The R v Chouhan Series, Part I: Does the Blanket Elimination of Peremptory Challenges Actually Ensure More Diverse, Representative, and Impartial Juries?
Mashoka Maimona, 3L, Volume 79 Senior Editor
On June 25, the Supreme Court released a ruling that has significant ramifications for the jury selection process in criminal trials across the country. In R v Chouhan, 2021 SCC 26 (CanLII) (Chouhan SCC), the Court held that the federal government’s elimination of peremptory challenges under Bill C-75 is constitutionally valid and retrospective in application.
This comment examines numerous intervenors’ submissions on appeal to probe whether peremptory challenges ultimately advance or obstruct a fair jury selection process. Will these changes ensure more diverse and representative juries as Parliament intended, or do the opposite – diminish jury impartiality by preventing accused persons from removing possibly biased jurors?
History
Before September 2019 and since Confederation, jury selection in criminal trials featured two types of challenges: challenges for cause and peremptory challenges. Challenges for cause require the Crown or the accused to provide a reason why the prospective juror should be dismissed. The various grounds on which a party may challenge for cause are listed in s. 638 of the Criminal Code. Peremptory challenges, on the other hand, allow a party to dismiss a prospective juror without providing any reason at all. The number of peremptory challenges was limited in each case, ranging from 4 to 20 depending on the offence committed.
In September 2019, 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) was passed, abolishing peremptory challenges in the jury selection procedure. Another key amendment replaced lay triers with the presiding judge as the adjudicator of challenges for cause. A third amendment empowered trial judges to stand aside prospective jurors from the selection process for reasons of “maintaining public confidence in the administration of justice” (Criminal Code, s.633).
Former Attorney General and Justice Minister Jody Wilson-Raybould introduced the amendments after peremptory challenges gained national attention during the polarizing R v Stanley trial. In 2018, Gerald Stanley, a white farmer in Saskatchewan, was acquitted of murder and manslaughter by an all-white jury for the killing of a 22-year-old Cree man, Colten Boushie. During the jury selection process for the trial, Mr. Stanley’s defence team used peremptory challenges to exclude all visibly Indigenous candidates from the jury panel. Many, including Mr. Boushie’s family and other legal observers, have alleged that those potential jurors were challenged solely because they were Indigenous, with the defence excluding them “to craft a more favourable jury for the Caucasian accused” (Factum of the Intervener, Debbie Baptiste at para 17 (Baptiste Factum)). On this account, peremptory challenges were used to deny a vital set of lived experiences and unique worldviews from the justice-seeking process.
Upon the bill’s passage into law, there was nationwide confusion about whether the ban would apply retrospectively or prospectively. On the same day the law came into force, jury selection for Pardeep Chouhan’s trial was scheduled to begin. The trial judge ruled that Bill C-75 was effective immediately, thereby denying Mr. Chouhan the opportunity to exercise peremptory challenges. On appeal, Mr. Chouhan challenged the constitutional validity of two of the Bill C-75 amendments referenced above on the grounds that they infringed his rights as an accused under ss. 7, 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms (R v Chouhan, 2020 ONCA 40 (CanLII) at para 17). The Court of Appeal rejected the constitutional argument but allowed Mr. Chouhan’s appeal, holding that the trial judge erred in applying the new legislation because the abolition of peremptory challenges only applied prospectively.
The Supreme Court of Canada’s Decision
At the Supreme Court, eight of the nine justices agreed that Bill C-75’s elimination of peremptory challenges was constitutionally valid. Of those eight, seven went against the Court of Appeal and held that the abolition of peremptory challenges applied retrospectively. This means that any accused whose right to peremptory challenges vested before the passing of Bill C-75 would no longer be entitled to those peremptory challenges. The trial judge therefore decided correctly in denying Mr. Chouhan the ability to peremptorily challenge prospective jurors (Chouhan SCC at paras 89-90).
While the Court was nearly unanimous in finding the abolition of peremptory challenges to be constitutional, the Court split in five camps because of disagreements over the temporal application of Bill C-75, the enhanced stand aside power, and the challenge for cause procedure. Justice Coté was the lone dissenter on the constitutional question, finding that Bill C-75 violated an accused person’s s. 11(f) right to the benefit of trial by jury (Chouhan SCC at para 292). Justice Abella found Bill C-75 to be constitutional but held that the elimination of peremptory challenges should only apply prospectively, as it affects the substantive rights of an accused to meaningfully participate in jury selection (Chouhan SCC at paras 205-206). The remaining justices found Bill C-75 to be constitutional and to have retrospective application. Chief Justice Wagner, along with Justices Moldaver and Brown, also cautioned trial judges against using the enhanced stand aside power to foster greater jury diversity (Chouhan SCC at para 74). In addition, they provided guidelines to trial judges on the extent of questioning permissible in a challenge for cause (Chouhan SCC at paras 63-67). Justices Karakatsanis, Martin, and Kasirer, responding to Justices Moldaver and Brown, advised against issuing directions on the enhanced stand-aside power or the challenge for cause procedure until submissions were heard on the matter (Chouhan SCC at paras 111-112). Finally, Justice Rowe wrote generally on the dangers of constitutionalizing statutory provisions.
Submissions in Favour of and Against Abolishing Peremptory Challenges: Do Peremptory Challenges Prevent or Breed Bias?
The appeal to the Supreme Court attracted widespread attention. A slew of interveners, including many representing equity-seeking and racialized groups, submitted arguments on both sides of this controversial issue, torn between whether peremptory challenges prevent or allow for discrimination in the jury selection process.
On one side, interveners like Debbie Baptiste (the late Mr. Boushie’s mother) and the Aboriginal Legal Services (“ALS”) argued in favour of Bill C-75. Ms. Baptiste noted how peremptory challenges have been used in the past to “discriminate against potential jurors based solely on race” (Baptiste Factum at para 8). Thus, Parliament’s purpose and objective behind Bill C-75 — “to eliminate the discriminatory use of peremptory challenges” — is pressing and substantial (Baptiste Factum at para 20). ALS similarly argued that the exclusion of Indigenous jurors through peremptory challenges is a “persistent problem that has a corrosive impact on the jury process” (Factum of the Intervener, ALS at para 17). Echoing these submissions, Justices Moldaver and Brown called the true value of peremptory challenges “doubtful” (Chouhan SCC at para 18). Accused persons who peremptorily challenge prospective jurors must speculate about the prospective juror’s beliefs based merely on their appearances (Chouhan SCC at para 19). The extent to which peremptory challenges actually assist an accused in securing a favourable jury is therefore uncertain.
On the other side, defence lawyers and representatives from the B.C. Civil Liberties Association, the Canadian Association of Black Lawyers, the South Asian Bar Association of Toronto, the Federation of Asian Canadian Lawyers, the Canadian Muslim Lawyers Association, and others argued that despite the need for reforms, peremptory challenges serve an essential function. Most of them described the longstanding tool as a mechanism to create more diverse and proportionally representative juries. This position found expression in the judgement of Justice Abella, who wrote that peremptory challenges act as a “safety valve” for an accused to exclude potentially biased jurors and diversify the jury (Chouhan SCC at paras 194, 197).
Peter Thorning, on behalf of the Canadian Association of Black Lawyers, argued that the removal of the peremptory challenge was an “error of law” because what remains in its absence does little “to guarantee a fair trial for a Black accused” but rather “virtually guarantee[s] that in many trials across this country, Black accused will face all-white juries” (SCC Webcast of the Chouhan Hearing at 2:37:30 (Chouhan Webcast)). And according to Joshua Sealy-Harrington, representing the B.C. Civil Liberties Association, there are no other means available to the court to target implicit racial bias amongst prospective jurors: “This seeming contradiction, a biased society producing an unbiased jury, can only be justified if the process for jury selection filters implicit racial bias. Peremptory challenges were the only measure capable of acting as that filter” (Chouhan Webcast at 2:32:00).
Those arguing against the constitutional validity of the legislative changes also addressed how challenges for cause and the judge’s ability to stand aside jurors to maintain public confidence in the administration of justice are not as effective as peremptory challenges at thwarting perceived or implicit bias. Discrimination, particularly implicit bias, can be difficult to prove, thus limiting the effectiveness of challenges for cause. This argument proved unpersuasive to the majority of the Supreme Court, however. Justices Brown and Moldaver held that the existing challenge for cause procedure, coupled with anti-bias instructions from trial judges and discretionary uses of the stand aside power, would be sufficient to protect an accused’s s. 11(d) right to an impartial tribunal (Chouhan SCC at para 83).
Commentary: Does the Wholesale Removal of Peremptory Challenges Fix the Root of the Problem?
On the one hand, peremptory challenges allow racialized accused persons engaged in the jury selection process to pre-emptively root out jurors who might harbour racial bias. On the other hand, they may also bleach out the jury panel and exclude racialized persons’ experiences, including the experiences of Indigenous accused persons and victims. Both sides of the debate are focused on the same end goal: removing the prospect of jury partiality, which is a symptom of broader societal and structural racism. However, the knee-jerk solution of throwing the baby out with the bathwater (in this case, eradicating peremptory challenges instead of fixing this centuries-old tool) is unlikely to substantively reverse the deficit of Indigenous jurors.
The structural and direct discrimination and alienation that Indigenous people encounter across the criminal justice system has been central to seminal decisions such as R v Williams, [1998] 1 SCR 1128, 1998 CanLII 782 (SCC), R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC), R v Ipeelee, 2012 SCC 13 (CanLII), Ewert v Canada, 2018 SCC 30 (CanLII), and most recently, R v Barton, 2019 SCC 33 (CanLII). Former Supreme Court Justice Frank Iacobucci explored the pervasive lack of representation of First Nations peoples on Ontario juries in his 2013 report, First Nations Representation on Ontario Juries (First Nations). The report identified various systemic barriers preventing Indigenous representation on jury panels. One of his recommendations included discussing the possibility of recommending to the Attorney General of Canada an amendment to the Criminal Code that would prevent the use of peremptory challenges to discriminate against First Nations people serving on juries (First Nations at para 376 – recommendation 15). This could involve affording the trial judge the power to intervene if there is a discriminatory pattern to the use of the challenge, instead of removing peremptory challenges entirely.
The right to trial by jury has been one of the cornerstones of our criminal justice system for centuries, and since 1982, a guaranteed right enshrined in the Charter under the s. 11(d) right to a fair trial by an independent and impartial tribunal and the s. 11(f) right to the benefit of trial by jury. The sharply split decision of R v Kokopenace, 2015 SCC 28 (CanLII) (Kokopenace), which dealt with the issue of jury representativeness, problematically endorsed the notion that juries are impartial due to a purportedly random selection process. The decisions that formed the majority offered cold comfort to accused and victims by its lacklustre protection of jury representativeness. The Supreme Court’s judgment in Chouhan has arguably followed Kokopenace’s lead by regrettably misunderstanding how best to dispense equality-based justice. While peremptory challenges are flawed, a blanket removal may risk that the changes lead to more all-white juries — the very opposite of what Parliament intended.
Indeed, the legal system has not discovered sure-fire methods of preventing racial bias from tainting the adjudicative process. Thirty-five years ago, the United States Supreme Court ruled that the prosecution must not use its peremptory challenges to dismiss potential jurors because of their race (Batson v. Kentucky, 476 U.S. 79 (1986)). This gave rise to the “Batson challenge,” where the defence may object to the prosecution’s peremptory challenges if it believes the challenges were exercised to exclude members of the accused person’s race. The U.S. approach, adapted to the Canadian context, may be a better way of achieving the legislative objective of preventing the discriminatory use of peremptory challenges without offending ss. 11(d) or 11(f) of the Charter, and without inhibiting the accused’s right to participate in choosing what they perceive to be a fair, impartial, and representative jury.
Without peremptory challenges, there may be greater transparency. Now, parties will be compelled to make a challenge for cause when concerns about a potential juror arise, which can be openly debated before a judge. However, the objection does not have to be accepted. Empowering trial judges — part of an overwhelmingly white judiciary where Black and Indigenous members are severely underrepresented — to adjudicate challenges for cause on grounds of impartiality “does not give an accused person comfort that the trial judge’s discretion will be exercised in a way that is mindful of racial bias,” the Canadian Association of Black Lawyers persuasively pointed out (Factum of the Intervener, Canadian Association of Black Lawyers at para 38). Taking peremptory challenges away from the accused and giving trial judges greater discretion to determine whether a juror is impartial may aggravate racial bias within the criminal justice system.
Eradicating peremptory challenges is insufficient on its own to remove perceived or indirect racial bias. Its wholesale removal will potentially do more harm than good to Indigenous, Black, and other marginalized communities. It appears that defence counsel and the Crown have lost an important tool to weed out biased jury candidates. Abolishing peremptory challenges may exacerbate the very issue that Parliament aimed to fix: systemic racism. Ridding criminal trials of peremptory challenges does not ensure complete impartiality of the jurors. After all, little can ward against the incessantly human instinct of bias, conscious or unconscious. Does the root of the problem lie with having a jury of one’s peers, supposedly the “conscience of the community,” ultimately deciding the guilt or innocence of the accused? That answer is beyond the scope of this comment. It may require a reframing of what equality-based justice looks like.