Jury selection change preserved fairness of process, Supreme Court says
The Supreme Court of Canada says Parliament was entitled to abolish a long-standing jury selection procedure that some critics had denounced as discriminatory.
The newly released reasons shed light on the high court's decision from the bench last October upholding the constitutionality of legislation scrapping so-called peremptory challenges.
Peremptory challenges allowed lawyers for either side to dismiss a certain number of prospective jurors without an explanation.
They were abolished as part of changes to the jury selection process ushered in by the federal Liberal government 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 on the panel that heard his case.
The new rules were contested by Pardeep Singh Chouhan, who faced a first-degree murder charge. His lawyers argued that eliminating peremptory challenges would result in less representative juries, infringing their client's right to be tried by an independent and impartial panel.
Though a majority of the Supreme Court affirmed the constitutionality of the legislative change, the justices provided several sets of reasons.
In writing for three members in the majority, justices Michael Moldaver and Russell Brown said the selection regime continues to provide the independent and impartial jury that each accused is owed under the Charter of Rights and Freedoms.
Moldaver and Brown said peremptory challenges heightened the perception of the accused that he or she had the benefit of a fairly selected tribunal.
“Accused persons routinely used peremptory challenges based on the way prospective jurors looked at them during the selection process, and there was some evidence that racialized accused used them to make room for jurors with diverse backgrounds.”
However, the true value of the procedure was doubtful, Moldaver and Brown wrote.
“It is not possible to trace the impact of peremptory challenges on the verdict. More critically, peremptory challenges sat uneasily with other aspects of jury selection. They undermined the randomness of jury selection, a significant guarantor of jury independence and impartiality,” Moldaver and Brown wrote.
“They also had a darker side which allowed for practices born of prejudice and stereotypes, which had palpable and well-documented effects on the composition of juries. Indigenous communities, in particular, have witnessed their disturbing effects.”
Further, the charter right to be heard by an impartial tribunal does not entitle the accused to any particular procedure, they said. “The constitutionality of the jury selection process must be considered as a whole.”
The abolition of peremptory challenges comes at a time of heightened public awareness of the role of racial prejudice in the criminal justice system, the justices noted.
But they cautioned: “Fair trial rights do not depend on the subjective perceptions of the accused, and absolute diversity on a jury is unattainable, as no group of 12 could ever represent the innumerable characteristics existing within our diverse and multicultural society.”
Other opportunities remain for the parties in criminal trials to raise and address concerns about juror partiality and bias, Moldaver and Brown added.
The British Columbia Civil Liberties Association intervened in the high court case, contending that peremptory challenges protect jury diversity.
“We argued that jury diversity is critical because it limits racial bias and promotes jury impartiality,” the association said Friday.
“But Canadian juries are not diverse. White, wealthy property owners are consistently overrepresented on our juries. Abolishing peremptory challenges will make our juries even less diverse and will violate the charter right to be tried by an impartial tribunal.”
This report by The Canadian Press was first published June 25, 2021.
IN DEPTH
Budget 2024 prioritizes housing while taxing highest earners, deficit projected at $39.8B
In an effort to level the playing field for young people, in the 2024 federal budget, the government is targeting Canada's highest earners with new taxes in order to help offset billions in new spending to enhance the country's housing supply and social supports.
'One of the greatest': Former prime minister Brian Mulroney commemorated at state funeral
Prominent Canadians, political leaders, and family members remembered former prime minister and Progressive Conservative titan Brian Mulroney as an ambitious and compassionate nation-builder at his state funeral on Saturday.
'Democracy requires constant vigilance' Trudeau testifies at inquiry into foreign election interference in Canada
Prime Minister Justin Trudeau testified Wednesday before the national public inquiry into foreign interference in Canada's electoral processes, following a day of testimony from top cabinet ministers about allegations of meddling in the 2019 and 2021 federal elections. Recap all the prime minister had to say.
As Poilievre sides with Smith on trans restrictions, former Conservative candidate says he's 'playing with fire'
Siding with Alberta Premier Danielle Smith on her proposed restrictions on transgender youth, Conservative Leader Pierre Poilievre confirmed Wednesday that he is against trans and non-binary minors using puberty blockers.
Supports for passengers, farmers, artists: 7 bills from MPs and Senators to watch in 2024
When parliamentarians return to Ottawa in a few weeks to kick off the 2024 sitting, there are a few bills from MPs and senators that will be worth keeping an eye on, from a 'gutted' proposal to offer a carbon tax break to farmers, to an initiative aimed at improving Canada's DNA data bank.
Opinion
opinion Don Martin: Gusher of Liberal spending won't put out the fire in this dumpster
A Hail Mary rehash of the greatest hits from the Trudeau government’s three-week travelling pony-show, the 2024 federal budget takes aim at reversing the party’s popularity plunge in the under-40 set, writes political columnist Don Martin. But will it work before the next election?
opinion Don Martin: The doctor Trudeau dumped has a prescription for better health care
Political columnist Don Martin sat down with former federal health minister Jane Philpott, who's on a crusade to help fix Canada's broken health care system, and who declined to take any shots at the prime minister who dumped her from caucus.
opinion Don Martin: Trudeau's seeking shelter from the housing storm he helped create
While Justin Trudeau's recent housing announcements are generally drawing praise from experts, political columnist Don Martin argues there shouldn’t be any standing ovations for a prime minister who helped caused the problem in the first place.
opinion Don Martin: Poilievre has the field to himself as he races across the country to big crowds
It came to pass on Thursday evening that the confidentially predictable failure of the Official Opposition non-confidence motion went down with 204 Liberal, BQ and NDP nays to 116 Conservative yeas. But forcing Canada into a federal election campaign was never the point.
opinion Don Martin: How a beer break may have doomed the carbon tax hike
When the Liberal government chopped a planned beer excise tax hike to two per cent from 4.5 per cent and froze future increases until after the next election, says political columnist Don Martin, it almost guaranteed a similar carbon tax move in the offing.
CTVNews.ca Top Stories
BREAKING B.C. serial killer Robert Pickton hospitalized after prison attack
British Columbia serial killer Robert Pickton sustained life-threatening injuries in a Quebec prison Sunday in what officials described as a 'major assault.'
Passenger killed, 30 injured as Singapore Airlines flight hits severe turbulence
One passenger was killed and 30 injured after a Singapore Airlines SIAL.SI flight from London hit severe turbulence en route on Tuesday, forcing it to make an emergency landing in Bangkok, officials and the airline said.
Conservatives kick off return to House with new call for Speaker Greg Fergus to resign
Pierre Poilievre's Conservatives returned to the House of Commons on Tuesday with a renewed call for Speaker Greg Fergus to resign, this time over 'very partisan' and 'inflammatory' language used to promote an upcoming event.
Trump campaign calls 'The Apprentice' 'blatantly false,' director offers to screen it for him
Donald Trump's reelection campaign called 'The Apprentice,' a film about the former U.S. president in the 1980s, 'pure fiction' and vowed legal action following its premiere at the Cannes Film Festival. But director Ali Abbasi is offering to privately screen the film for Trump.
Feels like mid-30s in parts of Canada, while other areas expecting snow
Anything is possible this week, as far as Canada's weather is concerned, with forecasts ranging from scorching heat in some parts of the country to rain and snow in others.
Nestle to sell $5 pizza, sandwiches in the U.S. for Wegovy, Ozempic users
Nestle NESN.S will market a new, US$5 line of frozen pizzas and protein-enriched pastas in the United States which it says it designed specifically for people taking drugs such as Wegovy or Ozempic for weight loss.
How much more Canadian consumers are paying, compared to this time last year
Canada's annual inflation rate slowed to a three-year low of 2.7 per cent in April, matching expectations, and core measures continued to ease, data showed on Tuesday, likely boosting chances of a June interest rate cut.
Amal Clooney is one of the legal experts who recommended war crimes charges in Israel-Hamas war
Amal Clooney is one of the legal experts who recommended that the chief prosecutor of the world's top war crimes court seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu and leaders of the militant Hamas group.
Flight PS752 victims' families say they're not sorry to hear of Iran president death
Members of a Canadian group representing families of those killed when Iranian officials shot down Flight PS752 in January 2020 say they are not sorry to hear of the death of Iran's president.
Local Spotlight
Beyond books: Halifax libraries lends instruments, sports equipment, memory kits and more
Public libraries in Atlantic Canada are now lending a broader range of items.
'A special bird': The unbreakable bond between purple martins and humans
Flashes of purple darting across the sky mixed with the serenading sound of songs will be noticed more with spring in full force in Manitoba.
7-year-old Pokémon prodigy heading to Hawaii for world championship tournament
Catching 'em all with impressive speed, a 7-year-old boy from Windsor, Ont. who only started his competitive Pokémon journey seven months ago has already levelled up to compete at a world championship level.
VIDEO Born without front legs, this dog has been inspiring the world for 3 years: Dresden farm owner
A sanctuary dedicated to animals with disabilities is celebrating the third birthday of one of its most popular residents.
From DVDs to rehearsals: Halifax theatre company transforms Video Difference building into arts hub
2b Theatre recently moved into the old Video Difference building, seeking to transform it into an artistic hub, meeting space, and temporary housing unit for visiting performers in Halifax.
'Another pair of eyes watching over me:' How a B.C. woman's service dog saved her from drowning
A B.C. woman says her service dog pulled her from a lake moments before she had a seizure, saving her life.
Starbucks fan on decades-long journey to visit every store in the world
A Starbucks fan — whose name is Winter — is visiting Canada on a purposeful journey that began with a random idea at one of the coffee chain's stores in Texas.
'Sacred work': Sask. First Nation learning how to conduct its own underground searches
Members of Piapot First Nation, students from the University of Winnipeg and various other professionals are learning new techniques that will hopefully be used for ground searches of potential unmarked grave sites in the future.
'It could mean a cure': Cautious optimism for groundbreaking ALS research at Western
ALS patient Mathew Brown said he’s hopeful for future ALS patients after news this week of research at Western University of a potential cure for ALS.