R v Chouhan – How Do We Get an Appropriate Jury

On September 19, 2019, the Criminal Code was amended by Bill C-75 which made several changes, including changes to how juries should be constituted. The changes to jury selection were that peremptory challenges no longer exist; and that the decision on challenges for cause are now decided by the trial judge, as opposed to jury members. These issues were challenged in the Courts shortly after the law changed, and on January 23rd, 2020, the Court of Appeal for Ontario released their decision in R v Chouhan, which addressed these two issues.

There exists two ways to challenge potential jurors. One way is through peremptory challenges, and the other is a challenge for cause. Peremptory challenges allow either the defence or the Crown to excuse a potential juror without any reason. There is a limited number of peremptory challenges: 20 for murder, 12 for crimes which have a sentence of more than 5 years, or 4 for anything else. Challenges for cause arise when the Court has approved a question, or series of questions, to be asked to each juror and then their eligibility to sit as a juror will depend on their answer to the question. The availability for questions for challenges for cause are quite limited and arise when there is the possibility that a specific issue that may prevent a potential juror from being impartial. Common examples are to ask questions regarding potential racist beliefs, or extensive media coverage.

The Court of Appeal in Chouhan held that both amendments were not violations of the Charter and are lawful. They held, however, that the abolition of the peremptory challenge applies prospectively, whereas the making of the trial judge the trier for challenges of cause is retrospectively. This means that any jury trials set before September 19, 2019, will be allowed to use peremptory challenges, but not those set after that date, and that the trial judge decides all challenges for cause issues regardless of when the trial was set.

A copy of R v Chouhan, 2020 ONCA 20, can be found here: https://www.ontariocourts.ca/decisions/2020/2020ONCA0040.pdf


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