



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chouhan, 2020 ONCA 40

DATE: 20200123

DOCKET: C67600

Doherty, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pardeep Singh Chouhan

Appellant

Dirk Derstine, Tania Bariteau, and Laura Remigio, for
    the appellant

Andreea Baiasu and Rebecca Law, for the respondent

Jeffrey G. Johnston, for the intervener Attorney General
    of Canada

Jonathan Rudin and Emily Hill, for the intervener
    Aboriginal Legal Services

Nathan Gorham and Mindy Caterina, for the intervener
    Criminal Lawyers Association

Heard: December 19, 2019

On appeal from the conviction entered by Justice John B.
    McMahon of the Superior Court of Justice, sitting with a jury, on October 24,
    2019.

Watt J.A.:

[1]

For 150 years, even before
    Parliament created our first
Criminal

Code
, jury selection in
    a criminal trial followed an established pattern. The parties could challenge a
    fixed number of jurors peremptorily. When permitted, they could also challenge
    prospective jurors for cause. And for the most part, lay triers determined the
    truth of the challenge for cause.

[2]

Things changed on September 19, 2019.
    No more peremptory challenges. No more trials of challenges for cause by lay
    triers. Instead, only challenges for cause determined by the trial judge.

[3]

In this case, I am required
    to decide whether one, both, or neither of these amendments to the jury selection
    procedure can withstand
Charter
scrutiny. If both pass constitutional muster, I then have to determine whether
    they operate prospectively or retrospectively.

[4]

I
    decide that neither the abolition of peremptory challenges nor the substitution
    of the trial judge for lay triers to determine the truth of the challenge for
    cause is constitutionally flawed.

[5]

With respect
    to the temporal application of the amendments, I
decide that the abolition of the peremptory challenge
    applies prospectively, that is to say, only to cases where the accuseds right
    to a trial by judge and jury vested on or after September 19, 2019. But I
    conclude the amendment making the presiding judge the trier of all challenges
    for cause applies retrospectively, that is to say, to all cases tried on or
    after September 19, 2019, irrespective of when the right vested.

THE BACKGROUND FACTS

[6]

About three months ago, a jury
    found Pardeep Singh Chouhan (the appellant) guilty of first degree murder.
    Within a week of his conviction and before the trial judge imposed the
    mandatory sentence upon him, the appellant appealed his conviction. His only
    grounds of appeal relate to the trial judges rulings on the procedure to be
    followed in selecting the trial jury. A brief reference to the procedural
    history of the case is sufficient background for our purposes.

The Charge

[7]

The appellant was indicted
    directly on a single count of first degree murder alleged to have taken place
    on September 30, 2016. The nature of the offence charged and the governing
    procedural provisions of the
Criminal

Code
, R.S.C. 1985, c.
    C-46, meant that, without the consent of the appellant and the Attorney
    General, the trial would be held in the Superior Court of Justice by a court
    composed of a judge sitting with a jury.

The Jury Selection Proceedings

[8]

Before jury selection in the
    appellants case was scheduled to begin, Parliament enacted legislation which,
    among other things, abolished peremptory challenges and substituted the
    presiding judge as the adjudicator of the truth of challenges for cause: Bill
    C-75,
An Act to amend the Criminal Code, the Youth Criminal Justice Act and
    other Acts and to make consequential amendments to other Acts
, 1st Sess.,
    42nd Parl., 2019, c. 25, ss. 269, 272. These amendments came into force on
    September 19, 2019:
An Act to amend the Criminal Code, the Youth Criminal
    Justice Act and other Acts and to make consequential amendments to other Acts
,
    s. 406.

[9]

In advance of jury selection,
    which was scheduled to begin on September 19, 2019, the parties appeared before
    the trial judge to make submissions on three issues arising out of the
    amendments:

i.

the constitutionality of the
    repeal of s. 634 of the
Criminal

Code
which abolished
    peremptory challenges for both parties;

ii.

the constitutionality of the
    amendment to s. 640 of the
Criminal

Code
substituting the
    presiding judge as the adjudicator of the truth of the challenge for cause
    rather than lay triers as had previously been the case;

and

iii.

if the provisions were declared to
    be constitutional, whether they operate prospectively and were thus
    inapplicable to the appellants trial.

The Evidence on the Challenge

[10]

At trial, the appellant filed
    affidavits and adduced
viva voce
evidence from two very experienced
    criminal lawyers. Each had practised as defence counsel in criminal cases for
    more than a quarter century and had represented many racialized accused.

[11]

The witnesses described their
    racialized clients as active participants in their exercise of peremptory
    challenges. The clients provided information to counsel based largely on the
    clients observations of the appearance and demeanour of prospective jurors as
    the prospective jurors were asked to face the accused. The peremptory challenge
    offered the accused, in particular racialized accused, their only chance to
    participate in jury selection.

[12]

Peremptory challenges, the witnesses
    testified, permit them to remove potentially partial prospective jurors and, in
    the case of a racialized accused, to assist their efforts to choose some jurors
    who are similarly racialized so that their client believes the jury to be
    representative. And when racialized accused feel that a fair jury has been
    selected, the witnesses testified that they have more confidence in the trial
    process and are more accepting of its eventual outcome irrespective of the
    actual result.

[13]

The trial Crown did not
    cross-examine either defence counsel who testified in support of the
    application.

The Ruling of the Trial Judge

[14]

In written reasons released one
    week after the conclusion of lengthy oral argument (reported at 2019 ONSC 5512),
    the trial judge held that:

i.

the abolition of peremptory
    challenges by the repeal of s. 634 of the
Criminal

Code
was
    not unconstitutional;

ii.

the substitution of the presiding
    judge as the trier of the truth of the challenge for cause, rather than lay
    triers, through the amendment of s. 640 of the
Criminal

Code,
was not unconstitutional; and

iii.

the amendments operated
    retrospectively, and thus applied to prosecutions that began before September
    19, 2019 but tried thereafter.

[15]

The appellants trial proceeded
    without either party having the right to challenge prospective jurors
    peremptorily. The trial judge determined the truth of each challenge for cause.

The Verdict of the Jury

[16]

On October 24, 2019, the jury
    found the appellant guilty of first degree murder. Two weeks later, the trial
    judge sentenced the appellant to imprisonment for life, without the possibility
    of parole for 25 years.

THE GROUNDS OF APPEAL

[17]

The appellant appeals his
    conviction solely on the basis of the trial judges ruling in the jury
    selection process. He contends that the trial judge erred:

i.

in failing to find that the
    abolition of peremptory challenges by the repeal of s. 634 breached ss. 11(d),
    11(f), and 7 of the
Charter
and could not be saved by s. 1;

ii.

in failing to find that the
    amendments to s. 640, which substituted the presiding judge for lay triers as
    the trier of truth in the challenge for cause, breached ss. 11(d), 11(f) and 7
    of the
Charter
and could not be saved by s. 1; and,

iii.

in deciding that these amendments
    applied retrospectively not prospectively.

[18]

The appellant seeks a new trial.

Ground #1: The Constitutionality of the
    Abolition of Peremptory Challenges

[19]

The first ground of appeal
    challenges the constitutionality of the abolition of peremptory challenges by
    the repeal of s. 634 of the
Criminal

Code
. The appellants
    principal argument is that the abolition of peremptory challenges violates s.
    11(d) of the
Charter
. That provision provides the following:

Any person charged with an offence has the right  to be
    presumed innocent until proven guilty according to law in a fair and public
    hearing by an independent and impartial tribunal.

[20]

The appellant also argues, to a
    lesser extent, that the abolition of peremptory challenges violates ss. 11(f)
    and 7 of the
Charter
. Section 11(f) reads as follows:

Any person charged with an offence has the right  except in
    the case of an offence under military law tried before a military tribunal, to
    the benefit of trial by jury where the maximum punishment for the offence is
    imprisonment for five years or a more severe punishment.

Section 7 provides:

Everyone has the right to life, liberty and security of the
    person and the right not to be deprived thereof except in accordance with the
    principles of fundamental justice.

[21]

Like the parties submissions,
    these reasons will focus on the s. 11(d) argument. A brief reference to the
    150-year history of peremptory challenges to prospective jurors creates a
    suitable framework for the discussion that follows.

The Statutory Background

[22]

Canada inherited the availability
    of peremptory challenges from England but has varied the number of these
    challenges available to the accused and Crown over the years. In our first
    unified statute governing criminal procedure 
An Act respecting Procedure
    in Criminal Cases, and other matters relating to Criminal Law
, S.C. 1869
    (2nd Sess.), c. 29, s. 37  an accused was entitled to exercise 20, 12 or 4
    peremptory challenges depending on the seriousness of the offence charged. The
    Crown was entitled to four peremptory challenges irrespective of the nature or
    seriousness of the offence. But the Crown could stand by an unlimited number of
    prospective jurors.

[23]

In 1892, Parliament enacted our
    first
Criminal

Code
: S.C. 1892 (2nd Sess.), c. 29. The
    accused retained the same schedule of peremptory challenges as had been the
    case in the unified statute of 1869 with 20 challenges reserved for treason or
    any offence punishable with death: s. 688. The Crown retained its four
    peremptory challenges and unlimited stand bys.

[24]

In 1917, Parliament amended the
Criminal
    Code
to reduce the number of stand bys available to the Crown to 48:
An
    Act to Amend the Criminal Code (Respecting Jurors)
, S.C. 1917, c. 13, s. 1.

[25]

In 1976, when Parliament abolished
    capital punishment for civilian offences, it revised the offences for which the
    highest number of peremptory challenges  20  were available:
The Criminal
    Law Amendment
Act (No. 2), 1976
, S.C. 1974-75-76 (1st Sess.), c.
    105, s. 10. An accused charged with high treason or first degree murder could
    challenge 20 prospective jurors peremptorily. The remaining schedule of
    challenges for the defence and Crown and the number of stand bys available to
    the Crown remained the same.

[26]

In 1992, however, a majority of
    the Supreme Court held in
R. v. Bain
, [1992] 1 S.C.R. 91, that the
    authority of the Crown to stand by up to 48 prospective jurors violated s.
    11(d) of the
Charter
. The court reasoned that the availability of
    stand bys created an imbalance in the Crowns ability to shape the composition
    of the jury. This undermined the appearance of a fair trial:
Bain
, at
    pp. 102-4,
per
Cory J., at p. 161,
per
Stevenson J.

[27]

Parliament responded to the
    decision in
Bain
by removing the stand by authority of the Crown and
    equalizing the number of peremptory challenges as between the Crown and
    accused:
An Act to Amend the Criminal Code (Jury)
, S.C. 1992, c. 41,
    s. 2.

[28]

Finally, in 2019, Parliament
    repealed s. 634 of the
Criminal

Code
, thus abolishing
    peremptory challenges previously available to the parties under that section:
An
    Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts
    and to make consequential amendments to other Acts
, s. 269. At the same
    time, the stand by authority of the judge presiding over jury selection was
    expanded in a new s. 633 which provides:

The judge may direct a juror who has been called under
    subsection 631(3) or (3.1) to stand by for reasons of personal hardship,
maintaining
    public confidence in the administration of justice
or any other reasonable
    cause. [Emphasis added.]

[29]

These amendments came into force
    on September 19, 2019.

The Challenge under Section 11(d) of the
Charter


[30]

Section 11(d)s guarantee of a
    right to a fair trial was central to the appellants claim that the abolition
    of peremptory challenges is unconstitutional. The trial judge concluded
    otherwise. And I agree.

[31]

I begin with a brief reference to
    the trial judges reasons for rejecting the appellants claim before turning to
    the arguments advanced on the same issue, the principles which control my
    decision, and the conclusion those principles mandate in this case.

The Reasons of the Trial Judge

[32]

The trial judge considered whether
    the abolition of peremptory challenges violates the accuseds s. 11(d) right to
    a fair trial by asking whether a reasonable person, fully informed of the
    circumstances, would have a reasonable apprehension of bias. He concluded such
    a person would not.

[33]

The trial judge emphasized the
    strong presumption of jury impartiality and the stringent standard required to
    rebut it. The limited number of peremptory challenges available to each side
    depending on the seriousness of the offence underscored that the peremptory
    challenge was not an unlimited right. Moreover, there were a number of safeguards
    which ensured an independent and impartial jury:

i.

an accuseds right to a
    representative jury panel, but not to a jury representative of the population
    or made up of members of the accuseds gender, group, or race;

ii.

the randomness of both the
    out-of-court process to compile the jury rolls and of the in-court process to
    select the jury for trial;

iii.

the availability of unlimited
    challenges for cause upon a preliminary showing of a reasonable prospect of
    partiality;

iv.

the discretion of the trial judge
    to excuse prospective jurors; and

v.

the discretion of the trial judge
    to stand by prospective jurors not only for personal hardship or other
    reasonable cause, but also to maintain public confidence in the administration
    of justice.

[34]

The trial judge concluded abolition
    of peremptory challenges does not infringe s. 11(d):

Our criminal justice system should strive for transparency and
    openness. The ability to exclude a potential juror based simply on their
    appearance, their look, or a persons gut feeling, without furnishing a reason,
    is not transparent. The elimination of the peremptory challenge does make the
    justice system more transparent, but without removing either parties ability
    to set aside potential jurors for articulable reasons.

A reasonable person, fully informed of the safeguards available
    in our selection process for Canadian jurors, could not reach the conclusion
    that an accuseds right to an independent and impartial jury would be violated
    by the elimination of the peremptory challenge. It is for these reasons that
    the repeal of s. 634 does not violate the accuseds constitutional rights
    pursuant to s. 11(d).

The Arguments on Appeal

[35]

The parties and interveners each
    made submissions on this issue. The Criminal Lawyers Association (CLA)
    supported the position of the appellant. Aboriginal Legal Services (ALS) and
    the Attorney General of Canada (AG Canada) aligned with the respondent (the provincial
    Crown).

The Appellants Position

[36]

The appellant principally takes
    issue with two aspects of the trial judges reasons.

[37]

First, the appellant says that the
    test under s. 11(d) must include the accuseds perception. Courts have
    recognized widespread racial prejudice and discrimination in the criminal
    justice system. The trial judge erred when he failed to take into account this
    well-documented fact.
According to the
    appellant, widespread racism rebuts the presumption of juror impartiality in
    cases where the accused is racialized and necessitates a right to peremptory
    challenges. The appellant submits that, in assessing his s. 11(d) claim,
the trial judge had to ask himself whether a
    reasonable person, in the position of a racialized or otherwise marginalized
    accused, fully informed of the circumstances, would have a reasonable
    apprehension of bias when unable to challenge prospective jurors peremptorily.

[38]

Second, the appellant submits the
    trial judge erred in finding that the other safeguards available in the jury
    selection process were sufficient to protect the appellants s. 11(d) interests.
    For example, the appellant contends representativeness and randomness do not
    weed out bias. Rather, they ensure that some prospective jurors will have
    racist beliefs and become involved in the selection process. Similarly, while
    the challenge for cause is a tool to root out potentially racist jurors, it is
    a coarse filter. Its yes or no answers to the questions and rejection of
    demeanour as a determinant allow some prospective jurors with racist beliefs to
    slip through the cracks. And while the presiding judge has the power to excuse and
    stand by potential jurors, these powers are not linked to issues of potential
    bias or prejudice and are exercised by the judge without participation by the
    accused or their counsel. The expanded stand by ground  maintaining public
    confidence in the administration of justice  adds nothing to the former
    authority.

[39]

In making these arguments, the
    appellant emphasizes that peremptory challenges were an important tool for an
    accused. They helped to ensure that justice was seen to be done. And they gave
    an accused at least some minimal control over who would decide their case. This
    fostered confidence in the fairness of the trial process and promoted acceptance
    of the verdict ultimately rendered, even if adverse to the accuseds interest.

[40]

The CLA supports the appellants position
    and adds that peremptory challenges allow an accused to challenge prospective
    jurors who acknowledge biases but are not eliminated during the challenge for
    cause procedure; or who are disinterested or dishonest, something that the
    remaining safeguards cannot achieve. Absent peremptory challenges, an accused
    has no other means to eliminate their residual concerns about such persons.
    Most jurisdictions have retained peremptory challenges, which, the CLA adds, is
    evidence peremptory challenges are necessary to ensure a fair and impartial
    hearing by an independent tribunal.

The Respondents Position

[41]

The respondent disagrees with the
    s. 11(d) test put forward by the appellant and his submissions on the impact of
    the safeguards on the accuseds right to a fair trial. The respondent
    emphasizes that no party, including an accused, has a constitutional right to
    shape the composition of the jury in their ideal image. Section 11(d) does not
    protect a statutory right to exclude a limited number of prospective jurors for
    no reason, or for purely speculative inarticulate reasons with no connection to
    impartiality and often fuelled by stereotypical attitudes.

[42]

According to the respondent, the
    trial judge applied the correct test for deciding the s. 11(d) claim, that is,
    whether a reasonable person, fully informed of the circumstances (including the
    strong presumption of juror impartiality), would have a reasonable belief the
    trial was unfair. The perspective is holistic, from the vantage point of a
    reasonable, informed observer.

[43]

The respondent contends that other
    safeguards in the jury selection process, when considered cumulatively, would
    lead a reasonable person, fully informed of these safeguards, to conclude that
    the process was fair and likely to ensure an impartial jury.

[44]

AG Canada supports the respondents
    position and adds that peremptory challenges have a minimal effect on juror
    impartiality. It is pure happenstance if a peremptory challenge excludes a
    partial juror. It is just as likely to exclude an impartial one as a partial
    one. The elimination of peremptory challenges does not impermissibly limit s.
    11(d) simply because it reduces the accuseds level of involvement in the
    selection process. A reasonable person fully informed of the circumstances (including
    the presumption of juror impartiality, the jurors oath or affirmation to
    deliver a verdict based on the law and facts of the case, as well as the various
    trial safeguards to ensure impartiality) would not conclude the abolition of
    peremptory challenges undermines the accuseds right to a fair trial by an
    impartial jury.

[45]

ALS also supports the respondents
    position and adds that peremptory challenges perpetuate discrimination against
    Indigenous persons. Ridding the jury selection process of a tool used to
    discriminate against Indigenous persons ensures, rather than impairs, trial
    fairness.

The Governing Principles

[46]

Section 11(d) of the
Charter
guarantees to any person charged with an offence the right to be presumed
    innocent until proven guilty according to law in a fair and public hearing by
    an independent and impartial tribunal.

[47]

The appellant focuses on two aspects
    of the s. 11(d) right:

i.

a fair hearing; and

ii.

an impartial tribunal.

The Right to a Fair Hearing

[48]

Section 11(d) guarantees the
    accused and community perceive the trial to be fair. It guarantees the trial
    satisfies its truth-seeking function. And it guarantees the accused basic
    procedural fairness:
R. v. Harrer
, [1995] 3 S.C.R. 562, at para. 45. All
    of this within the practical limits of the justice system:
R. v. Find
,
    2001 SCC 32, [2001] 1 S.C.R. 863, at para. 28.

[49]

But s. 11(d) does
not

guarantee a particular trial process. Nor does it guarantee the process
    most advantageous to the accused:
R. v. Rodgers
, 2006 SCC 15, [2006] 1
    S.C.R. 554, at para. 47;
United States of America v. Ferras
;
United
    States of America v. Latty
, 2006 SCC 33, [2006] 2 S.C.R. 77, at para. 14;
R.
    v. Lyons
, [1987] 2 S.C.R. 309, at p. 362;
Harrer
, at para. 45.

[50]

When, as here, Parliament alters
    the jury selection process and the alteration is challenged under s. 11(d), the
    focus of our inquiry is on whether the effect of the change renders the trial
    unfair, whether by undermining the guarantee of impartiality or otherwise:
R.
    v. Kokopenace
, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 48.

[51]

Our courts have long
    recognized the importance of peremptory challenges and the benefits that they
    bring to the jury selection process. For example, an accused may lack
    sufficient information to bring a challenge for cause yet encounter a
    prospective juror whom they may feel is unsuitable to be a member of the trial
    jury. In some circumstances, peremptory challenges may assist in empanelment of
    a more representative jury depending upon both the nature of the community and
    the accused: see
R. v. Sherratt
, [1991] 1 S.C.R. 509, at pp. 532-33. See
    also
R. v. Yumnu
, 2010 ONCA 637, 260 C.C.C. (3d) 421, at paras.
    123-24, affd 2012 SCC 73, [2012] 3 S.C.R. 777.

[52]

Unlike challenges for cause,
    peremptory challenges permit the direct involvement of the accused in the jury
    selection process. This enhances the confidence of the accused, and perhaps the
    public, in the fairness and transparency of the process. Peremptory challenges
    also provide a safety valve, within their inherent limitations, to remove
    prospective jurors who appear unsuitable for the adjudicative task ahead
    because they appear uneasy, unwilling, or overeager to embrace it.

[53]

On the other hand, we also
    recognize that peremptory challenges may not always advance the cause of a fair
    hearing and the selection of an impartial jury.

[54]

As the descriptive peremptory
    suggests, these challenges are by nature arbitrary and subjective. It is very
    difficult for counsel in a moment to forecast, let alone to do so accurately, a
    prospective jurors beliefs and attitudes based on that persons race, gender,
    age, ethnic origin, demeanour, or manner of dress. An arbitrary measure is not
    designed to secure an impartial jury.

[55]

Peremptory challenges may also be
    a source of juror frustration and humiliation, all the more so when they are
    exercised after the prospective juror has been found to be impartial on a
    challenge for cause.

[56]

In addition, peremptory challenges
    can enhance or facilitate discrimination against racialized or marginalized
    prospective jurors. This is so because the exercise of peremptory challenges may
    often be based on assumptions, stereotypes, or prejudices. The result is a
    diminution rather than an enhancement of representativeness in the trial jury.

[57]

At bottom, peremptory challenges are
    not an effective tool for weeding out biased jurors. They are exercised
    arbitrarily, relying on guess work and uncertain mythologies about those most
    likely to react unfavourably to the challengers case.

[58]

The legislative history in this
    case reveals that both houses of Parliament and their respective legislative
    committees were well aware of both sides of the debate about the value of
    peremptory challenges as a mechanism to promote the empanelment of an impartial
    jury and ensure the fair trial rights of the accused. The committees of both
    houses received evidence and submissions from practitioners and scholars
    arguing for and against the elimination of peremptory challenges. In the end,
    Parliament determined that their potential for abuse outweighed their benefits as
    part of a selection process designed to ensure a fair trial and the empanelment
    of an impartial jury. This cost-benefit analysis was for Parliament to
    undertake. Parliament made its decision. That decision must be respected by the
    court unless the statutory result is unconstitutional.

[59]

Some other common law
    jurisdictions have come to the same conclusion. The abolition of the peremptory
    challenge in Northern Ireland provides an example. After Northern Ireland
    abolished the peremptory challenge, a court ruled that the abolition did not
    violate an accuseds right to a fair trial under art. 6 of the
European
    Convention on Human Rights
, E.T.S. 5, (4 November 1950), because peremptory
    challenges were not indispensable to the fair trial right. The court reasoned
    that the clear and proper public objective underpinning their removal (ensuring
    that the trial process is fair and delivers justice for defendants, victims and
    society at large) represented a fair balance between the general interest of
    the community and the personal rights of the individual:
McParland, Re
    Judicial Review
, [2008] N.I.Q.B.
    1,
at para. 52.

[60]

In Canada, Parliament has
    similarly decided to abolish peremptory challenges. In deciding whether that
    abolition violates s. 11(d), the court must ask itself whether the effect of
    that change renders the trial unfair, whether by undermining the guarantee of
    impartiality or otherwise.

The Right to an Impartial Tribunal

[61]

Section 11(d) includes the right
    be tried by an impartial jury:
R. v. Williams
,
[1998] 1 S.C.R. 1128, at para. 48.

[62]

To determine whether a tribunal is
    impartial, the question is whether a reasonable person, fully informed of the
    circumstances, would have a reasonable apprehension of bias:
Kokopenace
,
    at para.
49
;
Bain
, at
    pp. 101, 111-12 and 147-48. The informed person begins their analysis with a
    strong presumption of juror impartiality and a firm understanding of the
    numerous safeguards in the jury selection process designed to weed out
    potentially biased candidates and to ensure that selected jurors will judge the
    case impartially. The reasonable apprehension of bias has never hinged on the
    existence of a jury roll or, for that matter, a jury that proportionally
    represents the various groups in our society:
Kokopenace
, at para. 53;
Find
, at paras. 26, 41-42 and 107;
Williams
, at para. 47.


[63]

The test for impartiality includes
    a twofold objective component. First, the observer. The person considering the
    alleged bias must be reasonable. The observer must be informed of the relevant
    facts and view the matter realistically and practically. The reasonable
    observer does not depend on the views or conclusions of the accused:
R. v.
    S. (R.D.)
, [1997] 3 S.C.R. 484, at para. 111,
per
Cory J.;
R.
    v. Dowholis
, 2016 ONCA 801, 341 C.C.C. (3d) 443, at para. 20. Second, the
    apprehension of bias. That too must be reasonable in the circumstances of the
    case:
S. (R.D.)
, at para. 111,
per
Cory J.

[64]

In applying the test for
    impartiality, a court must be cognizant of the well-established and undisputed
    fact that racial prejudice can lead to a risk of empanelling prejudiced jurors
    who will not give a racialized accused a fair trial. As this court observed
    more than two decades ago in
R. v.

Parks
(1993), 84 C.C.C. (3d)
    353 (Ont. C.A.), at p. 369, leave to appeal refused, [1993] S.C.C.A. No. 481:

Racism, and in particular anti-black racism, is part of our
    communitys psyche. A significant segment of our community holds overtly racist
    views. A much larger segment subconsciously operates on the basis of negative racial
    stereotypes. Furthermore, our institutions, including the criminal justice
    system, reflect and perpetuate those negative stereotypes. These elements
    combine to infect our society as a whole with the evil of racism.

See also
Williams
,
    at para. 58.

[65]

It is also an established fact
    that widespread prejudice affects juries. It introduces the risk that jurors
    may not be impartial because of racial prejudice. Partiality, in the sense
    relevant to s. 11(d), has both an attitudinal and behavioural component:
Parks
,
    at p. 364;
Find
, at paras. 32-33. In order to be partial a juror must
    not only hold biased views but also allow these to influence their
    deliberation.

[66]

Various in-court mechanisms are
    available to protect against juror bias and ensure the constitutional guarantee
    of an impartial jury is met. Notably, s. 638(1)(b) of the
Criminal Code
permits an accused and the Crown to exercise any number of challenges for cause
    on the ground that a juror is not impartial. The challenge for cause is a two-stage
    process. First, the judge must determine whether there is a realistic potential
    or possibility for partiality. Second, if the judge permits challenges for
    cause, potential jurors are questioned to determine if they will be able to act
    impartially:
Williams
, at paras. 32-34.

[67]

Other in-court mechanisms also
    protect against jury partiality.
For
    example, s. 632(c) of the
Criminal Code
permits the presiding judge,
    at any time before the commencement of the trial, before or after the jurors
    card has been selected by the registrar, or before the prospective juror has
    been challenged, to excuse the prospective juror for reasons of personal
    hardship or any other reasonable cause that, in the opinion of the judge,
    warrants that the juror be excused.

[68]

Under s. 632(c), the presiding
    judge may alert the entire jury panel about the nature of the offence charged
    and invite those who would find it difficult to be a member of the jury chosen
    to try the case to identify themselves. After brief inquiry, the judge may
    excuse jurors on the basis of personal hardship or any other reasonable
    cause:
R. v. B. (A.)
(1997), 115 C.C.C. (3d) 421 (Ont. C.A.), at p.
    443, leave to appeal refused, [1997] S.C.C.A. No. 461. This authority is not a substitute
    for a challenge for cause and must not be used to circumvent the threshold
    required for a challenge for cause:
Sherratt,
at pp. 533-34. This
    procedure also has the value of transparency:
R. v. Barrow
, [1987] 2
    S.C.R. 694, at pp. 713-14.

[69]

Another in-court mechanism is the
    stand by authority of the presiding judge. Under the recently amended s. 633 of
    the
Criminal Code
, the presiding judge may stand by potential jurors
    for personal hardship, maintaining public confidence in the administration of
    justice, or any other reasonable cause.

[70]

This stand by authority is available after
    a prospective juror has been called under s. 631(3) or (3.1), and thus is
    available before or after a challenge for cause has been heard and its truth
    determined. The language of personal hardship and any other reasonable
    cause duplicates that in the excusal authority of s. 632(c). But the language
    maintaining public confidence in the administration of justice is new and, as
    a matter of statutory construction, covers different ground. In this case, for
    example, the trial judge used it to direct a prospective juror, who had been
    found impartial on the challenge for cause, to stand by. The basis for its
    exercise was the appellants belief, communicated to the trial judge through
    counsel, that a rude gesture had been made by the prospective juror when asked
    to face the appellant.

[71]

We did not receive any submissions that
    would permit me to mark out the boundaries of this additional authority.
    Suffice it to say that its presence is of further assistance in ensuring the
    constitutional requirement  an impartial jury.

[72]

Additional procedures also exist to ensure
    that the actual and apparent impartiality of the jury as empaneled continues
    throughout the trial. The opening instructions to the jury. Periodic reminders
    about the need to keep an open mind and to withhold judgment until deliberations.
    Mid-trial and final instructions about permitted and prohibited use of evidence.
    And, of course, the charge to the jury.

[73]

A final point concerns the role of
    representativeness in jury selection under s. 11(d) and its relationship to
    impartiality.

[74]

Representativeness is an important
    feature of the jury. But its meaning is circumscribed. Representativeness
    promotes impartiality through the process used to compile the jury roll, not through
    its ultimate composition:
Kokopenace
, at para. 54. An accused has no
    right to a jury roll of a particular composition. Nor to one that
    proportionally represents all the diverse groups in our multicultural society.
    Nor to a particular number of persons of the accuseds race on the jury roll or
    selected jury:
Kokopenace
, at para. 39;
R. v. Church of
    Scientology
(1997), 116 C.C.C. (3d) 1 (Ont. C.A.), at pp. 62-63, leave to appeal
    refused, [1997] S.C.C.A. No. 683.

The Principles Applied

[75]

As I will explain, I agree with
    the trial judge that the abolition of peremptory challenges by the repeal of
    former s. 634 of the
Criminal Code
does not infringe the appellants
    rights as guaranteed by s. 11(d) of the
Charter
.

[76]

Preliminary to an assessment of
    this claim, it is helpful to recall the availability and nature of peremptory
    challenges and their role in the selection of a trial jury. In this way, we can
    establish what has been lost by their abolition, to better gauge whether the
    loss is of constitutional dimension.

[77]

The parties in a criminal
    prosecution, the accused and the Crown, have been able to challenge prospective
    jurors peremptorily for over 150 years. In exercising this right, as the
    descriptive peremptory attests, the challenge is decisive, dispositive of the
    prospective jurors participation as a juror at trial. No ifs. No ands. No
    buts. End of story for the prospective juror peremptorily challenged. No
    questions asked. No reasons required, even if the prospective juror has been
    found impartial on a challenge for cause.

[78]

Second, by nature, a peremptory
    challenge is negative, exclusive not inclusive. Said in another way, it does
    not directly determine who will become a juror, rather, when exercised, it
    determines who will not serve in that capacity.

[79]

Third, peremptory challenges are
    not the exclusive property of the defence. They are equally available to the
    Crown.

[80]

Fourth, peremptory challenges are
    not unlimited. Their number has always been fixed by statute according to the
    nature of the offence charged or the sentence which can be imposed on
    conviction.

[81]

Fifth, the number of peremptory
    challenges available has varied over time. Yet their fluctuation in number
    throughout history has never been tied to the fairness of the trial or the
    impartiality of the jury.

[82]

Sixth, the dominant considerations
    which influence the exercise of peremptory challenges are subjective. They can
    and often are exercised, not on the basis of facts which have been or can be
    proven, but rather on the mere belief by a party in the existence of a certain
    state of mind in the prospective juror. Often, stereotypical reasoning is afoot
    in their exercise. No one gainsays that they are open to abuse.

[83]

Further, peremptory challenges
    have nothing to do with any pre-trial procedures designed to compose the jury
    roll in a manner that is at once random and representative of the population in
    the venue of trial. Nor do they have a say in the random in-court selection of
    prospective jurors, the authority of the presiding judge to excuse or stand by
    prospective jurors, or the challenge for cause process.

[84]

Bearing in mind these
    observations, I conclude that the appellants claim of an infringement of the
    fair hearing and impartial tribunal components of s. 11(d) fails. I say this
    for several reasons.

[85]

I begin with the nature of the
    right guaranteed by s. 11(d). A fair hearing by an impartial jury is the
    constitutional requirement. Neither component guarantees a particular process or
    that peremptory challenges are a part of that process. Nor does s. 11(d)
    guarantee that the process be the most advantageous to an accused or perfect in
    the eyes of an accused. What is required is a prevailing system of jury
    selection, consisting of the sum of its various components, that results in a
    fair trial. What remains after the abolition of peremptory challenges does so.

[86]

Second, and relatedly, the
    appellants exclusive focus on peremptory challenges and the effect of their
    abolition fails to recognize that it is the jury selection process as a whole,
    not each component, which must satisfy the constitutional standard. This
    includes not only the in-court process, such as its randomness, the authority
    to excuse and stand by jurors and the availability of challenges for cause, but
    also the out-of-court process to compose the jury roll.

[87]

Third, the appellants argument
    that peremptory challenges are essential to ensure an impartial jury has
    inherent in it a paradox. Impartiality is an objective standard or quality. Yet
    to achieve it, the appellant invokes peremptory challenges which he
    acknowledges are exercised for purely subjective, often stereotypical reasons.

[88]

There is no doubt that racial
    prejudice can lead to a risk of empanelling prejudiced jurors who are not
    impartial. However, the reality of racial prejudice and the risk of prejudiced
    and partial jurors does not elevate peremptory challenges to the level of a
    constitutionally guaranteed right. The limited number of peremptory challenges
    and their exercise based on inherently subjective considerations make them
    structurally incapable of solving for real or perceived racial bias, let alone
    necessary to secure the right to a fair hearing and impartial tribunal.

[89]

To the contrary, once a real risk
    of partiality has been established, the next step must be to identify and
    exclude
all
jurors who are partial. In the abstract, whatever mechanism
    is used to identify partiality must be applied to (or, at minimum, be capable
    of being applied to) every potential juror. This is because the risk of
    prejudice that the appellant identifies is a general one. It is a concern about
    the jury pool as a whole and is not limited to specific jurors. If every
    potential juror may be prejudiced or partial, then the filter for partiality
    must apply to all potential jurors. The peremptory challenge, by its very
    nature, cannot fill this role.

[90]

Fourth, the appellant overvalues
    the efficacy of peremptory challenges to ensure an impartial jury or a fair
    hearing. There is no evidence that the subjective considerations which underlie
    the exercise of peremptory challenges render them more likely to exclude
    potentially partial jurors than impartial jurors. And it scarcely follows from
    the availability of a fixed number of peremptory challenges that the remaining
    jurors are all likely to be impartial, especially where there is no challenge
    for cause.

[91]

Further, the standard applied to
    determine impartiality, as well as independence, is an objective standard. The
    question to be answered is whether a reasonable person, fully informed of the
    circumstances and relevant considerations, viewing the matter realistically and
    practically and having thought it through, would conclude that the jury was not
    impartial. The fully informed person must appreciate the existence of racism in
    society, but the application of this standard does not depend on the subjective
    views of the accused.

[92]

We recognize a strong presumption
    of juror impartiality. And we require cogent evidence, not conjecture or
    speculation, to rebut it. It is not rebutted by the existence of racism in
    society as a whole, nor by a determination that prospective jurors may be
    challenged for cause. Fully informed of the safeguards in place to ensure the
    selection of an impartial jury, and the in-trial mechanisms to ensure that the
    jury once empanelled remains so, the reasonable person would nonetheless have
    to conclude that, absent peremptory challenges, a jury would not likely decide
    the case fairly. No such conclusion would logically follow.

[93]

A final point concerns the impact
    of peremptory challenges on the representativeness of the jury which the
    appellant contends at least fosters, if not is essential to, an impartial jury.

[94]

This argument founders for at
    least two reasons. As we have seen, representativeness promotes impartiality
    through the process used to compile the jury roll, not through its ultimate
    composition. In addition, an accused is not entitled to a particular racial or
    ethnic composition of the jury selected for the trial. Thus, the availability
    of peremptory challenges to achieve something to which an accused is not
    constitutionally entitled does not make the abolition of those challenges unconstitutional.

[95]

The appellants argument that the
    elimination of peremptory challenges violates s. 11(d) of the
Charter
accordingly fails.

The Challenge under Section 11(f) of the
Charter


[96]

While the appellant accepts that
    this case turns primarily on his s. 11(d) argument, he also invokes s. 11(f) of
    the
Charter
to advance his case that the abolition of peremptory
    challenges infringes his right to the benefit of a trial by jury. I disagree.

[97]

Brief reference to the trial
    judges conclusion provides the necessary background to determine this issue.

The Reasons of the Trial Judge

[98]

The trial judge rejected the claim
    under s. 11(f) in brief terms:

I have already concluded that the safeguards in relation to the
    jury selection process that are in place are such that the elimination of
    peremptory challenges does not violate the accuseds rights to an impartial
    jury. The representativeness of the panel, the randomness of its selection and
    the ability for either party to challenge the process provide sufficient
    safeguards of the selection process. I cannot conclude that the accuseds s.
    11(f) rights have been violated.

The Arguments on Appeal

The Appellants Position

[99]

The appellant says the trial judge
    restricted his examination of this issue to representativeness and, in doing
    so, failed to give proper effect to the nature of this s. 11(f) right  the
benefit
of trial by jury. To understand the benefit of trial by jury in a purposive
    way, trial by jury must have more than the trappings of a jury trial.

[100]

The appellant contends the right
    to challenge prospective jurors peremptorily is one of the baseline procedural
    guarantees necessary to give effect to the s. 11(f) right to the benefit of
    trial by jury. Because he could not challenge prospective jurors peremptorily,
    the appellant says he lost the ability to participate in the jury selection
    process, to challenge persons he believed were not impartial, and to select a
    jury with some persons of the same racial and cultural background as him. This
    eroded his confidence in the impartiality and independence of the jury.

[101]

The CLA agrees with the appellant
    and adds that many other common law countries permit peremptory challenges.
    This demonstrates the value of peremptory challenges in selecting an impartial
    jury, an essential feature of the benefit of trial by jury.

The Respondents Position

[102]

The respondent says s. 11(f) of
    the
Charter
offers no additional constitutional guarantees than that
    for which s. 11(d) provides in the circumstances of this case. If the abolition
    of peremptory challenges does not infringe the appellants right to a fair
    trial by an independent and impartial jury under s. 11(d), it cannot contravene
    the right to the benefit of a jury trial under s. 11(f).

[103]

The focus of the s. 11(f)
    guarantee, the respondent says, is on the representativeness of the jury roll.
    An alteration to the in-court jury selection procedure does not, indeed cannot,
    offend s. 11(f), especially if it meets the standard in s. 11(d). There is no
    freestanding right to peremptory challenges. They are creatures of statute, not
    constitutional requirements to give effect to the benefit of a trial by jury.

[104]

AG Canada agrees with the
    respondent. AG Canada accepts that the role of representativeness is broader
    under s. 11(f) than under s. 11(d) but submits that the obligation of
    representativeness fixed on the state is the same under s. 11(f) as it is under
    s. 11(d). That obligation extends only to the process used to compile the jury
    roll. And it does not reach the in-court selection process where the ultimate
    composition of the jury is selected for trial.

The Governing Principles

[105]

Section 11(f) of the
Charter
guarantees
    the benefit of a jury trial to an accused charged with an offence for which the
    maximum punishment is imprisonment for five years or a more severe punishment.
    A central component of this right is representativeness, which plays a larger
    role in the constitutional guarantee in s. 11(f) of the
Charter
. This
    is so because representativeness is a component of the right to the benefit of
    trial by jury. But the meaning assigned to representativeness under s. 11(f) is
    the same as that allotted to it under s. 11(d). Representativeness protects an
    accuseds right to an adequate selection process. The state discharges its
    obligation of representativeness when it provides a fair opportunity for a
    broad cross-section of society to participate in the jury process:
Kokopenace
,
    at paras. 55, 56, and 61.

[106]

An accuseds right to the benefit
    of a trial by jury does not extend to proportionate representation at any stage
    of the jury selection process: neither the process followed to compile the jury
    panel roll nor the in-court process to select the jury to try the issues on the
    indictment:
Kokopenace
, at paras. 70-71. See also
R. v. Biddle
,
    [1995] 1 S.C.R. 761, at paras. 56-58,
per
McLachlin J. (concurring).

The Principles Applied

[107]

The challenge grounded on s. 11(f)
    of the
Charter
also fails. I reach this conclusion for three reasons.

[108]

First, the core of this dispute
    involves the impact of the abolition of peremptory challenges on the
    impartiality of the jury selected to try the case and the fairness of the
    trial. These are interests guaranteed more particularly by s. 11(d) of the
Charter
.
    In the absence of any infringement of s. 11(d), there can be no infringement of
    the right to a trial by jury as guaranteed by s. 11(f).

[109]

Second, although the role of
    representativeness is broader under s. 11(f) than under s. 11(d), the
    obligation imposed on the state remains the same. And that obligation relates
    to the process used to compile the jury roll, not the in-court selection
    process or the composition of the trial jury.

[110]

Finally, what remains is what s.
    11(f) guarantees  trial by jury. The abolition of peremptory challenges does
    not change this.

The Challenge under Section 7 of the
Charter


[111]

The third and final ground of
    challenge to the abolition of peremptory challenges, one not vigorously pressed
    in oral argument, involves the guarantee in s. 7 of the
Charter
. The
    appellant says the abolition of the peremptory challenge is contrary to the
    principles of fundamental justice. I would not give effect to this ground of
    appeal.

[112]

A brief reference to the trial
    judges reasons is sufficient to sketch out the background on this issue.

The Reasons of the Trial Judge

[113]

At trial, the appellant contended
    that the abolition of peremptory challenges infringed his right to liberty and
    security of the person.

[114]

The trial judge first considered
    whether the abolition compromised trial fairness, and thus breached s. 7:

I find the applicants arguments under s. 7 based on trial
    fairness are subsumed in the ss. 11(d) and 11(f) analysis. Section 7 of the
Charter
dealing with trial fairness provides no greater protection than s. 11(d).

[115]

The trial judge then turned to
    three discrete, but related, claims of an infringement of s. 7: arbitrariness,
    gross disproportionality and overbreadth. He rejected each.

[116]

In rejecting the claim of
    arbitrariness, the trial judge said:

I cannot conclude that the purpose of the legislation,
    including in relation to the removal of peremptory challenges, was to guarantee
    the representativeness of the jury. When examining the legislation itself, it
    would appear that one of the key purposes was to make the jury selection
    process more transparent and promote fairness. Eliminating the ability of both
    parties to challenge prospective jurors, without having to justify the reason,
    makes the jury selection process more transparent. It is clear from the
    amendment to s. 633 that if the individual party can articulate a
    reason why a prospective juror is not impartial or a reason why the juror needs
    to be stood aside to maintain the publics confidence in the administration of
    justice, then the judge can do so. This results in an increased level of
    accountability and openness. I cannot conclude that the legislation is
    arbitrary in nature on this basis. The effect on the parties is rationally
    connected to the legislations purpose:
Canada v. Bedford
, at
    para. 111;
Carter v. Canada (Attorney General)
, 2015 SCC
    5, [2015] 1 S.C.R. 331, at para. 83.

[117]

In rejecting the claim of gross
    disproportionality, the trial judge wrote:

As was determined earlier in these reasons, the abolition of
    peremptory challenges would not cause a reasonable and informed observer to
    conclude that accused persons will now be subject to unfair trials by juries
    that are not impartial or independent. This limits the applicants contention
    about the disproportionate effect of the legislation on accused persons.

Further, the problem with the applicants argument is the new
    procedure and the existing safeguards provide both parties with an opportunity
    to raise concerns if they have articulable reasons why a prospective juror
    could not be impartial. What is being eliminated is the ability to remove
    otherwise qualified prospective jurors based on unspecified hunches, gut
    feelings and instincts. It also removes the ability of either party to seek a
    favourable jury. I cannot conclude the legislation eliminating the peremptory
    challenge is grossly disproportionate.

[118]

And in rejecting the claim that
    the abolition was overbroad, the trial judge reasoned:

The last argument is that the repeal of the peremptory
    challenge is overbroad because the total elimination of the peremptory
    challenge will not result in a representative jury and prevent discrimination
    against minority jurors. To be overbroad in scope, the law must include some
    conduct that bears no relation to the purpose of the law:
Canada v.
    Bedford
, at para. 112. I cannot conclude the elimination of the peremptory
    challenge is overly broad in scope. The abolition of peremptory challenges, on
    its face, achieves what it sets out to do: increase transparency and openness
    in the Canadian jury selection process. It goes no further. For these reasons I
    find the elimination of the peremptory challenge does not violate s.
    7 of the
Charter.

The Arguments on Appeal

The Appellants Position

[119]

The appellant says s. 7 is
    concerned with capturing inherently bad laws. He argues that the overall
    purpose of the abolition of peremptory challenges was to address the
    underrepresentation of Indigenous persons on juries and concerns that
    peremptory challenges were being used in a discriminatory manner in the
    selection of juries. He says the legislation overshoots this purpose.

[120]

The trial judge, the appellant
    argues, erred in concluding that the purpose of the legislation was
    transparency, rather than ensuring the representativeness of the jury. Transparency
    is not a constitutional principle and is much too general to accord with s. 7
    of the
Charter
. The elimination of peremptory challenges is arbitrary,
    overbroad, and grossly disproportionate because it does not accord with the
    legislations purpose.

The Respondents Position

[121]

The respondent says that to the
    extent that the appellants arguments under s. 7 are grounded on trial fairness
    concerns, these arguments are subsumed into the s. 11(d) claim. Section 7
    provides no greater or different protection than that offered by the fair
    hearing and impartial jury guarantees in s. 11(d).

[122]

In any event, the s. 7 argument
    fails at the threshold for want of any deprivation of liberty or security of
    the person. Moreover, even if the appellant could establish a deprivation of
    liberty or security of the person, the abolition of peremptory challenges does
    not overshoot the amendments remedial purpose, which is to eliminate the potential
    discriminatory use of peremptory challenges and to promote fairness,
    impartiality, and transparency in the jury selection process.

[123]

AG Canada adopts a similar
    approach.

The Governing Principles

[124]

The appellants reliance on s. 7
    does not require a forced march through the expanse of jurisprudence developed
    under the section. For the purposes of this appeal, it is enough to canvass only
    two aspects of the precedents. The first has to do with the threshold
    requirement arising out of the interests protected: life, liberty and security
    of the person. The second is concerned with the relationship between
    specifically protected rights and the more general language of s. 7.

[125]

First, the s. 7 trigger.

[126]

To trigger the operation of s. 7,
    an applicant must establish, and a court must find, a deprivation of the right
    to life, liberty, or security of the person:
Blencoe v. British Columbia
    (Human Rights Commission)
, 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 47;
R.
    v. Beare
, [1988] 2 S.C.R. 387, at p. 401. There must also be a sufficient
    causal connection between the state-caused effect and the resulting deprivation
    suffered by the claimant:
Blencoe
, at para. 60;
Canada (Attorney
    General) v. Bedford
, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 75.

[127]

To demonstrate an interference
    with security of the person, an applicant must show either:

i.

interference with bodily integrity
    and autonomy, including deprivation of control over ones body; or

ii.

serious state-imposed
    psychological stress.

Bogaerts v. Ontario
    (Attorney General),
2019 ONCA 876,
    at para. 52. See also
Carter v. Canada (Attorney General),
2015 SCC
    5, [2015] 1 S.C.R. 331, at paras. 66-67;
Blencoe
, at paras.
    81-86.

[128]

Where the interest involved under
    s. 7 is liberty, there must not be any intermediate steps between the operation
    of the provision and the deprivation of liberty. A court is not entitled to speculate
    about the possible eventual outcome to bring the case within s. 7:
Bogaerts
,
    at para. 49.

[129]

Second, the relationship between
    specific enumerated rights and the rights afforded by s. 7.

[130]

As a matter of general principle,
    when both a specific guarantee and a claim under s. 7 are advanced in respect
    of the same state conduct, courts should determine the issue under the specific
    guarantee:
Canada (Attorney General) v. Whaling
, 2014 SCC 20, [2014] 1
    S.C.R. 392, at para. 76;
Harrer
, at para. 13;
R. v. Généreux
,
    [1992] 1 S.C.R. 259, at p. 310.

[131]

The right to a fair hearing
    is specifically protected under s. 11(d). But it is also a principle of
    fundamental justice within s. 7:
Harrer
, at para. 40. Section 7 does
    not offer greater protection to a fair hearing or impartial jury tribunal than
    the specific guarantee afforded by s. 11(d):
Généreux
,
at p. 310.
It would seem logically to follow that:

i.

the
    claim should be adjudicated under the specific guarantee of s. 11(d), rather
    than under s. 7; and

ii.

the determination under s. 11(d)
    is dispositive of the claim under s. 7.

The Principles Applied

[132]

The appellant did not vigorously
    pursue his claim of an infringement of s. 7 of the
Charter
. In any
    event, I would not give effect to it for two principal reasons.

[133]

The first is that the appellant
    cannot establish a causal connection between the abolition of peremptory
    challenges and the deprivation of his right to liberty or to the security of
    his person.

[134]

Where the liberty interest is involved,
    there must not be any intermediate steps between the operation of the provision
     the abolition of peremptory challenges in the selection of the trial jury  and
    the deprivation of liberty. But there are many such steps here including those
    essential to proof of guilt. The necessary causal connection is wanting.

[135]

Where the security of the person interest
    is invoked, the appellant must show either an interference with bodily
    integrity and autonomy or serious state-imposed psychological stress as a
    result of the abolition of peremptory challenges. Neither has been
    demonstrated.

[136]

The second reason for dismissing
    the s. 7 argument has to do with the essence of the appellants claim focused
    on trial fairness and an impartial jury. These interests are specifically
    protected under s. 11(d). Section 7 adds nothing to their content. The
    rejection of this claim under s. 11(d) for the reasons earlier provided is
    dispositive of the claim under s. 7.

Ground #2: The Constitutionality of
    Substituting the Judge as the Trier of the Challenge for Cause

[137]

This ground of appeal focuses on the
    amendment to s. 640 of the
Criminal Code
, which designates the judge
    presiding over jury selection as the arbiter of all challenges for cause.
    Previously, most, but not all, challenges for cause were decided by lay triers.
    The appellant says this amendment violates their ss. 11(d), 11(f), and 7
Charter
rights. I disagree.

[138]

The origins of the challenge for
    cause, the trial judges reasons, the parties positions, and the principles
    which inform my decision provide a suitable cadre within which to assess this
    ground of appeal.

The Background

[139]

Canadian law has always afforded
    parties the right to challenge prospective jurors for cause. But the nature of
    this right has changed over time. The main challenge for cause ground with
    which we are concerned here  partiality  has always been decided, prior to
    September 19, 2019, by two lay triers.

[140]

More specifically, the first
    consolidated procedural statute and the 1892
Criminal Code
gave
    parties an unlimited right to challenge prospective jurors for specific causes
    listed in the governing statute, provided they met the threshold required to do
    so. The impartiality of the prospective jurors was the most frequently invoked
    challenge for cause. Lay triers decided the challenge for cause.

[141]

This feature remained through the
    various iterations of the
Criminal Code
. Immediately before its most
    recent amendment, s. 638(1) of the
Criminal Code
listed the only six
    grounds on which prospective jurors could be challenged for cause, including on
    the basis of juror impartiality. Section 640 governed the trial of challenges
    for cause. The presiding judge was responsible for determining the truth of the
    challenge that the prospective jurors name did not appear on the panel. But
    otherwise, all challenges for cause were determined by lay triers.

[142]

Effective September 19, 2019, s.
    640 of the
Criminal Code,
as it then read, was repealed. It was
    replaced by a new provision that did away with lay triers and made the
    presiding judge the trier of the truth for all challenges for cause. Section
    640(1) describes the presiding judges role as trier:

If a challenge is made on a ground mentioned in section 638,
    the judge shall determine whether the alleged ground is true or not and, if the
    judge is satisfied that it is true, the juror shall not be sworn.

[143]

Section 640(1) also describes the
    consequence of a finding that the challenge for cause is true: the prospective
    juror shall not be sworn. The consequences of a finding that the challenge is
    not true are not specified.

The Reasons of the Trial Judge

[144]

The trial judge rejected the
    appellants claim that substituting the presiding judge for lay triers as the
    arbiter of the truth of the challenge for cause, infringed ss. 11(d), 11(f) and
    7 of the
Charter
and could not be justified under s. 1. The essence of
    his reasons for doing so appears in the following three paragraphs of his decision:

The elimination of the triers and the replacement with the
    trial judge, in my view, in no way usurps the independence of the jury or
    impacts on the jurys impartiality.

The amendments actually increase transparency, and the
    independence of the actual jury, who must decide the guilt or innocence of the
    accused. The jury members will no longer have to make determinations in
    relation to the impartiality of other jurors and, when selected, can
    concentrate on their primary goal, which is determining the guilt or innocence
    of the accused.

For these reasons, I cannot conclude that the amendments to s.
    640 of the
Criminal Code
violate any or all of ss. 11(d), 11(f) and 7
    of the
Charter
. Since the applicants concerns with the amended
    challenge for cause procedure pertain only to the independence and impartiality
    of the jury, these concerns are subsumed under ss. 11(d) and 11(f) and,
    therefore, there is no need to assess this amendment separately under s. 7 of
    the
Charter
.

The Arguments on Appeal

The Appellants Position

[145]

In this court, the appellant
    characterizes the amendment of s. 640(1) as involving a significant change to a
    well-established process to determine how jurors are selected. In effect, with
    the abolition of peremptory challenges, the judge, not the parties, decides the
    composition of the jury. This, the appellant says, results in a jury that is
    not independent of the judge. It has consequences for an accuseds perception
    of the fairness of the process and the impartiality of the jury: the judge is
    seen as an arm of the state and the jury a mere extension of the judge. And it
    also excludes the direct participation of the community in the selection of the
    jury. The amendment leaves an indelible imprint on the appellants substantive
    rights and rises to the level of a constitutional infringement not justified by
    s. 1 of the
Charter
.

The Respondents Position

[146]

The respondent says the
    substitution of one trier for another has no effect on the accuseds right to
    challenge prospective jurors for cause based on partiality. Rather, the
    amendment reaffirms the challenge for cause as an essential safeguard of an
    accuseds s. 11(d) right to a fair trial and an impartial jury.

[147]

The assertion that the judge is
    aligned with the state, thus not independent, the respondent contends, is also untenable.
    Like jurors, judges are presumed to be impartial. And like jurors, this presumption
    is not easily dislodged by a simple say-so. Substituting the presiding judge as
    decision-maker of the truth of the challenge for cause increases the
    transparency of the decision-making process and gives the parties a greater
    participatory role.

[148]

Further, the respondent submits,
    the appellants claim that the jury is no longer a self-selecting and
    self-governing entity as it was when lay triers presided over a challenge for
    cause cannot be sustained. Under the former scheme, if the accused chose static
    triers, those triers need not be members of the jury panel and would never
    become trial jurors. Even with rotating triers, the first two triers need not be
    members of the jury panel and would not become trial jurors. It overstates the
    case to say that the jury self-selected.

[149]

AG Canada agrees and underscores what
    it characterizes as the purpose underlying the amendment  to bring greater
    fairness and transparency to the jury selection process. An accused does not
    have a constitutional right to a particular process to determine the truth of a
    challenge for cause. To designate judges rather than lay triers as the decider
    of the truth of the challenge for cause on grounds of partiality does not
    undermine trial fairness or compromise the independence or impartiality of the
    jury. The strong presumption of judicial impartiality is not dislodged by the
    subjective perception of the person on trial that the judge is part of the
    state, thus aligned with the Crown.

The Governing Principles

[150]

The appellant challenges the
    amendment to s. 640(1) substituting the presiding judge for lay triers as
    triers of the truth of the challenge for cause on the same grounds  ss. 11(d),
    11(f), and 7 of the
Charter
 as he invoked in his challenge to the
    abolition of peremptory challenges. The principles which inform the operation
    of those provisions were canvassed at length in connection with the first
    ground of appeal. No useful purpose will be achieved by their repetition here.
    Three brief reminders will suffice.

[151]

First, the test for independence
    and impartiality of a tribunal is the same: whether a reasonable person, fully
    informed of the circumstances, viewing the matter realistically and practically
    and having thought the matter through, would conclude that the decision-maker is
    not likely to decide the issue fairly:
Kokopenace
, at para. 49;
Valente
    v. the Queen
, [1985] 2 S.C.R. 673, at p. 689;
S. (R.D.)
, at para.
    111,
per
Cory J.

[152]

Second, the ultimate requirement
    of a system of jury selection is that it results in a fair trial. A fair trial
    is not a perfect trial. It is not the most advantageous trial possible from the
    perspective of the accused. Nor is it a trial made in the accuseds image. What
    constitutes a fair trial takes into account not only the perspective of the
    accused, but also the practical limits of our system of justice and the
    interests of others involved in the process, including the public. Our law
    demands fundamentally fair, not perfect justice:
Find
, at para. 28.

[153]

Third, the selection of an
    impartial jury is crucial to a fair trial. The accused, the Crown and the
    public at large have the right to be sure that the jury selected is impartial and
    the trial fair. No single step in the selection process is dispositive of
    either issue. The machinery to ensure both has many parts each of which has its
    own function to ensure these ends are achieved:
Barrow
, at pp. 710,
    714.

The Principles Applied

[154]

In combination, several reasons
    persuade me that the substitution of the presiding judge for lay triers as the
    trier of the truth of the challenge for cause does not contravene ss. 11(d), 11(f),
    or 7 of the
Charter
.

[155]

First, the substitution of the
    presiding judge as the arbiter of the truth of the challenge for cause does
not
compromise the independence of the jury. The standard the judge applies in
    determining the question of impartiality which frames the challenge is
    identical to that applied by lay triers. Like lay triers, the judge benefits
    from a strong presumption of impartiality. And, as in the case of lay triers,
    the presumption is only rebutted by cogent evidence. The subjective beliefs of
    an accused that a judge is tethered to the state is not evidence. Indeed, the
    practice as it has developed since September 19, 2019, albeit not statutorily
    mandated, is to permit the parties to make submissions about each prospective
    jurors impartiality. This procedure was not followed with lay triers, whether
    rotating or static.

[156]

Second, the substitution of the
    presiding judge as the trier of the truth of the challenge does not compromise
    the impartiality of the jury. Prospective jurors found not to be impartial by
    the judge must not be empanelled as jurors for the trial. Section 640(1) of the
Criminal Code
makes this clear. And those found impartial may yet be
    subject to excusal or being stood aside by the trial judge. To preserve
    impartiality, various in-trial mechanisms serve as antidotes to counter bias,
    especially the ability to provide jurors with instructions throughout and at
    the end of the trial.

[157]

Third, it is the jury selection
    process itself that must be fair and uncompromising of the trial jurys independence
    and impartiality. Whether the process, taken as a whole, achieves this standard
    is not determined by asking whether it conforms with or departs from anyones
    ideal or includes or omits specific components previously included.
    Substituting a single trier for a pair of triers, each presumed impartial and
    applying the same standard to determine the question framed for their decision,
    compromises neither the independence nor the impartiality of the trial jury or
    the process of its selection.

[158]

Fourth, the self-selecting nature
    of the lay trier procedure is not constitutionally mandated. What is more, the
    term self-selecting rather overstates the previous scheme of lay triers in
    assessing the truth of a challenge for cause. Static triers would never become
    jurors. Neither would the first pair of rotating triers. And, in both cases,
    findings of impartiality could be overtaken by peremptory challenges under that
    same regime.

[159]

Finally, the assignment of the
    presiding judge to the role of trier of the truth of the challenge for cause
    does not compromise the traditional division of responsibilities between judge
    and jury in a criminal trial. Parliament has always assigned a role in
    decisions about challenges for cause to the presiding judge. For example, to
    determine whether a jurors name was on the panel. Or what to do if lay triers
    were unable to make a decision within a reasonable time on a challenge for
    cause. Or choosing lay triers. And instructing the lay triers. This is not a
    usurpation of a role assigned to others.

[160]

What I have said is sufficient to
    reject the claim of infringement under s. 11(d). For the reasons given on the
    first ground of appeal, this finding also compels the same fate for the
    arguments that the substitution breaches ss. 11(f) and 7 of the
Charter
.

Ground #3: The Temporal Application of the
    Amendments

[161]

What remains to be decided is the
    temporal application of the amendments abolishing peremptory challenges and
    replacing lay triers as the decision-makers on the challenge for cause with the
    presiding judge. This determination requires consideration not only of common
    law principles, but also the
Interpretation Act
, R.S.C. 1985, c. I-21, because
    no transitional provisions have been included in the amending legislation in
    connection with either amendment.

[162]

I conclude the abolition of the
    peremptory challenge applies prospectively, that is to say,

only to cases where the accuseds right to a trial by
    judge and jury vested on or after September 19, 2019. Conversely, I conclude
    the amendment making the presiding judge the trier of all challenges for cause
    applies retrospectively, that is to say, to all cases tried on or after September
    19, 2019, irrespective of when the right vested.

[163]

A brief reference to the
    procedural history of this case provides the necessary background.

The Procedural History

[164]

The appellant is alleged to have
    committed first degree murder on September 30, 2016. As a person charged with
    an offence listed in s. 469(a)(viii) of the
Criminal Code
, the
    appellants trial was to be held in the Superior Court of Justice. And, absent
    consent from both the appellant and the Attorney General, the trial was to be conducted
    by a judge and jury. This mode of trial was confirmed by the preferment of a
    direct indictment which mandates a jury trial: see
Criminal Code
, s. 577(a).

[165]

When the appellant was first
    charged and later when he was directly indicted, both he and the Crown had the
    right to challenge 20 prospective jurors peremptorily. If permitted to
    challenge prospective jurors for cause, the appellant was entitled to have the
    truth of each challenge determined by lay triers according to the procedures
    then available. Neither the appellant nor the Crown would be required to
    exercise a peremptory challenge until the lay triers had first been satisfied
    the prospective juror was impartial.

[166]

These rights to challenge
    prospective jurors, whether for cause or peremptorily, remained inchoate until
    the appellants trial began. Until that time, the appellant could do nothing to
    implement them.

[167]

Jury selection for the appellant was
    scheduled to commence on September 19, 2019. That same day the amendments
    abolishing peremptory challenges and making the presiding judge the trier of all
    challenges for cause came into force.

The Ruling of The Trial Judge

[168]

After the trial judge had
    concluded that both amendments were constitutionally sound, counsel made brief
    submissions about the temporal application of the amendments. The trial judge held
    that the amendments applied retrospectively in brief terms:

I find that the legislative amendments are procedural in
    nature. They impact the process of selecting the jury. I conclude the
    peremptory challenge is not a substantive right that stands on its own. I agree
    with the conclusion of my brother Thomas J. in
R. v. Thomas Lako and
    William McDonald
,

2019 ONSC 5362.

For this
    reason, following
Dineley
,

I am satisfied the
    repeal of s. 634 and the amendments to s. 640 of the
Criminal
    Code
are retrospective in nature.

[169]

The jury selection proceeded according
    to the trial judges ruling. Neither the Crown nor the defence was permitted to
    challenge prospective jurors peremptorily. The trial judge determined the truth
    of each challenge for cause. In other words, jury selection proceeded in
    accordance with the amendments which came into force on September 19, 2019.

The Arguments on Appeal

[170]

The arguments on this issue are
    primarily those of the parties.

The Appellants Position

[171]

The appellant acknowledges the divided
    trial level authorities on this issue, and the diverging viewpoints among
    prosecutorial services across Canada.

[172]

The appellant says that the trial
    judge erred in holding the amendments abolishing peremptory challenges and
    replacing lay triers of the challenge for cause with the presiding judge
    operate retrospectively, that is to say, that they apply to all cases (new and
    pending) as of September 19, 2019 irrespective of when the offence occurred or
    charges were laid.

[173]

The appellant does not contest the
    general rule that procedural amendments apply to cases pending when the
    amendment comes into force. But to engage this rule, which is a general but not
    unyielding rule, the amendments under consideration must be purely procedural,
    not tinctured with substantive features. And the rule does tolerate exceptions.

[174]

To begin, the appellant reminds us
    that, absent clear language to the contrary, Parliament does
not
intend the laws it enacts to operate retrospectively. Admittedly, this general
    rule against retrospective operation is turned on its head when the amendment
    in issue is
purely
procedural. But the question of temporal application
    is not decided simply by characterizing an amendment as procedural or
    substantive. For even if the amendment is by nature procedural, further inquiry
    is necessary to determine whether the amendment affects a substantive right,
    and thus cannot operate retrospectively.

[175]

In this case, the appellant
    contends the amendments have procedural aspects about them but they affect substantive
    rights that the appellant acquired before the amendment came into force: the
    right to challenge prospective jurors peremptorily and thus to have a say in
    the composition of the trial jury, and the right to have lay triers determine
    the truth of the challenges for cause in a manner of the appellants choosing. The
    appellant is similarly situated to the appellant in
R. v.

R.S.
,
    2019 ONCA 906. He did all he could have done in advance of the amendments to
    convert his inchoate rights to reality. If his trial had begun and proceeded to
    jury selection before September 19, 2019, he would have exercised those rights.

[176]

The appellant says the amendments are
    not
purely
procedural because of their substantive effect on his right
    to a fair trial in which his guilt is determined by an independent and
    impartial jury. The removal of his right to challenge 20 jurors peremptorily
    deprived him of a valuable tool to select an impartial jury. And the substitution
    of the presiding judge for lay triers to determine the truth of the challenges
    for cause undermined the jurys independence and impartiality. This affected
    the jurys composition and requires a new trial.

The Respondents Position

[177]

The respondent characterizes the
    amendments as purely procedural in nature and invokes the presumption that such
    amendments apply to both pending and future cases to support the conclusion
    reached by the trial judge about their temporal application.

[178]

The respondent acknowledges that
    the presumption that procedural law applies retrospectively is rebuttable when the
    provisions affect substantive rights. But the respondent says the exception is
    not at work here because the substantive right in issue  a fair trial by an
    impartial jury  is not compromised or otherwise affected by either amendment
    or both amendments in combination. No one has a vested right in procedure,
    including the procedure followed to select a jury.

[179]

The respondent contends that in
    determining whether the presumption of retrospectivity for procedural
    enactments applies, our task is not simply to affix one label  procedural  instead
    of another  substantive  to the amendment. What is required is a functional
    inquiry to determine whether the amendment affects substantive rights.

[180]

The repeal of peremptory
    challenges, the respondent argues, does not affect any substantive right of the
    appellant. He is not denied the right to have a jury trial. Unlike the
    situation in
R.S.
,
in
    which the amendment removed the preliminary inquiry and the prospect of
    discharge for those entitled to it, the right to a jury trial does not include
    the right to a particular procedure for jury selection or composition of the
    trial jury. An amendment that is fundamentally procedural in nature only
    becomes substantive where it affects or compromises a substantive right such as
    those at play in the fair hearing or independence and impartiality components of
    the right to trial by a jury.

[181]

In this case, as the respondent
    characterizes it, the repeal of the right to challenge prospective jurors
    peremptorily did not affect the appellants right to a fair trial by an
    independent and impartial jury. Other out-of-court and in-court safeguards ensured
    the independence and the initial and continued impartiality of the trial jury. The
    appellant was not entitled to a favourable or ethnically and racially balanced
    trial jury. Nor did the amendment to the challenge for cause procedure affect
    the appellants substantive rights. All that occurred was a re-ordering of
    responsibility for trial of the truth of the challenge for cause according to
    the same standard or test. Rather than instructing others on the test, the
    presiding judge self-instructs and makes the decision.

[182]

Finally, the respondent
    specifically rejects any reliance on the proviso in s. 686(1)(b)(iv) to save as
    harmless any errors in the trial judges conclusion.

The Governing Principles

[183]

The principles governing the
    temporal application of statutory amendments are well settled. They derive from
    two sources, the common law and the
Interpretation Act
. But, as the
    precedents marshalled in written submissions and oral argument on this appeal
    show, they lack consistency in their application. This is because neither of
    the prevalent descriptors  retrospective and prospective  are entirely
    satisfactory or unfailingly accurate. To the extent possible, I describe the
    temporal application of the new amendments by reference to the events to which
    they relate.

[184]

To begin, absent transitional
    provisions, the courts must decide whether the new legislation applies only to
    events or conduct occurring on or after the legislation comes into effect
    (prospectively), or whether it applies as well to prior events or conduct which
    is the subject of pending litigation when the new legislation comes into effect
    (retrospectively). The common law developed several principles to inform
    decisions about the temporal application of legislation which amended, repealed,
    or replaced legislation previously in force without any transitional provisions
    to define its application. The
Interpretation Act
also provides
    further direction.

[185]

As a matter of first principle,
    the common law presumes legislation does
not
apply retrospectively to
    events or conduct that took place
before
the legislation comes into
    force. The terms or labels applied to this presumption vary but are, in their effect,
    the same:
British Columbia v. Imperial Tobacco Canada Ltd
., 2005 SCC
    49, [2005] 2 S.C.R. 473, at para. 71;
Gustavson Drilling (1964) Ltd. v. The
    Minister of Natural Resources
, [1977] 1 S.C.R. 271, at p. 279;
Tran v.
    Canada (Public Safety and Emergency Preparedness)
, 2017 SCC 50, [2017] 2 S.C.R.
    289, at para. 43;
R. v. Dineley
, 2012 SCC 58, [2012] 3 S.C.R. 272, at
    paras. 44-45,
per
Cromwell J. (dissenting, but not on this point);
Cobb
    v. Long Estate
, 2017 ONCA 717, 416 D.L.R. (4th) 222, at para. 80.

[186]

The presumption against
    retrospectivity is a tool for determining the intended temporal reach of
    legislation. Absent evidence that Parliament considered the potentially unfair
    effects, legislation does not affect prior events or conduct in pending
    litigation. The purpose of the presumption is to prevent a change in the law
    from looking to the past and attaching new prejudicial consequences to a
    completed transaction. The presumption bespeaks fairness and engages the rule
    of law. Its effect is that new legislation operates from the date of its
    enactment and applies to what takes place going forward:
Tran
, at
    paras. 43-45, 48;
Imperial Tobacco
, at para. 71.

[187]

However, like many other
    presumptions, this presumption is not absolute, unyielding, or preclusive. It
    may be rebutted by Parliament, expressly or by necessary implication. Or it may
    be rebutted because the nature or character of the legislation itself gives
    rise to a countervailing presumption that procedural legislation applies
    retrospectively  immediately and generally to both pending and future acts and
    events.

[188]

The presumption of immediate
    application of procedural legislation finds support in ss. 44(c) and (d) of the
Interpretation Act
. It has been characterized in several different
    ways. No one has a vested right in procedure. The effect of a procedural change
    is considered a benefit for all. Procedural provisions are an exception to the
    presumption against retrospectivity. Procedural provisions are intended to have
    immediate effect:
Application under s. 83.28 of the Criminal Code (Re)
,
    2004 SCC 42, [2004] 2 S.C.R. 248, at para. 62;
R. v.

Wildman
,
    [1984] 2 S.C.R. 311, at p. 331;
Peel (Police) v. Ontario (Special
    Investigations Unit)
, 2012 ONCA 292, 110 O.R. (3d) 536, at para. 72. But
    this presumption may also yield, as it does, for example, where Parliaments
    contrary intent appears:
Application under s. 83.28
, at para. 63;
R.
    v. Ali
, [1980] 1 S.C.R. 221, at p. 235.

[189]

To engage the presumption that a
    procedural amendment applies immediately and generally to both pending and
    future acts or conduct, the legislation must be
purely
procedural.
    This qualification, which finds statutory support in s. 43(c) of the
Interpretation
    Act
, means that the amendment must govern only how rights are enforced or
    asserted, not affect substantive rights:
Application under s. 83.28
,
    at para. 57;
Dineley
, at paras. 10-11;
Wildman
, at pp. 331-32.

[190]

To determine whether legislation is
    procedural and, more narrowly, purely procedural, we do not look simply at the
    form in which it is enacted. We must also have regard to its function and
    effect:
Dineley
, at para. 55,
per
Cromwell J. (dissenting, but
    not on this point);
Angus v. Sun Alliance Insurance Co
., [1988] 2 S.C.R.
    256, at pp. 265-66. The important thing is not the label we attach to the
    provision, but its effect on existing rights and obligations: Ruth Sullivan,
Sullivan
    on the Construction of Statutes
, 6th ed. (Markham, Ont.: LexisNexis,
    2014), at § 25.116.

[191]

This requires a functional inquiry
    into the circumstances of each case. The inquiry focuses on whether the
    application of the amending provisions affects any substantive rights. With
    this as our focus, we are able to determine whether the new legislation is or
    is not exclusively procedural, thus whether it will apply only to events going
    forward or to past events as well:
Dineley
, at para. 11;
R.S
.,
    at para. 27;
Angus
, at pp. 265-66.

The Principles Applied

[192]

As I will explain, I would give
    effect to this ground of appeal in part and conclude that the amendment
    abolishing peremptory challenges applies only prospectively, but the amendment
    substituting the presiding judge as the trier of the truth of the challenge for
    cause applies retrospectively.

[193]

My analysis begins with some
    general observations about the jury selection process, in particular, the place
    occupied in the in-court component of that process by peremptory challenges and
    challenges for cause. Several steps follow to reach the conclusion I have just
    described.

The Jury Selection Process

[194]

As we have seen, the jury
    selection process has two parts: the out-of-court process with which we are not
    concerned and the in-court process which occupies our attention. Individually
    and together the purpose of the parts is to empanel an independent and
    impartial jury to fairly hear and determine the truth of the allegations
    contained in the indictment on which the accused has been given in their
    charge.

[195]

The in-court component of the jury
    selection process largely assigns the responsibility of choosing the jury to
    the parties, subject to the supervision of the presiding judge to ensure its
    compliance with the law. It begins with the presiding judge pre-vetting
    prospective jurors to ensure availability and, to some extent, suitability for
    the pending trial. Random selection of prospective jurors follows.

[196]

Under the prior statutory scheme,
    the parties had available to them two mechanisms to challenge prospective
    jurors: peremptory challenges and, subject to satisfaction of certain
    preliminary requirements, challenges for cause. Peremptory challenges were as
    of right and numerically limited depending on the offence charged or the
    punishment on conviction. Challenges for cause were limited to specified
    grounds, but unlimited in number once any prerequisites for their use were
    satisfied. They were tried by lay triers both of whom were selected by the
    presiding judge who instructed them on their obligations.

The Temporal Application of the Jury Selection
    Amendments

[197]

To determine the temporal
    application of the amendments which abolished peremptory challenges and
    replaced lay triers of the challenge for cause with the presiding judge, I
    begin from a foundation of the general presumption against retrospective
    application of statutes, that is to say, against their immediate application to
    past and future events, absent a clear indication to the contrary by the
    legislative authority. Often, but not always, that contrary intention is
    expressed in transitional provisions of which there are none here. Nor is there
    any other indication to the contrary expressly stated or arising by necessary
    implication from what is stated or left unstated in the legislation.

[198]

The general or foundational
    principle just described, however, is not preclusive and may be rebutted. And
    that rebuttal is sometimes the result of a countervailing presumption that
    procedural legislation is retrospective in its operation, that is to say, it
    applies immediately to past and future events.

[199]

At first light, amendments which deal
    with jury selection, in other words, how the trial jury is chosen by the
    parties, seem inherently procedural. It would seem logically to follow then, as
    ss. 44(c) and (d) of the
Interpretation Act
appear to confirm, that the
    amendments would apply to these proceedings.

[200]

But the presumption that
    procedural legislation applies immediately to past and future events is not
    itself of universal application. It too may be defeated. For it applies only
    where the procedural legislation is purely or exclusively procedural. And so it
    becomes necessary to consider and determine whether the amendments affect previously
    acquired substantive rights. Procedural legislation which alters or takes away
    any substantive rights is not purely procedural, thus the presumed retrospectivity
    of procedural legislation does not apply, leaving it applicable only to future
    events.

[201]

In applying these principles to
    the amendments at issue in this case, trail courts across Canada have divided
    on whether the amendments apply retrospectively or prospectively. In Ontario, most
    cases have held that the amendments have retrospective application, although that
    holding is not universal. In provinces other than Ontario, most cases have
    favoured a prospective interpretation. As I explain below, I reach the
    conclusion that the amendment eliminating peremptory challenges applies
    prospectively, while the amendment to the challenge for cause procedure applies
    retrospectively.

Abolition of Peremptory Challenges

[202]

At common law, since our earliest
    consolidated criminal statute and prior to September 19, 2019 throughout our
    various
Criminal Codes
, the parties, in particular, the defence, have
    had the right to challenge prospective jurors peremptorily. The number of
    peremptory challenges available have always been limited. But peremptory
    challenges were available as of right. They were not subject to a formal
    request nor to any preliminary showing beyond the nature of the charge. They
    could be used up, but not taken away. When exercised, their effect was
    invariable: the prospective juror challenged peremptorily did not become a
    member of the trial jury.

[203]

As the evidence before the trial
    judge in this case demonstrated, peremptory challenges were exercised, not let
    lie as a right not taken up. Essentially negative, in the sense that they
removed
prospective jurors from being empanelled rather than having them seated as
    trial jurors, they had an impact by necessary implication on the composition of
    the trial jury.

[204]

In
Yumnu
, at paras. 123-24, this court recognized the
    importance of the role played by peremptory challenges in the jury selection
    process:


Peremptory challenges are an important part of the jury
    selection process. Unlike challenges for cause, that rest upon allegations of
    lack of impartiality that must be established by evidence adduced by the
    challenging party, peremptory challenges require no justification or
    explanation, much less an evidentiary foundation or proof. The very basis upon
    which peremptory challenges are founded is subjective, not objective:
R. v.
    Cloutier
, [1979] 2 S.C.R. 709, at pp. 720-21. Peremptory challenges rest
    upon no firmer foundation than a mere belief, more often a hunch, of a party
    that within the prospective juror resides a state of mind at odds with
    impartiality.

Jury selection is not a science. Anyone who has ever
    prosecuted, defended or tried a criminal case with a jury has their own views
    about the basis upon which to exercise a peremptory challenge. Occupation. Education.
    Mode of dress. Age. None are verifiable empirically. Many, if not most, cannot
    withstand objective analysis. Peremptory challenges permit a party to remove
    from jury service a limited number of persons whom the party believes, in the
    circumstances of the case to be tried, may not reach an impartial,
    evidence-driven conclusion. The availability of peremptory challenges fosters
    confidence in the adjudicative fairness of the criminal jury trial. Parties
    often exercise peremptory challenges in an attempt to secure what they hope
    will be a sympathetic jury. The equalization of the number of peremptory
    challenges available to both parties tends to ensure that neither gains an
    unfair advantage over the other in this aspect of jury selection.

[205]

To determine whether the elimination
    of peremptory challenges affects a substantive right, we must identify the
    substantive right potentially affected. I have already held that the amendment
    does not infringe the constitutional rights guaranteed by s. 7, 11(d) or 11(f).
    That is not determinative, however, of the temporal scope of the amendment. Not
    all substantive rights are constitutional and not all legislation which
    negatively impacts on a substantive right amounts to an infringement of a
    constitutional right. For the purposes of determining the temporal scope of the
    legislation, the nature of the substantive right engaged may be assessed by
    reference to the legislation as it existed prior to the amendments. The prior
    legislation gave accused the right to be tried by a jury. I do not think anyone
    would suggest that the right to trial by jury is not a substantive right.

[206]

The right to trial by jury as it
    existed in the prior legislation included various means by which an accused
    could participate in the selection of the jury. Included in those various
    participatory opportunities were peremptory challenges. Peremptory challenges
    gave an accused a limited veto over the selection of the jury. As noted
    previously, that ability has been judicially recognized as an important feature
    of the jury selection process: see e.g.,
Yumnu
, at paras. 123-24
,
Sherratt
, at
    pp. 532-33
.

[207]

The question becomes: did the
    amendment which eliminated that mode of participation in the jury selection
    process impair or negatively affect the right to trial by jury as it existed
    prior to the amendment?

[208]

Elimination of peremptory
    challenges will almost inevitably have a significant impact on the composition
    of the jury eventually selected to determine the accuseds fate. In most cases,
    the absence of any peremptory challenges will result in a differently constituted
    jury.

[209]

The fact that the jury is
    differently constituted does not, as I have held in my constitutional analysis,
    mean that the jury selected will be in any way constitutionally unsound. It
    does mean, however, that the jury will be different and will not reflect the
    exercise of the limited veto power formerly enjoyed by an accused over those
    who will participate as triers of fact in the accuseds trial.

[210]

In my view, an
    amendment which significantly diminishes an accused's ability to affect the
    ultimate composition of the jury chosen to try the accused negatively impacts
    on the accuseds statutory right to trial by jury as it existed prior to the
    amendment. For the purposes of determining the temporal scope of the legislation,
    this loss of one aspect of the accuseds right to participate in the selection
    of the jury affects in a negative way the accuseds right to trial by jury as
    it existed before the amendment. Therefore, the amendment is presumptively
    prospective. Nothing in the language of the amendment or in the material placed
    before this court rebuts that presumption.

[211]

In short, the amendment
    eliminating peremptory challenges applies prospectively, that is to say,

only to cases where the accuseds right to a trial by
    judge and jury vested on or after September 19, 2019. Stated otherwise, if,
    prior to September 19, 2019, an accused had a vested right to a trial by judge
    and jury as it existed in the prior legislation, then the amendment does not
    apply and both the accused and Crown have the right to peremptory challenges,
    even if the trial is held after that date.

[212]

To be clear, not all accused
    charged with an offence before September 19, 2019 have a vested right to a
    trial by judge and jury under the former legislation. For the right to have
    vested, the accused must have, before September 19, 2019: (i) been charged with
    an offence within the exclusive jurisdiction of the Superior Court; (ii) been
    directly indicted; or (iii) elected for a trial in Superior Court by judge and
    jury.
I
    include in the third category accused who have formally entered an election as
    well as those who have made a clear, but informal election, as evinced by the
    transcript of proceedings or endorsements on the information.
Otherwise, the accuseds right did not vest, the
    amendment applies, and no party has a right to peremptory challenges at the
    trial.

Triers of Challenge for Cause

[213]

Turning to the amendment to the
    challenge for cause procedure, I reach a different conclusion about its
    temporal application.

[214]

The effect of this amendment is to
    substitute the presiding judge as the only trier of the challenge for cause, or
    more accurately, all challenges for cause. The judge replaces two lay triers.
    The presumption of impartiality, both of the trier and prospective juror,
    remains. The burden on the challenger to show cause and the standard of proof
    required to demonstrate it remain the same. So too the consequence of a finding
    that a prospective juror is not impartial: the juror will not be sworn or
    affirmed, thus will not become a juror at trial.

[215]

The essential difference between
    the former and current provisions is twofold. The identity of the trier. And
    the availability of a choice of trial procedure (rotating versus static triers).
    Unlike the abolition of peremptory challenges, however, the challenge for cause
    procedure remains available with the same threshold for access, burden of proof,
    standard of proof and consequence if successful. The change effected by the
    amendment does not impair or negatively affect the right to trial by judge and
    jury as it existed prior to the amendment.

[216]

In the result, I am satisfied that
    the amendment to the challenge for cause procedure is purely procedural, thus
    applies to both past and future events, irrespective of whether the accused had
    a vested right before September 19, 2019 to a trial by judge and jury under the
    former legislation.

DISPOSITION

[217]

For these reasons, I conclude
    that:

i.

the amendments abolishing
    peremptory challenges and substituting the presiding judge for lay triers in
    the determination of the truth of the challenge for cause do not infringe the
    appellants rights under ss. 11(d), 11(f), or 7 of the
Charter
;

ii.

the substitution of the presiding
    judge as the decision-maker on the challenge for cause, rather than lay triers,
    is purely procedural, thus applies to both historical and future events and
    thus to this case; and

iii.

the abolition of peremptory
    challenges affected the substantive rights of the appellant, thus it should not
    have applied to the selection of the jury in his case nor should it apply to
    the selection of the jury in other cases if the accused had a vested right
    before September 19, 2019 to a trial by judge and jury as it existed in the
    prior legislation.

[218]

Crown counsel specifically
    declined to invoke the provisions of s. 686(1)(b)(iv) of the
Criminal Code
to save as harmless any error in the application of the amendments.

[219]

I would allow the appeal, set
    aside the conviction and order a new trial on the indictment.

Released: (DD) January 23, 2020

David Watt J.A.

I agree. Doherty
    J.A.

I agree. M. Tulloch
    J.A.


