Peremptory Challenges: New Rules of Jury Selection in Criminal Trials

Cory Wilson is a criminal defence lawyer serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge, Grand Prairie and  Turner Valley.

The Canadian jury selection system was amended in 2019 by the federal government when “peremptory challenges” were removed.

When Bill C-75 was passed and removed peremptory challenges, the government changed the way that jury members were chosen for trials of accused people moving through the justice system in Canada.

This largely affected the defendant more than the prosecution — and a couple of high-profile cases were at the centre of the ensuing debate.

Let’s take a closer look at what this ruling means for criminal defence.

What are peremptory challenges?

Under the previous criminal laws in Canada, “peremptory challenges” permitted both the prosecution (the Crown) and the defence counsel to remove jurors without stating a reason.

Both sides would be allowed a certain number of peremptory challenges per case, depending on the severity of the charges — up to 20 for first-degree murder but considerably fewer for lesser charges.

Why are peremptory challenges important?

Peremptory challenges are intended to increase diversity and reduce racial bias in the jury selection process, which leads to a fairer justice system.

This is in accordance with Section 11 of the Charter of Rights and Freedoms, which outlines legal rights for persons charged with an offence as follows:

• People are presumed innocent until proven guilty by a fair and impartial tribunal
• People have the right to a trial by jury for certain offences

So, the right to a fair and impartial jury is enshrined in the Charter Rights of every Canadian citizen — and the peremptory challenge system helped ensure diversity and inclusiveness with jury selection.

The importance of peremptory challenges has been recognized for years by the courts. Judges have described the system as a chance to assure fairness within the provincial justice system.

Under the system, if the accused does not have enough information to challenge a juror’s selection for cause, peremptory challenges offered to both sides used to mean that no reason was necessary.

What were the changes in the jury selection process?

A few years ago, the peremptory challenge system came under scrutiny for abuse and the laws were changed to prevent defence lawyers from attempting to assemble as “favourable” a jury as possible for a defendant, i.e., removing those who may vote against the defendant based on certain characteristics.

Peremptory misuse usually took the form of counsel dismissing potential jurors based on their gender or ethnic group. Cases involving minority groups were particularly in the spotlight as the changes were being considered.

One high-profile case that prompted action was the 2018 trial of Gerald Stanley, who was a white Saskatchewan farmer acquitted of second-degree murder of an indigenous man by an all-white jury.

The fact that before the trial indigenous jury contenders were challenged and excluded using the peremptory challenge system by Gerald Stanley’s defence lawyers led to public outrage.

So, the federal government introduced an Act to Amend the Criminal Code (Bill C-75) in 2018, proposing the removal of all peremptory challenges from the jury system, as well as some other amendments. This was passed into law the following year.

Under the new regulations, “challenges for cause” are still allowed. So, either the prosecution or defence can provide reasons to the court to object to a potential juror. It is then up to the judge to decide whether to allow the objection.

Judges also have the power to stand aside jurors to protect public confidence in the justice system.

The decision by the Supreme Court

The proposed amendments to the Criminal Code were long-debated and challenged for their constitutionality. They were certainly not universally welcomed, even by some minority groups.

For instance, counsel for Muslim, Black, South-Asian and Asian-Canadian legal groups argued that peremptory challenges allowed those in racialized communities to avert bias and seek a fair trial.

Many made the point that for-cause arguments to replace a juror are not sufficient, with one lawyer from the South Asian Bar Association saying:

“When the juror doesn’t look the accused in the eyes right away, or looks away quickly, or doesn’t look at all, or just looks plain hostile, and we get that feeling, how can we articulate it in words that provide a legal basis for excluding a juror?”

However, the Supreme Court of Canada ruled that the legislation is constitutional and the laws were enshrined in 2019.

The new jury selection rules did not apply retroactively and one particular case in 2021 that went to appeal was particularly high profile in this regard.

Call Us to Arrange a Confidential Consultation

To speak with Cory Wilson or arrange a free, no-obligation consultation with Wilson Criminal Defence, call 403-978-6052 or email us here.

---

Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.