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

 

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.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).

SCC’s Reference re GGPPA Decision: an important milestone, but still a long road to travel

by Cameron Somerville

On March 25th, 2021, the Supreme Court of Canada (SCC) upheld as constitutional the federal Greenhouse Gas Pollution Pricing Act (GGPPA), which sets a benchmark for pricing greenhouse gas (GHG) emissions across the country. In a 6-3 decision, the SCC established that the federal government has jurisdiction to apply the GGPPA under the Peace, Order, and Good Government powers (POGG) of the Constitution. Significantly, this sets a marker for the federal government’s ability to control greenhouse gas emissions.

“Climate change is real,” wrote Chief Justice Wagner.[1] “It is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future. The only way to address the threat of climate change is to reduce greenhouse gas emissions.”[2]

This decision, while important, is unlikely to be the last word on carbon pricing in Canada.

Charting A New Course

The GGPPA received royal assent in 2018. The preamble to the legislation details the Act’s stated purpose: limiting the negative impacts of carbon emissions on Canadians’ well-being. Notably, it characterizes climate change as a “national problem.” The SCC has previously held legislation can use the preamble to “provide a base for assessing the gravity” of an issue of national concern.[3]

The GGPPA has two main parts. Part 1 is administered by the Canada Revenue Agency and applies a charge to 21 types of fuel and combustible waste. Part 2 establishes a GHG emissions pricing mechanism for large industrial emitters. Provinces can choose whether to implement a carbon pollution price or implement a cap-and-trade system, that allows corporations to trade emissions allowances under an overall cap, or limit, on those emissions.

The Act only operates as a “backstop,” forcing a system on provinces that don’t already have one in place. Additionally, the Act requires the agency return 90% of the revenue as rebates to provinces and individuals, so it is not a tax.

Diverging Paths: Provincial Courts of Appeal Decisions

Alberta, Ontario, & Saskatchewan challenged the federal government’s right to set price standards for carbon-based fuels and industry-based emissions. Ontario’s and Saskatchewan’s Courts of Appeal ruled the GGPPA falls within the National Concern Doctrine of the federal government’s POGG powers. Both judgements had dissents that indicated the law would be valid if its structure were changed, placing it under the federal tax power.

The Alberta Court of Appeal was the final provincial ruling and the only court to rule the GGPPA ultra vires Parliament. The majority found the Act infringed the provincial power to manage natural resources. The Court held that the National Concern Doctrine failed, as carbon pricing does not possess the requisite degree of unity to make it indivisible, in other words that the doctrine could not be used to assign a new head of power to the federal government where the subject matter falls within the province’s exclusive jurisdiction.

The Latest Stop: Supreme Court of Canada Decision

The SCC split 6-3 in finding the Act intra vires the federal government, with three separate dissenting judgements.

Chief Justice Wagner’s Majority Reasons

The majority judgement uses the Act’s long title to frame its main thrust as not just the mitigation of climate change but mitigation through pan-Canadian GHG pricing mechanisms.[4] They argue both Parts 1 and 2 of the GGPPA are “centrally aimed” at creating one GHG pricing scheme nationally.[5]

The majority finds the law is “tightly focused” and that all the provinces acting together would be “incapable” of enacting legislation with equivalent effects because they could not impose a binding outcome-based standard.[6] Therefore, the law meets the first set of requirements for the POGG national concern doctrine.

Lastly, the majority determines the impact of the legislation is reconcilable with the distribution of legislative powers. Since the law merely operates as a “backstop” within a “narrow and specific regulatory mechanism” it does not unduly infringe provincial powers.[7] Furthermore, considering the interests climate change would harm, they find the impact on provincial heads of power is relatively limited.[8]

They determine the GGPPA meets the criteria established in R v Crown-Zellerbach Canada Ltd. and is intra vires the Parliament of Canada.[9]

The Dissenting Judgements

Justice Côté takes issue primarily with the power granted under the GGPPA to the Governor in Council. He argues no clause should give the executive branch the power to nullify or amend Acts of Parliament. Furthermore, when an Act grants such power, the law cannot be within the national concern doctrine as the minimum standards have not been set by Parliament but by the executive branch.[10]

Justice Brown found the subject matter of the GGPPA was “squarely within” provincial jurisdiction and argued the Court should “condemn” the “leveraging” of climate change.[11] He finds provincial property and civil rights stand out as “the most relevant source of legislative authority” for the GGPPA.[12]

Finally, Justice Rowe took issue with the use of POGG in the majority’s reasons. He felt the doctrine of National Concern, and POGG more generally, should only be used as a last resort to “preserve the exhaustiveness of the division of powers.”[13]

The Road Ahead

This decision is not the end of the story for litigation of environmental legislation and climate change protection in Canada. As Justices Brown and Rowe indicate, the on-going balancing of powers in federalism will no doubt be fodder for the next leg of the journey.

This latest ruling is only directly about carbon pricing schemes. David Suzuki said the judgement gives the federal government the “power to make a difference,” but the extent of that power remains unclear.[14] The SCC in Friends of the Oldman River Society v Canada (Minister of Transport) ruled the “environment” cannot be assigned solely to one level of government, as the “environment” is too broad.[15] This case is likely not the last time a court will need to balance Canada’s climate crisis and federalism issues.

Nonetheless, potential future challenges should in no way undermine the magnitude of this decision. The finding that a matter is one of national concern is “permanent” and confers exclusive jurisdiction on the issue to Parliament.[16] The Supreme Court has moved the line for federal authority in environmental legislation. The question remains just how far it has moved.

Cameron Somerville is a 1L JD student at the Faculty of Law and is a member of this year’s Asper Centre Climate Justice student working group.

[1] Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para 2 [re GGPPA] [2] Ibid
[3] Reference re Anti-Inflation Act, [1976] 2 SCR 373 at para 66
[4] re GGPPA, supra note 1 at para 58
[5] Ibid at para 71
[6] Ibid at paras 179, 182
[7] Ibid at paras 199-200
[8] Ibid at para 206
[9] R v Crown-Zellerbach, [1998] 1 S.C.R. 401
[10] GGPPA SCC, supra note 2 at para 294
[11] Ibid at para 454
[12] Ibid at para 343
[13] Ibid at para 616
[14] Supreme Court decision puts Canada on right track for carbon pricing, David Suzuki Foundation at https://bit.ly/3fMSCXa
[15] Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 S.C.R. 3 at para 93
[16] re GGPPA, supra note 1 at para 90

Asper Centre Intervention Influences SCC on Suspended Declarations

by Jeffrey Wang

The Supreme Court of Canada (SCC) recently released the decision of ON (Attorney General) v G. This case challenged the constitutionality of Christopher’s Law, an Ontario law that allowed some offenders who were convicted of sexual offences to be removed from the federal and provincial sex offender registries after 10 years. Christopher’s Law did not extend to any offenders who had been found not criminally responsible due to mental disorder even if they had been absolutely discharged of the crime. The respondent fell within this latter group and challenged this law under s. 15 of the Charter for discrimination on the basis of mental disability.

At the Ontario Court of Appeal, Justice Doherty found that Christopher’s Law violated s. 15 and thus struck down the law. However, he suspended the declaration of invalidity for twelve months in order to allow the legislature to amend the impugned law. Justice Doherty also exempted the applicant G from this suspension, which meant that Christopher’s Law immediately stopped applying to him personally. This exemption was very controversial since it went against the SCC’s jurisprudence in R v Demers that individual remedies under s. 24(1) should not be combined with general remedies under s. 52.

The Asper Centre intervened in ON v G on the issue of remedies. Assisted by Professor Kent Roach, the Centre argued that courts have increasingly used suspended declarations of invalidity without proper justification. The Centre urged the SCC to adopt a more principled approach to applying this constitutional remedy. Additionally, the Centre argued that individual exemptions can be applied in conjunction with suspended declarations of invalidity in order to allow applicants to benefit from their successful Charter challenge.

The SCC’s ON v G decision “accept[ed] the Asper Centre’s invitation to articulate a principled approach to remedies for legislation that violates the Charter.”[1] The majority decision asserted that constitutional remedies should guided by four remedial principles: Charter rights should be safeguarded; the public has an interest in the constitutional compliance of legislation; the public is entitled to the benefit of legislation; and the courts and legislatures play different institutional roles.[2] Constitutional remedies must balance the fact that the public does not want to be governed by unconstitutional legislation but also cannot function under an absence of legislation. To reach this balance, the Court once again urged the judiciary to carefully identify the unconstitutional aspects of legislation and use reading down, reading in, and severance to preserve its constitutional aspects.

In its discussion of suspended declarations, the Court recognizes that there may be times where “giving immediate and retroactive effect to the fundamental rights and freedoms guaranteed by the Charter must…yield to other imperatives.”[3] However, agreeing with the Asper Centre, the Court is clear that suspended declarations should only be granted where the government can demonstrate “that the importance of another compelling interest grounded in the Constitution outweighs the continued breach of constitutional rights.”[4] For example, the government can rely on the distinct roles of the courts and legislatures, but must show that “an immediately effective declaration would significantly impair the ability to legislate.”[5] Courts must also balance the benefits of a suspended declaration against the significance of the Charter right in question. For example, it will be difficult to balance a suspended declaration against potential criminal jeopardy.[6] Moving forward, the Court is clear that suspended declarations will be rare, and the government will also have to justify its length if it were to be granted.

This principled balancing approach expands the previous categorical Schachter framework where suspended declarations were only granted in three specific scenarios. As noted by the Asper Centre and other commentators, many cases after Schachter continued to grant suspensions beyond these categories often without explanation. This more flexible approach in ON v G addresses this concern and allows justified uses of this remedy in more unique circumstances.

The ON v G Court also departed from precedent and allowed the simultaneous application of s. 24(1) and s. 52 remedies. This means that individual claimants can be exempt from suspended declarations. While some have argued that only allowing the claimant to be exempt is unfair to all others in their position, the Court reasoned that the claimant is the one who brought a successful Charter challenge and should reap its rewards.[7] Additionally, since Charter challenges can be difficult to bring forward, individual exemptions to suspended declarations may temper the disincentives of litigation.[8] The Court also noted that the government may show that there is a compelling reason to deny an exemption, such as if the exemption would undermine the purposes of the suspension, or if judicial economy would not be served by exempting a large class of claimants.[9]

Applying these principles to the case at hand, the Court noted that a suspended declaration of invalidity for Christopher’s Law is justified for public safety reasons[10]. Immediately declaring the law to be invalid could potentially irreversibly exempt many dangerous individuals from being listed on the sex offender registry, greatly restricting the effectiveness of new legislation.[11] However, an individual exemption is warranted for the claimant, since they have long had a spotless criminal record and do not pose a threat.

The Asper Center reached out to Professor Kent Roach to get his thoughts on the ON v G ruling. He comments that:

“The case will be a landmark one for the use of suspended declarations of invalidity and the Asper Centre appears to have made a real impact. The majority embraces the Centre’s arguments for a principled approach that does not depend on the three categories outlined in Schachter. They also accept the need for allowing exemptions in appropriate cases when the government has justified the use of a suspension. Even the dissenting judges also acknowledged that the Asper Centre had been helpful in arguing for the need for exemptions from suspensions to prevent irreparable harm. The judgment cites both my own scholarship but also remedial scholarship from Grant Hoole my former LLM student and Carolyn Moulard my current doctorate student.”

Indeed, the ON v G case will undoubtedly be solidified as a significant development in constitutional law. The dissenting justices criticized the majority’s broad and vague remedial principles, but it will be up to the lower courts to further build on the majority’s foundations. There is no denying that ON v G has pushed the law on constitutional remedies to be more fair and rational, ushering in a new era of remedies from the courts.

Jeffrey Wang is a 3L JD Candidate at the Faculty of Law, and a former Asper Centre Clinic student. 

[1] Para 81.

[2] Para 94.

[3] Para 121.

[4] Para 133.

[5] Para 129.

[6] Para 131

[7] Para 148.

[8] Ibid.

[9] Paras 150-151.

[10] Para 175.

[11] Para 176.

Fraser v. Canada: What’s the Point of S. 15?

by Jeffrey Wang

On October 16th, 2020, the Supreme Court of Canada released the landmark decision of Fraser v Canada, clarifying how adverse effect discrimination fits into the s. 15 framework. Adverse effect discrimination can be defined as when a facially neutral law has a disproportionate impact on members of a group. This is distinct from direct discrimination where a law makes a facial distinction among groups based on an enumerated or analogous characteristic.

Fraser is a significant development in Charter jurisprudence since the Court has rarely allowed adverse effect discrimination claims. Although the Court has repeatedly proclaimed that s. 15 does cover both types of discrimination and has recognized numerous adverse effect discrimination cases under human rights codes, the SCC has only affirmed one case of adverse effect discrimination under s. 15 prior to Fraser. In Eldridge v British Columbia, the Court found that a hospital that did not provide sign-language interpreters discriminated against people with hearing loss, even though the lack of sign-language interpreters applied neutrally to both hearing and non-hearing individuals.[1] Other adverse effect discrimination cases have come across the Court but have all been rejected for a variety of reasons.

Fraser

The Eldridge case is a stark contrast from Fraser’s complex fact-scenario. In Fraser, three female RCMP officers challenged a policy that reduced pension benefits for officers who took part in a job-sharing program. This job-sharing program was created so that RCMP employees did not have to take unpaid leaves of absence in order to balance childcare responsibilities. However, officers taking such a leave would not see reduced pension benefits unlike those participating in job-sharing. The evidence showed that a vast majority of the participants in the job-sharing program were women that balanced childcare with work. The appellants thus argued that the policy reducing pension benefits for job-sharers discriminated against women.

Writing for the majority of the Court, Abella J agreed with the appellants and clarified the law on adverse effect discrimination. She asserted that adverse effect discrimination claims can fall within the existing s. 15 test. Under step one, claimants must show that a law creates a distinction based on an enumerated or analogous ground. To satisfy this step in adverse effect discrimination claims, Abella J posited that claimants must prove that the impugned law has a disproportionate impact on members of a protected group.[2] She suggested that this can be established “if members of protected groups are denied benefits or forced to take on burdens more frequently than others” and Courts should specifically assess the result of the law and the social situation of the claimant group.[3] Abella J further notes that there is no need to prove that all members of the claimant group are identically affected, that the law is responsible for the social situation of the claimant group, the law’s discriminatory intention, or any element of causation.[4] There is also no “universal measure for what level of statistical disparity is necessary to demonstrate that there is a disproportionate impact.”[5]

In the second step of the s. 15 test, the claimants must prove that the law perpetuates or reinforces disadvantage. Abella J cautioned that under adverse impact discrimination cases, the Court should not assess the objectives of the law at this stage but should rather leave this analysis to s. 1.

Applying this test to the case, Abella J found that the RCMP pension scheme in relation to job-sharers disproportionately impacted women due to their childcare responsibilities and that this perpetuated the economic disadvantage of women. In addition, she found that this law was not justified under s.1 since there was no pressing objective in denying the pension benefits for job-sharers. Therefore, the majority of the Court struck down the law.

Implications for Future Cases

The majority’s decision in Fraser is a welcome development in the fight for substantive equality. Adverse effect discrimination claims have long been recognized in human rights code cases, and the Fraser decision finally brings this uncontroversial understanding of equality into s. 15 jurisprudence with a paradigmatic adverse impact fact-scenario.

However, while the overall conclusion in Fraser undoubtedly moves the law in a positive direction, there are issues with Abella J’s reasoning. In our current heterogenous society, it is likely that most laws have a disproportionate effect on one group of people. For example, many human rights code cases have explored whether the lack of funding for prostate cancer testing is discriminatory against men[6]; whether a municipal policy limiting the number of garbage bags per family picked up by waste disposal discriminates against larger families[7]; and whether the lack of coroner’s inquests for migrant workers’ deaths discriminates on the basis of race[8]. Under the Fraser majority, many of these difficult cases would pass the s. 15 test for adverse effect discrimination. All that is required under step one of the test is a law’s disproportionate impact without proof of intention, causation, or statistical significance and step two merely requires historical disadvantage.

This is the problem with the Fraser decision – it does not precisely define the boundaries of adverse effect discrimination. Under direct discrimination, the requirement that a law creates a distinction based on a protected ground is meaningful, since there are many laws that do not facially distinguish between groups. However, the Fraser majority decision could render this first step of the s. 15 test meaningless by simply allowing evidence of a law’s disproportionate effect which is rife in society. Additionally, with Abella J’s comment that the objectives of the law should not be analyzed under the second step of the s. 15 test, historical advantage would similarly be easy to establish by looking to social science evidence. In effect, the Fraser majority has watered down the s. 15 analysis and pushed the bulk of the legal reasoning to s. 1. But if everything violates s. 15, nothing violates s. 15. This cannot be the state of our equality jurisprudence. S. 15 must include meaningful internal limits that filter out laws that incidentally or reasonably have disproportionate impacts on one group without being discriminatory. Otherwise, what’s the point of s. 15 at all?

Jeffrey Wang is a 3L JD Candidate at the Faculty of Law, and a former Asper Centre Clinic student. 

[1] Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624.

[2] Fraser v Canada (Attorney General), 2020 SCC 28 at para 52 [Fraser].

[3] Fraser at para 55.

[4] Fraser at paras 69-72.

[5] Fraser at para 59.

[6] Armstrong v British Columbia (Ministry of Health), 2010 BCCA 56.

[7] Harrington v Hamilton (City), 2010 HRTO 2395.

[8] Peart v Ontario (Community Safety and Correctional Services), 2014 HRO 611.

 

R v Chouhan: The Constitutionality of Abolishing Peremptory Challenges

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