SCC upholds repeal of peremptory challenges, fractures on what comes next
On October 7, 2020, the Supreme Court of Canada heard oral submissions in the case of R v Chouhan, 2021 SCC 26. The case turned on the constitutionality of Parliament’s abolition of peremptory challenges in jury selection and the retrospective application of that abolition to trials where the defence had already elected to a trial by jury. The court issued an oral judgement, upholding the abolition on the same day submissions were heard. Nearly eight and a half months later, on June 25, 2021, the court issued five separate sets of reasons, disclosing deep divisions regarding the implications of this change.
Background on Peremptory Challenges
Origin
A peremptory challenge is a mechanism for parties in criminal cases to exclude a fixed number of jurors at their discretion without cause. The historical right to a peremptory challenge is almost as old as the English jury system itself, dating back to at least the late-thirteenth or early-fourteenth century. Though peremptory challenges were first conceived as a tool for the Crown to control jury composition, they quickly became regarded as an important element of the defence’s arsenal, with Blackstone commenting that a defendant’s right to peremptory challenges was “a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous.” Nonetheless, peremptory challenges have become a matter of increasing controversy.
Canada
Canada’s abolition of peremptory challenges stemmed largely from an alleged abuse by defence counsel in the 2018 trial of Gerald Stanley, a white farmer accused of murdering Colton Boushie, a 22-year-old Cree man. It was reported that the defence used peremptory challenges to strike all five of the panel’s visibly Indigenous candidates, producing an all-white jury out of a pool of 750 people selected from a region with a high Indigenous population.
Public outcry was swift and in March 2018, Parliament introduced Bill C-75 (An Act to amend the Criminal Code, the Youth Criminal Justice Acts and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25) which, among other things, abolished peremptory challenges and established a judicial power to “stand aside” jurors for “maintaining public confidence in the administration of justice” (Criminal Code, s. 633).
Chouhan Background
History and Overview
Jury selection in Pardeep Singh Chouhan’s trial began on the same day that Bill C-75’s abolition of peremptory challenges came into effect, on September 19, 2019. He challenged the constitutionality of C-75’s changes on the grounds that it infringed his sections 7, 11(d), and 11(f) rights to an independent and impartial jury.
The trial judge rejected this argument. The Ontario Court of Appeal similarly rejected that C-75’s changes were unconstitutional but held the rules could not apply retrospectively.
Submissions to the Supreme Court
At the Supreme Court, Chouhan’s counsel and the Crown were joined by a variety of interveners.
Aboriginal Legal Services, Colten Boushie’s mother, and the David Asper Centre for Constitutional Rights (represented by Professor Kent Roach) argued against peremptory challenges as historically uncontrollable mechanisms for racial discrimination.
Conversely, groups such as the Canadian Association of Black Lawyers, the Canadian Muslim Lawyers Association, the Federation of Asian Canadian Lawyers, and the South Asian Bar Association of Toronto intervened to argue, among other things, that peremptory challenges played a key role in maintaining more diverse juries, granting racialized defendants agency in their case, and bridging the gap between the challenge for cause regime and more subtle signs of racial animus and implicit bias that a defendant may notice but be unable to prove.
Chouhan SCC Ruling
Generally
A majority at the Supreme Court of Canada reinstated the trial judge’s original ruling, granting C-75 immediate retrospective effect. However, the court fractured on how to adapt Canada’s justice system to a post-peremptory world.
Anti-Bias Instructions
Seven members of the SCC endorsed the need to provide anti-bias instructions to the jury.
Moldaver and Brown JJ (Wagner CJ concurring) & Rowe J (Providing Supplemental Reasons on Other Issues) further endorsed by Martin J (Karakatsanis and Kasirer JJ concurring)
Justices Moldaver and Brown endorsed jury instructions which would “expose biases, prejudices, and stereotypes that lurk beneath the surface,” wherever “specific biases, prejudices, and stereotypes . . . may reasonably be expected to arise in the particular case” (para 49). They endorsed two types of anti-bias warnings: a general warning and a specific warning.
The general anti-bias warning is meant to alert the jury to the prevalence of a “variety of beliefs, assumptions, and perceptions” which every juror brings to court, encouraging them to exercise their duties impartially with “a heavy dose of self-consciousness and introspection” (paras 53-54).
Specific anti-bias instructions are called for when a judge, with the assistance of counsel, finds that certain specific stereotypes or myths about the accused, victim, etc. may have a direct impact on issues at trial. The court should then seek to systematically identify and confront these myths.
Challenge for Cause
While seven members of the SCC endorsed a more expansive challenge for cause regime, there are early signs of potential divisions on how far this liberalization will go.
Traditionally, inquiries into bias that might allow for a juror to be struck for cause have been largely limited to variations of the so-called “Parks question,” which asks: “would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is [offender race] and [the victim/complainant is victim/complaint race]?” This question has been criticized for failing to capture “anything beyond the grossest forms of prejudice” (para 121).
With challenge for cause replacing the peremptory regime as the new primary framework for removing worrisome jurors, the deficiencies of the Parks system are of added importance.
Moldaver and Brown JJ (Wagner CJ concurring) & Rowe J (Providing Supplemental Reasons on Other Issues)
Justices Moldaver and Brown endorsed a more expansive set of questioning for challenges for cause, stating both that the Parks question was never meant to be the only question asked of jurors and that a wide range of characteristics beyond race could be the proper subject of questioning if they created a risk of prejudice and discrimination. While hedging their reasons with a warning that judges should respect the juror’s privacy interests recognized in prior case law, the justices provided an extensive framework on how judges should approach the new challenge for cause regime, focusing primarily on a juror’s “willingness to identify unconscious bias and strive to cast it aside” (para 63).
Martin J (Karakatsanis and Kasirer JJ concurring)
Justice Martin endorsed a more extensive challenge for cause regime beyond the Parks question but declined to set any limits on permissible questions in this case, due to having only received limited submissions on the issue. Nonetheless, she noted that while privacy interests are relevant in jury questioning, they are only “one interest to be weighed against others” (para 120).
Abella J (Dissenting in Part)
Justice Abella likewise endorsed a more in-depth challenge for cause inquiry, though her endorsement of a more “probing” inquiry appears to place less significance on juror privacy than Justices Moldaver and Brown’s reasons (para 160).
Expanded Stand Aside Powers
Bill C-75 expanded judicial stand aside powers to allow judges to “stand aside” jurors for the purpose of maintaining public confidence in the administration of justice. Jurors who are stood aside are placed at the end of the jury pool and only selected or formally excused if the parties are unable to complete jury selection without them.
Four justices endorsed using the new stand aside powers to stand aside jurors for potential bias, thereby approximating a historic use of peremptory challenges. Five justices further held that these new powers could not be used for the purpose of producing a more diverse petit jury (i.e., trial jury).
Moldaver and Brown JJ (Wagner CJ concurring) & Rowe J (Providing Supplemental Reasons on Other Issues)
Justices Moldaver and Brown endorsed the discretionary application of expanded judicial stand aside powers to stand aside jurors who might be partial notwithstanding them having survived a challenge for cause when it is within the interest of “maintaining public confidence in the administration of justice” (para 69).
Nonetheless, Justices Moldaver and Brown explicitly rejected Justice Abella’s proposition that the new stand aside powers may be used to increase the diversity of the trial jury.
Martin J (Karakatsanis and Kasirer JJ concurring)
Justice Martin held that it would be premature to place limits on using the new stand aside powers.
Abella J (Dissenting in Part)
Relying on parliamentary transcripts from the enactment of Bill C-75, Justice Abella voiced support for using the expanded stand aside powers to promote a more diverse jury on a case-by-case basis.
Côté J. (Dissenting)
Justice Côté broke with the positions of both Justice Abella and Justices Moldaver and Brown, reasoning that the new stand aside powers do not permit stand asides for bias nor stand asides for the purpose of diversifying the jury.
Looking Forward
The repeal of peremptory challenges significantly changes the rights of criminal defendants during jury selection. Courts will need to carefully ensure that parties will be able to exercise both new and old powers to achieve the legitimate purposes that counsel previously relied solely on peremptory challenges to achieve. So far, the Supreme Court of Canada has failed to clearly provide the necessary guidance on how this can be done, and it remains unclear as to what degree the court is willing to reform rules to approximate the legitimate practical protections that defendants had under the prior regime, even as old abuses are excised.
Editor’s Note: This is an abridged version, read the full article on the CLSA’s website.
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