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'Any case where the jury was selected with the new procedure is in jeopardy,' Michael Lacy, president of the Criminal Lawyers’ Association, said in an e-mail to The Globe and Mail.

Andrew Vaughan/The Canadian Press

Scores of criminal convictions could fall as a trucker convicted of first-degree murder challenges the retroactive use of new jury-selection rules.

The case of Pardeep Chouhan, convicted this fall in the 2016 shooting death of fellow trucker Maninder Sandhu, will set a standard for how jury trials should be conducted in Ontario.

The federal government’s decision to abolish a method of jury-selection that is several hundred years old is at the heart of the issue that goes before the province’s Court of Appeal on Thursday. Peremptory challenges allowed the defence and the Crown to veto prospective jurors without explanation. The federal government ended these challenges, saying they have been used, at times, to keep Indigenous people off juries.

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But the government did not spell out whether the ban on peremptory challenges applies only to cases that came after the law took effect on Sept. 19 – or includes those that were already in the system but before jury selection.

Now Ontario’s justice system faces a large potential problem. The province’s courts have stood almost alone in Canada in ruling that the ban applies retroactively. The result: All convictions achieved in which accused persons opted for trial by jury when the old rules were in place, but whose juries were chosen under the new rules, may be in jeopardy.

“Any case where the jury was selected with the new procedure is in jeopardy,” Michael Lacy, president of the Criminal Lawyers’ Association, said in an e-mail to The Globe and Mail. “That is because the parties cannot consent to … engage in a procedure that does not exist.” The group will intervene on Thursday to argue that the new procedures are unconstitutional, and if not, should apply only to new cases.

Criminal-defence lawyers estimate that the new rules have been applied retroactively for scores of juries in Ontario. The Attorney-General’s department said it has not tracked the number selected this way since Sept. 19. But it said the average number of jury trials annually over the past four years has been 321.

The jury for Mr. Chouhan’s murder trial was selected the day the new law took effect, and Superior Court Justice John McMahon ruled the new process applied.

Mr. Chouhan’s lawyer, Dirk Derstine, says his client chose a jury trial when the rules were different. The vetoes would have helped shape the jury, giving him confidence he had received justice. He is trying to have the verdict thrown out so he can be retried under the old system.

In a legal filing at the appeal court, he said the ban on peremptory challenges especially affects members of racial minorities, like his client, because the vetoes can weed out people who they think may have racist views. “Fundamentally, a certain number of Canadians hold racist beliefs,” he said. “Racialized accused have the most reason to be suspicious that not all Canadians will give them a fair trial. They used the peremptory challenge as a tool to obtain as fair a jury as they could.” Mr. Chouhan is also challenging the constitutionality of the ban. It is the first such challenge to reach a provincial appeal court.

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The federal government banned peremptory challenges after an all-white jury acquitted a white farmer, Gerald Stanley, in February, 2018, in the shooting death of an Indigenous man, Colten Boushie. The ban was included in Bill C-75, introduced in Parliament just weeks later, and passed last summer. The bill’s primary purpose was to reduce delay in the criminal-justice system through structural changes to such things as bail and preliminary inquiries.

Some judges say the law’s silence on what trials should be subject to the ban is a major omission. But of the first 25 cases in which judges have ruled on how the law should apply, just nine said retroactively – eight in Ontario. (The ninth was in Nova Scotia.) Judges in six other provinces have ruled that the ban applies only to new cases.

Federal Justice Minister David Lametti, who oversaw passage of the law in Parliament, agrees it should not apply retroactively. “In accordance with [the] federal Interpretation Act, and existing jurisprudence, these changes apply as of the coming into force date and moving forward,” Rachel Rappaport, a spokeswoman for Mr. Lametti, said in an e-mail to The Globe in early December. (In a separate e-mail, she said there was no omission, and no need to spell out in the law when the ban should apply.)

Judges have ruled that changes that are primarily procedural can apply retroactively, while changes of substance – those that affect rights – cannot.

“It is irrelevant whether the accused is better off under the new law or the old law,” Ontario prosecutors Andreea Baiasu and Rebecca Law argue in a legal filing. “Parliament is allowed, within constitutional limits, to change procedural laws such that they become less advantageous to one party or another.”

But Mr. Derstine said the new rules “fundamentally change the balance of power in the selection of the jury.”

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Aboriginal Legal Services, a law clinic and advocacy group, is intervening to argue in support of the law. It said the Stanley trial was not the first to exclude Indigenous people from juries, mentioning the trials of the Métis leader Louis Riel, who was hanged, and Donald Marshall, who was wrongly convicted. The clinic did not take a position on retroactive use of the ban on peremptory challenges.

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