. . On the other side, the position is that racialized and Indigenous accused should be able to see themselves represented in a jury panel, and that their subjective experiences of racism and discrimination should be relevant to achieving a fair and impartial trial by jury. The majority of the provinces in Argentina allow four peremptories per side and limitless challenges for cause during the voir dire. The peremptory challenge has been a feature of the common law for hundreds of years. In early October, the Supreme Court of Canada (“SCC” or “The Court”) heard submissions in R v Chouhan (Docket Number 39062, Heard on 7 October 2020) [Chouhan] on the constitutionality of the federal government’s abolition of peremptory challenges for jury empanelment under the Criminal Code, RSC 1985 c C-46 [Code]. The parties intervening against the abolition of peremptory challenges focused primarily on two arguments: first, that a representative jury is critical to achieving a fair trial, and second, that the accused’s subjective feelings about the impartiality of jurors should be respected in the jury selection process. This comment looks at the nature of the submissions made by the parties in Chouhan, particularly those of the interveners representing advocacy and equity-seeking groups, regarding the constitutionality and significance of the abolition of peremptory challenges. They argued that such safeguards would create “a procedural and substantive quagmire” by lengthening the jury selection process and causing further litigation, especially since, the DACCR contended, discrimination is difficult to prove (Factum of the Intervener, DACCR, paras 14, 28). As Mr. Chouhan’s jury selection took place on the date of enactment of the amendments, and since no transitional clause was provided in the legislation, the issues at trial were whether the amendments were constitutional pursuant to ss. These additional challenges may be used only to remove alternate jurors. The decision, R. v. King, 2019 ONSC 6386, which found disallowing peremptory challenges would violate Charter rights, stoked a heated … His trial was scheduled for September 16, 2019, and his jury selection was to begin on September 19, 2019, the same day that Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Acts and to make consequential amendments to other Acts, SC 2019 c 25 [Bill C-75] came into force. . As SABA argued, the lived experience of racism and discrimination by racialized and Indigenous accused must be given sufficient weight in the jury selection process, and so they must be allowed to peremptorily challenge some jurors because “[i]t is often impossible to articulate a specific reason why a juror may not be suitable and it may come down to an unfriendly glance, a suspicious glare, or an unwillingness to look at the accused at all.” (Factum of the Intervener, SABA, para 12). Dretke, 2005), Justice Stephen Breyer noted in concurrence that "the law's antidiscrimination command and a peremptory jury-selection system that permits or encourages the use of stereotypes work at cross-purposes," and suggested that the court "reconsider . Share. The challenge for cause will be examined in a subsequent post. OTTAWA — The Supreme Court of Canada has ruled that banning peremptory challenges — a move that allows lawyers to reject a potential juror without giving any explanation — is constitutional, upholding legislation passed by the Liberal government in 2019. The alternating order and equal number of peremptory challenges give both the Crown and the defence an equal opportunity to object to a limited number of potential jurors to address any other concerns regarding suitability or concerns that may fall short of proof of partiality. Concern over the discriminatory uses of peremptory challenges, particularly with respect to the exclusion of Indigenous jurors from trials, was strongly emphasized in both the written and oral submissions of Aboriginal Legal Services (“ALS”) and Debbie Baptiste (the mother of Colten Boushie). Julia’s legal interests include constitutional law, administrative law, professional regulation, and civil litigation generally. While the Ontario Court of Appeal (“ONCA”) affirmed the constitutionality of the amendments, it determined that the abolition of peremptory challenges applied prospectively as it engaged with the accused’s substantive right to a trial by jury. Peremptory Challenge vs. In addition to the peremptory challenge process, section 638 of the Criminal Code also provides for a "challenge for cause" - for example, when case specific factors (pre-trial publicity, race-based prejudices...) raise a realistic concern as to whether the panel of prospective jury members could be predisposed to decide the case in favour of the prosecution. She holds a BA in English from the University of King’s College in Halifax and a MA in English from Dalhousie University. © 2018 Osgoode Hall Law School. No. Unless the Court’s written reasons prove otherwise, if Chouhan has shown us anything, it is that the Court still has a long way to go when it comes to comprehensively engaging with race and discrimination within the criminal justice system. (A) One or Two Alternates. One additional peremptory challenge is permitted when one or two alternates are impaneled. Taking away this tool from the accused and giving trial judges greater discretion to determine whether a juror is impartial or should stand by for reasons of public confidence in the administration of justice will potentially lead to further proliferation of racial bias within the criminal justice system. Julia Schabas is a second-year law student at Osgoode Hall. November 13, 2017 The peremptory challenge cases across Canada lay bare the tension between different momentums in the system. (c) abolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice; (Parliament of Canada 2019). All Rights Reserved. On October 7, 2020, the highest court in Canada confirmed in R. v. Chouhan that the removal of peremptory challenges, which allows both Crown and Counsel to dismiss a potential juror without giving reason did not breach individual rights. Future changes to the composition of juries, he contends, will need to be brought back to Parliament Hill, not to the courts. Additionally, Bill C-75 amended s. 633 of the Code to allow a trial judge to have a prospective juror “stand by” or “stand aside” from the selection process until otherwise necessary for reasons of “maintaining public confidence in the administration of justice.”. From a procedural standpoint, the submissions of the David Asper Centre for Constitutional Rights (“DACCR”), represented by eminent criminal law scholar Professor Kent Roach, contended that Parliament was justified in choosing to abolish peremptory challenges entirely rather than giving judges greater control over the discriminatory use of them. On the other side, those in favour of maintaining peremptory challenges argued that they are an important tool for the accused—particularly racialized and Indigenous accused—to eliminate biased jurors from the panel and thus obtain the benefit of an impartial trial by jury as protected under ss. November 23, 2020. ALS noted that the persistent exclusion of Indigenous people from juries “has a corrosive impact on the jury process,” and that “[a]ny attempt to remedy Indigenous underrepresentation on juries will be subverted when potential Indigenous jurors see that they are deliberately excluded from serving because of their Indigeneity” (Factum of the Intervener, ALS, para 17). Counsel for the defence and the state play an active role during the jury selection process in Canada by exercising a limited number of peremptory challenges. The new legislation repealed this provision, and instead reinforced trial judges’ powers to determine a challenge for cause whereby potential jurors could be excluded from serving if the Crown or the accused has shown that a juror is not impartial under ss. Abolition of Peremptory Challenges from the Criminal Code of Canada, 21 June 2019, has been enacted by the Government of Canada 28 years after the necessity was identified. The accused's lawyer challenged every Indigenous jury candidate through peremptory challenges. As Toronto-based criminal lawyer Annamaria Enenajor pointed out on Twitter following the SCC hearing, “So many of today’s arguments (especially by interveners) in #Chouhan are arguments to be made in front of Parliament, not the #SCC. That change, according to the Canadian Association of Black Lawyers, was a dangerous misstep. “The elimination of the peremptory challenge does make the justice system more transparent, but without removing either parties’ ability to set aside potential jurors for articulable reasons,” McMahon wrote. Julia has worked in governance and policy for various professional regulatory bodies in Ontario and Nova Scotia. Site by Hop Creative, 5475 Spring Garden Road, Suite 701P.O. A comprehensive analysis of the ONCA’s ruling can be found in Sabrina Shillingford’s article from earlier this year. He provides the counterexample of Austin Eaglechief, an Indigenous man who died after a chase involving Saskatoon police in 2017. Racially diverse juries, as the British Columbia Civil Liberties Association (“BCCLA”) submitted, can allow for the mitigation of racial bias and lead to longer, and thus more critical, deliberative processes, whereas “all-white juries enter deliberations with a much higher predisposition toward convicting Black defendants” (Factum of the Intervener, BCCLA, para 10). In early October, the Supreme Court of Canada (“SCC” or “The Court”) heard submissions in R v Chouhan (Docket Number 39062, Heard on 7 October 2020) [Chouhan] on the constitutionality of the federal government’s abolition of peremptory challenges for jury empanelment under the Criminal Code, RSC 1985 c C-46 [Code]. ... Transport Canada travel restrictions will hurt immigration to Canada, says lawyer. Counsel in Canada have very limited information to draw upon when deciding whether to exercise a peremptory challenge - the jury panel list that counsel receives in advance of the trial date contains only the name, address, and occupation of each prospective juror. Peremptory challenges allow counsel to exclude a prospective juror without having to provide reasons to the trial judge overseeing the selection process. With the tragic death of Colton Boushie being much in the news of late following the acquittal of his killer, Gerald Stanley, there has been ample discussion about the purported travesty which is the Canadian jury selection procedure. In addition to the submissions of the Crown, the majority of the parties intervening in support of the abolition of peremptory challenges focused on the discriminatory risks associated with their use. . Similarly, there ought to be greater clarity from the Court on whether judicial notice should be taken with respect to the lived experiences of racialized and Indigenous people in recognizing instances of bias and discrimination among prospective jurors. by giving a good reason why they might be unable to reach a fair verdict, but the challenge will be considered by the presiding judge and … The nature of some of the Justices’ questions signalled similarly conflicting concerns over the abolition of peremptory challenges. While the Court orally rendered its decision on the day of the hearing, with the majority finding that the elimination of peremptory challenges from the Code is constitutional, it has yet to release its written reasons. Two years ago, the federal government axed peremptory challenges, removing the ability of Crown and defence counsel to reject potential jurors out-of-hand, without any need to explain. In particular, the DACCR rejected the argument that any sort of additional procedural safeguards could ensure that peremptory challenges were not used in a discriminatory way. Many of the interveners further submitted that peremptory challenges acknowledged the legitimacy of the subjective feelings of the accused in determining that they received a fair and impartial trial, as well as the full benefit of a trial by jury. While no explanation or reason is given for dismissal via peremptory challenge, if This process takes place after the judge pre-screens the group of prospective jurors for eligibility, competency, and obvious partiality. Box 272, Halifax, N.S.,B3J 2N7, Office: (902) 446-7669Cell: (902) 209-1982(emergencies), Advocacy (Part Thirteen): Aspire to Resonate. Federal laws of canada. Nonetheless, the majority’s ultimate finding that the elimination of peremptory challenges is constitutionally valid suggests that the Court either felt that the past harms of the use of peremptory challenges outweighed any potential benefits, or, more generally, that it had to defer to Parliament’s decision to enact such changes to the Code. Each side is entitled to the number of additional peremptory challenges to prospective alternate jurors specified below. Counsel for Ms. Baptiste similarly noted that the “truth-seeking function of the trial process” cannot be enhanced where jurors are excluded for their Indigenous identity, and that the accused’s ability to do so in Stanley “likely had the effect of discrediting the trueness of the jury’s verdict” (Factum of the Intervener, Debbie Baptiste, para 36). Saskatchewan River Region Indian-European Trade Relations to 1840 Prior to Bill C-75’s enactment, the accused and the Crown could each peremptorily challenge up to twenty prospective jurors pursuant to s. 634(1) of the Code. On September 19, 2019, Bill C-75 came into force and modified the jury selection process under the Criminal Code by eliminating peremptory challenges and empowering trial judges to decide challenges for cause.The Respondent, Mr. Pardeep Chouhan, was charged with first degree murder. Justice Abella, on the other hand, seemed concerned over whether racialized accused should be able to see themselves represented in the jury in order to be able to maintain their right to a fair and impartial jury. The written and oral submissions of the many interveners in Chouhan exposed the divisive debate over Parliament’s abolition of peremptory challenges from the Code. ... Peremptory … Mr. Pardeep Chouhan was charged with first-degree murder on September 30, 2016. What becomes evident in looking at the interveners’ submissions on both sides of the peremptory challenge debate is that they are essentially vying for the same goal: adequate representation and participation of racialized and Indigenous people within the criminal justice system. peremptory challenge: The right to challenge a juror without assigning, or being required to assign, a reason for the challenge. She is a Senior Editor with the Osgoode Hall Law Journal and will complete her 2L winter semester as a Caseworker in the Workers’ Rights Division at Parkdale Community Legal Services. Mr. Chouhan’s conviction was thus set aside and remitted for a new trial as the ONCA found that he was entitled to use the peremptory challenges under the old legislation (R v Chouhan, 2020 ONCA 40). Copyright © 2015 - 2021, Luke J. Merrimen. The state will be called upon first for the next randomly selected individual, and the order then alternates back and forth until twelve jurors are selected. On one side, there is the argument that racialized and Indigenous people should not be denied the chance to participate in the jury process based on their cultural and racial identity, especially where victims of crimes are themselves racialized or Indigenous. All rights reserved. The authority for the peremptory challenge process is found in the Criminal Code of Canada. A peremptory challenge may be used by either party to a legal action in the jury-selection phase, to dismiss a potential juror without stating a reason. Tags: challenge for causeconstitutional validityCriminal Lawjury selectionperemptory challengeright to fair hearingright to trial by jurystand by power. Dretke, 2005), Justice Stephen Breyer noted in concurrence that "the law's antidiscrimination command and a peremptory jury-selection system that permits or encourages the use of stereotypes work at cross-purposes," and suggested that the court "reconsider . The question now is whether the Court in its written reasons will broadly interpret or provide guidance on the use of the challenges for cause or stand by powers in jury empanelment, and whether some sort of balance can be achieved to ensure that accused can—without too heavy an evidentiary burden—raise issues of bias in prospective jurors. The right to a fair trial is not breached by the elimination of peremptory challenges of jurors and letting judges handle challenges for cause, an Ontario Superior Court of Justice judge said, ruling that the changes should be applied to jury picks beginning Sept. 19. — This website is not authorized by the Supreme Court of Canada. Peremptory challenges 634 (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638 [ challenge for cause – grounds ]. Key changes in a federal bill, which has passed third reading, involve peremptory challenges during jury selection and use of preliminary inquiries. 11(d), 11(f), and 7 of the Charter, and if they were constitutional, whether they should apply to Mr. Chouhan’s case. In a jury trial we conducted this last fall, … The Crown subsequently appealed the ONCA’s decision to the SCC on the issue of the temporal application of the amendments, and Mr. Chouhan cross-appealed on the constitutional finding. In other words, the accused and the Crown could reject potential jurors from serving without providing any reasons. While the Court orally … Crown counsel, as local ministers of justice, exercise that choice on behalf of the public. The trial judge held that the amendments were constitutional and applied retrospectively (R v Chouhan, 2019 ONSC 5512). Peremptory challenges refer to the ability for each party to veto a selected juror without the obligation of giving reasons for it. the peremptory challenge system." The authority for the peremptory challenge process is found in the Criminal Code of Canada. 75, at para. … Other potential jurors may be challenged for cause, i.e. BY Justin Ling 19 Oct 2020. We can’t ask the Court to fix all of our bad policy.”. An Ontario Superior Court justice has allowed lawyers to challenge potential jurors without cause in a Hamilton second-degree murder case, a ruling that diverges from that of another judge in the same court. (3d) 481 at 520, [1992] 1 S.C.R. Marginal note: Plea of justification necessary 612 (1) The truth of the matters charged in an alleged libel shall not be inquired into in the absence of a plea of justification under section 611 unless the accused is charged with publishing the libel knowing it to be false, in which case evidence of the truth may be given to negative the allegation that the … Peremptory challenges allow counsel to exclude a prospective juror without having to provide reasons to the trial judge overseeing the selection process. OTTAWA — The Supreme Court of Canada has ruled that banning peremptory challenges — a move that allows lawyers to reject a potential juror without giving any explanation … Laws & Examples The purpose of the jury selection process is to seat a fair, unbiased jury. Laws & Examples The purpose of the jury selection process is to seat a fair, unbiased jury. Peremptory challenge When selecting a jury, each party has the right to have a certain number of jurors dismissed from serving on the panel without stating a reason: R. v. Bain (1992), 69 C.C.C. The order in which the judge will call upon counsel to exercise peremptory challenges is addressed in s. 635 of the Criminal Code. In English, American and Australian law, the right of peremptory challenge is a right in jury selection for the attorneys to reject a certain number of potential jurors without stating a reason. The Tragedy of Colton Boushie – Jury Selection in Canada and Peremptory Challenges By: A. Scott Reid. Canada's highest court ruled from the bench on Wednesday that a law passed by the federal Liberal government to diversify juries is constitutional. 91. After the court clerk randomly selects the initial prospective juror from the judicially pre-screened panel, the judge will call upon defence counsel first to indicate whether the individual is acceptable ("content") or subject to a peremptory challenge ("challenge"). On the one hand, Justices Moldaver and Brown appeared troubled by the risk of arbitrariness and reliance on stereotypes in the use of peremptory challenges. Challenge for Cause During voire dire, each attorney is allowed to dismiss up to a specified number of potential jurors without giving a reason. 638(1)(b) and 640(1) of the Code. As such, defence counsel frequently challenge jurors to reach an ethnic juror who can be selected. Other peremptory orders may be made by the court, such as setting a peremptory trial date, which cannot be changed or challenged by either party. In oral submissions, Professor Roach stated that the Court ought to provide guidance on how the new power to stand by prospective jurors on reasons for maintaining public confidence in the administration of justice should be exercised. Joshua Sealy-Harrington, counsel for the BCCLA, noted in a recent interview that the Court’s interpretation of the challenge powers are unlikely to go very far, since judges are hesitant to participate in the composition of juries. The case of Pardeep Singh Chouhan, who is charged with first-degree murder over a 2016 shooting, is at the centre of a Supreme Court of Canada battle over the rules of jury selection. A peremptory challenge would be used by the defense to excuse the grandmother from the jury. OTTAWA — The Supreme Court of Canada has ruled that banning peremptory challenges — a move that allows lawyers to reject a potential juror without giving any explanation — … More specifically, many of the interveners cited the use of peremptory challenges in R v Stanley, 2018 SKQB 27 [Stanley] as the impetus for the changes to the Code. The peremptory challenge is a tool in the jury selection process. by Luke Merrimen. BY Anita Balakrishnan 07 Nov 2019. It is likely, however, that these are overly optimistic expectations of the Court’s forthcoming decision. This number varies by jurisdiction, but is generally between 6 and … The U.S. Supreme Court has ruled that no party to a legal action can remove a potential juror based on race. the peremptory challenge system." Abolishing peremptory challenges by Crown or defence is no knee-jerk quick fix, as some claim. While each side approaches this common goal in ways completely at odds with one another, what this case demonstrates is that Parliament has failed to establish a balanced approach to allowing racialized and Indigenous people to participate in the criminal justice system, whether as a lay person, a victim, or an accused. The implementation of Bill-C 75 on June 21, 2019, removed the use of peremptory challenges in Canada. In doing so, it highlights the key tensions at play in this case and considers whether a balance between the competing arguments for the constitutionality of peremptory challenges can in fact be struck. A peremptory challenge would be used by the defense to excuse the grandmother from the jury. (4) Peremptory Challenges. Furthermore, counsel are not permitted to ask questions of prospective jurors during the peremptory challenge process. In another trial, I used a peremptory challenge to excuse a juror who was found to be acceptable following a challenge for racial prejudice despite the fact he had told the court that he was prejudice but that he could put that aside and be impartial. It allows both the accused and the prosecution the right to veto jurors off of … Peremptory challenge When selecting a jury, each party has the right to have a certain number of jurors dismissed from serving on the panel without stating a reason: R. v. Bain (1992), 69 C.C.C. 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms [Charter]. Peremptory challenges allow the accused to reject potential jurors who they perceive to be implicitly or explicitly biased, particularly with respect to the accused’s race, and to try to keep jurors who share the same background as the accused through the exclusion of other jurors. A number of the interveners submitted that peremptory challenges are crucial to maintaining a representative jury. Both submissions further posited that the historical failure of peremptory challenges in removing Indigenous people from juries and the consequences of such failures outweigh any benefit that might exist from peremptory challenges in creating a more representative jury. Our ... jury selection process ensures equality of influence over the composition of the jury as between the parties. As the Canadian Association for Black Lawyers (“CABL”) contended, providing further powers to trial judges to make a determination of bias or discrimination “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,” especially since the majority of judges are white (Factum of the Intervener, CABL, para 38). When she’s not hitting the books, she can be found trying new foods, biking around Toronto, or relaxing in Creemore, ON. 32, provide additional insight into the peremptory challenge process: ...the Criminal Code gives the parties a limited opportunity to object to specific jurors chosen from the jury list. If both counsel are content, the individual will become a member of the jury. The number of peremptory challenges available to each counsel depends upon several case-specific factors, including the maximum potential punishment for the most serious offence charged (Criminal Code s. 634). On one side, those in favour of abolition contended that peremptory challenges had historically been used for discriminatory purposes by keeping racialized and Indigenous people off of juries, especially where the victim is a racialized or Indigenous person. In Stanley, the accused—a white man in rural Saskatchewan—was charged with and ultimately acquitted of second-degree murder of Colten Boushie—a young Indigenous man—and had peremptorily challenged all prospective jurors who were Indigenous. A peremptory challenge was used "once the defence lawyer got a good look at him," he says. Peremptory challenges can be exercised on purely subjective grounds. 11(d) and 11(f) of the Charter,” as it eliminated “the only tool […] available to an accused person to ensure that the few jury panel members who may share the accused’s background were not left off the petit jury” (Factum of the Intervener, CMLA and FACL, paras 18-19). Intervening Submissions in Favour of Abolition of Peremptory Challenges. 91. The system must balance the timely administration of justice with the accused’s constitutional rights in a fair and unbiased fashion. The following comments from Karatkasanis, J, speaking for a unanimous Supreme Court of Canada in R. v. Davey, [2012] S.C.J. Another Loss for a Pure Economic Loss Claim in, Awaiting the Next Chapter in Canadian Copyright Law: Leave Granted to SCC for, An Act to amend the Criminal Code, the Youth Criminal Justice Acts and to make consequential amendments to other Acts, Factum of the Intervener, Debbie Baptiste, Supreme Court Affirms Protection for Private Records: R v Quesnelle, Catch & Release: Redefining Hearsay Admissibility in. (3d) 481 at 520, [1992] 1 S.C.R. The South Asian Bar Association of Toronto (“SABA”) argued that jury representativeness must extend beyond the compilation of the jury roll and be reflected in the “petit” or final jury composition itself, and that the most effective way to do achieve this goal is through peremptory challenges. During the selection of a jury, both parties to the proceeding may challenge prospective jurors for a lack of impartiality, known as a challenge for cause. Intervening Submissions Against Abolition of Peremptory Challenges. “Peremptory challenges just are really asking lawyers to rely on their stereotypes about the person they see,” said Jonathan Rudin with Aboriginal Legal Services in Toronto. Parliament’s outright abolition of the challenges, the coalition of the Canadian Muslim Lawyers Association (“CMLA”) and the Federation of Asian Canadian Lawyers (“FACL”) submitted, was “overbroad and unnecessarily impairing of the rights guaranteed by ss.