R v Chouhan: Accused Rights and Jury Selection
In a jury trial, s. 634(1) of the Criminal Code, RSC 1985, c C-46 formerly permitted both the accused and the Crown to challenge a limited number of jurors peremptorily (without providing a reason). In trials for first degree murder, both the accused and Crown were allowed 20 peremptory challenges.
Section 638 of the Criminal Code permitted accused persons and the Crown to an unlimited number of challenges for cause based on a list of specified grounds. Under s. 640, the validity of challenges for cause was determined by lay triers (members of the jury).
On September 19, 2019, Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts S.C. 2019, c. 25, came into force and changed both these rights, eliminating peremptory challenges (s. 634) and substituting lay triers with judges for challenges of cause (s. 640). R v Chouhan, 2020 ONCA 40 [Chouhan] considered the constitutionality of these amendments.
The Ontario Court of Appeal (“ONCA”) notes in Chouhan that eliminating peremptory challenges was intended to “address the underrepresentation of Indigenous persons on juries and concerns that peremptory challenges were being used in a discriminatory manner in the selection of juries” (Chouhan, para 119).
Concerns regarding the use of peremptory challenges have been longstanding but became widespread following R v Stanley, 2018 SKQB 27 [Stanley]. Mr. Gerald Stanley, a Caucasian man, was charged on one count of second degree murder, for the death of Colten Boushie, a Cree man. Criticism was raised after the accused was seen to have used at least four peremptory challenges to exclude persons who were visibly Indigenous, and the resulting all-white jury subsequently acquitted the accused.
The appellant, Mr. Chouhan, is alleged to have committed first degree murder on September 30, 2016. The nature of this charge meant that the trial would be heard in front of a judge and jury, absent consent from both Crown and accused. Jury selection for Mr. Chouhan was scheduled to begin on September 19, 2019. The was the very day Bill C-75 came into force.
At trial, Mr. Chouhan made three submissions regarding the changes made by Bill C-75. First, the repeal of s. 634 of the Criminal Codebreached ss. 11(d), 11(f), and 7 of the Canadian Charter of Rights and Freedoms [Charter] and could not be saved by s. 1. Second, the amendment of s. 640 substituting judges for lay triers breached these same rights and could not be saved by s. 1. Third, if provisions were deemed constitutional, they should be prospective and thus not apply to the present case.
The trial judge held that both amendments were constitutional and applied retrospectively, thereby restricting Mr. Chouhan’s ability to participate in jury composition. Mr. Chouhan was found guilty of first-degree murder and was sentenced by the trial judge to life in prison without the possibility of parole for 25 years. Mr. Chouhan appealed the trial judge’s findings on the jury selection process.
The Court of Appeal
The right to a fair trial
The first ground of appeal considered the constitutionality of the repeal of s. 634. Mr. Chouhan argued that eliminating peremptory challenges infringed section 11(d)’s guarantee of a right to a fair trial and impartial hearing. The trial judge relied heavily on a presumption of juror impartiality and current safeguards that are in place to weed out bias including the randomness of its selection and the challenges for cause provide sufficient safeguards of the selection” (Chouhan, para 98). Mr. Chouhan argued that widespread racism rebuts the presumption of juror impartiality in cases where the accused is racialized, and the safeguards are insufficient to protect the accused’s s. 11(d) rights.
The Crown argued that no one has a right to shape jury composition and that “safeguards in the jury selection process, when considered cumulatively, would lead a reasonable person, fully informed of these safeguards, to conclude that the process was fair and likely to ensure an impartial jury” (Chouhan, para 41). Likely due to concerns stemming from cases like Stanley, Aboriginal Legal Services sided with the Crown and argued “peremptory challenges perpetuate discrimination against Indigenous persons” (Chouhan, para 45).
The ONCA sided with the Crown for the same reasons as the trial judge. On the question of a fair hearing, the ONCA noted that section 11(d) guarantees “the accused and community perceive the trial to be fair” but that peremptory challenges are by nature arbitrary and subjective (Chouhan, paras 48, 54). The ONCA also noted that “peremptory challenges can enhance or facilitate discrimination against racialized or marginalized prospective jurors” (Chouhan, para 56). On the question of an impartial jury the ONCA reiterated 1) the question is whether a reasonable and fully informed person would have a reasonable apprehension of bias, 2) there is a strong presumption of juror impartiality, and 3) as per R v Kokopenace, 2015 SCC 28 [Kokopenace] a “reasonable apprehension of bias has never hinged on… a jury that proportionally represents the various groups” (Chouhan, para 62).
Under s. 11(f) the appellant argued the ability to challenge jurors is part of the right to “the benefit of trial by jury” (Chouhan, para 20).The trial judge found that s. 11(f) guarantees representativeness in the process used to compile the jury. The ONCA ruled that the s. 11(f) provides no more protection then s. 11(d) as it pertains to representativeness, and that the benefit of representativeness is achieved by providing a broad segment of society the opportunity to participate in jury duty.
The ONCA rejected any argument of a breach of the appellant’s s. 7 rights based on there being no causal connection between peremptory challenges and the deprivation of liberty. While the principles of fundamental justice include trial fairness, this was sufficiently examined under s. 11(d).
Substituting the judge for lay triers
The second ground of appeal considered the constitutionality of substituting the judge as the trier of the challenge for cause, in lieu of lay triers. The appellant argued that in combination with the elimination of peremptory challenges, this results in a jury that is not independent of the judge. The Crown responds that both jurors and judges are impartial and the accused’s concern is not a realistic one. The ONCA decided in the respondent’s favour noting that neither the independence of the jury or jury impartiality is compromised by the substitution (Chouhan, paras 155–156).
Temporal application of amendments
The third ground of appeal considered the temporal application of the amendments. Justice Watt held that only the substitution of trial judges over lay triers applies retrospectively, whereas the repeal of peremptory challenges applies prospectively – meaning applicable only to cases where the right to a trial by judge and jury was determined on or after September 19, 2019 (Chouhan, para 162). The basis of this finding was due to peremptory challenges being a substantive right and not merely a procedural right (Chouhan, para 210).
Given the importance of this decision and the many inconsistent judgements stemming from challenges brought forth by Bill C-75 (i.e. R v King, 2019 ONSC 6386; R v Muse, 2019 ONSC 6119), it is likely that this matter will be heard by the Supreme Court of Canada (“SCC” or the “Court”).
The ONCA’s decision that neither a fair and impartial trial under s.11(d) nor the s.11(f) benefit to trial by jury includes a right to proportional representation is in tension with research that considers the impact of jury race on criminal trials. This research tells us diverse juries deliberate longer, discuss more facts, raise more questions, and are more likely to discuss race, and the racial composition of a jury pool can affect jury outcomes. Thus, I would urge the Court to reconsider the findings of the ONCA for two reasons. First, representativeness should extend to the composition of the jury to increase protections against bias. Second, the accused’s benefit to a trial by jury should include their participation, especially for racialized accused.
A representative jury should extend to the racial composition of juries. In a state where Black men are overrepresented in prisons, and are more likely to receive longer sentences, jury composition is essential.
The ONCA acknowledged, as per R v Parks  O.J. No. 2157 [Parks]:
Racism, and in particular anti-black racism, is part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism.
It is this very racism that should “rebut… the presumption of juror impartiality in cases where the accused is racialized” (Chouhan, para 37), as argued by the accused. The safeguards the court says are in place, are insufficient. It is a façade to argue, that “representativeness promotes impartiality through the process used to compile the jury roll, not through its ultimate composition” (Chouhan, para 94). Later in the ONCA’s judgment even they noted that the “elimination of peremptory challenges will almost inevitably have a significant impact on the composition of the jury eventually selected to determine the accused’s fate” (Chouhan, para 208). Randomness in jury compilation does not equate to diverse juries. While the court also points to challenges for cause as a more objective protection against bias, the “yes or no” nature of challenges for cause is in itself limited.
A more appropriate amendment of s. 634 would have been to make jury panels representative. This would absolve the concerns presented by Aboriginal Legal Services in the present case, as well as racialized accused persons. In considering the constitutionality of eliminating peremptory challenges and what the right to a representative jury entails, the SCC has an opportunity to do this. Concerns about actualizing this may limit their willingness to revisit Kokopenace but I would urge the Court to take this step – the SCC should place an emphasis on diverse juries, especially as it concerns racialized accused persons.
Benefit of a trial by jury
The ONCA rejected the notion that s. 11(f) Charter “benefit of a trial by jury” should be interpreted to include the participation of the accused. This should be revisited. When you consider the historical treatment of Black persons in Canada, it is apparent why accused persons would want to remain actively involved in the selection of the jury that determines their fate. As note by Parks, racism is connected within our institutions. Racialized communities, and Black and Indigenous persons in particular, have a widespread perception of bias of the state.
Counsel for Mr. Chouhan noted that accused persons may wish to challenge prospective jurors “because they appear uneasy, unwilling, or overeager to embrace it” (Chouhan, para 52). The benefit of a trial should include the benefit of challenging these individuals. The interest in removing “prospective jurors who appear unsuitable for the adjudicative task” (Chouhan, para 51) is not due to “conjecture or speculation” (Chouhan, para 92), but due to distrust based on historical facts. The ONCA acknowledged that participation of the accused in the jury selection process enhances the confidence of the accused, and the public, in the fairness of the process (Chouhan, para 52). The confidence of the public in a state where racism is intertwined in the fabric of our institutions, should hold significant weight. Active participation of accused persons in jury selection, also benefits the system as a whole. As indicated by testimony accepted at trial, representative juries result in increased acceptance of the trial “outcome irrespective of the actual result” (Chouhan, para 12).