I. Overview

[1] Bill C-75,[^1] which received Royal Assent on June 21, 2019, is an omnibus bill that addresses a variety of different substantive and procedural criminal law matters. Among other things, the Bill changes the Criminal Code’s jury selection provisions by: (i) eliminating the statutory entitlement of the defence and the Crown to peremptorily challenge prospective jurors; (ii) reassigning to the trial judge the power to decide challenges for cause, which was previously exercised by two lay “triers”; and (iii) giving trial judges an expanded power to stand aside prospective jurors for the purpose of “maintaining confidence in the administration of justice”.

[2] Bill C-75’s jury selection amendments came into force on September 19, 2019. Surprisingly, however, the legislation does not expressly state whether these changes should be applied retrospectively – that is, to all criminal jury selections conducted on or after September 19, 2019, regardless of when the alleged offences were committed – or only prospectively, either in cases where the defendant is charged with an offence that is alleged to have been committed on or after this date, or in cases where the defendant’s statutory right to a jury trial had not vested prior to this date. As discussed further below, this omission has caused great confusion and extensive litigation in criminal courts across Canada.

[3] The Applicant Michael Craig is charged with child luring and obtaining sexual services for consideration from a person under the age of eighteen. These offences are all alleged to have been committed before Bill C-75 was first introduced in the House of Commons in March 2018. On September 18, 2018, while Bill C-75 was still before Parliament, he elected a jury trial. As noted above, the Bill then received Royal Assent in June 2019 and its jury selection amendments came into force in September 2019, approximately a year after Mr. Craig elected his mode of trial. His jury trial is scheduled to begin early in January 2020.

[4] Mr. Craig’s co-Applicant Nikita Pouzanov faces a charge of second degree murder.[^2] He was charged with this offence in January 2018, a few months before Bill C-75 was first tabled in Parliament. Because Mr. Pouzanov is charged with an offence that is listed in s. 469 of the Criminal Code, he is not entitled to elect his mode of trial but must be tried by a court composed of a judge and jury unless the Crown consents to a trial by judge alone, which in his case the Crown has not done.[^3] Mr. Pouzanov’s jury trial is scheduled to begin in May 2020.

[5] The two Applicants have each brought pre-trial applications in which they seek rulings that Bill C-75’s jury selection amendments do not apply retrospectively to them. Apart from this common legal issue, their cases are otherwise unrelated. I heard the two applications together on November 12-13, 2019, sitting as a case management judge under Part XVIII.1 of the Criminal Code in relation to both proceedings.

[6] Since neither of the Applicants intends at his trial to challenge prospective jurors for cause, they both focus their attention on the Bill C-75 amendment that abolishes peremptory challenges in criminal trials by repealing s. 634 of the Criminal Code. They acknowledge that this amendment must be considered in conjunction with the amendment that expands the judicial power to stand aside prospective jurors. If the amendment repealing s. 634 is interpreted as applying only prospectively, s. 634 would continue to apply at their trials and they would each be entitled to make up to twelve peremptory challenges of prospective jurors, as provided by s. 634(2)(b). The Crown would also be entitled to peremptorily challenge prospective jurors as provided under this subsection.[^4]

II. Prior cases addressing the temporal effect of Bill C-75

[7] The statutory interpretation issue the Applicants raise has already received considerable judicial attention in the time since the Bill C-75 jury selection amendments took effect in September 2019. It has now been addressed in at least twenty-four superior court decisions from eight different provinces. Nine of these decisions – eight from Ontario[^5] and one from Nova Scotia[^6] – have concluded that the Bill C-75 jury selection amendments operate retrospectively. However, thirteen decisions from six other provinces – British Columbia,[^7] Alberta,[^8] Saskatchewan,[^9] Manitoba,[^10] Quebec[^11] and New Brunswick[^12] – have reached the opposite conclusion and held that the new jury selection provisions should be interpreted to apply only prospectively. In addition, there are at least two other recent decisions from Ontario that have found or implied that Bill C-75’s elimination of peremptory challenges should be understood as applying only prospectively.[^13] Prosecutors from different Crown agencies have also taken conflicting positions on this question, and some Crown offices have changed their positions since the amendments first took effect.[^14]

[8] Bill C-75 also amended the Criminal Code provisions governing preliminary inquiries. Previously, any defendant charged with an indictable offence other than one listed in s. 553 had a statutory right to choose to have a preliminary inquiry if he or she elected to be tried in the superior court. Bill C-75 changes this by limiting the option of having a preliminary inquiry to persons who are charged with offences that carry a maximum punishment of fourteen years imprisonment or more. This amendment also came into force on September 19, 2019 but, as with the amendments dealing with jury selection, the Bill did not expressly state whether it should be understood as applying retrospectively or prospectively.

[9] The Ontario Court of Appeal has very recently resolved this latter question, holding in R. v. R.S., 2019 ONCA 906 that the preliminary inquiry amendments do not apply retrospectively to defendants who made their elections to have preliminary inquiries before the amendments took effect on September 19, 2019. While the question before me is different insofar as I am dealing with a different aspect of the Bill C-75 amendments, Doherty J.A.’s reasons in R.S. are nevertheless highly instructive.

III. General principles regarding the temporal effect of legislation

[10] The general principles that determine whether legislation should be interpreted as acting retrospectively or prospectively are discussed at length by both the majority and the dissent in R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, which is now the leading Supreme Court of Canada judgment on the issue. These principles can be summarized as follows:

(a) “[T]he cases in which legislation has retrospective effect must be exceptional”: Dineley, supra at para. 10;

(b) Legislation that affects “vested or substantive rights” will be presumed to operate prospectively unless “it is possible to discern a clear legislative intent that it is to apply retrospectively”: Dineley, supra at para. 10;

(c) “[N]ew procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases”: Dineley, supra at para. 10;

(d) However, procedural provisions that “affect substantive rights … are not purely procedural and do not apply immediately”: Dineley, supra at para. 11;

(e) The “key task” of a court dealing with this issue “lies not in labelling the provisions ‘procedural’ or ‘substantive’, but in discerning whether they affect substantive rights”: Dineley, supra at para. 11;

(f) “[C]onstitutional rights are necessarily substantive”, and “[w]hen constitutional rights are affected, the general rule against the retrospective application of legislation should apply”: Dineley, supra at para. 21.

(g) Even if a law that infringes a Charter right is found to be justified under s. 1, this “does not alter the fact that constitutional rights are affected” and accordingly does not displace the principle that the law should operate only prospectively in the absence of a clear legislative statement to the contrary: Dineley, supra at para. 21.

[11] In Cobb v. Long Estate, 2017 ONCA 717 at para. 94, MacFarland J.A. emphasized that the “[c]ommon-law presumptions on temporal application of legislation are simply aids in the identification of legislative intent.” She noted at para. 80 that these presumptions apply “within a contextual analysis of legislative intent, and contextual analysis can rebut the presumption.” In other words, other principles of statutory interpretation can sometimes lead to a different conclusion than might otherwise be reached simply by applying the Dineley criteria.

IV. The parties’ positions

[12] The Applicants rely on Dineley to make two alternative arguments for why Bill C-75’s abolition of peremptory challenges in the criminal jury selection process should be interpreted as applying only prospectively. First, they argue that even though the statutory provisions governing jury selection are procedural in nature, the amendments affect their “substantive rights”. As part of this argument, they maintain that the changes “affect” their s. 11(f) Charter right to a trial by jury within the meaning of Dineley, whether or not their s. 11(f) rights would actually be infringed if the new amendments were interpreted to apply to them. Second, in the alternative, the Applicants argue that their ss. 7, 11(d) and 11(f) rights would in fact be infringed if the jury selection amendments were understood as applying to them retrospectively. (Under Dineley, however, finding an actual Charter breach would necessarily lead to the conclusion that the amendments do not apply retrospectively).

[13] Both Applicants initially framed this second argument as a request for a declaration of constitutional invalidity under s. 52 of the Constitution Act, 1982. In its responding materials the Crown indicated that if I were to find a Charter violation it would then request an adjournment to make further submissions on the issue of s. 1 justification.

[14] However, if I were to find that the amendment abolishing peremptory challenges “affects” a Charter right, this would necessarily mean, per Dineley, that the amendment also does not apply retrospectively to the Applicants. This would be true whether or not applying the amendment to the Applicants would actually infringe their Charter rights, and regardless of whether this infringement could be justified under s. 1. In these circumstances, the parties eventually agreed that I should decide the case on the basis of the statutory interpretation issue and leave the constitutional issues to be determined in a future case where their resolution will affect the outcome.

[15] The Crown’s position is that the amendments at issue are purely procedural and neither infringe nor “affect” any Charter rights. The Crown argues that a law should only be understood as “affecting” a Charter right within the meaning of Dineley if it actually infringes the right, even if the infringement can be justified under s. 1.

V. Analysis

A. Prior judicial decisions addressing the Bill C-75 jury selection amendments

[16] As discussed above,[^15] there are now at least twenty-four judicial decisions from across Canada that have addressed the question of whether the Bill C-75 jury selection amendments operate retrospectively or prospectively. A majority of these decisions have concluded that the new jury selection provisions operate only prospectively. However, a majority of the decisions from Ontario have reached the opposite conclusion and found that the jury selection amendments apply retrospectively. This judicial disagreement is unsurprising, since judges on both sides of the interpretive debate have agreed that the question defies an easy answer, describing it variously as “a thorny one”[^16], “a close call”,[^17] and as involving “obviously complicated issues”.[^18]

[17] There are also now at least five Ontario decisions that have addressed the constitutionality of the amendment abolishing peremptory challenges in criminal jury selection. Four of these decisions have found the amendment to be constitutional.[^19] However, in a fifth decision, R. v. King, 2019 ONSC 6386, Goodman J. found that the elimination of peremptory challenges violates ss. 7, 11(d) and 11(f) of the Charter in a manner that cannot be saved under s. 1. He proceeded to make a s. 52 declaration that the repeal of s. 634 of the Criminal Code was of no force or effect. Although Goodman J. did not expressly address the question of whether this amendment would have operated retrospectively if he had not struck it down, it necessarily follows from his finding that the amendment violates multiple Charter rights that he would also have been satisfied that it “affects constitutional rights”, which under Dineley would mean that the amendment should be understood as operating only prospectively (Dineley, supra at para. 21).

[18] I am accordingly faced with conflicting superior court decisions on three different points of law:

(i) Whether the Bill C-75 jury selection amendments apply retrospectively or prospectively: The predominant view outside Ontario has been that they apply only prospectively, but within Ontario the predominant but not universal view to date has been that they apply retrospectively;

(ii) Whether the elimination of peremptory challenges in criminal jury selection violates the Charter: as discussed above, four Ontario decisions have found this aspect of the Bill C-75 amendments to be constitutional, but a fifth decision has found it unconstitutional and declared the repeal to be of no force or effect;

(iii) Whether the s. 52 declaration of constitutional invalidity made in King, supra binds other Ontario Superior Court judges: There is conflicting recent Ontario case law on this issue. One line of authority holds that s. 52 declarations are binding on everyone, including other judges of coordinate jurisdiction, unless and until they are set aside on appeal.[^20] The competing line of authority treats s. 52 declarations as no different from any other non-binding judicial decisions by a court of coordinate jurisdiction, which should be followed as a matter of comity unless they are “plainly wrong”.[^21]

[19] For reasons I will elaborate on, I have concluded that the Bill C-75 amendment eliminating peremptory challenges should be understood as operating only prospectively. This makes it unnecessary for me to address the constitutionality of the amendment or to attempt to resolve the disagreement in the case law over whether I am bound by the s. 52 declaration of constitutional invalidity made by Goodman J. in R. v. King, supra.

B. Judicial comity

[20] While I am not bound by any of the previous superior court decisions from either inside or outside Ontario that have interpreted the temporal effect of the Bill C-75 jury selection amendments, the principle of judicial comity would require me to follow prior Ontario decisions on this question unless there is a “cogent reason” not to do so. See R. v. Scarlett, 2013 ONSC 562 at para. 43. The object of this principle is to avoid creating “conflicting opinions emanating from the same Court and therefore of the same legal weight”: Re Hansard Spruce Mills Ltd., 1954 CanLII 253, [1954] 4 D.L.R. 590 (BCSC) at p. 591 D.L.R.

[21] In my view, the principle of judicial comity does not require me to adopt the majority Ontario position that the abolition of peremptory challenges operates retrospectively. I have reached this conclusion for three main reasons.

[22] First, the principle of judicial comity does not apply when “the validity of [a prior] judgment has been affected by subsequent decisions”: Scarlett, supra at para. 43; Hansard Spruce Mills Ltd., supra at p. 593 D.L.R. In my view, the Ontario Court of Appeal’s very recent decision in R. v. R.S., supra, although not directly on point, nevertheless “affects” the prior judgments that have addressed the temporal operation of the jury selection amendments, and requires them to be reassessed in light of the Court of Appeal’s reasoning. This was also the conclusion recently reached by my colleague Bird J. in R. v. Gong (unreported decision, November 18, 2019).

[23] Second, the principle of judicial comity only applies when there is no conflicting prior jurisprudence on the point in issue from courts of coordinate jurisdiction. It is well-settled that courts faced with conflicting decisions from a higher court are entitled “under the rules of stare decisis to follow the ruling they think is the correct one”.[^22] The same must also be true when a judge is faced with non-binding conflicting decisions by his or her judicial colleagues. As discussed above, there are now conflicting Ontario Superior Court decisions on the question of whether the elimination of peremptory challenges should be understood as prospective or retrospective. My colleague Bird J. recently held that the amendment operates only prospectively, and this same conclusion is necessarily implied by my colleague Goodman J.’s conclusion that this amendment is unconstitutional. Although a majority of the Ontario decisions to date have reached the opposite conclusion, judicial comity does not compel me to agree with the majority view when other judges of coordinate jurisdiction have already disagreed with it.

[24] Third, it is well settled that the principles of stare decisis permit lower courts to depart from otherwise binding higher court decisions “when a new legal issue is raised” that was not considered by the higher court: see Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at paras. 42-44. If the binding force of stare decisis is relaxed in this situation, the same must necessarily be true of the far looser constraints of judicial comity. In the case at bar, the Applicants have made a s. 11(f) Charter argument that does not seem to have been raised or squarely addressed in most of the previous Ontario cases. The prior judgments that found the elimination of peremptory challenges to operate retrospectively all focused instead on whether this change affects the s. 11(d) right to a fair trial by an independent and impartial tribunal. As I will discuss, the question of whether the change affects the s. 11(f) right to the benefit of a trial by jury raises different issues.

C. The Dineley factors as applied in R. v. R.S.

[25] The selection of a jury is unquestionably a “procedural” step in a criminal trial. However, as Deschamps J. emphasized in Dineley, supra (at para. 11), the “key task” of a court “lies not in labelling the provisions ‘procedural’ or ‘substantive’, but in discerning whether they affect substantive rights”.

1. The Applicants had a statutory right to exercise peremptory challenges prior to Bill C-75

[26] In R.S., supra, Doherty J.A. began his analysis of Bill C-75’s amendments to the Criminal Code’s preliminary inquiry provisions by observing that defendants who had elected to have preliminary inquiries before the new provisions took effect had acquired a “statutory right” to this procedure because they “had fulfilled all of their conditions precedent to the exercise of their right to a preliminary inquiry before September 19, 2019” (at para. 39). It was irrelevant that the Crown could have ousted this statutory right by preferring a direct indictment, since as Doherty J.A. explained (at para. 40):

The classification of a right as acquired or existing is based on the facts as they stand when the new legislation comes into force, not on the possibility that some future event might alter the factual matrix and affect the exercise of that right.

[27] Doherty J.A. distinguished the Ontario Court of Appeal’s prior decision in R. v. Hafeez, 1996 CanLII 437 (Ont. C.A.), where a legislative change that gave the Crown the option of proceeding summarily on the charge against the accused was found to operate retrospectively even though it resulted in the accused losing his ability to elect a jury trial. He noted that the legislation in Hafeez had taken effect before the accused had made any attempt to elect a jury trial,[^23] and explained (at para. 44):

The accused in Hafeez had, at best, the possibility of acquiring a right to a specific mode of trial and a preliminary inquiry. Those rights did not exist when the amendments came into force, but were contingent on his future decisions. The amendments permitting the Crown to choose between proceeding by indictment or summarily did not interfere with any right the accused in Hafeez had acquired as of the enactment of the amendments.

[28] Likewise, in the case at bar the Applicants both acquired “statutory rights” to exercise peremptory challenges well before Bill C-75 was enacted or the repeal of the right to peremptory challenges took effect. Mr. Craig’s statutory right became locked in when he formally elected a jury trial in September 2018, which was well before Bill C-75 received Royal Assent and approximately a year before the amendment abolishing peremptory challenges took effect. For his part, Mr. Pouzanov acquired his statutory right to exercise peremptory challenges even earlier, when he was first charged in January 2018 with an offence for which a jury trial is mandatory. At the time he was charged Bill C-75 had not yet been introduced in Parliament. Unlike the accused in Hafeez, there was nothing more that either Mr. Craig or Mr. Pouzanov had to do to claim their right to a jury trial and their accompanying statutory right to peremptorily challenge prospective jurors during the selection process.

[29] It is also worth noting that unlike the situation in R.S., where the Crown could in theory prevent the accused from having a preliminary inquiry by preferring a direct indictment, the pre-Bill C-75 Criminal Code scheme provided no mechanism by which defendants’ statutory right to exercise peremptory challenges could later be taken away from them. Once the Applicants acquired their statutory right to a jury trial, either by election or by operation of statute, they could not be compelled to have a different mode of trial or to give up their right to peremptorily challenge prospective jurors during jury selection other than by a statutory amendment.

2. The loss of peremptory challenges would “impinge on” the Applicants’ substantive rights

[30] The second question Doherty J.A. asked in R.S. was whether losing the statutory procedural right to a preliminary inquiry would “impinge on, or negatively affect, the substantive rights of the appellants” (at para. 47). He concluded that it would, since a discharge at the conclusion of a preliminary inquiry will often bring the case to an end, or at least reduce the accused’s potential jeopardy at trial. It did not matter that the Crown can override a discharge by preferring a direct indictment, nor did it matter that complete discharges at the conclusion of a preliminary inquiry are relatively rare. As Doherty J.A. explained (at para. 57):

The characterization of the right to obtain a discharge as affecting an accused’s liberty and security interests does not depend on how many accused would be successful in obtaining a discharge. For those accused who would obtain a discharge, the elimination of the preliminary inquiry significantly and negatively impacts on their liberty and security of the person.

On Doherty J.A.’s analysis, it was irrelevant that the statutory right to a preliminary inquiry was not “itself a substantive right”[^24] or “that there is no constitutional right to a preliminary inquiry”,[^25] since losing the opportunity to have a preliminary inquiry would nevertheless affect the accused’s substantive and Charter-protected rights.

[31] The situation with respect to peremptory challenges is somewhat different. The jury selection process does not itself directly affect the accused’s liberty or security of the person interests. However, the right to have a jury trial, unlike the purely statutory right to have a preliminary inquiry, is itself constitutionally protected. The Applicants argue that peremptory challenges should be understood as an inherent aspect of the right to a trial by jury that is guaranteed by s. 11(f) of the Charter. They argue further that even if peremptory challenges are not constitutionally required, losing their statutory right to them “affects” their exercise of their s. 11(f) rights.

[32] Before turning to these arguments, I will first address the argument that has been made in other cases that eliminating peremptory challenges violates or affects defendants’ s. 11(d) and/or s. 7 Charter rights. The Applicants’ referred to ss. 7 and 11(d) in their written materials but at the hearing focused their submissions on s. 11(f). However, in R. v. King, supra Goodman J. concluded that the elimination of peremptory challenges infringes both ss. 7 and 11(d) of the Charter as well as s. 11(f). McMahon J. reached the contrary conclusion in R. v. Chouhan, supra, as have several other judges of this court. I will accordingly begin by addressing this debate.

a) Section 11(d)

[33] As noted above, the prior Ontario cases that have interpreted the Bill C-75 jury selection amendments as operating retrospectively focused largely or entirely on the s. 11(d) Charter right to a fair trial by an impartial and independent tribunal: see, e.g., Lako, supra, at para. 35; Chouhan, supra at paras. 110-11. This appears to have been the basis on which these cases were primarily argued.

[34] I agree with the conclusion reached in these decisions that eliminating peremptory challenges does not infringe or “affect” defendants’ s. 11(d) rights within the meaning of Dineley, since I am satisfied, essentially for the reasons set out by McMahon J. in Chouhan, that juries empaneled under the new selection rules will still be independent and impartial and capable of conducting fair trials.

[35] It necessarily follows from this that I do not agree with Goodman J.’s holding in King, supra that the elimination of peremptory challenges violates s. 11(d). He reached this conclusion for two main reasons. First, he concluded that “the concept of representativeness applies to the in-court process”, and that “the accused’s constitutional right to a fair jury trial selection process includes his or her direct participation” (King, supra at para. 105). Second, he concluded that the s. 11(d) right to a fair trial requires the defendant’s subjective perception of the fairness of the proceedings to be taken into account in the objective analysis. As he put it (at paras. 175-76):

In my opinion, the reasonable person apprised of all the circumstances, in determining whether a trial is fair, would give due consideration to the accused’s subjective perception on the fairness of the trial.

…There are numerous instances in the law where courts describe how peremptory challenges enhance confidence for the particular accused and for the community’s sense of fairness. The lack of direct participation in the process by an accused and the potential for perception of partiality gives rise to a breach of his or her rights.

[36] As I will discuss below, I am open to the possibility both that criminal defendants may have a constitutionally protected right to participate directly in the jury selection process, and that the accused’s subjective perception of the fairness of his or her jury trial may be a constitutionally protected interest. However, I believe that any expression of these rights in the Charter must be situated in s. 11(f) rather than s. 11(d).

[37] Section 11(d) applies to all criminal trials, whether by jury or judge alone or by some other tribunal (e.g., a military court martial). A criminal defendant who is tried by judge alone has no right to “directly participate” in choosing the judge who will preside over his or her trial, and cannot prevent a particular judge from sitting because the accused has a subjective and objectively unsupported belief that this judge might not be impartial. Likewise, we do not ordinarily consider a trial conducted by a judge in this situation to be unfair, or appear unfair, merely because the accused lacks subjective confidence in its fairness for no objectively good reason. To the extent that these concerns acquire any constitutional weight in the special context of jury trials, I believe it makes more sense to treat them as aspects of the s. 11(f) right, which is specific to jury trials, rather than incorporating them into the broader and more general s. 11(d) right, where they would have to come with the special caveat that they apply only to juries.

b) Section 7

[38] In his reasons in King, supra, Goodman J. also found that the elimination of peremptory challenges infringes defendants’ s. 7 Charter rights. He reached this conclusion by applying the Supreme Court of Canada’s s. 7 overbreadth jurisprudence, finding that Parliament’s decision to abolish peremptory challenges in order to prevent their discriminatory use was unconstitutionally overbroad because it eliminated them even in cases where discrimination was not a live concern.

[39] However, s. 7 only prohibits overbroad laws that deprive people of life, liberty or security of the person, and requires there to be a “sufficient causal connection” between the law at issue and this deprivation (see, e.g., Bedford, supra at paras. 74-78). In my respectful opinion, Goodman J. erred by assuming that this threshold was crossed merely because the accused faces the possibility of imprisonment at the conclusion of his or her trial, without considering whether this deprivation of liberty was sufficiently causally connected to the elimination of peremptory challenges. In my view, the removal of a statutory procedural right in the jury selection process will only trigger a loss of liberty that does not accord with the principles of fundamental justice if it results in the trial itself no longer conforming with these principles. I agree with McMahon J.’s conclusion in Chouhan that any constitutional concerns relating to the criminal trial process can be addressed through s. 11, and that nothing is gained in this context by invoking s. 7.

c) Section 11(f)

[40] Even if the elimination of peremptory challenges does not infringe or affect defendants’ ss. 7 or 11(d) Charter rights, this does not end the analysis, since the amendment may still infringe or affect their s 11(f) rights. The right guaranteed by s. 11(f) is different from the rights guaranteed by s. 11(d), even though there is some overlap.

[41] As Gonthier J. noted in R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91 at pp. 112-13 (dissenting in the result, but not on this point):

Jury trials are a central element of Anglo-American criminal law. Sometimes lauded, sometimes vilified, trial by jury has withstood the test of time and has acquired such an importance that it has been entrenched in our Constitution through s. 11(f) of the Charter.

Section 11(f) guarantees defendants the “benefit of trial by jury” but does not define what the word “jury” should be understood to mean in this context. However, as Blair J.A. noted in R. v. Bryant, 1984 CanLII 2026 (ON CA), [1984] O.J. 3404 at para. 16 (Ont. C.A.), “the true significance of the right of trial by jury can only be understood by reference to its history”. It follows that ascertaining the meaning of the term “jury” in s. 11(f) will to a significant extent be a historical exercise.

[42] I accept as a starting premise that not every tribunal, no matter how fair, impartial, and independent, will qualify as a “jury” for s. 11(f) Charter purposes. For instance, it seems clear that Parliament could not legislatively deem a panel of twelve superior court judges to be a “jury”. While it would be difficult to argue that such tribunal would not be independent, impartial and capable of conducting a fair trial, it would fly in the face of centuries of Anglo-Canadian legal tradition to declare a panel of judges to be a “jury”. As Blair J.A. noted in Bryant, supra at para. 16:

Trial by jury is an institution unique to common law countries. It is more than a mere incident of criminal procedure. It has been described as a pillar of the Constitution and praised as a palladium of liberty. This is because the rights and freedoms of individuals in our society have been protected from the power of the State to launch prosecutions and control the appointment of judges by the requirement that guilt on any charge must be proved to the satisfaction of 12 ordinary citizens.

Section 11(f) must be situated in this historical context. In my view, there is no real question that a law requiring defendants to be tried by a panel of judges rather than by a “jury of their peers” would violate s. 11(f), even though defendants who subjected to this mode of trial would have no basis for complaining that their s. 11(d) rights were being infringed.

[43] It follows that there must be some set of core irreducible attributes that a tribunal must possess for it to be considered a “jury” within the meaning of s. 11(f). At least some of these essential qualities have already been identified by the courts. In R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509 at p. 524, L’Heureux-Dubé J. noted that the modern jury:

… 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.

She elaborated on this point at p. 525, explaining:

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.

The cases have also recognized the importance of random selection of jurors from the broader community as method of achieving the goals of representativeness and impartiality. As Moldaver J. noted in R. v. Yumnu, 2012 SCC 73 at para. 40, “[r]andomness and representativeness are two of the qualities we look for in juries”.

[44] However, the cases also recognize that the historical development of the jury and its associated selection procedures has been influenced by other policy concerns that go beyond the goals of representativeness and impartiality. Peremptory challenges, which appear to have already been an established feature of English jury selection as early as the fourteenth century,[^26] have come to be understood as a way of ensuring that juries are not only impartial, but that they are perceived as impartial by the parties, especially by the defendant who is on trial and whose liberty is at stake. In R. v. Gayle, 2001 CanLII 4447 (Ont. C.A.), Sharpe J.A. explained (at paras. 59-60):

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 CanLII 25 (SCC), [1979] 2 S.C.R. 709, 48 C.C.C. (2d) 1 at pp. 720-21 S.C.R., 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 unprovable but perceived concerns about the propensities of jurors and thereby enhance confidence in the impartiality of the jury and the fairness of the trial.

In Bain, supra Gonthier J. adopted Professor Babcock’s terminology of the “didactic” and “shield” functions of the peremptory challenge and stated (at p. 116):

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).

[45] The policy goal of promoting defendants’ acceptance of jury trial verdicts by giving them a measure of agency in the jury selection process sometimes conflicts with the goal of promoting jury representativeness. In Sherratt, supra, L’Heureux-Dubé J. discussed this tension, explaining (at pp. 532-33):

While it may be, in some instances, that the peremptory challenges allocated to the accused and the Crown, and the Crown's additional right to stand aside, will be used by the parties to alter somewhat the degree to which the jury represents the community, peremptory challenges are justified on a number of grounds. The accused may, for example, not have sufficient information to challenge for cause a member of the panel he/she feels should be excluded. Peremptory challenges can also, in certain circumstances, produce a more representative jury depending upon both the nature of the community and the accused. Challenges of this nature also serve to heighten an accused's perception that he/she has had the benefit of a fairly selected tribunal.

[46] The Applicants submit that s. 11(f) of the Charter should be understood as directed at achieving both of these traditional and sometimes competing policy goals. They argue further that the goal of promoting the parties’ subjective perceptions of fairness can only be achieved by giving them some measure of direct control over the jury selection process.

[47] The Applicants acknowledge that the s. 11(f) cases to date have not identified this aspect of traditional jury selection procedure as something that warrants constitutionally protected status, but point out that this issue has never arisen previously, since before Bill C-75 the peremptory challenge had always existed in Canadian criminal law as an indefeasible and unchallenged statutory right.

[48] The Applicants also accept that Parliament can regulate and limit the use of peremptory challenges in order to balance the competing goals of promoting representativeness and promoting the parties’ perception of fairness, but submit that eliminating these challenges entirely upsets the balance to an unconstitutional degree. While the Applicants recognize that defendants will still be able to ask the trial judge to stand aside jurors whom they would previously have been able to challenge peremptorily, they maintain that this is an inadequate substitute. In their view, shifting the power to block the empanelment of potentially problematic jurors from the defence to the trial judge constitutes a “subtle erosion” of the traditional separation between the jury – the “palladium of liberty” that shields the individual from “the power of the State to launch prosecutions and control the appointment of judges”[^27] – and the judiciary.

[49] The Crown agrees that s. 11(f) of the Charter requires juries to have certain essential features, but argues that the qualities that have previously been identified as essential in the jurisprudence – namely, impartiality and representativeness, achieved in part through random selection – are an exhaustive list of what s. 11(f) demands.

[50] Crown counsel also notes that peremptory challenges are an imperfect means of achieving their ostensible goal of promoting the accused’s subjective confidence in trial fairness – since the accused can run out of peremptory challenges and be forced to accept a juror he or she mistrusts – and argues that they cannot for this reason be seen as constitutionally required. The Crown argues further that if s. 11(f) does require the defence to have some limited measure of control over the jury selection process, the ability to make submissions to the trial judge asking to have a prospective juror stood aside serves as a constitutionally adequate substitute for the traditional peremptory challenge.

[51] These competing arguments raise difficult and complex issues. I agree with the Applicants that the existing s. 11(f) jurisprudence should not be understood as definitively ruling out the possibility that s. 11(f) might require something more than that juries be representative, impartial and selected randomly. I also agree that the s. 11(ƒ) right must be understood purposively, and that any additional elements of the right are likely to be derived by examining the history of the jury and its associated procedures and their purposes. I agree further that the history of the peremptory challenge in Anglo-Canadian criminal law puts it on the short list of procedures that might warrant recognition as a further essential aspect of the s. 11(f) right. I also do not agree with the Crown that the fact that the peremptory challenge is only an imperfect tool for achieving its established purposes rules out the possibility that it might have entrenched status in s. 11(f). Procedural protections do not have to be perfect to be valuable and worthy of constitutional status. For instance, prior authorization regimes that regulate police searches are recognized as constitutionally required by s. 8 of the Charter, even though they are not a foolproof procedure and they do not absolutely guarantee that unreasonable searches will never be authorized by mistake.

[52] At the same time, I acknowledge that the long history and tradition of peremptory challenges does not automatically mean that they should be recognized as an essential aspect of the constitutionally protected right to a trial by jury. While by no means dispositive of the question, it gives me pause that the United States Supreme Court, despite describing the peremptory challenge as “one of the most important of the rights secured to the accused”[^28], has nevertheless “consistently held that there is no freestanding constitutional right to peremptory challenges.”[^29] I also acknowledge the force of the Crown’s argument that the enhanced judicial stand-aside power may prove to be an adequate alternative method of achieving the goals that were previously seen as served by the peremptory challenge.

[53] However, I need not resolve these questions here, because I am satisfied that whether or not the Bill C-75 jury selection amendments infringe s. 11(f), the elimination of the peremptory challenge “impinges on or negatively affects” defendants’ exercise of their right to a trial by jury. Dineley holds that laws that “affect” constitutional rights should generally be understood as operating prospectively. Deschamps J.’s use of the term “affects” rather than “infringes” must in my view be understood as intentional, and as Dambrot J. noted in R. v. McMillan, supra “[u]ndoubtedly ‘affect’ is a broader term than either ‘impair’ or ‘breach’” (at para. 8). I do not accept the Crown’s argument that the Dineley presumption of prospective effect only applies when there is an actual infringement of Charter rights. This narrow reading of Dineley cannot in my view be reconciled with the Ontario Court of Appeal’s analysis in R.S., supra, where Doherty J.A. concluded that removing the statutory right to a preliminary inquiry had a “meaningful and direct impact on an accused’s liberty and security of the person interests”, but where there was no suggestion that defendants’ s. 7 Charter rights would actually be infringed by the amendment at issue.

[54] One thing is ordinarily said to “affect” something else if it “has an effect on” or “makes a difference” to the second thing.[^30] In my view, the elimination of peremptory challenges from the jury selection process “has an effect on” the constitutional right to a jury and “makes a difference” to the exercise of this right, even if it does not go so far as to infringe the right. Juries empaneled under the new selection system will often be differently constituted than the juries that would have been selected if the parties had been able to exercise peremptory challenges. In at least some cases this will affect the outcome of the trial. The Bill C-75 amendments importantly change what it means to have a jury trial in a criminal case, whether or not these changes are constitutional.

[55] Moreover, the ability of the defence to assert a small measure of direct control over the composition of the jury by making peremptory challenges has long been recognized as “an important part of the jury selection process”[^31] that has considerable value to the defendant whose liberty will be at stake in the trial. As discussed above, the peremptory challenge is meant to “heighten an accused's perception that he/she has had the benefit of a fairly selected tribunal”.[^32] As in R.S., supra it does not matter whether some, all or only a few defendants will regret the loss of this statutory right and feel less confident that they are receiving a fair trial, although there is no particular reason to suppose that the impact of the change will not be widely felt. From the accused’s perspective, the loss of the statutory right to peremptorily challenge prospective jurors diminishes the value of having a Charter-protected right to a trial by jury. At least some defendants who might otherwise have elected a trial by jury may for this reason now choose not to exercise this constitutional right.

[56] The Crown argues that the fact that a legislative change may affect a defendant’s tactical choices regarding Charter rights is not determinative. As an example, the Crown notes that a change to the rules of evidence – which has always been understood as a procedural change that is presumed to act retrospectively – may strengthen the Crown’s case against a defendant by making previously inadmissible evidence admissible, which may in turn induce the defendant to waive his or her constitutionally protected right to a trial. While I agree that not every legislative change that could influence an accused’s choice about exercising Charter rights can necessarily be seen as “affecting” those rights within the meaning of Dineley, the difference between the situation here and the Crown’s example is that the Bill C-75 amendments directly affect the nature of the right guaranteed by s. 11(f). A trial by jury conducted under the new jury selection scheme will be meaningfully different from a trial by jury conducted under the previous system, for better or worse. In my view, the amendments directly “affect” the s. 11(f) right, whether or not they rise to the level of infringing that right.

[57] I should add a similar argument about how s. 11(f) rights are affected by the elimination of peremptory challenges was recently raised before my colleague Bird J in R. v. Gong, supra. Like me, she also had the benefit of the Ontario Court of Appeal’s very recent decision in R.S., supra. She also concluded that the elimination of peremptory challenges “affects” s. 11(f) rights with the meaning of Dineley. I agree with her analysis and her conclusion.

3. Is the presumption rebutted?

[58] As noted above, the Dineley presumptions are not irrebuttable, but simply serve as a heuristic for determining legislative intent in the absence of a clear and unambiguous statement by the legislature. In R.S., supra, Doherty J.A. concluded that the presumption that Parliament had not intended the Bill C-75 amendments limiting the availability of preliminary inquiries to operate retrospectively had not been rebutted, explaining (at paras. 60-62):

There is no evidence of a parliamentary intention to apply the amendments retrospectively. Had Parliament intended to do so, it could have inserted the appropriate transitional provision. There is none.

A review of the customary sources resorted to in interpreting legislation does not suggest any intention to apply the amendments retrospectively. While it is clear that the purpose of removing the preliminary inquiry from most proceedings was to reduce the delay, costs, and negative impact on witnesses and others associated with preliminary inquiries, the evidence does not suggest that a retrospective application of the amendments would reduce delay or costs. As is evident in the reasons of several Ontario judges, there is a strong argument that the retrospective application of the amendments would, in the short term, cause delay and add costs to the prosecution and defence of some charges: …

This is also not a case in which a retrospective application of the amendments is the only feasible or workable interpretation of them. I see no practical impediment to treating the appellants as being entitled to preliminary inquiries in those cases in which they have elected trial in the Superior Court of Justice and requested a preliminary inquiry prior to the enactment of the amendments. This is apparently what is happening in the rest of the country and even in federal prosecutions in Ontario. [Footnote and citations omitted.]

Most of these comments apply with equal force to the Bill C-75 amendments eliminating peremptory challenges.

[59] The Crown refers to statements by the Parliamentary Secretary to the Minister of Justice in which he described the abolition of peremptory challenges as a “major improvement” to the jury selection process that would “improve the diversity of juries”. The Crown argues that it can be inferred that Parliament would have wanted this “improvement” to take effect as soon as possible. While statements by a single legislator generally cannot be used to draw inferences about the intention of Parliament as a whole, I am prepared to assume that Parliament considered the new jury selection amendments to be an improvement over the old procedure. Indeed, it is probably safe to say that Parliament would not otherwise have passed these amendments. However, it does not follow that Parliament necessarily intended the amendments to come into force immediately, without clear advance warning. To the contrary, the uncertainty surrounding the temporal operation of the jury selection amendments has caused a great deal of confusion and delay in the criminal courts. In the Central East Region of Ontario, where I sit, jury selections in other cases have had to be adjourned so that the legal and constitutional issues raised by the amendments could be litigated on short notice. This has caused considerable inconvenience to hundreds of ordinary citizens who took time out of their lives to come to court to perform their civic duty as jurors, only to be told to go away and come back later. To make matters worse, once the debate over the temporal application of the new amendments is finally resolved by the appellate courts, there is now a significant risk that at least some of the trials conducted by juries that turn out to have been selected using the “wrong” procedure will have to be re-done, at great financial expense and even greater human cost to the participants. In my view, it cannot reasonably be inferred that this was what Parliament intended.

VI. Conclusions

[60] For these reasons, my ruling is that the Bill C-75 amendments eliminating peremptory challenges should be interpreted as operating only prospectively, and that the trials of Mr. Craig and Mr. Pouzanov and Mr. Campsall should accordingly each be conducted pursuant to the former Criminal Code statutory scheme, in which they and the Crown will be entitled to exercise peremptory challenges as provided in s. 634(2)(b).

[61] Having reached this conclusion, it is unnecessary for me to address or decide the Applicants’ alternative argument that the Bill C-75 jury selection amendments would infringe their Charter rights if these amendments did apply to them. It is also unnecessary for me to consider or decide whether any Charter infringements could be justified as reasonable limits under s. 1.

[62] I should emphasize that while I have expressed my disagreement with Goodman J.’s conclusion that the elimination of peremptory challenges violates criminal defendants’ ss. 7 and 11(d) Charter rights, I am expressly not deciding whether this aspect of the Bill C-75 amendments will, once it takes effect, violate future defendants’ s. 11(f) Charter rights. I have also not addressed the question of whether I am bound by Goodman J.’s s. 52 declaration of constitutional invalidity notwithstanding my disagreement with some aspects of his reasons. If I am bound by his s. 52 declaration, this would lead me to the same conclusion about how Mr. Craig and Mr. Pouzanov and Mr. Campsall’s trials should be conducted that I have reached by a different reasoning path.

Dawe J.

Released: November 22, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MICHAEL CRAIG

HER MAJESTY THE QUEEN

– and –

NIKITA POUZANOV

RULING (BILL C-75 JURY SELECTION AMENDMENTS)

DAWE J.

Released: November 22, 2019

[^1]: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts. [^2]: Mr. Pouzanov’s co-accused Mr. Clifford Campsall did not join or participate in the application. [^3]: See Criminal Code, ss. 471 and 473. [^4]: The Crown would also have twelve peremptory challenges in Mr. Craig’s case, but would have twenty-four peremptory challenges in Mr. Pouzanov’s case because he is scheduled to be tried with a co-accused, Mr. Campsall, who would also have twelve peremptory challenges. [^5]: R. v. Lako and McDonald, 2019 ONSC 5362; R. v. Chouhan, 2019 ONSC 5512; R. v. MacMillan, 2019 ONSC 5616; R. v. Khan, 2019 ONSC 5646; R. v. Khursid and Phillips, 2019 ONSC 5825; R. v. Kakekagumick, 2019 ONSC 6008; R. v. Muse, 2019 6119; and R. v. Maggiore and Sharpe, 2019 ONSC 6212. [^6]: R. v. Cumberland, 2019 NSSC 307. [^7]: R. v. Subramaniam, 2019 BCSC 1601; R. v. Nazarek, 2019 BCSC 1798. [^8]: R. v. S.B., 2019 ABQB 836; R. v. Kebede and Liao, unreported oral decision; R. v. Levaillant, 2019 ABQB 837. [^9]: R. v. Dorion, 2019 SKQB 266; R. v. Stanley, 2019 SKQB 277. [^10]: R. v. Ismail et al., 2019 MBQB 150. [^11]: R. c. Lindor, 2019 QCCS 4232; R. c. Bebawi, 2019 QCCS 4393; R. c. Simara, 2019 QCCS 4394. [^12]: R. v. Raymond, 2019 NBQB 203; R. v. LeBlanc, 2019 NBQB 241. [^13]: R. v. Gong, unreported, November 18, 2019 (Ont. S.C.J.); R. v. King, 2019 ONSC 6386. King does not directly address the temporal application of the Bill C-75 amendment eliminating peremptory challenges. However, Goodman J.’s conclusion that this amendment is unconstitutional necessarily implies that it must also be understood not to operate retrospectively (see below). [^14]: In British Columbia, the provincial Crown took the position in R. v. Subramaniam, supra that the jury selection provisions should be interpreted as operating retrospectively, but changed its position in R. v. Nazarek, supra and urged the court to follow the holding in Subramaniam that the provisions operate prospectively. In Alberta the provincial Crown unsuccessfully argued for a retrospective interpretation in the three cases cited at footnote 8, but later announced that in view of these decisions it would no longer oppose defence requests to interpret the provisions as operating only prospectively. The Public Prosecution Service of Canada initially took the position that the amendments operated retrospectively (see, e.g. R. v. Leblanc, supra at para. 4), but in late October 2019 PPSC counsel across Canada were instructed they should to now take the position that the provisions operate only prospectively. [^15]: See para. 7, supra. [^16]: R. v. Stanley, supra at para. 10. [^17]: R. v. Raymond, supra at paras. 109-10; R. v. Khan, supra at paras. 15, 30; R. v. Dorion, supra at para. 26; R. v. Stanley, supra at para. 11. [^18]: R. v. Cumberland, supra at para. 79. [^19]: R. v. Chouhan, supra; R. v. Kakekagumick, supra; R. v. Muse, supra; and R. v. Gordon, 2019 ONSC 6508. Gordon addresses the constitutional issue without addressing the retrospectivity issue, while the other three decisions address both points. [^20]: See, e.g., R. v. Sarmales, 2017 ONSC 1869; R. v. Ali, 2017 ONSC 4531; R. v. McCaw, 2018 ONSC 3464; R. v. Bruce, 2019 ONSC 5865. [^21]: See, e.g. R. v. Chan, 2019 ONSC 783; R. v. Gordon, supra. [^22]: Young et al. v. 503708 Ontario Ltd.; Alex Murray Real Estate Co., Third Party, 1986 CanLII 2471 (Ont. H.C.J.). [^23]: Indeed, there was no indication in Hafeez that the accused, who ultimately entered a guilty plea, had ever had any interest in a jury trial. The question of whether the Crown’s summary election made under the new legislation was valid only arose when the accused brought an inmate appeal against sentence in the Court of Appeal, and the Crown pointed out that he was in the wrong court on account of the summary election. [^24]: R. v. R.S., supra at para. 49. [^25]: R. v. R.S., supra at para. 55. [^26]: See R. v. Raymond, supra at para. 50. [^27]: R. v. Bryant, supra at para. 16. [^28]: Pointer v. United States, 151 U.S. 396 at p. 408 (1894). [^29]: Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446 at p. 1453 (2009). [^30]: Oxford Dictionary definition. [^31]: R. v. Gayle, supra at para. 59. [^32]: R. v. Sherratt, supra at p. 533

R. v. Craig, 2019 ONSC 6732

Case Summary

I. Overview

II. Prior cases addressing the temporal effect of Bill C-75

III. General principles regarding the temporal effect of legislation

IV. The parties’ positions

V. Analysis

A. Prior judicial decisions addressing the Bill C-75 jury selection amendments

B. Judicial comity

C. The Dineley factors as applied in R. v. R.S.

1. The Applicants had a statutory right to exercise peremptory challenges prior to Bill C-75

2. The loss of peremptory challenges would “impinge on” the Applicants’ substantive rights

a) Section 11(d)

b) Section 7

c) Section 11(f)

3. Is the presumption rebutted?

VI. Conclusions

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 2