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Chouhan Supreme Court Case May Solve the Peremptory Challenges Controversies in Criminal Jury Law

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.[1] 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.[2]

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]

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.[5] 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.[6] 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.[7] The Ontario Court of Appeal was therefore called upon to settle this divergence.

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.”[9] 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.[10]

[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.


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