R. v. CHOUHAN, 2020 ONCA 40

The abolition of peremptory challenges introduced by Bill C-75 entails substantive rights and thus cannot take away the rights vested in an individual before 19th September, 2019 (when it came into force).

The appellant, Mr. Chouhan was alleged to have committed first degree murder in September 30, 2016. The appellant was charged under the government provisions of the Criminal Code R.S.C., 1985, C-46. This kind of murder requires that the trial would be heard in front of a judge and jury, absent from both Crown and accused. On September 19, 2019, Appellant’s trial was scheduled, on the same day as Bill C-75, an act to amend the Criminal Code, the youth Criminal Justice Act and to make consequential amendments to other acts, came into force. Taking advantage from bill, the appellant made three arguments first; the repeal of section 634 of the Criminal Code breached subsection 11(d), 11(f) and 7 of the Canadian Charter of Rights and Freedoms and could not be saved by section 1 of the Charter. Secondly, the changes made on section 640 substituting judges for lay trial violated this right and could not save by section 1. Thirdly, if provisions were deemed constitutional, it should be prospective and thus not apply to the present case. However, the trial judge held that both amendments were constitutional and applied retroactively, thereby prohibiting appellant’s ability to participate in jury composition. Appellant was consequently found guilty of first-degree murder and the trial judge sentenced him for life-imprisonment without possibility of parole for 25 years. The appellant now approached the ONCA against the trial judge’s findings on the jury selection process.

The court of appeal gave its verdict in splits. On the issue of right to a fair trial, the Court sided the Crown with same reasons as the trial judge and noted that section 1 (d) guarantees “the accused and community perceive the trial to be fair “but that peremptory challenges are by nature arbitrary and subjective”. The Court observed that “peremptory challenge can enhance or facilitate discrimination against racialized prospective jurors.” It also set aside argument made by appellant on section 7, rights based on casual nexus between peremptory challenges and deprive the liberty. On consideration of the second argument, the court favored respondent’s side that neither independence of the jury nor jury impartiality were compromised by the substitution.

On third ground of appeal determining the temporal application of the amendments, the court took note that the amendment were in substantive right and not merely a procedural one and it also took into consideration the Interpretation Act, 1985, c-I-21. Consequently, the bench held that substitution of the presiding judge for lay tries does not contravene with subsection 11 (d), 11(f), or 7 of the Charter. Moreover, it held that subsection 44 (c) and (d) of the Interpretation Act appear to confirm the temporal application of the jury selection amendments to logical requirements. Also, the abolition of peremptory challenges affected the substantive rights of the appellant, thus it should not apply to jury selection in cases where accused have vested right before September 19, 2019. Thus, appeal was allowed set the conviction aside along with orders for a new trial on the indictment.