Her Majesty the Queen v. Chouhan

[Indexed as: R. v. Chouhan]

Ontario Reports

Court of Appeal for Ontario

Doherty, Watt and Tulloch JJ.A.

January 23, 2020

149 O.R. (3d) 365 | 2020 ONCA 40

Case Summary

Charter of Rights and Freedoms — Right to fair trial — Right to trial by jury — Before jury selection in a murder trial, Parliament repealing peremptory challenges and amending challenge for cause provisions of Criminal Code making trial judge trier of fact on challenges — Trial judge holding amendments to be constitutional and applying retrospectively — Accused appealing conviction on the basis that amendments infringed his rights under ss. 7, 11(d) and 11(f) of the Charter — Amendments were constitutional — Amendments to challenge for cause procedure purely procedural and applying retrospectively — Abolition of peremptory challenge affected substantive right to trial by jury as significantly reducing accused's ability to affect the composition of jury — Repeal of peremptory challenges applying prospectively and should not have applied to accused — Conviction set aside and new trial ordered — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, ss. 634, 640.

Criminal law — Jury selection — Challenge for cause — Before jury selection in a murder trial, Parliament amending challenge for cause provisions of Criminal Code making trial judge trier of fact for challenges — Trial judge holding amendments to be constitutional and applying retrospectively — Accused appealing conviction on the basis that amendments infringed his rights under ss. 7, 11(d) and 11(f) of the Charter — Amendments were constitutional — Changes to challenges for cause purely procedural and applying retrospectively — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, ss. 634, 640.

Criminal law — Jury selection — Peremptory challenge — Before jury selection in a murder trial, Parliament repealing peremptory challenges — Trial judge holding amendments to be constitutional and applying retrospectively — Accused appealing conviction on the basis that amendments infringed his rights under ss. 7, 11(d) and 11(f) of the Charter — Amendments were constitutional but abolition of peremptory challenges impacting accused's substantive right to trial by jury and applicable prospectively and should not have applied to accused — Conviction set aside and new trial ordered — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, ss. 634, 640.

Statutes — Interpretation — Retrospective operation — Before jury selection in a murder trial, Parliament repealing peremptory challenge provisions and amending challenge for cause provisions of Criminal Code — Trial judge holding amendments to be constitutional and applying retrospectively — Accused appealing conviction on the basis that amendments infringed his rights under ss. 7, 11(d) and 11(f) of the Charter — Amendments were constitutional and purely procedural changes to challenge for cause applicable retrospectively — Abolition of peremptory challenge affecting accused's substantive right to trial [page366] by jury and only applicable prospectively — Trial judge erred in holding repeal of peremptory challenges applicable to accused — Conviction set aside and new trial ordered — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, ss. 634, 640.

The accused was directly indicted on a single count of first degree murder. Before jury selection was scheduled, Parliament enacted legislation abolishing peremptory challenges and replacing lay triers with the presiding judge as the adjudicator of the truth of challenges for cause. After jury selection was scheduled but before it commenced, the parties appeared before the trial judge to make submissions on the consequences of the legislative amendments. The trial judge held the abolition of peremptory challenges and the substitution of the presiding judge as the trier of the truth of the challenge for cause to be constitutional, and applied retrospectively, thus applicable to the accused's trial. The jury found the accused guilty and the trial judge sentenced him to life imprisonment with no chance of parole for 25 years. The accused appealed his conviction solely on the basis of the trial judge's ruling in the jury selection process, arguing that the amendments breached certain of his Charter rights and ought not to have applied retrospectively.

Held, the appeal should be allowed in part.

The right to a fair hearing by an impartial tribunal under s. 11(d) of the Charter guaranteed basic procedural fairness but it did not guarantee a particular trial process. The accused's focus on peremptory challenges and the effect of their abolition failed to recognize that the jury selection process as a whole, and not each component, had to satisfy the constitutional standard. His argument that peremptory challenges were essential to ensure impartiality was inherently paradoxical given his acknowledgement that such challenges were exercised for purely subjective, often stereotypical reasons. The reality of racial prejudice and the risk of prejudiced and partial jurors did not elevate the peremptory challenge to the level of a constitutionally guaranteed right. There was no evidence that the subjective considerations underlying the exercise of peremptory challenges rendered them more likely to exclude potentially partial jurors than impartial jurors.

An accused's right to the benefit of a trial by jury under s. 11(f) of the Charter did not extend to proportionate representation at any stage of the jury selection process. In the absence of any infringement of s. 11(d) there could be no infringement under s. 11(f). Although the role of representativeness was broader under s. 11(f) than under s. 11(d), the obligation on the state remained the same. That obligation related to the process used to compile the jury roll, not the in-court selection process or the composition of the jury. Abolition of peremptory challenges did not change the guarantee of trial by jury.

There was no infringement of s. 7 of the Charter as there was no causal connection established between the abolition of peremptory challenges and the deprivation of right to liberty or security of the person. Further, to the extent that the s. 7 argument focused on trial fairness and an impartial jury, those issues had already been disposed of by the rejection of the s. 11(d) argument.

Substitution of the presiding judge for lay triers as the trier of truth for the challenge for cause did not contravene ss. 7, 11(d) or 11(f) of the Charter. Substituting a single trier for a pair of triers, each presumed impartial and applying the same standard to determine the question framed for decision, compromised neither the independence nor the impartiality of the jury or the process of its selection. The self-selecting nature of the lay trier procedure was not constitutionally mandated. The assignment of the presiding judge to the role of trier of [page367] the truth of the challenge for cause did not compromise the traditional division of responsibilities between judge and jury in a criminal trial.

The amendment making the presiding judge the trier of all challenges for cause applied retrospectively. The essential difference between the former and current provisions was twofold: the identity of the trier and the availability of a choice of trial procedure. Unlike the abolition of peremptory challenges, however, the challenge for cause procedure remained available with the same threshold for access, burden of proof, standard of proof and consequence if successful. The change effected by the amendment did not impair or negatively affect the right to trial by judge and jury as it existed prior to the amendment. Thus, it was purely procedural and applied to past and future events.

The abolition of peremptory challenges applied prospectively. Although The amendment to the process of jury selection might appear to be inherently procedural (thus subject to a presumption of immediate application), it also affected the substantive right to a trial by jury as it existed prior to the amendment by significantly diminishing the accused's ability to affect the ultimate composition of the jury. Therefore, that amendment was presumptively prospective and should not have applied to the selection of the accused's jury. In general, for the right to have vested an accused must have been charged with an offence and been directly indicted or elected for a trial in Superior Court by judge and jury before amendment came into effect on September 19, 2019. The accused's conviction was set aside and a new trial ordered.

Cases referred to

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Statutes referred to

An Act respecting Procedure in Criminal Cases, and other matters relating to Criminal Law, S.C. 1869 (2nd Sess.), c. 29 [rep.], s. 37

An Act to Amend the Criminal Code (Jury), S.C. 1992, c. 41, s. 2

An Act to Amend the Criminal Code (Respecting Jurors), S.C. 1917, c. 13, s. 1

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., S.C. 2019, c. 25, ss. 269, 272, 406

Canadian Charter of Rights and Freedom, ss. 1, 7, 11(d), (f)

Criminal Code, S.C. 1892 (2nd Sess.), c. 29 [rep.], s. 688

Criminal Code, R.S.C. 1985, c. C-46 [as am.], ss. 469(a)(viii), 577(a), 631(3) [as am.], (3.1) [as am.], 632(c), 633 [as am.], 634 [rep.], 638(1) [as am.], (b) [as am.], 640 [as am.], (1) [as am.], 686(1)(b)(iv)

Interpretation Act, R.S.C. 1985, c. I-21 [as am.], s. 44(c), (d)

The Criminal Law Amendment Act (No. 2), 1976, S.C. 1974-75-76 (1st Sess.), c. 105, s. 10

Authorities referred to

Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis, 2014)

Treaties and conventions referred to

European Convention on Human Rights, E.T.S. 5 (November 4, 1950), art. 6

APPEAL by the accused from the conviction for first degree murder entered by J.B. McMahon J., sitting with a jury (2019), 2019 ONSC 5512, 148 O.R. (3d) 53, [2019] O.J. No. 4797 (S.C.J.).

Dirk Derstine, Tania Bariteau and Laura Remigio, for appellant.

Andreea Baiasu and Rebecca Law, for respondent.

Jeffrey G. Johnston, for intervenor Attorney General of Canada.

Jonathan Rudin and Emily Hill, for intervenor Aboriginal Legal Services. [page370]

Nathan Gorham and Mindy Caterina, for intervenor Criminal Lawyers' Association.

The judgment of the court was delivered by

[1] WATT J.A.: — For 150 years, even before Parliament created our first Criminal Code, jury selection in a criminal trial followed an established pattern. The parties could challenge a fixed number of jurors peremptorily. When permitted, they could also challenge prospective jurors for cause. And for the most part, lay triers determined the truth of the challenge for cause.

[2] Things changed on September 19, 2019. No more peremptory challenges. No more trials of challenges for cause by lay triers. Instead, only challenges for cause determined by the trial judge.

[3] In this case, I am required to decide whether one, both, or neither of these amendments to the jury selection procedure can withstand Canadian Charter of Rights and Freedoms scrutiny. If both pass constitutional muster, I then have to determine whether they operate prospectively or retrospectively.

[4] I decide that neither the abolition of peremptory challenges nor the substitution of the trial judge for lay triers to determine the truth of the challenge for cause is constitutionally flawed.

[5] With respect to the temporal application of the amendments, I decide that the abolition of the peremptory challenge applies prospectively, that is to say, only to cases where the accused's right to a trial by judge and jury vested on or after September 19, 2019. But I conclude the amendment making the presiding judge the trier of all challenges for cause applies retrospectively, that is to say, to all cases tried on or after September 19, 2019, irrespective of when the right vested.

The Background Facts

[6] About three months ago, a jury found Pardeep Singh Chouhan (the "appellant") guilty of first degree murder. Within a week of his conviction and before the trial judge imposed the mandatory sentence upon him, the appellant appealed his conviction. His only grounds of appeal relate to the trial judge's rulings on the procedure to be followed in selecting the trial jury. A brief reference to the procedural history of the case is sufficient background for our purposes.

The charge

[7] The appellant was indicted directly on a single count of first degree murder alleged to have taken place on September 30, 2016. The nature of the offence charged and the governing procedural provisions of the Criminal Code, R.S.C. 1985, c. C-46 meant that, [page371] without the consent of the appellant and the Attorney General, the trial would be held in the Superior Court of Justice by a court composed of a judge sitting with a jury.

The jury selection proceedings

[8] Before jury selection in the appellant's case was scheduled to begin, Parliament enacted legislation which, among other things, abolished peremptory challenges and substituted the presiding judge as the adjudicator of the truth of challenges for cause: 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, 1st Sess., 42nd Parl., S.C. 2019, c. 25, ss. 269, 272. These amendments came into force on September 19, 2019: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, s. 406.

[9] In advance of jury selection, which was scheduled to begin on September 19, 2019, the parties appeared before the trial judge to make submissions on three issues arising out of the amendments:

(i) the constitutionality of the repeal of s. 634 of the Criminal Code, which abolished peremptory challenges for both parties;

(ii) the constitutionality of the amendment to s. 640 of the Criminal Code substituting the presiding judge as the adjudicator of the truth of the challenge for cause rather than lay triers as had previously been the case; and

(iii) if the provisions were declared to be constitutional, whether they operate prospectively and were thus inapplicable to the appellant's trial.

The evidence on the challenge

[10] At trial, the appellant filed affidavits and adduced viva voce evidence from two very experienced criminal lawyers. Each had practised as defence counsel in criminal cases for more than a quarter century and had represented many racialized accused.

[11] The witnesses described their racialized clients as active participants in their exercise of peremptory challenges. The clients provided information to counsel based largely on the clients' observations of the appearance and demeanour of prospective jurors as the prospective jurors were asked to face the accused. The peremptory challenge offered the accused, in particular racialized accused, their only chance to participate in jury selection. [page372]

[12] Peremptory challenges, the witnesses testified, permit them to remove potentially partial prospective jurors and, in the case of a racialized accused, to assist their efforts to choose some jurors who are similarly racialized so that their client believes the jury to be representative. And when racialized accused feel that a fair jury has been selected, the witnesses testified that they have more confidence in the trial process and are more accepting of its eventual outcome irrespective of the actual result.

[13] The trial Crown did not cross-examine either defence counsel who testified in support of the application.

The ruling of the trial judge

[14] In written reasons released one week after the conclusion of lengthy oral argument (reported at (2019), 148 O.R. (3d) 53, [2019] O.J. No. 4797, 2019 ONSC 5512 (S.C.J.)), the trial judge held that

(i) the abolition of peremptory challenges by the repeal of s. 634 of the Criminal Code was not unconstitutional;

(ii) the substitution of the presiding judge as the trier of the truth of the challenge for cause, rather than lay triers, through the amendment of s. 640 of the Criminal Code, was not unconstitutional; and

(iii) the amendments operated retrospectively, and thus applied to prosecutions that began before September 19, 2019 but tried thereafter.

[15] The appellant's trial proceeded without either party having the right to challenge prospective jurors peremptorily. The trial judge determined the truth of each challenge for cause.

The verdict of the jury

[16] On October 24, 2019, the jury found the appellant guilty of first degree murder. Two weeks later, the trial judge sentenced the appellant to imprisonment for life, without the possibility of parole for 25 years.

The Grounds of Appeal

[17] The appellant appeals his conviction solely on the basis of the trial judge's ruling in the jury selection process. He contends that the trial judge erred

(i) in failing to find that the abolition of peremptory challenges by the repeal of s. 634 breached ss. 11(d), (f) and 7 of the Charter and could not be saved by s. 1; [page373]

(ii) in failing to find that the amendments to s. 640, which substituted the presiding judge for lay triers as the trier of truth in the challenge for cause, breached ss. 11(d), (f) and 7 of the Charter and could not be saved by s. 1; and

(iii) in deciding that these amendments applied retrospectively not prospectively.

[18] The appellant seeks a new trial.

Ground #1: The constitutionality of the abolition of peremptory challenges

[19] The first ground of appeal challenges the constitutionality of the abolition of peremptory challenges by the repeal of s. 634 of the Criminal Code. The appellant's principal argument is that the abolition of peremptory challenges violates s. 11(d) of the Charter. That provision provides the following:

Any person charged with an offence has the right . . . to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[20] The appellant also argues, to a lesser extent, that the abolition of peremptory challenges violates ss. 11(f) and 7 of the Charter. Section 11(f) reads as follows:

11(f) Any person charged with an offence has the right . . . except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.

Section 7 provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[21] Like the parties' submissions, these reasons will focus on the s. 11(d) argument. A brief reference to the 150-year history of peremptory challenges to prospective jurors creates a suitable framework for the discussion that follows.

The statutory background

[22] Canada inherited the availability of peremptory challenges from England but has varied the number of these challenges available to the accused and Crown over the years. In our first unified statute governing criminal procedure -- An Act respecting Procedure in Criminal Cases, and other matters relating to Criminal Law, S.C. 1869 (2nd Sess.), c. 29, s. 37 -- an accused was entitled to exercise 20, 12 or four peremptory challenges [page374] depending on the seriousness of the offence charged. The Crown was entitled to four peremptory challenges irrespective of the nature or seriousness of the offence. But the Crown could stand by an unlimited number of prospective jurors.

[23] In 1892, Parliament enacted our first Criminal Code: S.C. 1892 (2nd Sess.), c. 29. The accused retained the same schedule of peremptory challenges as had been the case in the unified statute of 1869 with 20 challenges reserved for "treason or any offence punishable with death": s. 688. The Crown retained its four peremptory challenges and unlimited stand bys.

[24] In 1917, Parliament amended the Criminal Code to reduce the number of stand bys available to the Crown to 48: An Act to Amend the Criminal Code (Respecting Jurors), S.C. 1917, c. 13, s. 1.

[25] In 1976, when Parliament abolished capital punishment for civilian offences, it revised the offences for which the highest number of peremptory challenges -- 20 -- were available: The Criminal Law Amendment Act (No. 2), 1976, S.C. 1974-75-76 (1st Sess.), c. 105, s. 10. An accused charged with high treason or first degree murder could challenge 20 prospective jurors peremptorily. The remaining schedule of challenges for the defence and Crown and the number of stand bys available to the Crown remained the same.

[26] In 1992, however, a majority of the Supreme Court held in R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3, that the authority of the Crown to stand by up to 48 prospective jurors violated s. 11(d) of the Charter. The court reasoned that the availability of stand bys created an imbalance in the Crown's ability to shape the composition of the jury. This undermined the appearance of a fair trial: Bain, at pp. 102-104 S.C.R., per Cory J., at p. 161 S.C.R., per Stevenson J.

[27] Parliament responded to the decision in Bain by removing the stand by authority of the Crown and equalizing the number of peremptory challenges as between the Crown and accused: An Act to Amend the Criminal Code (Jury), S.C. 1992, c. 41, s. 2.

[28] Finally, in 2019, Parliament repealed s. 634 of the Criminal Code, thus abolishing peremptory challenges previously available to the parties under that section: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, s. 269. At the same time, the stand by authority of the judge presiding over jury selection was expanded in a new s. 633 which provides:

633. The judge may direct a juror who has been called under subsection 631(3) or (3.1) to stand by for reasons of personal hardship, maintaining public confidence in the administration of justice or any other reasonable cause.

(Emphasis added) [page375]

[29] These amendments came into force on September 19, 2019.

The challenge under s. 11(d) of the Charter

[30] Section 11(d)'s guarantee of a right to a fair trial was central to the appellant's claim that the abolition of peremptory challenges is unconstitutional. The trial judge concluded otherwise. And I agree.

[31] I begin with a brief reference to the trial judge's reasons for rejecting the appellant's claim before turning to the arguments advanced on the same issue, the principles which control my decision, and the conclusion those principles mandate in this case.

The reasons of the trial judge

[32] The trial judge considered whether the abolition of peremptory challenges violates the accused's s. 11(d) right to a fair trial by asking whether a reasonable person, fully informed of the circumstances, would have a reasonable apprehension of bias. He concluded such a person would not.

[33] The trial judge emphasized the strong presumption of jury impartiality and the stringent standard required to rebut it. The limited number of peremptory challenges available to each side depending on the seriousness of the offence underscored that the peremptory challenge was not an unlimited right. Moreover, there were a number of safeguards which ensured an independent and impartial jury:

(i) an accused's right to a representative jury panel, but not to a jury representative of the population or made up of members of the accused's gender, group, or race;

(ii) the randomness of both the out-of-court process to compile the jury rolls and of the in-court process to select the jury for trial;

(iii) the availability of unlimited challenges for cause upon a preliminary showing of a reasonable prospect of partiality;

(iv) the discretion of the trial judge to excuse prospective jurors; and

(v) the discretion of the trial judge to stand by prospective jurors not only for personal hardship or other reasonable cause, but also to maintain public confidence in the administration of justice.

[34] The trial judge concluded abolition of peremptory challenges does not infringe s. 11(d) [at paras. 58-59]: [page376]

Our criminal justice system should strive for transparency and openness. The ability to exclude a potential juror based simply on their appearance, their look, or a person's gut feeling, without furnishing a reason, is not transparent. The elimination of the peremptory challenge does make the justice system more transparent, but without removing either parties' ability to set aside potential jurors for articulable reasons.

A reasonable person, fully informed of the safeguards available in our selection process for Canadian jurors, could not reach the conclusion that an accused's right to an independent and impartial jury would be violated by the elimination of the peremptory challenge. It is for these reasons that the repeal of s. 634 does not violate the accused's constitutional rights pursuant to s. 11(d).

The arguments on appeal

[35] The parties and intervenors each made submissions on this issue. The Criminal Lawyers' Association ("CLA") supported the position of the appellant. Aboriginal Legal Services ("ALS") and the Attorney General of Canada ("AG Canada") aligned with the respondent (the provincial Crown).

The appellant's position

[36] The appellant principally takes issue with two aspects of the trial judge's reasons.

[37] First, the appellant says that the test under s. 11(d) must include the accused's perception. Courts have recognized widespread racial prejudice and discrimination in the criminal justice system. The trial judge erred when he failed to take into account this well-documented fact. According to the appellant, widespread racism rebuts the presumption of juror impartiality in cases where the accused is racialized and necessitates a right to peremptory challenges. The appellant submits that, in assessing his s. 11(d) claim, the trial judge had to ask himself whether a reasonable person, in the position of a racialized or otherwise marginalized accused, fully informed of the circumstances, would have a reasonable apprehension of bias when unable to challenge prospective jurors peremptorily.

[38] Second, the appellant submits the trial judge erred in finding that the other safeguards available in the jury selection process were sufficient to protect the appellant's s. 11(d) interests. For example, the appellant contends representativeness and randomness do not weed out bias. Rather, they ensure that some prospective jurors will have racist beliefs and become involved in the selection process. Similarly, while the challenge for cause is a tool to root out potentially racist jurors, it is a coarse filter. Its "yes" or "no" answers to the questions and rejection of demeanour as a determinant allow some prospective jurors with [page377] racist beliefs to slip through the cracks. And while the presiding judge has the power to excuse and stand by potential jurors, these powers are not linked to issues of potential bias or prejudice and are exercised by the judge without participation by the accused or their counsel. The expanded stand by ground -- "maintaining public confidence in the administration of justice" -- adds nothing to the former authority.

[39] In making these arguments, the appellant emphasizes that peremptory challenges were an important tool for an accused. They helped to ensure that justice was seen to be done. And they gave an accused at least some minimal control over who would decide their case. This fostered confidence in the fairness of the trial process and promoted acceptance of the verdict ultimately rendered, even if adverse to the accused's interest.

[40] The CLA supports the appellant's position and adds that peremptory challenges allow an accused to challenge prospective jurors who acknowledge biases but are not eliminated during the challenge for cause procedure; or who are disinterested or dishonest, something that the remaining safeguards cannot achieve. Absent peremptory challenges, an accused has no other means to eliminate their residual concerns about such persons. Most jurisdictions have retained peremptory challenges, which, the CLA adds, is evidence peremptory challenges are necessary to ensure a fair and impartial hearing by an independent tribunal.

The respondent's position

[41] The respondent disagrees with the s. 11(d) test put forward by the appellant and his submissions on the impact of the safeguards on the accused's right to a fair trial. The respondent emphasizes that no party, including an accused, has a constitutional right to shape the composition of the jury in their ideal image. Section 11(d) does not protect a statutory right to exclude a limited number of prospective jurors for no reason, or for purely speculative inarticulate reasons with no connection to impartiality and often fuelled by stereotypical attitudes.

[42] According to the respondent, the trial judge applied the correct test for deciding the s. 11(d) claim, that is, whether a reasonable person, fully informed of the circumstances (including the strong presumption of juror impartiality), would have a reasonable belief the trial was unfair. The perspective is holistic, from the vantage point of a reasonable, informed observer.

[43] The respondent contends that other safeguards in the jury selection process, when considered cumulatively, would lead a reasonable person, fully informed of these safeguards, to conclude that the process was fair and likely to ensure an impartial jury. [page378]

[44] AG Canada supports the respondent's position and adds that peremptory challenges have a minimal effect on juror impartiality. It is pure happenstance if a peremptory challenge excludes a partial juror. It is just as likely to exclude an impartial one as a partial one. The elimination of peremptory challenges does not impermissibly limit s. 11(d) simply because it reduces the accused's level of involvement in the selection process. A reason-able person fully informed of the circumstances (including the presumption of juror impartiality, the juror's oath or affirmation to deliver a verdict based on the law and facts of the case, as well as the various trial safeguards to ensure impartiality) would not conclude the abolition of peremptory challenges undermines the accused's right to a fair trial by an impartial jury.

[45] ALS also supports the respondent's position and adds that peremptory challenges perpetuate discrimination against Indigenous persons. Ridding the jury selection process of a tool used to discriminate against Indigenous persons ensures, rather than impairs, trial fairness.

The governing principles

[46] Section 11(d) of the Charter guarantees to any person charged with an offence the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[47] The appellant focuses on two aspects of the s. 11(d) right:

(i) a fair hearing; and

(ii) an impartial tribunal.

The right to a fair hearing

[48] Section 11(d) guarantees the accused and community perceive the trial to be fair. It guarantees the trial satisfies its truth-seeking function. And it guarantees the accused basic procedural fairness: R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, [1995] S.C.J. No. 81, at para. 45. All of this within the practical limits of the justice system: R. v. Find, [2001] 1 S.C.R. 863, [2001] S.C.J. No. 34, 2001 SCC 32, at para. 28.

[49] But s. 11(d) does not guarantee a particular trial process. Nor does it guarantee the process most advantageous to the accused: R. v. Rodgers, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, 2006 SCC 15, at para. 47; United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, at para. 14; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, at p. 362 S.C.R.; Harrer, at para. 45. [page379]

[50] When, as here, Parliament alters the jury selection process and the alteration is challenged under s. 11(d), the focus of our inquiry is on whether the effect of the change renders the trial unfair, whether by undermining the guarantee of impartiality or otherwise: R. v. Kokopenace, [2015] 2 S.C.R. 398, [2015] S.C.J. No. 28, 2015 SCC 28, at para. 48.

[51] Our courts have long recognized the importance of peremptory challenges and the benefits that they bring to the jury selection process. For example, an accused may lack sufficient information to bring a challenge for cause yet encounter a prospective juror whom they may feel is unsuitable to be a member of the trial jury. In some circumstances, peremptory challenges may assist in empanelment of a more representative jury depending upon both the nature of the community and the accused: see R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509, [1991] S.C.J. No. 21, at pp. 532-33 S.C.R. See, also, R. v. Yumnu, [2010] O.J. No. 4163, 2010 ONCA 637, 260 C.C.C. (3d) 421, at paras. 123-124, affd [2012] 3 S.C.R. 777, [2012] S.C.J. No. 73, 2012 SCC 73.

[52] Unlike challenges for cause, peremptory challenges permit the direct involvement of the accused in the jury selection process. This enhances the confidence of the accused, and perhaps the public, in the fairness and transparency of the process. Peremptory challenges also provide a safety valve, within their inherent limitations, to remove prospective jurors who appear unsuitable for the adjudicative task ahead because they appear uneasy, unwilling, or overeager to embrace it.

[53] On the other hand, we also recognize that peremptory challenges may not always advance the cause of a fair hearing and the selection of an impartial jury.

[54] As the descriptive "peremptory" suggests, these challenges are by nature arbitrary and subjective. It is very difficult for counsel in a moment to forecast, let alone to do so accurately, a prospective juror's beliefs and attitudes based on that person's race, gender, age, ethnic origin, demeanour, or manner of dress. An arbitrary measure is not designed to secure an impartial jury.

[55] Peremptory challenges may also be a source of juror frustration and humiliation, all the more so when they are exercised after the prospective juror has been found to be impartial on a challenge for cause.

[56] In addition, peremptory challenges can enhance or facilitate discrimination against racialized or marginalized prospective jurors. This is so because the exercise of peremptory challenges may often be based on assumptions, stereotypes, or prejudices. The result is a diminution rather than an enhancement of representativeness in the trial jury. [page380]

[57] At bottom, peremptory challenges are not an effective tool for weeding out biased jurors. They are exercised arbitrarily, relying on guess work and uncertain mythologies about those most likely to react unfavourably to the challenger's case.

[58] The legislative history in this case reveals that both houses of Parliament and their respective legislative committees were well aware of both sides of the debate about the value of peremptory challenges as a mechanism to promote the empanelment of an impartial jury and ensure the fair trial rights of the accused. The committees of both houses received evidence and submissions from practitioners and scholars arguing for and against the elimination of peremptory challenges. In the end, Parliament determined that their potential for abuse outweighed their benefits as part of a selection process designed to ensure a fair trial and the empanelment of an impartial jury. This cost-benefit analysis was for Parliament to undertake. Parliament made its decision. That decision must be respected by the court unless the statutory result is unconstitutional.

[59] Some other common law jurisdictions have come to the same conclusion. The abolition of the peremptory challenge in Northern Ireland provides an example. After Northern Ireland abolished the peremptory challenge, a court ruled that the abolition did not violate an accused's right to a fair trial under art. 6 of the European Convention on Human Rights, E.T.S. 5 (4 November 1950), because peremptory challenges were not indispensable to the fair trial right. The court reasoned that the clear and proper public objective underpinning their removal (ensuring that the trial process is fair and delivers justice for defendants, victims and society at large) represented a fair balance between the general interest of the community and the personal rights of the individual: McParland's Application for Judicial Review (Re), [2008] N.I.Q.B. 1, at para. 52.

[60] In Canada, Parliament has similarly decided to abolish peremptory challenges. In deciding whether that abolition violates s. 11(d), the court must ask itself whether the effect of that change renders the trial unfair, whether by undermining the guarantee of impartiality or otherwise.

The right to an impartial tribunal

[61] Section 11(d) includes the right be tried by an impartial jury: R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, [1998] S.C.J. No. 49, at para. 48.

[62] To determine whether a tribunal is impartial, the question is whether a reasonable person, fully informed of the circumstances, would have a reasonable apprehension of bias: Kokopenace, at [page381] para. 49; Bain, at pp. 101, 111-12 and 147-48 S.C.R. The informed person begins their analysis with a strong presumption of juror impartiality and a firm understanding of the numerous safeguards in the jury selection process designed to weed out potentially biased candidates and to ensure that selected jurors will judge the case impartially. The reasonable apprehension of bias has never hinged on the existence of a jury roll or, for that matter, a jury that proportionally represents the various groups in our society: Kokopenace, at para. 53; Find, at paras. 26, 41-42 and 107; Williams, at para. 47.

[63] The test for impartiality includes a twofold objective component. First, the observer. The person considering the alleged bias must be reasonable. The observer must be informed of the relevant facts and view the matter realistically and practically. The reasonable observer does not depend on the views or conclusions of the accused: R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, at para. 111, per Cory J.; R. v. Dowholis (2016), 133 O.R. (3d) 1, [2016] O.J. No. 5590, 2016 ONCA 801, 341 C.C.C. (3d) 443, at para. 20. Second, the apprehension of bias. That too must be reasonable in the circumstances of the case: S. (R.D.), at para. 111, per Cory J.

[64] In applying the test for impartiality, a court must be cognizant of the well-established and undisputed fact that racial prejudice can lead to a risk of empanelling prejudiced jurors who will not give a racialized accused a fair trial. As this court observed more than two decades ago in R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324, [1993] O.J. No. 2157, 84 C.C.C. (3d) 353 (C.A.), at p. 369 C.C.C., leave to appeal to S.C.C. refused (1993), 17 O.R. (3d) xvii, [1994] 1 S.C.R. x, [1993] S.C.C.A. No. 481:

Racism, and in particular anti-black racism, is part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism.

See, also, Williams, at para. 58.

[65] It is also an established fact that widespread prejudice affects juries. It introduces the risk that jurors may not be impartial because of racial prejudice. Partiality, in the sense relevant to s. 11(d), has both an attitudinal and behavioural component: Parks, at p. 364 C.C.C.; Find, at paras. 32-33. In order to be partial a juror must not only hold biased views but also allow these to influence their deliberation.

[66] Various in-court mechanisms are available to protect against juror bias and ensure the constitutional guarantee of an impartial jury is met. Notably, s. 638(1)(b) of the Criminal Code [page382] permits an accused and the Crown to exercise any number of challenges for cause on the ground that "a juror is not impartial". The challenge for cause is a two-stage process. First, the judge must determine whether there is a realistic potential or possibility for partiality. Second, if the judge permits challenges for cause, potential jurors are questioned to determine if they will be able to act impartially: Williams, at paras. 32-34.

[67] Other in-court mechanisms also protect against jury partiality. For example, s. 632 (c) of the Criminal Code permits the presiding judge, at any time before the commencement of the trial, before or after the juror's card has been selected by the registrar, or before the prospective juror has been challenged, to excuse the prospective juror for reasons of "personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused".

[68] Under s. 632(c), the presiding judge may alert the entire jury panel about the nature of the offence charged and invite those who would find it difficult to be a member of the jury chosen to try the case to identify themselves. After brief inquiry, the judge may excuse jurors on the basis of "personal hardship" or "any other reasonable cause": R. v. B. (A.) (1997), 1997 1902 (ON CA), 33 O.R. (3d) 321, [1997] O.J. No. 1578, 115 C.C.C. (3d) 421 (C.A.), at p. 443 C.C.C., leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 461. This authority is not a substitute for a challenge for cause and must not be used to circumvent the threshold required for a challenge for cause: Sherratt, at pp. 533-34 S.C.R. This procedure also has the value of transparency: R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84, at pp. 713-14 S.C.R.

[69] Another in-court mechanism is the stand by authority of the presiding judge. Under the recently amended s. 633 of the Criminal Code, the presiding judge may stand by potential jurors for personal hardship, maintaining public confidence in the administration of justice, or any other reasonable cause.

[70] This stand by authority is available after a prospective juror has been called under s. 631(3) or (3.1), and thus is available before or after a challenge for cause has been heard and its truth determined. The language of "personal hardship" and "any other reasonable cause" duplicates that in the excusal authority of s. 632(c). But the language "maintaining public confidence in the administration of justice" is new and, as a matter of statutory construction, covers different ground. In this case, for example, the trial judge used it to direct a prospective juror, who had been found impartial on the challenge for cause, to stand by. The basis for its exercise was the appellant's belief, communicated to the [page383] trial judge through counsel, that a rude gesture had been made by the prospective juror when asked to face the appellant.

[71] We did not receive any submissions that would permit me to mark out the boundaries of this additional authority. Suffice it to say that its presence is of further assistance in ensuring the constitutional requirement -- an impartial jury.

[72] Additional procedures also exist to ensure that the actual and apparent impartiality of the jury as empaneled continues throughout the trial. The opening instructions to the jury. Periodic reminders about the need to keep an open mind and to withhold judgment until deliberations. Mid-trial and final instructions about permitted and prohibited use of evidence. And, of course, the charge to the jury.

[73] A final point concerns the role of representativeness in jury selection under s. 11(d) and its relationship to impartiality.

[74] Representativeness is an important feature of the jury. But its meaning is circumscribed. Representativeness promotes impartiality through the process used to compile the jury roll, not through its ultimate composition: Kokopenace, at para. 54. An accused has no right to a jury roll of a particular composition. Nor to one that proportionally represents all the diverse groups in our multicultural society. Nor to a particular number of persons of the accused's race on the jury roll or selected jury: Kokopenace, at para. 39; R. v. Church of Scientology of Toronto (1997), 1997 16226 (ON CA), 33 O.R. (3d) 65, [1997] O.J. No. 1548, 116 C.C.C. (3d) 1 (C.A.), at pp. 62-63 C.C.C., leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 683.

The principles applied

[75] As I will explain, I agree with the trial judge that the abolition of peremptory challenges by the repeal of former s. 634 of the Criminal Code does not infringe the appellant's rights as guaranteed by s. 11(d) of the Charter.

[76] Preliminary to an assessment of this claim, it is helpful to recall the availability and nature of peremptory challenges and their role in the selection of a trial jury. In this way, we can establish what has been lost by their abolition, to better gauge whether the loss is of constitutional dimension.

[77] The parties in a criminal prosecution, the accused and the Crown, have been able to challenge prospective jurors peremptorily for over 150 years. In exercising this right, as the descriptive "peremptory" attests, the challenge is decisive, dispositive of the prospective juror's participation as a juror at trial. No ifs. No ands. No buts. End of story for the prospective juror peremptorily challenged. No questions asked. No reasons required, even if the [page384] prospective juror has been found impartial on a challenge for cause.

[78] Second, by nature, a peremptory challenge is negative, exclusive not inclusive. Said in another way, it does not directly determine who will become a juror, rather, when exercised, it determines who will not serve in that capacity.

[79] Third, peremptory challenges are not the exclusive property of the defence. They are equally available to the Crown.

[80] Fourth, peremptory challenges are not unlimited. Their number has always been fixed by statute according to the nature of the offence charged or the sentence which can be imposed on conviction.

[81] Fifth, the number of peremptory challenges available has varied over time. Yet their fluctuation in number throughout history has never been tied to the fairness of the trial or the impartiality of the jury.

[82] Sixth, the dominant considerations which influence the exercise of peremptory challenges are subjective. They can and often are exercised, not on the basis of facts which have been or can be proven, but rather on the mere belief by a party in the existence of a certain state of mind in the prospective juror. Often, stereotypical reasoning is afoot in their exercise. No one gainsays that they are open to abuse.

[83] Further, peremptory challenges have nothing to do with any pre-trial procedures designed to compose the jury roll in a manner that is at once random and representative of the population in the venue of trial. Nor do they have a say in the random in-court selection of prospective jurors, the authority of the presiding judge to excuse or stand by prospective jurors, or the challenge for cause process.

[84] Bearing in mind these observations, I conclude that the appellant's claim of an infringement of the fair hearing and impartial tribunal components of s. 11(d) fails. I say this for several reasons.

[85] I begin with the nature of the right guaranteed by s. 11(d). A fair hearing by an impartial jury is the constitutional requirement. Neither component guarantees a particular process or that peremptory challenges are a part of that process. Nor does s. 11(d) guarantee that the process be the most advantageous to an accused or perfect in the eyes of an accused. What is required is a prevailing system of jury selection, consisting of the sum of its various components, that results in a fair trial. What remains after the abolition of peremptory challenges does so.

[86] Second, and relatedly, the appellant's exclusive focus on peremptory challenges and the effect of their abolition fails to [page385] recognize that it is the jury selection process as a whole, not each component, which must satisfy the constitutional standard. This includes not only the in-court process, such as its randomness, the authority to excuse and stand by jurors and the availability of challenges for cause, but also the out-of-court process to compose the jury roll.

[87] Third, the appellant's argument that peremptory challenges are essential to ensure an impartial jury has inherent in it a paradox. Impartiality is an objective standard or quality. Yet to achieve it, the appellant invokes peremptory challenges which he acknowledges are exercised for purely subjective, often stereotypical reasons.

[88] There is no doubt that racial prejudice can lead to a risk of empanelling prejudiced jurors who are not impartial. However, the reality of racial prejudice and the risk of prejudiced and partial jurors does not elevate peremptory challenges to the level of a constitutionally guaranteed right. The limited number of peremptory challenges and their exercise based on inherently subjective considerations make them structurally incapable of solving for real or perceived racial bias, let alone necessary to secure the right to a fair hearing and impartial tribunal.

[89] To the contrary, once a real risk of partiality has been established, the next step must be to identify and exclude all jurors who are partial. In the abstract, whatever mechanism is used to identify partiality must be applied to (or, at minimum, be capable of being applied to) every potential juror. This is because the risk of prejudice that the appellant identifies is a general one. It is a concern about the jury pool as a whole and is not limited to specific jurors. If every potential juror may be prejudiced or partial, then the "filter" for partiality must apply to all potential jurors. The peremptory challenge, by its very nature, cannot fill this role.

[90] Fourth, the appellant overvalues the efficacy of peremptory challenges to ensure an impartial jury or a fair hearing. There is no evidence that the subjective considerations which underlie the exercise of peremptory challenges render them more likely to exclude potentially partial jurors than impartial jurors. And it scarcely follows from the availability of a fixed number of peremptory challenges that the remaining jurors are all likely to be impartial, especially where there is no challenge for cause.

[91] Further, the standard applied to determine impartiality, as well as independence, is an objective standard. The question to be answered is whether a reasonable person, fully informed of the circumstances and relevant considerations, viewing the matter realistically and practically and having thought it through, would conclude that the jury was not impartial. The fully informed [page386] person must appreciate the existence of racism in society, but the application of this standard does not depend on the subjective views of the accused.

[92] We recognize a strong presumption of juror impartiality. And we require cogent evidence, not conjecture or speculation, to rebut it. It is not rebutted by the existence of racism in society as a whole, nor by a determination that prospective jurors may be challenged for cause. Fully informed of the safeguards in place to ensure the selection of an impartial jury, and the in-trial mechanisms to ensure that the jury once empanelled remains so, the reasonable person would nonetheless have to conclude that, absent peremptory challenges, a jury would not likely decide the case fairly. No such conclusion would logically follow.

[93] A final point concerns the impact of peremptory challenges on the representativeness of the jury which the appellant contends at least fosters, if not is essential to, an impartial jury.

[94] This argument founders for at least two reasons. As we have seen, representativeness promotes impartiality through the process used to compile the jury roll, not through its ultimate composition. In addition, an accused is not entitled to a particular racial or ethnic composition of the jury selected for the trial. Thus, the availability of peremptory challenges to achieve something to which an accused is not constitutionally entitled does not make the abolition of those challenges unconstitutional.

[95] The appellant's argument that the elimination of peremptory challenges violates s. 11(d) of the Charter accordingly fails.

The challenge under s. 11(f) of the Charter

[96] While the appellant accepts that this case turns primarily on his s. 11(d) argument, he also invokes s. 11(f) of the Charter to advance his case that the abolition of peremptory challenges infringes his right to the benefit of a trial by jury. I disagree.

[97] Brief reference to the trial judge's conclusion provides the necessary background to determine this issue.

The reasons of the trial judge

[98] The trial judge rejected the claim under s. 11(f) in brief terms [at para. 62]:

I have already concluded that the safeguards in relation to the jury selection process that are in place are such that the elimination of peremptory challenges does not violate the accused's rights to an impartial jury. The representativeness of the panel, the randomness of its selection and the ability for either party to challenge the process provide sufficient safeguards of the selection process. I cannot conclude that the accused's s. 11(f) rights have been violated. [page387]

The arguments on appeal

The appellant's position

[99] The appellant says the trial judge restricted his examination of this issue to representativeness and, in doing so, failed to give proper effect to the nature of this s. 11(f) right -- the benefit of trial by jury. To understand the "benefit of trial by jury" in a purposive way, "trial by jury" must have more than the trappings of a jury trial.

[100] The appellant contends the right to challenge prospective jurors peremptorily is one of the baseline procedural guarantees necessary to give effect to the s. 11(f) right to "the benefit of trial by jury". Because he could not challenge prospective jurors peremptorily, the appellant says he lost the ability to participate in the jury selection process, to challenge persons he believed were not impartial, and to select a jury with some persons of the same racial and cultural background as him. This eroded his confidence in the impartiality and independence of the jury.

[101] The CLA agrees with the appellant and adds that many other common law countries permit peremptory challenges. This demonstrates the value of peremptory challenges in selecting an impartial jury, an essential feature of "the benefit of trial by jury".

The respondent's position

[102] The respondent says s. 11(f) of the Charter offers no additional constitutional guarantees than that for which s. 11(d) provides in the circumstances of this case. If the abolition of peremptory challenges does not infringe the appellant's right to a fair trial by an independent and impartial jury under s. 11(d), it cannot contravene the right to the benefit of a jury trial under s. 11(f).

[103] The focus of the s. 11(f) guarantee, the respondent says, is on the representativeness of the jury roll. An alteration to the in-court jury selection procedure does not, indeed cannot, offend s. 11(f), especially if it meets the standard in s. 11(d). There is no freestanding right to peremptory challenges. They are creatures of statute, not constitutional requirements to give effect to the benefit of a trial by jury.

[104] AG Canada agrees with the respondent. AG Canada accepts that the role of representativeness is broader under s. 11(f) than under s. 11(d) but submits that the obligation of representativeness fixed on the state is the same under s. 11(f) as it is under s. 11(d). That obligation extends only to the process used to compile the jury roll. And it does not reach the in-court selection process where the ultimate composition of the jury is selected for trial. [page388]

The governing principles

[105] Section 11(f) of the Charter guarantees the benefit of a jury trial to an accused charged with an offence for which the maximum punishment is imprisonment for five years or a more severe punishment. A central component of this right is representativeness, which plays a larger role in the constitutional guarantee in s. 11(f) of the Charter. This is so because representativeness is a component of the right to the benefit of trial by jury. But the meaning assigned to representativeness under s. 11(f) is the same as that allotted to it under s. 11(d). Representativeness protects an accused's right to an adequate selection process. The state discharges its obligation of representativeness when it provides a fair opportunity for a broad cross-section of society to participate in the jury process: Kokopenace, at paras. 55, 56 and 61.

[106] An accused's right to the benefit of a trial by jury does not extend to proportionate representation at any stage of the jury selection process: neither the process followed to compile the jury panel roll nor the in-court process to select the jury to try the issues on the indictment: Kokopenace, at paras. 70-71. See, also, R. v. Biddle (1995), 1995 134 (SCC), 22 O.R. (3d) 128, [1995] 1 S.C.R. 761, [1995] S.C.J. No. 22, at paras. 56-58, per McLachlin J. (concurring).

The principles applied

[107] The challenge grounded on s. 11(f) of the Charter also fails. I reach this conclusion for three reasons.

[108] First, the core of this dispute involves the impact of the abolition of peremptory challenges on the impartiality of the jury selected to try the case and the fairness of the trial. These are interests guaranteed more particularly by s. 11(d) of the Charter. In the absence of any infringement of s. 11(d), there can be no infringement of the right to a trial by jury as guaranteed by s. 11(f).

[109] Second, although the role of representativeness is broader under s. 11(f) than under s. 11(d), the obligation imposed on the state remains the same. And that obligation relates to the process used to compile the jury roll, not the in-court selection process or the composition of the trial jury.

[110] Finally, what remains is what s. 11(f) guarantees -- "trial by jury". The abolition of peremptory challenges does not change this.

The challenge under s. 7 of the Charter

[111] The third and final ground of challenge to the abolition of peremptory challenges, one not vigorously pressed in oral argument, involves the guarantee in s. 7 of the Charter. The appellant [page389] says the abolition of the peremptory challenge is contrary to the principles of fundamental justice. I would not give effect to this ground of appeal.

[112] A brief reference to the trial judge's reasons is sufficient to sketch out the background on this issue.

The reasons of the trial judge

[113] At trial, the appellant contended that the abolition of peremptory challenges infringed his right to liberty and security of the person.

[114] The trial judge first considered whether the abolition compromised trial fairness, and thus breached s. 7 [at para. 67]:

I find the applicant's arguments under s. 7 based on trial fairness are subsumed in the ss. 11(d) and 11(f) analysis. Section 7 of the Charter dealing with trial fairness provides no greater protection than s. 11(d).

[115] The trial judge then turned to three discrete, but related, claims of an infringement of s. 7: arbitrariness, gross disproportionality and overbreadth. He rejected each.

[116] In rejecting the claim of arbitrariness, the trial judge said [at para. 79]:

I cannot conclude that the purpose of the legislation, including in relation to the removal of peremptory challenges, was to guarantee the representativeness of the jury. When examining the legislation itself, it would appear that one of the key purposes was to make the jury selection process more transparent and promote fairness. Eliminating the ability of both parties to challenge prospective jurors, without having to justify the reason, makes the jury selection process more transparent. It is clear from the amendment to s. 633 that if the individual party can articulate a reason why a prospective juror is not impartial or a reason why the juror needs to be stood aside to maintain the public's confidence in the administration of justice, then the judge can do so. This results in an increased level of accountability and openness. I cannot conclude that the legislation is arbitrary in nature on this basis. The effect on the parties is rationally connected to the legislation's purpose: Canada v. Bedford, at para. 111; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 83.

[117] In rejecting the claim of gross disproportionality, the trial judge wrote [at paras. 81-82]:

As was determined earlier in these reasons, the abolition of peremptory challenges would not cause a reasonable and informed observer to conclude that accused persons will now be subject to unfair trials by juries that are not impartial or independent. This limits the applicant's contention about the disproportionate effect of the legislation on accused persons.

Further, the problem with the applicant's argument is the new procedure and the existing safeguards provide both parties with an opportunity to raise concerns if they have articulable reasons why a prospective juror could not be impartial. What is being eliminated is the ability to remove otherwise qualified prospective jurors based on unspecified hunches, gut feelings and instincts. It [page390] also removes the ability of either party to seek a favourable jury. I cannot conclude the legislation eliminating the peremptory challenge is grossly disproportionate.

[118] And in rejecting the claim that the abolition was overbroad, the trial judge reasoned [at para. 83]:

The last argument is that the repeal of the peremptory challenge is overbroad because the total elimination of the peremptory challenge will not result in a representative jury and prevent discrimination against minority jurors. To be overbroad in scope, the law must include some conduct that bears no relation to the purpose of the law: Canada v. Bedford, at para. 112. I cannot conclude the elimination of the peremptory challenge is overly broad in scope. The abolition of peremptory challenges, on its face, achieves what it sets out to do: increase transparency and openness in the Canadian jury selection process. It goes no further. For these reasons I find the elimination of the peremptory challenge does not violate s. 7 of the Charter.

The arguments on appeal

The appellant's position

[119] The appellant says s. 7 is concerned with capturing inherently bad laws. He argues that the overall purpose of the abolition of peremptory challenges was to address the underrepresentation of Indigenous persons on juries and concerns that peremptory challenges were being used in a discriminatory manner in the selection of juries. He says the legislation overshoots this purpose.

[120] The trial judge, the appellant argues, erred in concluding that the purpose of the legislation was transparency, rather than ensuring the representativeness of the jury. Transparency is not a constitutional principle and is much too general to accord with s. 7 of the Charter. The elimination of peremptory challenges is arbitrary, overbroad, and grossly disproportionate because it does not accord with the legislation's purpose.

The respondent's position

[121] The respondent says that to the extent that the appellant's arguments under s. 7 are grounded on trial fairness concerns, these arguments are subsumed into the s. 11(d) claim. Section 7 provides no greater or different protection than that offered by the fair hearing and impartial jury guarantees in s. 11(d).

[122] In any event, the s. 7 argument fails at the threshold for want of any deprivation of liberty or security of the person. Moreover, even if the appellant could establish a deprivation of liberty or security of the person, the abolition of peremptory challenges does not overshoot the amendment's remedial purpose, which is to eliminate the potential discriminatory use of [page391] peremptory challenges and to promote fairness, impartiality and transparency in the jury selection process.

[123] AG Canada adopts a similar approach.

The governing principles

[124] The appellant's reliance on s. 7 does not require a forced march through the expanse of jurisprudence developed under the section. For the purposes of this appeal, it is enough to canvass only two aspects of the precedents. The first has to do with the threshold requirement arising out of the interests protected: "life, liberty and security of the person". The second is concerned with the relationship between specifically protected rights and the more general language of s. 7.

[125] First, the s. 7 trigger.

[126] To trigger the operation of s. 7, an applicant must establish, and a court must find, a deprivation of the right to life, liberty, or security of the person: Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, 2000 SCC 44, at para. 47; R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387, [1987] S.C.J. No. 92, at p. 401 S.C.R. There must also be a sufficient causal connection between the state-caused effect and the resulting deprivation suffered by the claimant: Blencoe, at para. 60; Canada (Attorney General) v. Bedford (2013), 128 O.R. (3d) 385, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, at para. 75.

[127] To demonstrate an interference with security of the person, an applicant must show either

(i) interference with bodily integrity and autonomy, including deprivation of control over one's body; or

(ii) serious state-imposed psychological stress.

Bogaerts v. Ontario (Attorney General), [2019] O.J. No. 5776, 2019 ONCA 876, at para. 52. See, also, Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, [2015] S.C.J. No. 5, 2015 SCC 5, at paras. 66-67; Blencoe, at paras. 81-86.

[128] Where the interest involved under s. 7 is liberty, there must not be any intermediate steps between the operation of the provision and the deprivation of liberty. A court is not entitled to speculate about the possible eventual outcome to bring the case within s. 7: Bogaerts, at para. 49.

[129] Second, the relationship between specific enumerated rights and the rights afforded by s. 7.

[130] As a matter of general principle, when both a specific guarantee and a claim under s. 7 are advanced in respect of the same state conduct, courts should determine the issue under [page392] the specific guarantee: Canada (Attorney General) v. Whaling, [2014] 1 S.C.R. 392, [2014] S.C.J. No. 20, 2014 SCC 20, at para. 76; Harrer, at para. 13; R. v. Généreux, 1992 117 (SCC), [1992] 1 S.C.R. 259, [1992] S.C.J. No. 10, at p. 310 S.C.R.

[131] The right to a fair hearing is specifically protected under s. 11(d). But it is also a principle of fundamental justice within s. 7: Harrer, at para. 40. Section 7 does not offer greater protection to a fair hearing or impartial jury tribunal than the specific guarantee afforded by s. 11(d): Généreux, at p. 310 S.C.R. It would seem logically to follow that

(i) the claim should be adjudicated under the specific guarantee of s. 11(d), rather than under s. 7; and

(ii) the determination under s. 11(d) is dispositive of the claim under s. 7.

The principles applied

[132] The appellant did not vigorously pursue his claim of an infringement of s. 7 of the Charter. In any event, I would not give effect to it for two principal reasons.

[133] The first is that the appellant cannot establish a causal connection between the abolition of peremptory challenges and the deprivation of his right to liberty or to the security of his person.

[134] Where the liberty interest is involved, there must not be any intermediate steps between the operation of the provision -- the abolition of peremptory challenges in the selection of the trial jury -- and the deprivation of liberty. But there are many such steps here including those essential to proof of guilt. The necessary causal connection is wanting.

[135] Where the security of the person interest is invoked, the appellant must show either an interference with bodily integrity and autonomy or serious state-imposed psychological stress as a result of the abolition of peremptory challenges. Neither has been demonstrated.

[136] The second reason for dismissing the s. 7 argument has to do with the essence of the appellant's claim focused on trial fairness and an impartial jury. These interests are specifically protected under s. 11(d). Section 7 adds nothing to their content. The rejection of this claim under s. 11(d) for the reasons earlier provided is dispositive of the claim under s. 7.

Ground #2: The constitutionality of substituting the judge as the trier of the challenge for cause

[137] This ground of appeal focuses on the amendment to s. 640 of the Criminal Code, which designates the judge presiding over [page393] jury selection as the arbiter of all challenges for cause. Previously, most, but not all, challenges for cause were decided by lay triers. The appellant says this amendment violates their ss. 11(d), (f) and 7 Charter rights. I disagree.

[138] The origins of the challenge for cause, the trial judge's reasons, the parties' positions, and the principles which inform my decision provide a suitable cadre within which to assess this ground of appeal.

The background

[139] Canadian law has always afforded parties the right to challenge prospective jurors for cause. But the nature of this right has changed over time. The main challenge for cause ground with which we are concerned here -- partiality -- has always been decided, prior to September 19, 2019, by two lay triers.

[140] More specifically, the first consolidated procedural statute and the 1892 Criminal Code gave parties an unlimited right to challenge prospective jurors for specific causes listed in the governing statute, provided they met the threshold required to do so. The impartiality of the prospective jurors was the most frequently invoked challenge for cause. Lay triers decided the challenge for cause.

[141] This feature remained through the various iterations of the Criminal Code. Immediately before its most recent amendment, s. 638(1) of the Criminal Code listed the only six grounds on which prospective jurors could be challenged for cause, including on the basis of juror impartiality. Section 640 governed the trial of challenges for cause. The presiding judge was responsible for determining the truth of the challenge that the prospective juror's name did not appear on the panel. But otherwise, all challenges for cause were determined by lay triers.

[142] Effective September 19, 2019, s. 640 of the Criminal Code, as it then read, was repealed. It was replaced by a new provision that did away with lay triers and made the presiding judge the trier of the truth for all challenges for cause. Section 640(1) describes the presiding judge's role as trier:

640(1) If a challenge is made on a ground mentioned in section 638, the judge shall determine whether the alleged ground is true or not and, if the judge is satisfied that it is true, the juror shall not be sworn.

[143] Section 640(1) also describes the consequence of a finding that the challenge for cause is true: the prospective juror "shall not be sworn". The consequences of a finding that the challenge is not true are not specified. [page394]

The reasons of the trial judge

[144] The trial judge rejected the appellant's claim that substituting the presiding judge for lay triers as the arbiter of the truth of the challenge for cause, infringed ss. 11(d), (f) and 7 of the Charter and could not be justified under s. 1. The essence of his reasons for doing so appears in the following three paragraphs of his decision [at paras. 99-101]:

The elimination of the triers and the replacement with the trial judge, in my view, in no way usurps the independence of the jury or impacts on the jury's impartiality.

The amendments actually increase transparency, and the independence of the actual jury, who must decide the guilt or innocence of the accused. The jury members will no longer have to make determinations in relation to the impartiality of other jurors and, when selected, can concentrate on their primary goal, which is determining the guilt or innocence of the accused.

For these reasons, I cannot conclude that the amendments to s. 640 of the Criminal Code violate any or all of ss. 11(d), 11(f) and 7 of the Charter. Since the applicant's concerns with the amended challenge for cause procedure pertain only to the independence and impartiality of the jury, these concerns are subsumed under ss. 11(d) and 11(f) and, therefore, there is no need to assess this amendment separately under s. 7 of the Charter.

The arguments on appeal

The appellant's position

[145] In this court, the appellant characterizes the amendment of s. 640(1) as involving a significant change to a well-established process to determine how jurors are selected. In effect, with the abolition of peremptory challenges, the judge, not the parties, decides the composition of the jury. This, the appellant says, results in a jury that is not independent of the judge. It has consequences for an accused's perception of the fairness of the process and the impartiality of the jury: the judge is seen as an arm of the state and the jury a mere extension of the judge. And it also excludes the direct participation of the community in the selection of the jury. The amendment leaves an indelible imprint on the appellant's substantive rights and rises to the level of a constitutional infringement not justified by s. 1 of the Charter.

The respondent's position

[146] The respondent says the substitution of one trier for another has no effect on the accused's right to challenge prospective jurors for cause based on partiality. Rather, the amendment reaffirms the challenge for cause as an essential safeguard of an accused's s. 11(d) right to a fair trial and an impartial jury. [page395]

[147] The assertion that the judge is aligned with the state, thus not independent, the respondent contends, is also untenable. Like jurors, judges are presumed to be impartial. And like jurors, this presumption is not easily dislodged by a simple say-so. Substituting the presiding judge as decision-maker of the truth of the challenge for cause increases the transparency of the decision-making process and gives the parties a greater participatory role.

[148] Further, the respondent submits, the appellant's claim that the jury is no longer a self-selecting and self-governing entity as it was when lay triers presided over a challenge for cause cannot be sustained. Under the former scheme, if the accused chose static triers, those triers need not be members of the jury panel and would never become trial jurors. Even with rotating triers, the first two triers need not be members of the jury panel and would not become trial jurors. It overstates the case to say that the jury self-selected.

[149] AG Canada agrees and underscores what it characterizes as the purpose underlying the amendment -- to bring greater fairness and transparency to the jury selection process. An accused does not have a constitutional right to a particular process to determine the truth of a challenge for cause. To designate judges rather than lay triers as the decider of the truth of the challenge for cause on grounds of partiality does not undermine trial fairness or compromise the independence or impartiality of the jury. The strong presumption of judicial impartiality is not dislodged by the subjective perception of the person on trial that the judge is part of the state, thus aligned with the Crown.

The governing principles

[150] The appellant challenges the amendment to s. 640(1) substituting the presiding judge for lay triers as triers of the truth of the challenge for cause on the same grounds -- s. 11(d), (f) and 7 of the Charter -- as he invoked in his challenge to the abolition of peremptory challenges. The principles which inform the operation of those provisions were canvassed at length in connection with the first ground of appeal. No useful purpose will be achieved by their repetition here. Three brief reminders will suffice.

[151] First, the test for independence and impartiality of a tribunal is the same: whether a reasonable person, fully informed of the circumstances, viewing the matter realistically and practically and having thought the matter through, would conclude that the decision-maker is not likely to decide the issue fairly: Kokopenace, at para. 49; R. v. Valente, 1985 25 (SCC), [1985] 2 S.C.R. 673, [1985] S.C.J. No. 77, at p. 689 S.C.R.; S. (R.D.), at para. 111, per Cory J. [page396]

[152] Second, the ultimate requirement of a system of jury selection is that it results in a fair trial. A fair trial is not a perfect trial. It is not the most advantageous trial possible from the perspective of the accused. Nor is it a trial made in the accused's image. What constitutes a fair trial takes into account not only the perspective of the accused, but also the practical limits of our system of justice and the interests of others involved in the process, including the public. Our law demands fundamentally fair, not perfect justice: Find, at para. 28.

[153] Third, the selection of an impartial jury is crucial to a fair trial. The accused, the Crown and the public at large have the right to be sure that the jury selected is impartial and the trial fair. No single step in the selection process is dispositive of either issue. The machinery to ensure both has many parts each of which has its own function to ensure these ends are achieved: Barrow, at pp. 710, 714 S.C.R.

The principles applied

[154] In combination, several reasons persuade me that the substitution of the presiding judge for lay triers as the trier of the truth of the challenge for cause does not contravene ss. 11(d), (f), or 7 of the Charter.

[155] First, the substitution of the presiding judge as the arbiter of the truth of the challenge for cause does not compromise the independence of the jury. The standard the judge applies in determining the question of impartiality which frames the challenge is identical to that applied by lay triers. Like lay triers, the judge benefits from a strong presumption of impartiality. And, as in the case of lay triers, the presumption is only rebutted by cogent evidence. The subjective beliefs of an accused that a judge is tethered to the state is not evidence. Indeed, the practice as it has developed since September 19, 2019, albeit not statutorily mandated, is to permit the parties to make submissions about each prospective juror's impartiality. This procedure was not followed with lay triers, whether rotating or static.

[156] Second, the substitution of the presiding judge as the trier of the truth of the challenge does not compromise the impartiality of the jury. Prospective jurors found not to be impartial by the judge must not be empanelled as jurors for the trial. Section 640(1) of the Criminal Code makes this clear. And those found impartial may yet be subject to excusal or being stood aside by the trial judge. To preserve impartiality, various in-trial mechanisms serve as antidotes to counter bias, especially the ability to provide jurors with instructions throughout and at the end of the trial. [page397]

[157] Third, it is the jury selection process itself that must be fair and uncompromising of the trial jury's independence and impartiality. Whether the process, taken as a whole, achieves this standard is not determined by asking whether it conforms with or departs from anyone's ideal or includes or omits specific com-ponents previously included. Substituting a single trier for a pair of triers, each presumed impartial and applying the same standard to determine the question framed for their decision, compromises neither the independence nor the impartiality of the trial jury or the process of its selection.

[158] Fourth, the self-selecting nature of the lay trier procedure is not constitutionally mandated. What is more, the term "self-selecting" rather overstates the previous scheme of lay triers in assessing the truth of a challenge for cause. Static triers would never become jurors. Neither would the first pair of rotating triers. And, in both cases, findings of impartiality could be overtaken by peremptory challenges under that same regime.

[159] Finally, the assignment of the presiding judge to the role of trier of the truth of the challenge for cause does not compromise the traditional division of responsibilities between judge and jury in a criminal trial. Parliament has always assigned a role in decisions about challenges for cause to the presiding judge. For example, to determine whether a juror's name was on the panel. Or what to do if lay triers were unable to make a decision within a reasonable time on a challenge for cause. Or choosing lay triers. And instructing the lay triers. This is not a usurpation of a role assigned to others.

[160] What I have said is sufficient to reject the claim of infringement under s. 11(d). For the reasons given on the first ground of appeal, this finding also compels the same fate for the arguments that the substitution breaches ss. 11(f) and 7 of the Charter.

Ground #3: The temporal application of the amendments

[161] What remains to be decided is the temporal application of the amendments abolishing peremptory challenges and replacing lay triers as the decision-makers on the challenge for cause with the presiding judge. This determination requires consideration not only of common law principles, but also the Interpretation Act, R.S.C. 1985, c. I-21, because no transitional provisions have been included in the amending legislation in connection with either amendment.

[162] I conclude the abolition of the peremptory challenge applies prospectively, that is to say, only to cases where the accused's right to a trial by judge and jury vested on or after [page398] September 19, 2019. Conversely, I conclude the amendment making the presiding judge the trier of all challenges for cause applies retrospectively, that is to say, to all cases tried on or after September 19, 2019, irrespective of when the right vested.

[163] A brief reference to the procedural history of this case provides the necessary background.

The procedural history

[164] The appellant is alleged to have committed first degree murder on September 30, 2016. As a person charged with an offence listed in s. 469(a)(viii) of the Criminal Code, the appellant's trial was to be held in the Superior Court of Justice. And, absent consent from both the appellant and the Attorney General, the trial was to be conducted by a judge and jury. This mode of trial was confirmed by the preferment of a direct indictment which mandates a jury trial: see Criminal Code, s. 577(a).

[165] When the appellant was first charged and later when he was directly indicted, both he and the Crown had the right to challenge 20 prospective jurors peremptorily. If permitted to challenge prospective jurors for cause, the appellant was entitled to have the truth of each challenge determined by lay triers according to the procedures then available. Neither the appellant nor the Crown would be required to exercise a peremptory challenge until the lay triers had first been satisfied the prospective juror was impartial.

[166] These rights to challenge prospective jurors, whether for cause or peremptorily, remained inchoate until the appellant's trial began. Until that time, the appellant could do nothing to implement them.

[167] Jury selection for the appellant was scheduled to commence on September 19, 2019. That same day the amendments abolishing peremptory challenges and making the presiding judge the trier of all challenges for cause came into force.

The ruling of the trial judge

[168] After the trial judge had concluded that both amendments were constitutionally sound, counsel made brief submissions about the temporal application of the amendments. The trial judge held that the amendments applied retrospectively in brief terms [at paras. 111-112]:

I find that the legislative amendments are procedural in nature. They impact the process of selecting the jury. I conclude the peremptory challenge is not a substantive right that stands on its own. I agree with the conclusion of my brother Thomas J. in R. v. Thomas Lako and William McDonald,2019 ONSC 5362. . . . [page399]

For this reason, following Dineley,I am satisfied the repeal of s. 634 and the amendments to s. 640 of the Criminal Code are retrospective in nature.

[169] The jury selection proceeded according to the trial judge's ruling. Neither the Crown nor the defence was permitted to challenge prospective jurors peremptorily. The trial judge determined the truth of each challenge for cause. In other words, jury selection proceeded in accordance with the amendments which came into force on September 19, 2019.

The arguments on appeal

[170] The arguments on this issue are primarily those of the parties.

The appellant's position

[171] The appellant acknowledges the divided trial level authorities on this issue, and the diverging viewpoints among prosecutorial services across Canada.

[172] The appellant says that the trial judge erred in holding the amendments abolishing peremptory challenges and replacing lay triers of the challenge for cause with the presiding judge operate retrospectively, that is to say, that they apply to all cases (new and pending) as of September 19, 2019 irrespective of when the offence occurred or charges were laid.

[173] The appellant does not contest the general rule that procedural amendments apply to cases pending when the amendment comes into force. But to engage this rule, which is a general but not unyielding rule, the amendments under consideration must be purely procedural, not tinctured with substantive features. And the rule does tolerate exceptions.

[174] To begin, the appellant reminds us that, absent clear language to the contrary, Parliament does not intend the laws it enacts to operate retrospectively. Admittedly, this general rule against retrospective operation is turned on its head when the amendment in issue is purely procedural. But the question of temporal application is not decided simply by characterizing an amendment as procedural or substantive. For even if the amendment is by nature procedural, further inquiry is necessary to determine whether the amendment affects a substantive right, and thus cannot operate retrospectively.

[175] In this case, the appellant contends the amendments have procedural aspects about them but they affect substantive rights that the appellant acquired before the amendment came into force: the right to challenge prospective jurors peremptorily and thus to have a say in the composition of the trial jury, and the right to have lay triers determine the truth of the challenges for [page400] cause in a manner of the appellant's choosing. The appellant is similarly situated to the appellant in R. v. S. (R.), [2019] O.J. No. 5773, 2019 ONCA 906. He did all he could have done in advance of the amendments to convert his inchoate rights to reality. If his trial had begun and proceeded to jury selection before September 19, 2019, he would have exercised those rights.

[176] The appellant says the amendments are not purely procedural because of their substantive effect on his right to a fair trial in which his guilt is determined by an independent and impartial jury. The removal of his right to challenge 20 jurors peremptorily deprived him of a valuable tool to select an impartial jury. And the substitution of the presiding judge for lay triers to determine the truth of the challenges for cause undermined the jury's independence and impartiality. This affected the jury's composition and requires a new trial.

The respondent's position

[177] The respondent characterizes the amendments as purely procedural in nature and invokes the presumption that such amendments apply to both pending and future cases to support the conclusion reached by the trial judge about their temporal application.

[178] The respondent acknowledges that the presumption that procedural law applies retrospectively is rebuttable when the provisions affect substantive rights. But the respondent says the exception is not at work here because the substantive right in issue -- a fair trial by an impartial jury -- is not compromised or otherwise affected by either amendment or both amendments in combination. No one has a vested right in procedure, including the procedure followed to select a jury.

[179] The respondent contends that in determining whether the presumption of retrospectivity for procedural enactments applies, our task is not simply to affix one label -- "procedural" -- instead of another -- "substantive" -- to the amendment. What is required is a functional inquiry to determine whether the amendment affects substantive rights.

[180] The repeal of peremptory challenges, the respondent argues, does not affect any substantive right of the appellant. He is not denied the right to have a jury trial. Unlike the situation in S. (R.), in which the amendment removed the preliminary inquiry and the prospect of discharge for those entitled to it, the right to a jury trial does not include the right to a particular procedure for jury selection or composition of the trial jury. An amendment that is fundamentally procedural in nature only becomes substantive where it affects or compromises a substantive [page401] right such as those at play in the fair hearing or independence and impartiality components of the right to trial by a jury.

[181] In this case, as the respondent characterizes it, the repeal of the right to challenge prospective jurors peremptorily did not affect the appellant's right to a fair trial by an independent and impartial jury. Other out-of-court and in-court safeguards ensured the independence and the initial and continued impartiality of the trial jury. The appellant was not entitled to a favourable or ethnically and racially balanced trial jury. Nor did the amendment to the challenge for cause procedure affect the appellant's substantive rights. All that occurred was a re-ordering of responsibility for trial of the truth of the challenge for cause according to the same standard or test. Rather than instructing others on the test, the presiding judge self-instructs and makes the decision.

[182] Finally, the respondent specifically rejects any reliance on the proviso in s. 686(1)(b)(iv) to save as harmless any errors in the trial judge's conclusion.

The governing principles

[183] The principles governing the temporal application of statutory amendments are well settled. They derive from two sources, the common law and the Interpretation Act. But, as the precedents marshalled in written submissions and oral argument on this appeal show, they lack consistency in their application. This is because neither of the prevalent descriptors -- "retrospective" and "prospective" -- are entirely satisfactory or unfailingly accurate. To the extent possible, I describe the temporal application of the new amendments by reference to the events to which they relate.

[184] To begin, absent transitional provisions, the courts must decide whether the new legislation applies only to events or conduct occurring on or after the legislation comes into effect (prospectively), or whether it applies as well to prior events or conduct which is the subject of pending litigation when the new legislation comes into effect (retrospectively). The common law developed several principles to inform decisions about the temporal application of legislation which amended, repealed, or replaced legislation previously in force without any transitional provisions to define its application. The Interpretation Act also provides further direction.

[185] As a matter of first principle, the common law presumes legislation does not apply retrospectively to events or conduct that took place before the legislation comes into force. The terms or labels applied to this presumption vary but are, in their effect, the same: British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, [2005] S.C.J. No. 50, 2005 SCC 49, at para. 71; [page402] Gustavson Drilling (1964) Ltd. v. M.N.R, 1975 4 (SCC), [1977] 1 S.C.R. 271, [1975] S.C.J. No. 116, at p. 279 S.C.R.; Tran v. Canada (Public Safety and Emergency Preparedness), [2017] 2 S.C.R. 289, [2017] S.C.J. No. 50, 2017 SCC 50, at para. 43; R. v. Dineley (2012), 118 O.R. (3d) 799, [2012] 3 S.C.R. 272, [2012] S.C.J. No. 58, 2012 SCC 58, at paras. 44-45, per Cromwell J. (dissenting, but not on this point); Cobb v. Long Estate, [2017] O.J. No. 4830, 2017 ONCA 717, 416 D.L.R. (4th) 222, at para. 80.

[186] The presumption against retrospectivity is a tool for determining the intended temporal reach of legislation. Absent evidence that Parliament considered the potentially unfair effects, legislation does not affect prior events or conduct in pending litigation. The purpose of the presumption is to prevent a change in the law from looking to the past and attaching new prejudicial consequences to a completed transaction. The presumption bespeaks fairness and engages the rule of law. Its effect is that new legislation operates from the date of its enactment and applies to what takes place going forward: Tran, at paras. 43-45, 48; Imperial Tobacco, at para. 71.

[187] However, like many other presumptions, this presumption is not absolute, unyielding, or preclusive. It may be rebutted by Parliament, expressly or by necessary implication. Or it may be rebutted because the nature or character of the legislation itself gives rise to a countervailing presumption that procedural legislation applies retrospectively -- immediately and generally to both pending and future acts and events.

[188] The presumption of immediate application of procedural legislation finds support in ss. 44(c) and (d) of the Interpretation Act. It has been characterized in several different ways. No one has a vested right in procedure. The effect of a procedural change is considered a benefit for all. Procedural provisions are an exception to the presumption against retrospectivity. Procedural provisions are intended to have immediate effect: Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, [2004] S.C.J. No. 40, 2004 SCC 42, at para. 62; R. v. Wildman, 1984 82 (SCC), [1984] 2 S.C.R. 311, [1984] S.C.J. No. 43, at p. 331 S.C.R.; Peel (Regional Municipality) Police v. Ontario (Director, Special Invest-igations Unit) (2012), 110 O.R. (3d) 536, [2012] O.J. No. 2008, 2012 ONCA 292, at para. 72. But this presumption may also yield, as it does, for example, where Parliament's contrary intent appears: Application under s. 83.28, at para. 63; R. v. Ali, 1979 174 (SCC), [1980] 1 S.C.R. 221, [1979] S.C.J. No. 105, at p. 235 S.C.R.

[189] To engage the presumption that a procedural amendment applies immediately and generally to both pending and future acts or conduct, the legislation must be purely procedural. This [page403] qualification, which finds statutory support in s. 43(c) of the Interpretation Act, means that the amendment must govern only how rights are enforced or asserted, not affect substantive rights: Application under s. 83.28, at para. 57; Dineley, at paras. 10-11; Wildman, at pp. 331-32 S.C.R.

[190] To determine whether legislation is procedural and, more narrowly, purely procedural, we do not look simply at the form in which it is enacted. We must also have regard to its function and effect: Dineley, at para. 55, per Cromwell J. (dissenting, but not on this point); Angus v. Sun Alliance Insurance Co., 1988 5 (SCC), [1988] 2 S.C.R. 256, [1988] S.C.J. No. 75, at pp. 265-66 S.C.R. The important thing is not the label we attach to the provision, but its effect on existing rights and obligations: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at 25.116.

[191] This requires a functional inquiry into the circumstances of each case. The inquiry focuses on whether the application of the amending provisions affects any substantive rights. With this as our focus, we are able to determine whether the new legislation is or is not exclusively procedural, thus whether it will apply only to events going forward or to past events as well: Dineley, at para. 11; S. (R.), at para. 27; Angus, at pp. 265-66 S.C.R.

The principles applied

[192] As I will explain, I would give effect to this ground of appeal in part and conclude that the amendment abolishing peremptory challenges applies only prospectively, but the amendment substituting the presiding judge as the trier of the truth of the challenge for cause applies retrospectively.

[193] My analysis begins with some general observations about the jury selection process, in particular, the place occupied in the in-court component of that process by peremptory challenges and challenges for cause. Several steps follow to reach the conclusion I have just described.

The jury selection process

[194] As we have seen, the jury selection process has two parts: the out-of-court process with which we are not concerned and the in-court process which occupies our attention. Individually and together the purpose of the parts is to empanel an independent and impartial jury to fairly hear and determine the truth of the allegations contained in the indictment on which the accused has been given in their charge.

[195] The in-court component of the jury selection process largely assigns the responsibility of choosing the jury to the parties, subject to the supervision of the presiding judge to ensure [page404] its compliance with the law. It begins with the presiding judge pre-vetting prospective jurors to ensure availability and, to some extent, suitability for the pending trial. Random selection of prospective jurors follows.

[196] Under the prior statutory scheme, the parties had available to them two mechanisms to challenge prospective jurors: peremptory challenges and, subject to satisfaction of certain preliminary requirements, challenges for cause. Peremptory challenges were as of right and numerically limited depending on the offence charged or the punishment on conviction. Challenges for cause were limited to specified grounds, but unlimited in number once any prerequisites for their use were satisfied. They were tried by lay triers both of whom were selected by the presiding judge who instructed them on their obligations.

The temporal application of the jury selection amendments

[197] To determine the temporal application of the amendments which abolished peremptory challenges and replaced lay triers of the challenge for cause with the presiding judge, I begin from a foundation of the general presumption against retrospective application of statutes, that is to say, against their immediate application to past and future events, absent a clear indication to the contrary by the legislative authority. Often, but not always, that contrary intention is expressed in transitional provisions of which there are none here. Nor is there any other indication to the contrary expressly stated or arising by necessary implication from what is stated or left unstated in the legislation.

[198] The general or foundational principle just described, however, is not preclusive and may be rebutted. And that rebuttal is sometimes the result of a countervailing presumption that procedural legislation is retrospective in its operation, that is to say, it applies immediately to past and future events.

[199] At first light, amendments which deal with jury selection, in other words, how the trial jury is chosen by the parties, seem inherently procedural. It would seem logically to follow then, as ss. 44(c) and (d) of the Interpretation Act appear to confirm, that the amendments would apply to these proceedings.

[200] But the presumption that procedural legislation applies immediately to past and future events is not itself of universal application. It too may be defeated. For it applies only where the procedural legislation is purely or exclusively procedural. And so it becomes necessary to consider and determine whether the amendments affect previously acquired substantive rights. Procedural legislation which alters or takes away any substantive [page405] rights is not purely procedural, thus, the presumed retrospectivity of procedural legislation does not apply, leaving it applicable only to future events.

[201] In applying these principles to the amendments at issue in this case, trail courts across Canada have divided on whether the amendments apply retrospectively or prospectively. In Ontario, most cases have held that the amendments have retrospective application, although that holding is not universal. In provinces other than Ontario, most cases have favoured a prospective interpretation. As I explain below, I reach the conclusion that the amendment eliminating peremptory challenges applies prospectively, while the amendment to the challenge for cause procedure, applies retrospectively.

Abolition of peremptory challenges

[202] At common law, since our earliest consolidated criminal statute and prior to September 19, 2019 throughout our various Criminal Codes, the parties, in particular, the defence, have had the right to challenge prospective jurors peremptorily. The number of peremptory challenges available have always been limited. But peremptory challenges were available as of right. They were not subject to a formal request nor to any preliminary showing beyond the nature of the charge. They could be used up, but not taken away. When exercised, their effect was invariable: the prospective juror challenged peremptorily did not become a member of the trial jury.

[203] As the evidence before the trial judge in this case demonstrated, peremptory challenges were exercised, not let lie as a right not taken up. Essentially negative, in the sense that they removed prospective jurors from being empanelled rather than having them seated as trial jurors, they had an impact by necessary implication on the composition of the trial jury.

[204] In Yumnu, at paras. 123-124, this court recognized the importance of the role played by peremptory challenges in the jury selection process:

Peremptory challenges are an important part of the jury selection process. Unlike challenges for cause, that rest upon allegations of lack of impartiality that must be established by evidence adduced by the challenging party, peremptory challenges require no justification or explanation, much less an evidentiary foundation or proof. The very basis upon which peremptory challenges are founded is subjective, not objective: R. v. Cloutier, 1979 25 (SCC), [1979] 2 S.C.R. 709, at pp. 720-21. Peremptory challenges rest upon no firmer foundation than a mere belief, more often a hunch, of a party that within the prospective juror resides a state of mind at odds with impartiality.

Jury selection is not a science. Anyone who has ever prosecuted, defended or tried a criminal case with a jury has their own views about the basis upon [page406] which to exercise a peremptory challenge. Occupation. Education. Mode of dress. Age. None are verifiable empirically. Many, if not most, cannot withstand objective analysis. Peremptory challenges permit a party to remove from jury service a limited number of persons whom the party believes, in the circumstances of the case to be tried, may not reach an impartial, evidence-driven conclusion. The availability of peremptory challenges fosters confidence in the adjudicative fairness of the criminal jury trial. Parties often exercise peremptory challenges in an attempt to secure what they hope will be a sympathetic jury. The equalization of the number of peremptory challenges available to both parties tends to ensure that neither gains an unfair advantage over the other in this aspect of jury selection.

[205] To determine whether the elimination of peremptory challenges affects a substantive right, we must identify the substantive right potentially affected. I have already held that the amendment does not infringe the constitutional rights guaranteed by ss. 7, 11(d) or (f). That is not determinative, however, of the temporal scope of the amendment. Not all substantive rights are constitutional and not all legislation which negatively impacts on a substantive right, amounts to an infringement of a constitutional right. For the purposes of determining the temporal scope of the legislation, the nature of the substantive right engaged may be assessed by reference to the legislation as it existed prior to the amendments. The prior legislation gave accused the right to be tried by a jury. I do not think anyone would suggest that the right to trial by jury is not a substantive right.

[206] The right to trial by jury as it existed in the prior legislation included various means by which an accused could participate in the selection of the jury. Included in those various participatory opportunities were peremptory challenges. Peremptory challenges gave an accused a limited veto over the selection of the jury. As noted previously, that ability has been judicially recognized as an important feature of the jury selection process: see, e.g., Yumnu, at paras. 123-124; Sherratt, at pp. 532-33 S.C.R.

[207] The question becomes: did the amendment which eliminated that mode of participation in the jury selection process impair or negatively affect the right to trial by jury as it existed prior to the amendment?

[208] Elimination of peremptory challenges will almost in-evitably have a significant impact on the composition of the jury eventually selected to determine the accused's fate. In most cases, the absence of any peremptory challenges will result in a differently constituted jury.

[209] The fact that the jury is differently constituted does not, as I have held in my constitutional analysis, mean that the jury selected will be in any way constitutionally unsound. It does mean, however, that the jury will be different and will not reflect the [page407] exercise of the limited veto power formerly enjoyed by an accused over those who will participate as triers of fact in the accused's trial.

[210] In my view, an amendment which significantly diminishes an accused's ability to affect the ultimate composition of the jury chosen to try the accused negatively impacts on the accused's statutory right to trial by jury as it existed prior to the amendment. For the purposes of determining the temporal scope of the legislation, this loss of one aspect of the accused's right to participate in the selection of the jury affects in a negative way the accused's right to trial by jury as it existed before the amendment. Therefore, the amendment is presumptively prospective. Nothing in the language of the amendment or in the material placed before this court rebuts that presumption.

[211] In short, the amendment eliminating peremptory challenges applies prospectively, that is to say, only to cases where the accused's right to a trial by judge and jury vested on or after September 19, 2019. Stated otherwise, if, prior to September 19, 2019, an accused had a vested right to a trial by judge and jury as it existed in the prior legislation, then the amendment does not apply and both the accused and Crown have the right to peremptory challenges, even if the trial is held after that date.

[212] To be clear, not all accused charged with an offence before September 19, 2019 have a vested right to a trial by judge and jury under the former legislation. For the right to have vested, the accused must have, before September 19, 2019: (i) been charged with an offence within the exclusive jurisdiction of the Superior Court; (ii) been directly indicted; or (iii) elected for a trial in Superior Court by judge and jury. I include in the third category accused who have formally entered an election as well as those who have made a clear, but informal election, as evinced by the transcript of proceedings or endorsements on the information. Otherwise, the accused's right did not vest, the amendment applies and no party has a right to peremptory challenges at the trial.

Triers of challenge for cause

[213] Turning to the amendment to the challenge for cause procedure, I reach a different conclusion about its temporal application.

[214] The effect of this amendment is to substitute the presiding judge as the only trier of the challenge for cause, or more accurately, all challenges for cause. The judge replaces two lay triers. The presumption of impartiality, both of the trier and prospective juror, remains. The burden on the challenger to show cause and the standard of proof required to demonstrate it remain the same. So too the consequence of a finding that a prospective juror is not [page408] impartial: the juror will not be sworn or affirmed, thus will not become a juror at trial.

[215] The essential difference between the former and current provisions is twofold. The identity of the trier. And the availability of a choice of trial procedure (rotating versus static triers). Unlike the abolition of peremptory challenges, however, the challenge for cause procedure remains available with the same threshold for access, burden of proof, standard of proof and consequence if successful. The change effected by the amendment does not impair or negatively affect the right to trial by judge and jury as it existed prior to the amendment.

[216] In the result, I am satisfied that the amendment to the challenge for cause procedure is purely procedural, thus, applies to both past and future events, irrespective of whether the accused had a vested right before September 19, 2019 to a trial by judge and jury under the former legislation.

Disposition

[217] For these reasons, I conclude that

(i) the amendments abolishing peremptory challenges and substituting the presiding judge for lay triers in the determination of the truth of the challenge for cause do not infringe the appellant's rights under ss. 11(d), (f), or 7 of the Charter;

(ii) the substitution of the presiding judge as the decision-maker on the challenge for cause, rather than lay triers, is purely procedural, thus applies to both historical and future events and thus to this case; and

(iii) the abolition of peremptory challenges affected the substantive rights of the appellant, thus it should not have applied to the selection of the jury in his case nor should it apply to the selection of the jury in other cases if the accused had a vested right before September 19, 2019 to a trial by judge and jury as it existed in the prior legislation.

[218] Crown counsel specifically declined to invoke the provisions of s. 686(1)(b)(iv) of the Criminal Code to save as harmless any error in the application of the amendments.

[219] I would allow the appeal, set aside the conviction and order a new trial on the indictment.

Appeal allowed in part.

End of Document