Her Majesty the Queen v. Chouhan

[Indexed as: R. v. Chouhan]

Ontario Reports

Ontario Superior Court of Justice

McMahon J.

September 24, 2019

148 O.R. (3d) 53 | 2019 ONSC 5512

Case Summary

Criminal law — Trial — Jury trial — Amendments to Criminal Code that eliminate peremptory challenges and replace lay triers of challenge for cause with trial judge not violating s. 7, s. 11(d) or s. 11(f) of Charter — Amendments procedural in nature and operating retrospectively — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f).

The accused was scheduled to select a jury for his murder trial on the day that amendments to the Criminal Code, R.S.C. 1985, c. C-46 came into effect that eliminated peremptory challenges by repealing s. 634 of the Code and made the trial judge, rather than lay triers, the trier of a challenge for cause. The accused brought an application for a declaration that the amendments violated his rights under ss. 7, 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms and were of no force or effect.

Held, the application should be dismissed.

The elimination of preliminary challenges does not violate s. 7, s. 11(d), or s. 11(f) of the Charter. The accused's rights under s. 11(d) were not infringed as there are five safeguards in place to ensure that a jury is independent and impartial: the representativeness of the jury panel; the randomness of selection of the jury panel and petit jury; challenges for cause; the trial judge's discretion to excuse prospective jurors; and the trial judge's discretion to stand aside prospective jurors. Given the [page54] representativeness of the panel, the randomness of its selection and the ability of either party to challenge the process, the accused's rights under s. 11(f) of the Charter were not violated. The arguments under s. 7 of the Charter based on trial fairness were subsumed in the ss. 11(d) and 11(f) analysis. The amendments do not violate s. 7 of the Charter by being arbitrary, grossly disproportionate or overbroad. The amendments are not arbitrary as one of their key purposes is to make the jury selection process more transparent and promote fairness, and eliminating the ability of both parties to challenge prospective jurors without having to justify the reason makes the jury selection process more transparent. The elimination of peremptory challenges is not grossly disproportionate as it eliminates the ability to remove otherwise qualified prospective jurors based on unspecified hunches, gut feelings and instincts. The elimination of peremptory challenges is not overbroad, as it achieves what it sets out to do: increase transparency and openness in the Canadian jury selection process.

The amendments to s. 640 of the Code substituting the trial judge for lay triers of a challenge for cause does not violate s. 7, s. 11(d) or s. 11(f) of the Charter. The amendments simply change the selection procedure for determining whether a prospective juror can decide the case impartially or not. They do not interfere with the selected jury or its important task. The elimination of lay triers does not usurp the independence of the jury or impact on the jury's impartiality. The amendments increase transparency and the independence of the actual jury. Jury members will no longer have to make determinations in relation to the impartiality of other jurors and, when selected, can concentrate on their primary goal, which is determining the guilt or innocence of the accused.

The peremptory challenge is not a substantive right that stands on its own. The amendments are procedural in nature, and the repeal of s. 634 and the amendments to s. 640 of the Code apply retrospectively.

Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, 366 D.L.R. (4th) 237, 452 N.R. 1, J.E. 2014-21, 312 O.A.C. 53, 303 C.C.C. (3d) 146, 7 C.R. (7th) 1, 297 C.R.R. (2d) 334, 110 W.C.B. (2d) 753, 2013 CCAN para. 10,083, 2014EXP-30; R. v. Kokopenace, [2015] 2 S.C.R. 398, [2015] S.C.J. No. 28, 2015 SCC 28, 384 D.L.R. (4th) 579, 471 N.R. 1, J.E. 2015-894, 332 O.A.C. 1, 321 C.C.C. (3d) 153, [2015] 3 C.N.L.R. 181, 20 C.R. (7th) 1, 336 C.R.R. (2d) 190, 121 W.C.B. (2d) 233, EYB 2015-252286, 2015 CCAN para. 10,029, 2015EXP-1614; R. v. Lako, [2019] O.J. No. 4666, 2019 ONSC 5362 (S.C.J.), consd

Other cases referred to

Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, 2000 SCC 44, 190 D.L.R. (4th) 513, 260 N.R. 1, [2000] 10 W.W.R. 567, J.E. 2000-1872, 141 B.C.A.C. 161, 81 B.C.L.R. (3d) 1, 23 Admin. L.R. (3d) 175, 3 C.C.E.L. (3d) 165, [2000] CLLC para. 230-040, 77 C.R.R. (2d) 189, 99 A.C.W.S. (3d) 1024, REJB 2000-20288, 38 C.H.R.R. D/153; Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, [2015] S.C.J. No. 5, 2015 SCC 5, 384 D.L.R. (4th) 14, 468 N.R. 1, [2015] 3 W.W.R. 425, J.E. 2015-245, 366 B.C.A.C. 1, 66 B.C.L.R. (5th) 215, 320 C.C.C. (3d) 1, 17 C.R. (7th) 1, 327 C.R.R. (2d) 334, 252 A.C.W.S. (3d) 74, 120 W.C.B. (2d) 561, EYB 2015-247729, 2015 CCAN para. 10,011, 2015 CHFL para. 15,727, 2015EXP-471; Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, 68 D.L.R. (3d) 716, 9 N.R. 115; R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3, 87 D.L.R. (4th) 449, 133 N.R. 1, J.E. 92-189, 51 O.A.C. 161, 69 C.C.C. (3d) 481, 10 C.R. (4th) 257, 7 C.R.R. (2d) 193, 15 W.C.B. (2d) 81, 1992 CCAN para. 10,001; R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. 84, 45 D.L.R. (4th) 487, 81 N.R. 321, J.E. 88-71, 87 N.S.R. (2d) 271, 38 C.C.C. (3d) 193, 61 C.R. (3d) 305, 3 W.C.B. (2d) 205, [page55] 1987 CCAN para. 10,035; R. v. Brown, 2006 42683 (ON CA), [2006] O.J. No. 5077, 219 O.A.C. 26, 215 C.C.C. (3d) 330, 45 C.R. (6th) 22, 72 W.C.B. (2d) 284 (C.A.); R. v. Dineley, [2012] 3 S.C.R. 272, [2012] S.C.J. No. 58, 2012 SCC 58, 353 D.L.R. (4th) 236, 436 N.R. 59, J.E. 2012-2080, 297 O.A.C. 50, 290 C.C.C. (3d) 190, 96 C.R. (6th) 359, 268 C.R.R. (2d) 339, 34 M.V.R. (6th) 1, 104 W.C.B. (2d) 439, 2012 CCAN para. 10,062, 2012EXP-3885; R. v. Dowholis (2016), 133 O.R. (3d) 1, [2016] O.J. No. 5590, 2016 ONCA 801, 134 W.C.B. (2d) 111, 341 C.C.C. (3d) 443; R. v. Find, [2001] 1 S.C.R. 863, [2001] S.C.J. No. 34, 2001 SCC 32, 199 D.L.R. (4th) 193, 269 N.R. 149, J.E. 2001-1099, 146 O.A.C. 236, 154 C.C.C. (3d) 97, 42 C.R. (5th) 1, 82 C.R.R. (2d) 247, 49 W.C.B. (2d) 595; R. v. Généreux, 1992 117 (SCC), [1992] 1 S.C.R. 259, [1992] S.C.J. No. 10, 88 D.L.R. (4th) 110, 133 N.R. 241, J.E. 92-287, 70 C.C.C. (3d) 1, 8 C.R.R. (2d) 89, 15 W.C.B. (2d) 84, 1992 CCAN para. 10,005; R. c. Guérin, 1984 3533 (QC CA), [1984] J.Q. no 696, J.E. 84-483, [1984] C.A. 305, 13 C.C.C. (3d) 231 (C.A.); R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509, [1991] S.C.J. No. 21, 122 N.R. 241, J.E. 91-517, 73 Man. R. (2d) 161, 63 C.C.C. (3d) 193, 3 C.R. (4th) 129, 12 W.C.B. (2d) 517, 1991 CCAN para. 10,008; R. v. Valente, 1985 25 (SCC), [1985] 2 S.C.R. 673, [1985] S.C.J. No. 77, 24 D.L.R. (4th) 161, 64 N.R. 1, 14 O.A.C. 79, 23 C.C.C. (3d) 193, 49 C.R. (3d) 97, 19 C.R.R. 354, 37 M.V.R. 9, 15 W.C.B. 326, 1985 CCAN para. 10,032; R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, [1998] S.C.J. No. 49, 159 D.L.R. (4th) 493, 226 N.R. 162, [1999] 4 W.W.R. 711, J.E. 98-1315, 107 B.C.A.C. 1, 56 B.C.L.R. (3d) 390, 124 C.C.C. (3d) 481, [1998] 3 C.N.L.R. 257, 15 C.R. (5th) 227, 52 C.R.R. (2d) 189, 38 W.C.B. (2d) 295, 1998 CCAN para. 10,034

Statutes referred to

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

Constitution Act, 1982, Sch. B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52(1)

Criminal Code, R.S.C. 1985, c. C-46, ss. 629(1), 632 [as am.], 633 [as am.], 634 [rep.], 638(1) [as am.], 640 [as am.], (2) [as am.]

Authorities referred to

Wilson-Raybould, Jody, "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", 2nd reading, House of Commons Debates, 42-1, No. 300 (May 24, 2018)

APPLICATION for a declaration of unconstitutionality.

Andreea Baiasu, Michally Iny and Andrea MacGillivray, for Crown.

Dirk Derstine and Tania Bariteau, for accused.

[1] McMAHON J.: — On September 19, 2019, the accused, Mr. Chouhan, was scheduled to select a jury to decide whether he was guilty or not guilty of first-degree murder. On the same day, the amendments to the Criminal Code, R.S.C. 1985, c. C-46 dealing with the procedure for the selection of criminal juries came into force.

[2] In essence, the Bill C-75 amendments changed the procedure for the selection of the jury in three material ways:

(1) Where either party challenges for cause, the trial judge will be the one to determine, based upon the answer given, [page56] whether the prospective juror is likely to decide the case impartially. The use of lay triers to make this determination has been eliminated.

(2) The amendments eliminate the ability of the Crown and the defence to challenge prospective jurors by means of peremptory challenges.

(3) The trial judge's discretion to stand aside a juror has been expanded to allow the trial judge to stand aside a juror for the purpose of maintaining public confidence in the administration of justice.

[Emphasis added]

[3] Mr. Chouhan submits that eliminating his ability to peremptorily challenge prospective jurors breaches his constitutional rights under ss. 11(d), (f) and 7 of the Canadian Charter of Rights and Freedoms.

[4] Mr. Chouhan also submits that allowing the trial judge to make the determination on the challenge for cause question, and the elimination of the role of triers, affects the independence of the jury and breaches Mr. Chouhan's ss. 11(d), (f) and 7 rights under the Charter.

[5] He seeks the following relief:

(1) An order declaring that the repeal of s. 634 of the Criminal Code is inconsistent with ss. 7, 11(d) and (f) of the Charter and of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982, Sch. B to the Canada Act 1982 (U.K.), 1982, c. 11.

(2) An order declaring that the amendment to s. 640 of the Criminal Code is inconsistent with ss. 7, 11(d) and (f) of the Charter and of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982.

(3) In the alternative, an order declaring that questions about the presumption of innocence and the burden of proof be read into s. 640 of the Criminal Code to be asked to the prospective jurors during the challenge for cause.

(4) Such further and other orders as counsel may request and this honourable court may grant.

(5) In oral argument, it was submitted even if I should find the amendments constitutional they do not apply retrospectively.

[6] The constitutional questions to be determined on this application are as follows:

(1) Does the repeal of s. 634 of the Criminal Code (the peremptory challenge) violate any or all of ss. 11(d), (f) and 7 of the Charter? [page57]

(2) Do the amendments to s. 640 of the Criminal Code (eliminating lay triers and requiring the judge to make the determination on the challenge for cause) violate any or all of ss. 11(d), (f) and 7 of the Charter?

(3) If one or more of the above two questions is answered in the affirmative, can the amendments to the Criminal Code be saved under s. 1 of the Charter?

(4) If the amendments to the Criminal Code cannot be saved under s. 1 of the Charter, can the repeal of s. 634 and the amendments to s. 640 of the Criminal Code be of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982?

(5) Mr. Chouhan submits, in the alternative, if the amendments to s. 640 of the Criminal Code are constitutional or if they are unconstitutional but saved under s. 1 of the Charter, can there be questions asked to the prospective jurors regarding the presumption of innocence and the burden of proof read into s. 640 of the Criminal Code?

[7] The relevant Charter provisions. Section 7 of the Charter provides:

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

Sections 11(d) and (f) of the Charter provide:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment[.]

Section 1 of the Charter provides:

1. 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.

Section 52(1) of the Constitution Act, 1982 provides:

52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [page58]

[8] The first key question in this application is the determination of whether any or all of the amendments to the jury selection process infringe Mr. Chouhan's s. 11(d) rights.

[9] If any or all of the amendments infringe Mr. Chouhan's right to be tried in a fair and public hearing by an independent and impartial jury, then Mr. Chouhan's s. 11(d) rights have been violated. By implication on such a finding, his ss. 7 and 11(f) rights would also be infringed.

The Applicant's Position on the Elimination of the Peremptory Challenge Violating Mr. Chouhan's Section 11(d) Rights

[10] It is the position of the applicant that the elimination of the peremptory challenge infringes on the accused's right to be tried by an independent and impartial jury.

[11] It is submitted that it denies the accused the ability to decide who will be on his jury. It denies the accused the ability to challenge people the accused subjectively believes will not be impartial. It denies the accused the ability to use peremptory challenges to obtain a jury that has some members who are of a similar racial or cultural background. It is submitted the lack of peremptory challenge will erode the accused's confidence that the jury is impartial and that he will receive a fair trial. Further, it denies counsel the ability to challenge prospective jurors that counsel believes will not be able to judge the case impartially or would not be favourable to the accused's case.

[12] In essence, it is argued without the peremptory challenge, the accused is denied his s. 11(d) right to be tried by a fair, independent and impartial jury.

[13] It is argued that the peremptory challenge has been part of the English common law in the jury selection process since the time of the Magna Carta. I would note, however, that England abolished the peremptory challenge over 30 years ago. Many other countries in the English Commonwealth have restricted the use of or eliminated the peremptory challenge. I recognize most of those countries do not have a written constitution that codifies the fundamental rights developed through the common law.

[14] In support of the applicant's position, counsel has filed affidavits from two highly respected and experienced criminal barristers, Mr. Liam O'Connor and Mr. David Bayliss. Both Mr. O'Connor and Mr. Bayliss have practised criminal law in Toronto, the Greater Toronto Area and other parts of Ontario for more than 25 years.

[15] They both filed affidavits which are part of the record. They also testified, expanding on the manner in which they [page59] exercise their peremptory challenges. They discussed their experience that the peremptory challenge procedure is critical. It provides an avenue whereby the racialized accused can have some confidence he is being tried by a fair, independent and impartial jury.

[16] The Crown quite fairly and reasonably declined to cross-examine either Mr. O'Connor or Mr. Bayliss. Nor did the Crown challenge their evidence and submissions.

[17] I find the evidence of both barristers to be both credible and compelling in relation to the manner in which they use the peremptory challenge.

[18] Both represent a high percentage of clients from different racial and cultural backgrounds, many of whom have been marginalized with limited education and employment. On their evidence, which I accept, many of their clients have a great level of distrust, not only for the police, but for the justice system, including the judiciary and our jury process.

[19] Both Mr. O'Connor and Mr. Bayliss testified that their clients are active participants in the peremptory challenge process. The peremptory challenge process permits them to challenge potential jurors that the accused subjectively believes may not be impartial. Many of these challenges are exercised based on the appearance and demeanour of the prospective juror. Often it is based on how the prospective juror looks upon the accused during the procedure.

[20] Further, both testified the peremptory challenge process allows the accused an opportunity to select jurors who are from a similar racial or cultural background. On the issue of challenging for impartiality, Mr. Bayliss said the following, at paras. 12-14 in his affidavit:

12. . . . on many occasions, my clients had pointed out that a proposed juror has given them a look of disgust or disdain or would not make eye contact with them at all, which has led them to believe that the jury member is biased against them.

13. . . . sometimes I do not agree with the perception, but I follow instructions to exercise a peremptory challenge because having a juror the client is uncomfortable with continues to be a source of worry to the client throughout the trial.

14. . . . the peremptory challenge process allows me to remove prospective jurors who seem partial without the need to justify or defend the decision. This is necessary because particularly without a challenge for cause, there is no articulable reasons for the removal of the prospective juror who appears biased against the client, other than the prospective juror's demeanour and the client's perception. The client's perception of bias is often quite strong. [page60]

[21] Further, on the issue of using peremptory challenges, both Mr. O'Connor and Mr. Bayliss indicate that to increase an accused's level of confidence in the impartiality of the jury, they often will use peremptory challenges to remove non-racialized individuals so that similarly racialized individuals can be selected later in the panel. Mr. O'Connor stated the proposition as follows, in paras. 11-12:

11. . . . if my client is a racialized individual, I try to choose some prospective jury members who are similarly racialized individuals, so that my client believes that the jury's representative. Other times, I have rejected prospective jury members who my client may feel are representative of their background as a result of my personal knowledge of the facts and circumstances of the particular case. Without a full knowledge of the facts and circumstances of a case, the presiding judge would not be able to make the same choice as I or my client.

12. . . . My racialized clients consider a representative jury to be one in which the jury has members who are like they are.

[22] It is the position of the applicant that with the elimination of the peremptory challenge, an accused will not believe he is being tried by an impartial jury and hence justice will not be served.

[23] It is for this reason Mr. Derstine urges me to conclude that when determining whether Mr. Chouhan's s. 11(d) rights have been violated, I should make the determination through the lens of a modified-subjective test. Counsel urges that the test should be whether a reasonable person of the same age, racial and cultural background as the accused would conclude that the abolition of the peremptory challenge would infringe on the accused's right to a fair trial by an independent and impartial jury.

[24] Further, even if I apply a reasonable person objective test, the abolition of the peremptory challenge would lead to the conclusion the accused's s. 11(d) rights have been violated. The reasonable informed person could not be confident the jury was impartial.

[25] In examining the arguments of the applicant, it is necessary to determine what are the rights under s. 11(d) and how have the courts interpreted the section.

What Protection Is Afforded an Accused Under Section 11(d) of the Charter?

(1) To be presumed innocent until proven guilty.

(2) To have a fair and public hearing.

(3) To be tried by an independent and impartial tribunal. [page61]

What Test Should Be Employed to Determine Whether There Is A Breach of Section 11(d)?

[26] In determining whether s. 11(d) rights have been violated, the Supreme Court of Canada has applied the traditional test: would a reasonable person who is fully informed of the circumstances have a reasonable apprehension that the jury is biased?

[27] The position of the applicant that I should apply a modified-subjective test is not supported by the direction of the Supreme Court of Canada. In R. v. Kokopenace, [2015] 2 S.C.R. 398, [2015] S.C.J. No. 28, 2015 SCC 28, the court stated the following, at para. 49:

To determine whether a tribunal is impartial, the question is whether a reasonable person, fully informed of the circumstances, would have a reasonable apprehension of bias: Valente v. The Queen, 1985 25 (SCC), [1985] 2 S.C.R. 673, at pp. 684-91; R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, at pp. 101, 111-12 and 147-48.

[28] The test I must employ in determining whether the elimination of the peremptory challenge violates Mr. Chouhan's s. 11(d) rights is whether a reasonable person, fully informed of the circumstances, would have a reasonable apprehension of bias.

[29] It is also important to review how the Supreme Court of Canada and appellate courts have interpreted s. 11(d) when dealing with the jury selection process.

Proportional Representation on the Jury

[30] The Supreme Court of Canada has made it quite clear that though each accused is entitled to a representative jury panel, the accused is not entitled to a petit jury which reflects the proportionality of the population. Nor does the accused have a right to have the actual jury made up of members of the same group, race or gender as the accused. Equally, the Crown does not have a right to have a jury that reflects the same group, race or gender of any complainant. The law in Canada is clear: jury representativeness is obtained through the process of random selection from a broad-based jury panel, not through the actual composition of the petit jury.

[31] In Kokopenace, all of the judges, including those who released concurring and dissenting reasons, agreed that the actual petit jury need not be representational.

[32] Justice Cromwell, writing the dissent, stated the following, at paras. 231-232:

The right to a representative jury roll therefore does not imply any right to be tried by a petit jury which proportionally represents the population. Nor is there any right to be tried by a jury whose members belong to the same group, race or gender as does the accused . . . [page62]

Representativeness as we understand it is thus largely dependent on the jury roll from which potential jurors are selected because a random selection of persons from that roll is deemed to be sufficiently representative.

[33] In R. v. Brown, 2006 42683 (ON CA), [2006] O.J. No. 5077, 215 C.C.C. (3d) 330 (C.A.), the accused was convicted of first-degree murder. The accused was black. The trial judge elected to take the groups of randomly selected prospective jurors and manipulate the groups so those groups with the greatest amount of racial diversity would be picked. In essence, he interfered with the random selection process which is to guarantee representativeness.

[34] Rosenberg J.A. stated the following, at para. 22:

My only concern with the process adopted by the trial judge is his decision to determine the order in which the groups of twenty-five would return by the presence of persons of colour in the group. This process did not give the Crown any unfair advantage but, arguably, it violated s. 631(4). I also do not consider it to be an advisable procedure and it should not be used in the future. There are an almost infinite number of characteristics that one might consider should be represented in the petit jury: age, occupation, wealth, residency, country of origin, colour, sex, sexual orientation, marital status, ability, disability and so on. It would be impossible to ensure this degree of representation in any particular jury.

[35] This case reaffirms that the fairness of an impartial and representative jury is secured through the random selection process, not the specific racial, cultural or other characteristic of the petit jury. Further, the case makes it clear the trial judge should not interfere in the process. These principles are reaffirmed by the Supreme Court of Canada in Kokopenace.

[36] Neither party is entitled to a favourable jury. In R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509, [1991] S.C.J. No. 21, L'Heureux-Dubé J. stated the following [at p. 524 S.C.R.]:

The modern jury was not meant to be a tool in the hands of either the Crown or the accused and indoctrinated as such through the challenge procedure, but rather was envisioned as a representative cross-section of society, honestly and fairly chosen. Any other vision may run counter to the very rationales underlying the existence of such a body.

Independence and Impartiality

[37] The Supreme Court of Canada in R. v. Valente, 1985 25 (SCC), [1985] 2 S.C.R. 673, [1985] S.C.J. No. 77, at p. 689 S.C.R., stated the following:

[T]he test for independence for purposes of s. 11(d) of the Charter should be, as for impartiality, whether the tribunal may be reasonably perceived as independent. Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. [page63]

[38] The Supreme Court of Canada has repeatedly adopted this test: see R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3, at p. 147 S.C.R.; Kokopenace, at para. 49.

[39] It is also important to note that the peremptory challenge is not an unlimited right. Each side has a limited number of challenges depending on the seriousness of the offence. Unlike challenge for cause, which is unlimited, the peremptory challenge can be exhausted and the party whose challenges have been exhausted has no ability to challenge further.

The Presumption of Judicial Impartiality

[40] Every juror or prospective juror is presumed to be impartial: Kokopenace, at para. 53.

[41] In R. v. Dowholis (2016), 133 O.R. (3d) 1, [2016] O.J. No. 5590, 2016 ONCA 801, Benotto J.A. summarized the presumption and test as follows [at para. 18]:

A juror is a judge. There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption. Judicial impartiality has been called "the key to our judicial process".

[Citation omitted]

[42] In order to rebut the presumption of impartiality, a stringent test has been developed by the Supreme Court of Canada. It was first articulated by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, at p. 394 S.C.R., and has been repeatedly endorsed:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information . . . [T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

[43] In determining whether a reasonable person fully informed of the circumstances would have a reasonable apprehension of bias because of the elimination of the peremptory challenge, one must look at the safeguards now in place to ensure that the jury is both independent and impartial. Presently, there are five safeguards in place to ensure a jury is independent and impartial:

(1) representativeness of the jury panel;

(2) randomness of selection of the jury panel and petit jury;

(3) challenge for cause; [page64]

(4) trial judge's discretion to excuse prospective jurors; and

(5) trial judge's discretion to stand aside jurors.

Representativeness

[44] If a jury panel has been randomly selected and is representative of the community, it is a strong guarantor of impartiality.

[45] In Kokopenace, Moldaver J. said the following at, paras. 46, 50 and 51:

Consequently, in defining representativeness as it pertains to the jury roll, the focus is on the process, not the result. If the state has used an adequate process, the jury roll will necessarily be representative even if particular subsets of the population have few individuals on the jury roll.

Representativeness is an important guarantor of impartiality: R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, at para. 46. There are two potential problems with representativeness that may impact on impartiality. First, the deliberate exclusion of a particular group would cast doubt on the integrity of the process and violate s. 11(d) by creating an appearance of partiality: Church of Scientology, at p. 118. Second, even when the state has not deliberately excluded individuals, the state's efforts in compiling the jury roll may be so deficient that they create an appearance of partiality: see, e.g., R. v. Nahdee, 1993 17034 (ON SC), [1994] 2 C.N.L.R. 158 (Ont. Ct. (Gen. Div.)). However, where neither form of conduct exists, a problem with representativeness will not violate s. 11(d).

One important clarification about the relationship between representativeness and impartiality is in order.The narrow way in which representativeness is defined in Canadian jurisprudence means that impartiality is guaranteed through the process used to compile the jury roll, not through the ultimate composition of the jury roll or petit jury itself. A jury roll containing few individuals of the accused's race or religion is not in itself indicative of bias.

[46] It should be noted that if either party wishes to challenge the representativeness of the jury panel, they have the legal remedy of challenging the array pursuant to s. 629(1) of the Criminal Code.

Randomness

[47] The second guarantor of impartiality is the randomness of the selection process: see Kokopenace. Not simply of the jury panel itself, but the jury selection process for the petit jury. No one gets to choose the order of prospective jurors; the process is completely random.

Challenge for Cause

[48] The third safeguard to the independence and impartiality of the jury is the challenge for cause process, as set out in s. 638(1) of the Criminal Code. The new provisions allow counsel to [page65] challenge on many articulated grounds, including that the prospective juror is not impartial. The burden is on the person challenging impartiality to establish a realistic potential for jury partiality based on (1) a widespread bias in the community; and (2) the possibility that some jurors may be incapable of setting aside the bias, despite trial safeguards, to render an impartial decision: see R. v. Find, [2001] 1 S.C.R. 863, [2001] S.C.J. No. 34, 2001 SCC 32. Establishing these elements provides an evidentiary basis for the challenge. If the basis of the concern is widely known, the court is entitled to take judicial notice of it and allow the challenge for cause procedure: see R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, [1998] S.C.J. No. 49.

[49] While this safeguard is in place to ensure the impartiality of each juror, it must be remembered that there is a strong presumption each juror will do their duty to decide the case without bias, sympathy or prejudice. It is presumed they will only decide the case on the evidence and the trial judge's instructions on the law.

[50] As a matter of law, there is a strong presumption of juror impartiality: Kokopenace, at para. 53.

[51] As stated above, in Dowholis, Benotto J.A. found that "[t]here is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption": at para. 18.

[52] While there is a strong presumption a juror or potential juror is impartial, it certainly is a rebuttable presumption. It is for this reason either party has the ability to challenge an individual for cause. Regardless of whether the judge takes judicial notice of the basis for such challenge, or counsel produces an evidentiary foundation to support such challenge, there is a procedure in place where there is sufficient evidence to challenge each potential juror for bias. What is important is that the party seeking to challenge for cause must be able to provide reasons or evidence for doing so.

Judge's Discretion to Excuse Prospective Jurors

[53] The fourth safeguard is the ability of the trial judge to excuse a potential juror because of

(a) personal interest in the matter to be tried;

(b) a relationship with the judge presiding over the jury selection process, the judge before whom the accused is to be tried, the prosecutor, the accused, counsel for the accused, or a prospective witness; or [page66]

(c) personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that juror to be excused: Criminal Code, s. 632.

The Judge's Discretion to Stand Aside Prospective Jurors

[54] The fifth safeguard is the judge's discretion to stand aside a juror. The new amendments not only include for personal hardship, or any other reasonable cause, but specifically add "maintaining public confidence in the administration of justice". It appears that if either party can articulate reasons why a prospective juror would not be impartial, the judge would clearly have the ability to stand aside a prospective juror to maintain public confidence in the administration of justice. This process would be transparent and open. It also may be reviewable. It provides another degree of transparency and fairness to ensure the jury is impartial.

[55] It is against these safeguards that I must determine whether the elimination of the peremptory challenge would cause the reasonable person aware and fully informed of the circumstances to have a reasonable apprehension of bias.

[56] On the evidence of the two highly respected barristers, they exercise their peremptory challenges often based on a feeling or instinct held by their clients or by themselves. The same holds true for the Crown in their exercise of the peremptory challenge. Most of the time, just like the Crown Attorney, they would be unable to articulate a rational reason for doing so other than demeanour and appearance.

[57] No doubt in their experience, there are times when they would be able to articulate a rational reason for seeking to have a person challenged. If there is an articulable reason as to why a person would not be independent or impartial, there is a remedy under the procedure in ss. 632 and 633 of the Criminal Code.

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

[59] A reasonable person, fully informed of the safeguards available in our selection process for Canadian jurors, could not reach the conclusion that an accused's right to an independent and impartial jury would be violated by the elimination of the peremptory challenge. It is for these reasons that the repeal of s. 634 does not violate the accused's constitutional rights pursuant to s. 11(d). [page67]

Section 11(f)

[60] In determining the difference between s. 11(d) and (f), I am guided again by the direction of Moldaver J. in Kokopenace, at para. 55:

In contrast to its limited role in s. 11(d), the role of representativeness in s. 11(f) is broader. Representativeness not only promotes impartiality, it also legitimizes the jury's role as the "conscience of the community" and promotes public trust in the criminal justice system: Sherratt, at pp. 523-25; Church of Scientology, at pp. 118-20. Representativeness is thus a necessary component of an accused's s. 11(f) right to a jury trial.

[61] It is clear that s. 11(f) focuses on the representativeness of the jury panel. Justice Moldaver stated the following, at para. 58: "For these reasons, a problem with representativeness will violate s. 11(f) even if it is not so serious as to undermine impartiality. That said, if a problem with representativeness does undermine impartiality, it will violate both ss. 11(d) and 11(f)."

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

Section 7

[63] The applicant submits that the abolition of the peremptory challenge negatively impacts on Mr. Chouhan's liberty and security of the person in a manner contrary to the principles of fundamental justice.

[64] This argument is based on the fact the accused is entitled to a fair trial by an independent and impartial tribunal. The elimination of the peremptory challenge has infringed his s. 7 security of the person rights in a manner contrary to the principles of fundamental justice. It is submitted he is not getting a fair trial by an impartial jury.

[65] The applicant also argues that the legislation is arbitrary, overbroad and grossly disproportionate. In the applicant's factum, he sets out his position, at paras. 195-197:

195. The repeal of the peremptory challenge is arbitrary because the purpose of the law was to guarantee the representativeness of the jury. The effect of the law is that the accused now perceives the jury selection process and therefore the trial as unfair. [page68]

196. The repeal of the peremptory challenge is overbroad because the total elimination of the peremptory challenges will not result in a representative jury and prevent the discrimination of minority juries.

197. The repeal of the peremptory challenge is grossly disproportionate because the impact on the accused life, liberty and security of the person caused by having an unfair trial by a partial jury cannot be rationally supported. The representativeness of the jury does not justify the depletion of the accused's right to a fair trial.

[66] The first argument dealing with trial fairness is based on an argument that without the peremptory challenge, the accused is not being tried by an independent and impartial jury.

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

[68] In R. v. Généreux, 1992 117 (SCC), [1992] 1 S.C.R. 259, [1992] S.C.J. No. 10, the Supreme Court of Canada was dealing with a constitutional challenge to the independence of the General Court Martial. The challenge there was framed as a breach of both s. 11(d) and s. 7.

[69] The court concluded as follows, at p. 310 S.C.R.:

The appellant places reliance upon both s. 11(d) and s. 7 of the Charter. However, the s. 7 submission can be dealt with very briefly. In Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, this Court decided that ss. 8 to 14 of the Charter, the "legal rights", are specific instances of the basic tenets of fairness upon which our legal system is based, and which are now entrenched as a constitutional minimum standard by s. 7. Consequently, in the context of the appellant's challenge to the independence of the General Court Martial before which he was tried, s. 7 does not offer greater protection than the highly specific guarantee under s. 11(d). I do not wish to be understood to suggest by this that the rights guaranteed by ss. 8 to 14 of the Charter are exhaustive of the content of s. 7, or that there will not be circumstances where s. 7 provides a more compendious protection than these sections combined. However, in this case, the appellant has complained of a specific infringement which falls squarely within s. 11(d), and consequently his argument is not strengthened by pleading the more open language of s. 7.

[70] I must, however, still determine whether under s. 7 the legislation breaches the accused's rights as being arbitrary, grossly disproportionate and/or overbroad.

[71] In dealing with whether the legislation is arbitrary, overbroad or grossly disproportionate, and offends the right to be dealt with in accordance with the principles of fundamental justice, the applicant makes the following arguments.

[72] It is argued the abolition of the peremptory challenge is arbitrary, overbroad and grossly disproportionate. Legislation is arbitrary, thereby violating the principles of fundamental justice, if it limits a person's right and bears no relation to, or is inconsistent with, the objective that lies behind the legislation: [page69] Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, at para. 94. It is argued that the whole purpose of eliminating peremptory challenges was to deal with the discrimination against Indigenous individuals on a jury selection process in one case. It is submitted there is no evidence that there is a significant problem of parties challenging racialized or marginalized people or abusing the jury selection process to get a favourable jury.

[73] Before discussing the purpose of the challenged provision and determining whether it is arbitrary, overbroad or grossly disproportionate, it is worth pausing to note that the applicant has argued that accused persons' security of the person is specifically impacted by the elimination of peremptory challenges. However, the applicant has not described how the impacts on the accused constitute "state interference with bodily integrity" or "serious state-imposed psychological stress": Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, 2000 SCC 44, at para. 55. Notwithstanding, the applicant's liberty interest is clearly implicated in these criminal proceedings.

[74] Much has been said in oral argument about the genesis for the challenged provision and its purpose. Much also has been said about various comments made inside and outside of the House of Commons and the Senate. Further, much has been said about things said in interviews, tweets and posts, some of which is inconsistent with the common law as set down in Kokopenace. Hansard and statements made by the Minister of Justice are but one factor to look at in interpreting the statute but are not determinative.

[75] It would appear the genesis of looking at the jury selection process was a trial in western Canada. The deceased was an Indigenous man and there was a concern that peremptory challenges were used to challenge all potential jurors who were Indigenous.

[76] On the evidence before me, this clearly was the impetus for Parliament to review the jury selection process. What is important is not what the impetus for review was, but what Parliament crafted and any insight as to what Parliament's intention was.

[77] Bill C-75 was introduced by the Minister of Justice. She described the purpose behind the jury selection amendments as follows ["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", 2nd reading, House of Commons Debates, 42-1, No. 300 (May 24, 2018), at 19631 (Hon. Jody Wilson-Raybould)]: [page70]

Reforms in this area are long overdue. 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. This bill proposes that Canada join countries like England, Scotland, and Northern Ireland in abolishing them.

To bring more fairness and transparency to the process, the legislation would also empower a judge to decide whether to exclude jurors challenged for cause by either the defence or prosecution. The legislation will strengthen the power of judges to stand aside some jurors in order to make room for a more diverse jury that will in turn promote confidence in the administration of justice. Courts are already familiar with the concept of exercising their powers for this purpose.

I am confident that the reforms will make the jury selection process more transparent, promote fairness and impartiality, improve the overall efficiency of our jury trials, and foster public confidence in the criminal justice system.

[78] It would appear to me that one of the key purposes of the legislation is to make the criminal jury selection process more open and transparent. It simply eliminates the ability to remove prospective jurors because of their physical appearance, or on a hunch or gut instinct. Counsel need articulable reasons as to why a juror would not be impartial or why they need to be excluded to maintain public confidence in the administration of justice.

[79] I cannot conclude that the purpose of the legislation, including in relation to the removal of peremptory challenges, was to guarantee the representativeness of the jury. When examining the legislation itself, it would appear that one of the key purposes was to make the jury selection process more transparent and promote fairness. Eliminating the ability of both parties to challenge prospective jurors, without having to justify the reason, makes the jury selection process more transparent. It is clear from the amendment to s. 633 that if the individual party can articulate a reason why a prospective juror is not impartial or a reason why the juror needs to be stood aside to maintain the public's confidence in the administration of justice, then the judge can do so. This results in an increased level of accountability and openness. I cannot conclude that the legislation is arbitrary in nature on this basis. The effect on the parties is rationally connected to the legislation's purpose: Canada v. Bedford, at para. 111; Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, [2015] S.C.J. No. 5, 2015 SCC 5, at para. 83.

[80] The applicant also submits that the repeal of the peremptory challenge is grossly disproportionate. To be grossly disproportionate, the laws effect on the life, liberty and security of the person must be so grossly disproportionate to the law's purpose that it cannot be rationally supported: Canada v. Bedford, at para. 120; Carter v. Canada, at para. 89. It is submitted the [page71] impact it has on the accused's life, liberty and security of the person caused by having an unfair trial by a partial jury cannot be rationally supported.

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

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

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

Does the Replacement of the Lay Triers with the Trial Judge on the Challenge for Cause Procedure Breach the Accused's Sections 11(d), (f) and/or 7 Rights?

[84] The applicant submits that the new amendments eliminating the triers from the challenge for cause procedure and requiring the trial judge to make the determination "completely eradicate the independence of the jury".

[85] It is submitted that the amendments usurp the function of the jury and adversely affect both its independence and its impartiality.

[86] Further, it is also submitted that the rotating trier procedure ensures the jury itself has an important role in the selection process. [page72]

[87] It is submitted and on the evidence of the two experienced barristers that many racialized and/or marginalized accused persons feel the judge is part of the state and works with the Crown. It is argued that their confidence in the impartiality of the jury would be eroded if the trial judge were to determine the challenge for cause.

[88] On the issue of independence of the jury, respectfully, I think the applicant conflates the role of the jury in deciding the guilt or innocence of an accused at trial, with the procedure for selecting an independent and impartial jury. The jury that is actually trying an accused must, constitutionally, be both impartial and independent. There is nothing in the Bill C-75 amendments that touch on this important cornerstone of our criminal justice system. Once a jury is empaneled, the need to protect its independence is critical.

[89] The amendments simply change the selection procedure for determining whether a prospective juror can decide the case impartially or not. It does not interfere with the selected jury or its important task.

[90] In examining the arguments of the applicant, it should be noted that in the challenge for cause process, the jury is not selecting its own membership. The two triers are simply making a determination as to whether the challenge is true or not; whether the prospective juror is acceptable or not acceptable. They make their determination based upon the evidence they hear from the prospective juror and the instructions on the law provided by the trial judge. It also is important to note that if the accused applies for static triers, the determination is made by two individuals who will not be on the jury and who will not be determining the guilt or innocence of the accused.

[91] Even in cases where the jury selection employs rotating triers, the first two triers who will decide the issue are not members of the jury.

[92] It is also important to note that the first two triers need not even be members of the jury panel. Pursuant to s. 640(2), the trial judge can select "two persons present" in the courtroom to act as triers.

[93] It is also important to understand that the trial judge already plays an important role in deciding who may be a potential juror. The trial judge exercising her statutory duty under s. 632 may excuse potential jurors for hardship, other reasonable cause, personal interest or relationship with one of the parties or witnesses. The trial judge also exercises her discretion pursuant to s. 633 to stand aside jurors on similar grounds. The trial judge, [page73] under the amended s. 633, can also stand aside jurors to maintain the public's confidence in the administration of justice.

[94] Further, on the issue of transparency and the public's confidence that the jury is both independent and impartial, the trial judge may articulate reasons for accepting or rejecting a prospective juror on a challenge for cause.

[95] The applicant further argues that the racialized and/or marginalized accused often sees the judge as aligned with the state. This evidence was presented quite fairly through the two well-respected barristers. This, however, is a person's subjective belief.

[96] The issue is whether a reasonable person properly informed could conclude that the judge was not independent. The informed person would appreciate the fundamental principle of judicial independence.

[97] Lastly, the applicant also relies on several cases from the 1980s and 1990s wherein appellate courts criticized judges for interfering in the challenge for cause process: see R. c. Guérin, 1984 3533 (QC CA), [1984] J.Q. no 696, 13 C.C.C. (3d) 231 (C.A.); R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694, [1987] S.C.J. No. 84; R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509, [1991] S.C.J. No. 21. In all of these cases, the criticism and suggestion of usurping the function of the triers was based upon the fact that the judge failed to comply with the challenge for cause procedure set out statutorily in the Criminal Code. This line of cases is not helpful when dealing with the new provisions.

[98] Under the new legislation, the trial judge is specifically mandated to make the determination.

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

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

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

[102] Lastly, the applicant submits that even if I find the provisions constitutional, I should require questions to be asked to [page74] prospective jurors regarding the presumption of innocence and the burden of proof by reading such questions into s. 640 of the Criminal Code. I have no jurisdiction to read in anything to legislation I have found to be constitutional.

[103] In answering the constitutional questions to be determined on the application, they are answered as follows:

(i) Does the repeal of s. 634 of the Criminal Code (the peremptory challenge) violate any or all of ss. 11(d), (f) and 7 of the Charter?

Answer: The repeal of s. 634 does not violate ss. 11(d), (f) and 7 of the Charter.

(ii) Do the amendments to s. 640 of the Criminal Code (eliminating lay triers and requiring the judge to make the determination on the challenge for cause) violate any or all of ss. 11(d), (f) and 7 of the Charter?

Answer: The amendments to s. 640 of the Criminal Code do not violate any or all of ss. 11(d), (f) and 7 of the Charter.

[104] Since I have found that the amendments contained in Bill C-75 do not violate ss. 11(d), (f) and 7 of the Charter, it is not necessary to consider a s. 1 and s. 52(1) analysis.

Retrospective vs. Prospective

[105] At the end of oral argument, counsel indicated that they wished to make brief oral submissions, should I find the amendments constitutional, as to whether the amendments are retrospective or prospective. Neither party addressed the issue in their written material or facta.

[106] It is the position of the applicant that the provisions eliminate a substantive right to the peremptory challenge procedure. It is the position of the applicant that the amendments do not apply retrospectively in particular to Mr. Chouhan.

[107] It is the position of the Crown that the amendments are procedural in nature. The substantive right is a right to a fair, independent and impartial jury. The amendments are strictly procedural and do not impair or impact on the Charter protected right.

[108] I am guided by the direction of the Supreme Court of Canada.

[109] In R. v. Dineley, [2012] 3 S.C.R. 272, [2012] S.C.J. No. 58, 2012 SCC 58, Deschamps J., writing for the majority, addressed the issue as follows, at paras. 10 and 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 [page75] it is to apply retrospectively (Angus v. Sun Alliance Insurance Co., 1988 5 (SCC), [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; Wildman v. The Queen, 1984 82 (SCC), [1984] 2 S.C.R. 311, at pp. 331-32). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases (Application under s. 83.28 of the Criminal Code (Re), at paras. 57 and 62; Wildman, at p. 331).

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. 191). Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions "procedural" or "substantive", but in discerning whether they affect substantive rights.

[110] Mr. Chouhan has an absolute right to be tried by an independent and impartial jury. I have concluded that the elimination of the peremptory challenge process does not breach or impair Mr. Chouhan's right to a fair trial, and an independent and impartial jury.

[111] I find that the legislative amendments are procedural in nature. They impact the process of selecting the jury. I conclude the peremptory challenge is not a substantive right that stands on its own. I agree with the conclusion of my brother Thomas J. in R. v. Lako, [2019] O.J. No. 4666, 2019 ONSC 5362 (S.C.J.).

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

[113] The jury selection procedure we will employ in selecting Mr. Chouhan's jury will be pursuant to the amendments that came into effect on September 19, 2019.

Application dismissed.

End of Document