In English, American and Australian law, the right of peremptory challenge is a right in jury selection for the attorneys to reject a certain number of potential jurors without stating a reason. Federal laws of canada. November 23, 2020. Future changes to the composition of juries, he contends, will need to be brought back to Parliament Hill, not to the courts. This comment looks at the nature of the submissions made by the parties in Chouhan, particularly those of the interveners representing advocacy and equity-seeking groups, regarding the constitutionality and significance of the abolition of peremptory challenges. Peremptory Challenge vs. peremptory challenge: The right to challenge a juror without assigning, or being required to assign, a reason for the challenge. The following comments from Karatkasanis, J, speaking for a unanimous Supreme Court of Canada in R. v. Davey, [2012] S.C.J. 638(1)(b) and 640(1) of the Code. 11(d) and 11(f) of the Charter,” as it eliminated “the only tool […] available to an accused person to ensure that the few jury panel members who may share the accused’s background were not left off the petit jury” (Factum of the Intervener, CMLA and FACL, paras 18-19). The authority for the peremptory challenge process is found in the Criminal Code of Canada. © 2018 Osgoode Hall Law School. As such, defence counsel frequently challenge jurors to reach an ethnic juror who can be selected. In early October, the Supreme Court of Canada (“SCC” or “The Court”) heard submissions in R v Chouhan (Docket Number 39062, Heard on 7 October 2020) [Chouhan] on the constitutionality of the federal government’s abolition of peremptory challenges for jury empanelment under the Criminal Code, RSC 1985 c C-46 [Code]. ... Peremptory … After the court clerk randomly selects the initial prospective juror from the judicially pre-screened panel, the judge will call upon defence counsel first to indicate whether the individual is acceptable ("content") or subject to a peremptory challenge ("challenge"). Peremptory challenge When selecting a jury, each party has the right to have a certain number of jurors dismissed from serving on the panel without stating a reason: R. v. Bain (1992), 69 C.C.C. In other words, the accused and the Crown could reject potential jurors from serving without providing any reasons. A peremptory challenge would be used by the defense to excuse the grandmother from the jury. The nature of some of the Justices’ questions signalled similarly conflicting concerns over the abolition of peremptory challenges. 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms [Charter]. Key changes in a federal bill, which has passed third reading, involve peremptory challenges during jury selection and use of preliminary inquiries. OTTAWA — The Supreme Court of Canada has ruled that banning peremptory challenges — a move that allows lawyers to reject a potential juror without giving any explanation … The case of Pardeep Singh Chouhan, who is charged with first-degree murder over a 2016 shooting, is at the centre of a Supreme Court of Canada battle over the rules of jury selection. All rights reserved. (4) Peremptory Challenges. BY Justin Ling 19 Oct 2020. Abolishing peremptory challenges by Crown or defence is no knee-jerk quick fix, as some claim. We can’t ask the Court to fix all of our bad policy.”. In oral submissions, Professor Roach stated that the Court ought to provide guidance on how the new power to stand by prospective jurors on reasons for maintaining public confidence in the administration of justice should be exercised. (3d) 481 at 520, [1992] 1 S.C.R. Counsel for Ms. Baptiste similarly noted that the “truth-seeking function of the trial process” cannot be enhanced where jurors are excluded for their Indigenous identity, and that the accused’s ability to do so in Stanley “likely had the effect of discrediting the trueness of the jury’s verdict” (Factum of the Intervener, Debbie Baptiste, para 36). Crown counsel, as local ministers of justice, exercise that choice on behalf of the public. Marginal note: Plea of justification necessary 612 (1) The truth of the matters charged in an alleged libel shall not be inquired into in the absence of a plea of justification under section 611 unless the accused is charged with publishing the libel knowing it to be false, in which case evidence of the truth may be given to negative the allegation that the … What becomes evident in looking at the interveners’ submissions on both sides of the peremptory challenge debate is that they are essentially vying for the same goal: adequate representation and participation of racialized and Indigenous people within the criminal justice system. OTTAWA — The Supreme Court of Canada has ruled that banning peremptory challenges — a move that allows lawyers to reject a potential juror without giving any explanation — is constitutional, upholding legislation passed by the Liberal government in 2019. Box 272, Halifax, N.S.,B3J 2N7, Office: (902) 446-7669Cell: (902) 209-1982(emergencies), Advocacy (Part Thirteen): Aspire to Resonate. In doing so, it highlights the key tensions at play in this case and considers whether a balance between the competing arguments for the constitutionality of peremptory challenges can in fact be struck. No. The number of peremptory challenges available to each counsel depends upon several case-specific factors, including the maximum potential punishment for the most serious offence charged (Criminal Code s. 634). As the Canadian Association for Black Lawyers (“CABL”) contended, providing further powers to trial judges to make a determination of bias or discrimination “does not give an accused person comfort that the trial judge’s discretion will be exercised in a way that is mindful of racial bias,” especially since the majority of judges are white (Factum of the Intervener, CABL, para 38). The accused's lawyer challenged every Indigenous jury candidate through peremptory challenges. As SABA argued, the lived experience of racism and discrimination by racialized and Indigenous accused must be given sufficient weight in the jury selection process, and so they must be allowed to peremptorily challenge some jurors because “[i]t is often impossible to articulate a specific reason why a juror may not be suitable and it may come down to an unfriendly glance, a suspicious glare, or an unwillingness to look at the accused at all.” (Factum of the Intervener, SABA, para 12). 91. In early October, the Supreme Court of Canada (“SCC” or “The Court”) heard submissions in R v Chouhan (Docket Number 39062, Heard on 7 October 2020) [Chouhan] on the constitutionality of the federal government’s abolition of peremptory challenges for jury empanelment under the Criminal Code, RSC 1985 c C-46 [Code]. Mr. Chouhan’s conviction was thus set aside and remitted for a new trial as the ONCA found that he was entitled to use the peremptory challenges under the old legislation (R v Chouhan, 2020 ONCA 40). Site by Hop Creative, 5475 Spring Garden Road, Suite 701P.O. A peremptory challenge would be used by the defense to excuse the grandmother from the jury. Tags: challenge for causeconstitutional validityCriminal Lawjury selectionperemptory challengeright to fair hearingright to trial by jurystand by power. — This website is not authorized by the Supreme Court of Canada. Challenge for Cause During voire dire, each attorney is allowed to dismiss up to a specified number of potential jurors without giving a reason. by giving a good reason why they might be unable to reach a fair verdict, but the challenge will be considered by the presiding judge and … As Toronto-based criminal lawyer Annamaria Enenajor pointed out on Twitter following the SCC hearing, “So many of today’s arguments (especially by interveners) in #Chouhan are arguments to be made in front of Parliament, not the #SCC. Each side is entitled to the number of additional peremptory challenges to prospective alternate jurors specified below. In addition to the peremptory challenge process, section 638 of the Criminal Code also provides for a "challenge for cause" - for example, when case specific factors (pre-trial publicity, race-based prejudices...) raise a realistic concern as to whether the panel of prospective jury members could be predisposed to decide the case in favour of the prosecution. It is likely, however, that these are overly optimistic expectations of the Court’s forthcoming decision. . The decision, R. v. King, 2019 ONSC 6386, which found disallowing peremptory challenges would violate Charter rights, stoked a heated … The U.S. Supreme Court has ruled that no party to a legal action can remove a potential juror based on race. On one side, those in favour of abolition contended that peremptory challenges had historically been used for discriminatory purposes by keeping racialized and Indigenous people off of juries, especially where the victim is a racialized or Indigenous person. BY Anita Balakrishnan 07 Nov 2019. Parliament’s outright abolition of the challenges, the coalition of the Canadian Muslim Lawyers Association (“CMLA”) and the Federation of Asian Canadian Lawyers (“FACL”) submitted, was “overbroad and unnecessarily impairing of the rights guaranteed by ss. Our ... jury selection process ensures equality of influence over the composition of the jury as between the parties. That change, according to the Canadian Association of Black Lawyers, was a dangerous misstep. The Tragedy of Colton Boushie – Jury Selection in Canada and Peremptory Challenges By: A. Scott Reid. (3d) 481 at 520, [1992] 1 S.C.R. The state will be called upon first for the next randomly selected individual, and the order then alternates back and forth until twelve jurors are selected. The peremptory challenge cases across Canada lay bare the tension between different momentums in the system. Two years ago, the federal government axed peremptory challenges, removing the ability of Crown and defence counsel to reject potential jurors out-of-hand, without any need to explain. On October 7, 2020, the highest court in Canada confirmed in R. v. Chouhan that the removal of peremptory challenges, which allows both Crown and Counsel to dismiss a potential juror without giving reason did not breach individual rights. Canada's highest court ruled from the bench on Wednesday that a law passed by the federal Liberal government to diversify juries is constitutional. Other peremptory orders may be made by the court, such as setting a peremptory trial date, which cannot be changed or challenged by either party. “The elimination of the peremptory challenge does make the justice system more transparent, but without removing either parties’ ability to set aside potential jurors for articulable reasons,” McMahon wrote. They argued that such safeguards would create “a procedural and substantive quagmire” by lengthening the jury selection process and causing further litigation, especially since, the DACCR contended, discrimination is difficult to prove (Factum of the Intervener, DACCR, paras 14, 28). ALS noted that the persistent exclusion of Indigenous people from juries “has a corrosive impact on the jury process,” and that “[a]ny attempt to remedy Indigenous underrepresentation on juries will be subverted when potential Indigenous jurors see that they are deliberately excluded from serving because of their Indigeneity” (Factum of the Intervener, ALS, para 17). 75, at para. Saskatchewan River Region Indian-European Trade Relations to 1840 Copyright © 2015 - 2021, Luke J. Merrimen. While each side approaches this common goal in ways completely at odds with one another, what this case demonstrates is that Parliament has failed to establish a balanced approach to allowing racialized and Indigenous people to participate in the criminal justice system, whether as a lay person, a victim, or an accused. The right to a fair trial is not breached by the elimination of peremptory challenges of jurors and letting judges handle challenges for cause, an Ontario Superior Court of Justice judge said, ruling that the changes should be applied to jury picks beginning Sept. 19. The written and oral submissions of the many interveners in Chouhan exposed the divisive debate over Parliament’s abolition of peremptory challenges from the Code. Similarly, there ought to be greater clarity from the Court on whether judicial notice should be taken with respect to the lived experiences of racialized and Indigenous people in recognizing instances of bias and discrimination among prospective jurors. 32, provide additional insight into the peremptory challenge process: ...the Criminal Code gives the parties a limited opportunity to object to specific jurors chosen from the jury list. . Counsel in Canada have very limited information to draw upon when deciding whether to exercise a peremptory challenge - the jury panel list that counsel receives in advance of the trial date contains only the name, address, and occupation of each prospective juror. On the other side, the position is that racialized and Indigenous accused should be able to see themselves represented in a jury panel, and that their subjective experiences of racism and discrimination should be relevant to achieving a fair and impartial trial by jury. In particular, the DACCR rejected the argument that any sort of additional procedural safeguards could ensure that peremptory challenges were not used in a discriminatory way. “Peremptory challenges just are really asking lawyers to rely on their stereotypes about the person they see,” said Jonathan Rudin with Aboriginal Legal Services in Toronto. In addition to the submissions of the Crown, the majority of the parties intervening in support of the abolition of peremptory challenges focused on the discriminatory risks associated with their use. The Crown subsequently appealed the ONCA’s decision to the SCC on the issue of the temporal application of the amendments, and Mr. Chouhan cross-appealed on the constitutional finding. A peremptory challenge may be used by either party to a legal action in the jury-selection phase, to dismiss a potential juror without stating a reason. A comprehensive analysis of the ONCA’s ruling can be found in Sabrina Shillingford’s article from earlier this year. Taking away this tool from the accused and giving trial judges greater discretion to determine whether a juror is impartial or should stand by for reasons of public confidence in the administration of justice will potentially lead to further proliferation of racial bias within the criminal justice system. (A) One or Two Alternates. In a jury trial we conducted this last fall, … During the selection of a jury, both parties to the proceeding may challenge prospective jurors for a lack of impartiality, known as a challenge for cause. While no explanation or reason is given for dismissal via peremptory challenge, if Laws & Examples The purpose of the jury selection process is to seat a fair, unbiased jury. This number varies by jurisdiction, but is generally between 6 and … Joshua Sealy-Harrington, counsel for the BCCLA, noted in a recent interview that the Court’s interpretation of the challenge powers are unlikely to go very far, since judges are hesitant to participate in the composition of juries. On the other side, those in favour of maintaining peremptory challenges argued that they are an important tool for the accused—particularly racialized and Indigenous accused—to eliminate biased jurors from the panel and thus obtain the benefit of an impartial trial by jury as protected under ss. On the one hand, Justices Moldaver and Brown appeared troubled by the risk of arbitrariness and reliance on stereotypes in the use of peremptory challenges. On one side, there is the argument that racialized and Indigenous people should not be denied the chance to participate in the jury process based on their cultural and racial identity, especially where victims of crimes are themselves racialized or Indigenous.