Peremptory Challenges: New Rules of Jury Selection in Criminal Trials
Canadian jury selection system
The Federal Government recently changed the Canadian jury selection system. Through Bill C-75, the government removed peremptory challenges from the jury selection process. This new law changes the way jury members are chosen for trials. In R v Levaillant, the court ruled that the new law shouldn’t apply to accused currently moving through the justice system.
What are Peremptory Challenges?
Peremptory challenges allowed the Crown and defence counsel to remove jurors without giving a reason. The number of peremptory challenges granted to each side depended on the crime. For example, in first-degree murder cases, both sides were given twenty peremptory. In contrast, if the maximum penalty was less than five years, each side was given four challenges.
In 2018, the Government introduced Bill C-75; an Act to Amend the Criminal Code. Among other things, this Bill proposed removing all peremptory challenges from the jury system. The main reason for removing peremptory challenges is concern over the misuse of challenges. Peremptory misuse occurs when counsel dismisses potential jurors based on their gender or ethnic group. This practice stems from a fear that certain groups may be more likely to vote a certain way. Concern over the use of these challenges increases when the accused is from a minority group. This concern reaches an all-time high when the victim and the accused belong to different ethnic groups. Bill C-75 received Royal Assent in June 2019, marking the end of, or so some thought, peremptory challenges.
R v Levaillant: The Case
In St. Paul, Alberta, Mr. Levaillant’s judge and jury trial began on October 29, 2019. Jury selection started on the morning of October 29, 2019. The primary issue was whether Mr. Levaillant should have peremptory challenges. When police charged Mr. Levaillant, Bill C-75 had not been put into effect. The defence argued that the law as it was at the time of the charge should apply. Counsel also argued that removing Mr. Levaillant’s peremptory challenges would impact his sections 11(d) and 11(f) Charter Rights.
The Crown argued that the amendments only affected the procedure or regulation of the law. The Crown believed he should not be entitled to peremptory challenges. The Crown argued that a jury trial does not begin until the selection process starts. Levaillant’s jury selection didn’t begin after Bill C-75 passed, meaning he should be bound by it. Important to the Crown’s position was the difference between retroactivity and retrospectivity. The Crown suggested that retrospective amendments were a lighter burden than retroactive changes. Retrospective amendments according to the Crown, did not impact the accused’s rights Charter rights.
The Crown’s arguments did not convince the court. The judge noted that the distinction between retrospective and retroactive was unhelpful. Both concepts had the same impact on the law. The rule of law protects against retrospective and retroactive presumptions. The rule of law requires that law is stable and predictable. People engaging with the law should know the full effect if they choose to break it. As a result, the court granted the accused’s application and allowed both sides peremptory challenges.
How are Juries Chosen?
The jury system provides an accused with the option of a verdict from their peers. There are several factors affecting jury make-up across Canada. Provinces are responsible for creating the initial pool from which members of the jury are selected. As a result, the degree to which jury pools represent their communities varies from province to province. One of the biggest challenges across the country is Indigenous and minority under-representation. Social, economic, and geographic barriers result in fewer young people and people of lower economic status. Barriers beyond the initial pool include inadequate transportation, compensation, and child-care. These barriers prevent community members from taking part and cause the exclusion of certain groups. The lack of diversity on juries impacts an accused’s right to a fair and impartial trial.
Why are Peremptory Challenges Important?
Although peremptory challenges carry a risk of misuse, they can increase diversity and reduce racial bias. The benefits of an inclusive jury are numerous and widely accepted. The current jury process is so unrepresentative that more is needed to secure an accused’s Charter rights. Section 11 of the Charter of Rights and Freedoms outlines legal rights for persons charged with an offence. Section 11(d) provides that people are presumed innocent until proven guilty by a fair and impartial tribunal. The right to a trial by jury for certain offences is also protected by section 11(f). Reading sections 11(d) and (f) together, we can infer a right to a fair and impartial jury. Courts have recognized that inclusive and impartial juries are important to a fair justice system.
The Supreme Court has not yet ruled directly on peremptory challenges. However, the Court has discussed its utility and importance, if only on a surface level. For example, the Court in Sherratt identified peremptory challenge advantages. These challenges can create a diverse jury when the accused may not have enough information to challenge for cause. Litigants can address perceived concerns they can’t prove by offering both sides peremptory challenges. In Bain, the Court recognized that random selection doesn’t guarantee diversity. The Court described peremptory challenges as a way to influence juries to increase inclusion and fairness. The dissent, in Kokopenace, mentioned peremptory challenge benefits. The Judges described peremptory challenges as a chance to assure fairness within the provincial system.
The current jury system does not guarantee a diverse jury. This system also creates differences in the amount representation across the country. For this reason, the accused should have the chance to impact jury make-up in pursuit of their Charter-protected right to an impartial jury. Mr. Levaillant was allowed peremptory challenges. However, an accused just beginning their way through the criminal justice system will not have the same benefit.
Peremptory challenges increase diversity in a system that has recognized issues with under-inclusion. Removing peremptory challenges, without additional changes, limits section 11(d) and (f) rights. The Court in Levaillant did not assess the impact of removing peremptory challenges generally. Courts need to provide more direction on how to make sense of peremptory challenges with the accused’s Charter rights.