R. v. CHOUHAN, 2021 SCC 26, JUNE 25, 2021.

FACTS:  The accused was charged with first degree murder. On the day set for jury selection (September 19, 2019), amendments to the Criminal Code, which abolished peremptory challenges, came into force.  The accused argued that the amendments only operated prospectively, thus they did not apply to his trial.  In addition, he argued that the application of the amendments to his trial would violate section 11(d) of the Charter.  The trial judge rejected these arguments and the accused was convicted. 

An appeal to the Ontario Court of Appeal was allowed and a new trial was ordered.  The Supreme Court indicated that the Court of Appeal, per Watt J.A., “agreed with the trial judge that the amendments to the Criminal Code were constitutional, but he disagreed on their temporal scope. In his opinion, the abolition of peremptory challenges could not apply to accused persons whose right to a jury trial had vested by the time the amendments were proclaimed into force on September 19, 2019. This was the case for Mr. Chouhan, as his first degree murder charge pre-dated September 19, 2019. Accordingly, he was deprived of his substantive right to peremptory challenges under the former rules and a new trial was required” (at paragraph 6).

Appeals were taken to the Supreme Court of Canada.  The Court described the issues raised as being the following:

(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?

HELD: The appeal was allowed and the conviction was restored.  A majority of the Court held that (1) the abolition of peremptory challenges does not violate sections 11(d) or (f) of the Charter; and (2) the amendments apply retroactively.

Does the abolition of peremptory challenges violate the rights of accused persons under ss. 11(d) and 11(f) of the Charter?

The majority concluded (at paragraphs 83 and 85):

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.

… 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.

(b) If not, does the abolition of peremptory challenges apply to accused persons who were awaiting trial on September 19, 2019?

The majority concluded (at paragraph 103):

…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.