11/12/2015 16:22 EST | Updated 11/12/2016 00:12 EST

Judge's jury-selection error leads to new second-degree murder trial

TORONTO — Two people acquitted of first-degree murder but found guilty of second-degree murder have won a new trial because of a judge's decision related to selection of their jury.

The ruling comes in an appeal Thursday in the case of Chad Noureddine and Richard Sheridan, who were convicted in November 2010 after a trial presided over by Superior Court Justice Eugene Ewaschuk.

Court records show the men took part in a brutal and ultimately fatal beating of a third man, Andre Pelliccione, in Toronto in August 2008. While the jury acquitted them of first-degree murder, it convicted them of the included offence of second-degree murder.

Under the Criminal Code, two people must be given the task of deciding whether a prospective juror is biased and therefore can't serve on the panel. Those two people are the last two jurors already selected. If no one has yet been chosen, the judge appoints two people until there are two sworn jurors. The result is what is called "rotating triers" to describe the process.

A single exception to the rule allows a presiding judge to exclude all jurors during the challenge process at the request of the accused. In that case, the Criminal Code mandates the court appoint two people — who do not get to serve on the jury — to decide the juror challenges. They are called "static" triers.

At trial, Sheridan's lawyer asked for prospective jurors to be excluded during the challenge-for-cause process so that they would not be affected by what they heard. The lawyer — as did Noureddine's counsel — made it clear they wanted rotating triers used to decide the challenges for cause.

Despite the request, Ewaschuk decided that static triers would be used.

On appeal, lawyers for the convicted men argued Ewaschuk had violated the Criminal Code resulting in an improperly constituted jury. They maintained the judge's ruling created the appearance of unfairness and prejudice.

While the prosecution agreed the judge was wrong to use static triers, she argued the error was essentially harmless.

In quashing the conviction, the Appeal Court noted the use of rotating triers has been a feature of the Canadian jury-selection process since at least 1892 and that a properly constituted jury is critical to the entire process.

While it's impossible to determine whether the accused suffered any actual harm from what happened, the Appeal Court said, they nevertheless deserved a new hearing.

"The prejudice in this case lies in the negative effect the improper use of static triers, over the express objection of counsel, had on the appearance of the fairness of the proceedings and the due administration of justice," the Appeal Court wrote.

The court also rejected the prosecution's contention that it should set aside the acquittals on first-degree murder if it decided to order a new trial on the second-degree murder conviction.

The judge's jury error, the Appeal Court found, had no impact on any of the prosecution's rights or on the acquittals.

Colin Perkel, The Canadian Press