Focus On

PROCEDURE - Jury - Challenges for cause - Peremptory challenges

Friday, February 28, 2020 @ 8:41 AM  


Lexis Advance® Quicklaw®
Appeal by the accused from conviction for first degree murder. The appellant disputed the trial judge’s rulings on the procedure to be followed in selecting the trial jury after the September 2019 amendments. Before jury selection in the appellant’s case was scheduled to begin, Parliament enacted legislation which abolished peremptory challenges and substituted the presiding judge as the adjudicator of the truth of challenges for cause. The trial judge found that the amendments were not unconstitutional and that they operated retrospectively and thus applied to the appellant.

HELD: Appeal allowed in part. New trial ordered.  Neither the abolition of peremptory challenges nor the substitution of the trial judge for lay triers to determine the truth of the challenge for cause was constitutionally flawed. The abolition of peremptory challenges did not infringe ss. 7, 11(d) or 11(f) of the Canadian Charter of Rights and Freedoms (Charter). Section 11(d) did not guarantee a particular trial process or the process most advantageous to the accused. Peremptory challenges were not an effective tool for weeding out biased jurors. They were exercised arbitrarily, relying on guess work and uncertain mythologies about those most likely to react unfavourably to the challenger’s case. The limited number of peremptory challenges and their exercise based on inherently subjective considerations made them structurally incapable of solving for real or perceived racial bias or to secure the right to a fair hearing and impartial tribunal. Various in-court mechanisms were available to protect against juror bias and ensure the constitutional guarantee of an impartial jury was met. In the absence of any infringement of s. 11(d), there could be no infringement of the right to a trial by jury as guaranteed by s. 11(f). The abolition of the peremptory challenge was not contrary to the principles of fundamental justice. Section 7 did not offer greater protection to a fair hearing or impartial jury tribunal than the specific guarantee afforded by s. 11(d). The appellant could not establish a causal connection between the abolition of peremptory challenges and the deprivation of his right to liberty or to the security of his person. Trial fairness and an impartial jury were specifically protected under s. 11(d). The substitution of the presiding judge for lay triers as the trier of the truth of the challenge for cause did not contravene ss. 11(d), 11(f), or 7 of the Charter. The substitution of the presiding judge as the arbiter of the truth of the challenge for cause did not compromise the independence of the jury and the impartiality of the jury. The self-selecting nature of the lay trier procedure was not constitutionally mandated. The assignment of the presiding judge to the role of trier of the truth of the challenge for cause did not compromise the traditional division of responsibilities between judge and jury in a criminal trial. The abolition of the peremptory challenge applied prospectively but the amendment making the presiding judge the trier of all challenges for cause applied retrospectively. The amendment which eliminated that mode of participation in the jury selection process negatively affected the right to trial by jury as it existed prior to the amendment. This loss of one aspect of the accused’s right to participate in the selection of the jury affected in a negative way the accused’s right to trial by jury as it existed before the amendment. Therefore, the amendment was presumptively prospective. Nothing in the language of the amendment rebutted that presumption. The abolition of peremptory challenges affected the substantive rights of the appellant; thus, it should not have applied to the selection of the jury in his case. The effect of the amendment to the challenge for cause procedure was to substitute the presiding judge as the only trier of the challenges for cause. Unlike the abolition of peremptory challenges, the challenge for cause procedure remained available with the same threshold for access, burden of proof, standard of proof and consequence if successful. The amendment to the challenge for cause procedure was purely procedural and thus applied to this trial.

R. v. Chouhan, [2020] O.J. No. 241, Ontario Court of Appeal, D.H. Doherty, D. Watt and M.H. Tulloch JJ.A., January 23, 2020. Digest No. TLD-February242020010