On 25 June 2021, the Supreme Court of Canada released its reasons for the decision in R v Chouhan. Michael A. Johnston represented the Defence Counsel Association of Ottawa (DCAO), which intervened in the appeal.
Writing in dissent, the Honourable Justice Côté would have found that the recent amendments to jury trial procedures, including the elimination of peremptory challenges, was unconstitutional, substantially for the reasons offered by the DCAO and its fellow intervenors:
Edmund Burke once wrote that “however sagacious and observing he may be, it is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society” (Reflections on the Revolution in France (1790), at p. 90). In Parliament’s haste to respond to an individual case, it committed this very error. It failed to understand why peremptory challenges had 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.
In An 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 (“Amending Act”), Parliament abolished peremptory challenges under the Criminal Code, R.S.C. 1985, c. C-46 . In doing so, it substantially diminished the benefit of trial by jury for Mr. Chouhan and many other accused persons, particularly racialized and other marginalized persons.
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Section 11 (f) guarantees that all persons charged with non-military crimes punishable by a maximum term of imprisonment of five years or more have the right to benefit from trial by jury. In order to provide the benefit of trial by jury, a jury must possess certain core characteristics, including impartiality, representativeness and competence. Each of these three characteristics fosters the benefit of trial by jury. The abolition of peremptory challenges substantially reduces the benefit of jury trials by eroding these three characteristics.
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. They also give accused persons the opportunity to try to obtain more representative and diverse juries. Finally, peremptory challenges allow accused persons to strike jurors whose life experiences are so acutely different to their own that they may be unable to deliver the benefit of trial by jury.