Change was ‘procedural’ and can apply retrospectively, majority finds in 7/2 decision
Legislative changes made to the jury selection process in 2019 were constitutional, and a procedural change that applies retrospectively, the Supreme Court of Canada said today in reasons expanding on a judgement delivered from the bench in October.
As a result of the decision in R. v. Chouhan, “I would say that while peremptory challenges are now a dead letter in Canada, the law will certainly continue to evolve on what procedures will replace them,” says Dirk Derstine, a partner in Derstine, Penman in Toronto and counsel for the respondent in the case.
“I think that it’s clear that procedures like the stand aside and the challenge for cause will be stronger; exactly how strong they’ll become will likely need another decision from the Supreme Court.”
On September 19, 2019, Bill C-75 -- An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25 -- came into force and modified the jury selection process under the Criminal Code by eliminating peremptory challenges and empowering trial judges to decide challenges for cause. The respondent, Pardeep Chouhan, was charged with first degree murder, and jury selection for his trial was scheduled to begin on the same day Bill C-75 came into effect.
Prior to the jury selection starting and Bill C-75 coming into force, Chouhan brought a constitutional challenge to the Criminal Code amendments, arguing they infringed his rights under the Canadian Charter of Rights and Freedoms. In the alternative, he submitted that, even if constitutionally valid, the amendments should not apply retrospectively.
The Ontario Superior Court of Justice dismissed the constitutional challenge, finding that the amendments did not infringe any Charter rights, affected only procedural matters, and could be given retrospective effect. The jury was therefore constituted according to the new process, and Chouhan was found guilty of first degree murder by the jury.
The Ontario Court of Appeal affirmed the constitutional validity of the amendments and agreed that the change to challenges for cause could apply retrospectively. However, it ruled that the elimination of peremptory challenges should not apply retrospectively to all pending cases, as it affected an accused’s substantive right to trial by jury. It therefore found that this amendment should not have applied to the selection process in Chouhan’s case, and that the jury was improperly selected. It overturned the conviction and ordered a new trial.
The Crown appealed, and the respondent cross-appealed on the issue of the constitutional validity of the Criminal Code amendments.
The Crown’s successful appeal before the Supreme Court means the respondent’s conviction for first-degree murder has been restored.
Concerns regarding peremptory challenges
Two types of challenges were traditionally permitted in jury selection in a criminal trial: peremptory challenges, in which a prospective juror can be dismissed without explanation, and challenges for cause, which require specific grounds. Section 634 of the Criminal Code allowed the Crown and the accused a fixed number of peremptory challenges each, depending on the nature and seriousness of the offence.
Peremptory challenges had been subject to some criticism for years but fell under especial scrutiny following the decision in R v. Stanley, 2018 SKQB 27. In this case Gerald Stanley, a white Saskatchewan farmer, was acquitted of murder and manslaughter in the fatal shooting of Colten Boushie, a young Cree man, on Stanley’s property. The accused was seen to have used at least four peremptory challenges to exclude prospective jurors who were visibly Indigenous, resulting in an all-white jury. This case led to the amendments contained in Bill C-75.
In its decision in Chouhan, the Ontario Court of Appeal noted that eliminating peremptory challenges from the Criminal Code was intended to “address the underrepresentation of Indigenous persons on juries and concerns that peremptory challenges were being used in a discriminatory manner in the selection of juries.”
In their joint reasons for judgement in Chouhan, Supreme Court Justices Michael Moldaver and Russell Brown wrote that “It is not possible to trace the impact of peremptory challenges on the verdict. More critically, peremptory challenges sat uneasily with other aspects of jury selection. They undermined the randomness of jury selection, a significant guarantor of jury independence and impartiality.”
“They also had a darker side which allowed for practices born of prejudice and stereotypes, which had palpable and well-documented effects on the composition of juries. Indigenous communities, in particular, have witnessed their disturbing effects.”
Breakdown of decision
The decision was 3-3-1-1-1, with a 7-2 split on the result. Chief Justice Richard Wagner concurred in the joint reasons; there were also two sets of concurring reasons, reasons dissenting in part, and dissenting reasons.
“The court has been trying to cut down on decisions like this, and this is certainly one of those very divided ones,” says Derstine. “Every judgment has its eventual result, and it’s easy to figure out who won and who lost, but the various different sub-issues within the context of the appeal are subject to shifting and complicated majorities,” he adds. “There are some interesting principles going forward from this.”
The majority found the amendments abolishing peremptory challenges constitutional, and dismissed the respondent’s cross appeal. The jury regime continues to provide justice, it found, through the randomness of the selection process, challenges for cause, and the trial judge’s discretion to “stand aside” a juror for the purpose of maintaining public confidence in the administration of justice. These are safeguards to the right to a fair trial under s. 11(d) of the Charter.
Contrary to the Ontario Court of Appeal’s view, the majority found that the elimination of peremptory challenges was purely procedural in nature, and so can have a retrospective application. As such, this change was properly applied to Chouhan’s trial and to the selection of his jury, which correctly followed the new process in disallowing peremptory challenges.
Protections for the defendant begin long before jury selection, the majority noted, and provincial authorities work to provide a broad cross‑section of society to serve as jurors.
Concurring reasons by Justice Sheilah Martin, with Justices Andromache Karakatsanis and Nicholas Kasirer agreeing, and by Justice Malcolm Rowe supported those reasons while expanding or differing on certain issues. Justice Martin disagreed with the majority reasons on the approach to the enhanced stand-aside power of judges under s. 633 of the Criminal Code, and the scope of questioning on challenge for cause.
Justice Rosalie Abella dissented in part, finding that the amendments were constitutional but should not have been applied to Chouhan’s trial because they had affected his substantive rights under the Charter, and therefore should have applied to future trials only rather than those that were pending or ongoing. She would have dismissed the Crown’s appeal and the respondent’s cross-appeal.
Dissenting in whole from the majority, Justice Suzanne Côté found the Criminal Code amendments to abolish peremptory challenges did breach the Charter, and would have dismissed the Crown’s appeal but allowed the cross-appeal.
Diversity and randomness
While Justices Moldaver and Brown suggested that the best way of achieving jury diversity was through the randomness of selection, Justices Abella and Côté disagreed with that, says Derstine. Justice Martin also cautioned again placing undue weight on its importance.
Justice Côté also addressed the question of structural imbalances in jury selection procedures in her reasons, “which, by and large, are well-established,” Derstine adds.
“It’s easy to find people who live in single-family houses on leafy streets, but it's not so easy to find more shifting groups like marginalized people, homeless people, new immigrants,” and Indigenous and other racialized peoples.
