Several months of jury convictions in jeopardy as Ontario’s top court upholds ban on peremptory challenges

The Ontario Court of Appeal at Osgoode Hall in Toronto.

Nearly all Ontario criminal convictions in which a jury was picked later than last September could be in jeopardy after the province’s highest court on Thursday upheld a ban on a controversial method of selecting jurors.

The Court of Appeal had been tasked with ruling on the constitutionality of changes made to the jury selection process by the federal government that took effect on Sept. 19. Among them, the government had abolished what are known as peremptory challenges, which allowed both Crown and defence lawyers to reject a specific number of potential jurors without having to give a reason.

On Thursday, the Court of Appeal unanimously upheld the constitutionality of the ban on peremptory challenges.

However, the court also ruled that if an accused person opted for a trial by jury before Sept. 19, they had a right to use peremptory challenges during jury selection, even if that selection took place after that date.

In making this ruling, the Court of Appeal ordered a new murder trial for Pardeep Singh Chouhan, whose Toronto jury was selected after Sept. 19 using the new rules, which no longer included peremptory challenges.

“In my view, an amendment which significantly diminishes an accused’s ability to affect the ultimate composition of the jury chosen to try the accused negatively impacts on the accused’s statutory right to trial by jury as it existed prior to the amendment,” Justice David Watt wrote for the three-judge panel.

“For the purposes of determining the temporal scope of the legislation, this loss of one aspect of the accused’s right to participate in the selection of the jury affects in a negative way the accused’s right to trial by jury as it existed before the amendment. Therefore, the amendment is presumptively prospective. Nothing in the language of the amendment or in the material placed before this court rebuts that presumption.”

The court ultimately concluded that the abolition of peremptory challenges affected the “substantive rights” of Chouhan and should not have applied to the jury selection in his case, “nor should it apply to the selection of the jury in other cases if the accused had a vested right before Sept. 19, 2019 to a trial by judge and jury as it existed in the prior legislation.”

The modifications to jury selection were first introduced in March 2018 as part of Bill C-75, the Liberals’ massive bill revamping the criminal justice system.

The changes were sparked by the Gerald Stanley trial in Saskatchewan, in which Stanley was acquitted by a jury of second-degree murder in the shooting death of Colten Boushie, an Indigenous man. Media reports at the time said the defence had been using peremptory challenges to keep anyone who appeared Indigenous off the jury.

Criminal defence lawyers had been vocal in their opposition to the scrapping of peremptory challenges, saying they can also benefit an accused person who is Indigenous or racialized.

“While we share the concern that peremptory challenges may be misused to racially discriminate against Indigenous people, our experience is that they are more frequently used to the benefit of Indigenous and other racialized persons,” the Canadian Bar Association had said in a 2018 brief submitted to the House of Commons’ justice committee when it was studying Bill C-75.

“Those populations are disproportionately drawn into the criminal justice system, and often use this same process precisely to avoid an ‘all-white’ jury,” the brief read.

A big question that lingered over the criminal justice system was whether the changes also applied to criminal cases in which the accused had opted for a trial by jury prior to Sept. 19, but in which the jury itself was only selected on Sept. 19 or afterward.

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The federal government never specified in the legislation whether the new rules would apply to ongoing cases or only to new cases that entered the system after Sept. 19. The federal justice department has repeatedly stated in responses to media requests that there was no need to address this in legislation, as existing case law already makes clear that the rules would only apply to new cases.

But in the Chouhan case, Superior Court Justice John McMahon ruled that the changes in Bill C-75 were “procedural in nature” and applied to cases that had not yet selected their jury as of Sept. 19, including in Chouhan, which was set to begin selecting its jury that day.

The Court of Appeal noted that judges across the country had split on this question. Watt wrote that most cases in Ontario had found the amendments were retrospective and would apply to cases like Chouhan, while most judges outside Ontario ruled the amendments were prospective.

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