Her Majesty the Queen v. King

[Indexed as: R. v. King]

Ontario Reports

Ontario Superior Court of Justice

Goodman J.

November 4, 2019

148 O.R. (3d) 618 | 2019 ONSC 6386

Case Summary

Charter of Rights and Freedoms — Remedies — Declaration of invalidity — Before trial, Parliament repealed peremptory challenge provisions — Repeal of peremptory challenge infringing Charter by denying right to a fair trial with an independent and impartial jury — Repeal of peremptory challenge provision overbroad for affecting instances where discrimination concerns absent — Repeal of peremptory challenge provisions struck down as unconstitutional — Crown and defence permitted to exercise peremptory challenges as if provision had not been repealed — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, ss. 634, 640.

Charter of Rights and Freedoms — Right to fair trial — Before trial, Parliament repealed peremptory challenge provisions and amended challenge for cause provisions of Criminal Code — Repeal of peremptory challenge infringed the Charter by denying a right to a fair trial with an independent and impartial jury — Repeal of peremptory challenge provisions overbroad for affecting instances where discrimination concerns were absent — Amendment of challenge for cause did not infringe Charter — Repeal of peremptory challenge struck down as unconstitutional — Crown and defence permitted to exercise peremptory challenges as if provision had not been repealed — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, ss. 634, 640.

Courts — Judges — Judicial comity — Before trial, Parliament repealed peremptory challenge provisions and amended challenge for cause provisions of Criminal Code — Accused argued that amendments infringed the Charter by denying a right to a fair trial — Recent jurisprudence in the province not supporting his position and Crown arguing judicial comity requiring judge to follow prior decisions — Amendment of challenge for cause did not infringe Charter — Repeal of peremptory challenge struck down as unconstitutional notwithstanding recent [page619] jurisprudence and judicial comity — Crown and defence permitted to exercise peremptory challenges as if provision had not been repealed — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, ss. 634, 640.

Criminal law — Jury selection — Challenge for cause — Before trial, Parliament repealing peremptory challenge provisions and amended challenge for cause provisions of Criminal Code — Repeal of peremptory challenge infringing the Charter by denying a right to a fair trial with an independent and impartial jury — Repeal of peremptory challenge overbroad for affecting instances where discrimination concerns were absent — Amendment of challenge for cause did not infringe Charter — Repeal of peremptory challenge provisions struck down as unconstitutional — Crown and defence permitted to exercise peremptory challenges as if provision had not been repealed — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, ss. 634, 640.

Criminal law — Jury selection — Peremptory challenge — Before trial, Parliament repealed peremptory challenge provisions and amended challenge for cause provisions of Criminal Code — Repeal of peremptory challenge infringed the Charter by denying a right to a fair trial with an independent and impartial jury — Repeal of peremptory challenge overbroad for affecting instances where discrimination concerns were absent — Amendment of challenge for cause not infringing Charter — Repeal of peremptory challenge provisions struck down as unconstitutional — Crown and defence permitted to exercise peremptory challenges as if provision had not been repealed — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, ss. 634, 640.

Statutes — Interpretation — Retrospective operation — Accused charged with second degree murder — Before trial, Parliament repealed peremptory challenge provisions and amended challenge for cause provisions of Criminal Code — Repeal of peremptory challenge infringed the Charter — Amendment of challenge for cause did not infringe Charter — Repeal of peremptory challenge struck down as unconstitutional — Amendment of challenge for cause was procedural and thus applied retrospectively — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f) — Criminal Code, R.S.C. 1985, c. C-46, ss. 634, 640.

The accused was with second degree murder. Shortly before his trial, amendments to the Criminal Code came into force. Section 634, providing for peremptory challenges during jury selection, was repealed and replaced with expanding the provision allowing for a judge to direct a juror to stand by for reasonable cause and Crown arguing judicial comity requiring judge to follow prior decisions. Amendments to s. 640 replaced lay triers with the trial judge in the challenge for cause procedure. The accused submitted that the repeal of s. 634 infringed on his right to meaningfully and fully participate in the selection of a jury, which in turn denied him his right to a fair trial pursuant to ss. 7, 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms. He also submitted that the s. 640 amendments interfered with the independence of the jury by removing the lay person's ability to participate in the selection of jurors and denied him his ability to ensure a representative and impartial jury of his peers. Much of the recent jurisprudence in Ontario did not support his position. The accused applied for a ruling that the Criminal Code amendments were unconstitutional and of no force and effect. [page620]

Held, the application should be allowed in part.

The representativeness of a jury is protected not only by measures outside the court room such as how the panel is created. Peremptory challenges were also a means by which the accused can directly participate in the jury selection process. Substituting peremptory challenges with an undefined process did not sustain impartiality, independence and the right to a fair trial. A reasonable person, fully informed of the supposed safeguards available in the selection process for jurors, and with the elimination of the peremptory challenge as a second layer of rights, would conclude that an accused's right to a fair trial with an independent and impartial jury would be violated by the impugned amendments. Accordingly, the repeal of s. 634 violated both s. 11(d) and 11(f) of the Charter. As for infringement of s. 7, the repeal was neither arbitrary nor grossly disproportionate to its purposes. However, it was overbroad in that it bore on conduct outside of its intended purpose, namely, in instances where there were no concerns over discrimination. The Crown did not actively argue justification of the infringements, so the court did not engage in a full s. 1 analysis of the Charter. The law repealing s. 634 was struck down pursuant to s. 52(1) of the Constitution Act, 1982. The previous Criminal Code section as it existed prior to the enactment of the impugned legislative amendments was to be applied with any necessary adaptations of related Criminal Code provisions.

There were some practical and evidentiary concerns with the amendments to s. 640, but the accused still had the benefit of the statutory right to challenge a prospective juror for cause. Accordingly, the s. 640 amendments did not violate ss. 11(d), 11(f) or s. 7 of the Charter.

There was a further question as to whether the repeal of the jury challenge provisions provided for substantive and vested rights and, if so, whether they could be abrogated by retrospective application of the amendments. With respect to s. 640, the provision was procedural and thus applied retrospectively.

The decision was taken to be in the best interests of the integrity and the administration of the justice system after accounting for the principle of judicial comity and recognizing that the ruling conflicted with other recent rulings at the Superior Court level.

In the result, each of the Crown and the defence were permitted to exercise their right of peremptory challenge in accordance with s. 634 of the Criminal Code as it existed before the repeal came into force.

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, folld

R. v. Chouhan (2019), 148 O.R. (3d) 53, [2019] O.J. No. 4797, 2019 ONSC 5512 (S.C.J.), not folld

Other cases referred to

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Statutes referred to

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

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11, (d), (f), 24(1)

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

Criminal Code, R.S.C. 1985, c. C-46, ss. 241(b) [as am.], 535 [as am.], 631 [as am.], 632 [as am.], 633 [as am.], 634 [rep.], 635 [as am.], 638 [as am.], 640 [as am.]

Rules and regulations referred to

Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, rule 27.03

Authorities referred to

Baker, John Hamilton, An Introduction to English Legal History, 2nd ed. (London: Butterworths, 1979)

Blackstone, William, Commentaries on the Laws of England, Lewis Ed., Vol. 4 (1902)

Department of Justice, "The Jury in Criminal Trials", Law Reform Commission of Canada (Working Paper 27, 1980)

Devlin, Patrick, Trial by Jury (London: Stevens & Sons, 1956)

Green, Thomas, "The Criminal Trial Jury: Origins and Early Development — An Interpretive Overview" in Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200-1800 (Chicago: University of Chicago Press, 1985)

Heinz, Judith, "Peremptory Challenges in Criminal Cases: A Comparison of Regulation in the United States, England, and Canada" (1993), 16:1 Loyola of Los Angeles Intl. & Comparative L.J. 201

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

House of Commons Debates, 42nd Parl., 1st Sess., Vol. 148, No. 352 (November 8, 2018)

Moore, Lloyd E., The Jury, Tool of Kings, Palladium of Liberty (Cincinnati: W.H. Anderson Co., 1973)

Morton, Emily, "Two Conceptions of Representativeness in the Canadian Jury Selection Process: A Case Comment on R. v. Gayle" (2003), 61 U.T. Fac. L. Rev. 105--131 [page624]

APPLICATION to declare Criminal Code amendments to be unconstitutional and of no force and effect.

G. Akilie and B. Adsett, for Crown Attorney.

No one appearing for Federal Department of Justice.

J. Shime and O. Goddard, for applicant.

A.J. GOODMAN J.: —

[1] This is an application brought by the applicant, Dale King, challenging the jury selection amendments and seeking a ruling that the recent legislative repeal of s. 634 and the amendments to s. 640 of the Criminal Code, R.S.C. 1985, c. C-46, are unconstitutional and of no force and effect.

[2] Specifically, in the notice of application and constitutional issue, the applicant seeks a ruling that the repeal of s. 634 of the Criminal Code (the peremptory challenge) violates his right to a fair trial pursuant to ss. 7, 11(d) and (f) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter"). The repeal of this provision infringes on his right to meaningfully and fully participate in the selection of a jury, which in turn denies the accused his right to be tried by a fair, independent and impartial jury.

[3] The applicant also seeks a ruling that the amendments to s. 640 of the Criminal Code further interfere with the independence of the jury by removing the lay person's ability to participate in the selection of jurors. Further, the removal of peremptory challenges and/or the amendments to the challenge for cause deny the accused the ability to ensure a representative and impartial jury of his peers.

[4] In the applicant's factum filed subsequent to the notice of constitutional challenge, an additional issue was raised regarding the retrospectivity of the amendments. Notwithstanding rule 27.03 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario),SI/ 2012-7, and without leave to amend the notice of application, I allowed the applicant to argue this issue as an alternative ground to this application.

Background

[5] The applicant stands charged with one count of second degree murder in relation to the death of Yosif Al-Hasnawi. The date of the alleged offence is December 2, 2017. [page625]

[6] The applicant's trial is scheduled to commence with a jury on November 4, 2019 and is anticipated to continue for three to four weeks.

[7] The trial is considered a high-profile case in Hamilton and has garnered much media and community attention.

[8] Moreover, Mr. King identifies as an Indigenous person. Given these facts, and on consent of the Crown Attorney, the applicant will have the opportunity to avail himself of the right to conduct a publicity and race-based challenge for cause.

[9] On September 19, 2019, the promulgation of amendments to the Criminal Code took effect (amongst other omnibus transformations), which were enacted by An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25 ("Act").[^1]

[10] There are a host of differing opinions, and rulings from various Superior Courts throughout Canada, with respect to the constitutionality and retrospective application of the impugned legislation.

Issues

[11] The central issue for this application is whether the amendments to the Act as they pertain to the elimination of peremptory challenges and the amendments whereby the trial judge determines the challenge for cause are unconstitutional. The questions to be addressed are:

(Q.1) Does the repeal of s. 634 of the Criminal Code violate s. 11(d) or (f) of the Charter?

(Q.2) Does the repeal of s. 634 of the Criminal Code violate s. 7 of the Charter?

(Q.3) Do the amendments to s. 640 of the Criminal Code violate s. 11(d) or (f) of the Charter?

(Q.4) Do the amendments to s. 640 of the Criminal Code violate s. 7 of the Charter?

(Q.5) 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? [page626]

(Q.6) If the amendments cannot be saved under s. 1 of the Charter, are they of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Constitution")?

(Q.7) In the alternative, if the amendments are deemed constitutional, or saved under s. 1 of the Charter, should there be an expanded set of questions pursuant to s. 640 of the Criminal Code?

(Q.8) Does the repeal of the jury challenge provisions provide for substantive and vested rights? If so, can they be abrogated by retrospective application of the amendments?

Positions of the Parties

[12] The applicant submits that he has a constitutionally protected right to a fair and impartial jury and the right to be tried by a jury of his peers.

[13] The applicant submits that as of September 19, 2019, under the new legislation, he has lost his right to challenge prospective jurors on a peremptory basis. He has also lost the ability to have members of the community -- the triers -- determine whether prospective jurors are impartial, pursuant to a challenge for cause.

[14] The applicant says that this court should take a functional and pragmatic approach that considers the actual impact of the new legislation. Even if it can be said that the amendments to the jury selection provisions are facially procedural, their effect is substantive. A right without a mechanism or procedures in place to ensure that right, is a right in name only. Parliament has amended two key provisions that it claims maintains the applicant's rights, but in effect has altered the procedures to substantiate those rights.

[15] The applicant acknowledges that, while commendable, the impugned amendments have not met its objectives of representativeness and impartiality of the jury, not to mention fairness or the appearance of fairness. The applicant says that the abolition of his ability to challenge jurors under the former s. 634 also infringes his right to a fair hearing by an independent and impartial tribunal.

[16] The applicant argues that the federal government's intrusion on the jury's autonomy to determine whether the potential juror is acceptable during the challenge for cause process brings into question the independence of the jury, and infringes the applicant's right to liberty.

[17] The applicant suggests that this poorly drafted legislation was in response to the Minister of Justice's reaction to, and publicity surrounding the result in, a specific court case. The purported [page627] "safeguards" found in the amendments are a poor substitute for the abolition of peremptory challenges. These amendments prevent the applicant from directly and actively participating in the mechanism of the selection of the jury and obtaining a fair trial, thereby violating s. 11(d) and (f) of the Charter.

[18] The applicant submits that the amendments breach s. 7 of the Charter as they are arbitrary, overbroad and grossly disproportionate. Section 1 of the Charter cannot be relied upon to save the provisions and pursuant to s. 52(1) of the Constitution, they are therefore of no force or effect.

[19] In the alternative, the applicant seeks relief in that the jury should be selected in accordance with the provisions in force at the time he was charged. The applicant submits that the jury challenge provisions provided by the Criminal Code at the time of his arrest are substantive and/or vested rights. As a result, they cannot be abrogated by the retrospective application of the new amendments.

[20] In response, the Crown submits that the accused does not have a constitutional right to peremptory challenges, as the jurisprudence is clear that there is no right to shape the jury in a manner favourable to the defence. Similarly, there is no right to a representative petit jury in the sense of any constitutional requirement that the jury share the same characteristics as the accused. The Crown says that the provisions are not rights, but rather the means chosen to effect or protect certain rights. Further, the repeal of peremptory challenges must be considered together with the expanded judicial discretion to stand aside prospective jurors. This discretion can be exercised even after a prospective juror has been found acceptable on the challenge for cause under the new s. 640 of the Criminal Code. As a result, the power to direct jurors to stand aside can address lingering concerns regarding jurors' impartiality or suitability to serve.

[21] The Crown says that trial judges must be presumed to exercise this discretion in a manner compliant with the Charter to ensure trial fairness. A statute that preserves and even enhances judicial discretion to safeguard an accused's fair trial rights cannot be seen to contravene the Charter.

[22] The Crown submits that there is no Charter constraint to prevent judges from making the determination on the challenge for cause.

[23] Given the unwieldy nature of the former s. 640 of the Criminal Code allowing for either rotating or static triers, the amendment serves to modernize and enhance the transparency of the process, much like other common law jurisdictions have done. It is untenable to suggest that the judge is aligned [page628] with the prosecution such as to compromise the impartiality and independence of the jury, or that the judge is somehow incapable of properly assessing the challenge.

[24] The Crown submits that there is no constitutional right to a particular jury selection procedure, including no constitutional right to challenges -- so long as the process allows defence to meaningfully participate in the jury selection process, to more or less the same extent as the Crown. The current procedures are ultimately capable of empanelling a fair and impartial jury. The Charter requires only a fair trial, not the most favourable perceived by the accused.

[25] The Crown says that the applicant's s. 7 argument is entirely dependent on the claim under s. 11(d) of the Charter. If it were true that the legislative amendments render the jury selection process unfair, this could also be framed as a s. 7 violation of the right not to be deprived of liberty except in accordance with procedural fairness. Thus, there is no need to resort to concepts such as arbitrariness, overbreadth or gross disproportionality. If the legislative changes to the jury selection process respect the s. 11(d) right to a fair trial by an impartial and independent jury, there will be no violation of the right to a jury trial under s. 11(f) and no contravention of the principles of fundamental justice. Conversely, if the court agrees that there is no infringement of the applicant's right to a fair trial by an impartial and independent tribunal, the s. 7 claim must also be rejected.

[26] Further, the Crown submits that the issues in this application have already been addressed fully and fairly by a judge of the Superior Court and the principles of judicial comity must apply. Accordingly, the Crown submits that the court should dismiss the application and affirm that the newly amended jury selection provisions will apply at Mr. King's jury trial. The court ought to declare that the repeal of s. 634 and the amendment to s. 640 of the Criminal Code are constitutional.

[27] In order to explore the issues raised in this application, a brief account of the jury selection process is helpful to understand its evolution.

[28] It is commonly believed that most early societies possessed some sort of adjudicative structure similar in form and purpose to that which serves our system today: Lloyd E. Moore, The Jury, Tool of Kings, Palladium of Liberty (Cincinnati: W.H. Anderson Co., 1973), as referenced in R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509, [1991] S.C.J. No. 21, at p. 522 S.C.R. [page629]

[29] From historical investigation, persons who were to be jurors were chosen for their direct knowledge of the issues in the case: John Hamilton Baker, An Introduction to English Legal History, 2nd ed. (London: Butterworths, 1979), at pp. 64-66; Sir Patrick Devlin, Trial by Jury (London: Stevens & Sons, 1956), at p. 67, as referenced in Sherratt, at p. 523 S.C.R. In the 12th century, the jury had 12 lawful men selected from a group of 100. These men were chosen to take the oath in the presence of royal officials. They were bound by their oath to report all those suspected of the commission of felonies. Trial by jury had become the primary means for determining guilt or innocence in prosecutions for felonies.

[30] During the same period, both the grand and (petty) petit assize juries came into fruition. The petit jury was the trial jury that considered the evidence and determined guilt and innocence: Thomas Green, "The Criminal Trial Jury: Origins and Early Development -- An Interpretive Overview" in Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200-1800 (Chicago: University of Chicago Press, 1985), at pp. 8, 11, 13-14.

[31] As mentioned, the early jury was composed of community members with sufficient first-hand knowledge of the facts. The jury process then evolved from individuals who had a pre-existing knowledge of the facts, to community members who decided the case based only on the evidence presented at trial. Notably, this change in the jury membership precipitated the need for the jury to be impartial or indifferent. The jury made decisions based on the evidence presented in court, not on personal bias or knowledge: Judith Heinz, "Peremptory Challenges in Criminal Cases: A Comparison of Regulation in the United States, England, and Canada" (1993), 16:1 Loyola of Los Angeles Intl. & Comparative L.J. 201, at pp. 207-208.

[32] In 1215, the Magna Carta was signed, amounting to a prodigious transformation. For the first time in history, the Monarchy was compelled to accept the rule of law. With the signing of the Magna Carta, Parliament eliminated the Crown's peremptory challenges. However, the accused's peremptory challenges remained intact: Heinz, quoting William Blackstone, explains, at p. 211:

[the] "law" wills [that the defendant should not] be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for his dislike [because] a prisoner should have a good opinion of his jury . . . that if a challenge for cause proved "insufficient to set aside the juror, perhaps the bare questioning [of] his indifference may sometimes provoke a resentment . . . [thus] the defendant's ability to remove that juror on a peremptory challenge was necessary to "prevent all ill consequences" of such resentment. [page630]

[33] The types of challenges and the number of challenges were formed at a very early time in the implementation of the jury process. The use of peremptory challenges was also evolving. The current procedure to challenge prospective jurors in the jury selection process continued to develop in the 16th and 17th centuries in England. At first, both a person charged with a felony and the Crown could challenge for cause any proposed juror. However, it appears that at some point, the Crown was reinstated with an unlimited number of peremptory challenges.

[34] A concise historical perspective of the peremptory challenge is referenced in R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3, at pp. 150-51 S.C.R.:[^2]

The English common law originally granted the Crown an unlimited capacity peremptorily to challenge jurors while the accused was only allowed 35 peremptory challenges. This unlimited power led to abuses because the Crown would peremptorily challenge the whole array of jurors without qualifying 12 jurors. The trial was then postponed and the accused kept in custody until the next session. An attempt was made to curtail this abuse in 1305 when a statute containing the following edict was passed (An Ordinance for Inquests, 33 Ed. 1, c. 4):

. . . but if they that sue for the King will challenge any of those Jurors, they shall assign of their Challenge a Cause certain, and the Truth of the same Challenge shall be enquired of according to the Custom of the Court; . . .

Despite the fact that the logical reading of this provision seems to indicate that the Crown had no power to challenge except for cause, it was interpreted to mean that the Crown need not assign the cause for its challenge until the panel had been gone through. Presumably the Courts felt they could not sanction eliminating the Crown's power to challenge absent cause while accused persons retained that ability. It was thus that the stand by was born. Certain attempts were made to impugn this rule but it survived and was re-enacted in The Juries Act, 1825 (Eng.), 6 Geo. 4, c. 50, s. 29, which was interpreted in the same manner as its predecessor.

[35] Prior to Confederation in 1867, the English common law was adopted in Canada, with the exception of Quebec (Lower Canada).

[36] However, by 1774, with the signing of the Treaty of Quebec, the colony retained the French civil law, while the English criminal law endured in Quebec, as well as throughout the rest of what would be later known as the Dominion of Canada.

[37] The English criminal process that was adopted in Canada at the time of Confederation included the use of peremptory challenges and standby jurors. [page631]

[38] In 1892, Parliament passed the first codified Criminal Code that recognized the right to a jury trial for serious offences.

[39] In 1980, the Department of Justice produced a working paper entitled "The Jury in Criminal Trials", which was published through the Law Reform Commission of Canada. One of the proposals raised within the working paper was to codify the number of peremptory challenges available to an accused. The commentary on this proposal is found, at p. 54:

The number of peremptory challenges for all offences should be increased. This will meet some of the objections raised by the abolition of stand-asides. It can be noted that this number is still well below the number permitted at common law, that is, 35. The peremptory challenge has been attacked and praised. Its importance lies in the fact that justice must be seen to be done. The peremptory challenge is one tool by which the accused can feel that he or she has some minimal control over the make-up of the jury and can eliminate persons for whatever reason, no matter how illogical or irrational, he or she does not wish to try the case.

[40] When the Charter was passed in 1982, s. 11(f) specifically recognized the right to a jury trial, while s. 11(d) provided for the presumption of innocence until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[41] In the decades leading up to 1992, the Crown attorney had both a right to four peremptory challenges and a right to order 48 jurors to standby; while criminal defence lawyers had a right to 20, 12, or four peremptory challenges, depending on the offence. The Supreme Court in Bain effected monumental changes to the selection process of a jury.

[42] In 2008, ss. 631 and 634 of the Criminal Code was enacted to allow for a variation of the traditional vetting procedures, by introducing static or rotating triers. In 2011, there was an amendment to allow for an increase of the jury members to 13 or 14 persons in certain circumstances.

Judicial Consideration of the Overall Amendments Arising out of Bill C-75

[43] Most recently in Ontario, these specific constitutional questions have been addressed and decided by a judge of concurrent jurisdiction.

[44] In R. v. Chouhan (2019), 148 O.R. (3d) 53, [2019] O.J. No. 4797, 2019 5512 (S.C.J.), McMahon J. dismissed similarly framed constitutional questions.

[45] Within the past week or so, Chouhan was adopted by Miller J. in R. v. Maggiore and Sharpe, 2019 ONSC 6212 and by C.J. Brown J. in R. v. Muse, [2019] O.J. No. 5659, 2019 6119 (S.C.J.). [page632]

[46] It should be noted that there is divergent judicial opinion on the questions raised in this application and a range of other issues arising from the amendments in Bill C-75. Much of the very recent jurisprudence in Ontario does not support the applicant's position, whether framed under a constitutional question or in tackling the retrospectivity of the legislation: Chouhan, Muse, Maggiore and Sharpe, R. v. MacMillan, [2019] O.J. No. 5038, 2019 5616 (S.C.J.); R. v. Lako, [2019] O.J. No. 4666, 2019 5362 (S.C.J.).

[47] Judges outside of Ontario have different views. For example, Ferguson J. in R. v. Raymond, [2019] N.B.J. No. 271, 2017 NBQB 203, highlighted the major changes to jury selection in Canada. He opined that it was important to note that unlike other amendments to the Criminal Code, which have been held to be procedural, the current amendments do not merely alter or augment the existing provisions. In some cases, they take away existing rights (contra: R. v. Cumberland, [2019] N.S.J. No. 434, 2019 NSSC 307).

[48] While the focus in R. v. LeBlanc, [2019] N.B.J. No. 295, 2019 NBQB 241 was the "transitional" application of the amendments to ss. 633, 634 and 640 of the Criminal Code, Walsh J. had this to say about the amendments, at para. 33:

Here, though, the amendments are "uniquely" directed at the decision maker (i.e. how the petit jury is to be comprised), the institution of the jury and its independence and impartiality being constitutionally protected rights (Charter of rights and Freedoms, s 11(d) and (f)). It is the focus that unmasks the appearance of the amendments as only procedural in nature, (which the beforementioned Ontario judgments rely upon,) revealing that they also "affect" those constitutional rights.

Judicial Comity

[49] The purpose underlying the doctrine of judicial comity was described by Martineau J. in Alyafi v. Canada (Minister of Citizenship and Immigration), [2014] F.C.J. No. 989, 2014 FC 952, at para. 45:

[T]he principle of judicial comity aims therefore to prevent the creation of conflicting lines of jurisprudence and to encourage certainty in the law. Generally, a judge should follow a decision on the same question of one of his or her colleagues, unless the previous decision differs in the facts, a different question is asked, the decision is clearly wrong or the application of the decision would create an injustice. Judicial comity requires much humility and mutual respect. If the rule of law does not tolerate arbitrariness, judicial comity, its loyal companion, relies on reason and the good judgement of each person. Failing a final judgment from the highest court, respect for the other's opinion can speak volumes. In short, judicial comity is elegance incarnate in the person of the magistrate who respects the value of precedents. [page633]

[50] Justice Smart described the approach outlined in Hansard Spruce Mills Ltd. (Re), 1954 253 (BC SC), [1954] B.C.J. No. 136, [1954] 4 D.L.R. 590 (S.C.) in the case of R. v. Sipes, [2009] B.C.J. No. 421, 2009 BCSC 285, at paras. 10-11:

The approach advocated in Re Hansard Spruce Mills is not a rule of law; rather, it is a wise and prudent prescription for the exercise of judicial discretion. It will almost always be in the interests of justice for a judge to follow the decision of another judge of the same court on a question of law. Consistency, certainty, and judicial comity are all sound reasons why this is so. It is for the Court of Appeal to decide whether a judge of this Court has erred, not another judge of the Court.

In my view, both the rule in Re Hansard Spruce Mills and the exceptions to it are based on common sense and a consideration of the interests of justice. At all times, the application of the rule should advance the interests of justice, not undermine them. It is for this reason that I am also of the view that the determination as to whether to follow a decision of another judge of the same court should not begin and end with a rote application of Re Hansard Spruce Mills; instead, that determination should also be informed by all relevant factors that bear upon whether it is in the best interests of justice in the context of the particular case at hand to do so.

[51] In Police Authority for Huddersfield v. Watson, [1947] 1 K.B. 842, at p. 848, Goddard C.J. stated:

I can only say for myself that I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction.

[52] An instructive case on judicial comity is R. v. Scarlett, [2013] O.J. No. 644, 2013 562 (S.C.J.). Strathy J. (as he then was), stated, at para. 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, 1954 253 (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co., 1955 392 (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (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. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.

[53] In contrast to vertical stare decisis, the doctrine of comity or horizontal stare decisis is not binding. There is no legal sanction for a judge's failure to follow a decision of another judge of the same court on the same question of law. A judge may depart from a colleague's interpretation or determination of a statutory provision or legal question where the judge is convinced that a departure is necessary and can articulate cogent [page634] reasons for doing so. A judge may also depart from an earlier decision where following the earlier decision would result in an injustice: Cervenakova v. Canada (Minister of Citizenship and Immigration), [2010] F.C.J. No. 1591, 2010 FC 1281, at para. 29.

[54] Judicial decisions from the same level of court on the very same subject matter and relevant legal principles are persuasive and ought to be followed; in the absence of strong reasons to the contrary, or unless the judge is convinced that it is clearly wrong: Scarlett, at para. 43; R. v. Northern Electric Co., 1955 392 (ON SC), [1955] O.R. 431, [1955] O.J. No. 649 (H.C.J.); Horne v. Horne Estate (1986), 1986 2786 (ON SC), 54 O.R. (2d) 510, [1986] O.J. No. 243 (H.C.J.), affd on other grounds (1987), 1987 4090 (ON CA), 60 O.R. (2d) 1, [1987] O.J. No. 495 (C.A.).

[55] In R. v. Chan, [2019] O.J. No. 504, 2019 783 (S.C.J.), at para. 43, Boswell J. had the occasion to address judicial comity. He references remarks from Lord Denning that the "convention of horizontal precedent is not inflexible", and also refers to Laskin J.A. in R. v. Polowin (2005), 2005 21093 (ON CA), 76 O.R. (3d) 161, [2005] O.J. No. 2436 (C.A.):

Instead of focusing on phrases such as "manifestly wrong", the approach I prefer is that adopted by this court in R. v. White (1996), 1996 3013 (ON CA), 29 O.R. (3d) 577, [1996] O.J. No. 2405 (C.A.), at p. 602 O.R. It calls on the court to weigh the advantages and disadvantages of correcting the error in a previous decision. This approach focuses on the nature of the error, and the effect and future impact of either correcting it or maintaining it. In doing so, this approach not only takes into account the effect and impact on the parties and future litigants, but also on the integrity and administration of our justice system.

[56] Boswell J. states his approach to the issue, at para. 44 of Chan, as follows:

In my view, while the decision in David Polowin provides the most flexible approach to horizontal precedent, it is not wildly divergent from the decisions in Spruce Hansard or Scarlett. None of these cases carve out a special exception for decisions with a constitutional dimension.

Application of Legal Principles to the Issues Raised by the Applicant

[57] I now turn to the first of the series of questions posed by the applicant:

Does the repeal of s. 634 of the Criminal Code violate s. 11(d) or 11(f) of the Charter? Can the amendments to the Criminal Code be saved under s. 1 of the Charter? If the amendments cannot be saved under s. 1 of the Charter, are they of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982? [page635]

[58] As referenced earlier, in Canada, two types of challenges to potential jurors have existed for decades, if not centuries: peremptory and for cause.

[59] Prior to September 19, 2019, s. 634 of the Criminal Code provided that:

Peremptory challenges

634(1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638.

Maximum number

(2) Subject to subsections (2.1) to (4), the prosecutor and the accused are each entitled to

(a) twenty peremptory challenges, where the accused is charged with high treason or first degree murder;

(b) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a), for which the accused may be sentenced to imprisonment for a term exceeding five years; or

(c) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a) or (b).

If 13 or 14 jurors

(2.01) If the judge orders under subsection 631(2.2) that 13 or 14 jurors be sworn in accordance with this Part, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one in the case of 13 jurors or two in the case of 14 jurors.

If alternate jurors

(2.1) If the judge makes an order for alternate jurors, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one for each alternate juror.

Supplemental peremptory challenges

(2.2) For the purposes of replacing jurors under subsection 644(1.1), the prosecutor and the accused are each entitled to one peremptory challenge for each juror to be replaced.

Where there are multiple counts

(3) Where two or more counts in an indictment are to be tried together, the prosecutor and the accused are each entitled only to the number of peremptory challenges provided in respect of the count for which the greatest number of peremptory challenges is available.

Where there are joint trials

(4) Where two or more accused are to be tried together,

(a) each accused is entitled to the number of peremptory challenges to which the accused would be entitled if tried alone; and [page636]

(b) the prosecutor is entitled to the total number of peremptory challenges available to all the accused.

[60] Bill C-75 repealed s. 634, thereby effectively eliminating the ability of the Crown and the defence to challenge prospective jurors by means of a peremptory challenge.

[61] Bill C-75 replaced s. 633 of the Criminal Code with the following:

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.

[62] 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[.]

The judicial history of peremptory challenges

[63] The authorities have outlined a number of reasons for the existence of peremptory challenges. In Bain,the majorityagreed with Stevenson J. and adopted Blackstone's description of the purpose of peremptory challenges. Relevant quotes are found at pp. 152-53:[^3]

What, then, is the basis for the peremptory challenge? I can find no basis other than that expressed by Blackstone, supra, at p. 353 and p. 1738 (of Lewis' edition):

. . . in criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous. This is grounded on two reasons. 1. As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defence his life), should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he [page637] has conceived a prejudice, even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometime provoke a resentment, to prevent all ill consequences from which the prisoner is still at liberty, if he pleases, peremptorily to set him aside.

(Emphasis added)

[64] Justice Gonthier, in dissent, discussed the purposes of the peremptory challenge in Bain, at p. 116 S.C.R.:

Babcock, in "Voir Dire: Preserving 'Its Wonderful Power'" (1975), 27 Stan. L. Rev. 545, names them respectively the "didactic" and "shield" functions of the peremptory challenge at pp. 552-55. Professor Babcock develops the didactic function of the challenge further than Blackstone: not only does it allow the accused to summarily dismiss prospective jurors without specific motives, but it also "teaches the litigant, and through him the community, that the jury is a good and proper mode for deciding matters and that its decision should be followed because in a real sense the jury belongs to the litigant . . ." (at p. 552). The "shield" function remains accessory. The Law Reform Commission of Canada, in its 1982 report, The Jury, also explained peremptory challenges for the accused along the same lines at p. 46.

[65] This "didactic" function is important. By allowing the accused to participate in the selection of his or her jury, peremptory challenges "teaches" the accused, and the community at large, that the jury is the proper institution to adjudicate the matter. Moreover, the accused will see that he or she has received a fair trial because, "in a real sense the jury belongs to the litigant".

[66] More recently, in R. v. Spiers (2012), 113 O.R. (3d) 1, [2012] O.J. No. 5450, 2012 ONCA 798, the Court of Appeal had occasion to review the jury selection process when it was discovered that the state had conducted background checks on prospective jurors. The court stated, at paras. 57-60:

In evaluating the impact of the jury vetting in this case, it is important to consider the role that jury selection and the peremptory challenge system have in ensuring that trials are fair and are perceived as such.

In R. v. Cloutier, 1979 25 (SCC), [1979] 2 S.C.R. 709, the Supreme Court of Canada had occasion to comment on the Criminal Code provisions dealing with jury selection. The court rejected any interpretation of the jury selection provisions that "would disrupt the balance clearly established by the legislator between the rights of the accused and those of the prosecution": p. 10. Quoting from Morin v. The Queen [1890], 18 S.C.R. No. 407, at p. 424, the court emphasized the importance of respecting the jury selection process and not affording the Crown or defence any advantage of privilege not afforded by law.

The object of the law certainly is to secure the prisoners a fair trial. How can this be accomplished if he is deprived of the privilege the law gives him in the selection of the jury by whom he is to be tried?

In the present instance the objection taken is not raised on a mere technicality but is that the jury to whom the prisoner shall be given in [page638] charge shall be legally selected, chosen and sworn, and that neither the crown nor the prisoner shall have any advantage of privilege other than those conferred by law; but when the privileges are conferred by law they shall rigidly be respected.

The court in Cloutier also explained that the right to peremptorily challenge is discretionary. It is not directed at those who could be challenged for cause. As the court explained at p. 9:

The very basis of the right to peremptory challenges, therefore, is not objective but purely subjective. The existence of the right does not rest on facts that have to be proven, but rather on the mere belief by a party in the existence of a certain state of mind in the juror. The fact that a juror is objectively impartial does not mean that he is believed to be impartial by the accused or the prosecution; Parliament, when allowing each party a number of peremptory challenges, clearly intended that each party have the right to remove from the jury a number of individuals whom he does not believe to be impartial, though he could not provide evidence in support of such belief. The very nature of the right to peremptory challenges and the objectives underlying it require that its exercise be entirely discretionary and not subject to any condition.

Put differently, disruptions in the peremptory challenge process will not result in a jury or jurors that can be shown to be partial. Instead, it will impair one or other party's ability to fashion a jury that the party, subjectively, considers to be impartial.

[67] Formerly, both Crown and defence had an equal number of peremptory challenges, a direct "say" in who ends up as a juror to hear the case.[^4]

Section 11(d)

[68] What protection is afforded an accused under s. 11(d) of the Charter? This is easily addressed by the very specific language found in the section.

[69] What considerations or test ought to be engaged to determine whether there is a breach of s. 11(d) of the Charter?

[70] In determining whether s. 11(d) rights have been violated, the Supreme Court of Canada has applied the following test: Whether a reasonable person, fully informed of the circumstances would have a reasonable apprehension of bias: R. v. Valente, 1985 25 (SCC), [1985] 2 S.C.R. 673, [1985] S.C.J. No. 77, at pp. 684-85 S.C.R.

[71] In Bain, Stevenson J., at p. 93 S.C.R., explained that it is not whether the tribunal is actually so but whether it is perceived as such:

The test for both judicial independence and impartiality is whether the tribunal may be reasonably perceived as such. A jury need not be found to be actually [page639] partial before an infringement of the Charter is found. The informed observer's perception that the system of selecting jurors impairs impartiality is sufficient. If one party enjoys a greater influence, the observer need only have a reason-able apprehension of partiality.

[72] I accept that the instructive ruling in Bain clearly sets out the standard for constitutionality, not only in respect of partiality itself, but the perception of partiality as well.

[73] During oral argument, Mr. Shime, on behalf of the applicant, addressed who the "reasonable person" might be for the purpose of the s. 11(d) analysis. He suggested that the "reasonable person" adapts over time to the shifting racial, ethnic and cultural makeup of our society. Thus, Mr. Shime proposed that at present day, the "reasonable person" might be more similarly situated to Mr. King, than to a privileged white male. However, counsel did not explicitly advocate that this Court apply the modified subjective test.

The right to an impartial jury

[74] As mentioned, the jury's independence and impartiality are enshrined in s. 11(d) of the Charter and are central features of Canadian criminal law. An impartial jury is an essential element of the fairness of the trial.

[75] There is a strong presumption of juror impartiality. In R. v. Kokopenace, [2015] 2 S.C.R. 398, [2015] S.C.J. No. 28, 2015 SCC 28, the Supreme Court considered a variety of important issues affecting the composition of a jury.

[76] In R. v. Find, [2001] 1 S.C.R. 863, [2001] S.C.J. No. 34, 2001 SCC 32, at para. 1, the Supreme Court held that an impartial arbiter is essential to a jury trial:

Trial by jury is a cornerstone of Canadian criminal law. It offers the citizen the right to be tried by an impartial panel of peers and imposes on those peers the task of judging fairly and impartially.

[77] Impartiality connotes absence of bias, actual or perceived. It refers to a state of mind or attitude of the court (or triers of fact), in relation to both the issues and the parties in the case: Valente, at p. 685 S.C.R.

[78] In Sherratt, at p. 526 S.C.R., the Supreme Court held: "However, the 'in-court' selection procedure, set out in the Criminal Code, can impact on the representativeness of the jury in some situations. The impartiality of the jury is controlled in the main through the Criminal Code procedure. Section 11(d) of the Charter further buttresses the requirement of impartiality."

[79] Recently, Ferguson J. considered this issue in Raymond,at para. 104: [page640]

[T]he new legislation raises the question whether the changes

have struck a comparable balance to that:

". . . comprehensive scheme designed to ensure as fair a jury

as is possible and to ensure that the parties and the public

at large are convinced of its impartiality" approved of in

Barrow? No accused has the right to a particular

"scheme." What the right entails is that the "scheme" is

substantively composed of those constituent elements that

achieves a fair and impartial jury.

[80] Thus, the jurisprudence suggests that while challenges for cause may be a more direct means, both types of challenges are a mechanism to ensuring the impartiality of the jury. In cases where challenges for cause are not present, the significance of the peremptory challenge in ensuring impartiality would undoubtedly be enhanced.

[81] Further, peremptory challenges are most crucial to the impartiality of the jury precisely when challenges for cause are exercised. Peremptory challenges are said to serve a "shield" function: Bain, at p. 152 S.C.R. This shield function relates to after challenges for cause are exercised and partiality concerns for a juror are not met. Peremptory challenges also serve as a "shield" or guarantor of impartiality in situations where the challenge for cause process might, inadvertently, lead to partiality.[^5]

[82] The repeal of peremptory challenges has altered the in-court selection process in a fundamental manner. The applicant argues that since the new provisions neither add new mechanisms, nor bolster existing ones, it can no longer be said that the Criminal Code's in-court selection procedure provides for an impartial jury. Essentially, Bill C-75 provides no additional mechanisms to substitute for the loss of the peremptory challenge's "shield" function.

The right to a representative jury

[83] The concept of a representative jury is enshrined in the Charter.

[84] Representativeness is an essential component of s. 11(d) and (f) of the Charter. The role of jury representativeness under s. 11(d) is limited to its effect on independence and impartiality. In R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, [1998] S.C.J. No. 49, at para. 46, the Supreme Court held that representativeness is an important guarantor of impartiality. More recently, in R. v. Yumnu, [2010] O.J. No. 4163, 2010 ONCA 637, 260 C.C.C. (3d) 421, affd [2012] 3 S.C.R. 777, [2012] S.C.J. No. 73, 2012 SCC 73, Watt J.A. stated, at para. 17: [page641]

To ensure impartiality and, to some extent at least, the representativeness of the jury, the Criminal Code authorizes two kinds of challenge that may be made in relation to prospective jurors. Challenges for cause are available to ensure the impartiality of prospective jurors. Peremptory challenges may help to ensure representativeness on the jury.

[85] Because representativeness is a key characteristic of the jury, its absence will automatically undermine the s. 11(f) right to a trial by jury, even if it is not so serious as to undermine impartiality under s. 11(d): Kokopenace, at para. 57. The requirement is a "representative cross-section of society, honestly and fairly chosen": Sherratt, at p. 524 S.C.R.

[86] Moldaver J. discussed this concept in Kokopenace, at para. 39:

There is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society. Courts have consistently rejected the idea that an accused is entitled to a particular number of individuals of his or her race on either the jury roll or petit jury.

[Citations omitted]

[87] As L'Heureux-Dubé J. explained in Sherratt,at p. 525 S.C.R., an absence of representativeness fundamentally undermines the jury's raison d'être:

The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place.

[88] However, it should be noted there is no right to a jury of a particular composition. No person is entitled to a jury composed of favourable jurors, nor jurors who share the same race, ethnicity, religion, occupation, lifestyle, gender, or other characteristics. This is so for a number of reasons. Consider the comments of Rosenberg J.A. in R. v. Brown, 2006 42683 (ON CA), [2006] O.J. No. 5007, 215 C.C.C. (3d) 330 (C.A.), at para. 22:

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.

The positions of the parties

[89] Representativeness finds it way in both s. 11(d) and (f). The applicant argues that s. 11(f) enhances representativeness, relying on Kokopenace, at para. 57. This section protects slightly different but companion interests. Section 11(f) is more results driven, as opposed to s. 11(d) which deals with process. Mr. Shime [page642] concedes that a fulsome, separate examination is not necessarily required, but that I need at least turn my mind to these sections.

[90] Interestingly, the language of s. 11(f) imports the words ""to the benefit of a trial by jury". The word "benefit" has not been directly interpreted, although in Kokopenace, the Supreme Court assigns s. 11(f) a broader role in respect of representativeness: at para. 57. In any event, Kokopenace, at para. 55, endorses its previous decision in Sherratt. It is crucial that the public trust in the criminal justice system is maintained by the adequate protections afforded an accused in the jury selection process.

[91] Nonetheless, despite the language in s. 11(f) and statements from the Supreme Court, for the purposes of this specific application, I agree with the Crown that there is no distinct or broader test to be applied for s. 11(f); beyond that which I will deal with in my full analysis pertaining to s. 11(d).

[92] The applicant says that both aspects of the amendments critically undermine the guarantee of a representative jury. First, the elimination of peremptory challenges undermines the ability of an accused to ensure that he is tried by a jury of his peers. Second, by transferring the power to determine any sort of subjective discretion to the trial judge, impartiality is eroded.

[93] The applicant suggests that McMahon J. erred in relying on Kokopenace for the assertion that the notion of representativeness is limited to the jury roll. The applicant says that McMahon J. did not go far enough in the analysis and ignored jurisprudence that relates to representativeness. The notion of representativeness applies outside of the jury roll process. In other words, representativeness in the jury roll process is necessary but not sufficient for finding a lack of a representative jury overall.

[94] The Crown relies on Chouhan to suggest the notion of representativeness has no role in the in-court selection process. In essence, once the jury roll is deemed to be representative, the concept has no further place in the analysis.

[95] The applicant suggests that the issue of representativeness can be considered in a different context: representativeness at the individual stage, the in-court jury selection process. What the requirements might be for the state to satisfy its constitutional representativeness obligation at this stage of the process has yet to be determined.

Representativeness applies to the in-court selection process

[96] While it has now become standard for courts to invoke the desiderata of representativeness and impartiality in the case law dealing with jury selection, the precise meaning and entailments of these characteristics are in need of clarification. Particularly in [page643] light of the Court of Appeal for Ontario's decision in R. v. Gayle (2001), 2001 4447 (ON CA), 54 O.R. (3d) 36, [2001] O.J. No. 1559, 154 C.C.C. (3d) 221 (C.A.), there is some confusion in the jurisprudence on jury selection as to what representativeness in the jury selection process actually entails; and what relationship it bears to the characteristic of impartiality.[^6]

[97] In Kokopenace, the Supreme Court had occasion to address any questions arising from Gayle and dealt with representativeness at the institutional stage of the jury selection process. Moldaver J., for the court, held that "in defining representativeness as it pertains to the jury roll, the focus is on the process, not the result": Kokopenace, at para. 46 [emphasis added]. The court sets out the requirements for the state to satisfy its constitutional obligation for representativeness but only as it pertains to the jury roll.I read the court's qualifying statement as an indicator that representativeness has a role to play outside the jury-roll process.

[98] In Sherratt, the majority of the Supreme Court recognized [at p. 526 S.C.R.] that "the 'in-court' selection procedure . . . can impact on the representativeness of the jury in some situations". This was affirmed in Bain, at p. 113 S.C.R., Cory J. writing for the majority:

Indeed, in order to bolster the impartiality of the jury, the Criminal Code offers to the parties various means of challenging prospective jurors, whether collectively or individually, at ss. 558 (now s. 629), 562 (now s. 633), 563 (now s. 634) and 567 (now s. 638) of the Code.

[99] In Sherratt, the court found that peremptory challenges can "in certain circumstances, produce a more representative jury depending upon both the nature of the community and the accused": pp. 532-33 S.C.R. This sentiment was echoed by the Court of Appeal for Ontario in Yumnu, at para. 17. Thus, I cannot agree with the Crown that the notion of representativeness is exhausted where the jury roll is deemed representative.

[100] It seems to me from the principles underlying representativeness in Kokopenace, that the emphasis be on the process and not the result, is apposite to the in-court selection process. The focus of representativeness, globally, is to ensure that "it protects the accused's right to an adequate jury selection process": Kokopenace, at para. 56. Ensuring representativeness in the in-court selection process is a fundamental piece of the accused's right.

[101] Although the Crown argues that the revised stand by provision may be geared to making juries "more representative"; [page644] he concedes that the undefined language of s. 633, gives rise to issues of how far this "revised" approach or faculty extends; or, how it is to be engaged. As Danyliuk J. noted in R. v. Dorion, [2019] S.J. No. 383, 2019 SKQB 266, at para. 36:

The section itself does not state that this process may be used to ensure a jury is "more representative", but the discussions leading to its passage use this as a rationale. More representative of what? Of whom?

[102] While Parliament's intent may have been to improve representativeness on the jury by removing peremptory challenges, the effect on the applicant has been the opposite. The applicant has lost his only certain means of directly participating in the jury selection process to secure the representativeness of the jury that will ultimately decide his fate.

[103] The means to directly participate in the jury selection process, through peremptory challenges, is the process by which representativeness is guaranteed. Just as the accused is not entitled to a particular jury composition arising from the jury roll, the accused is not entitled to a particular result through the exercise of peremptory challenges.

[104] In keeping with the thrust of the Supreme Court's statements as to the process versus results dichotomy in Kokopenace, at para. 46, in my view, the Supreme Court did not restrict the notion of representativeness to the jury roll.

[105] Consequently, the concept of representativeness applies to the in-court process. Thus, the accused's constitutional right to a fair jury trial selection process includes his or her direct participation.

Peremptory challenges and the right to a fair trial

[106] Section 11(d) of the Charter confirms that every accused tried in Canada is entitled to a fair trial. While a fair trial does not depend solely on the view and preferences of the accused, the Supreme Court has held that "in a criminal trial the fairness of the process must be primarily assessed from the point of view of the accused": see R. v. E. (A.W.), 1993 65 (SCC), [1993] 3 S.C.R. 155, [1993] S.C.J. No. 90, at p. 198 S.C.R.

[107] The Law Reform Commission of Canada summarized the importance of peremptory challenges in this regard in its Working Paper 27: The Jury in Criminal Trials (Ottawa: Minister of Supply and Services Canada, 1980), at p. 54:

[The importance of the peremptory challenge] lies in the fact that justice must be seen to be done. The peremptory challenge is one tool by which the accused can feel that he or she has some minimal control over the make up of the jury and can eliminate persons for whatever reason, no matter how illogical or irrational, he or she does not wish to try the case. [page645]

[108] This premise was recognized by the Court of Appeal for Ontario in Gayle. Recall that Gayle was a case involving the discriminatory use of peremptory challenges by the Crown. At para. 59, the court held "[t]he justification for allowing peremptory challenges is that they foster confidence in the jury trial process. An accused may have a 'hunch' about a prospective juror that cannot be proved. A lingering doubt about the juror's partiality would taint the perception of a fair trial."

[109] Recall that in Gayle,the issue was the Crown's use of peremptory challenges is a discriminatory manner. At paras. 59-60, Sharpe J.A. stated:

An important part of the jury selection process is the right of both the Crown and the defence to exercise peremptory challenges. The very essence of a peremptory challenge is that its exercise requires no justification or explanation. Peremptory challenges ordinarily may be exercised on grounds that are not provable and unable to withstand objective scrutiny: Cloutier v. The Queen, 1979 25 (SCC), [1979] 2 S.C.R. 709, 48 C.C.C. (2d) 1 pp. 720-71 S.C.R., at pp. 20-21 C.C.C. No doubt the right of peremptory challenge is often exercised in an effort to secure what the party hopes will be a sympathetic jury. The justification for allowing peremptory challenges is that they foster confidence in the jury trial process. An accused may have a "hunch" about a prospective juror that cannot be proved. A lingering doubt about the juror's partiality would taint the perception of a fair trial. In a passage adopted in R. v. Bain at p. 525 C.C.C. and in Cloutier at p. 20 C.C.C., Blackstone explained this as follows (W.D. Lewis, ed., Commentaries on the Laws of England, vol. 4 (Philadelphia: Rees Welsh & Co., 1897) at p. 1738):

As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life), should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike.

By offering each side a limited number of peremptory challenges, the law allows the parties to eliminate unprove