The Ontario Court of Appeal recently in Regina v. Chouhan, 2020 ONCA 40, considered the constitutionality of recent amendments to the jury selection procedure in the Criminal Code. The constitutionality of the amendments that were considered were the: (1) abolished peremptory challenges to prospective jurors, and (2) substituted the presiding judge for lay triers as the adjudicator of the truth of the challenge for cause. Furthermore, the court also considered the temporal application of the amendments, which came into force on September 19, 2019. The Court of Appeal allowed the appellant’s appeal and set aside his conviction for first degree murder. In ordering a new trial, the Court rendered the following findings: (a) amendments abolishing peremptory challenges and substituting the presiding judge for lay triers in the determination of the truth of the challenge for cause do not infringe the appellant’s rights under ss. 11(d), 11(f), or 7 of the Charter; (b) the substitution of the presiding judge as the decision-maker on the challenge for cause, rather than lay triers, is purely procedural, thus applies to both historical and future events and thus to this case; and (c) the abolition of peremptory challenges affected the substantive rights of the appellant, thus it should not have applied to the selection of the jury in his case nor should it apply to the selection of the jury in other cases if the accused had a vested right before September 19, 2019 to a trial by judge and jury as it existed in the prior legislation.
The Court of Appeal concluded that the amendment eliminating peremptory challenges applies prospectively. The following guidance was provided when an accused has a vested right to a trial by judge and jury under the former legislation (at para. 212):
To be clear, not all accused charged with an offence before September 19, 2019 have a vested right to a trial by judge and jury under the former legislation. For the right to have vested, the accused must have, before September 19, 2019: (i) been charged with an offence within the exclusive jurisdiction of the Superior Court; (ii) been directly indicted; or (iii) elected for a trial in Superior Court by judge and jury. I include in the third category accused who have formally entered an election as well as those who have made a clear, but informal election, as evinced by the transcript of proceedings or endorsements on the information. Otherwise, the accused’s right did not vest, the amendment applies, and no party has a right to peremptory challenges at the trial.
If you have been charged with a criminal offence, call Mr. J.S. Patel, Criminal Defence Lawyer at 403-585-1960.