jury selection

Changes to Jury Selection Upheld in Ontario Court

Written on Behalf of Affleck & Barrison LLP

An Ontario Superior Court of Justice has ruled that the changes to peremptory challenges of jurors should be applied to jury selection beginning September 19, 2019. 

The decision in R. v Chouhan upholds the constitutionality of the new legislation found in Bill C-75 that removed the ability for lawyers to challenge potential jurors.

WHAT HAPPENED?

On September 19, 2019, Pardeep Singh Chouhan was scheduled to select a jury for a first-degree murder trial.  This was also the day that Bill C-75 came into force. 

The amendments set out in Bill C-75 reform the procedure for jury selection in the following three ways:

  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.  Previously, the court used lay triers to make this determination.
  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.

In court, Chouhan’s lawyers argued that the provisions of Bill C-75, specifically the elimination of peremptory challenges, violates sections 7 (the right to life, liberty and security), 11(d) (the right to be presumed innocent until proven guilty) and 11(f) (the right to trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment) of the Charter of Rights and FreedomsChouhan’s lawyers argued that the new procedures would breach their client’s right to an independent and impartial jury by giving the trial judge the discretion to make the determination in circumstances of either party challenging the juror for cause.

Justice John McMahon concluded that Bill C-75 does not violate an individual’s rights under the Charter.  Justice McMahon wrote in his decision:

The ability to exclude a potential juror based simply on their appearance, their look, or a person’s gut feeling, without furnishing a reason, is not transparent.  The elimination of the peremptory challenge does make the justice system more transparent, but without removing either parties’ ability to set aside potential jurors for articulate reasons.  The representativeness of the panel, the randomness of its selection and the ability for either party to challenge the process provide sufficient safeguards.

Justice McMahon held that an accused is not entitled to a jury that “reflects the proportionality of the population” or those of members of the same demographic group.  He concluded that there are safeguards in place to ensure that the jury remains independent and impartial, including the ability to screen prospective jurors for bias and the trial judge’s ability to excuse or reject prospective jurors for specific reasons.  He explained:

It appears that if either party can articulate reasons why a prospective juror would not be impartial, the judge would clearly have the ability to stand aside a prospective juror to maintain public confidence in the administration of justice.

Chouhan’s lawyers also argued that the changes to jury selection should not apply to those whose alleged offence occurred before Bill C-75 came into force.  Justice McMahon dismissed this argument and maintained that the new rules should be applied for every jury selected after they went into force, including Chouhan’s pending trial.

WHAT IS THE NEW LAW REGARDING JURY SELECTION?

Section 634 of the Criminal Code provided the rules for peremptory challenges.  Bill C-75 was established by the government in an effort to make juries more representative following the divisive acquittal of Gerald Stanley.  We have previously written a blog regarding the case of Stanley, who was charged with second-degree murder in the death of an Indigenous man, Colten Boushie.  In this case, there were no Indigenous members sitting in the jury.

Bill C-75 includes the removal of peremptory challenges from the jury selection process.  Peremptory challenges were a means by which lawyers for both the prosecution and defence could dismiss a certain number of prospective jurors, without any explanation.  The number of peremptory challenges allowed to a given party depended upon the seriousness of the crime, the number of jurors and whether there are co-accused.  Some believe that this process was used to ensure a particular composition of the jury.

Under the provisions of Bill C-75, lawyers have the ability to disqualify prospective jurors that they believe cannot be impartial.  However, under the new provisions, the judge makes the final decision.  This change is meant to address a growing concern that the jury selection process may discriminate unfairly against potential jurors. 

If you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Former Reservist Found Not Guilty in Fatal Shooting of Unarmed Man

Written on Behalf of Affleck & Barrison LLP

After six hours of deliberations, a Hamilton jury found Peter Khill (“Khill”), a former Canadian Forces reservist, not guilty in the fatal shooting of Jon Styres (“Styres”), an unarmed First Nations man from Ohsweken, Ontario.

WHAT HAPPENED?

In the early morning hours of February 4, 2016, Khill and his girlfriend were woken up by two loud, banging noises. When he looked outside, Khill saw that the lights were on in his 2001 GMC pickup truck.

Khill proceeded to grab a 12 gauge shotgun from his bedroom closet. He loaded it with two shells and ran outside in a t-shirt and boxers to confront Styres, who was trying to steal his truck. He came up behind Styres, who was leaning over the passenger-side seat, and shouted “Hey, hands up!”. Styres reacted by turning toward Khill with his hands sweeping forward in a motion that allegedly led Khill to believe that he had a gun. This provoked Khill to fire two close-range shots that killed Styres.

The Superior Court of Ontario was told that Styres did not have a gun that night and was only carrying a knife in his pocket.

The Crown prosecutor told the court that Khill was not acting in self-defence and that he “took the law into his own hands”. Khill could have stayed safe in his home and called the police when he realized his truck was broken into. Furthermore, the Crown lawyer argued that Khill’s action in shouting instructions caused Styres to jump in surprise, which caused Khill to feel frightened and open fire in response.

Assistant Crown attorney, Steve O’Brien, argued that Khill only followed the parts of his training that allowed him to slyly approach and kill an enemy. O’Brien stated that Khill “completely ignored, that civilian life is not a war zone, that soldiers must take time to genuinely assess the situation. There is not one law for ex-soldiers and one law for everybody else.”

Khill pleaded not guilty to a charge of second-degree murder. His lawyer argued that his actions were justified on the basis of self-defence as Khill feared for his life and believed that Styres had a gun. It was argued that Khill was only acting in accordance with his military training and experience. Khill’s lawyer, Jeff Manishen, stated:

This young man who lived to defend his country wanted to continue to defend his own life. That young man should be found not guilty.

JURY SELECTION

This trial raises some of the same legal issues that were raised during the controversial trial of Gerald Stanley (“Stanley”) who was accused of killing Colten Boushie (“Boushie”).

In the Stanley case, an all-white jury in Saskatchewan acquitted Stanley of second-degree murder in the death of Boushie, an Indigenous man. Many critics suggested that the all-white jury had reached the wrong verdict. Furthermore, some believed that the defence used their peremptory challenges to dismiss any potential jurors who appeared to be Indigenous. Peremptory challenges are given in equal number to both the defence and the prosecutor to allow them to disqualify any juror, without reason.

In the Khill case, the jury was screened for possible racial bias. Each candidate was asked a challenge for cause question: “Would your ability to judge the evidence in this case without bias, prejudice or partiality, be affected by the fact that the deceased victim is an Indigenous person and the person charged with this crime is a white person?”. Each of the 12 jurors responded “no”.

It was reported that none of the jury members were Indigenous, however, the jury did include at least one non-white individual.

Mere weeks after the Stanley verdict, the government introduced legislation to eliminate peremptory challenges (Bill C-75). We have previously blogged about this new Bill, which has passed second reading.

Khill’s lawyer stated that getting rid of peremptory challenges is “wrong-headed” and that bias can be avoided through the use of challenge for cause questions, such as the one used in the Khill trial. He went on to suggest that the federal government should review Bill C-75 and re-consider the elimination of peremptory challenges.

We will continue to provide updates regarding the status of Bill C-75 as information becomes available. In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or online. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. For your convenience, we offer a 24-hour phone service. We are available when you need us most.