Law360 Canada (September 21, 2022, 6:22 AM EDT) -- Appeal by Azzi from his conviction on one count of sexual assault. Azzi was charged with two counts of sexual assault and one count of harassment of the female complainant. He elected trial by judge and jury. Jury selection commenced three months after the amendments to Bill C-75, concerning jury selection, came into effect on September 19, 2019. Among other things, Bill C-75 abolished preemptory challenges and added a new ground to s. 633 of the Criminal Code, pursuant to which a trial judge could stand aside jurors for reasons of maintaining public confidence in the administration of justice. The trial proceeded on the basis that those amendments were presumptively constitutional and had immediate application. During the jury selection process, the trial judge used his authority under s. 633 to stand aside two potential male jurors and replaced them with female jurors to create greater diversity in the jury. Azzi’s trial counsel objected at the time but the trial judge ultimately affirmed his ruling and the jury was composed of eight men and four women. The trial proceeded, and the jury found Azzi guilty of one count of sexual assault and not guilty of criminal harassment and the second count of sexual assault. He was sentenced to 30 months’ imprisonment. The Crown conceded that with the benefit of the Supreme Court’s decision in R v. Chouhan, the trial judge’s use of the amended stand-aside authority in this case resulted in legal error. However, the Crown submitted that the curative proviso could be applied to cure the jury selection error because Azzi was not deprived of his right to a fair trial by an independent and impartial jury and therefore suffered no prejudice. Azzi took the position that the curative proviso should not be applied in this case because he suffered real prejudice or a real risk of substantial prejudice by virtue of the trial judge’s decision to stand aside two male jurors in the presence of the 10 already sworn jurors and members of the jury panel....