

Within hours, the impact of the ruling was being felt in Toronto Superior Court as ongoing jury trials were stopped and lawyers scrambled behind closed doors before a judge to reschedule cases.

“This is a tragedy for everyone in the justice system, including the victims of crimes and the defendants who need to go through this process again,” said Daniel Brown, vice-president of the Criminal Lawyers’ Association.

The ruling will undoubtedly spark chaos in an already clogged and under-resourced criminal justice system. Lawyers expressed concern Thursday that cases sent back for retrials will need to be quickly accommodated among hundreds of ongoing cases so that they aren’t tossed for violating a person’s constitutional right to a trial within a reasonable time.

The Court of Appeal had been tasked with ruling on the constitutionality of changes made to the jury selection process that took effect on Sept. 19. Among them, the federal government abolished what are known as peremptory challenges, which allowed both Crown and defence lawyers to reject a specific number of potential jurors without having to give a reason.

On Thursday, the Court of Appeal unanimously upheld the constitutionality of the ban on peremptory challenges. However, the court also ruled that if an accused person opted for a trial by jury before Sept. 19, they had a right to use peremptory challenges during jury selection, even if it took place after that date.

In making that ruling, the Court of Appeal ordered a new Toronto murder trial for Pardeep Singh Chouhan. Even though he had opted for a trial by jury before Sept. 19, he was denied the use of peremptory challenges by Justice John McMahon as jury selection was set to start the day the changes took effect.

Criminal defence lawyers say dozens of concluded cases in which judges denied the use of peremptory challenges are now at risk of being overturned and sent back for costly and lengthy new trials, while some ongoing cases will need to be stopped and started again at a later date.

Just hours after the ruling was released, Toronto Superior Court Justice Faye McWatt pulled the plug on a sexual assault trial that began Monday in front of a jury. A new trial was set for April, when the accused will be able to use peremptory challenges in jury selection.

The Crown was also one day away from concluding their case in the second-degree murder trial of Peter Johnson — his third retrial — when a mistrial was declared Thursday afternoon. The jury was dismissed after hearing two weeks of evidence about the fatal shooting of Jeffrey Lewis, 31, at a nightclub in 2006.

A new jury could be picked as early as next week, or the case could resolve, said Johnson’s defence lawyer Anthony Robbins. The defence could also bring a motion to have the charge stayed rather than proceed with what would now be a fourth trial for no fault of the accused.

Cases at risk of being retried following the ruling include the high-profile College Street Bar case, 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 establishment.

Another is that of Sinbad Marshall, convicted in December of second-degree murder in the beating death of 82-year-old Stella Tetsos. Marshall’s lawyer, Christopher Hicks, told the Star he’ll be advising his client to appeal based on the Chouhan ruling.

Hicks had wanted to use peremptory challenges during jury selection, but was denied by the judge. He pointed out that the challenges would have been beneficial to his client.

“It was not the jury I would have chosen if I had the challenges,” Hicks said. “It was Mr. Marshall, a young Indigenous man, accused of murdering a white woman, and the jury was composed of 11 white people and only one person of colour, and there were 10 women and only two males. So the jury was flawed, in my view.”

The Crown would not comment on Thursday’s ruling, other than to say it is reviewing it. The Crown has 60 days to decide whether it wants to seek leave to appeal the ruling to the Supreme Court of Canada.

The jury selection changes were first proposed by the federal government in March 2018 as part of Bill C-75, its massive legislation revamping the criminal justice system. The changes were sparked by the Gerald Stanley trial in Saskatchewan, in which Stanley was acquitted by a jury of second-degree murder in the shooting death of Colten Boushie, an Indigenous man. Media reports at the time said the defence had been using peremptory challenges to keep anyone who appeared Indigenous off the jury.

But what the legislation was silent on was whether the changes applied retrospectively — to cases already in the system before the bill took effect — or prospectively to new cases after Sept. 19.

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On Thursday, the Court of Appeal found the change to peremptory challenges should apply prospectively.

“In my view, an amendment which significantly diminishes an accused’s ability to affect the ultimate composition of the jury chosen to try the accused negatively impacts on the accused’s statutory right to trial by jury as it existed prior to the amendment,” Justice David Watt wrote for the three-judge panel.

“For the purposes of determining the temporal scope of the legislation, this loss of one aspect of the accused’s right to participate in the selection of the jury affects in a negative way the accused’s right to trial by jury as it existed before the amendment. Therefore, the amendment is presumptively prospective. Nothing in the language of the amendment or in the material placed before this court rebuts that presumption.”

The Court of Appeal noted that judges across the country had split on this question. Watt wrote that most cases in Ontario had found the amendments were retrospective and would apply to cases like Chouhan, while most judges outside Ontario ruled the amendments were prospective.

Lawyers say this could have all been avoided if the federal government had explicitly stated in the legislation that the changes applied only to new cases.

“The section itself and the question about whether or not it’s prospective or retrospective was not an easy question to answer, and would have served the public better if the legislation had been clearer about what intention Parliament wanted to have,” said Chouhan’s lawyer, Dirk Derstine.

Derstine said his office alone has four cases, including Chouhan, that may be affected by Thursday’s ruling.

The federal department of justice has repeatedly maintained in responses to media that there was no need to be specific in the legislation, as existing case law makes clear that the changes would only apply prospectively.

A spokesperson for federal Justice Minister David Lametti told the Star that they are reviewing the Chouhan ruling, and pointed out that Bill C-75 was the result of extensive consultations. (The bill was introduced by Lametti’s predecessor, Jody Wilson-Raybould.)

“Juries play a critical role in our justice system and Canadians must have confidence that they reflect the communities they serve,” said spokesperson Rachel Rappaport. “Through C-75, our government made important changes to the jury selection process, including addressing long-standing concerns that Canadians of minority backgrounds were being unfairly excluded by the previous process.”

Unlike the federal government, the provincial Crown — which is responsible for prosecuting most criminal offences in Ontario — took the position that the changes were retrospective.

Brown, with the Criminal Lawyers’ Association, said Ontario should have sought clarity from the Court of Appeal long ago, before the issue got out of hand, using a reference case, in which the government seeks legal guidance from the court.

“It could have saved a tremendous amount of resources and the challenges that come with having to reprosecute serious and complex criminal cases,” he said.

The Ministry of the Attorney General declined to comment when the Star asked why it didn’t seek clarity from the top court.