Clouds pass by the Supreme Court of Canada in Ottawa, Friday June 12, 2020. The Supreme Court of Canada has upheld the constitutionality of a key legislative change to the jury selection process. THE CANADIAN PRESS/Adrian Wyld

Supreme Court affirms constitutionality of change to jury selection procedure

Changes to the jury selection process

OTTAWA — The Supreme Court of Canada has upheld the constitutionality of a key legislative change to the jury-selection process.

In a ruling from the bench Wednesday, a majority of the high court said scrapping so-called “peremptory challenges” amounted to a purely procedural change, one that applies retrospectively.

Peremptory challenges are a mechanism that allowed lawyers for either side to dismiss a certain number of prospective jurors without an explanation.

In January, Ontario’s Court of Appeal unanimously affirmed the constitutionality of the decision to drop them.

However, the appeal court also found that anyone who chose to be tried by a jury before the new rules took effect in September 2019 was entitled to proceed with peremptory challenges, even if the trial began after that date.

As a result, many jury trials that unfolded in the time between the implementation of the new rules and the appeal court’s ruling could have potentially been overturned.

The changes to the jury selection process were brought in by the federal Liberal government in an effort to make juries more representative following the controversial acquittal of Gerald Stanley in 2018.

Stanley was charged with second-degree murder in the killing of Colten Boushie, a 22-year-old Indigenous man, and there were no Indigenous jurors in the panel that heard his case.

The new rules were challenged by Pardeep Singh Chouhan, a man charged with first-degree murder and whose trial had reached the jury selection phase on the same day the changes came into effect.

Chouhan’s lawyers argued at the time that eliminating peremptory challenges infringed on his constitutional right to be tried by an independent and impartial jury.

They said the change would, in reality, lead to less representative juries.

The presiding judge, however, found that while those accused of a crime are entitled to appear before a representative jury, they do not have the right to a jury that “reflects the proportionality of the population.”

Nor are they entitled to a jury composed of members of their same demographic group, the judge said.

The judge ruled the changes should be applied to every jury selected after they came into effect.

Ontario’s appeal court agreed the new rules are constitutional but disagreed with the lower court on how to apply them. It overturned Chouhan’s conviction and ordered a new trial.

As part of its decision Wednesday, the Supreme Court said the changes do have “retrospective application” and restored Chouhan’s conviction.

Written reasons for the court’s ruling will come later.

This report by The Canadian Press was first published Oct. 7, 2020.

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