Canada's highest court released its reasons today for a split decision that upheld as constitutional a law introduced by the federal government to diversify juries.
The Supreme Court of Canada rendered an oral decision from the bench on October 7, 2020, in Her Majesty the Queen v. Pardeep Singh Chouhan.
The case involves Pardeep Chouhan, a Greater Toronto Area man charged with first-degree murder, who argued changes to the jury selection process infringed on his rights under the Charter of Rights and Freedoms.
Bill-C-75, An Act to Amend the Criminal Code, came into effect on Sept. 19, 2019 — the same day Chouhan's jury selection was scheduled to begin in his trial for first degree murder. The legislation modified the jury procedure under the Criminal Code by eliminating the right of the Crown and defence to make "peremptory challenges" — to object to a proposed juror without stating a reason.
Former Liberal justice minister and attorney general Jody Wilson-Raybould introduced the changes in response to public outrage over the 2018 trial of Gerald Stanley, a white Saskatchewan farmer who was acquitted of second-degree murder in the shooting death of 22-year-old Indigenous man Colten Boushie.
During the jury selection process for Stanley's trial, all visibly Indigenous candidates were challenged and excluded by Stanley's defence team through peremptory challenges.
Chouhan challenged the constitutionality of abolishing peremptory challenges, arguing that it infringed on his right to an independent and impartial jury trial. He also argued the Criminal Code amendments should not apply retroactively.
The Ontario Superior Court of Justice dismissed the constitutional challenge. The loss meant Chouhan's jury was formed according to the new law. He was found guilty by a jury of first degree murder in the 2016 shooting death of co-worker Maninder Sandhu.
The Ontario Court of Appeal unanimously upheld the legislation, but ruled the elimination of peremptory challenges should not apply retroactively to all pending cases because it affects an accused's right to trial by jury. The appeal court found the amendment should not have applied to the selection process in Chouhan's case and concluded that the jury was improperly selected.
Chouhan's conviction was overturned and a new trial was ordered for fall 2021.
The Crown appealed the Court of Appeal's decision and Chouhan cross-appealed on the issue of the constitutional validity of the Criminal Code amendments.
The Supreme Court majority allowed the Crown's appeal, dismissed Chouhan's cross appeal and found the Criminal Code reforms can apply retroactively.
The top court's decision restored Chouhan's life-sentence murder conviction.
Supreme Court Justices Michael Moldaver and Russell Brown, with the support of Chief Justice Richard Wagner, wrote they do not deny the value of peremptory challenges.
But they said the true value of the "benefit" is doubtful because they don't allow an accused to hand-pick the jurors, since the accused's ability to exclude some jurors is balanced by the Crown's equal right to exclude others.
"While peremptory challenges permitted the Crown and the accused to exclude prospective jurors for suspected bias, they also had a darker side — a side which allowed for the arbitrary exclusion of jurors, as well as discriminatory practices born of prejudice and stereotypes, deployed by one side or the other to secure not an impartial jury, but a favourable jury," wrote Moldaver and Brown.
Moldaver and Brown, supported by Wagner, also acknowledged that the abolition of peremptory challenges comes at a time of heightened public awareness of the role of racial prejudice in the criminal justice system. They disagreed, however, with Justice Rosalie Abella's suggestion that trial judges use the stand-aside power during jury selection to "actively promote jury diversity."
"Not all communities in Canada are diverse in the same way, nor is there one single Canadian standard of 'diversity,'" Moldaver and Brown wrote.
"The abolition of peremptory challenges will go far to minimizing the occurrence of homogenous juries."
Citing the Stanley trial, they wrote that the jury selection process and the peremptory challenge have long undermined provincial governments' efforts to compile jury rosters that bring together a "representative cross‑section of society, honestly and fairly chosen."
"During the jury selection process, Mr. Stanley used peremptory challenges to exclude five Indigenous prospective jurors from the jury," Moldaver and Brown wrote.
"Absent peremptory challenges, that trial almost certainly would have had a more racially diverse jury, since Mr. Stanley could not have objected peremptorily to the five Indigenous persons who were drawn from the jury panel."
Justice Malcolm Rowe wrote that he agrees the amendments are constitutionally valid and should be backdated. He also warned, however, that the courts should be cautious about crossing into the realm of parliamentarians.
"It is not for the courts to substitute their policy preferences for those of the legislature," Rowe wrote. "Rather, courts should limit themselves to deciding whether constitutional protections have been infringed."
Abella dissented in part because she would have dismissed the Crown's appeal and would have found the legislative change to be so substantive that it could not be applied retroactively — even though she considers the reforms constitutionally valid.
Justice Suzanne Côté wrote a full dissent. She wrote that she would have allowed Chouhan's cross-appeal because she disagrees with the scope of the reforms and would have dismissed the Crown's appeal.
Côté wrote that peremptory challenges are not perfect but Parliament should have regulated them instead of abolishing them.
"It did not need to preserve peremptory challenges unchanged, but it did need to consider the interests of accused persons," Côté wrote.