The day after Ontario’s Court of Appeal upheld controversial changes to the jury selection process, a man convicted of second-degree murder in the beating death of an 82-year-old grandmother is planning to appeal his conviction.
In December, Sinbad Marshall, 25, was found guilty of the killing of Stella Tetsos during a break and enter on the evening of Nov. 9, 2015. Marshall was scheduled to be in court Friday for his sentencing, but the case was put over until March 6.
Defence lawyer Christopher Hicks, who’s representing Marshall, said his client will appeal the conviction after a separate ruling Thursday from the Court of Appeal upheld the constitutionality of legal changes made by the federal government to how juries are selected.
“Sinbad Marshall is an Indigenous young guy and his jury was composed of 11 white people and only one person of colour,” he told Global News. “I think we have a strong ground for appeal here.”
Thursday’s ruling centred around Pardeep Singh Chouhan, whose first-degree murder trial had reached the jury selection phase on the same day the changes laid out in Bill C-75 came into effect.
Chouhan’s lawyers said the new rules breached his rights to a fair trial and impartial jury.
Among the key changes was the government’s decision to remove what are called peremptory challenges, which allow both the Crown and defence lawyers to reject a specific number of potential jurors without giving a reason.
In the Chouhan decision, the court unanimously upheld the ban on peremptory challenges, but also ruled that if any accused had selected trial by jury before Sept. 19, they had a right to use the challenges during jury selection, even if the selection took place after that date.
Hicks said his client’s case applies to Thursday’s decision and he will be filing an appeal based on the racial composition of the jury.
“Mr. Marshall does have a ground for appeal and I think he will want to pursue it,” he said.
During the roughly six-week trial, Marshall told the jury he broke into the Tetsos home in Scarborough believing it to be empty. When he saw Tetsos, Marshall said he “made a bad decision and panicked” and punched her in the face but never meant to kill her.
Jurors heard some evidence about Marshall’s lengthy criminal record violence, including a conviction for aggravated assault, but did not hear he was on probation and bail when Tetsos was killed.
Criminal defence lawyer Daniel Brown said the Chouhan ruling could mean that upwards of 100 serious criminal cases where judges denied the use of peremptory challenges could require new trials.
“I had heard that in Toronto alone there were up to 20 cases that are potentially impacted,” Brown said.
Brown said that any case that is re-prosecuted following Thursday’s ruling will likely go to the front of the line, meaning other cases will face delays.
“Everyone else will have to take a back seat so that these cases can be accommodated in the system,” he said. “And all of these cases have a risk of potentially being thrown out for delay.
The jury selection process was changed by the Liberal government following outcry over the controversial acquittal of Gerald Stanley, who was charged with second-degree murder in the killing of Colten Boushie, a 22-year-old Indigenous man.
The jury in Stanley’s case had no Indigenous members, and the federal government said the changes in Bill C-75 aimed to make juries more representative.
A spokesperson for the Ontario Ministry of the Attorney General said the Crown is reviewing the ruling.
“As a new trial has been ordered and this matter remains before the Court, it would be inappropriate to comment further,” the spokesperson said.
–With files from the Canadian Press