Court backs ban on peremptory challenges
OTTAWA • The Supreme Court of Canada has ruled that banning peremptory challenges — a move that allows lawyers to reject a potential juror without giving any explanation — is constitutional, upholding legislation passed by the Liberal government in 2019.
The court announced its ruling from the bench late Wednesday following a oneday hearing where a wide range of groups disagreed over whether peremptory challenges prevent racial diversity in juries, or help ensure it. Written reasons for the court’s decision will follow later.
Peremptory challenges became a national controversy following the 2018 acquittal by an all-white jury of Gerald Stanley, a white Saskatchewan farmer, of the killing of Colten Boushie, a Cree man from the Red Pheasant First Nation. Observers of the case said Crown lawyers used their peremptory challenges to reject jurors who looked Indigenous.
Shortly afterward, the Liberals introduced Bill C-75, legislation that abolished peremptory challenges and instead gave judges more discretionary power to bar jurors. During the hearing, First Nations groups had argued peremptory challenges are often used to block Indigenous jurors and ensure all-white juries.
But advocates for other racialized communities — including lawyers for Black, Muslim and South Asian groups — argued the opposite, saying peremptory challenges are the best tool available for lawyers to prevent all- white juries, particularly given that racialized people are under- represented on jury rolls.
The case directly before the Supreme Court was that of Pardeep Singh Chouhan, a man charged with first-degree murder over a 2016 shooting. Chouhan’s lawyers argued that in abolishing peremptory challenges, “Parliament removed all possibility for the accused to participate in the selection of the jury that would ultimately decide their guilt or innocence,” and thus violated his Charter right to an impartial trial.
Until written reasons are released, the court’s exact justification for upholding the legislation won’t be known. But many justices had expressed skepticism during the hearing that peremptory challenges are an effective way to ensure racial diversity. At one point, Justice Russell Brown described the practice as rejecting jurors simply because you don’t like “the cut of their jib.”
The Supreme Court also determined another crucial issue: whether the new jury selection rules should be applied to cases that were already in progress when the new law came into effect.
Neither the federal justice department nor Parliament inserted language into C-75 that specified whether the new rules should apply to ongoing cases. The result has been a mess as courts have had to determine whether the new rules are largely procedural, and thus should apply retroactively.