R. v. Chouhan2020 ONCA 402021 SCC 26 (39062)

“In 2019, Parliament modified how juries are selected in Canada. Sections 269, 271 and 272 of 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, abolished accused persons’ peremptory challenges of jurors, modified challenges for cause, and vested trial judges with the power to stand aside prospective jurors to maintain public confidence in the administration of justice. These amendments came into force on the same day that jury selection in C’s trial for first degree murder was scheduled to begin, depriving C of the right to remove a limited number of prospective jurors from the jury without providing a reason for doing so. C challenged the constitutionality of the abolition of peremptory challenges on the basis that it infringed his right to a fair and public hearing before an independent and impartial jury under s. 11 (d) of the Charter  and his right to the benefit of trial by jury guaranteed by s. 11 (f) of the Charter . C also argued that as the amending Act lacked any transitional provisions, the amendments operated only prospectively and therefore did not apply to his trial.

The trial judge dismissed C’s constitutional challenge and determined that the amendments applied to C’s trial. Jury selection proceeded without peremptory challenges. C was convicted of first degree murder and appealed from his conviction. The Court of Appeal overturned C’s conviction and ordered a new trial. It held that the abolition of peremptory challenges was constitutional, but that since the amendments affected an accused’s substantive right to participate in the selection of the jury, they operated only prospectively and did not apply to C’s trial. The Crown appeals to the Court on the issue of the temporal scope of the abolition of peremptory challenges. C cross‑appeals on the constitutionality of the amendments abolishing peremptory challenges.”

The SCC (with joint reasons by three judges, separate concurring reasons by another judge [with whom two concurred], a further set of concurring reasons, a set of reasons dissenting in part, and a further set of dissenting reasons) allowed the appeal and restored the conviction.

Justices Moldaver and Brown wrote as follows (at paras. 24, 40-43, 47, 50-59, 63-64, 68, 71-73, 81-83, 85, 102-104):

“In sum, while acknowledging the subjective benefit of peremptory challenges to accused persons, courts and commentators have rightly pointed out that public confidence in the administration of justice suffers when the parties use their challenges to exclude any subset of the population, or when they appear to do so. This abuse has largely escaped judicial oversight and undermines efforts by the provinces to compile representative rosters from which potential jurors are summoned to courthouses for jury duty, as acknowledged by the Iacobucci Report.

Respectfully, we cannot endorse a view of jury selection which measures a juror’s impartiality by whether that juror shares a characteristic of their identity with the accused or the victim. We also observe that absolute diversity on a jury is unattainable, as no group of 12 could ever represent the “innumerable characteristics existing within our diverse and multicultural society” (Kokopenace, at para. 43; see also Biddle, at para. 58, per McLachlin J.).

In any event, the abolition of peremptory challenges will go far to minimizing the occurrence of homogenous juries. The in‑court jury selection process, and in particular the peremptory challenge, has long undermined the provincial governments’ efforts to compile jury rosters that bring together a “representative cross‑section of society, honestly and fairly chosen” (Sherratt, at p. 524; see also Kokopenace, at paras. 39‑40). An example of this is presented by the trial which prompted Parliament to abolish peremptory challenges — the trial of Gerald Stanley, who was charged with the murder of Colten Boushie, a young Indigenous man. During the jury selection process, Mr. Stanley used peremptory challenges to exclude five Indigenous prospective jurors from the jury. 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.

On this point, the Iacobucci Report is instructive. By way of explanation, it made extensive recommendations for improving Indigenous representation on jury rolls in Ontario. For example, the province could draw the names of eligible jurors from comprehensive databases such as those kept by the ministries of health and transportation; it could simplify the language on jury questionnaires; it could provide opportunities for citizens to volunteer to serve as jurors; and it could provide translation services to jurors at trial. But the Report also spoke of the potential deleterious impact of peremptory challenges on such efforts, concluding that even if every recommendation were “implemented to its fullest”, Indigenous representation on juries “could still be significantly undermined through discriminatory use of peremptory challenges” (para. 376).

It follows, then, that Parliament, in abolishing peremptory challenges, sought to give greater effect to provincial initiatives to increase jury representativeness, which in turn should enhance the diversity of jury composition. To that end, the provinces are free and even encouraged to act to increase the diversity of those who appear for jury duty, including by pursuing the measures identified in the Iacobucci Report (see also Kokopenace, at paras. 126‑27). In all cases, however, the provinces’ constitutional obligation requires them to make “reasonable efforts to: (1) compile the jury roll using random selection from lists that draw from a broad cross‑section of society, and (2) deliver jury notices to those who have been randomly selected” (Kokopenace, at para. 61 (emphasis added)). As we will explain, it is these structural measures, and not the isolated discretionary decisions of trial judges, that should be relied upon to preserve and enhance the representativeness of juries in Canada, or to address any ill effects thereon arising from societal inequalities.

Finally, before proceeding to the s. 11 (f) issue, and given the parties’ and interveners’ extensive submissions on these matters, we wish to highlight the opportunities that the parties in criminal trials have to raise and address concerns about juror partiality and bias. First, in appropriate cases, trial judges should consider crafting jury charges and mid‑trial instructions that caution against the risk that bias, racial or otherwise, will taint the integrity of the jury’s deliberations. Second, the challenge for cause provisions under s. 638  of the Criminal Code  continue to provide a robust mechanism for accused persons to raise concerns about a potential juror’s partiality. Third, the amended stand‑aside power under s. 633  of the Criminal Code  further accounts for any gap that may have been left by the abolition of peremptory challenges. We discuss each of these in turn, but emphasize that, contrary to the views expressed by our colleague Martin J., our reasons on these matters do not constitute unnecessary obiter dicta. In light of our colleague Abella J.’s conclusion — echoing the submissions of many interveners — that the constitutionality of the abolition of peremptory challenges depends upon the trial judge’s “vigorou[s] exercise” of challenges for cause and the stand‑aside power, we find it necessary to explain the limits of these powers. We must also respectfully emphasize, however, that, contrary to the views of Côté J. (para. 231), Mr. Chouhan’s s. 11 (d) rights were not prejudiced because his trial proceeded without the guidance we provide below.

Anti‑bias instructions will be appropriate wherever “specific biases, prejudices, and stereotypes . . . may reasonably be expected to arise in the particular case” (Barton, at para. 203). This is not because of some freestanding notion or interpretive principle of “substantive equality”, as our colleague Martin J. suggests (at para. 110), but because impartiality is inherently attuned to the concept of bias. As our understanding of the nature of bias evolves, so will our understanding of what a trial judge must do to foster impartiality among members of the jury. Informed by recent case law and a modern understanding of impartiality, trial judges may therefore draw on their own professional experiences and good sense in deciding whether anti‑bias instructions are required, and the submissions of counsel will be helpful in identifying appropriate cases for such instructions. The reality is that context matters: no trial “take[s] place in a historical, cultural, or social vacuum” (Barton, at para. 198). Participants in the justice system must remain vigilant in identifying and addressing the unconscious biases that might taint the integrity of jury deliberations.

As to the content of anti‑bias instructions, the basic principles that this Court enunciated in Barton bear repeating:

  •      . . . [T]here is no magic formula. In my view, trial judges should be given discretion to tailor the instruction to the particular circumstances, preferably after having consulted with the Crown and the defence . . . .

. . .

  • With regard to trial fairness, it is worth emphasizing that any instruction given must not privilege the rights of the complainant over those of the accused. The objective would instead be to identify specific biases, prejudices, and stereotypes that may reasonably be expected to arise in the particular case and attempt to remove them from the jury’s deliberative process in a fair, balanced way, without prejudicing the accused.
    [Emphasis added, paras. 201 and 203.]

With these principles in mind, we suggest two types of jury instructions that can address the risk of bias in appropriate cases: (i) general instructions on biases and stereotypes; and (ii) instructions on specific biases and stereotypes that arise on the facts of the case.

Where anti‑bias instructions are required, they ought to come early, before the presentation of evidence, and at any other time that the trial judge deems appropriate, including when the panel of prospective jurors is assembled in the courtroom at the outset of jury selection. We suggest that trial judges begin by pointing out that as members of society, each juror brings a variety of beliefs, assumptions, and perceptions to the court room. These assumptions will often be based on characteristics such as gender, race, ethnicity, sexual orientation, or employment status. Trial judges ought to highlight that jurors may be aware of some of their biases while being unaware of others. These unconscious biases may be based on implicit attitudes, namely “feelings that one has about a particular group”, or stereotypes, namely “traits that one associates with a particular group” (A. Roberts, “(Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias” (2012), 44 Conn. L. Rev. 827, at p. 833).

Trial judges should exhort jurors to approach their weighty task with a heavy dose of self‑consciousness and introspection. Jurors must identify and set aside prejudices or stereotypes when considering the evidence of any given witness and when reaching a verdict (see, generally, G. A. Ferguson and M. R. Dambrot, CRIMJI: Canadian Criminal Jury Instructions (4th ed. (loose‑leaf)), vol. 1, at pp. 1.02A‑1 to 1.02A‑7; M. K. Thompson, “Bias on Trial: Towards an Open Discussion of Racial Stereotypes in the Courtroom” (2018), 5 Mich. St. L. Rev. 1243, at pp. 1301‑6).

We offer these suggestions by way of example but stress that refinement will be necessary, in particular to meet the submissions by Crown and defence counsel in each individual case.

Any number of specific biases or stereotypes could arise in a given case. These biases or stereotypes may pose a significant challenge to the public interest in truth‑finding that characterizes all criminal prosecutions in this country (Ferguson and Dambrot, at p. 1.02A‑2; R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 109; R. v. Seaboyer, [1991] 2 S.C.R. 577). When tailoring bias instructions to a specific trial, trial judges and counsel should consider the relevance of context and the harmful nature of stereotypical assumptions or myths.

It is impossible to highlight every bias that could conceivably affect a jury trial. By way of example, this Court identified some specific biases that arose on the facts of Barton, which involved the killing of an Indigenous sex worker:

In a case like the present, the trial judge might consider explaining to the jury that Indigenous people in Canada — and in particular Indigenous women and girls — have been subjected to a long history of colonization and systemic racism, the effects of which continue to be felt. The trial judge might also dispel a number of troubling stereotypical assumptions about Indigenous women who perform sex work, including that such persons:

  • are not entitled to the same protections the criminal justice system promises other Canadians;
  • are not deserving of respect, humanity, and dignity;
  • are sexual objects for male gratification;
  • need not give consent to sexual activity and are “available for the taking”;
  • assume the risk of any harm that befalls them because they engage in a dangerous form of work; and
  •  are less credible than other people. [para. 201]

This Court has also recognized other examples of impermissible myth‑based reasoning in the context of sexual assault prosecutions (see Seaboyer, at p. 612; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 82 and 95, per L’Heureux‑Dubé J., and at para. 103, per McLachlin J.).

The trial judge must be alive to the particularities of each individual trial that might present the danger of a juror being influenced by unconscious bias. Recognizing that there is no “magic formula”, trial judges should identify the characteristics of the parties or the witnesses that give rise to the risk of unconscious bias, dispel common stereotypes, and direct the jurors to decide the case with an open mind based on the evidence before them (Ferguson and Dambrot, at p. 1.02A‑7). The submissions of counsel will be integral to this process.

Such instructions should not be taken as criticizing past or future jurors. They merely recognize that the benefit of human experience which the jury brings to the criminal process can also be tainted by prejudices and stereotypes. Indeed, this Court has recognized that “[w]hen jurors are sworn and empanelled, Canadian society tasks them with a weighty responsibility: deciding whether, on the evidence put before them, the accused is guilty or not. This task is not easy — it requires patience, judgment, and careful analysis” (Barton, at para. 195). These instructions continue to emphasize the disposition of self‑consciousness and introspection that jurors must maintain in discharging their duties.

In our view, the challenge for cause procedure is itself a vehicle for promoting active self‑consciousness and introspection that militate against unconscious biases. The prospective juror, who, when empanelled, steps into an adjudicative role must bring to bear a degree of impartiality similar to that of judges. Impartiality requires active and conscientious work. It is not a passive state or inherent personality trait. It requires jurors to be aware of their own personal beliefs and experiences, and to be “equally open to, and conside[r] the views of, all parties before them” (R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 40). Given these principles, the questioning on a challenge for cause ought to be able to explore the juror’s willingness to identify unconscious bias and strive to cast it aside when serving on the jury (Find, at para. 40).

Appropriate questions on a challenge for cause will ask prospective jurors for their opinion as it relates to salient aspects of the case. For instance, counsel may point to characteristics of the accused, complainant or victim, such as race, addiction, religion, occupation, sexual orientation or gender expression, and ask prospective jurors whether, in light of such characteristics, they would have difficulty judging the case solely on the evidence and the trial judge’s instructions, because they hold an opinion about such characteristics that on careful reflection, they do not believe they could put aside. Before posing that question to jurors, trial judges ought to call each individual juror’s attention to the possibility of unconscious bias and impartiality. It should be stressed that the mischief is not in acknowledging a difficulty setting aside unconscious bias, but in failing to acknowledge such a difficulty where one exists.

The final aspect of the jury selection process on which we wish to comment is the stand‑aside power under s. 633  of the Criminal Code. By amending the stand‑aside provision to permit trial judges to direct jurors to “stand by for reasons of . . . maintaining public confidence in the administration of justice”, Parliament effectively amended the purview of the stand‑aside power.

It will be for trial courts and courts of appeal to determine, on a case‑by‑case basis, the contours of the trial judge’s discretion to stand aside jurors to “maintain[n] public confidence in the administration of justice”, but we wish to make it clear what this amended power cannot be used for.

First, in all cases, the trial judge must maintain a resolute focus on the language that Parliament chose in amending the stand aside provision: trial judges can stand aside jurors only where necessary to “maintai[n] public confidence in the administration of justice”. Public confidence is assessed from the perspective of a reasonable and informed person (R. v. St‑Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 87), who, in the context of jury selection, will know of the many safeguards that go to ensuring the independence and impartiality of the jury and the fairness of the trial, including: the dedicated provincial efforts to create representative jury rolls, the vital principle of randomness that undergirds all aspects of jury selection, the challenge for cause process that removes potential jurors for partiality, the trial judge’s instructions targeting implicit and unconscious bias, and the rigours of the trial process itself. Given these and other safeguards, which we have canvassed at length above, public confidence will not easily be lost in the jury selection process.

Indeed, the jurisprudence of this Court demonstrates that generally, public confidence will be lost only where something egregious has occurred in the justice system that society at large finds unacceptable and simply will not tolerate. These circumstances are not mere deviations from established procedures. They cut to the very heart of the public’s entitlement to know that the jurors who decide the guilt of each accused are independent, impartial, and fairly selected. For instance, in Barrow, the jury selection procedure that unfolded through hushed conversations with individual jurors, out of earshot of the accused, undermined public confidence in the administration of justice because it impaired the right of all participants in the justice system to “be sure that the jury is impartial and the trial fair” (para. 25). Likewise, in Bain, the Crown’s ability to stand aside a disproportionate number of jurors resulted in a trial process that was “tainted with the appearance of obvious and overwhelming unfairness” and so manifestly stacked against the accused that “[m]embers of the community [would] be left in doubt as to the merits of” the trial (p. 102). These cases illustrate the central role that a fairly and transparently selected jury plays in ensuring public confidence in the administration of justice. They also illustrate the tenor and magnitude of the circumstances that will occasion a loss of public confidence.

For all of these reasons, we must conclude that the judicial stand‑aside power, as amended, cannot be used in the manner that our colleague Abella J. and various interveners suggest. To the contrary, the reasonable, informed observer would lose confidence in a jury selection process that requires trial judges to sacrifice the vital principle of randomness on the altar of diversity and select individual jurors merely on the basis of their race or other aspects of their identity. Reductionist premises, racial or otherwise, have no place in jury selection. This, in turn, calls into question the statement of the then‑Minister of Justice that the amended stand‑aside power would enable judges to “make room for a more diverse jury”.

To be sure, the abolition of peremptory challenges will go a long way to augment the diversity of juries, for the reasons we have given. And, as the reasons of Rowe J. make clear, Parliament and the provincial legislatures may, within constitutional bounds, pursue further legislative reform designed to better promote or enhance the diversity of the petit jury. But this amendment to the stand‑aside power, as we have explained, does not do so.

In summary, we are of the view that the abolition of peremptory challenges does not infringe the s. 11 (d) rights of accused persons. The existing protections of the independence and impartiality of the jury, which we have canvassed above, continue to protect against an infringement of the s. 11 (d) right. In appropriate cases, we also highlight the ongoing role of robust and targeted jury instructions, challenges for cause, and judicial stand asides in protecting the integrity of the jury process.

Mr. Chouhan argues that the abolition of peremptory challenges infringes his right to a jury trial under s. 11 (f) of the Charter  by depriving him of an impartial jury and a representative jury. In our view, these arguments must fail. Section 11 (f) offers no greater protection of impartiality than the specific guarantee of impartiality enshrined in s. 11 (d). With respect to representativeness, the jurisprudence of this Court is clear that the right to a representative jury does not entitle the accused to proportionate representation at any stage of the jury selection process, including the final stage of selecting jurors to serve on the trial jury (Kokopenace, at para. 70). Section 11 (f)’s guarantee of representativeness requires the state to provide a fair opportunity for a broad cross‑section of society to participate in the jury process, by compiling a jury roll that draws from a broadly inclusive source list and by delivering jury notices to those who have been selected (Kokopenace, at para. 61). These aspects of jury selection are not affected by the abolition of peremptory challenges.

Finally, the Court of Appeal placed great emphasis on the fact that a jury empanelled with peremptory challenges will necessarily be different than a jury empanelled without them. We accept this observation, which is not disputed by the parties. However, we see no basis to conclude that the mere fact that juries will necessarily be differently constituted in a world without peremptory challenges affects any of the accused’s substantive rights to a fair trial, to an independent and impartial tribunal, or to a jury. To the contrary, this Court has expressly held that the accused has no right to a jury of a particular composition (Kokopenace, at para. 70).

Accordingly, the amendments abolishing peremptory challenges are purely procedural and apply immediately to all jury selection processes commencing on or after September 19, 2019. They do not affect any of the accused’s relevant substantive rights, namely the right to a fair trial, to an independent and impartial tribunal, or to a jury.

We would allow the Crown’s appeal, set aside the Court of Appeal’s decision, and restore Mr. Chouhan’s conviction. The abolition of peremptory challenges is purely procedural and therefore has retrospective application. It applies to all jury selection processes commencing on or after September 19, 2019, the date of the abolition’s coming into force as part of Bill C‑75. The statutory change is constitutional and we would dismiss Mr. Chouhan’s cross‑appeal challenging the constitutionality of the abolition of peremptory challenges.”