Peremptory Challenges: Are They Really the Problem? - Anna Kozak
On June 21, 2019, the former 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 (the “Act”) received Royal Assent. The Act came into force on September 19, 2019, and among making other amendments, it abolished peremptory challenges (“PCs”). PCs under s. 634 of the Criminal Code allowed “the Crown and the accused to exclude prospective jurors for suspected bias,” without providing a specific reason for that exclusion. The concern which the Act seeks to address with this abolishment is the use of PCs in a discriminatory fashion, where they are used in order to guarantee a certain makeup of jurors.
The Supreme Court of Canada (“SCC”), in R. v. Chouhan (“Chouhan”), deals with the question of whether the amendments to the Criminal Code which abolish PCs infringe with the rights outlined within s. 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms (the “Charter”). The second question, which applies in the situation that the PCs do not infringe the Charter rights, was a procedural question asking whether accused persons who were awaiting trial on September 19, 2019, still had the right to use PCs. Of the two issues, this blog will focus on the decision of the court to do with the first issue considering a potential infringement of s. 11(d) and 11(f) of the Charter.
In this case, the accused (Mr. Chouhan) was awaiting his trial for first-degree murder, and the jury selection for his trial was to begin on September 19, 2019. As mentioned above, this was the same day that the amendments to the Criminal Code which abolished PCs came into effect. Due to this, Mr. Chouhan claimed, before trial, that his s. 11(d) and 11(f) Charter rights “to an independent and impartial jury trial” have been infringed since he did not have the ability to use PCs during the selection process for the jury. The trial judge found that the abolition did not infringe on the Charter rights mentioned due to the idea that even without the PCs, there is a “range of procedural safeguards which,[…] protect the independence and impartiality of the jury.” Mr. Chouhan was convicted of first-degree murder, and before his sentencing, he appealed to the Court of Appeal for Ontario.
On appeal, Mr. Chouhan challenged the trial judge’s decision that the abolition of PCs does not infringe the s. 11(d) and 11(f) Charter rights. The unanimous verdict of the Court of Appeal for Ontario was that the abolishment of PCs was not unconstitutional, however, the court did overturn Mr. Chouhan’s conviction and ordered him a new trial due to his charge coming before the Act went into effect. Mr. Chouhan was found to be “deprived of his substantive right to PCs under the former rules.” With this, the case was appealed to the SCC by the Crown on the timing issue (the second issue outlined above), and cross-appealed by Mr. Chouhan who continued to challenge the constitutionality of the PC abolishment. Below is the provision for s. 11(d) and 11(f) of the Charter with emphasis on the relevant elements considered:
Section 11(d) and 11(f) of the Charter
Any person charged with an offence has the right:
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.
Ruling and Analysis
The court ultimately found that there has been no infringement of s. 11(d) and 11(f) of the Charter in this case. First, s. 11(d) is not infringed upon because PCs are not a necessary element of the existing jury selection scheme which ensures an independent and impartial tribunal. Second, since s. 11(d) specifies the guarantee of both an impartial trial and one by a jury, and was found to be unaffected, there can be no effect to s.11(f). Since the reasons for the decision on both subsections are intertwined, they will be analyzed together below. Ultimately, although the court’s decision is defensible, it does not fully address the problematic cornerstone of randomness.
The court insists that the safeguards in place to assure an independent, impartial and representative jury “begin long before the day on which the accused appears in court to select the jury,” mentioning R. v Kokopenace.However, it has been made clear through jurisprudence, that diversity is not a requirement of a representative jury. Rather, randomness seems to be most important due to the idea that it is both a random draw for the accused and the Crown, which in fact was found to be undermined by PCs.
Throughout the majority opinion, the court essentially provides that it cannot endorse the idea of group identity over individual identity. This provides the assumption that a “juror [who] shares a characteristic of their identity with the accused or the victim” does not necessarily equate to a proper representation (and an impartial one, at that) of the whole group which that individual juror identifies as belonging to. An idea that may be inferred from this is that even if there was a diversity requirement among the randomly selected jurors, this would not fully ensure impartiality, and randomness is a better option. Although this is a valid point, randomness is likely not a perfect solution.
The concurring reasons provide a critique of randomness, which raise valid concerns about randomness in an unequal society. First, they provide that “the jury selection system is not and has never been one of pure random selection” as there is an obvious utility of challenges for cause, for example. Second, randomness can clearly lead to discrimination on its own, because it does not guarantee a jury of any formulation. With this, it is concerning to conclude that diverse representation should not be a requirement for a representative jury. It is worth considering that a person’s background and perspective (as has been informed by their life experience) does not always or necessarily result in a deliberate bias and may, to the contrary, contribute to a non-biased contemplation of the facts before them. This is simply an acknowledgement of the fact that a diverse jury would allow for diverse perspectives in deliberation, and randomness does not and fundamentally cannot guarantee any degree of diverse representation.
The majority mentioned that while it is true that there is a certain benefit to PCs, the value they bring is a subjective one for the accused, rather than an objective (or ‘true’) value. In this sense, the court finds that accused persons may feel more confidence in the impartiality of the jury due to the use of PCs, but it is not possible to make a determination of whether any different set of jurors would come to different conclusions on any given case. However, it is possible to argue on the other side that this would not necessarily create an advantage for the accused, because it would still be impossible to tell whether that juror made a significant difference in a decision or not, but there would be a guaranteed subjective difference for the accused, especially if a challenge for cause fails or if a trial judge does not make use of the s. 633 Criminal Code stand-aside power.
With all of this, though, to the extent that the court’s decision does not impose a constitutionalized jury scheme, its decision is likely to be highly defensible. It is understandable that the court, as an institution which is importantly separate from the legislature for the sake of democratic governance, is not incentivized to shut down potentially imperfect parliamentary schemes. Rather, the role of the court is to ensure that certain constitutional minimums are enforced in order to uphold justice within the scheme given to it. For example, The contemplation to do with the issue of including diversity within the jury selection scheme as a requirement may be advisable, but is ultimately up to the Parliament as a discretion.
 Government of Canada, “Legislative Background: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42nd Parliament)” (last modified 26 August 2022), online: Justice: Government of Canada < www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/c75/p3.html#fn98> (“Government of Canada, “Legislative Background: An Act to amend the Criminal Code.”)  R v Chouhan, 2021 SCC 26 at para 6 [Chouhan].  Criminal Code, RSC 1985, c C-46, s 634.  Chouhan, supra note 2, at para 2.  Government of Canada, “Legislative Background: An Act to amend the Criminal Code” < www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/c75/p3.html#fn98>.  Chouhan, supra note 2, at paras 3, 8.  Ibid at para 8.  Ibid at para 1.  Ibid.  Ibid at paras 3, 5.  Ibid at para 4.  Ibid at para 5.  Ibid.  Ibid at para 6.  Ibid.  Ibid at para 7.  Charter of Rights and Freedoms, s 11(d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.  Ibid, s 11(f).  Chouhan, supra note 2, at paras 35-36.  Ibid at para 85.  Ibid at para 33 ; R v Kokopenace, 2015 SCC 28 at para 61.  Chouhan, supra note 2, at para 38.  Ibid at paras 34-38, 80.  Ibid at para 40.  Ibid at para 113.  Ibid at paras 114-115.  Ibid at para 18.  Criminal Code, supra note 3, s 633.  Chouhan, supra note 2, para 84.  Ibid at paras 84, 115.  Ibid at para 115.
The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.