No Right to Peremptory Challenges of Jurors
R v Chouhan, 2020 ONCA 40
The Supreme Court of Canada unanimously determined that the legislative changes to the Criminal Code in relation to peremptory jury challenges was constitutional and would be given retrospective application to all cases tried on or after September 19, 2019.
This issue arose out of an Ontario Court of Appeal case whereby Mr. Chouhan was found guilty of first-degree murder and appealed his conviction based on the trial judge’s ruling about what procedure was to be followed in selecting a jury.
Previously, the Criminal Code allowed for a certain number of what are known as “peremptory challenges” which allowed counsel to dismiss with a potential juror for no reason at all. A challenge could also be done for cause/reason (such as partiality) and a layperson would determine if there was appropriate cause. The Criminal Code was changed on September 19, 2019 to eliminate such peremptory challenges and to only allow a judge to determine challenges for cause.
Concerns arose and evidence was presented at trial over the fact that many racialized accused persons are only engaged in their jury selection so far as they give feedback and advice to counsel about their observations of the potential jurors. It was a method of helping racialized accuseds to choose jurors who are of similar background to help obtain a representative jury.
The legislative change was deemed constitutional and to have a retrospective application such that Mr. Chouhan’s trial occurred without any peremptory challenges and the trial judge made the determinations of challenges for cause. The concern was that he (and other future accused persons) would not have the right to a fair trial as is guaranteed to them by the Charter.
The trial judge determined the abolition of peremptory challenges is constitutional because a reasonable person who knows about the jury selection process and safeguards would not conclude that the right to an independent and impartial jury was violated. The Court of Appeal agreed as to the constitutionality of such changes but ordered a new trial as they determined the abolition of peremptory challenges should not have applied to Mr. Chouhan’s case as it affected substantive rights, not merely procedural, and should have a prospective application.
As for our top court, the Supreme Court of Canada, while they agree the changes are constitutional, they disagree as to when such changes took effect. The Supreme Court has ruled that such amendments are purely procedural and thus have a retrospective application. Therefore, they restored Mr. Chouhan’s conviction as the amendments applied to him, thereby rendering his jury appropriately constituted, and their verdict standing.
Commentary
Broadly, it can be said that the Court determined there is no right to proportional representation in a jury.
Peremptory challenges are like a two-sided coin. While one side allows an accused to be engaged in the jury selection process and given the potential racialized experience they may have faced; they will be best in a position to know who or in what instances bias may occur such that elimination of peremptory challenges removes their ability to be involved in this process. The other side is that by allowing jurors to be dismissed for no reason at all, it can lead to discrimination, bias, and stereotyping as is often seen with Indigenous people’s experiences with juries in Canada.
It may be argued that eliminating peremptory challenges ensures greater transparency and openness in the jury selection process by forcing a party to make a challenge for cause when there is a concern, which can then be aired out in front of a judge. However, there is a strong claim to say that randomness does not guarantee diversity and proportionality in juries either.
These questions and debates came to a boil during the high-profile case of R v Stanley, 2018 SKQB 27 whereby a Caucasian farmer faced trial for the second-degree murder of Colten Boushie, a Cree man. Mr. Stanley used four peremptory challenges to exclude Indigenous jurors resulting in an all white jury who acquitted him. Parliament responded with these legislative amendments in an effort to prevent such situations from occurring, however, it seems it was done without thought as to the benefits peremptory challenges have in ensuring fairness for the accused in their ability to have involvement and choice in the makeup of the jury.
What both Parliament and the Courts stop short of is in discussing a form of mandated proportional juries. Given the current situation of choosing one side or the other of a coin which inevitably results in some risk and loss from the benefit of the other side, there is room to discuss and explore a completely different form of system which could require a certain number of jurors from different backgrounds. While this option is not without flaws or issues either, it could be beneficial in increasing diversity of juries and in addressing the concerns of both sides of the coin. Unfortunately, given the Supreme Court’s recent upholding of the amendments, we are likely a long way away form dramatically revisiting such topic again or taking the next step to require proportionality in representation.