Supreme Court Rules New Changes to Jury Selection are Constitutional

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada ruled in the case of R. v. Chouhan that a law passed by the federal Liberal government that changed the jury selection process in an effort to diversify juries and prevent the rejection of potential jurors based on their race is constitutional.

This ruling is significant as there were 45 convictions in cases involving violent crimes that were awaiting the Supreme Court’s decision in the Chouhan case regarding the issue of whether the law could apply retroactively. 

WHAT WERE THE 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.  During Stanley’s trial, all visibly Indigenous jury contenders were challenged and excluded using peremptory challenges by Stanley’s defence lawyers.

As we previously blogged, this new legislation revised the jury selection practice by eliminating the right of Crown prosecutors and the 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. 

PARDEEP CHOUCHAN’S CONSTITUTIONAL FIGHT

Pardeep Chouchan (“Chouchan”), a South Asian man who was charged with first-degree murder, was scheduled to select a jury on September 19, 2019 (the same day that Bill C-75 came into effect).  Chouchan argued that the changes to jury selection by Bill C-75 infringed his rights under the Charter of Rights and Freedoms.  Chouchan also maintained that his right to a fair trial depended upon his ability to use peremptory challenges to eliminate potential racists from his jury.

Chouchan brought a constitutional challenge regarding the amendments to the Criminal Code prior to the jury section process in his trial and prior to Bill C-75 coming into effect.  Chouchan also argued that the amendments should not apply retroactively.

In September 2019, the Ontario Superior Court of Justice dismissed Chouchan’s constitutional challenge.  Chouchan then proceeded to trial with a jury that was created under the new legislation and he was found guilty of first-degree murder.

Chouchan proceeded to appeal the constitutional decision to the Ontario Court of Appeal, who unanimously upheld the legislation.  Chouchan argued that eliminating peremptory challenges infringed his rights under the Charter.  The Court of Appeal disagreed with Chouchan’s arguments and found that the abolishment of peremptory challenges does not infringe Chouchan’s rights under the Charter.

However, the appeal court ruled that the trial court did not apply the new rules regarding juries appropriately.  The appeal court found that the elimination of peremptory challenges should not apply retroactively to all pending cases and should only apply to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019.  Thus, the new law should not have applied to the jury selection process in Chouchan’s case.  As such, Chouchan’s conviction was overturned by the appeal court with a new trial set for the fall of 2021.

THE DECISION BY THE SUPREME COURT OF CANADA

The Crown prosecutor appealed the Court of Appeal’s decision and Chouchan cross-appealed on the issue of the constitutional validity of the Criminal Code amendments. 

At the Supreme Court, counsel for Muslim, Black, South-Asian and Asian-Canadian legal groups intervened to put forth the argument that peremptory challenges allow those in racialized communities to realize that a fair trial is possible.  They argued that although there are “challenges for cause” and judges can eliminate jurors to protect public confidence in the justice system, neither approach is as effective in addressing presumed bias as peremptory challenges are. 

According to Janani Shanmuganathan, a lawyer speaking before the Supreme Court on behalf of the South Asian Bar Association:

When the juror doesn’t look the accused in the eyes right away, or looks away quickly, or doesn’t look at all, or just looks plain hostile, and we get that feeling, how can we articulate it in words that provide a legal basis for excluding a juror?

Although the judges of the Supreme Court of Canada did not provide their reasons, they ruled that the legislation is constitutional.  Furthermore, it was concluded that the appeal court should not have dismissed Chouchan’s conviction as the changes to the jury rules were merely procedural and could therefore apply retroactively.  Chouchan’s conviction was restored and he now awaits his sentence.

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.