Dozens of Ontario criminal convictions at risk after Court of Appeal ruling on juries

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Dozens of serious criminal convictions are on the verge of being thrown out in Ontario after the province’s highest court ruled that a judge implemented new jury-selection rules incorrectly in a first-degree murder case, resulting in the need for a new trial.

At the same time, the Ontario Court of Appeal upheld the constitutionality of the new rules, which remove from both defence lawyers and prosecutors the power to veto a number of prospective jurors with no explanation, a power known as peremptory challenges.

Lower-court judges in several provinces had criticized the federal government, which implemented the ban, for failing to spell out which cases it applies to: only new cases, after the ban took effect on Sept. 19, or all cases, including those already in the system, where juries had not yet been chosen. Ontario judges were nearly alone in choosing to apply the new rules retroactively to older cases.

The federal government banned peremptory challenges last year in an attempt to ensure fair representation of Indigenous people on juries. The change followed the high-profile 2018 acquittal of white Saskatchewan farmer Gerald Stanley in the shooting death of Colten Boushie, an Indigenous man, in a case in which a defence lawyer appeared to use his peremptory challenges to keep Indigenous people off the jury. The peremptory-challenges ban was a late addition to legislation aimed at speeding up the justice system.

Pardeep Chouhan, a trucker, was charged with first-degree murder in the 2016 shooting death of fellow truck driver Maninder Sandhu, and his jury-selection occurred on Sept. 19. Mr. Chouhan’s lawyer, Dirk Derstine, urged the court to use the previous rules, but Ontario Superior Court Justice John McMahon decided that the new rules should be applied. He said the rules simply changed long-standing procedures, but did not affect the rights of the accused man.

The Ontario Court of Appeal said in a 3-0 ruling on Thursday that Justice McMahon was wrong: procedural changes can affect rights. And, in the case of Mr. Chouhan, did. “The removal of his right to challenge 20 jurors peremptorily deprived him of a valuable tool to select an impartial jury,” Justice David Watt wrote, supported by Justice David Doherty and Justice Michael Tulloch.

In ordering a new trial for Mr. Chouhan, the appeal court also said the new rules should not be applied retroactively in other cases – which means new trials will be needed. (Lawyers say the new rules have already been applied retroactively in dozens of cases.)

“Potentially hundreds of cases will be impacted by this decision,” Daniel Brown, a criminal defence lawyer in Toronto, said in an e-mail. He called it “unbelievable” that the federal government did not spell out whether the new rules applied only to new cases.

The Ontario government still has an opportunity to appeal to the Supreme Court of Canada. On Thursday a spokesman for the Attorney-General’s department said only that the Crown is reviewing the decision.

Rachel Rappaport, a spokeswoman for Justice Minister David Lametti, said the government is reviewing the ruling before commenting. “Juries play a critical role in our justice system and Canadians must have confidence that they reflect the communities they serve,” she said in an e-mail.

In the fall, however, Ms. Rappaport told The Globe and Mail that the federal government believes the peremptory-challenges ban should be applied to new cases only, and that this idea did not need to be spelled out because it should have been clear from case law and principles of statutory interpretation.

Peremptory challenges go back hundreds of years, and in Canada predate the adoption of a formal Criminal Code in the early 1890s. Mr. Derstine had argued that the ban on peremptory challenges was unconstitutional because it deprived accused persons – especially those from racialized minorities seeking to stay clear of bigoted potential jurors – the right to have a say in the composition of juries.

But the appeal court said that while accused people have lost a valuable tool in shaping the jury that judges them, peremptory challenges may facilitate discrimination, and are ineffective at weeding out biased jurors. The court said it was for Parliament, not judges, to decide how to balance the benefits and disadvantages of peremptory challenges. It added that even without peremptory challenges, accused persons can still receive a fair trial.

Jonathan Rudin, program director for Aboriginal Legal Services, an intervenor in the case, said in an interview that peremptory challenges had been used to discriminate against Indigenous people. “The important thing for us is that the case that started this was the Gerald Stanley case, where all the Indigenous jurors were rejected through peremptory challenges. Under this decision, if it stands, that won’t happen again.”

With a report from Patrick White

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