Her Majesty The Queen Appellant/Respondent on cross-appeal v. Pardeep Singh Chouhan, 2021 SCC 26

SUPREME COURT OF CANADA Citation: R. v.

Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136 Appeal Heard and Judgment Rendered: October 7, 2020 Reasons for Judgment: June 25, 2021 Docket: 39062 Between: Her Majesty The Queen Appellant/Respondent on cross-appeal and Pardeep Singh Chouhan Respondent/Appellant on cross-appeal - and - Attorney General of Canada, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Alberta, Aboriginal Legal Services Inc., Association québécoise des avocats et avocates de la défense, David Asper Centre for Constitutional Rights, Canadian Association of Black Lawyers, Canadian Muslim Lawyers Association, Federation of Asian Canadian Lawyers, South Asian Bar Association of Toronto, Advocates’ Society, Defence Counsel Association of Ottawa, Criminal Lawyers’ Association (Ontario), Debbie Baptiste and British Columbia Civil Liberties Association Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Joint Reasons for Judgment: (paras. 1 to 104) Moldaver and Brown JJ. (Wagner C.J. concurring) Concurring Reasons: (paras. 105 to 123) Martin J. (Karakatsanis and Kasirer JJ. concurring) Concurring Reasons: (paras. 124 to 147) Rowe J. Reasons Dissenting in Part: (paras. 148 to 220) Abella J. Dissenting Reasons: (paras. 221 to 317) Côté J.

Her Majesty The Queen Appellant/Respondent on cross-appeal v.

Pardeep Singh Chouhan Respondent/Appellant on cross-appeal and Attorney General of Canada, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Alberta, Aboriginal Legal Services Inc., Association québécoise des avocats et avocates de la défense, David Asper Centre for Constitutional Rights, Canadian Association of Black Lawyers, Canadian Muslim Lawyers Association, Federation of Asian Canadian Lawyers, South Asian Bar Association of Toronto, Advocates’ Society, Defence Counsel Association of Ottawa, Criminal Lawyers’ Association (Ontario), Debbie Baptiste and British Columbia Civil Liberties Association Interveners Indexed as: R. v.

Chouhan 2021 SCC 26 File No.: 39062. Hearing and judgment: October 7, 2020. Reasons delivered: June 25, 2021.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Right to fair hearing — Right to trial by jury — Jurors — Selection — Peremptory challenges — Whether amendments to Criminal Code abolishing accused’s peremptory challenges during jury selection violate right to fair hearing or right to benefit of trial by jury — If not, whether abolition of peremptory challenges applies to accused awaiting trial on date amendments came into force — Canadian Charter of Rights and Freedoms, ss. 11(d) , (f) — An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts , 1st Sess., 42nd Parl., 2019, c. 25, ss. 269, 271, 272 — Criminal Code, R.S.C. 1985, c.

C-46, ss. 633 , 638 . 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. Held (Abella J. dissenting in part and Côté J. dissenting): The appeal should be allowed and C’s conviction restored , and the cross-appeal should be dismissed. Per Wagner C.J., Moldaver and Brown JJ.: The statutory amendments abolishing peremptory challenges are constitutional and purely procedural, and therefore have retrospective application . They apply 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.

Since Canada’s earliest days, peremptory challenges have formed part of a dynamic in-court jury selection process that also includes challenges for cause and the power of the trial judge to excuse or stand aside prospective jurors.

Peremptory challenges played a distinct but limited role in the broader context of jury selection and, according to Sir William Bla c kstone, served two purposes: that an accused person ought not to be tried by any one against whom he has conceived a prejudice and that an accused ought to have an opportunity to remove jurors who may become resentful after an unsuccessful challenge for cause. Peremptory challenges heightened the accused’s perception that he or she had had the benefit of a fairly selected tribunal.

Accused persons routinely used peremptory challenges based on the way prospective jurors looked at them during the selection process, and there was some evidence that racialized accused used them to make room for jurors with diverse backgrounds. Although peremptory challenges had value from the subjective view of accused persons, the true value of this “benefit” was doubtful. It is not possible to trace the impact of peremptory challenges on the verdict. More critically, peremptory challenges sat uneasily with other aspects of jury selection.

They undermined the randomness of jury selection, a significant guarantor of jury independence and impartiality, and they did not displace the principle that the accused has no right to select a partial or favourable jury. They also had a darker side which allowed for practices born of prejudice and stereotypes, which had palpable and well-documented effects on the composition of juries. Indigenous communities, in particular, have witnessed their disturbing effects. Faced with mounting criticisms, Parliament abolished them and bolstered the role of the trial judge in supervising the jury selection process.

The abolition of peremptory challenges does not infringe the s. 11(

d) Charter rights of accused persons.

Section 11(

d) does not entitle the accused to any particular procedure. In determining whether s. 11 (

d) is breached, the question is not whether a new process chosen by Parliament is less advantageous to the accused, but rather whether a reasonable person, fully informed of the circumstances, would consider that the new jury selection process gives rise to a reasonable apprehension of bias so as to deprive accused persons of a fair trial before an independent and impartial tribunal. The constitutionality of the jury selection process must be considered as a whole. The jury selection regime since Parliament enacted Bill C-75 continues to provide the independent and impartial jury that each accused is owed under s. 11(

d) of the Charter : representative jury rolls provide a fair opportunity for a broad cross-section of society to serve as jurors, randomness in the jury selection process bolsters independence and impartiality, and challenges for cause and the trial judge’s power to excuse prospective jurors provide mechanisms for removing prospective jurors whose impartiality is in question. The abolition of peremptory challenges comes at a time of heightened public awareness of the role of racial prejudice in the criminal justice system.

Before the Court, various interveners submitted that diversity is fundamental to achieving a jury that is impartial to the accused and free from discrimination toward jurors and victims. As a constitutional matter, however , the jurisprudence has never interpreted jury representativeness and impartiality as requiring diversity among members of the petit jury, nor has the concept of impartiality ever rested on the accused’s subjective confidence in each individual juror or jurors sharing an aspect of a characteristic of their identity with the accused or the victim.

Fair trial rights do not depend on the subjective perceptions of the accused, and 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. Other opportunities remain for the parties in criminal trials to raise and address concerns about juror partiality and bias. Trial judges should consider crafting jury charges and mid-trial instructions that caution against the risk that bias will taint the jury’s deliberations.

Jurors legitimately bring their life experiences to their deliberations but this cannot interfere with their responsibility to approach the case with an open mind. Jury instructions can expose biases, prejudices, and stereotypes that lurk beneath the surface. General instructions on biases and stereotypes ought to highlight that jurors may be aware of some biases while being unaware of others and should exhort jurors to approach their task with self-consciousness and introspection.

Instructions on specific biases and stereotypes that arise on the facts of the case should consider context and the harmful nature of stereotypical assumptions or myths, for example, the effects of colonization and systemic racism on Indigenous peoples or myth-based reasoning in sexual assault prosecutions. The challenge for cause provisions under s. 638 of the Criminal Code also provide a robust mechanism to raise concerns about partiality. Challenges for cause are unlimited and not readily susceptible to abuse because their focus is on transparency and openness.

A wide range of characteristics are the proper subject of a challenge for cause. The trial judge enjoys significant discretion to determine how far the parties may go in the questions that are asked. Questions ought to explore the juror’s willingness to identify unconscious bias and to strive to cast it aside. Appropriate questions may relate to aspects of the case such as race, addiction, religion, occupation, sexual orientation or gender expression. Questions should balance the accused’s right to an impartial jury and the privacy interests of prospective jurors.

The amended power to direct jurors to stand by to maintain public confidence in the administration of justice under s. 633 of the Criminal Code provides a means to exclude a juror who might be partial but who survived a challenge for cause. The “maintaining public confidence in the administration of justice” standard provides an effective analytical yardstick to address a variety of residual concerns in the jury selection process.

The contours of the trial judge’s discretion to stand aside jurors will be determined on a case-by-case basis, but it cannot be used to actively promote jury diversity or to achieve a jury that approximates the diversity of Canadian society. An approach which calls upon the trial judge to enhance diversity on the petit jury raises a host of practical problems,

some of which could involve constitutional issues. As a constitutional matter, diverse juries depend on diverse jury panels achievedthrough the randomness of the jury selection process. The reasonable, informed observer would lose confidence in a jury selectionprocess that requires trial judges to sacrifice randomness for diversity. Parliament and the provincial legislatures may, withinconstitutional bounds, pursue further legislative reform designed to better promote or enhance the diversity of the petit jury. The abolition of peremptory challenges also does not infringe C’s right to a jury trial under s. 11(

f) of the Charter.Section 11(

f) offers no greater protection of impartiality than s. 11(d). The right to a representative jury does not entitle the accused toproportionate representation at any stage of the jury selection process.

Section 11(f)’s guarantee of representativeness requires the stateto provide a fair opportunity for a broad cross-section of society to participate in the jury process, by compiling a jury roll that drawsfrom a broadly inclusive source list and delivering jury notices to those who have been selected. These aspects of jury selection are notaffected by the abolition of peremptory challenges. The amending legislation did not include transitional provisions that set out whether and how the amendments apply toprosecutions pending in the system.

New legislation that affects substantive rights will be presumed to have only prospective effectunless it is possible to discern a clear legislative intent that it is to apply retrospectively. Procedural legislation designed to govern onlythe manner in which rights are asserted or enforced is presumed to apply immediately. However, procedural provisions that affectsubstantive rights in their application are not purely procedural and do not apply immediately. The substantive right at issue in this caseis the Charter right to a fair trial by an independent and impartial jury.

Jury selection procedures only serve those rights and amodification in procedure does not affect their fulfilment, absent a constitutional infringement. The presence or absence of peremptorychallenges therefore does not affect substantive rights, namely those codified in ss. 11(

d) and 11(

f) of the Charter. Even accepting theexistence of a substantive right to participate in the selection of one’s jury, the amendments affect only the way in which that right wasexercised. There is no basis for construing the amendments as anything but procedural. Accordingly, the abolition of peremptorychallenges applies immediately to all jury selection processes beginning on or after the date the amendments took effect, including C’strial.

Per Karakatsanis, Martin and Kasirer JJ.: There is agreement that the amendments abolishing peremptory challenges areconstitutional and purely procedural and therefore apply immediately to ongoing proceedings. Parliament was entitled to act on persistentconcerns about the discriminatory use of peremptory challenges by abolishing them. There also is agreement that jury instructions onbias play a vital role in spurring juror introspection, self-consciousness and accountability.

Courts must take active steps to ensuredecision-making is free of prejudice, myths and stereotypes, through a contextualized approach that looks beyond overt and intentionaldiscrimination to structural and unconscious bias that may undermine trial fairness, juror impartiality and equality for accused personsand victims. However, there is disagreement with Moldaver and Brown JJ. with respect to how they would approach the enhanced stand-aside power under s. 633 of the Criminal Code and the scope of questioning on challenges for cause.

These issues are complex,multifaceted and immaterial to the outcome of the appeal. It is preferable not to address them given the lack of direct assistance from theparties and scant jurisprudence from lower courts on this matter. With respect to the

interpretation of s. 633, undue weight should not beplaced on the principle of random selection. Randomness is neither an end in itself nor a freestanding constitutional imperative. In anunequal society, randomness may produce discriminatory outcomes. Many systemic factors lead to underrepresentation of certain groupsat all stages of jury selection. It is open to Parliament to legislate to address these problems, including by taking steps to deliberatelyinclude underrepresented groups. Although departing from randomness by using the stand-aside power to enhance diversity may giverise to practical challenges, those problems should not be overstated.

Section 633 does not impose rigid requirements respecting theprecise composition of the jury, but rather confers a broad and flexible discretion that can be tailored to the circumstances in which it isexercised. With respect to challenges for cause, trial judges are afforded latitude to depart from the formula set out in R. v. Parks(1993), (ON CA), 15 O.R. (3d) 324, where appropriate to ensure juror impartiality. Trial judges must permitprejudices to be examined through this process. It is true that the privacy interests of prospective jurors must be respected.

However,privacy is just one interest to be weighed against others. The Court has also warned against setting a threshold for challenges for causethat would catch only the grossest forms of racial prejudice. It has been questioned whether the Parks formula catches anything beyondthe grossest forms of prejudice. Ultimately, courts must be allowed to exercise their discretion in accordance with the wording andpurpose of s. 638(1)(

b) of the Criminal Code, the right to a fair and impartial tribunal, and Charter values, including substantiveequality. The Court should not use this case to circumscribe how judges may apply these recently-amended procedures. Thepreferable process would be for the Court to wait and see how the interlocking pieces of the new statutory regime work together inpractice before weighing in with limits on how they may be used. A cautious approach is advisable to allow the new regime to developorganically and as intended.

Per Rowe J.: There is agreement that the abolition of peremptory challenges is constitutionally valid and that the legislativechange is purely procedural and has retrospective application. However, it is necessary to address the risk that constitutionalizingstatutory provisions through the jurisprudence poses. Sections 11(

d) and 11(

f) of the Charter give an accused the right to benefit from afair trial by an independent and impartial jury but they do not guarantee the most favourable procedures imaginable or mandate specificprocedural mechanisms. Statutory provisions that give effect to ss. 11(

d) and 11(

f) are not themselves constitutionally protected andbeyond repeal. Constitutionalizing specific statutory provisions by which Parliament gives effect to constitutional rights is misguided. Itis not for the courts to substitute their policy preferences for those of the legislature; rather courts should limit themselves to decidingwhether constitutional protections have been infringed. Adopting, amending or repealing jury selection procedures raises noconstitutional issue unless thereby trials by jury fall short of the constitutional guarantee to a fair trial. A structural analysis of the principles underlying the Constitution can inform and assist in the proper

interpretation ofconstitutional provisions. In the present case, separation of powers and parliamentary sovereignty shed light on the issue of Chartercompliance. Constitutionalizing statutory provisions is contrary to the separation of powers between the legislature and the judiciary.The legislative and judicial branches have distinct roles and institutional capacities and each should show proper deference for the

legitimate sphere of activity of the other. With respect to the Charter , the role of the courts is to protect against incursions on fundamental values, not to second guess a legislature’s policy decisions. Constitutionalizing statutory provisions elides and curtails the role of legislatures. Removing legislatures’ ability to repeal or modify statutory provisions is inconsistent with the dialogic partnership between legislatures and courts. Courts should not overstep their role when assessing whether statutory regimes comply with the Charter .

The principle of parliamentary sovereignty means that Parliament has the right to make or unmake any law. This principle is qualified by our federal structure, the Charter and Aboriginal and treaty rights; however, subject to limits imposed by the Constitution, the legislature can legislate as it chooses. This encompasses the capacity to repeal legislation. Constitutionalizing statutory provisions undermines the democratic principle whereby citizens participate in making laws through public institutions accountable to the public through electoral processes.

Preventing Parliament from repealing a statutory provision, and in effect incorporating its content into the Charter , would undermine Parliamentary sovereignty. The repeal or modification of statutory provisions can raise issues of Charter compliance if it gives rise to unconstitutional effects but nothing of that nature has been shown in this case. Per Abella J. (dissenting in part): Both the appeal and the cross-appeal should be dismissed. The repeal of peremptory challenges is constitutionally compliant.

Parliament has introduced a regime that addresses the goals of peremptory challenges and that empowers trial judges to protect the impartiality of the jury and counteract the reality of discrimination. However, the repeal of peremptory challenges was not a purely procedural change. It affected the substantive rights of accused persons and, absent transitional provisions, it should not have applied retrospectively to C’s trial. The right to be tried by a jury of one’s peers is one of the cornerstones of our criminal justice system and is enshrined in ss. 11(

d) and 11(

f) the Charter . The purpose of the reforms to jury selection in Bill C-75 was to make room for a more diverse jury that will in turn promote confidence in the administration of justice. Parliament not only abolished peremptory challenges, but it gave trial judges the power to decide challenges for cause and created a new stand-aside power to direct trial judges to fulfill the role of ensuring jury impartiality and representativeness.

In order to avoid bias and discrimination, the new jury selection system entrusts trial judges to vigorously exercise their authority in accordance with the Charter to ensure that Canadian juries are, and are perceived to be, impartial and representative. The new robust challenge for cause process will require more probing questions than have traditionally been asked to properly screen for subconscious stereotypes and assumptions.

The new stand-aside power was intended to empower trial judges to ensure impartiality and to make room for a more diverse jury, in order to maintain public confidence in the administration of justice. It is based on an understanding of representativeness which looks to the actual composition of the jury, as opposed to the randomness of the selection process. It seeks to counteract systemic discrimination in jury selection. Trial judges can use these tools to actively promote jury diversity on a case by case basis. The goal is the selection of a representative cross-section of society, honestly and fairly chosen.

Actively promoting jury diversity is not reverse discrimination, it is reversing discrimination. Abolishing peremptory challenges diminished the right of accused persons to meaningfully participate in jury selection and to influence the ultimate composition of the jury. Their abolition affected the substantive rights of an accused to participate in the selection of an impartial and representative jury, as guaranteed by ss. 11(

d) and (

f) of the Charter . When legislation is enacted without transitional provisions, the law presumes that it only applies prospectively. While the jurisprudence carves out a narrow exception for purely procedural changes, the exception does not apply to new rules of procedure that affect or impinge on substantive rights. Procedural laws that have an impact on Charter rights have been considered to have substantive effects since constitutional rights are necessarily substantive.

Since there is no doubt that an accused’s fair trial rights are necessarily substantive, the legislation abolishing peremptory challenges affected substantive rights and could only have prospective effect. For centuries, the common law included a right of the accused to exercise peremptory challenges and this right was codified in the Criminal Code . The Court has repeatedly asserted the importance of peremptory challenges in safeguarding the rights of accused persons in the jury system and enhancing their perception of trial fairness.

While they did not guarantee an y particular composition of the jury, peremptory challenges gave accused persons a meaningful opportunity to have their own subjective views about the impartiality of the jury respected. It is not only an accused’s confidence in trial fairness that is at stake, but the public’s confidence that the jury is impartial. That impartiality is not possible without acknowledging the reality of discrimination in the public from which the jury is selected. Peremptory challenges were a tool to weed out this potential bias.

Systemic factors disproportionately exclude marginalized prospective jurors at every step of the selection process, resulting in a system in which Indigenous and racialized persons are overrepresented as accused persons and victims, and underrepresented as jurors . Peremptory challenges were an important trial safeguard to try to secure representativeness f rom what can be unrepresentative random selections. Representativeness is an important guarantor of impartiality.

It matters not because a juror’s personal characteristics are indicative of how he or she will decide the case, but because if the right to be tried by a jury of one’s peers means anything, it means that members of a jury must be, and be seen to be, open-minded, regardless of their own or the accused’s race, religion, sex, gender identity, sexual orientation, political affiliations, age or economic status. Peremptory challenges enabled accused persons to attempt to secure representativeness, safeguarding their substantive right to meaningfully participate in the selection of an impartial and representative jury.

Abolishing them, therefore, affected substantive rights. The trial judge’s error in denying C the right to use peremptory challenges cannot be cured by the curative proviso in s. 686(1) (b)(iv) of the Criminal Code . The proviso only applies if the accused suffered no prejudice. C’s case was not so overwhelming that any trier of fact would inevitably convict. Nor was the error minor or harmless. C was denied the ability to peremptorily challenge the people he felt would not judge him fairly. To him, this meant that he did not have an impartial jury. This is a prejudicial impact without a cure.

Per Côté J. (dissenting): The appeal should be dismissed and the cross-appeal should be allowed. The amendments abolishing peremptory challenges infringe s. 11(

f) of the Charter and they are not a reasonable limit that can be demonstrably justified in

a free and democratic society.

Section 269 of the amending Act should be declared of no force or effect to the extent that it abolishes peremptory challenges. Further, there is agreement with Abella J. that the abolition of peremptory challenges clearly affects substantive rights and can apply only prospectively. C should receive a new trial including jury selection with peremptory challenges. Parliament failed to understand why peremptory challenges have accompanied jury trials for over 700 years. It ignored the voices of racialized and other marginalized persons calling out for a chance to maintain the benefit of trial by jury.

Peremptory challenges permit accused persons to strike at hidden, subtle and unconscious biases that are undoubtedly present in the jury array and that go unaddressed by challenges for cause. Parliament saw peremptory challenges as an arbitrary tool used to perpetuate systemic racism and discrimination. The reality is, as defence advocates representing a wide spectrum of organizations implored the Court to understand, peremptory challenges are far from arbitrary. For accused persons who are racialized or otherwise marginalized, they are a lifeline to combat unconscious biases and discrimination.

They give the accused a sense of ownership in the trial and they teach the litigant and the community that the jury is a good and proper mode for deciding matters. In order for s. 11(

f) of the Charter to be meaningful, there must be some set of core irreducible attributes that a tribunal must possess for it to be considered a jury. A jury must possess all of the characteristics necessary to provide the accused with the benefit that the framers of the Charter sought to protect. The purpose of s. 11(

f) is to guarantee an underlying benefit that comes from jury trials. The benefit of trial by jury is formed by four elements, which are the four advantages of jury trials in comparison to judge-alone trials. First, the jury is an excellent fact finder because of the cumulative abilities of its members and the diversity of their experiences. Second, a jury represents the conscience of the community: it is best placed to determine whether applying the law would be inequitable or would accord with society’s values.

Third, the jury is a bulwark of individual liberty, protecting against oppressive laws or oppressive enforcement of the law. Fourth, the jury serves the broader social interests of public education and legitimization of the justice system. In order for an accused to receive the benefit of trial by jury, the jury must have certain characteristics. A jury must be the ultimate arbiter of guilt, and it must be impartial, representative and competent. The ability of the accused to meaningfully participate in selecting their triers may be another core, irreducible attribute of a jury trial.

Peremptory challenges play a unique role in a jury trial. They enable an accused person to meaningfully participate in selecting their triers, something that is absent in a trial by judge alone. This process of a participating in jury selection gives the accused a sense of ownership in the trial.

Peremptory challenges also confer a substantial benefit in the subjective minds of accused persons: by removing jurors that cause them fear or discomfort, an accused will be more likely to feel that they are being tried by jurors whom they consider peers, which increases their confidence that the trial and the verdict are fair. This increased confidence in the fairness of the trial is especially important to offset the absence of reasons in a jury trial. Peremptory challenges are also critical to the empanelling of impartial, representative and competent juries.

First, peremptory challenges facilitate the selection of an impartial jury. Accused persons exercise them to remove potential jurors who are biased against them. Randomness in the jury selection process has traditionally been thought to guard against partiality, but in recent years, the administration of justice has faced up to the fact that racial prejudice and discrimination are intractable features of our society and must be squarely addressed in the selection of jurors.

Challenges for cause, which were established to work alongside peremptory challenges, rely upon overt manifestations of bias and are not likely to identify unconscious preconceptions and beliefs, racial or otherwise. Such deeply buried beliefs also are resistant to judicial instructions. Peremptory challenges enable an accused to apply their own life experiences to determine whether potential jurors exhibit signs of prejudice against them. Racialized or marginalized persons cannot rely on a judge to excuse or stand aside a potential juror because they may struggle to articulate why they perceive bias.

Therefore, peremptory challenges are essential to have an impartial jury and their abolition negatively affects racialized and other marginalized persons. Challenges for cause, anti-bias instructions, and stand asides cannot fill the void. Second, the jury must be a representative cross-section of society, honestly and fairly chosen, in order to serve as the conscience of the community and to promote public trust in the justice system. Processes established to deliver a representative jury do not guarantee that a jury roll’s composition will be proportionate to the general population.

In practice, jury rolls are under-representative of racialized and other marginalized persons. In-court selection processes can enhance representativeness, especially where an array does not truly represent the diversity of the area. The abolition of peremptory challenges removes a tool often used by racialized and other marginalized persons to improve the representativeness of juries. Third, peremptory challenges are critical to ensuring that a jury is competent. Competence in relation to understanding the evidence means willingness and capacity to understand it.

A juror whose life experience has not embraced the area of the dispute is likely to have a blind spot of which he is quite unconscious and which may prevent him from getting the point of testimony or argument. The benefit of trial by jury is partly a product of the jury applying common sense, and common sense itself is the product of personal experience . Only accused persons know what experiences may be necessary to fully appreciate their evidence. Peremptory challenges are the only tool available to accused persons to address issues of competence.

As it stands, the amended s. 633 of the Criminal Code is not an adequate replacement for peremptory challenges.

Section 633 cannot be used to promote or enhance the diversity of the petit jury. The abolition of peremptory challenges is not a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. The impugned provision of the amending Act is clearly prescribed by law. Reducing discrimination and increasing diversity on juries represents a pressing and substantial objective. However, the means chosen is not rationally connected to this objective.

Removing peremptory challenges altogether has the effect of furthering discrimination against racialized and other marginalized persons, and potentially reducing jury diversity. The abolition of peremptory challenges also is not minimally impairing of the right to the benefit of trial by jury. Parliament could have empowered judges to regulate the use of peremptory challenges, altered juror qualifications or grounds of challenge for cause, or modified the challenge for cause process to create a meaningful system for identifying biased jurors.

Given that peremptory challenges provide a great benefit to many accused persons and that their elimination perpetuates discrimination against racialized and other marginalized people, the deleterious effects outweigh the salutary effects of the legislation. Alternatively, the amendments can apply only prospectively. Peremptory challenges are substantive. Their abolition is not beneficial for all: it is entirely detrimental to the accused, and its immediate application creates unfairness for those who have relied upon the existence of such challenges to make decisions.

It changes the legal character or consequences of an accused’s prior actions, such as

electing to be tried by jury or seeking an adjournment of an earlier trial. Therefore, the abolition of peremptory challenges is anamendment affecting a substantive right. The abolition of peremptory challenges also affects other substantive rights. It affects ss. 11(d)and 11(

f) by diminishing the accused’s ability to meaningfully participate in jury selection. It affects the right to a fair trial by animpartial tribunal. Since peremptory challenges are themselves substantive and also affect other substantive rights, the amendingprovisions should not have applied to C’s trial. This is not a case where it would be appropriate to apply the curative proviso. The errorwas not harmless or minor. C would likely have been tried by a differently composed jury and the case against him was not sooverwhelming that any other verdict would have been impossible to obtain.

Cases Cited By Moldaver and Brown JJ. Applied: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Dineley,2012 SCC 58, [2012] 3 S.C.R. 272; considered: R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509; R. v. Kokopenace, 2015SCC 28, [2015] 2 S.C.R. 398; referred to: Cloutier v. The Queen, (SCC), [1979] 2 S.C.R. 709; R. v. Yumnu, 2010ONCA 637, 260 C.C.C. (3d) 421; R. v. O’Coigly, [1798] 26 Howell’s State Trials 1191; R. v. Barrow, (SCC), [1987] 2S.C.R. 694; R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777; R. v.

Pizzacalla (1991), (ON CA), 5 O.R. (3d) 783; R. v.Gayle (2001), (ON CA), 54 O.R. (3d) 36; R. v. Cornell, 2017 YKCA 12, 353 C.C.C. (3d) 431; Gardner c. R., 2019QCCA 726; R. v. Amos, 2007 ONCA 672, 161 C.R.R. (2d) 363; R. v. Lines, [1993] O.J. No. 3284; R. v. Rodgers, 2006 SCC 15, [2006] 1S.C.R. 554; United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77; Valente v. The Queen, (SCC), [1985]2 S.C.R. 673; R. v. Bain, (SCC), [1992] 1 S.C.R. 91; R. v. B.(A.) (1997), (ON CA), 33 O.R. (3d)321; R. v. Hubbert (1975), (ON CA), 11 O.R. (2d) 464; R. v.

Biddle, (SCC), [1995] 1 S.C.R. 761; R. v.Brown (2006), (ON CA), 215 C.C.C. (3d) 330; R. v. Church of Scientology (1997), (ON CA), 33O.R. (3d) 65; R. v. Laws (1998), (ON CA), 41 O.R. (3d) 499; R. v. Harrer, (SCC), [1995] 3 S.C.R.562; R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411; R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577; R. v.D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v. Spence, 2005 SCC 71,[2005] 3 S.C.R. 458; R. v. Williams, (SCC), [1998] 1 S.C.R. 1128; R. v. S. (R.D.), (SCC), [1997] 3S.C.R. 484; R. v. Parks (1993), (ON CA), 15 O.R. (3d) 324; R. v.

Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; R. v. G.(R.M.), (SCC), [1996] 3 S.C.R. 362; R. v. Krugel (2000), (ON CA), 143 C.C.C. (3d) 367; R. v.St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328; R. v. Campbell, 2019 ONSC 6285; R. v. Josipovic, 2020 ONSC 630; Andrews v. LawSociety of British Columbia, (SCC), [1989] 1 S.C.R. 143; Black v. Law Society of Alberta, (SCC),[1989] 1 S.C.R. 591; R. v. Johnson, 2019 ONSC 6754, 451 C.R.R. (2d) 167; R. v. Muse, 2019 ONSC 6119, 448 C.R.R. (2d) 266; R. v.Lako, 2019 ONSC 5362; R. v. Khan, 2019 ONSC 5646; R. v. McMillan, 2019 ONSC 5616; R. v.

Daniel, 2019 ONSC 6920; R. v.Cumberland, 2019 NSSC 307; R. v. Stewart, 2019 MBQB 171; R. v. Dorion, 2019 SKQB 266; R. v. Raymond (Ruling #4), 2019 NBQB203, 379 C.C.C. (3d) 75; R. v. LeBlanc, 2019 NBQB 241, 447 C.R.R. (2d) 227; R. v. S.B., 2019 ABQB 836, 447 C.R.R. (2d) 63; R. v.Bragg, 2019 NLSC 235; R. v. Simard, 2019 QCCS 4394; R. v. Kebede, 2019 ABQB 858, 448 C.R.R. (2d) 102; R. v. Subramaniam, 2019BCSC 1601, 445 C.R.R. (2d) 49; R. v. Bebawi, 2019 QCCS 4393; R. v. Ismail, 2019 MBQB 150, 447 C.R.R. (2d) 150; R. v. Lindor,2019 QCCS 4232; R. v.

Nazarek, 2019 BCSC 1798; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2S.C.R. 248; Sutt v. Sutt, (ON CA), [1969] 1 O.R. 169; Peel (Police) v. Ontario (Special Investigations Unit), 2012ONCA 292, 110 O.R. (3d) 536; Wildman v. The Queen, (SCC), [1984] 2 S.C.R. 311; R. v. Bickford (1989), (ON CA), 51 C.C.C. (3d) 181; Wright v. Hale (1860), 6 H. & N. 227, 158 E.R. 94. By Martin J. Referred to: R. v. Williams, (SCC), [1998] 1 S.C.R. 1128; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R.579; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509; R. v.

Bain, (SCC), [1992] 1 S.C.R. 91; R. v. Brown (2006), (ON CA), 219 O.A.C. 26; R. v. Spence, 2005 SCC71, [2005] 3 S.C.R. 458; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328; R. v.S. (R.D.), (SCC), [1997] 3 S.C.R. 484; R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; R. v. Nguyen (1997), (BC CA), 97 B.C.A.C. 86; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Parks (1993), (ONCA), 15 O.R. (3d) 324; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863. By Rowe J. Referred to: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411;R. v.

Turpin, (SCC), [1989] 1 S.C.R. 1296; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309; R. v. Harrer, (SCC), [1995] 3 S.C.R. 562; R. v. Crosby, (SCC), [1995]2 S.C.R. 912; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R.217; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3;Cooper v. Canada (Human Rights Commission), (SCC), [1996] 3 S.C.R. 854; RJR-MacDonald Inc. v. Canada(Attorney General), (SCC), [1995] 3 S.C.R. 199; New Brunswick Broadcasting Co. v.

Nova Scotia (Speaker of theHouse of Assembly), (SCC), [1993] 1 S.C.R. 319; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43,[2013] 3 S.C.R. 3; Fraser v. Public Service Staff Relations Board, (SCC), [1985] 2 S.C.R. 455; Reference re PublicService Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313; R. v. Smith (Edward Dewey), (SCC), [1987] 1 S.C.R. 1045; R. v. Schwartz, (SCC), [1988] 2 S.C.R. 443; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143;Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), (SCC), [1990] 1 S.C.R. 1123; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493; Black v. Law Society of Alberta, (SCC), [1989] 1 S.C.R. 591; Watkins v.Olafson, (SCC), [1989] 2 S.C.R. 750; Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1S.C.R. 927; R. v. Mills, (SCC), [1999] 3 S.C.R. 668; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R.145; Ontario (Attorney General) v. G., 2020 SCC 38, [2020] 3 S.C.R. 629; Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624; Mahe v. Alberta, (SCC), [1990] 1 S.C.R. 342; Doucet-Boudreau v.

NovaScotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Quebec (Attorney General) v. Alliance du personnel professionnel et

technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464; Reference re Pan-Canadian Securities Regulation,2018 SCC 48, [2018] 3 S.C.R. 189; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), (SCC), [1989] 2 S.C.R. 49; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Quebec (Attorney General) v. Canada(Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693; Ferrel v. Ontario, (ON CA), [1998] 42 O.R. (3d) 97. By Abella J. (dissenting in part) R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398; R. v.

Williams, (SCC), [1998] 1 S.C.R. 1128; R. v.Parks (1993), (ON CA), 15 O.R. (3d) 324; R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509; Regents of theUniversity of California v. Bakke, 438 U.S. 265 (1978); Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50,[2017] 2 S.C.R. 289; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; Wildman v. The Queen, (SCC), [1984] 2 S.C.R. 311; Angus v. Sun Alliance Insurance Co., (SCC), [1988] 2 S.C.R. 256; Wright v.Hale (1860), 6 H. & N. 227, 158 E.R. 94; Peel (Police) v.

Ontario (Special Investigations Unit), 2012 ONCA 292, 110 O.R. (3d) 536;Martin v. Perrie, (SCC), [1986] 1 S.C.R. 41; Royal Bank of Canada v. Concrete Column Clamps

(1961) Ltd., (SCC), [1971] S.C.R. 1038; R. v. R.S., 2019 ONCA 906; R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272; McLean v. TheKing, (SCC), [1933] S.C.R. 688; Cloutier v. The Queen, (SCC), [1979] 2 S.C.R. 709; R. v. Bain, (SCC), [1992] 1 S.C.R. 91; R. v. Barrow, (SCC), [1987] 2 S.C.R. 694; R. v. Wilson (1996), (ON CA), 29 O.R. (3d) 97; R. v. Koh (1998), (ON CA), 42 O.R. (3d) 668; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R.458; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; Committee for Justice and Liberty v. National Energy Board, (SCC),[1978] 1 S.C.R. 369; R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484; Peart v.

Peel Regional Police Services (2006), (ON CA), 43 C.R. (6th) 175; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Biddle, (SCC), [1995] 1S.C.R. 761; R. v. Lines, [1993] O.J. No. 3284; R. v. Gayle (2001), (ON CA), 54 O.R. (3d) 36; R. v. Khan, 2001 SCC86, [2001] 3 S.C.R. 823; R. v. Cloutier (1988), (ON CA), 27 O.A.C. 246; R. v. White, 2011 SCC 13, [2011] 1 S.C.R.433; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; R. v. Esseghaier, 2021 SCC 9, [2021] 1 S.C.R. 101. By Côté J. (dissenting) Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3; Mansell v.

The Queen (1857), 8 E.L. & Bl. 54, 120E.R. 20; Morin v. The Queen, (1890) 1890 CanLII 38 (SCC), 18 S.C.R. 407; McLean v. The King, (SCC), [1933] S.C.R.688; Cloutier v. The Queen, (SCC), [1979] 2 S.C.R. 709; R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509; R.v. Bain, (SCC), [1992] 1 S.C.R. 91; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; Attorney-General v. De Keyser’sRoyal Hotel, [1920] A.C. 508; Gray v. Reg. (1844), 11 Cl. & Fin. 427, 8 E.R. 1164; R. v. Craig, 2019 ONSC 6732, 449 C.R.R. (2d) 1; R.v. Turpin, (SCC), [1989] 1 S.C.R. 1296; R. v. Lee, (SCC), [1989] 2 S.C.R. 1384; R. v.

Stillman, 2019SCC 40, [2019] 3 S.C.R. 144; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398; R. v. Krieger, 2006 SCC 47, [2006] 2 S.C.R. 501;R. v. Gayle (2001), (ON CA), 54 O.R. (3d) 36; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Spence, 2005SCC 71, [2005] 3 S.C.R. 458; R. v. Williams, (SCC), [1998] 1 S.C.R. 1128; R. v. Gagnon, 2006 SCC 17, [2006] 1S.C.R. 621; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3;R. v.

Myers, 2019 SCC 18, [2019] 2 S.C.R. 105; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; R. v. King, 2019 ONSC 6386,148 O.R. (3d) 618; Batson v. Kentucky, 476 U.S. 79 (1986); R. v. Brown (1999), 73 C.R.R. (2d) 318; Shoile’s Case (1608), Jenk. 284,145 E.R. 205; L’Office Cherifien des Phosphates and Another Respondents v. Yamashita-Shinnihon Steamship Co. Ltd., [1994] 1 A.C.486; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289; R. v. Dineley, 2012 SCC 58,[2012] 3 S.C.R. 272; Angus v. Sun Alliance Insurance Co., (SCC), [1988] 2 S.C.R. 256; R. v. Dorion, 2019 SKQB 266; R.v.

Subramaniam, 2019 BCSC 1601, 445 C.R.R. (2d) 49; R. v. Matthew Raymond (Ruling #4), 2019 NBQB 203, 57 C.R. (7th) 1; R. v.K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504; Mount SinaiHospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281; Old St. Boniface ResidentsAssn. Inc. v. Winnipeg (City), (SCC), [1990] 3 S.C.R. 1170; Application under s. 83.28 of the Criminal Code (Re), 2004SCC 42, [2004] 2 S.C.R. 248; Republic of Costa Rica v. Erlanger, [1876] 3 Ch. D. 62; R. v. Lindor, 2019 QCCS 4232; R. v.

Yumnu,2010 ONCA 637, 269 O.A.C. 48; R. v. Harrer, (SCC), [1995] 3 S.C.R. 562; R. v. O’Connor, (SCC),[1995] 4 S.C.R. 411; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Barrow, (SCC), [1987] 2 S.C.R. 694, R. v.Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280. Statutes and Regulations Cited Act for regulating the Tryals in Cases of Treason and Misprison of Treason, 1696 (Eng.), 7 & 8 Gul. 3, c. 3, s. 7. 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, s. 269. Bill C-75,

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments toother Acts, 1st Sess., 42nd Parl., 2019. Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d), (f). Criminal Code, R.S.C. 1985, c. C-46, ss. 515(10)(c), 631(1), (2), 632, 633, 634 [rep. 2019, c. 25, s. 269], 638, 640(1), (2), 686(1)(b)(iv). Criminal Code, 1892, S.C. 1892, c. 29, s. 668 (1), (2), (3), (4), (9).

Interpretation Act, R.S.C., 1985, c-I-21, s. 43(c). Quebec Act, 1774 (G.B.), 14 Geo. 3, c. 83 [reproduced in R.S.C. 1985, App. II, No. 2]. Authors Cited

Baker, John. An Introduction to English Legal History , 5th ed. New York: Oxford University Press, 2019. Baker, John. The Oxford History of the Laws of England , vol. VI, 1483-1588 . New York: Oxford University Press, 2003. Blackstone, William. Commentaries on the Laws of England , Book IV, 16th ed. London: A. Strahan, 1825. Breger, Melissa L. “Making the Invisible Visible: Exploring Implicit Bias, Judicial Diversity, and the Bench Trial” (2019), 53 U. Rich. L. Rev. 1039. Brown, R. Blake. “Challenges for Cause, Stand-Asides, and Peremptory Challenges in the Nineteenth Century” (2000), 38 Osgoode Hall L.J. 453.

Brown, Donald J. M., and John M. Evans. Judicial Review of Administrative Action in Canada , vol. 1. Toronto: Thomson Reuters, 1998 (loose-leaf updated may 2020, release 3). Brun, Henry, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel , 6 e éd. Cowansville, Que.: Yvon Blais, 2014. Burke, Edmund. Reflections on the Revolution in France, and on the Proceedings of certain Societies in London relative to that event. London: Seeley, Jackson and Halliday, 1790 (1872 reprint). Canada. Department of Justice. Charter Statement — Bill C-75:

An Act to Amend the Criminal Code, Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts , March 2018 (online: https://www.justice.gc.ca/eng/csj-sjc/pl/charter- charte/c75.html; archived version: https://www.scc-csc.ca/cso-dce/2021SCC-CSC26_1_eng.pdf ). Canada. House of Commons. House of Commons Debates , vol. 148, No. 300, 1st Sess., 42nd Parl., May 24, 2018, p. 19605. Canada. House of Commons. House of Commons Debates , vol. 148, No. 360, 1st Sess., 42nd Parl., November 28, 2018, p. 24108. Canada. House of Commons.

Standing Committee on Justice and Human Rights, Evidence , No. 103, 1st Sess., 42nd Parl., June 19, 2018, pp. 1615 and 1700. Canada. Law Reform Commission of Canada. Working Paper 27. The Jury in Criminal Trials . Ottawa: The Commission, 1980. Canada. Library of Parliament. Parliamentary Information and Research Service. 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 , Legislative

Summary 42-1-C75-E, by Laura Barnett et al., Legal and Social Affairs Division, May 7, 2018, revised July 25, 2019. Canada. Privy Council Office. Guide to Making Federal Acts and Regulations , 2nd ed. Ottawa: Department of Justice Canada, 2001. Coke, Edward. Secon d Part of the Institutes of the Laws of England: Containing the Exposition of Many Ancient and Other Statutes . London: Printed for E. and R. Brooke, 1797. Coke, Edward. Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Causes . London: Printed for E. and R. Brooke, 1797.

Coughlan, Steve. Criminal Procedure , 4th ed. Toronto: Irwin Law, 2020. Davison, Charles B. “The Quest for Representative Juries in the Northwest Territories” (2020), 50 Northern Review 195. Du Parcq, Herbert. Aspects of the Law: Being the Presidential Address of the Rt. Hon. Lord Du Parcq, President of the Holdsworth Club of the Students of the Faculty of Law in the University of Birmingham, 1947-48 . Birmingham: Holdsworth Club of the University of Birmingham, 1948. Ferguson, Gerry A., and Michael R. Dambrot. CRIMJI: Canadian Criminal Jury Instructions , vol. 1, 4th ed.

Vancouver: The Continuing Legal Education Society of British Columbia, 2005 (loose-leaf updated November 2019). Fuller, Lon L. “The Forms and Limits of Adjudication” (1978), 92 Harv. L. Rev. 353. Gobert, James J. “The Peremptory Challenge — an Obituary” (1989), Crim. L. Rev. 528. Harding, Mark S., and Rainer Knopff. “ Constitutionalizing Everything: The Role of ‘ Charter Values’” (2013), 18 Rev. Const. Stud. 141. Heinz, Judith. “Peremptory Challenges in Criminal Cases: A Comparison of Regulation in the United States, England, and Canada” (1993), 16 Loy. L.A. Int’l & Comp. L. Rev. 201.

Henry, Miriam, and Frances Henry. “A Challenge to Discriminatory Justice: The Parks Decision in Perspective” (1996), 38 Crim . L. Q. 333. Hogg, Peter W. Constitutional Law of Canada , vol. 1, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2019, release 1). Iacobucci, Frank. First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by The Honourable Frank Iacobucci . Toronto: Ontario Ministry of the Attorney General, 2013. Israel, Mark. “The Underrepresentation of Indigenous Peoples on Canadian Jury Panels” (2003), 25 Law & Pol’y 37.

Kettles, Brent. “Impartiality, Representativeness and Jury Selection in Canada” (2013), 59 Crim. L.Q . 462. Langbein, John H. “The Historical Origins of the Privilege Against Self-Incrimination at Common Law” (1994), 92 Mich. L. Rev. 1047. Langbein, John H. The Origins of Adversary Criminal Trial . New York: Oxford University Press, 2005. Law Reform Commission of British Columbia. Report on Peremptory Challenges in Civil Jury Trials , LRC 63. British Columbia, 1983. Lawrence, Charles R. III. “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism” (1987), 39 Stan. L. Rev. 317. Lederman, W.

R. “Charter Influences on Future Constitutional Reform”, in David E. Smith, Peter MacKinnon and John C. Courtney, eds., After Lake Meech, Lessons for the future , Saskatoon: Fifth House Publishers, 1991, 115. Lederman, W. R. “Democratic Parliaments, Independent Courts, and the Canadian Charter of Rights and Freedoms ” (1985), 11 Queen’s L.J. 1. MacDonnell, Vanessa. “The Right to a Representative Jury: Beyond Kokopenace” (2017), 64 Crim. L.Q. 334. Maintland, F.W. The Constitutional History of England , Cambridge: Cambridge University Press, 1908. Manitoba.

Public Inquiry into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba , vol. 1, The Justice System and Aboriginal People . Winnipeg, 1991. Manitoba. Public Inquiry into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba , vol. 2, The Deaths of Helen Betty Osborne and John Joseph Harper . Winnipeg, 1991. Marouf, Fatma E. “Implicit Bias and Immigration Courts” (2011), 45 New Eng. L. Rev. 417.

Melilli, Kenneth J. “ Batson in Practice: What We Have Learned About Batson and Peremptory Challenges” (1996), 71 Notre Dame L. Rev. 447. Mewett, Alan W. “The Jury Stand-By” (1988), 30 Crim. L.Q. 385. Minow, Martha. “Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors” (1992), 33 Wm. & Mary L. Rev. 1201. Nova Scotia. Royal Commission on the Donald Marshall, Jr., Prosecution: Findings and Recommendations . Halifax, 1989. Page, Anthony. “ Batson ’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge” (2005), 85 B.U.L. Rev. 155.

Petersen, Cynthia. “Institutionalized Racism: The Need for Reform of the Criminal Jury Selection Process” (1993), 38 McGill L.J. 147. Profatt, John. A Treatise on Trial By Jury, Including Questions of Law and Fact . Cambridge: The Riverside Press, 1877. Ramirez, Deborah. “Affirmative Jury Selection: A Proposal to Advance Both the Deliberative Ideal and Jury Diversity” (1998), U. Chicago Legal F. 161. Régimbald, Guy, and Dwight Newman. The Law of the Canadian Constitution , 2nd ed. Toronto: LexisNexis, 2017. Roach, Kent.

Canadian Justice, Indigenous Justice: The Gerald Stanley and Colten Boushie Case , McGill Queen’s University Press, 2019. Roach, Kent. Constitutional Remedies in Canada , 2nd ed., Toronto: Thomson Reuters (updated October, 2019, release 34). Roach, Kent. “Juries, Miscarriages of Justice and the Bill C- 75 Reforms” (2020), 98 Can. Bar Rev. 315. Roach, Kent. “The Urgent Need to Reform Jury Selection after the Gerald Stanley and Colten Boushie Case” (2018), 65 Crim. L.Q. 271. Roberts, Anna. “(Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias” (2012), 44 Conn. L. Rev. 827.

Roccamo, Giovanna Toscano. Report to the Canadian Judicial Council on Jury Selection in Ontario , June, 2018 (online: https://cjc- ccm.ca/cmslib/general/Study%20Leave%20Report%202018%20June.pdf; archived version: https://www.scc-csc.ca/cso-dce/2021SCC- CSC26_2_en.pdf ). Rowe, Malcolm, and Nicolas Déplanche. “Canada’s Unwritten Constitutional Order: Conventions and Structural Analysis” (2020), 98 Can. Bar Rev. 431. Ruparelia, Rakhi. “Erring on the Side of Ignorance: Challenges for Cause Twenty Years after Parks ” (2013), 92 Can. Bar Rev. 267.

Schuller, Regina, and Neil Vidmar. “The Canadian Criminal Jury” (2011), 86 Chi-Kent L. Rev. 497. Schuller, Regina A., et al. “Challenge for Cause: Bias Screening Procedures and Their Application in a Canadian Courtroom” (2015), 21 Psychol. Pub. Pol’y & L. 407. Su, Anona. “A Proposal to Properly Address Implicit Bias in the Jury” (2020), 31 Hastings Women’s L.J. 79.

Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. Tanovich, David M. “The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System” (2008), 40 S.C.L.R. (2d) 655 . Taylor-Thompson, Kim. “Empty Votes in Jury Deliberations” (2000), 113 Harv. L. Rev. 1261. Thompson, Mikah K. “Bias on Trial: Toward an Open Discussion of Racial Stereotypes in the Courtroom” (2018), 5 Mich. St. L. Rev. 1243. Van Dyke, Jon M. Jury Selection Procedures: Our Uncertain Commitment to Representative Panels . Cambridge: Ballinger, 1977.

Webber, Grégoire, et al. Legislated Rights: Securing Human Rights through Legislation . New York: Cambridge University Press, 2018. Weddell, Hilary. “A Jury of Whose Peers?: Eliminating Racial Discrimination in Jury Selection Procedures” (2013), 33 B.C. J.L. & Soc. Just. 453. APPEAL and CROSS-APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Watt and Tulloch JJ.A.), 2020 ONCA 40 , 149 O.R. (3d) 365, 60 C.R. (7th) 1, 384 C.C.C. (3d) 215, [2020] O.J.

No. 241 (QL), 2020 CarswellOnt 543 (WL Can.), setting aside the conviction for first degree murder entered by McMahon J., 2019 ONSC 5512 , 443 C.R.R. (2d) 326, 148 O.R. (3d) 53, 380 C.C.C. (3d) 390, 57 C.R. (7th) 62, [2019] O.J. No. 4797 (QL), 2019 CarswellOnt 14975 (WL Can.), and ordering a new trial. Appeal allowed and cross-appeal dismissed, Abella J. dissenting in part and Côté J. dissenting. Andreea Baiasu and Michael Perlin , for the appellant/respondent on cross-appeal. Dirk Derstine and Tania Bariteau , for the respondent/appellant on cross-appeal. Jeffrey G.

Johnston , for the intervener the Attorney General of Canada. Charles Murray , for the intervener the Attorney General of Manitoba. Lara Vizsolyi , for the intervener the Attorney General of British Columbia. Andrew Barg , for the intervener the Attorney General of Alberta. Caitlyn E. Kasper , for the intervener the Aboriginal Legal Services Inc. Jean-Guillaume Blanchette , for the intervener Association québécoise des avocats et avocates de la défense. Kent Roach , for the intervener the David Asper Centre for Constitutional Rights. Peter Thorning , for the intervener the Canadian Association of Black Lawyers.

Nader Hasan , for the interveners the Canadian Muslim Lawyers Association and the Federation of Asian Canadian Lawyers. Janani Shanmuganathan , for the intervener the South Asian Bar Association of Toronto. Jill R. Presser , for the intervener the Advocates’ Society. Michael A. Johnston , for the intervener the Defence Counsel Association of Ottawa. Nathan Gorham , for the intervener the Criminal Lawyers’ Association (Ontario). Christopher R. Murphy , for the intervener Debbie Baptiste. Joshua Sealy-Harrington , for the intervener the British Columbia Civil Liberties Association.

The reasons for judgment of Wagner C.J. and Moldaver and Brown JJ. were delivered by [ 1 ] Moldaver and Brown JJ. — Jury selection in Pardeep Singh Chouhan’s trial for first degree murder was scheduled to begin on September 19, 2019. That day, amendments to the Criminal Code , R.S.C. 1985, c. C-46 , came into force which abolished peremptory challenges, depriving Mr. Chouhan of the right to remove a limited number of prospective jurors from the jury without providing a reason for doing so.

This appeal focuses on the constitutionality and temporal scope of these amendments. [ 2 ] Although peremptory challenges were a long-standing example of what Blackstone described as the “tenderness and humanity to prisoners, for which our English laws are justly famous”, they have drawn significant controversy in recent decades ( Commentaries on the Laws of England (16th ed. 1825), Book IV, at p. 353).

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. This quiet discrimination had palpable and well-documented effects on the composition of juries. [ 3 ] Before his trial began, Mr.

Chouhan challenged the constitutionality of the Criminal Code amendments abolishing peremptory challenges on the basis that they infringed his right to an independent and impartial jury trial under ss. 7 , 11(d) , and 11(

f) of the Canadian Charter of Rights and Freedoms . In the alternative, he argued that those amendments, which lack any transitional provisions, operated only prospectively and therefore did not apply to his trial.

[4] The trial judge rejected both arguments (2019 ONSC 5512, 148 O.R. (3d) 53).

He identified the following range ofprocedural safeguards which, in his view, continued to protect the independence and impartiality of the jury, even in the absence ofperemptory challenges: the roster of prospective jurors is randomly selected and representative of the community; jurors are drawn fromthat roster through a randomized process; the accused can remove a juror for one of several reasons enumerated in the challenge forcause provision under s. 638 of the Criminal Code; and the trial judge retains the discretion to excuse or stand aside prospective jurorsfor reasons enumerated in ss. 632 and 633 of the Code, such as hardship, obvious partiality, or other reasonable causes.

Finding noviolation of ss. 7, 11(d), or 11(f), the trial judge went on to determine that the impugned amendments were purely procedural in natureand thus applied immediately to all jury trials scheduled to begin on or after their coming into force. [5] The selection of Mr. Chouhan’s jury proceeded without peremptory challenges and Mr. Chouhan was ultimatelyconvicted of first degree murder. Days after the jury rendered its verdict and before he was sentenced, Mr. Chouhan appealed from hisconviction to the Court of Appeal for Ontario (2020 ONCA 40, 149 O.R. (3d) 365).

He raised no substantive arguments about theconduct of the trial, but instead impugned the trial judge’s ruling that the abolition of peremptory challenges was constitutional and thatit applied to his trial. [6] On appeal, Mr. Chouhan succeeded in having his conviction overturned and a new trial ordered. Writing for aunanimous court, Watt J.A. agreed with the trial judge that the amendments to the Criminal Code were constitutional, but he disagreedon their temporal scope.

In his opinion, the abolition of peremptory challenges could not apply to accused persons whose right to a jurytrial had vested by the time the amendments were proclaimed into force on September 19, 2019. This was the case for Mr. Chouhan, ashis first degree murder charge pre-dated September 19, 2019. Accordingly, he was deprived of his substantive right to peremptorychallenges under the former rules and a new trial was required. [7] The Crown appealed to this Court on the issue of the temporal scope of the abolition of peremptory challenges; inturn, Mr.

Chouhan cross-appealed on the constitutionality of the amendments abolishing them. At the conclusion of the hearing, amajority of the Court restored Mr. Chouhan’s conviction, with reasons to follow. These are those reasons. I. Issues [8] Mr. Chouhan does not pursue his arguments under s. 7 of the Charter in this Court. Accordingly, two issues arise onthis appeal: (

a) Does the abolition of peremptory challenges violate the rights of accused persons under ss. 11(

d) and 11(

f) of the Charter? (

b) If not, does the abolition of peremptory challenges apply to accused persons who were awaiting trial on September 19, 2019? II. Legislative Context [9] Before addressing the merits of this appeal, some context is necessary, as Parliament did not decide to abolishperemptory challenges within a historical or social vacuum. A.

Peremptory Challenges in Canada [10] Peremptory challenges have formed part of the jury selection process in Canada since the country’s earliest days.Although the number of challenges available to the Crown and the accused has varied across time, the legislative scheme that Parliamentabolished, which forms the subject of this appeal, set a fixed number of challenges for each party based on the seriousness of theunderlying criminal charges.

The Crown and the accused could each exercise 20 peremptory challenges where the accused was chargedwith high treason or first degree murder, 12 where the accused was charged with an offence that attracted a maximum sentence of morethan five years’ imprisonment (but excluding high treason and first degree murder), and 4 for all other offences. [11] Peremptory challenges formed part of a dynamic in-court process governing the selection of jurors from an array ofprospective jurors selected at random for jury duty.

This process included, and still includes: the ability of accused persons and theCrown to request the removal of a given juror on a challenge for cause for reasons including partiality (Criminal Code, s. 638); thepower of the trial judge to excuse prospective jurors for reasons of obvious partiality, personal hardship, or any other reasonable cause(s. 632); and the power of trial judges to stand aside prospective jurors (s. 633).

This stand-aside power allows the trial judge to directthat a prospective juror will not sit on the jury unless there are too few other jurors fit to serve. [12] These in-court procedures emerged in their modern forms in the 16th and 17th centuries in England (R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509, at p. 523). As L’Heureux-Dubé J. explained in Sherratt, their development was “neitherfortuitous nor arbitrary” but rather emerged gradually over hundreds of years to support the purposes of the institution of the jury(p. 523).

By fostering the independence, impartiality, and representativeness of the jury, the selection process ensures that the juryremains “an excellent fact finder”, that it acts as “the conscience of the community” and as a “final bulwark against oppressive laws ortheir enforcement”, and that it increases public trust in the administration of justice (pp. 523-24). [13] Peremptory challenges played a distinct, albeit limited role within this broader context.

While the other features ofjury selection permit the removal of a juror only for specific reasons, peremptory challenges were “entirely discretionary and not subjectto any condition” (Cloutier v. The Queen, (SCC), [1979] 2 S.C.R. 709, at p. 721). The accused could remove a jurorbecause of “a mere belief, more often a hunch, . . . that within the prospective juror resides a state of mind at odds with impartiality” (R.v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421, at para. 123).

Blackstone offered two justifications for this virtually unfettereddiscretion: first, that an accused person ought not to be tried by “any one man against whom he has conceived a prejudice”, and secondly,that accused persons ought to have an opportunity to remove jurors who may become resentful after an unsuccessful challenge for cause(p. 353, as cited in Cloutier, at p. 720). In short, peremptory challenges heightened the accused’s perception that he or she “has had thebenefit of a fairly selected tribunal” (Sherratt, at pp. 532-33).

[14] While, as our colleague Côté J. recounts, commentators since (and including) Blackstone have celebrated theperemptory challenge for its subjective importance to the accused, this must be understood in light of the context surrounding its originand later evolution. As to its origin, it really is this simple: the juror being objected to was not, in any sense, the juror of the modern daycriminal trial. This is because, when peremptory challenges were first made available at common law to the accused, the role of the jurorwas markedly different.

Jurors acted not as independent and impartial fact-finders, but as fact-knowers with first-hand knowledge of theallegations against the accused (J. Heinz, “Peremptory Challenges in Criminal Cases: A Comparison of Regulation in the United States,England, and Canada” (1993), 16 Loy. L.A. Int’l & Comp. L. Rev. 201, at pp. 207-8). Peremptory challenges thus emerged in a context inwhich the jurors, the accused, and the victims each knew one another.

In our respectful view, the constitutionality of the abolition ofperemptory challenges in 21st century Canada cannot usefully be informed by such a provenance. [15] Further, after the jury had become an impartial fact-finding body, challenges for cause and peremptory challengeswere generally exercised in narrow and objectively determinable circumstances, such as where a prospective juror failed to meetresidential or property requirements, or had a relationship with the accused (R.

Blake Brown, “Challenges for Cause, Stand-Asides, andPeremptory Challenges in the Nineteenth Century” (2000), 38 Osgoode Hall L.J. 453, at p. 458). And even after the practice became thatan accused person could derive subjective comfort from being able to object to any juror for any reason, that form of challenge (andindeed all forms of challenge) were “uncommon in English courtrooms” before the 19th century (p. 459).

This is unsurprising, given thesummary nature of criminal trials at the time — trials would take as little as 30 minutes, the role of counsel was minimal, and theaccused was not given advance notice of the names of prospective jurors (p. 460). And because jurors were generally of a higher socialstatus than the accused, few accused would challenge prospective jurors for fear of offending the remaining jurors — a fear that was allthe more palpable because the accused had to personally challenge each juror, even where the accused was represented by counsel(p. 461; see also J. H.

Langbein, “The Historical Origins of the Privilege Against Self-Incrimination at Common Law” (1994), 92Mich. L. Rev. 1047, at p. 1058). Given all this, one commentator concludes that the accused’s “nominal challenge rights were of littleuse” for much of their history (Langbein, at fn. 51).

In short, peremptory challenges, while available, were not such a common feature asto make it possible to say, as our colleague says, that they gave the accused “a sense of ownership in the trial” (Côté J.’s reasons, atpara. 235). [16] It is, however, fair to say that accused persons could use peremptory challenges to their advantage — for instance,during political prosecutions in the 17th century, when Parliament “recognized that peremptory challenges were one of the accused’smost important tools in securing an impartial jury” (Côté J.’s reasons, at para. 234).

But again, context is vital to understanding thesignificance of this observation to the question before us in this appeal. At that time, the trial process retained a marked power imbalanceas between the Crown and the accused (J. Profatt, A Treatise on Trial By Jury, Including Questions of Law and Fact (1877), atpp. 211-13). While Parliament had abolished the Crown’s peremptory challenges in 1305, courts had recognized a Crown right to standaside an unlimited number of jurors (Heinz, at p. 208; J. M.

Van Dyke, Jury Selection Procedures: Our Uncertain Commitment toRepresentative Panels (1977), at p. 154; Brown, at p. 464, citing R. v. O’Coigly, [1798] 26 Howell’s State Trials 1191; Heinz, at p. 208).It is therefore not surprising — especially given the experience of turmoil and injustice in 17th century England, and of Parliament’sconsequent desire to confine the Crown to the rule of law — that Parliament acted as it did to secure a place for peremptory challenges. [17] We do not, however, see such considerations as especially germane in present circumstances.

More generally, andwhile the peremptory challenge is, as our colleague says, “over seven hundred years old” (Côté J.’s reasons, at para. 232), the historicalcontext from which it emerged and in which it developed, more fully understood, does not support the narrative of undiluted accusedprotections that our colleague describes. More to the point, however, it tells us little if anything about the current significance of theperemptory challenge to the modern criminal trial.

Of greater significance on that point, in our view, is the evidence of two experienceddefence counsel, qualified as experts at trial, who attested to their clients’ perceptions of the value of peremptory challenges. Theytestified that accused persons routinely use peremptory challenges based on the way prospective jurors look at them during the selectionprocess.

Additionally, they suggested that racialized accused routinely use peremptory challenges to remove non-racialized prospectivejurors and make room for jurors who represent diverse backgrounds, thereby increasing the accused’s confidence in the impartiality ofthe jury. B. Mounting Criticism of Peremptory Challenges [18] While we do not deny the value of peremptory challenges from the subjective view of accused persons, the truevalue of this “benefit” was doubtful. Peremptory challenges are exclusive rather than inclusive in nature: they enabled accused persons toexclude a limited number of prospective jurors.

They did not, however, allow the accused to hand-pick the eventual jurors, since theaccused’s ability to exclude some jurors was balanced by the Crown’s equal right to exclude others. At most, peremptory challengesprovided the parties with a limited ability to determine who would ultimately serve on the jury. [19] Moreover, once the jury was empaneled, it became impossible to trace the impact of peremptory challenges on theverdict, given the insurmountable difficulty in ascertaining how a differently constituted jury would have ruled on the same case.

Asaptly recognized by the Court of Appeal, peremptory challenges were “by nature arbitrary and subjective,” requiring the accused andcounsel to rely on “guess work and uncertain mythologies” to predict the prospective juror’s beliefs and attitudes (paras. 54 and 57).

TheCourt of Appeal rightly acknowledged the difficulties inherent in speculating — let alone accurately predicting — how jurors wouldreact to the case based solely on characteristics like “race, gender, age, ethnic origin, demeanour, or manner of dress” (para. 54). [20] More critically, peremptory challenges sit uneasily with various other aspects of jury selection. To begin,peremptory challenges did not displace the principle that the accused has no right to select a partial or favourable jury (Sherratt, at p. 532;R. v. Barrow, (SCC), [1987] 2 S.C.R. 694, at p. 720; R. v.

Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777, at para. 71). Asthis Court explained in Yumnu, at para. 71, that principle is fundamental: . . . jury selection is not a game and it should not be approached as though it were. Winning and losing are concepts that ought not tobe associated with it. The process is not governed by the strictures of the adversarial model, nor should it be . . . . The idea at the end ofthe day is not to obtain a jury that is partial to one side or the other. We are looking for jurors who are eligible, impartial, representativeand competent.

The jury does not belong to the parties; it belongs to the people.

[21] Similarly, over 30 years ago, Professor Mewett noted that peremptory challenges and Crown stand asides, thefunctional equivalent of a peremptory challenge, undermined the randomness of jury selection, a significant guarantor of juryindependence and impartiality: . . . we must reconsider the entire basis for the legislation [governing peremptory challenges and Crown stand-asides]. It is no longersufficient to accept it merely because it has developed over the past 700 years.

I am not entirely convinced that peremptory challengesfor either side make all that much sense, given the checks and balances that exist in the initial selection process . . . . . . . The essence of our selection process is its random nature — both the Crown and the accused literally take the luck of the draw,both as to who gets onto the panel in the first place and then as to the order in which they are called to take their places on the jury. (“The Jury Stand-By” (1988), 30 Crim.

L.Q. 385, at p. 386) [22] Commentators have also recognized that peremptory challenges could be used in such a way as to facilitate quiet, butdeliberate, discrimination. Indigenous communities, in particular, have witnessed the disturbing effects of peremptory challenges inexcluding their members from juries.

The 1991 Manitoba Public Inquiry into the Administration of Justice and Aboriginal People notedthat “both prosecutors and defence attorneys have used their peremptory challenges and stand asides to screen Aboriginal people out ofthe jury system” (Report of the Aboriginal Justice Inquiry of Manitoba, vol. 1, The Justice System and Aboriginal People (1991), atp. 382).

When the Honourable Frank Iacobucci examined the problem of Indigenous under-representation on Ontario’s provincial juryrolls, he found that the continued existence of peremptory challenges undermined even the most successful attempts by the province toensure that Indigenous people are represented on jury rolls (First Nations Representation on Ontario Juries: Report of the IndependentReview Conducted by the Honourable Frank Iacobucci (2013), at para. 376).

The Iacobucci Report noted particularly stark examples ofthe use of peremptory challenges to exclude Indigenous jurors: The examples they provide are compelling. In the Helen Betty Osborne case in The Pas, the jury had

[…]