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)
Peremptory challenges to jurors have recently become a contentious issue in Canadian criminal law practice. Peremptory challenges allow the accused or the Crown to object to a person’s membership on the jury array without any cause. In first-degree murder trials, both the accused and Crown were allowed 20 peremptory challenges. While tracing the history and current practice of peremptory challenges is the main focus of our paper, it is a practice that should be contrasted with the continuing ability of counsel to engage in challenges for cause, which permit counsel to challenge prospective jurors for stated reasons related to the ability to serve. The former section 638 of the Criminal Code permitted accused persons and the Crown to an unlimited number of challenges for cause based on a list of specified grounds. Under this iteration, section 640 of the Code permitted the validity of challenges for cause to be determined by lay triers who were members of the jury.
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). 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).
Upon passage of the Bill, controversy arose over the retroactive or prospective application of the ban on peremptory challenges, and cases across multiple jurisdictions saw competing philosophies and results. Ultimately, the matter will soon be settled by the Supreme Court of Canada in the appeal from an Ontario case, R v Chouhan, where leave to appeal was granted on May 7, 2020. The Chouhan case at the Ontario Superior Court considered peremptory challenges to be procedural in nature, and therefore held that retrospective effect could be given to the Bill. However, in another Ontario Superior Court case, R v King, the trial judge found that the challenges could be seen as substantive and an important protection for disadvantaged accused persons by ensuring an unbiased jury, protecting the section 11(d) Charter right to a fair trial. The Ontario Court of Appeal was therefore called upon to settle this divergence.
On Appeal in Chouhan, the accused argued that eliminating peremptory challenges infringed section 11(d)’s guarantee of a right to a fair trial and impartial tribunal and argued that widespread racism rebuts the presumption of juror impartiality. The Crown retorted that jury shaping (and jury shopping) was antithetical to Canadian jury law and “safeguards in the jury selection process, when considered cumulatively, would lead a reasonable person, fully informed of these safeguards, to conclude that the process was fair and likely to ensure an impartial jury.”
The Court of Appeal accepted the Crown’s position and, relying on representativeness jurisprudence in cases such as the Supreme Court Decision in R v Kokopenace, found that in respect of the right to 11(d) trial fairness, “reasonable apprehension of bias has never… [meant] a jury that proportionally represents the various groups.” Nor did the section 11(f) Charter right to a jury trial benefit the accused because section 11(f) provided no more representativeness-based protection than section 11(d); fairness is achieved by sampling a broad segment of society and giving them the opportunity to participate in jury service. Finding peremptory challenges to be substantive in nature, the Court of Appeal agreed with the Crown on the issue of fairness but determined that the new processes would apply prospectively to cases where the right to a trial by judge and jury was determined on or after September 19, 2019.
Though similar controversies played out in other provinces, the Ontario cases have paved the way to the forthcoming Supreme Court decision. The peremptory challenge cases across Canada lay bare the tension between different momentums in the system. The system must balance the timely administration of justice with the accused’s constitutional rights in a fair and unbiased fashion. Juries must be impartial and representative, and jury trials must preserve the rights of the accused and dispense equality-based justice.
Yet jury systems have a long and storied history which has been shaped by values that perhaps have not been considered in the recent legislative changes. Similarly, legal actors may have specific and vital observations about the changes that may reveal weaknesses and strengths as to the new peremptory challenges regime that are not given effect in the legal debate.
In this paper, we give voice to these perspectives by outlining some of the historical antecedents of modern jury work and the development of peremptory challenges. Following a review of this history, we move to the results of our survey of legal professionals involved in jury trials (Crown and defence counsel) which illustrate widespread professional dissatisfaction with the new regime established in Bill C-75. Ultimately, our goal is to set the stage for any upcoming Supreme Court decision on peremptory challenges and the academic commentary that will undoubtedly follow.
 Criminal Code, RSC 1985, c C-46, s 638, as it appeared on 18 September 2019 [Code].  Ibid, s 640, as it appeared on 18 September 2019.  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.  R v Stanley, 2018 SKQB 27 [Stanley].  R v Chouhan, 2020 ONCA 40, leave to appeal to SCC granted, 39062 (7 May 2020) [Chouhan SCC].  R v Chouhan, 2019 ONSC 5512 [Chouhan Sup Ct].  R v King, 2019 ONSC 6386.  R v Chouhan, 2020 ONCA 40 at para 43 [Chouhan CA].  Ibid at para 62.  Ibid at paras 162, 210.  See our discussion of the Manitoba developments infra.