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Chouhan Supreme Court Case May Solve the Peremptory Challenges Controversies in Criminal Jury Law
(excerpted from "We have centuries of work undone by a few bone-heads": A Review of Jury History, a Present Snapshot of Crown and Defence Counsel Perspectives on Bill C-75's Elimination of Peremptory Challenges, and Representativeness Issues" by Bertrand et al 2020 MLJ Volume 43)
On September 19, 2019, Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, came into force and, in part, eliminated peremptory challenges (s. 634) and furnished judges with oversight for challenges of cause (s. 640).[3] The new Bill was passed, seemingly, as an attempt to placate recent allegations regarding under-representation of Indigenous jurors in the high-profile case, R v Stanley, in 2018 (a matter we will discuss infra).[4]
[1] Criminal Code, RSC 1985, c C-46, s 638, as it appeared on 18 September 2019 [Code]. [2] Ibid, s 640, as it appeared on 18 September 2019. [3] Ibid, ss 634, 640, as amended by Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess, 42nd Parl, (assented to 21 June 2019), SC 2019, c 25. [4] R v Stanley, 2018 SKQB 27 [Stanley]. [5] R v Chouhan, 2020 ONCA 40, leave to appeal to SCC granted, 39062 (7 May 2020) [Chouhan SCC]. [6] R v Chouhan, 2019 ONSC 5512 [Chouhan Sup Ct]. [7] R v King, 2019 ONSC 6386. [8] R v Chouhan, 2020 ONCA 40 at para 43 [Chouhan CA]. [9] Ibid at para 62. [10] Ibid at paras 162, 210. [11] See our discussion of the Manitoba developments infra.