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PROCEDURE - Jury - Peremptory challenges

Friday, June 25, 2021 @ 1:43 PM  


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Appeal by the Crown from a decision of the Ontario Court of Appeal that overturned Chouhan’s conviction for first degree murder and ordered a new trial on the basis that amendments to the jury selection process did not apply to Chouhan’s trial. Cross-appeal by Chouhan from the Court of Appeal’s decision that the amendments were constitutional. Amendments that abolished peremptory challenges of jurors came into force on the same day that jury selection in Chouhan’s trial for first degree murder was scheduled to begin. The amendments did not include transitional provisions. The trial judge dismissed Chouhan’s constitutional challenge to the amendments and determined they applied to his trial. Jury selection proceeded without peremptory challenges. Chouhan was convicted of first-degree murder. The Court of Appeal overturned Chouhan’s conviction and ordered a new trial on the basis that although the abolition of peremptory challenges was constitutional, the amendments affected an accused’s substantive right to participate in jury selection and operated only prospectively.

HELD: Appeal allowed; cross-appeal dismissed. Chouhan’s conviction was restored. The statutory amendments that abolished peremptory challenges were constitutional and purely procedural with retrospective application. They applied to all jury selection processes that commenced on or after Sept. 19, 2019, the date the abolition came into force, including Chouhan’s trial. The abolition of peremptory challenges did not infringe s. 11(d) of the Charter, which did not entitle an accused to any particular procedure, or s. 11(f) of the Charter. The absence of peremptory challenges did not affect the substantive rights codified in ss. 11(d) and 11(f) of the Charter. Jury instructions and the challenge for cause procedure could address the risk of bias in appropriate cases. Even accepting the existence of a substantive right to participate in jury selection, the amendments affected only the way in which that substantive right was exercised. Concurring and dissenting reasons were provided.

R. v. Chouhan [2020] S.C.J. No. 101, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., October 7, 2020. Digest No. TLD-June212021011-SCC