R. v. Chouhan

R. v. Chouhan
Collection
Supreme Court Judgments
Date
2021-06-25
Neutral citation
2021 SCC 26
Report
[2021] 2 SCR 136
Case number
39062
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Ontario
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136
Appeal Heard and Judgment Rendered: October 7, 2020 Reasons for Judgment: June 25, 2021 Docket: 39062
Between: Her Majesty The Queen Appellant/Respondent on cross-appeal
and
Pardeep Singh Chouhan Respondent/Appellant on cross-appeal
- and -
Attorney General of Canada, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Alberta, Aboriginal Legal Services Inc., Association québécoise des avocats et avocates de la défense, David Asper Centre for Constitutional Rights, Canadian Association of Black Lawyers, Canadian Muslim Lawyers Association, Federation of Asian Canadian Lawyers, South Asian Bar Association of Toronto, Advocates’ Society, Defence Counsel Association of Ottawa, Criminal Lawyers’ Association (Ontario), Debbie Baptiste and British Columbia Civil Liberties Association Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Joint Reasons for Judgment: (paras. 1 to 104)
Moldaver and Brown JJ. (Wagner C.J. concurring)
Concurring Reasons: (paras. 105 to 123)
Martin J. (Karakatsanis and Kasirer JJ. concurring)
Concurring Reasons: (paras. 124 to 147)
Rowe J.
Reasons Dissenting in Part: (paras. 148 to 220)
Abella J.
Dissenting Reasons: (paras. 221 to 317)
Côté J.
Her Majesty The Queen Appellant/Respondent on cross-appeal
v.
Pardeep Singh Chouhan Respondent/Appellant on cross-appeal
and
Attorney General of Canada,
Attorney General of Manitoba,
Attorney General of British Columbia,
Attorney General of Alberta,
Aboriginal Legal Services Inc.,
Association québécoise des avocats et avocates de la défense,
David Asper Centre for Constitutional Rights,
Canadian Association of Black Lawyers,
Canadian Muslim Lawyers Association,
Federation of Asian Canadian Lawyers,
South Asian Bar Association of Toronto,
Advocates’ Society,
Defence Counsel Association of Ottawa,
Criminal Lawyers’ Association (Ontario),
Debbie Baptiste and
British Columbia Civil Liberties Association Interveners
Indexed as: R. v. Chouhan
2021 SCC 26
File No.: 39062.
Hearing and judgment: October 7, 2020.
Reasons delivered: June 25, 2021.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Right to fair hearing — Right to trial by jury — Jurors — Selection — Peremptory challenges — Whether amendments to Criminal Code abolishing accused’s peremptory challenges during jury selection violate right to fair hearing or right to benefit of trial by jury — If not, whether abolition of peremptory challenges applies to accused awaiting trial on date amendments came into force — Canadian Charter of Rights and Freedoms, ss. 11(d) , (f) — An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess., 42nd Parl., 2019, c. 25, ss. 269, 271, 272 — Criminal Code, R.S.C. 1985, c. C-46, ss. 633 , 638 .
In 2019, Parliament modified how juries are selected in Canada. Sections 269, 271 and 272 of 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, abolished accused persons’ peremptory challenges of jurors, modified challenges for cause, and vested trial judges with the power to stand aside prospective jurors to maintain public confidence in the administration of justice. These amendments came into force on the same day that jury selection in C’s trial for first degree murder was scheduled to begin, depriving C of the right to remove a limited number of prospective jurors from the jury without providing a reason for doing so. C challenged the constitutionality of the abolition of peremptory challenges on the basis that it infringed his right to a fair and public hearing before an independent and impartial jury under s. 11(d) of the Charter and his right to the benefit of trial by jury guaranteed by s. 11(f) of the Charter . C also argued that as the amending Act lacked any transitional provisions, the amendments operated only prospectively and therefore did not apply to his trial.
The trial judge dismissed C’s constitutional challenge and determined that the amendments applied to C’s trial. Jury selection proceeded without peremptory challenges. C was convicted of first degree murder and appealed from his conviction. The Court of Appeal overturned C’s conviction and ordered a new trial. It held that the abolition of peremptory challenges was constitutional, but that since the amendments affected an accused’s substantive right to participate in the selection of the jury, they operated only prospectively and did not apply to C’s trial. The Crown appeals to the Court on the issue of the temporal scope of the abolition of peremptory challenges. C cross‑appeals on the constitutionality of the amendments abolishing peremptory challenges.
Held (Abella J. dissenting in part and Côté J. dissenting): The appeal should be allowed and C’s conviction restored, and the cross-appeal should be dismissed.
Per Wagner C.J., Moldaver and Brown JJ.: The statutory amendments abolishing peremptory challenges are constitutional and purely procedural, and therefore have retrospective application. They apply to all jury selection processes commencing on or after September 19, 2019, the date of the abolition’s coming into force as part of Bill C‑75.
Since Canada’s earliest days, peremptory challenges have formed part of a dynamic in‑court jury selection process that also includes challenges for cause and the power of the trial judge to excuse or stand aside prospective jurors. Peremptory challenges played a distinct but limited role in the broader context of jury selection and, according to Sir William Blackstone, served two purposes: that an accused person ought not to be tried by any one against whom he has conceived a prejudice and that an accused ought to have an opportunity to remove jurors who may become resentful after an unsuccessful challenge for cause. Peremptory challenges heightened the accused’s perception that he or she had had the benefit of a fairly selected tribunal. Accused persons routinely used peremptory challenges based on the way prospective jurors looked at them during the selection process, and there was some evidence that racialized accused used them to make room for jurors with diverse backgrounds.
Although peremptory challenges had value from the subjective view of accused persons, the true value of this “benefit” was doubtful. 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, and they did not displace the principle that the accused has no right to select a partial or favourable jury. 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. Faced with mounting criticisms, Parliament abolished them and bolstered the role of the trial judge in supervising the jury selection process.
The abolition of peremptory challenges does not infringe the s. 11(d) Charter rights of accused persons. Section 11(d) does not entitle the accused to any particular procedure. In determining whether s. 11(d) is breached, the question is not whether a new process chosen by Parliament is less advantageous to the accused, but rather whether a reasonable person, fully informed of the circumstances, would consider that the new jury selection process gives rise to a reasonable apprehension of bias so as to deprive accused persons of a fair trial before an independent and impartial tribunal. The constitutionality of the jury selection process must be considered as a whole. The jury selection regime since Parliament enacted Bill C-75 continues to provide the independent and impartial jury that each accused is owed under s. 11(d) of the Charter : representative jury rolls provide a fair opportunity for a broad cross‑section of society to serve as jurors, randomness in the jury selection process bolsters independence and impartiality, and challenges for cause and the trial judge’s power to excuse prospective jurors provide mechanisms for removing prospective jurors whose impartiality is in question.
The abolition of peremptory challenges comes at a time of heightened public awareness of the role of racial prejudice in the criminal justice system. Before the Court, various interveners submitted that diversity is fundamental to achieving a jury that is impartial to the accused and free from discrimination toward jurors and victims. As a constitutional matter, however, the jurisprudence has never interpreted jury representativeness and impartiality as requiring diversity among members of the petit jury, nor has the concept of impartiality ever rested on the accused’s subjective confidence in each individual juror or jurors sharing an aspect of a characteristic of their identity with the accused or the victim. Fair trial rights do not depend on the subjective perceptions of the accused, and absolute diversity on a jury is unattainable, as no group of 12 could ever represent the innumerable characteristics existing within our diverse and multicultural society.
Other opportunities remain for the parties in criminal trials to raise and address concerns about juror partiality and bias. Trial judges should consider crafting jury charges and mid‑trial instructions that caution against the risk that bias will taint the jury’s deliberations. Jurors legitimately bring their life experiences to their deliberations but this cannot interfere with their responsibility to approach the case with an open mind. Jury instructions can expose biases, prejudices, and stereotypes that lurk beneath the surface. General instructions on biases and stereotypes ought to highlight that jurors may be aware of some biases while being unaware of others and should exhort jurors to approach their task with self‑consciousness and introspection. Instructions on specific biases and stereotypes that arise on the facts of the case should consider context and the harmful nature of stereotypical assumptions or myths, for example, the effects of colonization and systemic racism on Indigenous peoples or myth‑based reasoning in sexual assault prosecutions.
The challenge for cause provisions under s. 638 of the Criminal Code also provide a robust mechanism to raise concerns about partiality. Challenges for cause are unlimited and not readily susceptible to abuse because their focus is on transparency and openness. A wide range of characteristics are the proper subject of a challenge for cause. The trial judge enjoys significant discretion to determine how far the parties may go in the questions that are asked. Questions ought to explore the juror’s willingness to identify unconscious bias and to strive to cast it aside. Appropriate questions may relate to aspects of the case such as race, addiction, religion, occupation, sexual orientation or gender expression. Questions should balance the accused’s right to an impartial jury and the privacy interests of prospective jurors.
The amended power to direct jurors to stand by to maintain public confidence in the administration of justice under s. 633 of the Criminal Code provides a means to exclude a juror who might be partial but who survived a challenge for cause. The “maintaining public confidence in the administration of justice” standard provides an effective analytical yardstick to address a variety of residual concerns in the jury selection process. The contours of the trial judge’s discretion to stand aside jurors will be determined on a case‑by‑case basis, but it cannot be used to actively promote jury diversity or to achieve a jury that approximates the diversity of Canadian society. An approach which calls upon the trial judge to enhance diversity on the petit jury raises a host of practical problems, some of which could involve constitutional issues. As a constitutional matter, diverse juries depend on diverse jury panels achieved through the randomness of the jury selection process. The reasonable, informed observer would lose confidence in a jury selection process that requires trial judges to sacrifice randomness for diversity. Parliament and the provincial legislatures may, within constitutional bounds, pursue further legislative reform designed to better promote or enhance the diversity of the petit jury.
The abolition of peremptory challenges also does not infringe C’s right to a jury trial under s. 11(f) of the Charter . Section 11(f) offers no greater protection of impartiality than s. 11(d). The right to a representative jury does not entitle the accused to proportionate representation at any stage of the jury selection process. Section 11(f)’s guarantee of representativeness requires the state to provide a fair opportunity for a broad cross-section of society to participate in the jury process, by compiling a jury roll that draws from a broadly inclusive source list and delivering jury notices to those who have been selected. These aspects of jury selection are not affected by the abolition of peremptory challenges.
The amending legislation did not include transitional provisions that set out whether and how the amendments apply to prosecutions pending in the system. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively. Procedural legislation designed to govern only the manner in which rights are asserted or enforced is presumed to apply immediately. However, procedural provisions that affect substantive rights in their application are not purely procedural and do not apply immediately. The substantive right at issue in this case is the Charter right to a fair trial by an independent and impartial jury. Jury selection procedures only serve those rights and a modification in procedure does not affect their fulfilment, absent a constitutional infringement. The presence or absence of peremptory challenges therefore does not affect substantive rights, namely those codified in ss. 11(d) and 11(f) of the Charter . Even accepting the existence of a substantive right to participate in the selection of one’s jury, the amendments affect only the way in which that right was exercised. There is no basis for construing the amendments as anything but procedural. Accordingly, the abolition of peremptory challenges applies immediately to all jury selection processes beginning on or after the date the amendments took effect, including C’s trial.
Per Karakatsanis, Martin and Kasirer JJ.: There is agreement that the amendments abolishing peremptory challenges are constitutional and purely procedural and therefore apply immediately to ongoing proceedings. Parliament was entitled to act on persistent concerns about the discriminatory use of peremptory challenges by abolishing them. There also is agreement that jury instructions on bias play a vital role in spurring juror introspection, self-consciousness and accountability. Courts must take active steps to ensure decision-making is free of prejudice, myths and stereotypes, through a contextualized approach that looks beyond overt and intentional discrimination to structural and unconscious bias that may undermine trial fairness, juror impartiality and equality for accused persons and victims.
However, there is disagreement with Moldaver and Brown JJ. with respect to how they would approach the enhanced stand-aside power under s. 633 of the Criminal Code and the scope of questioning on challenges for cause. These issues are complex, multifaceted and immaterial to the outcome of the appeal. It is preferable not to address them given the lack of direct assistance from the parties and scant jurisprudence from lower courts on this matter. With respect to the interpretation of s. 633, undue weight should not be placed on the principle of random selection. Randomness is neither an end in itself nor a freestanding constitutional imperative. In an unequal society, randomness may produce discriminatory outcomes. Many systemic factors lead to underrepresentation of certain groups at all stages of jury selection. It is open to Parliament to legislate to address these problems, including by taking steps to deliberately include underrepresented groups. Although departing from randomness by using the stand-aside power to enhance diversity may give rise to practical challenges, those problems should not be overstated. Section 633 does not impose rigid requirements respecting the precise composition of the jury, but rather confers a broad and flexible discretion that can be tailored to the circumstances in which it is exercised.
With respect to challenges for cause, trial judges are afforded latitude to depart from the formula set out in R. v. Parks (1993), 15 O.R. (3d) 324, where appropriate to ensure juror impartiality. Trial judges must permit prejudices to be examined through this process. It is true that the privacy interests of prospective jurors must be respected. However, privacy is just one interest to be weighed against others. The Court has also warned against setting a threshold for challenges for cause that would catch only the grossest forms of racial prejudice. It has been questioned whether the Parks formula catches anything beyond the grossest forms of prejudice. Ultimately, courts must be allowed to exercise their discretion in accordance with the wording and purpose of s. 638(1) (b) of the Criminal Code , the right to a fair and impartial tribunal, and Charter values, including substantive equality.
The Court should not use this case to circumscribe how judges may apply these recently-amended procedures. The preferable process would be for the Court to wait and see how the interlocking pieces of the new statutory regime work together in practice before weighing in with limits on how they may be used. A cautious approach is advisable to allow the new regime to develop organically and as intended.
Per Rowe J.: There is agreement that the abolition of peremptory challenges is constitutionally valid and that the legislative change is purely procedural and has retrospective application. However, it is necessary to address the risk that constitutionalizing statutory provisions through the jurisprudence poses. Sections 11(d) and 11(f) of the Charter give an accused the right to benefit from a fair trial by an independent and impartial jury but they do not guarantee the most favourable procedures imaginable or mandate specific procedural mechanisms. Statutory provisions that give effect to ss. 11(d) and 11(f) are not themselves constitutionally protected and beyond repeal. Constitutionalizing specific statutory provisions by which Parliament gives effect to constitutional rights is misguided. It is not for the courts to substitute their policy preferences for those of the legislature; rather courts should limit themselves to deciding whether constitutional protections have been infringed. Adopting, amending or repealing jury selection procedures raises no constitutional issue unless thereby trials by jury fall short of the constitutional guarantee to a fair trial.
A structural analysis of the principles underlying the Constitution can inform and assist in the proper interpretation of constitutional provisions. In the present case, separation of powers and parliamentary sovereignty shed light on the issue of Charter compliance. Constitutionalizing statutory provisions is contrary to the separation of powers between the legislature and the judiciary. The legislative and judicial branches have distinct roles and institutional capacities and each should show proper deference for the legitimate sphere of activity of the other. With respect to the Charter , the role of the courts is to protect against incursions on fundamental values, not to second guess a legislature’s policy decisions. Constitutionalizing statutory provisions elides and curtails the role of legislatures. Removing legislatures’ ability to repeal or modify statutory provisions is inconsistent with the dialogic partnership between legislatures and courts. Courts should not overstep their role when assessing whether statutory regimes comply with the Charter .
The principle of parliamentary sovereignty means that Parliament has the right to make or unmake any law. This principle is qualified by our federal structure, the Charter and Aboriginal and treaty rights; however, subject to limits imposed by the Constitution, the legislature can legislate as it chooses. This encompasses the capacity to repeal legislation. Constitutionalizing statutory provisions undermines the democratic principle whereby citizens participate in making laws through public institutions accountable to the public through electoral processes. Preventing Parliament from repealing a statutory provision, and in effect incorporating its content into the Charter , would undermine Parliamentary sovereignty. The repeal or modification of statutory provisions can raise issues of Charter compliance if it gives rise to unconstitutional effects but nothing of that nature has been shown in this case.
Per Abella J. (dissenting in part): Both the appeal and the cross-appeal should be dismissed. The repeal of peremptory challenges is constitutionally compliant. Parliament has introduced a regime that addresses the goals of peremptory challenges and that empowers trial judges to protect the impartiality of the jury and counteract the reality of discrimination. However, the repeal of peremptory challenges was not a purely procedural change. It affected the substantive rights of accused persons and, absent transitional provisions, it should not have applied retrospectively to C’s trial.
The right to be tried by a jury of one’s peers is one of the cornerstones of our criminal justice system and is enshrined in ss. 11(d) and 11(f) the Charter . The purpose of the reforms to jury selection in Bill C‑75 was to make room for a more diverse jury that will in turn promote confidence in the administration of justice. Parliament not only abolished peremptory challenges, but it gave trial judges the power to decide challenges for cause and created a new stand-aside power to direct trial judges to fulfill the role of ensuring jury impartiality and representativeness. In order to avoid bias and discrimination, the new jury selection system entrusts trial judges to vigorously exercise their authority in accordance with the Charter to ensure that Canadian juries are, and are perceived to be, impartial and representative.
The new robust challenge for cause process will require more probing questions than have traditionally been asked to properly screen for subconscious stereotypes and assumptions. The new stand-aside power was intended to empower trial judges to ensure impartiality and to make room for a more diverse jury, in order to maintain public confidence in the administration of justice. It is based on an understanding of representativeness which looks to the actual composition of the jury, as opposed to the randomness of the selection process. It seeks to counteract systemic discrimination in jury selection. Trial judges can use these tools to actively promote jury diversity on a case by case basis. The goal is the selection of a representative cross-section of society, honestly and fairly chosen. Actively promoting jury diversity is not reverse discrimination, it is reversing discrimination.
Abolishing peremptory challenges diminished the right of accused persons to meaningfully participate in jury selection and to influence the ultimate composition of the jury. Their abolition affected the substantive rights of an accused to participate in the selection of an impartial and representative jury, as guaranteed by ss. 11(d) and (f) of the Charter . When legislation is enacted without transitional provisions, the law presumes that it only applies prospectively. While the jurisprudence carves out a narrow exception for purely procedural changes, the exception does not apply to new rules of procedure that affect or impinge on substantive rights. Procedural laws that have an impact on Charter rights have been considered to have substantive effects since constitutional rights are necessarily substantive. Since there is no doubt that an accused’s fair trial rights are necessarily substantive, the legislation abolishing peremptory challenges affected substantive rights and could only have prospective effect.
For centuries, the common law included a right of the accused to exercise peremptory challenges and this right was codified in the Criminal Code . The Court has repeatedly asserted the importance of peremptory challenges in safeguarding the rights of accused persons in the jury system and enhancing their perception of trial fairness. While they did not guarantee any particular composition of the jury, peremptory challenges gave accused persons a meaningful opportunity to have their own subjective views about the impartiality of the jury respected.
It is not only an accused’s confidence in trial fairness that is at stake, but the public’s confidence that the jury is impartial. That impartiality is not possible without acknowledging the reality of discrimination in the public from which the jury is selected. Peremptory challenges were a tool to weed out this potential bias.
Systemic factors disproportionately exclude marginalized prospective jurors at every step of the selection process, resulting in a system in which Indigenous and racialized persons are overrepresented as accused persons and victims, and underrepresented as jurors. Peremptory challenges were an important trial safeguard to try to secure representativeness from what can be unrepresentative random selections. Representativeness is an important guarantor of impartiality. It matters not because a juror’s personal characteristics are indicative of how he or she will decide the case, but because if the right to be tried by a jury of one’s peers means anything, it means that members of a jury must be, and be seen to be, open-minded, regardless of their own or the accused’s race, religion, sex, gender identity, sexual orientation, political affiliations, age or economic status. Peremptory challenges enabled accused persons to attempt to secure representativeness, safeguarding their substantive right to meaningfully participate in the selection of an impartial and representative jury. Abolishing them, therefore, affected substantive rights.
The trial judge’s error in denying C the right to use peremptory challenges cannot be cured by the curative proviso in s. 686(1) (b)(iv) of the Criminal Code . The proviso only applies if the accused suffered no prejudice. C’s case was not so overwhelming that any trier of fact would inevitably convict. Nor was the error minor or harmless. C was denied the ability to peremptorily challenge the people he felt would not judge him fairly. To him, this meant that he did not have an impartial jury. This is a prejudicial impact without a cure.
Per Côté J. (dissenting): The appeal should be dismissed and the cross-appeal should be allowed. The amendments abolishing peremptory challenges infringe s. 11(f) of the Charter and they are not a reasonable limit that can be demonstrably justified in a free and democratic society. Section 269 of the amending Act should be declared of no force or effect to the extent that it abolishes peremptory challenges. Further, there is agreement with Abella J. that the abolition of peremptory challenges clearly affects substantive rights and can apply only prospectively. C should receive a new trial including jury selection with peremptory challenges.
Parliament failed to understand why peremptory challenges have accompanied jury trials for over 700 years. It ignored the voices of racialized and other marginalized persons calling out for a chance to maintain the benefit of trial by jury. Peremptory challenges permit accused persons to strike at hidden, subtle and unconscious biases that are undoubtedly present in the jury array and that go unaddressed by challenges for cause. Parliament saw peremptory challenges as an arbitrary tool used to perpetuate systemic racism and discrimination. The reality is, as defence advocates representing a wide spectrum of organizations implored the Court to understand, peremptory challenges are far from arbitrary. For accused persons who are racialized or otherwise marginalized, they are a lifeline to combat unconscious biases and discrimination. They give the accused a sense of ownership in the trial and they teach the litigant and the community that the jury is a good and proper mode for deciding matters.
In order for s. 11(f) of the Charter to be meaningful, there must be some set of core irreducible attributes that a tribunal must possess for it to be considered a jury. A jury must possess all of the characteristics necessary to provide the accused with the benefit that the framers of the Charter sought to protect. The purpose of s. 11(f) is to guarantee an underlying benefit that comes from jury trials. The benefit of trial by jury is formed by four elements, which are the four advantages of jury trials in comparison to judge‑alone trials. First, the jury is an excellent fact finder because of the cumulative abilities of its members and the diversity of their experiences. Second, a jury represents the conscience of the community: it is best placed to determine whether applying the law would be inequitable or would accord with society’s values. Third, the jury is a bulwark of individual liberty, protecting against oppressive laws or oppressive enforcement of the law. Fourth, the jury serves the broader social interests of public education and legitimization of the justice system. In order for an accused to receive the benefit of trial by jury, the jury must have certain characteristics. A jury must be the ultimate arbiter of guilt, and it must be impartial, representative and competent. The ability of the accused to meaningfully participate in selecting their triers may be another core, irreducible attribute of a jury trial.
Peremptory challenges play a unique role in a jury trial. They enable an accused person to meaningfully participate in selecting their triers, something that is absent in a trial by judge alone. This process of a participating in jury selection gives the accused a sense of ownership in the trial. Peremptory challenges also confer a substantial benefit in the subjective minds of accused persons: by removing jurors that cause them fear or discomfort, an accused will be more likely to feel that they are being tried by jurors whom they consider peers, which increases their confidence that the trial and the verdict are fair. This increased confidence in the fairness of the trial is especially important to offset the absence of reasons in a jury trial.
Peremptory challenges are also critical to the empanelling of impartial, representative and competent juries. First, peremptory challenges facilitate the selection of an impartial jury. Accused persons exercise them to remove potential jurors who are biased against them. Randomness in the jury selection process has traditionally been thought to guard against partiality, but in recent years, the administration of justice has faced up to the fact that racial prejudice and discrimination are intractable features of our society and must be squarely addressed in the selection of jurors. Challenges for cause, which were established to work alongside peremptory challenges, rely upon overt manifestations of bias and are not likely to identify unconscious preconceptions and beliefs, racial or otherwise. Such deeply buried beliefs also are resistant to judicial instructions. Peremptory challenges enable an accused to apply their own life experiences to determine whether potential jurors exhibit signs of prejudice against them. Racialized or marginalized persons cannot rely on a judge to excuse or stand aside a potential juror because they may struggle to articulate why they perceive bias. Therefore, peremptory challenges are essential to have an impartial jury and their abolition negatively affects racialized and other marginalized persons. Challenges for cause, anti-bias instructions, and stand asides cannot fill the void.
Second, the jury must be a representative cross-section of society, honestly and fairly chosen, in order to serve as the conscience of the community and to promote public trust in the justice system. Processes established to deliver a representative jury do not guarantee that a jury roll’s composition will be proportionate to the general population. In practice, jury rolls are under‑representative of racialized and other marginalized persons. In-court selection processes can enhance representativeness, especially where an array does not truly represent the diversity of the area. The abolition of peremptory challenges removes a tool often used by racialized and other marginalized persons to improve the representativeness of juries.
Third, peremptory challenges are critical to ensuring that a jury is competent. Competence in relation to understanding the evidence means willingness and capacity to understand it. A juror whose life experience has not embraced the area of the dispute is likely to have a blind spot of which he is quite unconscious and which may prevent him from getting the point of testimony or argument. The benefit of trial by jury is partly a product of the jury applying common sense, and common sense itself is the product of personal experience. Only accused persons know what experiences may be necessary to fully appreciate their evidence. Peremptory challenges are the only tool available to accused persons to address issues of competence. As it stands, the amended s. 633 of the Criminal Code is not an adequate replacement for peremptory challenges. Section 633 cannot be used to promote or enhance the diversity of the petit jury.
The abolition of peremptory challenges is not a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. The impugned provision of the amending Act is clearly prescribed by law. Reducing discrimination and increasing diversity on juries represents a pressing and substantial objective. However, the means chosen is not rationally connected to this objective. Removing peremptory challenges altogether has the effect of furthering discrimination against racialized and other marginalized persons, and potentially reducing jury diversity. The abolition of peremptory challenges also is not minimally impairing of the right to the benefit of trial by jury. Parliament could have empowered judges to regulate the use of peremptory challenges, altered juror qualifications or grounds of challenge for cause, or modified the challenge for cause process to create a meaningful system for identifying biased jurors. Given that peremptory challenges provide a great benefit to many accused persons and that their elimination perpetuates discrimination against racialized and other marginalized people, the deleterious effects outweigh the salutary effects of the legislation.
Alternatively, the amendments can apply only prospectively. Peremptory challenges are substantive. Their abolition is not beneficial for all: it is entirely detrimental to the accused, and its immediate application creates unfairness for those who have relied upon the existence of such challenges to make decisions. It changes the legal character or consequences of an accused’s prior actions, such as electing to be tried by jury or seeking an adjournment of an earlier trial. Therefore, the abolition of peremptory challenges is an amendment affecting a substantive right. The abolition of peremptory challenges also affects other substantive rights. It affects ss. 11(d) and 11(f) by diminishing the accused’s ability to meaningfully participate in jury selection. It affects the right to a fair trial by an impartial tribunal. Since peremptory challenges are themselves substantive and also affect other substantive rights, the amending provisions should not have applied to C’s trial. This is not a case where it would be appropriate to apply the curative proviso. The error was not harmless or minor. C would likely have been tried by a differently composed jury and the case against him was not so overwhelming that any other verdict would have been impossible to obtain.
Cases Cited
By Moldaver and Brown JJ.
Applied: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272; considered: R. v. Sherratt, [1991] 1 S.C.R. 509; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398; referred to: Cloutier v. The Queen, [1979] 2 S.C.R. 709; R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421; R. v. O’Coigly, [1798] 26 Howell’s State Trials 1191; R. v. Barrow, [1987] 2 S.C.R. 694; R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777; R. v. Pizzacalla (1991), 5 O.R. (3d) 783; R. v. Gayle (2001), 54 O.R. (3d) 36; R. v. Cornell, 2017 YKCA 12, 353 C.C.C. (3d) 431; Gardner c. R., 2019 QCCA 726; R. v. Amos, 2007 ONCA 672, 161 C.R.R. (2d) 363; R. v. Lines, [1993] O.J. No. 3284; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Bain, [1992] 1 S.C.R. 91; R. v. B.(A.) (1997), 33 O.R. (3d) 321; R. v. Hubbert (1975), 11 O.R. (2d) 464; R. v. Biddle, [1995] 1 S.C.R. 761; R. v. Brown (2006), 215 C.C.C. (3d) 330; R. v. Church of Scientology (1997), 33 O.R. (3d) 65; R. v. Laws (1998), 41 O.R. (3d) 499; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Williams, [1998] 1 S.C.R. 1128; R. v. S. (R.D.), [1997] 3 S.C.R. 484; R. v. Parks (1993), 15 O.R. (3d) 324; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; R. v. G. (R.M.), [1996] 3 S.C.R. 362; R. v. Krugel (2000), 143 C.C.C. (3d) 367; R. v. St‑Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328; R. v. Campbell, 2019 ONSC 6285; R. v. Josipovic, 2020 ONSC 630; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; R. v. Johnson, 2019 ONSC 6754, 451 C.R.R. (2d) 167; R. v. Muse, 2019 ONSC 6119, 448 C.R.R. (2d) 266; R. v. Lako, 2019 ONSC 5362; R. v. Khan, 2019 ONSC 5646; R. v. McMillan, 2019 ONSC 5616; R. v. Daniel, 2019 ONSC 6920; R. v. Cumberland, 2019 NSSC 307; R. v. Stewart, 2019 MBQB 171; R. v. Dorion, 2019 SKQB 266; R. v. Raymond (Ruling #4), 2019 NBQB 203, 379 C.C.C. (3d) 75; R. v. LeBlanc, 2019 NBQB 241, 447 C.R.R. (2d) 227; R. v. S.B., 2019 ABQB 836, 447 C.R.R. (2d) 63; R. v. Bragg, 2019 NLSC 235; R. v. Simard, 2019 QCCS 4394; R. v. Kebede,