Appeals

Supreme Court Releases Reasons for Upholding the Amendments to the Jury Selection Process

Written on behalf of Affleck & Barrison LLP

The Supreme Court of Canada recently released its reasons for the decision rendered in October 2020 that upheld the law introduced by the federal government with respect to juries in the case of R. v. Pardeep Singh Chouhan (“Chouhan”).

The lawyers defending Chouhan, who was charged with first degree murder, argued that the changes to the jury selection process infringed his rights to an independent and impartial jury trial under the Charter of Rights and Freedoms.

CHOUHAN’S LEGAL ROAD TO THE SUPREME COURT

Chouhan’s jury selection for his first degree murder trial was to begin on September 19, 2019. This was the same day that amendments to the Criminal Code came into force which eliminated peremptory challenges. Peremptory challenges provided both the Crown and the defence with the right to remove a limited number of potential jurors without providing any reasons for doing so, ordinarily for suspected bias.

Chouhan challenged the constitutionality of the changes to abolish peremptory challenges prior to the start of his trial. The Ontario Superior Court of Justice dismissed Chouhan’s constitutional challenge and a jury found him guilty of first degree murder.

The Ontario Court of Appeal affirmed the constitutional validity of the amendments made to the legislation, however, it ruled that the elimination of peremptory challenges could not apply retrospectively and found that the amendment should not have applied to the selection process in Chouhan’s case. Thus, Chouhan’s conviction was overturned and a new trial was ordered.

The Crown prosecutor appealed this decision and Chouhan cross-appealed on the constitutional validity of the Criminal Code amendments. The Supreme Court of Canada ruled that the legislative changes were constitutional and applied retrospectively and therefore allowed the Crown’s appeal and restored Chouhan’s conviction of first-degree murder.

CHANGES IN THE JURY SELECTION PROCESS BROUGHT ON BY THE NEW LEGISLATION

Bill C-75, An Act to Amend the Criminal Code, was enacted in response to the public outrage over the 2018 trial of Gerald Stanley (“Stanley”), a white Saskatchewan farmer who was acquitted of second-degree murder by an all-white jury in the shooting death of an Indigenous man, Colten Boushie.

This new legislation revised the jury selection practice by eliminating the right of Crown prosecutors and defence lawyers to make peremptory challenges (to object to a proposed juror without stating a reason). This Bill became law on September 19, 2019.

The new legislation still allows for “challenges for cause”, whereby either the Crown or the defence can give reasons to object to a potential juror, though the objection does not have to be accepted by the judge. The law also grants judges the discretion to stand aside jurors in order to protect public confidence in the justice system.

THE SUPREME COURT OF CANADA DECISION

The majority of the Supreme Court of Canada allowed the Crown’s appeal, dismissed Chouhan’s cross appeal and concluded that the Criminal Code reforms could be retrospectively applied. Chouhan’s murder conviction and life sentence were restored.

The main issue before the Supreme Court was whether peremptory challenges advance or hinder the selection of a fair and impartial jury.

The majority of the Supreme Court found the amendments abolishing peremptory challenges to be constitutional as the safeguards of a random jury selection process, the ability to challenge for cause and the trial judge’s discretion to “stand aside” a juror in order to maintain public confidence in the administration of justice remain in place allowing for the right to a fair trial. Furthermore, the highest court found that the elimination of peremptory challenges was purely procedural and therefore could have a retrospective application. It was concluded that this amendment was properly applied in Chouhan’s trial and in the selection of his jury.

With respect to peremptory challenges, in their joint reasons for judgement, Supreme Court Justices Michael Moldaver and Russell Brown wrote:

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.

 Justice Suzanne Cote provided her dissenting opinion to this case and she would have allowed Chouhan’s cross-appeal. Although she agreed that peremptory challenges are not perfect, she believes that Parliament should regulate them and not abolish them. She wrote:

It did not need to preserve peremptory challenges unchanged, but it did need to consider the interests of accused persons.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. We are available when you need us most.