Criminal Convictions are in Jeopardy Following Clarification of New Rules For Jury Selection by the Appeal Court

Written on Behalf of Affleck & Barrison LLP

A recent ruling by the Ontario Court of Appeal in the case of R. v. Chouhan, regarding how jury selection changes should be applied, could require new trials for those recently convicted in Ontario.

Pardeep Singh Chouhan (“Chouhan”) challenged the new rules for jury selection that were set out in Bill C-75 at the court of appeal.  The jury selection process in Chouhan’s first-degree murder trial took place on the same day as the changes to the legislation came into force.  The appeal court upheld the constitutionality of the new rules, however, ruled that the trial judge did not apply the new rules correctly.

WHAT CHANGES OCCURRED AS A RESULT OF BILL C-75?

As we have previously blogged, following the acquittal of Gerald Stanley, who was charged with killing a 22-year-old Indigenous man, Bill C-75 was introduced to modify the jury selection process in Canada.  The changes to jury selection were intended to make juries more representative.

The reform of the jury selection procedure under the new legislation, which came into force on September 19, 2019, is as follows:

  1. The trial judge will be the one to determine whether the prospective juror is likely to decide the case impartially in the circumstances when either party has challenged the juror for cause. 
  2. The ability to challenge prospective jurors by means of peremptory challenges by either party has been eliminated.
  3. The trial judge has been given the discretion to stand aside a juror for the purpose of maintaining public confidence in the administration of justice.

WHAT HAPPENED AT CHOUHAN’S TRIAL?

Chouhan was charged with first-degree murder in the 2016 shooting death of  Maninder Sandhu.  Chouhan was scheduled to select a jury for his murder trial on September 19, 2019, the same day that Bill C-75 and the changes to the jury selection process came into force.  We have previously blogged about this Superior Court decision.

At that time, Chouhan’s lawyers requested that the court use the previous jury selection rules as the new jury selection process violated Chouhan’s Charter rights.  The presiding judge rejected the defence arguments that doing away with peremptory challenges infringed Chouhan’s constitutional right to be tried by an independent and impartial jury.  Ontario Superior Court Justice John McMahon ruled that the new changes to the jury selection process should apply to every jury selected after the legislation came into force and for those cases in the system where the accused had already opted for a jury trial.

WHAT HAPPENED AT CHOUHAN’S APPEAL?

Chouhan’s case made its way to the court of appeal, at which point the unanimous court ruled that the new rules were constitutional and did not infringe Chouhan’s Charter rights.  However, the three judges of the appeal court held that the trial court did not apply the new rules appropriately.

Writing on behalf of the appeal court judges, Justice Watt wrote:

With respect to the temporal application of the amendments, I decide that the abolition of the peremptory challenge applies prospectively, that is to say, only to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019.  …[T]he amendment making the presiding judge the trier of all challenges for cause applies retrospectively, that is to say, to all cases tried on or after September 19, 2019, irrespective of when the right vested.

[N]ot all accused charged with an offence before September 19, 2019 have a vested right to a trial by judge and jury under the former legislation.  For the right to have vested, the accused must have, before September 19, 2019:

(i) been charged with an offence within the exclusive jurisdiction of the Superior Court;

(ii) been directly indicted; or

(iii) elected for a trial in Superior Court by judge and jury.

The Court of Appeal allowed Chouhan’s appeal, set aside his conviction and ordered a new trial on the indictment.

The Ontario government can appeal this decision to the Supreme Court of Canada.  We understand that the Crown is currently reviewing the appeal court decision and we will provide an update in this blog when information regarding the government’s decision on an appeal becomes available.

We will continue to follow the affects of the Chouhan decision on legal cases and will provide updates in this blog.  We can advise that only hours after the appeal court decision in the Chouhan case, two cases being heard in Toronto’s Superior Court (a murder charge and a sexual assault case) were declared mistrials.

If you have questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or contact us online.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available to help you 24/7.