TORONTO – An Ontario court has ruled that changes to the jury selection process brought in as part of sweeping legal reforms do not interfere with an accused person’s right to a fair trial.
The constitutional challenge to Bill C-75 was launched by Pardeep Singh Chouhan, whose first-degree murder trial had reached the jury selection phase on the same day the changes laid out in the legislation came into force. Chouhan’s lawyers said the new rules breached his rights to a fair trial and impartial jury.
The reforms include scrapping “peremptory challenges,” a mechanism that allowed lawyers for either side to dismiss a certain number of prospective jurors without explanation.
Lawyers can still seek to disqualify any prospective jurors they believe cannot remain impartial, but under Bill C-75, the judge is now tasked with making the final decision. That role was previously held by lay people called triers, some of whom also sit on the jury.
The legislation also gives trial judges the discretion to set aside a juror for the purpose of maintaining public confidence in the justice system.
In a decision handed down earlier this week, Superior Court Justice John McMahon said the new federal law struck the right balance.
“The ability to exclude a potential juror based simply on their appearance, their look, or a person’s gut feeling, without furnishing a reason, is not transparent,” he wrote. “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.”
The government moved to amend the jury selection process following the controversial acquittal of Gerald Stanley, who was charged with second-degree murder in the killing of Colten Boushie, a 22-year-old Indigenous man. The jury in that case had no Indigenous members, and Ottawa said the changes in Bill C-75 aimed to make juries more representative.
WATCH: (Aug. 9, 2018) Colten Boushie’s family files lawsuits against Gerald Stanley, RCMP
Chouhan’s lawyers, however, argued the new procedures would likely have the opposite effect and would contravene their client’s constitutional right to be tried by an independent and impartial jury.
They also argued the legislation was overly broad, in that it introduced a major change – the elimination of peremptory challenges – in response to discrimination in one specific case.
Two criminal lawyers filed affidavits in support of the challenge, saying peremptory challenges allowed them to select jurors who are from a similar racial or cultural background as the accused and reject those who, among other things, appeared to look at the accused with disdain.
McMahon said that while each accused is entitled to a representative jury panel, they are not entitled to a trial jury which “reflects the proportionality of the population” or is made up of members of the same demographic group.
The test, McMahon wrote, is whether a reasonable person, fully informed of the circumstances, would have a “reasonable apprehension of bias” because of the elimination of peremptory challenges.
The judge noted there are several other safeguards in place to ensure a jury is independent and impartial. These include a mechanism to screen prospective jurors for bias and the trial judge’s ability to excuse or reject prospective jurors for specific reasons.
“It appears that if either party can articulate reasons why a prospective juror would not be impartial, the judge would clearly have the ability to stand aside a prospective juror to maintain public confidence in the administration of justice,” he wrote.
The criminal justice system should strive for transparency, he said, noting a judge’s actions would fulfil that goal and may also be open to review if necessary.
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The judge also rejected an argument that requiring judges to determine whether a prospective juror can remain impartial eradicates the independence of the jury. McMahon ruled the changes only affect a selection procedure, not the jury’s “important task” in reaching a verdict.
“The jury members will no longer have to make determinations in relation to the impartiality of other jurors and, when selected, can concentrate on their primary goal, which is determining the guilt or innocence of the accused,” he said.
Chouhan’s lawyers had also argued that should the changes be upheld, they should not apply to those whose alleged offence happened before the reforms took effect.
But McMahon said the changes are “procedural in nature” and should be applied for every jury selected after the new rules went into force, including the one that will eventually decide Chouhan’s pending trial.