COURT FILE NO.: CR-19-10000639-0000

DATE: 2019-10-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN

AND:

ABDIRISAQ MUSE

BEFORE: C.J. Brown J.

COUNSEL: Joanne M. Capozzi, Counsel for the Crown

Franklin Lyons and Tamar Bitton, Counsel for the Defendant

HEARD: October 15 and 16, 2019

RULING ON THE CONSTITUTIONALITY OF THE REPEAL OF SECTION 634 AND THE AMENDMENT TO SECTION 640 OF THE CRIMINAL CODE

Background

[1] The applicant, Abdirisaq Muse, is charged with two counts of attempted robbery. He has elected to be tried by a judge and jury in the Ontario Superior Court of Justice with his trial to commence October 15, 2019.

[2] On September 19, 2019, Bill C-75, which contains certain amendments to the governing process for the selection of juries, came into force. The amendments included four changes to the former jury selection process, as follows: (1) they eliminate the right of the Crown and the accused to make peremptory challenges to prospective jurors; (2) they remove the authority of triers to decide the truth of challenges for cause, and place that authority in the trial judge; (3) they add “maintain public confidence in the administration of justice” to the existing grounds (“reasons of personal hardship” and “any other reasonable cause”) upon which a trial judge may stand a prospective juror by; and (4) they clarify that trial judges have the discretion to exclude both sworn and unsworn jurors from the courtroom during the challenge for cause process.

[3] The actual amendments state as follows:

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

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

(2) On the application of the accused or prosecutor or on the judge’s own motion, the judge may order the exclusion of all jurors, sworn and unsworn, from the courtroom until it is determined whether the ground of challenge is true if the judge is of the opinion that the order is necessary to preserve the impartiality of the jurors.

[4] Bill C-75 was introduced by the Minister of Justice. She described the purpose behind the jury selection amendments as follows:

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.

“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 (24 May 2018) at 19631 (Hon. Jody Wilson-Raybould).

The Application

[5] The applicant, Abdirisaq Muse, brings this application for an order declaring that clauses 269 and 272 of Bill C-75 infringe ss. 7, 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms, that those clauses cannot be saved by section 1, and that the clauses are therefore null and void pursuant to s. 52 of the Constitution Act, 1982. Alternatively, in the event that it is determined that the clauses do not infringe ss. 7, 11(d) and 11(f), the applicant seeks an order that the clauses not be applied retrospectively, and that the applicant be permitted to use peremptory challenges in selecting a jury.

[6] Since the legislation came into force, there have been numerous decisions as regards the retrospectively of the amendments, and to date, one decision as regards the constitutionality of the amendments. Those decisions dealing with retrospectivity include: R v Lako and MacDonald, 2019 ONSC 5362; R v Khurshid and Phillips, 2019 ONSC 5825; R v Khan, 2019 ONSC 5646, R v MacMillan, 2019 ONSC 5616 and R v Chouhan, 2019 ONSC 5512. All of those decisions emanate from the Ontario Superior Courts across the province. All have determined that the elimination of peremptory challenges is a matter of procedure and process and not the loss of a substantive right. They have held that the amendments do not affect substantive rights, but are procedural in nature. Thus, they are to be applied retrospectively. One decision, R v Chouhan, supra, has also decided that the legislation is constitutional and does not infringe upon the rights guaranteed by ss. 7, 11(d) and 11(f) of the Charter of Rights and Freedoms. Four other decisions, one from British Columbia, one from Saskatchewan and two from New Brunswick have determined that the amendments affect substantive rights and, as a result, are prospective. Those decisions include R v Dorian, 2019 SKQB 266, R v Subramaniam, 2019 BCSC 1601, R v Raymond, 2019 NBQB 203 and HMQ v LeBlanc, 2019 NBQB 214. None of those decisions involved determinations as regards whether the amendments infringed Charter rights.

Positions of the Parties

Position of the Applicant

[7] It is the position of the applicant that the amendments contained in Bill C-75, as they relate to the selection of juries, breach the rights of the applicant as contained in ss. 7, 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms. The applicant states that every individual tried in Canada is entitled to a fair trial and, citing R v Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562 at paras. 18, 40 and 45, a fair trial is a trial that appears fair, from both the perspective of the accused and the perspective of the community, and is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.

[8] As regards peremptory challenges, the applicant argues that these challenges permit both Crown and accused to eliminate a juror who is perceived by them to be unwilling to pay attention, unable to follow instructions, prejudiced, partial, overeager, biased, shows any animus toward them, unrepresentative of the broader community, or for any anticipated reason. In other words, the parties are given the opportunity to remove a juror who they believe, on a subjective feeling or basis, may not judge the case fairly or impartially based on the evidence and the law, without having to articulate a reason for that belief. No reasons are needed in order to challenge on a peremptory basis.

[9] In my view, given the lack of ability to question the potential juror in the peremptory challenge context, it is doubtful that the purported purposes or outcomes listed above by the applicant could be achieved. Rather, many of the purported purposes are achieved through challenges for cause. Indeed, challenges for cause, and not peremptory challenges, generally focus on jurors who are prejudiced, partial or biased. No reasons are needed in order to challenge on a peremptory basis. The basis for the peremptory challenge has often been described as perception or “gut” feeling. It is, thus, intuitive or impressionistic.

[10] It is the position of the applicant that the ability of the applicant to remove prospective jurors is fundamental to the fair trial process. A fair trial is foundational to the principles of fundamental justice.

[11] It is the position of the applicant that removing peremptory challenges prevents the applicant from meaningful participation in the process of picking a jury of peers. Further, it removes the appearance of fairness. If counsel for the applicant cannot establish that a potential juror is partial, the removal of peremptory challenges leaves the applicant without an ability to challenge the juror.

[12] The applicant further argues that peremptory challenges are used in civil cases as well and that it should be no different in criminal cases.

[13] The applicant further submits that to interfere with the tradition of peremptory challenges in jury trials infringes the principles on which the constitutional protections are based.

[14] As regards challenges for cause, it is the position of the applicant that an impartial jury is inextricable from the principles of fundamental justice and that the independence of the jury may be compromised by a judge ruling on the challenges for cause rather than the potential jurors. The applicant argues that a judge may not notice biases that another juror might. I note that the converse may be equally true.

[15] Further, the applicant argues that judges have administrative and time concerns that may influence their decision about whether to accept a challenge, whereas potential jurors are disinterested in the administration of the courts.

[16] The applicant argues that the effect of the amendments to the challenge for cause procedure is that jury selection is no longer independent from the State. Judicial interference in the selection of the jury violates the right to a fair trial by an independent and impartial tribunal.

[17] Thus, the amendments to s. 640 of the Code infringe the applicant’s rights pursuant to ss. 7, 11(d) and 11(f).

[18] The applicant submits that Charter breaches cannot be saved by s. 1 of the Charter and must be held to be of no force or effect to the extent that they are inconsistent with the Charter.

The Position of the Respondent

[19] The applicant submits that without peremptory challenges, he is denied the ability to challenge a prospective juror who he believes may not judge the case fairly or impartially based on the evidence and the law, without having to articulate a reason for that belief, when the challenge may be on the basis that the accused has a subjective feeling that the prospective juror should not be on the jury. In response, the respondent argues that any party has the right to be judged by their peers who they believe to be truly impartial.

[20] It is, however, the position of the respondent that the applicant does not have the right to shape the jury in a manner favourable to the defence and that limiting the ability of the accused to “shape” the jury in his or her perceived favour, by eliminating peremptory challenges, does not infringe the constitutionally protected right to a trial by an independent and impartial tribunal. The respondent argues that there is no constitutional right to peremptory challenges.

[21] The respondent argues that the test for determining whether an accused’s rights pursuant to s. 11(d) have been infringed is whether a reasonable person who is fully informed of the circumstances has a reasonable apprehension that the jury is biased.

[22] Further, the Crown argues that in considering whether the elimination of peremptory challenges leaves the applicant without the ability to challenge prospective jurors following the challenge for cause, resulting in the appearance of unfairness-effecting rights which are fundamental to the fair trial process, it is important to consider the court’s stand aside power and its operation as set forth in R v Krugal, (2000) 2000 CanLII 5660 (ON CA), 129 OAC 182, para. 63.

[23] Further, it is the position of the Crown that the repeal of peremptory challenges at s. 634 was combined with an amendment to s. 633, which expanded the trial judge’s power to stand aside prospective jurors for purposes of “maintaining public confidence in the administration of justice”. This confers a broad discretion to apply the provision on a case-by-case basis. Even after a juror is found acceptable, the judge may permit counsel to make submissions requesting that the trial judge stand the juror aside. Counsel for both defence and Crown can, at that juncture, address concerns about a prospective juror’s suitability, impartiality or competence. This may be done in the absence of the jurors pursuant to the court’s inherent jurisdiction, as prescribed by s. 672 of the Criminal Code.

[24] The Crown submits that the Supreme Court has held challenges for cause to be an essential safeguard of the accused’s right to a fair and impartial jury and that an unlimited number of challenges for cause remains to eliminate potential jurors who are not capable of acting impartially. It is the position of the Crown that it is untenable to suggest that the challenge for cause process is no longer independent of the State. The Crown argues that the trial judge is independent of the State, as constitutionally required by the separation of powers and the guarantee of judicial independence. Further, trial judges are presumed to exercise the powers conferred under statute in accordance with the Charter, as stated by the Supreme Court in R v Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128 at para. 44.

[25] The previous statutory procedure for determining challenges for cause is not immutable. There is no constitutional impediment preventing Parliament from changing the statutory regime: R v Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, citing R v Barrow. The Crown maintains that the amendments to the Criminal Code change the procedure for the determination of the challenge for cause, but do not interfere with the selected jury being impartial and independent. The Crown further maintains that there is no basis in principle to suggest that a trial judge would base such decisions on administrative expedience.

[26] It is the position of the Crown that the applicant has failed to establish that requiring the trial judge, rather than two rotating or static triers, to determine the challenge for cause compromises the impartiality or independence of the jury.

[27] It is the position of the Crown that the repeal of s. 634 and the amendment to s. 640 of the Criminal Code are constitutional, do not violate the applicant’s Charter rights pursuant to ss 7, 11(d) and 11(f) and that the application should be dismissed.

Analysis

[28] At the outset, I have had regard to the principle of “judicial comity” as considered in R v Scarlett, 2013 ONSC 562. Justice Strathy J (as he then was) stated at paragraph 43:

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Hansard Spruce Mills Ltd,Re, [1994] 4 D.L.R. 590 (B.C.S.C.); R v Northern Electric Co., 1955 CanLII 392 (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (Ont. H. C.) at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills Ltd,Re, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. The circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.

[29] This decision has been oft-followed in Ontario. As regards the issues before this Court, it has been considered and applied in R v McMillan, [2019)] O.J. No. 5038 (Dambrot J.) and R v Khurshid and Phillips, 2019 ONSC 5825 (Bielby J.).

[30] I have reviewed all of the cases from Ontario as regards retrospectivity and have reviewed R v Chouhan as regards whether the amendments infringe Charter rights ss. 7, 11(d) and 11(f), as well as the issue of retrospectivity. Having carefully considered all of the Ontario cases, I am not able to say that any of them is plainly wrong.

[31] For the reasons given below, I am satisfied that the amendments do not infringe the applicant’s Charter rights ss. 7, 11(d) and 11(f), and that the amendments are procedural in nature, do not affect substantive rights, and therefore are to be applied retrospectively.

The Relevant Charter Provisions

[32] As regards this application, the following Charter provisions are relevant.

Section 7

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)

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

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.

[33] The applicant’s enunciated concerns are the following:

1. The elimination of peremptory challenges affects the applicant’s right to a fair trial, which the applicant defines as a trial that appears fair from both the perspective of the accused and the community. The ability of the applicant to remove prospective jurors is fundamental to the fair trial process;

2. The elimination of peremptory challenges removes any ability of the applicant to meaningfully participate in the selection of an independent and impartial jury contrary to the applicant’s Charter rights;

3. Without peremptory challenges, the applicant is denied the ability to challenge a prospective juror who the applicant believes may not judge the case fairly or impartially based on the evidence and the law, without having to articulate a reason for that belief on the basis that the accused has a subjective feeling that they should not be on the jury;

4. To interfere with the tradition of peremptory challenges in jury trials infringes the principles on which the constitutional protections are based.

5. As peremptory challenges are available in civil actions, they should not be taken away in criminal actions;

[34] These concerns and challenges to the legislation have been well considered by McMahon J. in R v Chouhan.

[35] I will review these five concerns comprising the applicant’s constitutional challenge below.

The Applicant’s Right to a Fair Trial

[36] The Charter guarantees the rights to be presumed innocent until proven guilty; to have a fair and public hearing by an independent and impartial tribunal and to have a trial by jury where the maximum punishment for the offence is imprisonment for five years or more.

[37] As stated by McMahon J. in Chouhan at paras. 26-28, 30:

26. In determining whether section 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 SCC 28, [2015] 2 S.C.R. 398 (S.C.C.), 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 CanLII 25 (SCC), [1985] 2 S.C.R. 673, at pp. 684-91; R v Bain 1992 CanLII 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. 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.

[38] As stated in Chouhan at para. 36, citing R v Sherratt, supra, at p. 524, neither party is entitled to a favourable jury:

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.

[39] The tribunal must be perceived as independent, as well as impartial. The test for both independence and impartiality should be whether the tribunal may be reasonably perceived as independent: Chouhan, para. 37, citing R v Valente (No. 2), 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673 at p. 689.

[40] Every juror or prospective juror is presumed to be impartial: Chouhan at para. 40 citing Kokopenace, supra, at para. 53. A juror is a judge. There is a strong presumption of judicial impartiality and a heavy burden on a person who seeks to rebut this presumption: Chouhan para. 41, citing R v Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1 (C. A.).

[41] The Supreme Court of Canada set forth a stringent test to rebut the presumption of impartiality in Committee for Justice & Liberty v Canada (National Energy Board) (1976), [1978] 1 S. C. R. 368 at p 394:

The 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… That 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.

And see: Chouhan at para. 42.

[42] In applying the appropriate test to consider the constitutionality of the repeal of s. 634 of the Criminal Code, the Court must look to the five safeguards in place to ensure the jury is independent and impartial.

[43] As McMahon J. states in Chouhan at paragraph 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;

4. Trial judge’s discretion to exclude prospective jurors; and

5. Trial judge’s discretion to stand aside jurors.

[44] McMahon J. in Chouhan has fully assessed and analyzed the five safeguards at paras. 44 to 59. I agree with his assessment, fully adopt his reasons and will not further repeat them herein.

[45] As regards the applicant’s bases for challenging the legislation, I answer as follows.

1. Have the amendments negatively affected the applicant’s right to a fair trial?

[46] Pursuant to the Charter, the applicant is entitled to a fair and public hearing by an independent and impartial tribunal. I am satisfied, for all the reasons above, and for the reasons stated in R v Chouhan, supra, that the safeguards in place and the procedures for selecting a jury ensure the applicant’s right to a fair and public hearing by an independent and impartial tribunal. I will address the issue of the elimination of peremptory challenges below.

2. Does the Elimination of Peremptory Challenges Affect the Applicant’s Right to a Fair Trial?

[47] The test to be applied is as stated in Chouhan supra, paras. 26-27: would a reasonable person who is fully informed of the circumstances have a reasonable apprehension that the jury is biased?

[48] The issues of fair trial and bias must be considered within the context of the trial as a whole and all of the safeguards afforded to the parties. Further, it is important to consider the amendments to the stand by powers granted in the impugned legislation.

[49] As stated by Moldaver J. A. (as he then was), in R v Krugal, (2000), 2000 CanLII 5660 (ON CA), 129 O.A.C. 182 at para 63:

Parliament recognized that the stand-by provides the element of flexibility needed to ensure an impartial, representative and competent jury. At the same time, Parliament realized that the power to stand aside had to be removed from the Crown and placed in the hands of a neutral arbiter. In choosing to enact what is now section 633 of the Code, it achieved both goals.

[50] The repeal of peremptory challenges in s. 634 was combined with an amendment to s. 633, which expanded the trial judge’s power to stand by prospective jurors for “maintaining public confidence in the administration of justice” in addition to reasons of personal hardship or any other cause.

[51] The additional, expanded power to stand a juror aside for “maintaining public confidence in the administration of justice”, confers a broad discretion on trial judges to apply this provision on a case-by-case basis in accordance with the Charter. Given s. 633, even after a juror is found acceptable in a challenge for cause, a court may, in its discretion, entertain submissions from counsel requesting that the trial judge stand a juror aside. Thus, either party may be able to address concerns about a prospective juror’s suitability, impartiality or competence at this stage of the jury selection process.

[52] I further rely on and adopt the reasons given by McMahon J. in Chouhan.

[53] Based on the foregoing and my conclusions as regards the safeguards in place in relation to the jury selection process, I am satisfied that the elimination of peremptory challenges does not violate the accused’s right to a fair and impartial jury. The amendments have provided other meaningful means of participating in the selection of the jury, as above stated.

3. Is the applicant denied the ability to challenge a prospective juror whom the applicant believes may not judge the case fairly without having to articulate reasons?

4. Do the amendments infringe the principles on which the constitutional protections are based by interfering with the tradition of peremptory challenges?

[54] I will answer these two questions together. As stated above, the elimination of peremptory challenges must be considered along with the enhanced powers of the judge to stand a juror aside. I will not further reiterate my comments above.

[55] As will be clear from my comments below, I do not consider the peremptory challenge to be a substantive right, nor do I consider the amendments to infringe on the rights guaranteed by the Charter. When the applicant refers to “the tradition of peremptory challenges” it must be remembered that peremptory challenges have, across the years, undergone legislative changes.

[56] Further, different numbers of peremptory challenges have been accorded to different offences and vary from 4 to 20. I do not find there to be a “tradition” which has bestowed on the accused substantive rights. I view these rights as procedural.

[57] For the reasons stated above, I do not find the elimination of peremptory challenges to infringe the accused’s Charter rights.

5. Whether because peremptory challenges are available in civil actions, they should not be removed in criminal actions.

[58] Civil and criminal cases exist in different systems with different rules and considerations. I am not swayed by any argument that peremptory challenges are available in civil cases and should therefore be available in criminal cases.

[59] Peremptory challenges in civil actions fall under provincial jurisdiction while peremptory challenges in criminal cases fall under federal jurisdiction. The civil law and procedure provisions deal with matters under section 92 of the Constitution Act, while criminal law and procedural provisions are dealt with under section 91. They are different constitutional legislative powers and one should not draw comparisons between the two.

[60] The constitutional rights under s. 11 of the Charter are only applicable to criminal trials. What a provincial legislature may or may not enact under its powers with respect to civil matters pursuant to section 92 of the Constitution Act 1982, is not relevant to s. 11 of the Charter which only applies to criminal and penal proceedings.

[61] What a province may do regarding civil matters and civil procedure is not relevant to the considerations regarding the s. 11 Charter rights currently before this Court. I do not accept the applicant’s argument.

[62] For all of the above reasons, I do not find that the amendments to the jury selection process breach the applicant’s Charter rights pursuant to ss. 7, 11(d) and 11(f).

[63] Moreover, I do not find the reasons given by McMahon J. to be plainly wrong.

Amendments to the Challenge for Cause

[64] As regards whether the replacement of lay triers with the trial judge on the challenge for cause procedure breaches the accused’s rights pursuant to ss. 7, 11(d) or 11(f), I again adopt the reasons of McMahon J in Chouhan at paras. 84 et seq.

[65] It is of note that the Charter guarantees the right to an independent and impartial tribunal, which includes a tribunal comprised of both judge and jury. The amendments to the provisions for challenge for cause must be seen in this light and in their full context. It is in this context that the Charter right must be examined and understood. When one evaluates the constitutional validity of the legislation under these provisions, one must examine the functions of both judge and jury in determining whether the right to a fair and impartial tribunal has been negatively affected. In this case, the amendments to jury selection have shifted functions between judge and jury as regards determination of the challenge for cause question(s). As regards challenges for cause, for all of the reasons given herein, the legislation provides for a procedure which ensures a fair and impartial tribunal.

[66] Furthermore, I note that s. 672 of the Criminal Code continues to preserve any common law power or authority that a court or judge has, except where altered by or inconsistent with the Criminal Code. Judges are, thus, still empowered to exercise appropriate powers and authorities to ensure that a fair and impartial tribunal is constituted, and that a fair trial is held.

[67] In this case, the challenge for cause is to be determined not by two lay triers, but by the judge. The process for questioning the prospective jurors on the challenge for cause remains intact. Only the process for determining whether the challenge is true or not and whether the prospective juror is acceptable or not acceptable has changed.

[68] It is of note that the two individuals determining the challenge for cause under the old process were not necessarily members of the jury. Where the accused applied for static triers, the determination was made by two individuals who would not be on the jury and would not be determining the guilt or innocence of the accused. Where rotating triers were employed, the first two triers were not members of the jury. Thus, it is not correct to say that the jury was selecting its own membership throughout, as the applicant urged.

[69] In the old process, the lay triers did not articulate reasons for finding a juror acceptable or not acceptable. Under the amended process, a judge may in his or her discretion, give reasons for the decision. Further, the judge may, under his or her discretionary powers, elicit submissions from counsel for the accused and Crown as regards whether the juror is acceptable or not acceptable, and why. Such submissions may, again, at the discretion of the judge, be entertained with a juror absent.

[70] All of these amendments increase the transparency, fairness and impartiality, by which the process occurs. Further, as observed by McMahon J. in Chouhan at para 100, it also increases the independence of the actual jury, which must decide the guilt or innocence of the accused.

[71] I do not accept the applicant’s submission that the decisions of judges as regards challenges for cause may be affected by the fact that they have administrative concerns.

[72] Trial judges are presumed to exercise the powers conferred under statute in accordance with the Charter: R v Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128 at para. 44. As stated above, trial judges are also presumed to be impartial and independent. To suggest that the effect of the amendments to the challenge for cause procedure is that the jury selection procedure is no longer independent from the State is to misconstrue the differences between the separation of legislative and judicial functions, and to ignore the foundational principle of the independence of the judiciary from the State. Finally, there is no basis in principle to suggest that the trial judge would base such decisions on administrative expediency and certainly no evidence has been adduced to support such a suggestion.

[73] I do not find that this amendment infringes on the rights pursuant to ss. 7, 11(d) or 11(f) of the Charter. Again, I do not find the reasons of McMahon J. in R v Chouhan to be plainly wrong.

Retrospective Versus Prospective Application

[74] Since the amendments have come into force, there have been five judgments in Ontario, as noted above at para. 6, which have determined the issue of whether the amendments are substantive and prospective in application or procedural and retrospective in application.

[75] All decisions emanating from the Ontario courts have determined that the provisions are procedural and retrospective in application.

[76] I note that there are also four cases from other jurisdictions, including BC, Saskatchewan and New Brunswick which all determined that the provisions of the amendments are substantive and prospective.

[77] Again, I apply judicial comity in my determination and will follow the cases in Ontario, unless I am able to say that they are plainly wrong. I do not find any of them to be plainly wrong.

[78] As McMahon J in Chouhan held at para. 111, following R v Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, the legislative amendments are procedural in nature. They impact the process of selecting the jury. The peremptory challenge is not a substantive right that stands on its own. The amendments do not affect substantive rights.

[79] I agree with and adopt the reasons in all of the Ontario cases which determined this issue, as set forth at para. 82 above. I cannot say that any of these cases is plainly wrong.

[80] I further note that peremptory challenges have changed over the years. Moreover, different numbers of peremptory challenges were accorded to different offences pursuant to the impugned s 634, from 20 peremptory challenges for crimes of high treason and first-degree murder, to 12 challenges for crimes for which imprisonment for a term exceeding five years may be imposed, to four peremptory challenges for an offence not otherwise mentioned in s. 634. If one argues that peremptory challenges are a substantive right, does this mean that there is a sliding scale of substantive rights resulting in different numbers of peremptory challenges depending on the offences charged? How many challenges must be available to satisfy a minimum substantive right?

[81] I am of the view that this is further indication that peremptory challenges are a procedural matter and not a substantive right.

Charter Section 1

[82] If a breach of Charter rights had been found, the onus would then shift to the Crown to establish the bases for a s. 1 analysis. In this case, the Crown has requested that, in the event that the amendments are found to breach the applicant’s constitutional rights, it requests the opportunity to make further submissions under s. 1.

[83] As I have not found there to be any breach of the applicant’s Charter rights, this will not be necessary.

Conclusion

[84] For all of the reasons given above, I find as follows:

1. The Bill C-75 amendments do not infringe the applicant’s Charter rights pursuant to ss. 7, 11(d) or 11(f);

2. The amendments to the peremptory challenges are procedural and retrospective.

[85] The application is dismissed.

C.J. Brown J.

Date: October 29, 2019