Charter section 11

R v Chouhan: The Supreme Court of Canada finds room for disagreement

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By Wei Yang

On June 25, 2021, the Supreme Court of Canada (SCC) released its reasons for judgement in R v Chouhan,1 a case that the Asper Centre intervened in last year.

Background

Mr Chouhan was charged with first-degree murder and was thus entitled to a trial by jury. His trial date was scheduled for September 19, 2019, the same day that legislation eliminating peremptory challenges and substituting the trial judge as the trier for challenges for cause took effect.2 Prior to the new law, a limited number of peremptory challenges were available for both the accused and the Crown to dismiss potential jurors without cause.3 Challenges for cause used to be heard by lay triers instead of the trial judge.4

The federal government introduced this legislation in response to the trial of Gerald Stanley, who was charged with murder in the death of Colten Boushie, an Indigenous man. Mr Stanley was acquitted by a jury composed of zero Indigenous persons – a result of Mr Stanley’s peremptory challenges against five Indigenous prospective jurors.5

Mr Chouhan argued before his trial that the elimination of peremptory challenges violated his ss. 7, 11(d), and 11(f) Charter rights.6 If the amendments were constitutional, Mr Chouhan argued that they applied prospectively and not to his trial.7 The trial judge determined that there were other sufficient jury selection protections and the amendments were purely procedural.8 Therefore, the law was constitutional and applied to all trials after entering into force, including Mr Chouhan’s; neither party was entitled to peremptorily challenge any prospective jurors. Mr Chouhan was convicted.

At appeal, the Court of Appeal for Ontario rejected Mr Chouhan’s constitutional arguments, echoing the trial judge’s finding that other jury-related protections such as representative jury rolls, judicial excusals, and challenges for cause sufficiently preserved Mr Chouhan’s ss. 11(d) and 11(f) rights.9 However, the Court of Appeal held that his substantive right to peremptory challenges was nevertheless affected.10 Therefore, the amendments applied prospectively and Mr Chouhan was entitled to peremptory challenges.11

At the Supreme Court of Canada

The Crown appealed on the temporal applicability issue and Mr Chouhan cross-appealed on the constitutional question.12 The Supreme Court of Canada released its decision from the bench: Wagner CJ declared that a majority of the Court believed that the amendments were constitutional and purely procedural. The appeal was allowed, the cross-appeal was dismissed, and the conviction was restored.

The SCC released its divided reasons eight months later. Writing the joint reasons for judgement (alongside four other sets of reasons) Wagner CJ, Moldaver and Brown JJ held that s. 11(d) does not entitle anyone to a particular jury process.13 The question to be asked on a s. 11(d) challenge is “whether a reasonable person, fully informed of the circumstances, would consider that the new jury selection process gives rise to a reasonable apprehension of bias so as to deprive accused persons of a fair trial before an independent and impartial tribunal”, citing Valente v The Queen.14 They agreed with the lower courts that representative jury rolls, the randomness of jury selection, unlimited challenges for cause, and the judge’s power to excuse (or stand aside) prospective jurors protect the independence and impartiality of the tribunal and thus the amendments were constitutional.15 In addition, the changes were purely procedural and applied retrospectively.16 The justices found that abolishing peremptory challenges will likely increase the representativeness of the jury.17 The justices specifically noted, however, that jury diversity is not constitutionally required.18

Wagner CJ, Moldaver and Brown JJ proceeded to define the scope of the existing protections. First, trial judges should consider issuing jury charges and instructions to militate against unconscious bias.19 With challenges for cause, jurors should be asked relevant questions related to circumstances of the case and whether they can set aside compromising beliefs.20 However, the questions must respect juror privacy.21The judge can exercise their discretion to exclude prospective jurors since it is unlikely that individuals will openly admit to their biases.22 Judges can also stand aside prospective jurors if doing so would uphold public confidence.23

Karakatsanis, Martin and Kasirer JJ agreed with the final disposition and the need for robust jury instructions, but cautioned against Wagner CJ, Moldaver and Brown JJ’s description of the scope of the existing jury procedures.24 They opined that it should be left for the lower courts to decide how to interpret and apply the new amendments.25 In addition, one must not rely too heavily on the randomness of jury selection since random selection within an “unequal society” does not eliminate systemic bias.26

Rowe J, in another separate concurring opinion, agreed with the disposition but cautioned against interpreting this judgement as constitutionalizing these jury selection procedures.27 Interpreting these statutes as constitutional requirements would create the absurd consequence of eliminating Parliament’s ability to repeal their own laws, undermining the principle of parliamentary sovereignty.28

Abella J agreed that the amendments were constitutional but dissented on its temporal applicability. In opposition to Wagner CJ, Moldaver and Brown JJ’s more conservative approach, Justice Abella held that as long as judges “vigorously exercise their authority” by using their stand aside power to increase jury diversity and jurors are asked more probing questions when challenged for cause, the accused’s s. 11 rights are sufficiently protected.29 However, the abolition of peremptory challenges still affected a substantive right; the ability for an accused to participate in the empanelment of a jury they themselves view as representative and impartial is a substantive right even if it is not a constitutional one.30 The amendment, therefore, was not purely procedural and did not apply to Mr Chouhan’s trial.31

Côté J, in dissent, claimed Wagner CJ, Moldaver and Brown JJ attempted to create a new jury regime to disguise the fact that the existing one is inadequate.32 The abolition of peremptory challenges creates a gap in the system, violating Mr Chouhan’s s. 11(f) Charter right.33 Stand asides do not sufficiently preserve impartiality because they do not completely eliminate the possibility that the prospective juror will be empanelled.34 Jury rolls are not necessarily representative: when they are sourced from municipal assessment rolls, it prevents some Indigenous persons from being selected.35 Those who have committed certain provincial and criminal offences are also omitted from the jury roll, which excludes many Indigenous and Black persons who are disproportionally represented in the criminal justice system.36 Finally, without peremptory challenges, there is no assurance that jurors will share similar life experiences to the accused, affecting the common sense, competence, and fact finding ability of the jury.37 This infringement cannot be saved under s. 1 of the Charter: it is not rationally connected to the objective of combatting jury discrimination and promoting jury diversity, nor is it minimally impairing (peremptory challenges ought to have been regulated, not eliminated).38 In the alternative, the abolition applied prospectively.39

Implications

The Asper Centre is pleased to see that a majority of the Court shared our view that the amendments were constitutional. The majority of the Court also recognised the reality of unconscious bias, as we stated in our submissions, in addition to affirming the Asper Centre’s argument that peremptory challenges were only one component of a jury selection system that otherwise provides sufficient protections for an accused person.40 However, we recognize the differing views on peremptory challenges in relation to jury representativeness.

Nader Hasan, co-counsel for the Canadian Muslim Lawyers Association and the Federation of Asian Canadian Lawyers (and adjunct professor at UofT Law and Asper Centre’s Fall 2020 constitutional litigator-in-residence), who intervened to support Mr Chouhan’s cross-appeal, lauded Côté J’s dissent.41 Despite the Court’s disposition, Hasan noted that this decision will empower defence counsel to more aggressively challenge for cause prospective jurors.42

R v Chouhan continues the Supreme Court of Canada’s pattern of divided opinions.43 Although the judgements on the constitutional question and temporal applicability were relatively clear, this decision nevertheless produced five distinct sets of reasons, none of which represented a plurality or majority of the Court. This division likely reflects the diverse views on the effectiveness of peremptory challenges on jury representativeness, as demonstrated by the parties’ submissions. Ultimately, however, this outcome leaves Canadians and lower courts with a clear conclusion but without decisive directions.

Wei Yang is an incoming 2L JD student at the Faculty of Law and is currently one of the Asper Centre’s summer research assistants.

Footnotes:
1. R v Chouhan, 2021 SCC 26 [Chouhan].
2. Ibid at para 1, citing Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess, 42nd Leg, 2019, c 25.
3. Chouhan, supra note 1 at paras 10, 13.
4. Ibid at para 27.
5. Ibid at para 41.
6. Ibid at para 3.
7. Ibid.
8. Ibid at para 4.
9. Ibid at paras 6, 35.
10. Ibid at para 6.
11. Ibid.
12. Ibid at para 7.
13. Ibid at para 31.
14. Ibid, citing Valente v The Queen, [1985] 2 SCR 673, 1985 CanLII 25.
15. Ibid at paras 33–36.
16. Ibid at para 90.
17. Ibid at para 41.
18. Ibid at paras 43, 74 (citing Abella J at para 164), 79.
19. Ibid at para 49.
20. Ibid at para 64.
21. Ibid at para 66.
22. Ibid at para 67.
23. Ibid at paras 70–71.
24. Ibid at paras 109–111.
25. Ibid at paras 111–112.
26. Ibid at para 114.
27. Ibid at para 126.
28. Ibid at paras 141–142.
29. Ibid at paras 159–161, 165.
30. Ibid at paras 167, 189, 194, 204–205.
31. Ibid at paras 165, 220.
32. Ibid at para 267.
33. Ibid at paras 260, 267.
34. Ibid at para 269.
35. Ibid at para 272.
36. Ibid.
37. Ibid at paras 275–277.
38. Ibid at paras 288–291.
39. Ibid at para 293.
40. Ibid (Asper Centre’s factum at paras 2, 3, 20).
41. Nader Hasan, “The Côté J dissent in #Chouhan is [three consecutive fire emojis]. The lead decision, on the other hand, suggests that we can deal with potentially racist jurors with a mid-trial instruction ‘don’t be racist’. [Quote Tweet]” (25 June 2021 at 11:10), online: Twitter <https://twitter.com/Nader_Hasan_law/status/1408442578501001216>.
42. Nader Hasan, “On the plus side, the Chouhan decision as a whole is a clarion call to defence counsel to be aggressive with their challenge-for-cause and stand-aside applications. There is at least some recognition that an important tool has been lost with the abolition of peremptory challenges [Reply Tweet]” (25 June 2021 at 11:10), online: Twitter <https://twitter.com/Nader_Hasan_law/status/1408442579977490435>.
43. Cristin Schmitz, “Supreme Court of Canada Hits Record Low 40% Unanimity Rate in 2019; Many Appeals Came from Quebec” (20 January 2020), online: The Lawyer’s Daily <https://www.thelawyersdaily.ca/articles/17529/supreme-court-of-canada-hits-record-low-40-unanimity-rate-in-2019-many-appeals-came-from-quebec> (last modified 21 January 2020).

R v Chouhan: The Constitutionality of Abolishing Peremptory Challenges

Posted on by Tal Schreier

by Annie Chan

The Asper Centre recently intervened in R v Chouhan, a case before the Supreme Court of Canada (SCC) whose outcome has fundamental implications on the process of jury selection in criminal trials.

Background

For 150 years, two types of challenges were permitted in jury selection in a criminal trial: (1) peremptory challenges, where a juror can be dismissed without explanation, and (2) challenges for cause, which require specific grounds. Section 634 of the Criminal Code allowed the Crown and the accused a fixed number of peremptory challenges each depending on the nature and seriousness of the offence [1]. In September 2019, Parliament enacted Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, which introduced three amendments to the jury selection process [2]. The first amendment expanded s. 633 of the Criminal Code, allowing judges to stand by jurors for the purpose of “maintaining public confidence in the administration of justice”. The second amendment repealed s. 634 of the Criminal Code, thereby abolishing peremptory challenges. Finally, the third appointed the presiding judge as the adjudicator of truth for challenges for cause in lieu of lay triers.

The bill came into force on September 19, 2019. On that same day, jury selection for the appellant, Mr. Chouhan, was scheduled to begin. Mr. Chouhan, who was at that time charged with first degree murder, challenged the constitutional validity of the second and third Bill C-75 amendments, arguing that they infringed upon his rights as an accused under ss. 7, 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms [3][4].

Procedural History

The balance of Mr. Chouhan’s argument hinged on the abolition of peremptory challenges as infringing on his ss. 11(d) right to a fair hearing by an impartial tribunal. In upholding the constitutionality of the amendment, the trial judge emphasized the strong presumption of jury impartiality and the numerous safeguards in place to ensure this, including the availability of unlimited challenges for cause based on a reasonable prospect of partiality [5]. Mr. Chouhan appealed, arguing that in cases where the accused is racialized, the assumption of jury impartiality is rebutted, giving rise to the need for peremptory challenges [6]. In upholding the trial judge’s ruling, the Ontario Court of Appeal described the use of peremptory challenges in weeding out biased jurors as inherently paradoxical, as the exercise of such challenges is often purely subjective and rooted in stereotypes [7]. Leave to appeal was granted by the Supreme Court and oral arguments were heard on October 7, 2020.

Supreme Court of Canada Proceedings

At the heart of the proceedings was whether peremptory challenges actually advance or hinder the selection of fair and impartial juries, particularly when the accused belongs to a racialized community. In addition to Mr. Chouhan and the Crown, numerous interveners, including several representing racialized communities, submitted arguments falling on both sides of this issue. Counsel for Mr. Chouhan argued that peremptory challenges mitigate the effects of racial prejudice on jury selection by giving the accused at least some minimal control and confidence in the impartiality of the jurors and the fairness of the trial process. This position was supported by oral arguments from Joshua Sealy-Harrington on behalf of the BC Civil Liberties Association who argued that “implicit bias compromises the impartiality of trial juries and absent peremptory challenges, there is no safeguard against that implicit bias in the entirety of the jury selection process.”

In contrast, Aboriginal Legal Services intervened on the basis that peremptory challenges perpetuate discrimination against Indigenous persons in the criminal justice system. In fact, the legislature’s intent in eliminating peremptory challenges was to address concerns surrounding their use in excluding Indigenous people from juries. This issue was exemplified in the 2018 case of R v Stanley where an all-white jury acquitted Gerald Stanley, a white Saskatchewan farm-owner for both manslaughter and second-degree murder after he shot and killed a young Indigenous man named Colten Boushie. During jury selection, peremptory challenges were used to exclude five visibly Indigenous persons from the jury.

The Asper Centre intervened with the position that the abolition of peremptory challenges did not infringe on the Charter. Our factum (as can be found here) emphasized the inherent subjectivity of peremptory challenges which are often based on racial prejudice or stereotypes, thus inviting abuse via discriminatory use. The Asper Centre was represented by University of Toronto Professor of Law and Prichard-Wilson Chair of Law and Public Policy, Kent Roach. In oral arguments, Professor Roach noted that peremptory challenges are often based on “guess-work and gut instincts”. Thus, “deputizing the accused to use a limited number of peremptory challenges to ensure representativeness and impartiality is neither reliable nor transparent”. He noted that the problems with implicit bias would be more effectively dealt with through a robust challenge for cause procedure and a more diverse jury roll, as was argued in R v Kokopenace.

Ruling from the bench

The Supreme Court of Canada issued a ruling from the bench on the same day as the oral arguments were heard. Their ruling upheld the constitutionality of the abolition of peremptory challenges with written reasons to follow. This unexpectedly expeditious judgment may have been an attempt to mitigate the delays in criminal jury trials stayed pending this ruling as well as to alleviate the uncertainty surrounding the validity of convictions which were decided subsequent to the enactment of Bill C-75 but prior to this appeal.

Annie Chan is a 1L JD student at the Faculty of Law and is currently an Asper Centre work-study student.

[1] Criminal Code, RSC 1985, c C-46. s 634.

[2] Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess, 42nd Parl, 2019, c 25 ss 269-273.

[3] R v Chouhan, 2020 ONCA 40 at para 17 [Chouhan] [4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982(UK), 1982, c 11.

[5] Chouhan at para 33

[6] ibid at para 37

[7] ibid at para 87

 

 

Immigration Detention Symposium: Habeas Corpus Panel Highlights

Posted on by Tal Schreier

 

by Mashoka Maimona and Renuka Koilpillai

The “Habeas Corpus Best Practices” panel was one of the highlights of the Asper Centre’s Immigration Detention Symposium, held on March 15, 2019. The panellists were immigration and refugee lawyers Subodh Bharati, Jared Will, and Swathi Sekhar. The lively panel was moderated by the Refugee Law Office’s Simon Wallace, who explained that the panel would focus on the current status of habeas corpus, and how it can be used as a litigation strategy in immigration detention cases.

Habeas corpus is a common law writ of relief for immigration detainees to challenge their detention as unlawful. Previously in Canada, as Will outlined, habeas corpus applications could not be used by people who were being held in immigration detention, as courts consistently held that they did not have jurisdiction to hear the case. This changed after Chaudhary v Canada, where the Ontario Court of Appeal (ONCA) stated that habeas corpus is a better remedy in cases of long-term detentions. Fast forward two years to 2017, where in Ogiamien v Ontario, the ONCA extended the use of habeas corpus to immigration matters whenever it can be shown to be a more advantageous remedy than the standard immigration processes. Although this was a step in the right direction, according to Will, Brown v Canada determined that habeas corpus applications should not be attached to Charter damages claims, as a Charter claim “distorts what is otherwise intended to be an expeditious process….and gives the Charter damages claim a higher priority for hearing than it would otherwise receive.”  The 2018 SCC appeal in Chhina (decision still pending) will provide important clarification on the scope of habeas corpus, potentially expanding or narrowing the judicial remedies in reviewing a person’s immigration detention.

Bharati’s goal in a detention review is to demonstrate that the immigration detention is unlawful: if it is “unhinged from the immigration purpose” (see Charkaoui and Chaudhary) or if there is any deprivation of liberty that follows from a procedurally unfair process. He called for s. 11 of the Charter to apply to immigration detention matters. Section 11 covers the legal rights that apply to those “charged with an offence,” including (a) the right to be informed without unreasonable delay of the specific offence, (b) the right to be tried within a reasonable time, and (e) the right not to be denied reasonable bail without just cause. Even the SCC has expressed disbelief that any administrative tribunal could imprison someone (see R v Wigglesworth), yet the Federal Court continues to maintain that s. 11 does not apply to immigration matters.

The Chhina appeal demonstrates that there is a greater concern by our courts in extending Charter rights to non-Canadians, as opposed to questioning why everyone does not enjoy the same set of rights, Bharati said. Under s. 11(d) of the Charter, Canadians enjoy the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal. Non-Canadians can, however, be placed in a maximum security prison without these safeguards. The defendant in a criminal bail hearing is brought to court in his or her street clothes — because “the presumption of innocence requires the garb of innocence,” as “every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent” person (see Eaddy v People). However, in immigration detention matters, where detainees are not being held for any criminal purpose, they appear at detention review hearings wearing an orange prison uniform. The detentions themselves can even be held in maximum security prisons. The minds of decision-makers who pass through these gates with armed guards can be reasonably assumed to be tainted. What follows from a procedurally unfair process is by its very nature unlawful, Bharati reminded the audience.

When asked about future litigation strategies, Bharati shared his stark truth: “One realization I’ve had is that the law is not meant to be the vehicle for social reform. It’s very difficult. Laws are made by people in power to keep their power. It’s about keeping the status quo.” Systemic change through the judicial system is about understanding the underlying principles, he added. One of these principles in how we measure the legitimacy of a law in its equal application.

Sekhar flagged how detainees are further criminalized for “non-cooperation” by CBSA officers, who threaten to invoke s. 16 of the Immigration and Refugee Protection Act (IRPA) and charge her clients criminally. This is done without understanding the experiences of the detainees, such as their potential fear of returning to their country, or how months and even years of incarceration affects their mental health.

Will advocated for more rules in this area, pointing to Quebec’s Code of Civil Procedure as an exemplar for its accelerated process for handling habeas corpus applications — a process that affords detention cases the importance and urgency they deserve. Forty-eight hours after providing notice, a detainee can plead in front of a judge (as everything else gets bumped down the list). This seems unsurprising, given the high-stakes in such detention cases that involve the deprivation of people’s liberty, dignity, minds, and lives. However, while the question on the writ is straightforward, boiling down to whether the affidavit raises reasonable and probable grounds to challenge the detention, detainees face “tense resistance” from the Department of Justice and the Ontario courts. The reality is that habeas applications are resource intensive and time-consuming, Will added, and because of the sheer length of the process, a habeas application may not be in a detainee’s best interest. Nevertheless, the first tool in a detainee’s arsenal is the threat of a habeas, he suggested.

Mashoka Maimona and Renuka Koilpillai are 1L JD Candidates at the Faculty of Law. They are also members of the Asper Centre Immigration & Refugee Law student working group this year.