Lawyers wrestle with conflicting views on peremptory challenges

An Ontario Superior Court justice has allowed lawyers to challenge potential jurors without cause in a Hamilton second-degree murder case, a ruling that diverges from that of another judge in the same court.

The decision, R. v. King, 2019 ONSC 6386, which found disallowing peremptory challenges would violate Charter rights, stoked a heated debate about how to avoid discrimination by jurors. The case has drawn attention from the criminal bar, many of whom opposed the elimination of peremptory challenges with the passage of federal Bill C-75 earlier this year, says Owen Goddard, a lawyer who represented applicant Dale King.

“I can't purport to speak for defense lawyers as a group, but I think if you were to speak to them, they largely favor having peremptory challenges,” says Goddard, co-founding partner of Goddard Nasseri LLP. “We often represent visible minorities, disadvantaged groups. And you can use the challenges as a shield, in a protective way, for people in those categories.” 

Peremptory challenges — which allow the accused or the Crown to object to a member of the jury array being chosen to serve on the jury without being required to offer any explanation for the objection — have long been controversial, Justice Andrew Goodman noted in King. In 1980, the Department of Justice noted that the peremptory challenge “has been attacked and praised.”

“Its importance lies in the fact that justice must be seen to be done. The peremptory challenge is one tool by which the accused can feel that he or she has some minimal control over the make-up of the jury and can eliminate persons for whatever reason, no matter how illogical or irrational, he or she does not wish to try the case,” wrote the Justice Department in the report.

The use of peremptory challenges was eliminated by a federal law that went into effect in September. In King, Crown lawyers pointed out that “abolishment or curtailment of the peremptory challenge has been suggested in Canada for some time, particularly as it has been used frequently to the detriment of Indigenous peoples.” 

But Justice Goodman disagreed, noting that in King the accused was Indigenous “and, as a result, racial bias is a pressing concern.” 

“While Parliament’s intent may have been to improve representativeness on the jury by removing peremptory challenges, the effect on the applicant has been the opposite,” Goodman wrote. “The applicant has lost his only certain means of directly participating in the jury selection process to secure the representativeness of the jury that will ultimately decide his fate.” 

Goddard was pleased with Goodman’s decision in his client’s favour. 

“Mr. King may be from completely different walks of life than the trial judge or the Crown attorneys, and may have his own entirely objective reason for wanting to challenge someone and not wanting that person on the jury,” says Goddard.

Still, Goddard says the future of peremptory challenges is now hazy. Not only are there competing views on jury selection rules in Ontario, but other provinces are also in the process of addressing the issue.

“It would have been the easy thing for Justice Goodman to simply adopt the reasoning in the other cases, so we were really pleased that he really engaged with the arguments,” says Goddard. “It's an issue that the Court of Appeal is going to have to clarify, and possibly even the Supreme Court, given how much is going on other provinces . . . . for a while, there's going to be some uncertainty.” 

In King, Goodman departed from the reasoning of fellow Superior Court justice John McMahon. Earlier this year, McMahon ruled in R. v. Chouhan, 2019 ONSC 5512 that the elimination of peremptory challenges and the elimination of lay triers in challenges for cause was procedural, “not a substantive right that stands on its own.” Thus, McMahon decided, the changes in Bill C-75 apply retrospectively and did not violate key sections of the Charter. 

Goodman, however, found that McMahon’s decision was “plainly wrong,” and that he must disagree “in the best interests of the integrity and administration of the justice system.” As a result, there are now conflicting rulings in Ontario about the constitutionality of the recent amendments to s. 634 of the Criminal Code at the Ontario Superior Court level. 

“I fully recognize the difficulty that may arise as a result of divergent rulings from judges of concurrent jurisdiction,” wrote Goodman in the decision. “As well, there continues to percolate competing decisions on some of these very issues arising elsewhere in Canada. The combined result of which provides for unfortunate, contradictory directions to litigants and jurists, and opens the door to some uncertainty in the overall administration of justice.”

Goodman conceded that peremptory challenges, like most jury selection systems, are imperfect. But when looking at the Charter’s s. 7 guarantees of life, liberty and security if the person in accordance with the principles of fundamental justice, Goodman said it is an overbroad adjustment to force all jury challenges into the challenge-for-cause system.

“I think what it suggests is a middle ground — some steps should be taken to ensure that peremptory challenges are not used in a discriminatory way, but something short of simply eradicating them in every case,” Goddard says. 

The Ministry of the Attorney General declined to comment but said it is reviewing the decision.

“All that really led to this application is, we just wanted to be able to participate in selecting the jury that would try the case,” says Goddard. “This is the vehicle for direct participation, and taking that away from an accused person for reasons that have nothing to do with him — because frankly, some white person in another province may have abused the power in a discriminatory way — to then turn around and take it away from someone who faces disadvantage in the justice system, like an Indigenous person . . . . [Goodman found] that led to a Charter violation.”