R. v. Chouhan, 2021 SCC 26

SUPREME COURT OF CANADA

Appeal Heard and Judgment Rendered: October 7, 2020 Reasons for Judgment: June 25, 2021 Docket: 39062

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

Joint Reasons for Judgment: (paras. 1 to 104)

Moldaver and Brown JJ. (Wagner C.J. concurring)

Concurring Reasons: (paras. 105 to 123)

Martin J. (Karakatsanis and Kasirer JJ. concurring)

Concurring Reasons: (paras. 124 to 147)

Rowe J.

Reasons Dissenting in Part: (paras. 148 to 220)

Abella J.

Dissenting Reasons: (paras. 221 to 317)

Côté J.

Her Majesty The Queen Appellant/Respondent on cross-appeal

v.

Pardeep Singh Chouhan Respondent/Appellant on cross-appeal

and

Attorney General of Canada,

Attorney General of Manitoba,

Attorney General of British Columbia,

Attorney General of Alberta,

Aboriginal Legal Services Inc.,

Association québécoise des avocats et avocates de la défense,

David Asper Centre for Constitutional Rights,

Canadian Association of Black Lawyers,

Canadian Muslim Lawyers Association,

Federation of Asian Canadian Lawyers,

South Asian Bar Association of Toronto,

Advocates' Society,

Defence Counsel Association of Ottawa,

Criminal Lawyers' Association (Ontario),

Debbie Baptiste and

British Columbia Civil Liberties Association Interveners

Indexed as: R. v. Chouhan

2021 SCC 26

File No.: 39062.

Hearing and judgment: October 7, 2020.

Reasons delivered: June 25, 2021.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

on appeal from the court of appeal for ontario

Constitutional law — Charter of Rights — Right to fair hearing — Right to trial by jury — Jurors — Selection — Peremptory challenges — Whether amendments to Criminal Code abolishing accused's peremptory challenges during jury selection violate right to fair hearing or right to benefit of trial by jury — If not, whether abolition of peremptory challenges applies to accused awaiting trial on date amendments came into force — Canadian Charter of Rights and Freedoms, ss. 11(d) , (f) — An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts , 1st Sess., 42nd Parl., 2019, c. 25, ss. 269, 271, 272 — Criminal Code, R.S.C. 1985, c. C-46, ss. 633 , 638 .

In 2019, Parliament modified how juries are selected in Canada. Sections 269, 271 and 272 of Bill C‑75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts and to make consequential amendments to other Acts came into force on September 19, 2019. These provisions abolished peremptory challenges, enhanced the challenge for cause process by having judges rather than lay triers adjudicate the challenges, and amended the stand‑aside power to permit trial judges to direct a juror to stand aside in order to maintain public confidence in the administration of justice. C's jury selection was to begin on September 19, 2019, the day the amendments came into force. C's trial proceeded under the new legislative regime.

The trial judge dismissed C's constitutional challenge and determined that the amendments applied to C's trial. Jury selection proceeded without peremptory challenges. C was convicted of first degree murder. The Court of Appeal overturned the conviction and ordered a new trial, holding that the amendments were constitutional but that their temporal scope was limited: they applied only prospectively and therefore did not apply to C, since C's right to jury selection had vested before the amendments came into force.

Held (Abella J. dissenting in part and Côté J. dissenting): The appeal should be allowed and C's conviction restored , and the cross-appeal should be dismissed.

Per Wagner C.J., Moldaver and Brown JJ.: The statutory amendments abolishing peremptory challenges are constitutional and purely procedural, and therefore have retrospective application . They apply to all jury selection processes commencing on or after September 19, 2019.

Since Canada's earliest days, peremptory challenges have formed part of a dynamic in‑court jury selection process that also includes challenges for cause and the power of the trial judge to excuse or stand aside prospective jurors. This process emerged from practices and procedures which differ fundamentally from their modern equivalents, during a period in which juries functioned very differently and included members who often knew the parties and the disputed facts firsthand.

Although peremptory challenges had value from the subjective view of accused persons, the true value of this "benefit" was doubtful. It is not possible to trace the impact of peremptory challenges on the verdict. Moreover, peremptory challenges sat uneasily with the principle that the accused has no right to a partial or favourable jury, with the principle of randomness that undergirds the jury selection process, and with the goal of achieving diversity in jury composition. Rather than promoting diversity, peremptory challenges have historically been misused to undermine it, creating a system in which Indigenous and racialized persons are underrepresented.

The abolition of peremptory challenges does not infringe the s. 11(d) Charter rights of accused persons. Section 11(d) does not entitle the accused to any particular procedure. In determining whether s. 11(d) has been infringed, the question is whether the accused's right to a fair and impartial trial has been infringed, having regard to the jury selection process as a whole.

The abolition of peremptory challenges comes at a time of heightened public awareness of the role of racial prejudice in the criminal justice system. Before the Court, various interveners submitted that peremptory challenges were used by racialized and other marginalized accused persons to obtain a more diverse jury. However, this is not enough to constitutionalize peremptory challenges. As a constitutional matter, jury representativeness and impartiality do not require diversity among jury members. And the abolition of peremptory challenges will go far to augment jury diversity, since it is peremptory challenges that undermined, in some cases significantly, the representativeness of juries.

Other opportunities remain for the parties in criminal trials to raise and address concerns about juror partiality and bias. Trial judges should consider crafting jury charges and mid‑trial instructions targeting implicit and unconscious bias. They should be alive to the particularities of each individual trial that might present the danger of a juror being influenced by unconscious bias.

The challenge for cause provisions under s. 638 of the Criminal Code also provide a robust mechanism to raise concerns about partiality. Challenges for cause are unlimited and not readily susceptible to discriminatory misuse. Challenges for cause can address the same concerns raised by peremptory challenges.

The amended power to direct jurors to stand by to maintain public confidence in the administration of justice under s. 633 of the Criminal Code provides a means to exclude a juror who might be partial or who, if left on the jury, might undermine the impartiality of the tribunal. The stand‑aside power cannot, however, be used to achieve diversity on the jury, in service of a freestanding notion of representativeness.

The abolition of peremptory challenges also does not infringe C's right to a jury trial under s. 11(f) of the Charter . Section 11(f) offers no greater protection of impartiality than s. 11(d) . The right to a jury trial protects the institution of the jury itself; it does not entrench particular jury selection mechanisms.

The amending legislation did not include transitional provisions that set out whether and how the amendments apply to prosecutions pending in the system. New legislation that affects substantive rights will be presumed to have only prospective effect. However, amendments that are purely procedural apply retrospectively. The right to peremptory challenges is a purely procedural right. The accused's substantive rights remain what they always were — the right to an independent and impartial jury under ss. 11(d) and 11(f) of the Charter — and these rights are not less protected in the absence of peremptory challenges than they were when the challenges existed.

Per Karakatsanis, Martin and Kasirer JJ.: There is agreement that the amendments abolishing peremptory challenges are constitutional and purely procedural and therefore apply immediately to ongoing prosecutions. There is also agreement that trial judges must give more robust anti-bias instructions to jurors in appropriate cases, and that the challenge for cause process must be used to screen prospective jurors for bias.

However, there is disagreement with Moldaver and Brown JJ. with respect to how they would approach the enhanced stand-aside power under s. 633 of the Criminal Code and the scope of questioning on challenges for cause. It is preferable not to address these issues here given the lack of direct assistance from the parties and the scant jurisprudence from the lower courts. My colleagues' resolution of the main issue — whether the elimination of peremptory challenges is constitutional — does not require them to determine, at this stage, the full scope of the remaining jury selection tools.

With respect to challenges for cause, trial judges are afforded latitude to depart from the formula set out in R. v. Parks (1993) , 15 O.R. (3d) 324, where appropriate to ensure effective screening for bias, while respecting the privacy of prospective jurors.

The Court should not use this case to circumscribe how judges may apply these recently-amended procedures. The preferable process would be for the Court to wait and see how the interlocking pieces of the new system work before providing direction on their use.

Per Rowe J.: There is agreement that the abolition of peremptory challenges is constitutionally valid and that the legislative change is purely procedural and has retrospective application. However, it is necessary to write separately on the consequences of constitutionalizing statutory provisions.

A structural analysis of the principles underlying the Constitution can inform and assist in the proper interpretation of constitutional provisions. In the present case, separation of powers and parliamentary sovereignty militate against constitutionalizing peremptory challenges or other statutory provisions relating to jury selection.

The principle of parliamentary sovereignty means that Parliament has the right to make or unmake any law. This principle is qualified by our federal structure, the Charter and Aboriginal and treaty rights. But beyond these constraints, Parliament is free to repeal or amend any statutory provision, including those relating to jury selection. Courts should not read the Charter so broadly as to constitutionalize specific statutory mechanisms adopted by Parliament to implement Charter rights.

Per Abella J. (dissenting in part): Both the appeal and the cross-appeal should be dismissed. The repeal of peremptory challenges is constitutionally compliant. Parliament has introduced a regime that, in conjunction with a more robust challenge for cause process and a more active stand-aside power, will protect the rights guaranteed by ss. 11(d) and 11(f) of the Charter . However, the temporal application of the abolition should be prospective only, since the abolition affects the substantive right of an accused to meaningfully participate in jury selection.

The right to be tried by a jury of one's peers is one of the cornerstones of our criminal justice system and is enshrined in ss. 11(d) and 11(f) the Charter . The purpose of the reforms to jury selection is to reduce the potential for discrimination in the jury selection process and to increase the representativeness of juries. The new procedures, when properly used by judges, will protect the accused's right to a fair trial by an impartial jury.

The new robust challenge for cause process will require more probing questions than have traditionally been asked to properly screen for subconscious stereotypes and assumptions. The new stand-aside power will allow judges to actively promote jury diversity, not merely safeguard against obvious partiality.

Abolishing peremptory challenges diminished the right of accused persons to meaningfully participate in jury selection and to influence the ultimate composition of the jury. Their abolition affected the substantive rights of an accused to participate in the selection of an impartial and representative jury. For this reason, the abolition of peremptory challenges should apply only prospectively.

For centuries, the common law included a right of the accused to exercise peremptory challenges and this right was codified in the Criminal Code . The Court has repeatedly asserted the importance of peremptory challenges to the accused's ability to achieve a fair trial.

It is not only an accused's confidence in trial fairness that is at stake, but the public's confidence that the jury is impartial. That impartiality is not possible without acknowledging the reality that systemic discrimination operates throughout the jury selection process, disadvantaging those from racialized and Indigenous communities.

Systemic factors disproportionately exclude marginalized prospective jurors at every step of the selection process, resulting in a system in which Indigenous and racialized persons are overrepresented as accused but underrepresented on juries.

The trial judge's error in denying C the right to use peremptory challenges cannot be cured by the curative proviso in s. 686(1) (b)(iv) of the Criminal Code . The proviso only applies if the accused suffered no prejudice, meaning that no substantial wrong or miscarriage of justice occurred. The proviso cannot apply here because the denial of peremptory challenges negatively affects Charter rights, and the case against C was not so overwhelming that any other verdict would have been impossible to obtain.

Per Côté J. (dissenting): The appeal should be dismissed and the cross-appeal should be allowed. The amendments abolishing peremptory challenges infringe s. 11(f) of the Charter and they are not a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. In the alternative, the amendments apply only prospectively.

Parliament failed to understand why peremptory challenges have accompanied jury trials for over 700 years. It ignored the voices of racialized and other marginalized persons calling out for a chance to ensure that a jury composed of their peers would try them. The abolition of peremptory challenges substantially diminishes the benefit of trial by jury because it eliminates a critical safeguard for the impartiality, representativeness and competence of the jury.

In order for s. 11(f) of the Charter to be meaningful, there must be some set of core irreducible attributes that a tribunal must possess for it to be considered a jury. A jury must possess all of: (1) impartiality; (2) representativeness; and (3) competence. Any legislation that substantially diminishes these attributes violates s. 11(f).

Peremptory challenges play a unique role in a jury trial. They enable an accused person to meaningfully participate in selecting their triers, something that is absent in a trial by judge alone. This meaningful participation is what makes peremptory challenges essential to the benefit of trial by jury.

Peremptory challenges are also critical to the empanelling of impartial, representative and competent juries. First, peremptory challenges facilitate the selection of an impartial jury. Accused persons can use peremptory challenges to remove jurors who have subtle and unconscious biases that cannot be detected through the challenge for cause process.

Second, the jury must be a representative cross-section of society, honestly and fairly chosen, in order to serve as the conscience of the community and to promote public trust in the justice system. Peremptory challenges help ensure that the jury is representative by enabling the accused to remove jurors whose life experiences are so far removed from their own that they may not be able to understand the evidence.

Third, peremptory challenges are critical to ensuring that a jury is competent. Competence in relation to understanding the evidence means willingness and capacity to understand it. A juror whose life experience is incompatible with understanding the accused's situation or the evidence presented is not a competent juror for that accused's trial.

The abolition of peremptory challenges is not a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. The impugned provision of the amending Act is clearly prescribed by law. However, the means chosen — abolishing peremptory challenges — is not rationally connected to Parliament's objective of reducing discrimination and increasing diversity on juries. Removing peremptory challenges altogether has the effect of preventing any possible discrimination against potential jurors, but it also has the effect of furthering discrimination against racialized and other marginalized persons, and potentially reducing jury diversity. Given that peremptory challenges provide a great benefit to many accused persons and that their elimination perpetuates discrimination against racialized and other marginalized persons, the deleterious effects outweigh the salutary effects of the legislation.

Alternatively, the amendments can apply only prospectively. Peremptory challenges are substantive. Their abolition is not beneficial for all: it is entirely detrimental to the accused, and its immediate application creates unfairness for those who have relied upon the existence of such challenges to make decisions. The abolition of peremptory challenges changes the legal character or consequences of an accused's prior actions, such as electing to be tried by jury or seeking an adjournment of an earlier trial.

Cases Cited

By Moldaver and Brown JJ.

Applied: R. v. Find , 2001 SCC 32 , [2001] 1 S.C.R. 863; R. v. Barton , 2019 SCC 33 , [2019] 2 S.C.R. 579; R. v. Dineley , 2012 SCC 58 , [2012] 3 S.C.R. 272; considered : R. v. Sherratt , [1991] 1 S.C.R. 509; Cloutier v. The Queen , [1979] 2 S.C.R. 709; R. v. Kokopenace , 2015 SCC 28 , [2015] 2 S.C.R. 398; R. v. Williams , [1998] 1 S.C.R. 1128; R. v. Parks (1993) , 15 O.R. (3d) 324; R. v. Biddle , [1995] 1 S.C.R. 761; R. v. Spence , 2005 SCC 71 , [2005] 3 S.C.R. 458; Valente v. The Queen , [1985] 2 S.C.R. 673; R. v. St‑Cloud , 2015 SCC 27 , [2015] 2 S.C.R. 328; R. v. O'Connor , [1995] 4 S.C.R. 411; R. v. Mentuck , 2001 SCC 76 , [2001] 3 S.C.R. 442; Wildman v. The Queen , [1984] 2 S.C.R. 311; Andrews v. Law Society of British Columbia , [1989] 1 S.C.R. 143; R. v. Mills , [1999] 3 S.C.R. 668; R. v. Crawford , [1995] 1 S.C.R. 858.

By Martin J.

Referred to: R. v. Williams , [1998] 1 S.C.R. 1128; R. v. Barton , 2019 SCC 33 , [2019] 2 S.C.R. 579; R. v. Gladue , [1999] 1 S.C.R. 688; R. v. Sherratt , [1991] 1 S.C.R. 509; R. v. Kokopenace , 2015 SCC 28 , [2015] 2 S.C.R. 398; R. v. Spence , 2005 SCC 71 , [2005] 3 S.C.R. 458; R. v. Parks (1993) , 15 O.R. (3d) 324.

By Rowe J.

Referred to: R. v. Find , 2001 SCC 32 , [2001] 1 S.C.R. 863; R. v. O'Connor , [1995] 4 S.C.R. 411; R. v. Turpin , [1989] 1 S.C.R. 1296; R. v. Goldfinch , 2019 SCC 38 , [2019] 3 S.C.R. 3; Reference re Secession of Quebec , [1998] 2 S.C.R. 217; Reference re Remuneration of Judges of the Provincial Court Prince Edward Island , [1997] 3 S.C.R. 3; Cooper v. Canada (Human Rights Commission) , [1996] 3 S.C.R. 854; Reference re Pan-Canadian Securities Regulation , 2018 SCC 48 , [2018] 3 S.C.R. 189; Reference re Securities Act , 2011 SCC 66 , [2011] 3 S.C.R. 837; Ontario (A.G.) v. G , 2020 SCC 38 , [2020] 3 S.C.R. 629; Hunter v. Southam Inc. , [1984] 2 S.C.R. 145; Eldridge v. British Columbia (Attorney General) , [1997] 3 S.C.R. 624; Ferrel v. Ontario , 42 O.R. (3d) 97; Andrews v. Law Society of British Columbia , [1989] 1 S.C.R. 143.

By Abella J. (dissenting in part)

R. v. Kokopenace , 2015 SCC 28 , [2015] 2 S.C.R. 398; R. v. Williams , [1998] 1 S.C.R. 1128; R. v. Parks (1993) , 15 O.R. (3d) 324; R. v. Sherratt , [1991] 1 S.C.R. 509; R. v. Cloutier (1988) , 27 O.A.C. 246; R. v. Khan , 2001 SCC 86 , [2001] 3 S.C.R. 823; R. v. White , 2011 SCC 13 , [2011] 1 S.C.R. 433; R. v. Dineley , 2012 SCC 58 , [2012] 3 S.C.R. 272; Tran v. Canada (Public Safety and Emergency Preparedness) , 2017 SCC 50 , [2017] 2 S.C.R. 289; R. v. Barton , 2019 SCC 33 , [2019] 2 S.C.R. 579; R. v. Harrer , [1995] 3 S.C.R. 562; R. v. Barrow , [1987] 2 S.C.R. 694; R. v. Find , 2001 SCC 32 , [2001] 1 S.C.R. 863; R. v. Davey , 2012 SCC 75 , [2012] 3 S.C.R. 828.

By Côté J. (dissenting)

Frank v. Canada (Attorney General) , 2019 SCC 1 , [2019] 1 S.C.R. 3; Mansell v. The Queen (1857), 8 E.L. & Bl. 54, 120 E.R. 20 ; Morin v. The Queen , (1890) , 18 S.C.R. 407; R. v. Cloutier (1988) , 27 O.A.C. 246; R. v. Oakes , [1986] 1 S.C.R. 103; R. v. King , 2019 ONSC 6386 , 148 O.R. (3d) 618; R. v. Khan , 2001 SCC 86 , [2001] 3 S.C.R. 823; R. v. White , 2011 SCC 13 , [2011] 1 S.C.R. 433; R. v. Arradi , 2003 SCC 23 , [2003] 1 S.C.R. 280; Batson v. Kentucky , 476 U.S. 79 (1986); R. v. K.R.J. , 2016 SCC 31 , [2016] 1 S.C.R. 906; R. v. Dineley , 2012 SCC 58 , [2012] 3 S.C.R. 272; Angus v. Sun Alliance Insurance Co. , [1988] 2 S.C.R. 256; Tran v. Canada (Public Safety and Emergency Preparedness) , 2017 SCC 50 , [2017] 2 S.C.R. 289; R. v. Harrer , [1995] 3 S.C.R. 562; R. v. Barrow , [1987] 2 S.C.R. 694; R. v. Find , 2001 SCC 32 , [2001] 1 S.C.R. 863; R. v. Yumnu , 2010 ONCA 637 , 260 C.C.C. (3d) 421; R. v. Davey , 2012 SCC 75 , [2012] 3 S.C.R. 828.

Statutes and Regulations Cited

Act for regulating the Tryals in Cases of Treason and Misprison of Treason , 1696 (Eng.), 7 & 8 Gul. 3, c. 3, s. 7.

Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts , S.C. 2019, c. 25, s. 269.

Bill C‑75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts , 1st Sess., 42nd Parl., 2019.

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

Criminal Code , R.S.C. 1985, c. C-46, ss. 515(10)(c), 631(1) , (2) , 632 , 633 , 634 [rep. 2019, c. 25, s. 269 ], 638, 640(1), (2), 686(1)(b)(iv).

Criminal Code , 1892 , S.C. 1892, c. 29, s. 668 (1), (2), (3), (4), (9).

Interpretation Act , R.S.C., 1985, c‑I-21, s. 43(c).

Quebec Act, 1774 (G.B.), 14 Geo. 3, c. 83 [reproduced in R.S.C. 1985, App. II, No. 2].

APPEAL and CROSS-APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Watt and Tulloch JJ.A.), 2020 ONCA 40 , 149 O.R. (3d) 365, 60 C.R. (7th) 1, 384 C.C.C. (3d) 215, [2020] O.J. No. 241 (QL), 2020 CarswellOnt 643, setting aside a conviction for first degree murder and ordering a new trial. Appeal allowed, cross-appeal dismissed, Abella J. dissenting in part and Côté J. dissenting.

Andreea Baiasu and Michael Perlin , for the appellant/respondent on cross-appeal.

Dirk Derstine and Tania Bariteau , for the respondent/appellant on cross-appeal.

Jeffrey G. Johnston , for the intervener the Attorney General of Canada.

Charles Murray , for the intervener the Attorney General of Manitoba.

Lara Vizsolyi , for the intervener the Attorney General of British Columbia.

Andrew Barg , for the intervener the Attorney General of Alberta.

Caitlyn E. Kasper , for the intervener the Aboriginal Legal Services Inc.

Jean-Guillaume Blanchette , for the intervener Association québécoise des avocats et avocates de la défense.

Kent Roach , for the intervener the David Asper Centre for Constitutional Rights.

Peter Thorning , for the intervener the Canadian Association of Black Lawyers.

Nader Hasan , for the interveners the Canadian Muslim Lawyers Association and the Federation of Asian Canadian Lawyers.

Janani Shanmuganathan , for the intervener the South Asian Bar Association of Toronto.

Jill R. Presser , for the intervener the Advocates' Society.

Michael A. Johnston , for the intervener the Defence Counsel Association of Ottawa.

Nathan Gorham , for the intervener the Criminal Lawyers' Association (Ontario).

Christopher R. Murphy , for the intervener Debbie Baptiste.

Joshua Sealy-Harrington , for the intervener the British Columbia Civil Liberties Association.

The reasons for judgment of Wagner C.J. and Moldaver and Brown JJ. were delivered by

[ 1 ] Moldaver and Brown JJ. — Jury selection in Pardeep Singh Chouhan's trial for first degree murder was scheduled to begin on September 19, 2019. That day, amendments to the Criminal Code , R.S.C. 1985, c. C-46, came into force which abolished peremptory challenges, depriving Mr. Chouhan of the right to remove a limited number of prospective jurors from the jury without providing a reason for doing so. This appeal focuses on the constitutionality and temporal scope of these amendments.

[ 2 ] Although peremptory challenges were a long‑standing example of what Blackstone described as the "tenderness and humanity to prisoners, for which our English laws are justly famous", they have drawn significant controversy in recent decades ( Commentaries on the Laws of England (16th ed. 1825), Book IV, at p. 353). While peremptory challenges permitted the Crown and the accused to exclude prospective jurors for suspected bias, they also had a darker side — a side which allowed for the arbitrary exclusion of jurors, as well as discriminatory practices born of prejudice and stereotypes, deployed by one side or the other to secure not an impartial jury, but a favourable jury. This quiet discrimination had palpable and well‑documented effects on the composition of juries.

[ 3 ] Before his trial began, Mr. Chouhan challenged the constitutionality of the Criminal Code amendments abolishing peremptory challenges on the basis that they infringed his right to an independent and impartial jury trial under ss. 7 , 11(d) , and 11(f) of the Canadian Charter of Rights and Freedoms . In the alternative, he argued that those amendments, which lack any transitional provisions, operated only prospectively and therefore did not apply to his trial.

[ 4 ] The trial judge rejected both arguments ( 2019 ONSC 5512 , 148 O.R. (3d) 53). He identified the following range of procedural safeguards which, in his view, continued to protect the independence and impartiality of the jury, even in the absence of peremptory challenges: the roster of prospective jurors is randomly selected and representative of the community; jurors are drawn from that roster through a randomized process; the accused can remove a juror for one of several reasons enumerated in the challenge for cause provision under s. 638 of the Criminal Code ; and the trial judge retains the discretion to excuse or stand aside prospective jurors for reasons enumerated in ss. 632 and 633 of the Code , such as hardship, obvious partiality, or other reasonable causes. Finding no violation of ss. 7 , 11 (d), or 11 (f), the trial judge went on to determine that the impugned amendments were purely procedural in nature and thus applied immediately to all jury trials scheduled to begin on or after their coming into force.

[ 5 ] The selection of Mr. Chouhan's jury proceeded without peremptory challenges and Mr. Chouhan was ultimately convicted of first degree murder. Days after the jury rendered its verdict and before he was sentenced, Mr. Chouhan appealed from his conviction to the Court of Appeal for Ontario ( 2020 ONCA 40 , 149 O.R. (3d) 365). He raised no substantive arguments about the conduct of the trial, but instead impugned the trial judge's ruling that the abolition of peremptory challenges was constitutional and that it applied to his trial.

[ 6 ] On appeal, Mr. Chouhan succeeded in having his conviction overturned and a new trial ordered. Writing for a unanimous court, Watt J.A. agreed with the trial judge that the amendments to the Criminal Code were constitutional, but he disagreed on their temporal scope. In his opinion, the abolition of peremptory challenges could not apply to accused persons whose right to a jury trial had vested by the time the amendments were proclaimed into force on September 19, 2019. This was the case for Mr. Chouhan, as his first degree murder charge pre‑dated September 19, 2019. Accordingly, he was deprived of his substantive right to peremptory challenges under the former rules and a new trial was required.

[ 7 ] The Crown appealed to this Court on the issue of the temporal scope of the abolition of peremptory challenges; in turn, Mr. Chouhan cross‑appealed on the constitutionality of the amendments abolishing them. At the conclusion of the hearing, a majority of the Court restored Mr. Chouhan's conviction, with reasons to follow. These are those reasons.

I. Issues

[ 8 ] Mr. Chouhan does not pursue his arguments under s. 7 of the Charter in this Court. Accordingly, two issues arise on this appeal:

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

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

II. Legislative Context

[ 9 ] Before addressing the merits of this appeal, some context is necessary, as Parliament did not decide to abolish peremptory challenges within a historical or social vacuum.

A. Peremptory Challenges in Canada

[ 10 ] Peremptory challenges have formed part of the jury selection process in Canada since the country's earliest days. Although the number of challenges available to the Crown and the accused has varied across time, the legislative scheme that Parliament abolished, which forms the subject of this appeal, set a fixed number of challenges for each party based on the seriousness of the underlying criminal charges. The Crown and the accused could each exercise 20 peremptory challenges where the accused was charged with high treason or first degree murder, 12 where the accused was charged with an offence that attracted a maximum sentence of more than five years' imprisonment (but excluding high treason and first degree murder), and 4 for all other offences.

[ 11 ] Peremptory challenges formed part of a dynamic in‑court process governing the selection of jurors from an array of prospective jurors selected at random for jury duty. This process included, and still includes: the ability of accused persons and the Crown to request the removal of a given juror on a challenge for cause for reasons including partiality ( Criminal Code , s. 638); the power of the trial judge to excuse a prospective juror on grounds including personal hardship or other reasonable cause ( Criminal Code , s. 632); and the power of the trial judge (previously, the Crown) to direct a prospective juror to "stand by" where there is a reasonable cause ( Criminal Code , s. 633). The latter power was sometimes referred to as a Crown "stand aside" and functioned as a form of peremptory challenge available to the Crown.

[ 12 ] These in‑court procedures emerged in their modern forms in the 16th and 17th centuries in England ( R. v. Sherratt , [1991] 1 S.C.R. 509, at p. 523). As L'Heureux‑Dubé J. explained in Sherratt , their development was "neither fortuitous nor arbitrary" but rather emerged gradually over hundreds of years to support the purposes of the institution of the jury (p. 523). But it is important to understand that the modern jury selection process is the product of a centuries‑long process of evolution — not a static institution — and that it cannot be understood in isolation from the substantively different conditions that prevailed when it originated.

[ 13 ] Peremptory challenges played a distinct, albeit limited role within this broader context. While the other features of jury selection permit the removal of a juror only for specific reasons, peremptory challenges were "entirely discretionary and not subject to any condition" ( Cloutier v. The Queen , [1979] 2 S.C.R. 709, at p. 721). The accused could remove a juror because they were, for instance, of a certain sex, or perceived to be of a certain political leaning, or wearing a particular type of clothing, or for no identifiable reason at all.

[ 14 ] While, as our colleague Côté J. recounts, commentators since (and including) Blackstone have celebrated the peremptory challenge for its subjective importance to the accused, this must be understood in light of the context surrounding its origin and later evolution. As to its origin, it really is this simple: the juror being objected to was not, in any sense, the juror of the modern day criminal trial. The original peremptory challenge was exercised in response to a person who knew the accused and the facts, not an independent and impartial fact‑finder.

[ 15 ] Further, after the jury had become an impartial fact‑finding body, challenges for cause and peremptory challenges were generally exercised in narrow and objectively determinable circumstances, such as where a prospective juror failed to meet residential or property requirements, or had a relationship with the accused (R. Blake Brown, "Challenges for Cause, Stand‑Asides, and Peremptory Challenges in the Nineteenth Century" (2000), 38 Osgoode Hall L.J. 453, at pp. 453-56 and 458-61). In other words, the peremptory challenge was generally not deployed as a strategic exercise of subjective preference, but rather as an extension of the challenge for cause, used when there was an identifiable reason to remove a juror but the established criteria had not been met.

[ 16 ] It is , however, fair to say that accused persons could use peremptory challenges to their advantage — for instance, during political prosecutions in the 17th century, when Parliament "recognized that peremptory challenges were one of the accused's most important tools in securing an impartial jury" and the Crown could challenge any number of jurors to stand by (Côté J.'s reasons, at para. 240, citing Act for regulating the Tryals in Cases of Treason and Misprison of Treason , 1696 (Eng.), 7 & 8 Gul. 3, c. 3, s. 7). But this was an exceptional circumstance of political prosecution against which Parliament sought to protect the accused.

[ 17 ] We do not, however, see such considerations as especially germane in present circumstances. More generally, and while the peremptory challenge is, as our colleague says, "over seven hundred years old" (Côté J.'s reasons, at para. 232), the historical context from which it emerged and in which it functioned was wholly different from the present context.

B. Mounting Criticism of Peremptory Challenges

[ 18 ] While we do not deny the value of peremptory challenges from the subjective view of accused persons, the true value of this "benefit" was doubtful. Peremptory challenges are exclusive rather than inclusive in nature: they enabled accused persons to exclude a limited number of prospective jurors but did not guarantee that the jury's composition would reflect a particular result. In this sense, peremptory challenges could never deliver on the accused person's hope of achieving a favourable jury, only the chance to exclude a small number of jurors that the accused, for whatever reason, found objectionable.

[ 19 ] Moreover, once the jury was empaneled, it became impossible to trace the impact of peremptory challenges on the verdict, given the insurmountable difficulty in ascertaining how a differently constituted jury would have ruled on the same case. As aptly recognized by the Court of Appeal, peremptory challenges rested on nothing more than a belief that the accused had an inherent advantage in using them — whether or not this was ever actually so (para. 73).

[ 20 ] More critically, peremptory challenges sit uneasily with various other aspects of jury selection. To begin, peremptory challenges did not displace the principle that the accused has no right to select a partial or favourable jury ( Sherratt , at p. 532; R. v. Barrow , [1987] 2 S.C.R. 694 , at p. 710). As this Court affirmed in R. v. Find :

. . . jury selection is not a game and it should not be approached as though it were. Winning and losing are concepts that ought not to be associated with it. The process is not governed by the strictures of the adversarial model, nor should it be . . . . The idea at the end of the day is not to obtain a favourable jury, but rather an impartial jury. [para. 31]

[ 21 ] Similarly, over 30 years ago, Professor Mewett noted that peremptory challenges and Crown stand asides, the functional equivalent of a peremptory challenge, undermined the randomness of jury selection, a significant guarantor of jury independence and impartiality:

. . . we must reconsider the entire basis for the legislation [governing peremptory challenges and Crown stand‑asides]. It is no longer sufficient to accept it merely because it has developed over the past 700 years. I am not entirely convinced that peremptory challenges for either side make all that much sense in a modern jury selection system. . . .

. . . The essence of our selection process is its random nature — both the Crown and the accused literally take the luck of the draw, both as to who gets onto the panel in the first place and then as to the order in which they are called to take their places on the jury.

("The Jury Stand‑By" (1988), 30 Crim. L.Q. 385, at p. 386)

[ 22 ] Commentators have also recognized that peremptory challenges could be used in such a way as to facilitate quiet, but deliberate, discrimination. Indigenous communities, in particular, have witnessed the disturbing effects of peremptory challenges in excluding their members from juries. The 1991 Report of the Aboriginal Justice Inquiry of Manitoba recounted:

The examples they provide are compelling. In the Helen Betty Osborne case in The Pas, the jury had no Aboriginal members, in spite of the fact that it was in an area of Manitoba where Aboriginal people comprise over 50% of the population. All six Aboriginal people called forward were the subjects of peremptory challenges by the Crown . . . . [Emphasis in original; p. 12]

[ 23 ] Allegations that a party has used peremptory challenges in a discriminatory manner have appeared before the courts in recent decades, with mixed results. For instance, in R. v. Pizzacalla (1991) , 5 O.R. (3d) 783 (C.A.), the court ordered a new trial because the prosecutor improperly exercised peremptory challenges to exclude women from a sexual assault trial. And in R. v. Gayle (2001) , 54 O.R. (3d) 36 (C.A.), the court recognized that an accused could use peremptory challenges to obtain an all‑Black jury, which would not serve the ends of justice.

[ 24 ] In sum, while acknowledging the subjective benefit of peremptory challenges to accused persons, courts and commentators have rightly pointed out that public confidence in the administration of justice suffers when the parties use their challenges to exclude any subset of the population, or when they simply eliminate prospective jurors based on group characteristics that are impermissible proxies for presumed bias.

C. The Abolition of Peremptory Challenges

[ 25 ] Faced with mounting criticisms about the use and value of peremptory challenges, Parliament chose to act. A number of entities and individuals, many of whom have intervened in this appeal, variously urged Parliament to abolish peremptory challenges, to leave them unchanged, or to regulate them more strictly. Parliament considered these submissions and determined, based on the evidence before it, that abolition was the right course of action.

[ 26 ] Parliament chose outright abolition. When the Minister of Justice introduced the legislation that would ultimately do away with peremptory challenges (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., 2019), she stated:

Reforms in this area are long overdue. Peremptory challenges give the accused and the [C]rown the ability to exclude jurors without providing a reason. In practice, this can and has led to their use in a discriminatory manner to ensure a jury of a particular composition.

( House of Commons Debates , vol. 148, No. 300, 1st Sess., 42nd Parl., May 24, 2018, at p. 19605)

[ 27 ] In crafting the new legislation, Parliament bolstered the role of the trial judge in supervising the jury selection process. First, Bill C‑75 relies on the trial judge to adjudicate challenges for cause, while the previous legislation relied on lay triers. Second, Bill C‑75 enhances the power of the trial judge under s. 633 of the Criminal Code to direct a prospective juror to stand by, adding the new ground of "maintaining public confidence in the administration of justice". These enhanced powers were designed to make the jury selection process more transparent and more defensible, by shifting the discretionary power over jury composition from the parties to trial judges.

[ 28 ] During committee proceedings, Parliament considered submissions both supporting and opposing the proposed reforms. Legislators ultimately decided that the abolition of peremptory challenges would promote fairness in the jury selection process, due in part to the enhancement of the trial judge's role in supervising that process.

III. Analysis

[ 29 ] We now turn to the merits of this appeal. We begin with Mr. Chouhan's cross‑appeal challenging the constitutionality of the amendments before addressing the Crown's appeal on the temporal scope of the legislation.

A. The Constitutional Issues

[ 30 ] Before this Court, Mr. Chouhan submits that the Criminal Code amendments infringe his rights under ss. 11(d) and 11(f) of the Charter .

(1) Section 11(d): The Right to an Independent and Impartial Tribunal

[ 31 ] Whenever Parliament alters some aspect of the jury selection regime, it must ensure that the new jury selection process continues to guarantee the right of each accused to a fair trial before an independent and impartial jury, as promised by s. 11(d) of the Charter . But s. 11(d) does not entitle the accused to any particular jury selection procedure. Instead, the focus of the Court's attention must be on whether, having regard to the jury selection process as a whole, the accused's right to an independent and impartial jury has been infringed.

[ 32 ] While the focus of the Court's attention in this case is necessarily on the abolition of peremptory challenges, we are asked to consider the constitutionality of the jury selection process as a whole, including those aspects of it that survived Bill C‑75 and those that Parliament modified in the amending legislation. As we have said, Parliament, through Bill C‑75, enhanced the challenge for cause process and the trial judge's power to stand aside prospective jurors. These enhancements were intended to compensate for the abolition of peremptory challenges and remain as features of the jury selection regime.

[ 33 ] Both the trial judge and the Court of Appeal properly acknowledged that the features of the jury selection regime that survived the Bill C‑75 amendments go far to ensure that juries are both independent and impartial. Those protections begin long before the day on which the accused appears in court for jury selection. The provincial governments are responsible for creating and maintaining jury rolls, which typically represent comprehensive lists of all adults residing in a given province who are eligible for jury service.

[ 34 ] When prospective jurors are randomly selected from the roll and invited to appear for jury duty, their names are again randomly drawn from among a collection of cards "thoroughly shaken together" in order to serve on the jury that will ultimately try the accused ( Criminal Code , s. 631(1) and (2)). This random selection of jurors from a relatively representative cross‑section of the population ensures impartiality by eliminating systemic bias against certain classes of accuseds.

[ 35 ] As prospective jurors are drawn one by one in court, the Criminal Code provides for robust participation by both the trial judge and the parties in ensuring the impartiality of those who ultimately serve on the jury, even in the absence of peremptory challenges. In this regard, the Court of Appeal helpfully noted that these existing procedural protections — the challenge for cause process, the power of the trial judge to excuse a juror under s. 632, and the stand‑aside power under s. 633 — offer the parties ample opportunities to address any concerns they may have about the impartiality of specific prospective jurors (paras. 64-73).

[ 36 ] These procedures are important. They provide a mechanism for removing jurors whose impartiality is or may be in question, for any number of reasons, including that the jurors are unable to set aside a racial or other bias against the accused or complainant or they feel unable to sit through a lengthy trial, are not amenable to reaching a verdict beyond a reasonable doubt, or are unable to apply a particular legal rule. And importantly, the parties in criminal trials are entitled to lead evidence, including expert evidence, in support of a challenge for cause or a request that the trial judge exercise the stand‑aside power.

[ 37 ] Nevertheless, we acknowledge that the abolition of peremptory challenges comes at a time of heightened public awareness of the role of racial prejudice in the criminal justice system. It is in these circumstances that the interveners before this Court spoke of the impact that the abolition of peremptory challenges would have on the ability of racialized and Indigenous accused persons to obtain a representative jury and a fair trial.

[ 38 ] As a constitutional matter, the jurisprudence has consistently declined to interpret the imperatives of jury representativeness and impartiality as requiring diversity among members of the jury (see R. v. Biddle , [1995] 1 S.C.R. 761, at paras. 56‑58 , per McLachlin J. (as she then was), concurring; Kokopenace , at paras. 35 and 55 , per Moldaver J.). In R. v. Kokopenace , this Court held that the state's duty with respect to jury representativeness is a process‑based obligation to "try to compile a representative jury roll using random selection procedures" (para. 55, per Moldaver J.), not an obligation to ensure a particular jury composition.

[ 39 ] To the extent our colleagues Abella and Côté JJ. maintain that the fair trial rights of an accused depend on the subjective perceptions of the accused (see Abella J.'s reasons, at paras. 205-6; Côté J.'s reasons, at paras. 310-11), we respectfully disagree. Each cites cases in which this Court has taken into account the subjective perceptions of the accused. But to suggest that these cases require that the accused's subjective perceptions be considered as part of a constitutional analysis of the fairness of a given trial is to overstate their significance.

[ 40 ] Respectfully, we cannot endorse a view of jury selection which measures a juror's impartiality by whether that juror shares a characteristic of their identity with the accused or the victim. We also observe that absolute diversity on a jury is unattainable, as no group of 12 could ever represent Canada's "kaleidoscope of human diversity" (Abella J.'s reasons, at para. 164). That said, this must not be understood as derogating from the crucial importance of striving to achieve jury representativeness.

[ 41 ] In any event, the abolition of peremptory challenges will go far to minimizing the occurrence of homogenous juries. The in‑court jury selection process, and in particular the peremptory challenge, has long undermined the provincial governments' efforts to compile jury rosters that bring together persons from diverse backgrounds. To illustrate, the Iacobucci Report found that, notwithstanding First Nations representation on Ontario jury rolls, peremptory challenges contributed to near-exclusion of Indigenous peoples from Ontario juries (pp. 53-54 and 59).

[ 42 ] On this point, the Iacobucci Report is instructive. By way of explanation, it made extensive recommendations for improving Indigenous representation on jury rolls in Ontario. For example, the province could draw the names of eligible jurors from comprehensive databases such as those kept by the Ontario health insurance authority. But even if these reforms were adopted, peremptory challenges would remain as a tool available to the Crown and the accused alike that could undermine any diversity achieved at the stage of the jury roll.

[ 43 ] It follows, then, that Parliament, in abolishing peremptory challenges, sought to give greater effect to provincial initiatives to increase jury representativeness, which in turn should enhance the diversity of jury composition. To that end, the provinces are free and even encouraged to act to improve jury rolls, so as to include persons from all segments of society.

[ 44 ] We pause here to remark upon the analysis of our colleague, Abella J., as it relates to the constitutionality of the amendments abolishing peremptory challenges. While our colleague concludes that the amendments are constitutional, the substance of her reasons actually supports the opposite conclusion. She writes:

Abolishing peremptory challenges, therefore, diminished the right of accused persons to meaningfully participate in jury selection and to influence the ultimate composition of the jury. Their abolition affected the substantive rights of an accused to participate in the selection of an impartial and representative jury.

Peremptory challenges were one of the core safeguards that ensured the impartiality of the jury. [Emphasis added; paras. 206 and 211.]

[ 45 ] Our colleague's observations effectively, if not explicitly, state the conclusion that peremptory challenges cannot be abolished without infringing the s. 11(d) right of accused persons. We acknowledge that our colleague then seeks to cushion this by suggesting that the other Bill C‑75 amendments (particularly the enhanced challenge for cause and stand-aside powers) are adequate substitutes. However, to accept such reasoning would be to accept that Parliament can infringe the s. 11(d) right, as long as it provides some rough substitute for the protection that was abolished. We do not accept such a view.

[ 46 ] In our respectful view, our colleague has very much overstated the value of peremptory challenges. In doing so, she all but overlooks the substantial body of scholarly commentary which places considerable responsibility on peremptory challenges for undermining the diversity of juries. For instance, our colleague refers to research showing that some accused persons use peremptory challenges to achieve diverse juries, but she does not address the research showing that, from the perspective of jury composition, peremptory challenges have historically produced racially homogenous juries.

[ 47 ] Finally, before proceeding to the s. 11(f) issue, and given the parties' and interveners' extensive submissions on these matters, we wish to highlight the opportunities that the parties in criminal trials have to raise and address concerns about juror partiality and bias. First, in appropriate cases, trial judges should consider crafting jury charges and mid‑trial instructions targeting implicit and unconscious bias. Second, the challenge for cause process provides a vehicle for examining and addressing concerns about particular prospective jurors' impartiality. Third, the stand‑aside power in s. 633 of the Code can be used to address residual concerns about particular prospective jurors.

(a) Jury Instructions

[ 48 ] Although our jury system depends on the impartiality of each juror, it does not demand that jurors be neutral. This Court explained the distinction between impartiality and neutrality in R. v. Find , 2001 SCC 32 , [2001] 1 S.C.R. 863, at para. 43 :

Impartiality does not require that the juror's mind be a blank slate. Nor does it require jurors to jettison all opinions, beliefs, knowledge and other accumulations of life experience as they step into the jury box. Jurors are human beings, whose life experiences inform their deliberations.

But the life experiences that jurors may legitimately bring to their deliberations cannot interfere with their responsibility to approach the case with "an open mind, one that is free from bias, prejudice, or sympathy" ( R. v. Barton , 2019 SCC 33 , [2019] 2 S.C.R. 579, at para. 195 ).

[ 49 ] In our view, jury instructions have a critical role to play in ensuring that jurors approach their deliberations free from bias. Jury instructions can respond to a significant danger of biased reasoning, which is that many biases are unconscious: individuals often do not recognize they hold a particular bias, and may not realize when they are being influenced by it. Targeted instructions can prompt jurors to be actively self-conscious and introspective — to recognize that they may hold biases and to commit to setting them aside — and can identify specific biases or stereotypes that may arise on the facts of the particular case.

[ 50 ] Anti‑bias instructions will be appropriate wherever "specific biases, prejudices, and stereotypes . . . may reasonably be expected to arise in the particular case" ( Barton , at para. 203 ). This is not because of some freestanding notion or interpretive principle of "substantive equality", as our colleague Abella J. suggests. Rather, it reflects the reality that specific biases are most likely to distort reasoning when the juror encounters situations where those biases are likely to be triggered.

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

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

With regard to trial fairness, it is worth emphasizing that any instruction given must not privilege the rights of the complainant over those of the accused. The objective would instead be to identify specific biases, prejudices, and stereotypes that may reasonably be expected to arise in the particular case, and to caution the jury against deciding the case on the basis of such reasoning. [Emphasis added, paras. 201 and 203.]

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

(i) General Anti‑Bias Instructions

[ 53 ] Where anti‑bias instructions are required, they ought to come early, before the presentation of evidence, and at any other time that the trial judge deems appropriate, including when the panel of prospective jurors is assembled in the courtroom at the outset of jury selection. We suggest that the preliminary instructions convey to jurors the importance and difficult nature of their task, including the importance of recognizing and setting aside their own implicit biases and stereotypes in service of the law's guarantee of equality and impartiality.

[ 54 ] Trial judges should exhort jurors to approach their weighty task with a heavy dose of self‑consciousness and introspection. Jurors must identify and set aside prejudices or stereotypes when considering the evidence of any given witness and when reaching a verdict (see, generally, G. A. Ferguson and M. R. Dambrot, CRIMJI: Canadian Criminal Jury Instructions , vol. 1, 4th ed. (2005), at pp. 1.02A‑1 to 1.02A-2).

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

(ii) Instructions on Specific Biases and Stereotypes

[ 56 ] Any number of specific biases or stereotypes could arise in a given case. These biases or stereotypes may pose a significant challenge to the public interest in truth‑finding that characterizes all criminal prosecutions in this country (Ferguson and Dambrot, at p. 1.02A‑2; R. v. O'Connor , [1995] 4 S.C.R. 411, at para. 193 , per L'Heureux‑Dubé J., concurring).

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

In a case like the present, the trial judge might consider explaining to the jury that Indigenous people in Canada — and in particular Indigenous women and girls — have been subjected to a long history of colonization and systemic racism, the effects of which continue to be felt. The trial judge might then point out that some people, as a result of this history and other factors, may hold certain assumptions or biases about Indigenous people, including that they:

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

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

[ 58 ] The trial judge must be alive to the particularities of each individual trial that might present the danger of a juror being influenced by unconscious bias. Recognizing that there is no "magic formula", trial judges should identify the characteristics of the parties or the witnesses that give rise to a risk that a juror may harbour a stereotypical assumption about them, and craft instructions that encourage jurors to question themselves about any such assumptions.

[ 59 ] Such instructions should not be taken as criticizing past or future jurors. They merely recognize that the benefit of human experience which the jury brings to the criminal process can also be tainted by prejudices and stereotypes. Indeed, this Court has recognized that "[ w]hen jurors are sworn to try a case, they commit themselves to deciding the case on the evidence, rejecting bias and prejudice, and acknowledging human fallibility and the limits of individual perception and reasoning" ( Barton , at para. 197 (emphasis added)).

(b) The Challenge for Cause Procedure

[ 60 ] Concerns about the impartiality of a given juror may be better addressed through the challenge for cause process than through the exercise of peremptory challenges (see Canada, Department of Justice, Charter Statement — Bill C‑75 : An Act to Amend the Criminal Code, Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts (online)). Challenges for cause require any bias to be identified on the record, which makes the process more transparent and amenable to meaningful appellate review. We therefore take this opportunity to provide some guidance on the challenge for cause process.

[ 61 ] Accordingly, this case presents an opportunity to comment on the procedure for challenges for cause given our growing knowledge of the ways in which unconscious bias can affect the impartiality of a juror. This Court has "faced up to" the fact that racial prejudice and discrimination are present in Canadian society, and has taken steps to accommodate challenges for cause on the basis of possible racial bias ( Williams , at paras. 22 and 29 ). As the Court explained in Williams , at para. 22, "[d]iscrimination and prejudice are not eliminated or transformed by being suppressed. If anything they are enhanced. . . . The courts can hardly combat prejudice if they deny its existence."

[ 62 ] While widespread bias cannot be presumed in all cases, the parties do not face an onerous burden for raising a challenge for cause. The accused person or the Crown must merely demonstrate a reasonable possibility that bias or prejudicial attitudes exist in the community, with respect to relevant characteristics of a party, a witness, or other features of the case. While this threshold is not unduly onerous, the mere fact that there is a racialized or Indigenous accused, victim, or witness does not, by itself, establish a reasonable possibility that prospective jurors harbour racial bias ( Williams , at para. 17 ).

[ 63 ] In our view, the challenge for cause procedure is itself a vehicle for promoting active self‑consciousness and introspection that militate against unconscious biases. The prospective juror, who, when empanelled, steps into an adjudicative role must bring to bear a degree of impartiality similar in some respects to that required of judges. However, unlike judges, prospective jurors are given no training in managing or disclosing possible bias, and unlike judges, they serve on juries as private citizens. The challenge for cause procedure must be used to ensure that the juror who steps into an adjudicative role has confronted and addressed any biases that might influence their deliberations.

[ 64 ] Appropriate questions on a challenge for cause will ask prospective jurors for their opinion as it relates to salient aspects of the case. For instance, counsel may point to characteristics of the accused, complainant or victim, such as race, addiction, religion, occupation, sexual orientation, or gender identity, which might give rise to the possibility of bias. Counsel may also probe for stereotypes by pointing to the nature of the offence charged and asking whether the nature of the charge, the parties, or the facts of the case could trigger a bias or stereotype that would prevent the juror from impartially assessing the case.

[ 65 ] The facts of Barton provide a useful example of background information that could prompt this kind of questioning. [1] There, the victim, as both an Indigenous woman and a sex worker, had characteristics and personal circumstances that gave rise to a risk of bias and discrimination in the minds of jurors. Trial judges confronting similar facts may wish to ask prospective jurors questions along the following lines:

The victim in this case was an Indigenous woman who was also a sex worker. Her death occurred while she was engaged in her work as a sex worker. As a prospective juror, you bring with you experiences, beliefs, and opinions, some of which may be unconscious. The issue before us today is not whether you have these biases but whether, if chosen as a juror, they would affect your ability to decide the case fairly and impartially. With that in mind, is there anything about the victim's background and circumstances that might consciously or unconsciously affect your ability to assess the evidence impartially and decide this case fairly?

[ 66 ] Our colleague Abella J. suggests that "[t]he new robust challenge for cause process will require more probing questions than have traditionally been asked to properly screen for subconscious stereotypes and assumptions" and will necessitate "a more sophisticated manner of questioning" (paras. 158 and 165). We agree on the need for sophisticated, probing questioning. But with respect, we see no reason why the procedure for challenges for cause that this Court established in R. v. Parks cannot remain as the starting point for the enquiry, subject to such adaptations as the trial judge deems appropriate.

[ 67 ] We raise two final points regarding challenges for cause. First, Bill C‑75 directs that the trial judge, rather than a layperson, will be the arbiter of the challenge for cause ( Criminal Code , s. 640(1)). As such, in our view, it would be appropriate for the trial judge — as an impartial person with legal training — to adopt a more probing line of inquiry in the course of the challenge for cause than was previously expected of the lay triers.

(c) The Stand‑Aside Power Under Section 633 of the Criminal Code

[ 68 ] The final aspect of the jury selection process on which we wish to comment is the stand‑aside power under s. 633 of the Criminal Code . By amending the stand‑aside provision to permit trial judges to direct jurors to "stand by for reasons of . . . maintaining public confidence in the administration of justice", Parliament equipped trial judges with a power that goes beyond the previous stand-aside power. The previous power permitted judges to stand aside jurors for "reasonable cause". Parliament's addition of the "maintaining public confidence in the administration of justice" standard opens the door to using the stand-aside power in circumstances beyond those that justified its exercise under the previous legislation.

[ 69 ] In doing so, Parliament borrowed language that figures prominently in the jurisprudence on s. 11(d) and elsewhere in the criminal law. The concept of "maintaining public confidence in the administration of justice" comes from Valente , in which Le Dain J. held that independence and impartiality of the tribunal are required to maintain public confidence in the administration of justice ( Valente v. The Queen , [1985] 2 S.C.R. 673, at p. 689). The concept also appears prominently in the bail context ( Criminal Code , s. 515(10)(c)) and in the context of stays of proceedings and exclusion of evidence under the Charter .

[ 70 ] We are of the view that the "maintaining public confidence in the administration of justice" standard provides an effective analytical yardstick to address a variety of residual concerns in the jury selection process. In particular, the stand‑aside power can provide a means to exclude jurors whose presence on a jury would undermine public confidence in the administration of justice, including where the juror might be inclined to be partial to one side or the other.

[ 71 ] It will be for trial courts and courts of appeal to determine, on a case‑by‑case basis, the contours of the trial judge's discretion to stand aside jurors to "maintain[n] public confidence in the administration of justice", but we wish to make it clear what this amended power cannot be used for. In particular, it cannot be used to achieve diversity among members of the petit jury.

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

[ 73 ] Indeed, the jurisprudence of this Court demonstrates that generally, public confidence will be lost only where something egregious has occurred in the justice system that society at large finds unacceptable and simply will not tolerate. These circumstances are not mere deviations from established norms but are extreme departures from proper conduct that threaten to bring the justice system into disrepute. Short of such extreme circumstances, the reasonable, informed observer will see that the procedural safeguards of the jury selection process are working as intended to ensure a fair trial.

[ 74 ] It follows that we respectfully reject our colleague Abella J.'s suggestion that trial judges use the stand‑aside power to "actively promote jury diversity" and to approximate "Canada's kaleidoscope of human diversity" (para. 164). Parliament did not write into law that the stand‑aside power could be used to achieve jury diversity, and its language does not reasonably bear such an interpretation. We caution that a reasonable, informed observer who understands the role of randomness in assuring the independence and impartiality of jury selection would lose confidence, not gain it, from the spectacle of a judge assembling a jury by standing aside jurors based on their identities in pursuit of a target composition.

[ 75 ] Nor do we find our colleague's abstract conception of diversity to offer meaningful guidance for trial judges. Indeed, we fear that our colleague's conception of the role trial judges are to play in the jury selection process raises more questions than answers. Are trial judges to habitually seek to reflect the composition of Canadian society as a whole? Or is trial‑by‑trial customization appropriate, with a trial judge seeking out jurors who share a particular characteristic with the accused or victim? If the latter, which characteristic? If the former, how much weight is to be given to each segment of society? What does a judge do when there are no prospective jurors available who share the relevant characteristic with the accused? What is the judge's mandate when there are many prospective jurors who share that characteristic?

[ 76 ] Notably, most of the interveners in this Court were not concerned with ensuring that "Canada's kaleidoscope of human diversity" finds its way onto every jury, but rather with ensuring that juries include someone bearing relevant characteristics of the accused or victim. For instance, the Advocates' Society submitted that the stand-aside power should be used to ensure that Indigenous and racialized persons are represented on juries where the accused or victim is Indigenous or racialized. This concern is understandable, but it cannot be satisfied through any plausible interpretation of the "maintaining public confidence" standard or through the stand-aside power.

[ 77 ] These are the sorts of difficult questions with which trial judges would have to grapple if they were empowered to shape the diversity of the petit jury. If nothing else, the different approaches to enhancing diversity contemplated by our colleague and these interveners raise a host of practical difficulties, the resolution of which would occupy trial courts and courts of appeal for years to come.

[ 78 ] Likewise, if trial judges were to use the stand‑aside power as suggested by our colleague and urged upon us by some of the interveners, we see no principled reason for allowing a trial judge, in the quest for a diverse petit jury, to stop at visible identity characteristics. If a Black or Indigenous accused person were entitled to a jury including a person sharing some identity with them, so too would be a person accused by reason of their religion, or sexual orientation, or political beliefs, which are no less identity-based attributes.

[ 79 ] We raise these questions to highlight that what our colleague Abella J. and some interveners propose would alter in a fundamental way the nature and practice of jury selection in this country. This Court has, with good reason, declined to interpret the imperatives of jury representativeness and impartiality as requiring a diverse jury composition, on the grounds that this would be unattainable in practice. The same applies here.

[ 80 ] This last point — the crucial importance of diverse jury panels to secure diverse juries — merits special emphasis. Here lies the prime importance ascribed by this Court in Kokopenace to randomness , since that equal chance to be selected for the jury depends fundamentally on the randomness of the jury selection process:

However, it remains a basic tenet of our jury selection system that the random selection of jurors from a relatively representative cross‑section of the population ensures impartiality by eliminating systemic bias against certain classes of accuseds. It also ensures a diversity of viewpoints and prevents the jury from becoming the instrument of any one class. [para. 35]

. . . It is a basic statistical concept that a sample of the population is only "representative" if it is randomly selected. The degree to which a sample is not randomly chosen is referred to as a "selection bias". While this may seem like arcane statistrivia , the principles underlying good research design have a direct and important effect on the jury pool . . . .

(B. Kettles, "Impartiality, Representativeness and Jury Selection in Canada" (2012), 59 Crim. L.Q. 462, at pp. 482‑83)

[ 81 ] For all of these reasons, we must conclude that the judicial stand‑aside power, as amended, cannot be used in the manner that our colleague Abella J. and various interveners suggest. To the contrary, the reasonable, informed observer would lose confidence in a jury selection process that required trial judges to stand aside prospective jurors based on race or other characteristics, in pursuit of a particular jury composition.

[ 82 ] To be sure, the abolition of peremptory challenges will go a long way to augment the diversity of juries, for the reasons we have given. And, as the reasons of Rowe J. make clear, Parliament and the provincial legislatures may, within constitutional bounds, pursue further legislative reform directed at further increasing the representativeness of juries.

(d) Conclusion on Section 11(d)

[ 83 ] In summary, we are of the view that the abolition of peremptory challenges does not infringe the s. 11(d) rights of accused persons. The existing protections of the independence and impartiality of the jury, which we have canvassed above, continue to protect against an infringement of the s. 11(d) right. Peremptory challenges, whatever their subjective value to the accused, were not constitutional guarantors of impartiality; the Charter was. And the Charter continues to guarantee the right to an independent and impartial tribunal, with or without peremptory challenges.

[ 84 ] Additionally, we emphasize that nothing in these reasons should be read as constitutionalizing this, or any other, statutory scheme for jury selection. The role of the courts in the Charter analysis "is to protect against incursions on fundamental values, not to second guess policy decisions" ( Andrews v. Law Society of British Columbia , [1989] 1 S.C.R. 143, at p. 194 , per La Forest J., concurring; see also Rowe J.'s reasons). The abolition of peremptory challenges falls squarely within Parliament's legislative prerogative.

(2) Section 11(f): The Right to Trial by Jury

[ 85 ] Mr. Chouhan argues that the abolition of peremptory challenges infringes his right to a jury trial under s. 11(f) of the Charter by depriving him of an impartial jury and a representative jury. In our view, these arguments must fail. Section 11(f) offers no greater protection of impartiality than s. 11(d) . The right to a jury trial protects the institution of the jury itself; it does not entrench particular jury selection mechanisms.

B. Temporal Application of the Amendments

[ 86 ] When Parliament abolished peremptory challenges in Bill C‑75, it indicated that the abolition would come into force on September 19, 2019. Regrettably, and contrary to Parliament's own legislative drafting guidelines, the legislation did not include transitional provisions that set out whether and how the amendments were to apply to prosecutions that were already ongoing in the system. Accordingly, it fell to the courts to sort out the temporal application of this legislation.

[ 87 ] It thus fell to the courts to sort out the temporal application of the abolition of peremptory challenges. As is generally the case when Parliament fails to include transitional provisions in a legislative amendment, the temporal application of these amendments divided trial courts across the country.

[ 88 ] Courts in Ontario generally found the amendments to be purely procedural and therefore immediate in their application, meaning that they would govern the jury selection processes for all trials beginning on or after the amendments' proclamation into force (see R. v. Johnson , 2019 ONSC 6754 ; R. v. Chouhan , 2019 ONSC 5512 ; and R. v. King , 2019 ONSC 6386 ).

[ 89 ] The decision on appeal is the only decision of an appellate court to have considered this issue. The Court of Appeal overturned the trial judge and determined that the abolition of peremptory challenges affects the substantive right to a jury trial, as provided for in the Criminal Code . The Court of Appeal therefore held that the amendments were not purely procedural and therefore did not have immediate retrospective application.

[ 90 ] Respectfully, we disagree with the Court of Appeal. The abolition of peremptory challenges is purely procedural and therefore applies immediately to all jury selection processes beginning on or after September 19, 2019.

(1) General Principles

[ 91 ] Most recently in R. v. Dineley , 2012 SCC 58 , [2012] 3 S.C.R. 272, this Court set out the principles governing the temporal application of new legislation. Justice Deschamps, writing for the majority, summarized the rules of interpretation as follows, at paras. 10-11:

New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively ( Angus v. Sun Alliance Insurance Co. , [1988] 2 S.C.R. 256, at pp. 266‑67; Application under s. 83.28 of the Criminal Code (Re) , 2004 SCC 42 , [2004] 2 S.C.R. 248, at para. 57 ). New legislation that is purely procedural is presumed to apply immediately to pending matters.

Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately (P.‑A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 160; see also Wildman v. The Queen , [1984] 2 S.C.R. 311, at p. 331 ).

[ 92 ] Dissenting, but not on this point, Cromwell J. elaborated on the distinction between legislation which is purely procedural and legislation that is substantive or encroaches on substantive rights (paras. 52‑66). From his summary we draw some general guidance. Broadly speaking, procedural amendments affect the mode of trial or the manner in which rights are asserted or enforced; they pertain to "the process by which a cause of action is enforced, as opposed to the cause of action itself" (para. 56 (emphasis in original)). By contrast, a law is substantive if it "creates, defines, extinguishes or affects a legal right" (para. 55, citing P.‑A. Côté, at p. 160), or, more particularly, "alters the content of a right, as opposed to the procedure by which that right is asserted" (para. 60 (emphasis in original)).

(2) The Procedural Right to Peremptory Challenges

[ 93 ] We begin our analysis bearing in mind our conclusions on the constitutional issues: the abolition of peremptory challenges does not infringe the accused's right to an independent and impartial tribunal or to a jury, under ss. 11(d) and 11(f) of the Charter . Constitutional rights are substantive. If the abolition of peremptory challenges infringed those rights, we would conclude that the abolition affects substantive rights and therefore applies only prospectively. But we have already held that it does not.

[ 94 ] While acknowledging that the abolition of peremptory challenges was constitutional, the Court of Appeal held that the abolition could only apply prospectively because it "significantly diminishes an accused's ability to affect the ultimate composition of the jury chosen to try the accused" and therefore affects the accused's substantive right to trial by jury under the Criminal Code (para. 89). For the following reasons, we respectfully disagree.

[ 95 ] Before this Court, Mr. Chouhan equates the loss of a perceived procedural advantage with a negative impact on a substantive right. We disagree.

[ 96 ] While the subjective importance of the peremptory challenge to the accused is undeniable, the mere fact that a procedure was important or advantageous to one party does not, without more, render the procedure substantive. The Court of Appeal for Ontario has held, correctly in our view, that even significant or fundamental procedural protections will generally not be characterized as substantive for the purposes of temporal analysis, as long as the procedure does not create, define, extinguish, or affect a legal right (paras. 75-77).

[ 97 ] The jurisprudence demonstrates conclusively that legislation can confer a significant benefit on the accused or the Crown but nevertheless remain procedural. For instance, in Wildman v. The Queen , [1984] 2 S.C.R. 311, this Court determined that amendments to the Canada Evidence Act removing the spousal incompetency rules were procedural and therefore applied to Wildman's ongoing trial. It mattered not that the accused had hoped and expected to benefit from the spousal incompetency rules at trial.

[ 98 ] We highlight these examples to demonstrate that procedural rights are often no less important than substantive rights from the perspective of the accused person. In both Wildman and Bickford , the accused no doubt each expected and hoped that their trials would proceed under the old evidentiary rules. The same can be said of Mr. Chouhan. But this alone cannot transform a procedural change into a substantive one.

[ 99 ] The crux of Mr. Chouhan's argument is that the loss of peremptory challenges erodes the right of the accused to participate in the selection of the jury, which Mr. Chouhan characterizes as a substantive right (R.F., at para. 68). Indeed, in Dineley , this Court acknowledged that a law's effect on a party's ability to exercise their Charter rights is a relevant consideration: legislation that has the effect of infringing a Charter right is not purely procedural. As we have explained, however, the abolition of peremptory challenges does not infringe the accused's ss. 11(d) and (f) rights.

[ 100 ] Moreover, when the focus remains squarely on the substantive rights actually at stake in this case, namely the ss. 11(d) and 11(f) Charter rights, it is clear that the presence or absence of peremptory challenges does not affect those rights. Accused persons were entitled to a variable number of peremptory challenges depending on the seriousness of the offence charged, and yet the number of peremptory challenges available to the accused has been changed many times over the years. At no time has the change in the number of peremptory challenges been treated as infringement of a substantive right. The total abolition of peremptory challenges is no different in kind.

[ 101 ] We are fortified in this conclusion by the views of our colleague, Abella J., at paras. 159 to 166 of her reasons. If, as she says, all that has changed since the amendments' enactment is that discretion has shifted from that of the parties (in the exercise of peremptory challenges) to the judge (in the exercise of the stand‑aside power), then the new jury selection regime is materially equivalent to the old one, just with judicial oversight in place of unregulated party choice. A procedure that is materially equivalent to the old one is, by definition, procedural.

[ 102 ] Finally, the Court of Appeal placed great emphasis on the fact that a jury empanelled with peremptory challenges will necessarily be different than a jury empanelled without them. We accept this observation, which is not disputed by the parties. However, we see no basis to conclude that the jury selected without peremptory challenges will be less impartial — indeed, all of the evidence points in the opposite direction. We have already discussed the research suggesting that peremptory challenges have historically been used to achieve all‑white juries.

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

IV. Disposition

[ 104 ] We would allow the Crown's appeal, set aside the Court of Appeal's decision, and restore Mr. Chouhan's conviction. The abolition of peremptory challenges is purely procedural and therefore has retrospective application. It applies to all jury selection processes commencing on or after September 19, 2019. For these reasons, and since this appeal does not implicate the constitutionality of the amendments, we would also dismiss Mr. Chouhan's cross-appeal.

The reasons of Karakatsanis, Martin and Kasirer JJ. were delivered by

[ 105 ] Martin J. — For the reasons of my colleagues Justices Moldaver and Brown, I agree that the Crown's appeal should be allowed, the cross-appeal dismissed and Mr. Chouhan's conviction restored. With respect, I part ways with my colleagues to the extent they suggest limits on how stand asides and challenges for cause may be used. This is unnecessary to decide the appeal and premature in the circumstances.

[ 106 ] As my colleagues explain, on 19 September 2019, a suite of reforms to the jury selection process in the Criminal Code , R.S.C. 1985, c. C-46, came into force (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 and to make consequential amendments to other Acts , 1st Sess., 42nd Parl., 2019). The reforms eliminated peremptory challenges, enhanced the challenge for cause process by substituting judges for lay triers, and amended the stand-aside power to permit a judge to stand aside a juror "for reasons of . . . maintaining public confidence in the administration of justice" ( Criminal Code , s. 633).

[ 107 ] The reforms effected a significant and multi-pronged recalibration of the jury selection regime. At issue in this appeal is whether one of the changes — the elimination of peremptory challenges under s. 634 of the Criminal Code — is constitutionally valid. Bill C-75 made two further changes to the jury selection regime — amending the challenge for cause and stand-aside processes. While these further changes are not themselves challenged in this appeal, their scope and effect are relevant to the question of whether the elimination of peremptory challenges violates the rights guaranteed by ss. 11(d) and (f) of the Charter .

[ 108 ] During the legislative process, the Minister of Justice and her parliamentary secretary said Bill C-75 sought to enhance jury diversity ( House of Commons, Standing Committee on Justice and Human Rights, Evidence , No. 103, 1st Sess., 42nd Parl., June 19, 2018, at pp. 2 and 8; House of Commons Debates , vol. 148, No. 300, 1st Sess., 42nd Parl., May 24, 2018, at p. 19605). This objective was accepted as a pressing and substantial objective by all the judges of this Court who addressed the issue.

[ 109 ] I agree with my colleagues, Moldaver and Brown JJ., that Parliament was entitled to act on persistent concerns about the discriminatory use of peremptory challenges by abolishing them. For the reasons they give, the removal of peremptory challenges is constitutional. I also agree that the challenge for cause and stand-aside processes must fill the void left by the removal of peremptory challenges and must be used by judges to protect accused persons' rights to a fair trial by an impartial jury.

[ 110 ] I further endorse the guidance Moldaver and Brown JJ. provide on the need for jury instructions on bias and the vital role such initiatives play in spurring juror introspection, self-consciousness and accountability. They rightly acknowledge that courts must take active steps throughout the trial to identify and address specific biases.

[ 111 ] However, I part company with my colleagues in respect of their decision to go further and outline how they would approach the enhanced stand-aside power in s. 633 and the scope of questioning on challenges for cause. My colleagues reject the use of the stand-aside power to increase the likelihood of jury diversity (paras. 71-82). They further indicate that the challenge for cause procedure established in R. v. Parks (1993) , 15 O.R. (3d) 324 (C.A.) , remains the starting point for challenges for cause inquiries, subject to the adaptations that trial judges deem appropriate (para. 66).

[ 112 ] These issues are complex, multifaceted and immaterial to the outcome of this appeal. In my view, it is preferable not to address them here given the lack of direct assistance from the parties and scant jurisprudence from the lower courts on this matter. However, given that my colleagues have addressed these issues, I feel compelled to explain why I depart from their approach.

[ 113 ] With respect to the stand-aside power, I would caution against placing undue weight on the principle of random selection. Randomness plays a key role in the selection of juries ( R. v. Sherratt , [1991] 1 S.C.R. 509 , at p. 525 ) and can be a means to advance jury representativeness. However, it is not a constitutional minimum and it does not exhaust the bounds of permissible jury selection reform. Parliament may go further and direct that other means beyond random selection be used to advance jury representativeness.

[ 114 ] Further, in an unequal society , randomness may prevent deliberate exclusion while nonetheless producing discriminatory outcomes. This Court has recognized that "racial prejudice and discrimination are intractable features of our society" ( R. v. Spence , 2005 SCC 71 , [2005] 3 S.C.R. 458, at para. 5 ). Systematic exclusion from jury lists has historically occurred, and may still occur today.

[ 115 ] It is open to Parliament to legislate to address these problems. Random selection from broad-based lists was established as a constitutional minimum in R. v. Kokopenace , 2015 SCC 28 , [2015] 2 S.C.R. 398 . However, that case did not address whether Parliament could implement further measures beyond random selection, nor did Parliament intend to preserve the status quo by enacting the stand-aside power.

[ 116 ] Here, the words Parliament used to communicate its intention were "public confidence in the administration of justice". In interpreting this phrase, courts must take the perspective of "reasonable, well-informed members of the community, but not legal experts with in-depth knowledge of our criminal justice system" ( Spence , at para. 10 ). Whether the stand-aside power can and should be used to enhance jury diversity — and how — are context-specific questions whose answers should emerge from the actual experience of lower courts adjudicating cases under the new legislative regime.

[ 117 ] I acknowledge that departing from randomness by using the stand-aside power to enhance diversity may give rise to practical challenges. However, those problems should not be overstated. The mischief targeted by Parliament was the all-too-common incidence of all-white juries in trials involving Indigenous and racialized accused persons, not the creation of perfectly representative juries. Responding to that mischief may well not require difficult choices about which dimensions of diversity are most important in any given case.

[ 118 ] In my respectful view, the question of whether and to what extent the stand-aside power can be used to enhance jury diversity should be left to another day when it is squarely before us. My colleagues' resolution of the main issue on this appeal — whether the elimination of peremptory challenges is constitutional — does not require them to determine, at this stage, the full scope of the stand-aside power.

[ 119 ] With respect to challenges for cause, I agree with my colleagues Moldaver and Brown JJ. that R. v. Parks (1993) , 15 O.R. (3d) 324 (C.A.) , does not describe the only questions available on a challenge for cause. Indeed, trial judges are afforded the latitude to depart from the Parks formula in appropriate circumstances to ensure an effective screening for bias.

[ 120 ] It is true that when questioning prospective jurors on their biases, the privacy interests of those persons must be respected ( Kokopenace , at para. 74 , per Moldaver J.; at para. 156, per Karakatsanis J.; and at para. 227, per Cromwell J. (dissenting but not on this point)). With good reason, courts have accordingly been reluctant to allow overly intrusive questioning of prospective jurors. But respecting privacy interests and conducting robust screening for bias are not mutually exclusive.

[ 121 ] This Court has also warned against setting a threshold for accessing challenges for cause that "would catch only the grossest forms of racial prejudice" ( Williams , at para. 39 ). Indeed, some scholars question whether the Parks formula captures anything beyond "the grossest forms of racial prejudice". We should not prematurely foreclose the possibility that new and more sophisticated approaches to challenges for cause may better achieve the constitutional objectives underlying the procedure.

[ 122 ] In my view, the Court should not use this case to circumscribe how judges may apply these recently-amended procedures. For the purpose of disposing of the constitutional issue before us, it is unnecessary to prescribe limits on how stand asides and challenges for cause may be used. Nor did we receive helpful submissions on these matters. The appropriate scope and application of these procedures should emerge from the lower courts' lived experience with them, and should reach this Court only when we have been assisted by the benefit of that experience.

[ 123 ] Any premature determination is fraught with risks, but those risks are magnified when, as here, Parliament has chosen to depart from long-standing past practice to significantly alter how juries are chosen. The knock-on effects of these changes cannot currently be foreseen. As such, given the absence of any need to address these questions in order to resolve this appeal, I would leave to another day the precise scope of the stand-aside power and the challenge for cause process.

The following are the reasons delivered by

[ 124 ] Rowe J. — I agree with my colleagues Moldaver and Brown JJ. that the abolition of peremptory challenges is constitutionally valid and that the legislative change is purely procedural and has retrospective application. I would adopt their reasons. However, I am compelled to write separately on the consequences of constitutionalizing statutory provisions and on the separation of powers.

[ 125 ] Section 11(d) of the Charter protects the right of an accused "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". Section 11(f) of the Charter constitutionalizes "the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment". These are constitutional protections that must be respected; however, the means of giving effect to these protections are left to Parliament, with judicial oversight, to determine.

[ 126 ] These Charter provisions protect the fundamental rights of an accused, but do not mandate specific procedural mechanisms to give effect to them. The contrary view, expressed indirectly by various parties, is that statutory provisions adopted by Parliament to give effect to these rights are thereby constitutionalized and can no longer be repealed or amended without constitutional implications. This view cannot be correct.

[ 127 ] Peremptory challenges are one way in which the right to trial by jury is operationalized. Having judges decide challenges for cause rather than lay triers is another. Adopting, amending or repealing such procedures raises no constitutional issue unless thereby trials by jury become unfair and partial, as the Crown accepted in oral argument:

While the exercise of peremptory challenges may have had subjective value for the accused by enhancing his or her perception of fairness, there is a crucial distinction between that concept and the essential characteristics of the jury system that are constitutionally protected. Even if peremptory challenges had actual value in ensuring fair jury trials, their abolition would not be constitutionally infirm if the remaining jury selection procedures continue to ensure the constitutionally protected values of an impartial jury and a right to trial by jury.

(R.F., at para. 37)

For the reasons that follow, I will explain why courts should not constitutionalize statutory provisions.

I. Analysis

[ 128 ] Our Constitution is written and unwritten ( Reference re Secession of Quebec , [1998] 2 S.C.R. 217, at para. 32 ; Reference re Remuneration of Judges of the Provincial Court Prince Edward Island , [1997] 3 S.C.R. 3, at para. 92 ). A structural analysis of the underlying principles of the Constitution may be used as an interpretive tool to understand constitutional provisions ( Reference re Secession of Quebec , at para. 32 ). In the present case, the principles of separation of powers and parliamentary sovereignty support the conclusion that courts should not constitutionalize statutory provisions.

A. Separation of Powers: the Courts and the Legislature

[ 129 ] Constitutionalizing statutory provisions is contrary to the separation of powers between the legislature and the judiciary. The separation of powers has been described by this Court as the "backbone of our constitutional system" ( Cooper v. Canada (Human Rights Commission) , [1996] 3 S.C.R. 854, at para. 12 , per La Forest J., concurring). While the three branches of government are interdependent, they each have a distinct constitutional role to play.

[ 130 ] While the legislature "chooses the appropriate response to social problems, makes policy decisions and enacts legislation", the judiciary "interprets and applies the law, . . . acts as judicial arbiters" and ensures that laws and government action conform to constitutional norms ( G. Régimbald and D. Newman, The Law of the Canadian Constitution (2nd ed. 2017), at pp. 64-65). Each branch of government, in its respective role, contributes to the working of government as a whole:

Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.

( Fraser v. Public Service Staff Relations Board , [1985] 2 S.C.R. 455, at p. 470 , per Dickson C.J.)

[ 131 ] This is so because courts are "not fitted" to get "involved in a review of legislative policy" ( Reference re Public Service Employee Relations Act (Alta.) , [1987] 1 S.C.R. 313, at p. 392 , per Le Dain J.). In a similar vein, McIntyre J., dissenting in R. v. Smith (Edward Dewey) , [1987] 1 S.C.R. 1045, at p. 1108, stated that "[i]t is not for the courts to manufacture a constitutional right out of what is clearly a grant of a lesser right by Parliament."

[ 132 ] Therefore, with respect to the Charter , the role of the courts "is to protect against incursions on fundamental values, not to second guess policy decisions" ( Andrews v. Law Society of British Columbia , [1989] 1 S.C.R. 143, at p. 194, per La Forest J., concurring, see also Rowe J.'s reasons). The abolition of peremptory challenges falls squarely within Parliament's legislative prerogative.

[ 133 ] When "struggling with questions of social policy and attempting to deal with conflicting [social] pressures, 'a legislature must be given reasonable room to manoeuvre'" ( Black v. Law Society of Alberta , [1989] 1 S.C.R. 591, at p. 627, citing Edwards Books and Art Ltd. v. The Queen , [1986] 2 S.C.R. 713, at p. 795, per Dickson C.J.). Parliament is generally to be trusted to make difficult choices in difficult circumstances, and to update its laws as its understanding of a complex issue develops over time.

[ 134 ] Constitutionalizing statutory provisions elides and curtails the role of legislatures in the operationalization of the Charter . While it is for the courts to serve as final arbiters in the interpretation of the Charter , they "do not hold a monopoly on the protection and promotion of rights and freedoms; Parliament and the legislatures also have a vital role to play in this regard" ( Sauvé v. Canada (Chief Electoral Officer) , 2002 SCC 68 , [2002] 3 S.C.R. 519, at para. 1 ). "Courts and legislatures are partners in the protection of rights" and the relationship between the branches of government is characterized by "dialogue, not monologue" ( Sauvé , at para. 1 ).

[ 135 ] The different institutional roles and capacities of the judicial and legislative branches have an impact on the remedies courts can order upon finding that a law is unconstitutional. In Hunter v. Southam Inc. , [1984] 2 S.C.R. 145 , this Court held that

[w]hile the courts are guardians of the Constitution and of individuals' rights under it, it is the legislature's responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution's requirements. It should not fall to the courts to fill in the details that will breathe life into the right. [ p. 169]

Recently, in Ontario (A.G.) v. G , 2020 SCC 38 , [2020] 3 S.C.R. 629, Karakatsanis J., writing for the majority, stated at para. 114:

. . . if granted in the wrong circumstances, tailored remedies can intrude on the legislative sphere. Schachter cautioned that tailored remedies should only be granted where it can be fairly assumed that "the legislature would have passed the constitutionally sound part of the scheme without the unsound part" ( Schachter , at p. 697).

[ 136 ] Being mindful of the separation of powers, this Court recognized in Eldridge v. British Columbia (Attorney General ) , [1997] 3 S.C.R. 624, at para. 96 , that when "there are myriad options available to the government that may rectify the unconstitutionality of [a] current system", the issue as to the approach to be taken is for Parliament, not the courts: "As long as the government respects the dictates of the Charter , this Court should in general be loath to interfere with the means it chooses".

[ 137 ] In sum, courts should not overstep their role when assessing whether statutory regimes comply with the requirements of the Charter : "While it is the role of the courts to specify [constitutional] standards, there may be a range of permissible regimes that can meet these standards" ( Mills , at para. 58 , per Iacobucci and Arbour JJ., writing for the majority). Having courts select the precise means by which constitutional standards are met is a legislative, not a judicial, function.

B. Parliamentary Sovereignty and Democracy

[ 138 ] Constitutionalizing statutory provisions would also be in conflict with the principle of parliamentary sovereignty, a cornerstone of our Constitution ( Régimbald and Newman , at p. 73, § 3.60). This unwritten principle has been defined in the English context as follows:

The principle of Parliamentary Sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English Constitution, the right to make or unmake any law whatever; and, further that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

( Reference re Pan-Canadian Securities Regulation , 2018 SCC 48 , [2018] 3 S.C.R. 189, at para. 54 , citing A. V. D icey, Introduction to the Study of the Law of the Constitution (10th ed. 1959), at pp. 39-40 and 55)

[ 139 ] This principle is not absolute. It is qualified by our federal structure, by the rights and freedoms protected by the Charter and by Aboriginal and treaty rights affirmed by s. 35(1) of the Constitution Act, 1982 ( Reference re Pan-Canadian Securities Regulation , at paras. 56- 57 , see also W. R. Lederman, "Democratic Parliaments, Independent Courts, and the Canadian Charter of Rights and Freedoms " (1985), 11 Queen's L.J. 1, at p. 6). Within these constraints, Parliament is sovereign and free to enact whatever legislation it deems best.

[ 140 ] Parliamentary sovereignty entails the rule that "neither Parliament nor the legislatures can, by ordinary legislation, fetter themselves against some future legislative action" ( Reference re Securities Act , 2011 SCC 66 , [2011] 3 S.C.R. 837, at para. 119 , referring to P. W. Hogg, Constitutional Law of Canada (5th ed. Supp. 2007), at p. 12‑6). In other words, Parliament cannot use its current power to enact legislation to entrench that legislation against future repeal or modification: "The power of repeal is as wide as the power to enact" (Hogg, at p. 12‑6, citing Valin v. Langlois (1879) , 3 S.C.R. 1).

[ 141 ] Parliamentary sovereignty is an expression of a more fundamental principle: democracy. Constitutionalizing statutory provisions undermines the democratic principle, whereby citizens participate in making laws through public institutions created under the Constitution ( Reference re Secession of Quebec , at para. 61 ). As this Court said in Reference re Secession of Quebec , "the consent of the governed is a value that is basic to our understanding of a free and democratic society" (para. 68). Citizens, both individually and collectively, are entitled to change their representatives and, through them, the laws that govern society. Constitutionalizing statutory provisions takes this opportunity away from citizens and their elected representatives.

[ 142 ] The concept that once certain statutory provisions are enacted, Parliament is constitutionally prevented from repealing them, is flawed. As the Ontario Court of Appeal stated in Ferrel v. Ontario , [1998] 42 O.R. (3d) 97, "[i]t would be ironic . . . if legislative provisions enacted to give effect to Charter rights could themselves acquire constitutional status" (p. 112).

[ 143 ] While a right to a fair and public jury trial, as a practical matter, calls for certain positive measures by Parliament, this is different from the proposition that every significant statutory provision with respect to jury trials is elevated to constitutional status. The Charter protects the right to a fair and public trial; it does not protect every method through which that right is given effect.

[ 144 ] Addressing this problem, Lederman wrote:

The general standards of an entrenched Charter of Rights and Freedoms are frequently heavily dependent on detailed implementation by ordinary statutes and regulations, and, at this latter ordinary level, legitimate alternatives and exceptions may appear and require dealing with. Often, the specific statutory or regulatory content of rights as implemented cannot be regarded as in itself of constitutional status, even though the broad general standards expressed in the Charter itself are of constitutional status. [Emphasis added.]

("Charter Influences on Future Constitutional Reform", in D. E. Smith, P. MacKinnon and J. C. Courtney, eds., After Lake Meech, Lessons for the Future (1991), 115, at pp. 118-119)

[ 145 ] As my colleagues explain, their reasons should not "be read as constitutionalizing [the current], or any other, statutory scheme for jury selection" (Moldaver and Brown JJ.'s reasons, at para. 84). Peremptory challenges and the other rules of jury selection should not be constitutionalized under s. 11(d) and (f) of the Charter . Of course, repeal or modification of statutory provisions can raise issues of Charter compliance. But, that is not because the statutory provisions themselves are constitutionally protected. Rather it is because their repeal or modification gives rise to unconstitutional effects. As Watt J.A. expressed in the Ontario Court of Appeal's decision in this case:

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. [Emphasis added; para. 58.]

[ 146 ] Nothing of that nature has been shown in this case. Parliament can repeal these procedures or enact new ones, and in future cases courts may assess whether the new regime remains compliant with the Charter .

II. Disposition

[ 147 ] For the reasons of Justices Moldaver and Brown, as well as for the foregoing reasons, I would allow the Crown's appeal and restore Mr. Chouhan's conviction. I would also dismiss Mr. Chouhan's cross-appeal.

The following are the reasons delivered by

Abella J. (dissenting in part):

[ 148 ] I agree with my colleagues that the repeal of peremptory challenges is constitutionally compliant. Parliament has introduced a regime that, in conjunction with a more robust challenge for cause process and a more active stand-aside power, will protect the rights guaranteed by ss. 11(d) and 11(f) of the Charter . Unlike my colleagues, however, I would find that the temporal application of the abolition is prospective only. I would therefore dismiss both the appeal and the cross-appeal.

[ 149 ] The right to be tried by a jury of one's peers is one of the cornerstones of our criminal justice system and is enshrined in ss. 11(d) and 11(f) of the Charter . It is imperative that jury selection be fair, impartial, and reflective of Canada's diverse demographics. The abolition of peremptory challenges, as part of a suite of related reforms, is a permissible means of furthering those objectives.

[ 150 ] The right to trial by jury in s. 11(f) of the Charter protects both the institution of the jury and its essential characteristics — impartiality, independence, and representativeness. Parliament may implement and modify the mechanisms by which those characteristics are secured. What Parliament cannot do is substantially diminish those essential characteristics. In the context of this case, Parliament has not done so.

[ 151 ] The abolition of peremptory challenges was accompanied by correlative amendments to the challenge for cause process and the stand-aside power that should offset any diminishment of the accused's ability to participate in jury selection.

[ 152 ] The challenge for cause process is now adjudicated by a judge rather than lay triers. This is a significant and beneficial change. A judge, as a professional who has taken an oath to apply the law impartially, is better positioned than a lay trier to scrutinize and adjudicate allegations of partiality. A judge is also less likely to be swayed by improper considerations or to bring their own biases to the adjudication of the challenge for cause.

[ 153 ] The repeal of peremptory challenges is also accompanied by an amendment to the stand-aside provision. The amendment empowers judges to direct a juror to stand by "for reasons of . . . maintaining public confidence in the administration of justice" ( Criminal Code , s. 633). This is a broader and more open-ended standard than the former reasonable cause standard. It gives trial judges a more robust and flexible tool to address concerns about juror partiality.

[ 154 ] Together, these reforms constitute an adequate substitute for peremptory challenges. The challenge for cause process and the stand-aside power, as amended, give the accused a meaningful opportunity to identify and challenge jurors who may be partial, and give the trial judge the authority to exclude such jurors. In a well-functioning jury selection regime — the one Parliament has now legislated — the accused does not need peremptory challenges to secure a fair and impartial jury.

[ 155 ] To be clear, I do not endorse the use of peremptory challenges to obtain racial balance, nor do I suggest that trial judges have an obligation to use the stand-aside power in any particular way. Rather, I would leave it to trial judges, in the exercise of their discretion, to determine how best to use the stand-aside power and the challenge for cause process to ensure that juries are impartial and representative.

[ 156 ] There is one matter on which I wish to note my agreement with Moldaver and Brown JJ. I agree that anti-bias jury instructions play a critical role in ensuring that jurors approach their deliberations free from bias. Such instructions can and should be given in appropriate cases. And I agree with the principles they outline with respect to the content of such instructions.

[ 157 ] The right to a fair trial by an impartial jury is not a static right. It evolves with our understanding of the factors that bear on the fairness and impartiality of criminal trials. The reforms to jury selection represent an effort by Parliament to respond to a genuine concern: the risk that peremptory challenges will be used in a discriminatory manner to undermine the fairness and representativeness of juries.

[ 158 ] The new robust challenge for cause process will require more probing questions than have traditionally been asked to properly screen for subconscious stereotypes and assumptions. The new stand-aside power will allow judges to address residual concerns about juror impartiality that the challenge for cause process may not have captured.

[ 159 ] The issue of temporal application turns on whether the abolition of peremptory challenges is purely procedural or whether it affects substantive rights. If it is purely procedural, then the reforms apply immediately to all pending jury selection processes. If it affects substantive rights, then the reforms apply only prospectively.

[ 160 ] Abolishing peremptory challenges diminished the right of accused persons to meaningfully participate in jury selection and to influence the ultimate composition of the jury. Their abolition affected the substantive rights of an accused to participate in the selection of an impartial and representative jury.

[ 161 ] Peremptory challenges gave the accused a meaningful, if limited, ability to shape the composition of the jury. They were a tool through which the accused could exercise judgment about the composition of the jury that would try them. Their abolition, therefore, affected a right that the accused had — the right to meaningfully participate in the selection of their jury.

[ 162 ] This right is substantive in nature. It goes to the heart of the accused's ability to obtain a fair trial by an impartial jury. As a substantive right, it is subject to the presumption that legislation affecting such rights applies only prospectively.

[ 163 ] The right to a jury trial under s. 11(f) of the Charter encompasses the right of the accused to meaningfully participate in the selection of the jury that will try them. Peremptory challenges were a significant element of that right. Their abolition, which took effect on the very day Mr. Chouhan's jury was to be selected, deprived him of a right he had when he elected trial by jury and when the jury selection process was scheduled to begin.

[ 164 ] The stand-aside power now allows judges to actively promote jury diversity by, for example, directing that jurors of a particular background stand aside to allow for the selection of jurors with different backgrounds. This is a significant change in the jury selection regime that should be used to address the underrepresentation of Indigenous and racialized persons on juries.

[ 165 ] A more sophisticated manner of questioning on challenges for cause is now necessary to effectively screen for unconscious bias. The questions used in the Parks decision may no longer be sufficient to screen for the subtle and unconscious biases that can affect jury deliberations.

[ 166 ] Together, these features of the new jury selection regime — the enhanced challenge for cause process, the expanded stand-aside power, and the more robust use of anti-bias jury instructions — constitute an adequate substitute for peremptory challenges. They can ensure that juries are fair, impartial, and representative, even without peremptory challenges.

[ 167 ] For the common law right to peremptory challenges to be affected by abolition in the same way that a statutory right would be affected, the temporal application issue can be resolved by asking whether the abolition of peremptory challenges affects the substantive rights of accused persons awaiting trial.

[ 168 ] As I have said, I believe that it does. Abolishing peremptory challenges affects the accused's right to participate meaningfully in the selection of the jury that will try them. This right is a component of the accused's right to trial by jury under s. 11(f) of the Charter . For this reason, the abolition of peremptory challenges should apply only prospectively.

[ 169 ] This Court has recognized that the accused's right to participate in jury selection is a fundamental right. For centuries, the common law included a right of the accused to exercise peremptory challenges and this right was codified in the Criminal Code . The Court has repeatedly asserted the importance of peremptory challenges to the accused's ability to achieve a fair trial.

[ 170 ] For these reasons, I would find that the abolition of peremptory challenges affects the accused's substantive right to participate in jury selection, and should therefore apply only prospectively.

[ 171 ] Accordingly, I would dismiss both the appeal and the cross-appeal.

[ 172 ] I will now explain more fully my reasons for these conclusions.

[ 173 ] The jury trial has ancient roots in the common law. It has served as a crucial check on state power and as a mechanism for ensuring that the accused is tried by a cross-section of the community. The right to a jury trial is protected by s. 11(f) of the Charter .

[ 174 ] The institution of the jury is characterized by certain essential features: impartiality, independence, and representativeness. The jury must be impartial — it must approach the case without bias or prejudice. The jury must be independent — it must be free from external pressures. And the jury must be representative — it must reflect the diversity of the community.

[ 175 ] These essential features of the jury are protected by s. 11(f) of the Charter . Parliament may regulate the means by which these features are secured. But Parliament cannot substantially diminish these essential features without infringing s. 11(f).

[ 176 ] The right to be tried by a jury of one's peers is one of the cornerstones of our criminal justice system. It reflects the deep-seated belief that citizens should be tried by their peers, not by professional adjudicators alone. This right is enshrined in s. 11(f) of the Charter .

[ 177 ] The purpose of the reforms to jury selection is to reduce the potential for discrimination in the jury selection process and to increase the representativeness of juries. These are laudable objectives. The question is whether the means chosen by Parliament — abolishing peremptory challenges — advances those objectives without substantially diminishing the essential features of the jury.

[ 178 ] I conclude that it does, because the abolition of peremptory challenges is accompanied by correlative amendments to the challenge for cause process and the stand-aside power that can offset any diminishment of the accused's ability to participate in jury selection.

[ 179 ] Peremptory challenges have been recognized as a fundamental feature of the common law jury trial. They enabled the accused to exclude a limited number of prospective jurors without providing a reason. This right was codified in the Criminal Code and has been recognized by this Court as an important procedural protection.

[ 180 ] The abolition of peremptory challenges is a significant change to the jury selection regime. It deprives the accused of a mechanism through which they could exercise some control over the composition of the jury that would try them.

[ 181 ] However, this change is not unconstitutional because it is accompanied by correlative amendments to the challenge for cause process and the stand-aside power that can adequately substitute for the lost peremptory challenges.

[ 182 ] The challenge for cause process, as amended, gives the accused a meaningful opportunity to challenge jurors on the basis of specific biases or prejudices. The stand-aside power, as amended, gives the trial judge the authority to exclude jurors whose presence might undermine public confidence in the administration of justice.

[ 183 ] Together, these amended procedures can ensure that the jury is impartial, independent, and representative, even without peremptory challenges.

[ 184 ] I note, however, that the success of the new regime will depend on how judges use the enhanced challenge for cause process and the expanded stand-aside power. Judges must use these tools robustly and proactively to ensure that juries are fair, impartial, and representative.

[ 185 ] With respect to challenges for cause, the new regime requires judges to take a more active role in scrutinizing the partiality of prospective jurors. Judges must be willing to permit probing and searching questions that can expose subconscious biases and stereotypes.

[ 186 ] With respect to the stand-aside power, judges must be willing to use this power to address concerns about juror impartiality that the challenge for cause process may not have captured. This includes concerns about the representativeness of the jury.

[ 187 ] I turn now to the temporal application of the abolition of peremptory challenges.

[ 188 ] The general rule is that new legislation that affects substantive rights applies only prospectively, while new legislation that is purely procedural applies immediately to pending matters.

[ 189 ] The question is whether the abolition of peremptory challenges is purely procedural or whether it affects substantive rights.

[ 190 ] I conclude that the abolition of peremptory challenges affects the substantive rights of accused persons awaiting trial. It deprives them of a mechanism through which they could exercise some control over the composition of the jury that would try them.

[ 191 ] This right — the right to meaningfully participate in the selection of the jury — is a component of the accused's right to trial by jury under s. 11(f) of the Charter . As a component of a constitutional right, it is substantive in nature.

[ 192 ] The abolition of peremptory challenges therefore affects a substantive right. Under the general rule, this means that the abolition should apply only prospectively, not retrospectively.

[ 193 ] I would therefore find that the abolition of peremptory challenges does not apply to accused persons who were awaiting trial when the amendments came into force. This means that Mr. Chouhan was entitled to use peremptory challenges during his jury selection.

[ 194 ] For these reasons, I would dismiss both the appeal and the cross-appeal.

[ 195 ] I will now explain more fully my reasons for these conclusions.

[ 196 ] The right to a jury trial is protected by s. 11(f) of the Charter . The jury trial is characterized by certain essential features — impartiality, independence, and representativeness — that are protected by s. 11(f). Parliament may regulate the means by which these features are secured, but cannot substantially diminish them.

[ 197 ] The abolition of peremptory challenges is constitutional because it is accompanied by correlative amendments to the challenge for cause process and the stand-aside power that can adequately substitute for the lost peremptory challenges.

[ 198 ] However, the abolition of peremptory challenges affects the substantive rights of accused persons awaiting trial. It deprives them of a mechanism through which they could exercise some control over the composition of the jury that would try them.

[ 199 ] This right — the right to meaningfully participate in the selection of the jury — is substantive in nature. Under the general rule, legislation that affects substantive rights applies only prospectively.

[ 200 ] The abolition of peremptory challenges should therefore apply only prospectively, not retrospectively.

[ 201 ] Peremptory challenges gave an accused person a meaningful, if limited, ability to shape the composition of the jury. They were a tool through which the accused could exercise judgment about the composition of the jury that would try them.

[ 202 ] The accused's right to meaningfully participate in jury selection is a component of their right to trial by jury under s. 11(f) of the Charter . Peremptory challenges were a significant element of that right. Their abolition, which took effect on the very day Mr. Chouhan's jury was to be selected, deprived him of a right he had when he elected trial by jury.

[ 203 ] Abolishing peremptory challenges, therefore, diminished the right of accused persons to meaningfully participate in jury selection and to influence the ultimate composition of the jury. Their abolition affected the substantive rights of an accused to participate in the selection of an impartial and representative jury.

[ 204 ] The right of an accused to participate in jury selection is not merely procedural. It is a fundamental right that goes to the heart of the accused's ability to obtain a fair trial by an impartial jury.

[ 205 ] It is not only an accused's confidence in trial fairness that is at stake, but the public's confidence that the jury is impartial. As this Court has recognized, trial fairness must appear fair from the perspective of both the accused and the community.

[ 206 ] Peremptory challenges were one of the core safeguards that ensured the impartiality of the jury. Their abolition, even if accompanied by correlative amendments, affects the substantive rights of accused persons.

[ 207 ] For these reasons, I would find that the abolition of peremptory challenges affects the substantive rights of accused persons awaiting trial and should apply only prospectively.

[ 208 ] Since there is no doubt that an accused's fair trial rights are "necessarily substantive" ( Dineley , at para. 21 ), the legislation abolishing peremptory challenges affected substantive rights and could only have prospective effect. The repeal on the day of Mr. Chouhan's scheduled jury selection should not, as a result, have applied to his trial.

[ 209 ] The remaining question is whether the trial judge's error in denying Mr. Chouhan the right to use peremptory challenges can be cured by the proviso in s. 686(1) (b)(iv) of the Criminal Code .

[ 210 ] The proviso only applies if the accused suffered no prejudice, meaning that no substantial wrong or miscarriage of justice occurred ( R. v. Khan , 2001 SCC 86 , [2001] 3 S.C.R. 823, at paras. 16-18 , per Arbour J.). It can only salvage the conviction if the error is minor or harmless, or if the case is overwhelming, so that there is no reasonable possibility that the verdict might have been different ( R. v. Cloutier (1988) , 27 O.A.C. 246 (C.A.) (" Cloutier (C.A.)"), at para. 29, per Goodman J.A.; Khan , at paras. 16 and 28-31; R. v. White , 2011 SCC 13 , [2011] 1 S.C.R. 433, at paras. 93-94 , per Rothstein J.).

[ 211 ] The proviso cannot salvage Mr. Chouhan's conviction in this case. First, it cannot be said that the denial of peremptory challenges was minor or harmless. Peremptory challenges were one of the core safeguards that ensured the impartiality of the jury. Their denial is not a minor procedural error, but a significant deprivation of a right that goes to the heart of the accused's ability to obtain a fair trial by an impartial jury.

[ 212 ] Second, the case against Mr. Chouhan was not so overwhelming that any other verdict would have been impossible to obtain. The evidence against Mr. Chouhan was entirely circumstantial and contested by him. There is a reasonable possibility that the verdict might have been different if Mr. Chouhan had been allowed to exercise peremptory challenges.

[ 213 ] For these reasons, I would dismiss both the appeal and the cross-appeal.

[ 214 ] In summary, I would find that: (1) the abolition of peremptory challenges is constitutional; (2) the abolition of peremptory challenges affects the substantive rights of accused persons awaiting trial and should therefore apply only prospectively; and (3) the trial judge's error in denying Mr. Chouhan the right to use peremptory challenges cannot be cured by the curative proviso.

[ 215 ] I would therefore dismiss both the appeal and the cross-appeal.

[ 216 ] I have described my analysis of the temporal application of the abolition of peremptory challenges. I will now explain in more detail why I believe that the abolition affects the substantive rights of accused persons awaiting trial.

[ 217 ] The right to trial by jury is protected by s. 11(f) of the Charter . The jury trial is characterized by certain essential features — impartiality, independence, and representativeness — that are protected by s. 11(f).

[ 218 ] The right of the accused to meaningfully participate in jury selection is a component of the right to trial by jury. Peremptory challenges were a significant element of this right. Their abolition affected this right.

[ 219 ] Since the right to meaningfully participate in jury selection is a component of the right to trial by jury, and since the right to trial by jury is a substantive right protected by s. 11(f) of the Charter , the right to meaningfully participate in jury selection is also substantive in nature.

[ 220 ] The abolition of peremptory challenges therefore affects a substantive right and should apply only prospectively.

Côté J. (dissenting):

[ 221 ] I would dismiss the appeal and allow the cross-appeal. The amendments to the Criminal Code abolishing peremptory challenges infringe s. 11(f) of the Charter . They are not a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. In the alternative, the amendments can apply only prospectively.

[ 222 ] The abolition of peremptory challenges substantially diminishes the benefit of trial by jury. In order for s. 11(f) of the Charter to be meaningful, there must be some set of core irreducible attributes that a tribunal must possess for it to be considered a jury.

[ 223 ] My colleagues Moldaver and Brown JJ. accept that a jury must be impartial and representative. I agree. But the core attributes of the jury also include competence.

[ 224 ] Peremptory challenges play a unique role in a jury trial. They enable an accused person to meaningfully participate in selecting their triers, something that is absent in a trial by judge alone.

[ 225 ] Peremptory challenges also ensure that the jury is impartial, representative, and competent. Their abolition substantially diminishes these essential features of the jury, in violation of s. 11(f) of the Charter .

[ 226 ] Even if I agreed with my colleagues that the abolition of peremptory challenges does not infringe s. 11(f) of the Charter , I would nonetheless find that the amendments can apply only prospectively. This is because the abolition of peremptory challenges affects the substantive rights of accused persons.

[ 227 ] Peremptory challenges are substantive. Their abolition is not beneficial for all: it is entirely detrimental to the accused. Its immediate application creates unfairness for those who relied on the existence of such challenges to make decisions.

[ 228 ] I will now explain my reasoning in more detail.

[ 229 ] Section 11(f) of the Charter guarantees an accused the right "to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment". This provision protects the institution of the jury itself and its essential characteristics.

[ 230 ] In order for s. 11(f) to be meaningful, there must be some set of core irreducible attributes that a tribunal must possess for it to be considered a jury. Without such attributes, the right to "the benefit of trial by jury" would be an empty guarantee.

[ 231 ] In Frank v. Canada (Attorney General) , 2019 SCC 1 , [2019] 1 S.C.R. 3, this Court held that the right to vote under s. 3 of the Charter cannot be wholly abrogated. Even though the modalities of the right to vote are left to Parliament, there are certain core attributes of the right that Parliament cannot take away.

[ 232 ] The same reasoning applies to s. 11(f). The right to "the benefit of trial by jury" cannot be reduced to a mere label that Parliament applies to whatever procedure it chooses. There must be some set of core irreducible attributes that a tribunal must possess for it to be considered a jury and for the right to the "benefit" of a jury trial to be meaningful.

[ 233 ] Peremptory challenges have a long and venerable history. The common law right to peremptory challenges was recognized over 700 years ago. The right has been codified in the Criminal Code and has been recognized by this Court as an important procedural protection.

[ 234 ] For centuries, the common law included a right of the accused to exercise peremptory challenges. The right was codified in the Criminal Code . The Court has repeatedly asserted the importance of peremptory challenges to the accused's ability to achieve a fair trial.

[ 235 ] The benefit of trial by jury includes the right of the accused to meaningfully participate in the selection of the jury. Peremptory challenges were a significant element of this right. Their abolition, by substantially diminishing the accused's ability to participate in jury selection, substantially diminishes the benefit of trial by jury.

[ 236 ] I agree with my colleagues that a jury must be impartial and representative. However, I also believe that a jury must be competent. Competence in relation to understanding the evidence means willingness and capacity to understand it. A juror whose life experience is incompatible with understanding the accused's situation or the evidence presented is not a competent juror for that accused's trial.

[ 237 ] Peremptory challenges play a unique role in ensuring that the jury is impartial, representative, and competent. They enable the accused to remove jurors who, for whatever reason, may not be capable of rendering a fair and just verdict in the particular case.

[ 238 ] The abolition of peremptory challenges substantially diminishes the accused's ability to obtain an impartial, representative, and competent jury. It therefore substantially diminishes the benefit of trial by jury, in violation of s. 11(f) of the Charter .

[ 239 ] I will now explain in more detail why peremptory challenges are essential to the impartiality, representativeness, and competence of the jury.

[ 240 ] First, peremptory challenges facilitate the selection of an impartial jury. Accused persons can use peremptory challenges to remove jurors who have subtle and unconscious biases that cannot be detected through the challenge for cause process.

[ 241 ] The challenge for cause process is limited in its ability to detect unconscious bias. Jurors may not be aware of their own biases, and may honestly answer questions about their impartiality without revealing their unconscious biases.

[ 242 ] Peremptory challenges provide an additional layer of protection against unconscious bias. By allowing the accused to remove jurors they find objectionable, without having to provide a reason, peremptory challenges enable the accused to act on instincts about juror impartiality that cannot be articulated or proven through the challenge for cause process.

[ 243 ] Second, the jury must be representative. Peremptory challenges help ensure that the jury is representative by enabling the accused to remove jurors whose life experiences are so far removed from their own that they may not be able to understand the evidence.

[ 244 ] Systemic factors disproportionately exclude marginalized prospective jurors at every step of the selection process. Peremptory challenges provided one tool through which accused persons from marginalized communities could attempt to counteract these systemic biases and obtain a more representative jury.

[ 245 ] The abolition of peremptory challenges removes this tool. It therefore risks exacerbating the underrepresentation of Indigenous and racialized persons on juries, contrary to Parliament's stated objective.

[ 246 ] Third, peremptory challenges are critical to ensuring that a jury is competent. Competence in relation to understanding the evidence means willingness and capacity to understand it. A juror whose life experience is incompatible with understanding the accused's situation or the evidence presented is not a competent juror for that accused's trial.

[ 247 ] Peremptory challenges enable the accused to remove jurors who, although not legally biased, may lack the life experience or understanding necessary to fairly and impartially assess the evidence in the particular case.

[ 248 ] The abolition of peremptory challenges removes this protection. It therefore risks resulting in juries that, while technically impartial, lack the competence to fairly assess the evidence in the particular case.

[ 249 ] For these reasons, I conclude that the abolition of peremptory challenges substantially diminishes the essential features of the jury — its impartiality, representativeness, and competence — in violation of s. 11(f) of the Charter .

[ 250 ] I turn now to the question of whether the abolition of peremptory challenges is a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.

[ 251 ] The Oakes test requires that: (1) Parliament's objective must be pressing and substantial; (2) the means chosen must be rationally connected to that objective; (3) the means must minimally impair the Charter right; and (4) the effects of the measure must be proportionate to its objective.

[ 252 ] Parliament's objective in abolishing peremptory challenges was to reduce discrimination and increase diversity on juries. This is a pressing and substantial objective.

[ 253 ] However, the means chosen — abolishing peremptory challenges — is not rationally connected to this objective. Removing peremptory challenges altogether has the effect of preventing any possible discrimination against potential jurors. However, it also has the effect of furthering discrimination against racialized and other marginalized persons, and potentially reducing jury diversity.

[ 254 ] The abolition of peremptory challenges is also not minimally impairing of the accused's right to trial by jury. There are many less restrictive means by which Parliament could have achieved its objective. For example, Parliament could have regulated the exercise of peremptory challenges to prevent their discriminatory use, rather than abolishing them entirely.

[ 255 ] Given that peremptory challenges provide a great benefit to many accused persons and that their elimination perpetuates discrimination against racialized and other marginalized persons, the deleterious effects outweigh the salutary effects of the legislation.

[ 256 ] For these reasons, I conclude that the abolition of peremptory challenges is not a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.

[ 257 ] I turn now to the alternative argument — that the abolition of peremptory challenges applies only prospectively.

[ 258 ] Even if I agreed with my colleagues that the abolition of peremptory challenges does not infringe s. 11(f) of the Charter , I would nonetheless find that the amendments can apply only prospectively.

[ 259 ] The general rule is that new legislation that affects substantive rights applies only prospectively, while new legislation that is purely procedural applies immediately to pending matters.

[ 260 ] I conclude that the abolition of peremptory challenges affects the substantive rights of accused persons awaiting trial. It deprives them of a mechanism through which they could exercise some control over the composition of the jury that would try them.

[ 261 ] This right — the right to meaningfully participate in the selection of the jury — is a component of the accused's right to trial by jury under s. 11(f) of the Charter . As a component of a constitutional right, it is substantive in nature.

[ 262 ] The abolition of peremptory challenges therefore affects a substantive right and should apply only prospectively.

[ 263 ] I now turn to the detailed analysis of the constitutional issue.

[ 264 ] The right to trial by jury under s. 11(f) of the Charter protects both the institution of the jury and its essential characteristics. Parliament may regulate the means by which those characteristics are secured. But Parliament cannot substantially diminish those essential characteristics.

[ 265 ] The essential characteristics of the jury include impartiality, representativeness, and competence. I will explain why peremptory challenges are essential to each of these characteristics.

[ 266 ] First, peremptory challenges facilitate the selection of an impartial jury. The challenge for cause process is limited in its ability to detect unconscious bias. Peremptory challenges provide an additional layer of protection against unconscious bias.

[ 267 ] Second, peremptory challenges help ensure that the jury is representative. Systemic factors disproportionately exclude marginalized prospective jurors. Peremptory challenges provided one tool through which accused persons from marginalized communities could attempt to counteract these systemic biases.

[ 268 ] Third, peremptory challenges are critical to ensuring that a jury is competent. They enable the accused to remove jurors who, although not legally biased, may lack the life experience or understanding necessary to fairly and impartially assess the evidence in the particular case.

[ 269 ] The abolition of peremptory challenges substantially diminishes the accused's ability to obtain an impartial, representative, and competent jury. It therefore substantially diminishes the benefit of trial by jury, in violation of s. 11(f) of the Charter .

[ 270 ] I now turn to the Oakes analysis.

[ 271 ] Parliament's objective in abolishing peremptory challenges was to reduce discrimination and increase diversity on juries. This is a pressing and substantial objective.

[ 272 ] However, the means chosen — abolishing peremptory challenges — is not rationally connected to this objective. Removing peremptory challenges altogether may prevent discrimination against potential jurors by the Crown, but it also prevents discrimination in favour of racialized and marginalized accused persons who may wish to ensure a more diverse jury.

[ 273 ] The abolition of peremptory challenges is also not minimally impairing of the accused's right to trial by jury. Parliament could have regulated the exercise of peremptory challenges to prevent their discriminatory use, rather than abolishing them entirely. This less restrictive approach would have achieved Parliament's objective while preserving the accused's right to meaningfully participate in jury selection.

[ 274 ] For these reasons, I conclude that the abolition of peremptory challenges is not a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.

[ 275 ] I now turn to the temporal application of the abolition.

[ 276 ] The general rule is that new legislation that affects substantive rights applies only prospectively. I conclude that the abolition of peremptory challenges affects the substantive rights of accused persons awaiting trial.

[ 277 ] The right to trial by jury includes the right of the accused to meaningfully participate in the selection of the jury. Peremptory challenges were a significant element of this right. Their abolition affects this right.

[ 278 ] Since the right to meaningfully participate in jury selection is a component of the right to trial by jury, and since the right to trial by jury is a substantive right protected by s. 11(f) of the Charter , the right to meaningfully participate in jury selection is also substantive in nature.

[ 279 ] The abolition of peremptory challenges therefore affects a substantive right and should apply only prospectively.

[ 280 ] This means that the abolition of peremptory challenges does not apply to accused persons who were awaiting trial when the amendments came into force.

[ 281 ] The evidence in Mr. Chouhan's case was entirely circumstantial and dependent upon witness testimony, including the testimony of Mr. Chouhan himself. It is in the analysis of such evidence that the benefits of the jury's superior fact‑finding ability and role as the conscience of the community are essential. A jury composed of jurors whose life experiences were totally divorced from those of Mr. Chouhan could not be said to deliver these benefits.

[ 282 ] It has been said that "[a] jury that may do for a particular defendant in a particular case may be unsuitable for a different defendant in a different case" (J. J. Gobert, "The Peremptory Challenge — an Obituary" (1989), Crim. L. Rev. 528, at p. 533). Mr. Chouhan needed an opportunity to empanel a jury capable of providing him with the benefit of trial by jury. Without peremptory challenges, there was a significantly increased risk that his jury would contain biased jurors. Similarly, he was unable to remove jurors who were not competent to assess the specific evidence he presented. Peremptory challenges could have furthered the diversity of the jury as well.

[ 283 ] When combined, the eroded protections of impartiality, representativeness and competence were not enough to provide Mr. Chouhan with the benefit of trial by jury because they rendered the elements of the benefit uncertain. A jury trial cannot be considered a benefit when the benefit is uncertain.

[ 284 ] Before assessing whether this limit can be justified, I note that many of the same considerations apply to s. 11 (d). Section 11 (d) guarantees an accused the right to a fair trial by an impartial tribunal. The same concerns that animate the impartiality problems under s. 11 (f) also apply to s. 11 (d). And while I will discuss s. 11 (d) further in the section on the temporal application of s. 269 of the Amending Act , I do not wish to be taken as deciding this case under s. 11 (f) because s. 11 (d) is not applicable. It very well may be applicable.

IV. Section 1 of the Charter

[ 285 ] Section 1 of the Charter provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[ 286 ] In order to determine whether this limit on s. 11 (f) constitutes a Charter infringement, I must determine whether it may be justified as a reasonable limit prescribed by law. The impugned provision of the Amending Act is clearly prescribed by law ( R. v. Oakes , [1986] 1 S.C.R. 103, at p. 135). In order for it to constitute a reasonable limit that is demonstrably justified in a free democratic society, Parliament must have been pursuing a pressing and substantial objective, the means chosen to implement that objective must be rationally connected to it and must minimally impair the Charter right, and there must be proportionality between the effects of the measure and the objective identified at the first step (p. 139).

[ 287 ] From the debates surrounding the Amending Act , it is clear that Parliament's objective in abolishing peremptory challenges was to reduce discrimination and increase diversity on juries. When introducing the bill, the Minister of Justice spoke of these concerns:

Peremptory challenges give the accused and the crown the ability to exclude jurors without providing a reason. In practice, this can and has led to their use in a discriminatory manner to ensure a jury of a particular composition.

( House of Commons Debates , vol. 148, No. 300, 1st Sess., 42nd Parl., May 24, 2018, at p. 19605)

At third reading, the Parliamentary Secretary to the Minister of Justice referred to similar objectives:

The under-representation of indigenous peoples and visible minorities on juries is a major concern. This problem has been well-documented for years. We believe that eliminating peremptory challenges will significantly improve the diversity of juries.

( House of Commons Debates , vol. 148, No. 360, 1st Sess., 42nd Parl., November 28, 2018, at p. 24108)

[ 288 ] Reducing discrimination and empanelling more diverse juries represents a pressing and substantial objective. However, the means chosen — abolishing peremptory challenges — is not rationally connected to this objective. Removing peremptory challenges altogether has the effect of preventing any possible discrimination against potential jurors. However, it also has the effect of furthering discrimination against racialized and other marginalized persons, and potentially reducing jury diversity. The evidence before the trial judge indicated that peremptory challenges are used by racialized and other marginalized persons to attempt to empanel more diverse juries (Bayliss Affidavit, at paras. 4 and 15-19; O'Connor Affidavit, at paras. 9-15 ; trial transcripts, A.R., Supp., at pp. 15, 20‑21, 35, 41-42 and 45-46).

[ 289 ] In R. v. King , 2019 ONSC 6386 , 148 O.R. (3d) 618, Goodman J. found the abolition of peremptory challenges overbroad (para. 232). For similar reasons, the abolition of peremptory challenges is not minimally impairing of the right to the benefit of trial by jury. The most obvious alternative was to empower judges to regulate the use of peremptory challenges and ensure that they are not used in a discriminatory way. The interveners the Canadian Muslim Lawyers Association and the Federation of Asian Canadian Lawyers point out that one possible approach to regulating the use of peremptory challenges was raised in the Iacobucci Report (Recommendation 15, at p. 106). That approach originated in Batson v. Kentucky , 476 U.S. 79 (1986), where the Supreme Court of the United States established that a party only needs to raise a prima facie case that the other is using a peremptory challenge for a discriminatory purpose. If they do, then the party exercising the challenge has the burden of demonstrating that they were not doing so for a discriminatory purpose. If the party is unable to justify their challenge, then the judge may seat the struck juror.

[ 290 ] The Batson approach is just one of many possible approaches to limiting the discriminatory uses of peremptory challenges. Courts in Canada have also discussed limits on the exercise of peremptory challenges to ensure that they are not exercised in a discriminatory manner ( R. v. Brown (1999), 73 C.R.R. (2d) 318 (Ont. C.J. (Gen. Div.)); Gayle ). There are also many other ways that Parliament could further diversity on juries. It is well documented that the problems of exclusion of racialized and other marginalized persons happen throughout all stages of empanelling a jury. Parliament could have altered the Code 's juror qualifications or grounds of challenge for cause. It could also have modified the challenge for cause process to create a meaningful system for identifying biased jurors, such as allowing more extensive questioning or questionnaires.

[ 291 ] Given that peremptory challenges provide a great benefit to many accused persons and that their elimination perpetuates discrimination against racialized and other marginalized persons, the deleterious effects outweigh the salutary effects of the legislation.

[ 292 ] Since the abolition of peremptory challenges limits s. 11 (f) and is not a reasonable limit prescribed by law, s. 269 of the Amending Act should be struck down to the extent that it repeals s. 634 of the Code .

V. Temporal Application

[ 293 ] Had I not found that s. 269 of the Amending Act should be struck down in part, I would have found that it should not have been applied to Mr. Chouhan's trial. Indeed, I agree with my colleague Abella J. that the abolition of peremptory challenges affects the accused's substantive rights and can apply only prospectively.

[ 294 ] The Amending Act contains no transitional provision setting out Parliament's intention as to whether s. 269 should apply to criminal prosecutions pending in the system. There is an ancient canon of construction — expressed in the maxims lex prospicit non respicit and nova constitutio futuris formam imponere debet, non praeteritis — whereby courts presume that legislation will have only prospective effect ( Shoile's Case (1608), Jenk. 284, 145 E.R. 205 ; E. Coke, The Second Part of the Institutes of the Laws of England: Containing the Exposition of Many Ancient and Other Statutes (1797), at p. 292; L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. , [1994] 1 A.C. 486 (H.L.), at p. 494 ; Tran v. Canada (Public Safety and Emergency Preparedness) , 2017 SCC 50 , [2017] 2 S.C.R. 289, at paras. 43-45 ). This canon does not apply to changes to legislation that are purely procedural. Purely procedural changes are presumed to apply retrospectively. In order to qualify as purely procedural, a change cannot affect a substantive right: "New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively" ( R. v. Dineley , 2012 SCC 58 , [2012] 3 S.C.R. 272, at para. 10 ; see also Angus v. Sun Alliance Insurance Co. , [1988] 2 S.C.R. 256, at p. 265). Similar language is used in the Interpretation Act , R.S.C. 1985, c. I-21:

43 Where an enactment is repealed in whole or in part, the repeal does not

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed.

[ 295 ] The abolition of peremptory challenges will apply only prospectively if the right to peremptory challenges is a substantive right or if the abolition of peremptory challenges affects a substantive right.

(1) Is the Right to Peremptory Challenges a Substantive Right?

[ 296 ] The respondent argues that the right to peremptory challenges is itself a substantive right (R.F., at para. 78). Some judges have agreed with this position ( R. v. Dorion , 2019 SKQB 266 , at para. 46; R. v. Subramaniam , 2019 BCSC 1601 , 445 C.R.R. (2d) 49, at para. 44 ; R. v. Matthew Raymond (Ruling #4) , 2019 NBQB 203 , 57 C.R. (7th) 1, at paras. 109-10 ). In the words of Saunders J.:

The peremptory challenges provisions of the Code are procedural, in the sense that they prescribe a method to be followed to secure an accused their Charter right to a jury trial. But the right to peremptory challenges itself has been so fundamental to Canadian criminal law, and is so deeply entrenched, that it must be regarded, standing on its own, as a substantive right.

( Subramaniam , at para. 44 )

[ 297 ] I agree with Saunders J. that although peremptory challenges may be procedural in form, this does not mean that they are procedural for the purpose of determining the temporal application of the amendments. A court must consider the function and effect of peremptory challenges, not merely their form ( Dineley , at para. 55 ). In my view, this must be done in light of the principles underlying the courts' reluctance to interpret provisions as applying retrospectively. In R. v. K.R.J. , 2016 SCC 31 , [2016] 1 S.C.R. 906, at paras. 23-25 , Justice Karakatsanis explained these principles:

This constitutional aversion to retrospective criminal laws is in part motivated by the desire to safeguard the rule of law. As Lord Diplock put it, "acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it" ( Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. , [1975] A.C. 591 (H.L.), at p. 638) . . . .

Retrospective laws threaten the rule of law in another way, by undercutting the integrity of laws currently in effect, "since it puts them under the threat of retrospective change" (L. L. Fuller, The Morality of Law (rev. ed. 1969), at p. 39).

Relatedly, retrospective laws implicate fairness. "It is unfair to establish rules, invite people to rely on them, then change them in mid-stream, especially if the change results in negative consequences" (R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 754).

[ 298 ] The doctrine of legitimate expectations demonstrates that these principles can be engaged by rules that are procedural in form. These principles have animated the doctrine of legitimate expectations to protect expectations created by a government official's representations that a particular administrative procedure will be followed ( Canada (Attorney General) v. Mavi , 2011 SCC 30 , [2011] 2 S.C.R. 504, at para. 68 ; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services) , 2001 SCC 41 , [2001] 2 S.C.R. 281, at paras. 22-38 ; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) , [1990] 3 S.C.R. 1170, at pp. 1203-4; D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at para. 7:1720).

[ 299 ] In contrast, the justifications proffered by courts for excluding purely procedural legislation from the presumption against retrospectivity are that there is no vested right in procedure and that procedural changes benefit all ( Application under s. 83.28 of the Criminal Code (Re) , 2004 SCC 42 , [2004] 2 S.C.R. 248, at para. 62 ). In the words of Mellish L.J. in Republic of Costa Rica v. Erlanger , [1876] 3 Ch. D. 62 (C.A.), at p. 69, "[n]o suitor has any vested interest in the course of procedure, nor any right to complain if during the litigation the procedure is changed, provided, of course, that no injustice is done" (cited in Dineley , at para. 54 ). It is the last part of this statement that the majority overlook. Purely procedural legislation is excluded from the presumption against retrospectivity because courts assume that changes to procedures do not cause the same level of unfairness as changes to substantive rights.

[ 300 ] It is quite paradoxical for my colleagues to acknowledge that peremptory challenges are important to the accused but then say that this does not affect their classification as procedural or substantive: "Procedural rights are often no less important than substantive rights from the perspective of the accused person" (para. 98). The principle that procedural changes are presumed to apply retrospectively is premised on the idea that purely procedural changes tend to have neutral or positive effects. The presumption that substantive changes should apply prospectively is premised on the idea that changing substantive rules is unfair, "especially if the change results in negative consequences". My colleagues' strict definition of substantive changes arbitrarily protects some rights whilst simultaneously abandoning others that are of equal importance to the accused. Why would the law make such a distinction?

[ 301 ] When assessed against these underlying principles, peremptory challenges are substantive. The abolition of peremptory challenges is not beneficial for all. It is entirely detrimental to the accused, and its immediate application creates unfairness for those who have relied upon the existence of such challenges to make decisions. The abolition of peremptory challenges changes the legal character or consequences of an accused's prior actions, such as electing to be tried by jury or seeking an adjournment of an earlier trial ( Subramaniam , at para. 45 ). Therefore, the abolition of peremptory challenges is an amendment affecting a substantive right.

(2) If the Right to Peremptory Challenges Is Not a Substantive Right, Does the Abolition of Peremptory Challenges Affect a Substantive Right?

[ 302 ] The second way in which the abolition will apply only prospectively is if it affects a substantive right. My colleagues do not define what it means for an amendment to affect a substantive right. In Dineley , Deschamps J. said that affecting a substantive right includes altering the content or existence of the right, but not merely changing the manner in which the right is asserted or enforced (paras. 10 and 16). Of course, this definition was not intended to be and cannot be exhaustive. Legislation cannot alter the content or existence of a Charter right, but Charter rights are substantive rights (para. 21).

[ 303 ] In Application under s. 83.28 of the Criminal Code (Re) , Iacobucci and Arbour JJ. used the phrase "creates or impinges upon substantive or vested rights" (para. 57). "Impinges" must mean something short of infringement, because the canon would be of no use if it applied only where the Charter was infringed. In Craig , Justice Dawe determined that the word "affect" should be understood in its ordinary and grammatical sense: "One thing is ordinarily said to 'affect' something else if it 'has an effect on' or 'makes a difference' to the second thing" (para. 54 (footnote omitted)). In the case of Charter rights, I agree. "Affect" must be understood in its ordinary and grammatical sense.

[ 304 ] In determining whether the abolition of peremptory challenges affects substantive rights, our starting point should be the Attorney General of Canada's admission that it does and that it should apply only prospectively:

The elimination of peremptory challenges goes beyond altering the manner or mode in which peremptory challenges are exercised and abolishes this procedure entirely. This change is substantive in its affects [sic], not by virtue of eliminating this procedure, but because of its substantive impact on the right to trial by jury.

(I.F., at para. 79)

[ 305 ] In her Charter Statement on the Amending Act , the Attorney General repeated similar concerns: "The elimination of peremptory challenges from the Criminal Code may engage the fair trial rights of the accused as protected by sections 11(d) and 11(f) of the Charter " (Canada, Department of Justice, Charter Statement — Bill C-75: An Act to Amend the Criminal Code, Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts (online)). The Attorney General's view is not binding on us, but it is nonetheless telling.

[ 306 ] The Attorney General's view echoes this Court's view of the important effects that peremptory challenges have on rights in Cloutier . There, Justice Pratte said that the consequences that flow from a legal error by the trial judge must depend on the nature of the rule violated and the importance of the right that the rule is designed to safeguard (p. 715). He went on to say that, in the jury selection process, some rules

are purely procedural, others are designed to protect the personal interests of one or other of the parties, and others have an even more fundamental importance in that they seek to ensure the integrity of the [system] that establishes, as between the parties, a predetermined state of balance. [p. 715]

Recognizing the important rights safeguarded by the accused's right to peremptorily challenge , he found that the legal error of denying an accused even a single peremptory challenge automatically entitles the accused to a new trial because there is " préjudice de droit " (pp. 721 and 724).

[ 307 ] As my colleague Abella J. explains in her reasons, abolishing peremptory challenges affects ss. 11(d) and 11(f) of the Charter by diminishing the accused's ability to meaningfully participate in jury selection. It should be clear from my above analysis that the abolition of peremptory challenges affects the accused's s. 11 (f) right (see also R. v. Lindor , 2019 QCCS 4232 , at paras. 132 , 134, 136-37 and 143-44). However, I wish to explain why it also affects the right to a fair trial by an impartial tribunal.

[ 308 ] Section 11(d) requires both a fair trial and an impartial tribunal. Impartiality under s. 11 (d) considers both actual bias and the appearance of bias and therefore captures the same problems that I discussed in the s. 11 (f) impartiality analysis. Peremptory challenges enable the accused to strike jurors who have subtle and unconscious biases. Again, the fact that such challenges are actually effective at reducing bias is supported by the fact that all three of the new jury selection and trial protections analysed by my colleagues Moldaver and Brown JJ. are designed to protect impartiality.

[ 309 ] The abolition of peremptory challenges also affects the fair trial element of s. 11(d). Peremptory challenges improve an accused's perception of trial fairness because "[t]he availability of peremptory challenges fosters confidence in the adjudicative fairness of the criminal jury trial" ( R. v. Yumnu , 2010 ONCA 637 , 260 C.C.C. (3d) 421, at para. 124 ). My colleagues Moldaver and Brown JJ. "do not deny the value of peremptory challenges from the subjective view of accused persons" (para. 18). However, they try to avoid the repercussions of this state of facts by creating a new test for trial fairness that requires a reasonable person analysis (para. 31).

[ 310 ] This is contrary to this Court's repeated findings that trial fairness takes into account the perspective of the accused. Chief Justice McLachlin made this clear: "At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community" ( R. v. Harrer , [1995] 3 S.C.R. 562, at para. 45 ; see also R. v. O'Connor , [1995] 4 S.C.R. 411, at para. 193 ; R. v. Find , 2001 SCC 32 , [2001] 1 S.C.R. 863, at para. 28 ). So too did Chief Justice Dickson: "The accused, the Crown, and the public at large all have the right to be sure that the jury is impartial and the trial fair" ( R. v. Barrow , [1987] 2 S.C.R. 694 , at p. 710).

[ 311 ] The subjective perceptions of an accused person are not determinative in the s. 11(d) analysis. However, as the above cases demonstrate, an accused person's perceptions are an important component that must be taken into account. We all accept that peremptory challenges increase an accused person's perception of trial fairness. It follows that the abolition of such challenges reduces that perception. Since an accused person's perception of trial fairness is an important component of s. 11 (d), and since the abolition of peremptory challenges diminishes that perception, the abolition of peremptory challenges at least affects s. 11 (d). Therefore, based on the established understandings of trial fairness and impartiality, the abolition of peremptory challenges affects the right guaranteed by s. 11 (d).

[ 312 ] Since peremptory challenges are themselves substantive and their abolition also affects other substantive rights, the Amending Act should not have applied to Mr. Chouhan's trial. It was an error of law to have Mr. Chouhan tried by a jury selected without peremptory challenges. This is not a case where it would be appropriate to apply the curative proviso in either s. 686(1) (b)(iii) or s. 686(1)(b)(iv) of the Code . For either section to apply, our jurisprudence requires that the Crown demonstrate the legal error caused no prejudice to the accused ( R. v. Arradi , 2003 SCC 23 , [2003] 1 S.C.R. 280, at para. 42 ). It cannot do so here. First, the failure to provide Mr. Chouhan with peremptory challenges cannot be harmless or minor. This is not only because the denial of peremptory challenges negatively affects Charter rights, but also because Mr. Chouhan would likely have been tried by a differently composed jury if he had been given his peremptory challenges. In Davey , at para. 55 , Karakatsanis J. said that where "there is a reasonable possibility that the jury would have been differently constituted, this safeguard is undermined. It seems to me that in such circumstances, the presumption that the jury is impartial is displaced." Second, the case against Mr. Chouhan was not so overwhelming that any other verdict would have been impossible to obtain. The evidence against Mr. Chouhan was entirely circumstantial and was contested by him.

[ 313 ] Had I not found that s. 269 of the Amending Act impairs s. 11 (f), I would have found that it affects both s. 11 (d) and s. 11 (f), that it applies only prospectively and that it therefore should not have been applied to Mr. Chouhan's trial.

VI. Conclusion

[ 314 ] Although my colleagues find that the abolition of peremptory challenges is constitutional, they also implicitly recognize that the abolition of peremptory challenges leaves a hole in protections for the accused that must be closed. However, they cannot agree on how to close it and radically splinter on the interpretation of s. 633 of the Code . This division acutely demonstrates the genius of peremptory challenges and the critical role of the accused in jury selection. It bears repeating that this common law institution had survived for seven hundred years . Perhaps now we better understand why.

[ 315 ] While my colleagues try to remedy Parliament's misstep by implementing new jury selection and trial protections, I believe our role is more limited. Where Parliament substantially diminishes the benefit of trial by jury, it violates s. 11 (f). The abolition of peremptory challenges is unconstitutional. If Parliament wants to modify peremptory challenges, then it must do so in a way that does not violate the accused's right to benefit from trial by jury.

[ 316 ] As it stands, the amended s. 633 of the Code is not an adequate replacement for peremptory challenges because it fails to protect the core jury characteristics of impartiality, representativeness and competence in the same way that peremptory challenges have. I agree with Moldaver and Brown JJ. that crafting guidance to trial judges on how and when they can use stand asides to promote diversity is a difficult task. There are many types of diversity, and diversity means different things to different people. However, promoting diversity is not a task that s. 633 clearly requires. Section 633 provides that a trial judge may direct a juror to stand by for reasons of "maintaining public confidence in the administration of justice". While the evidence is clear that peremptory challenges were a tool that racialized and other marginalized persons used to improve the representativeness and competence of juries, I cannot read s. 633 as empowering judges to do the same. Nor am I certain that judges are even capable of performing this role. As I have shown above, "[a] jury that may do for a particular defendant in a particular case may be unsuitable for a different defendant in a different case". Different accused persons will have different views of what a representative jury is and what makes a jury representative. I therefore join Moldaver and Brown JJ., who speak for a majority of the Court in their conclusion that s. 633 cannot be used to promote or enhance the diversity of the petit jury. Again, I would not venture suggestions as to what should replace peremptory challenges. I leave that to Parliament and the provincial assemblies.

[ 317 ] I would order that s. 269 of the Amending Act be struck down to the extent that it repeals s. 634 of the Code . I would also order that Mr. Chouhan receive a new trial, including jury selection complete with peremptory challenges.

Appeal allowed and cross-appeal dismissed, Abella J . dissenting in part and Côté J. dissenting.

Solicitor for the appellant/respondent on cross-appeal: Attorney General of Ontario, Toronto.

Solicitors for the respondent/appellant on cross-appeal: Derstine Penman Criminal Lawyers, Toronto.

Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General of Manitoba: Attorney General of Manitoba, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.

Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta, Calgary.

Solicitor for the intervener the Aboriginal Legal Services Inc.: Aboriginal Legal Services Inc., Toronto.

Solicitors for the intervener Association québécoise des avocats et avocates de la défense: Fréchette Blanchette Dingman, Sherbrooke.

Solicitor for the intervener the David Asper Centre for Constitutional Rights: University of Toronto, Toronto.

Solicitors for the intervener the Canadian Association of Black Lawyers: Brauti Thorning, Toronto.

Solicitors for the interveners the Canadian Muslim Lawyers Association and the Federation of Asian Canadian Lawyers: Stockwoods, Toronto.

Solicitors for the intervener the South Asian Bar Association of Toronto: Goddard Nasseri, Toronto.

Solicitors for the intervener the Advocates' Society: Presser Barristers, Toronto.

Solicitors for the intervener the Defence Counsel Association of Ottawa: Shore Johnston Hyslop Day, Ottawa.

Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Gorham Vandebeek, Toronto.

Solicitors for the intervener Debbie Baptiste: Murphys, Toronto.

Solicitors for the intervener British Columbia Civil Liberties Association: Power Law, Vancouver.

[1] We refer to this case based on the record that came before this Court on appeal, but we do not mandate any specific jury selection procedure on any retrial of Mr. Barton.