Feb 17, 2021

Criminal Law: Jury Challenges

R. v. Chouhan, 2020 ONCA 40 (CanLII)
On September 19, 2019, Bill C-75 came into force and modified the jury selection process under the Criminal Code by eliminating peremptory challenges and empowering trial judges to decide challenges for cause. The Respondent, Mr. Pardeep Chouhan, was charged with first degree murder. Prior to the jury selection procedure for his trial, and prior to Bill C-75 coming into force, Mr. Chouhan brought a constitutional challenge to the amendments, arguing they infringed his rights under the Charter. In the alternative, Mr. Chouhan submitted, even if constitutionally valid, the amendments should not apply retroactively. The Ontario Superior Court of Justice dismissed the constitutional challenge, finding the amendments did not infringe any Charter rights, affected only procedural matters, and could be given retrospective effect. Mr. Chouhan’s jury was therefore constituted according to the amendments in the new process, and he was found guilty of first-degree murder by the jury. The C.A. unanimously affirmed the constitutional validity of the amendments, and agreed the change to challenges for cause could apply retrospectively. However, it ruled the elimination of peremptory challenges should not apply retrospectively to all pending cases, as it affected an accused’s substantive right to trial by jury. As such, this amendment should not have applied to the selection process in Mr. Chouhan’s case, and the jury was improperly selected. The C.A. overturned Mr. Chouhan’s conviction, and ordered a new trial. (Oral Judgment rendered Oct. 7, 2020, with reasons to follow)