Criminal Law

Eliminating peremptory challenges puts judges in charge

By Jennifer Brown, AdvocateDaily.com Senior Editor

Criminal Code reforms being rolled out this fall include the elimination of peremptory challenges — where trial participants can reject a certain number of potential jurors without stating a reason — which Toronto criminal lawyer John Rosen says will cause “chaos in the courts.”

“The federal government’s legislation, Bill C-75, has a number of issues with it and the major one for me is the abolition of peremptory challenges,” says Rosen, founder of Rosen & Company Barristers. “It’s clearly going to cause chaos in the courts and affect the manner in which juries are selected.”

Without the peremptory challenges, he says lawyers will be left with challenging a potential juror for cause or another technical issue.

“It also puts the judge in charge of the process,” Rosen tells AdvocateDaily.com. “Unlike the United States, which has extensive voir dire of the jurors, with plenty of questioning, the history in Canada under the challenge-for-cause section has been narrowly interpreted.”

In the Canadian judicial system, each side has a number of peremptory challenges — in second-degree murder trials it’s 12, and first-degree murder it’s 20, he says.

“There may be plenty of reasons — in a sexual assault case I may not want a nurse on the jury, or an accountant in a fraud trial. The Crown will look at a prospective juror because they want an intellectual jury or working-class jury, it all depends,” Rosen says.

In a challenge-for-cause situation, you’re only allowed to ask questions that have been pre-screened by the judge, and only two or three questions are allowed, he says.

“This creates a problem on counsel because we’re going to be asking for a much wider ambit of questioning,” says Rosen.

There’s also a provision in Bill C-75 that the judge will control the questioning, which he says suggests that Canada may be getting closer to the American jury-selection model.

“The judge now has the power, as the jury is being selected, to stand people aside because he or she thinks that the person isn’t representative of the community. All of a sudden, you now have the judge picking the jury as opposed to the participants. This is very troubling because the right to a trial by jury and the right to a fair trial is enshrined in the Charter, and this is tampering with that Charter right,” Rosen says.

He says he expects pushback from both Crown and defence counsel concerning this shift in focus which gives more responsibility to the judge in the selection of jurors.

“Are the judiciary ready for this? I doubt it very much. They are expecting an onslaught of Constitutional challenges,” Rosen says.

However, the real issue procedurally is how will it play out to ensure an individual receives a fair trial? He says the change undermines that right in a number of ways. First is the peremptory challenge itself, which Rosen says was always used as a “shield and never a sword.”

“Up until now, the accused always felt they were participating in the selection of the jury. Now it’s totally out of the accused’s hands — a jury is being selected for the accused, which means it is going to undermine the confidence of the public in the judicial system,” he says.

Rosen says concerns that lawyers can structure a jury in a certain way are unfounded. The federal government stepped in to address the issue after it was raised in the 2018 trial of a Saskatchewan farmer acquitted of second-degree murder in the death of a 22-year-old Cree man. During jury selection, potential jurors who appeared to be First Nations were rejected under the peremptory challenge provision, and an all-white jury was chosen.

“The federal government says that its own studies are based on media reports of this trial and nothing else. There is no empirical study to base this on,” he says. “I don’t think there were any Aboriginal people who felt they had been challenged unfairly.”

Rosen says that by allowing an accused and the Crown to have peremptory challenges provides a “safety valve.”

“People who may not be prejudiced or biased in a general sense may come to be jurors in circumstances where, in a particular case, maybe they shouldn’t be jurors — they may come to it with certain expertise or other knowledge — and now we have no safety valve,” he says.

Rosen advises that accused persons will have to be “very careful” in obtaining counsel to ensure they have the experience in protecting their rights and dealing with the changes in the law.

“You can’t have someone with limited experience walking into this. They’ll get run over,” he says.

Will this cause more appeals?

“The answer is absolutely yes, and that applies to both sides. The reason is that selection of jurors is the decision of basically judges in the case — it goes to the very jurisdiction to have the trial in the first place. If there is a legal flaw in the selection process the entire trial is nullified,” Rosen says.

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