SCC File No. 39062 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
B E T W E E N: HER MAJESTY THE QUEEN APPELLANT (Respondent) -and-
PARDEEP SINGH CHOUHAN RESPONDENT (Appellant) -and-
ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF BRITISH COLUMBIA, ATTORNEY GENERAL OF ALBERTA, ABORIGINAL LEGAL SERVICES, ADVOCATES' SOCIETY, DEBBIE BAPTISTE, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, CANADIAN ASSOCIATION OF BLACK LAWYERS, CANADIAN MUSLIM LAWYERS ASSOCIATION AND FEDERATION OF ASIAN CANADIAN LAWYERS, CRIMINAL LAWYERS' ASSOCIATION (ONTARIO), DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS, DEFENCE COUNSEL ASSOCIATION OF OTTAWA, SOUTH ASIAN BAR ASSOCIATION OF TORONTO, ASSOCIATION QUÉBÉCOISE DES AVOCATS ET AVOCATES DE LA DÉFENSE INTERVENERS
REPLY FACTUM OF THE RESPONDENT AND OF THE APPELLANT ON CROSS- APPEAL TO THE INTERVENERS FACTUMS (Pursuant to the order of Justice Martin dated August 24, 2020)
DIRK DERSTINE MARIE-FRANCE MAJOR TANIA BARITEAU
Derstine Penman Criminal Lawyers Supreme Advocacy LLP 559 College Street, suite 302 340 Gilmour Street, Suite 100 Toronto, Ontario, M6G 1A9 Ottawa, Ontario, K2P 0R3 Tel: (416) 304-1414 Tel: (613) 695-8855 Fax: (416) 304-1345 Fax: (613) 685-8580 Email: [email protected] Email: [email protected] [email protected]
COUNSEL FOR THE RESPONDENT OTTAWA AGENT FOR THE RESPONDENT ANDREEA BAIASU NADIA EFENDI MICHAEL PERLIN REBECCA LAW
Ministry of the Attorney General Borden Ladner Gervais LLP Crown Law Office – Criminal 100 Queen Street, Suite 1300 10th Floor, 720 Bay Street Ottawa, ON, K1P 1J9 Toronto, ON M7A 2S9 Tel: (613) 787-3562 Tel: (416) 326-3236 Fax: (613) 230-8842 Fax: (416) 326-4656 Email: [email protected] Email: [email protected] [email protected] [email protected]
COUNSEL FOR THE APPELLANT OTTAWA AGENT FOR THE APPELLANT
JEFFREY JOHNSTON ROBERT FRATER, Q.C.
Department of Justice Canada Department of Justice Canada Civil Litigation Section Civil Litigation Section 50 O’Connor Street, Suite 500 50 O’Connor Street, suite 500 Ottawa, ON K1A 0H8 Ottawa, ON, K1A 0H8 Tel: (613) 608-5913 Tel: (613) 670-6289 Fax: (613) 954-1920 Fax: (613) 954-1920 Email: [email protected] Email: [email protected]
COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR THE ATTORNEY GENERAL OF CANADA INTERVENER ATTORNEY GENERAL OF CANADA
CHARLES MURRAY D. LYNNE WATT
Department of Justice Gowling WLG (Canada) LLP 405 Broadway, 5th Floor 160 Elgin Street, suite 2600 Winnipeg, Manitoba R3C 3L6 Ottawa, ON, K1P 1C3 Tel: (204) 945-2852 Tel: (613) 786-8695 Fax: (204) 945-1260 Fax: (613) 788-3509 Email: [email protected] Email: [email protected]
COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR THE ATTORNEY GENERAL OF MANITOBA INTERVENER ATTORNEY GENERAL OF MANITOBA LARA VIZSOLYI ROBERT E. HOUSTON, Q.C.
Ministry of Justice Gowling WLG (Canada) LLP 3rd Floor - 940 Blanchard Street 160 Elgin Street, suite 2600 Victoria, British Columbia V8W 3E6 Ottawa, ON, K1P 1C3 Tel: (250) 387-0150 Tel: (613) 783-8817 Fax: (250) 387-4262 Fax: (613) 788-3500 Email: [email protected] Email: [email protected]
COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR THE ATTORNEY GENERAL OF BRITISH INTERVENER ATTORNEY GENERAL COLUMBIA OF BRITISH COLUMBIA
ANDREW BARG D. LYNNE WATT
Justice and Solicitor General Gowling WLG (Canada) LLP Appeals Unit 160 Elgin Street, suite 2600 300 Centrium Place, 332-6 Avenue SW Ottawa, ON, K1P 1C3 Calgary, Alberta, T2P 0B2 Tel: (613) 786-8695 Tel: (403) 297-6005 Fax: (613) 788-3509 Fax: (403) 297-3453 Email: [email protected] Email: [email protected]
COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR THE ATTORNEY GENERAL OF ALBERTA INTERVENER ATTORNEY GENERAL OF ALBERTA
CAITLYN E. KASPER NADIA EFFENDI JONATHAN RUDIN
Aboriginal Legal Services Borden Ladner Gervais 211 Yonge Street, Suite 500 Bay Adelaide Centre Toronto, Ontario M5B 1M4 22 Adelaide Street West, Suite 3400 Tel: (416) 408-4041 ext. 229 Toronto, Ontario, M5H 4E3 Fax: (416) 408-1568 Tel: (416) 367-6728 / (613) 787-3562 Email: [email protected] Fax: (416) 367-6749 / (613) 230-8842 E-mail: [email protected]
COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR THE ABORIGINAL LEGAL SERVICES INTERVENER ABORIGINAL LEGAL SERVICES JILL PRESSER MATTHEW J. HALPIN Presser Barristers Norton Rose Fulbright Canada LLP 116 Simcoe Street, Suite 100 45 O’Connor Street Suite 1500 Toronto, ON M5H 4E2 Ottawa, Ontario K1P 1A4 Tel: (416) 586-0330 Tel: (613) 780-8654 Fax: (416) 596-2597 Fax: (613) 230-5459 Email: [email protected] E:[email protected]
CATE MARTELL 116 Simcoe Street, Suite 100 Toronto, ON M5H 4E2 Tel: (647) 378-8838 Fax: (416) 596-2597 Email: [email protected]
COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR THE THE ADVOCATES’ SOCIETY INTERVENER THE ADVOCATES’ SOCIETY
CHRISTOPHER MURPHY NADIA EFFENDI ELEANORE SUNCHILD MICHAEL SEED
Murphys Borden Ladner Gervais LLP 2900 - 161 Bay Street 1300-100 Queen Street Toronto, ON M5J 2S1 Ottawa, ON K1P 1J9 Tel: (416) 306-2956 Tel: (416) 787-3562 Fax: (416) 362-8410 Fax: (613) 230-8842 Email: [email protected] Email: [email protected]
COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR THE DEBBIE BAPTISTE INTERVENER DEBBIE BAPTISTE JOSHUA SEALY-HARRINGTON MAXINE VINCELETTE JENNIFER KLINCK
Power Law/Juristes Power Power Law/Juristes Power 401 West Georgia Street, Suite 1660 130 Albert Street, Suite 1103 Vancouver, BC V6B 5A1 Ottawa, ON K1P 5G4 Tel: (520) 509-2446 Tel: (613) 702-5573 Fax: (520) 509-2446 Fax: (613) 702-5573 Email: [email protected] Email: [email protected]
COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR THE THE BRITISH COLUMBIA CIVIL INTERVENER THE BRITISH LIBERTIES ASSOCIATION COLUMBIA CIVIL LIBERTIES ASSOCIATION
PETER THORNING MARIE-FRANCE MAJOR
Brauti Thorning LLP Supreme Advocacy LLP 2900 – 161 Bay Street 340 Gilmour Street, Suite 100 Toronto, ON M5J 2S1 Ottawa, ON K2P 0R3 Tel: (416) 304-6521 Tel: (613) 695-8855 Fax: (416) 868-0673 Fax: (613) 695-8580 Email: [email protected] Email: [email protected]
ATRISHA LEWIS SANDRA A. LANGE
McCarthy Tétrault LLP 5300 – 66 Wellington Street West Toronto, ON M5K 1E6 Tel: (416) 601-7859 Fax: (416) 868-0673 Email: [email protected] [email protected]
COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR CANADIAN ASSOCIATION OF BLACK INTERVENER CANADIAN BLACK LAWYERS ASSOCIATION OF BLACK LAWYERS NADER R. HASAN MAXINE VINCELETTE DRAGANA RAKIC
Stockwoods LLP Power Law TD North Tower 130 Albert Street, Suite 1103 77 King Street West, Suite 4130 Ottawa, ON K1P 5G4 Toronto, ON M5K 1H1 Tel: (613) 702-5573 Tel: (416) 593-1668 Fax: (613) 702-5573 Fax: (416) 593-9345 Email: [email protected] Email: [email protected] [email protected]
EMILY LAM VINIDHRAVAITHEESWARAN
Kastner Lam LLP 55 University Avenue, Suite 1800 Toronto, ON M5J 2H7 Tel.: 416-655-3044 ext. 2 Fax: 416-655-3044 Email: [email protected] [email protected]
COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR THE CANADIAN MUSLINE LAWYERS INTERVENER CANADIAN MUSLIM ASSOCIATION AND FEDERATION LAWYERS ASSOCIATION AND OF ASIAN CANADIAN LAWYERS FEDERATION OF ASIAN CANADIAN LAWYERS NATHAN GORHAM MATTHEW ESTABROOKS
Gorham Vandebeek LLP Gowling WLG (Canada) LLP 36 Lombard Street 2600 - 160 Elgin Street Toronto, Ontario M5C 2X3 Ottawa, Ontario K1P 1C3 Tel: (416) 410-4814 Tel: (613) 786-0211 Fax: (416) 598-3384 Fax: (613) 788-3573 E-mail: [email protected] E: [email protected]
MINDY CATERINA Barrister & Solicitor 2601-180 Dundas Street West Toronto, ON M5G 1Z8 P.O. Box 466, Stn. A Tel: (416) 859-3005 Fax: (416) 599-1307 Email: [email protected]
COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR THE CRIMINAL LAWYERS’ ASSOCIATION INTERVENER CRIMINAL LAWYERS’ ASSOCIATION (ONTARIO)
KENT ROACH CHERYL MILNE MATTHEW J. HALPIN
David Asper Centre for Constitutional Rights University of Toronto Norton Rose Fulbright Canada LLP 78 Queen’s Park Crescent 45 O’Connor Street, Suite 1500 Toronto, ON M5S 2C3 Ottawa, ON K1P 1A4 Tel: (416) 978-0092 Tel: (613) 780-8654 Fax: (416) 978-8894 Fax: (613) 230-5459 E: Email: [email protected] [email protected] [email protected]
COUNSEL FOR THE INTERVENER DAVID OTTAWA AGENT FOR THE ASPER CENTRE FOR CONSTITUTIONAL INTERVENER DAVID ASPER RIGHTS CENTRE FOR CONSTITUTIONAL RIGHTS MICHAEL A. JOHNSTON JAMES P. COULTER
Shore Johnston Hyslop Day LLP Coulter Law 200 Elgin Street, Suite 800 200-800 Elgin Street Ottawa, Ontario Ottawa, Ontario K2P 1L5 K2P 1L5 Tel: (613) 233-7747 Tel: (613) 371-3884 Fax: (613) 233-2374 Fax: (613) 233-2374 Email: [email protected] Email: [email protected] AGENT FOR COUNSEL FOR THE COUNSEL FOR THE INTERVENER INTERVENER THE DEFENCE THE DEFENCE COUNSEL COUNSEL ASSOCIATION OF ASSOCIATION OF OTTAWA OTTAWA
JANANI SHANMUGANATHAN THOMAS SLADE
Goddard Nasseri LLP Supreme Advocacy LLP 55 University Ave., Suite 1100 340 Gilmour St., Suite 100 Toronto ON M5J 2H7 Ottawa, ON K2P 0R3 Tel: (647) 351-7944 Tel: (613) 695-8855 Fax: (647) 846-7733 Fax: (613) 695-8580 Email: [email protected] Email: [email protected]
COUNSEL FOR THE INTERVENER OTTAWA AGENT FOR THE SOUTH ASIAN BAR ASSOCIATION INTERVENER SOUTH ASIAN OF TORONTO BAR ASSOCIATION OF TORONTO
JEAN-GUILLAUME BLANCHETTE PAUL CHARLEBOIS
Fréchette Blanchette Dingman Charlebois, Swanston, Gagnon, Avocats 85 Belvédère Nord, bureau 20 166 rue Wellington Sherbrooke (Québec) J1H 4A7 Gatineau (Québec) J8X 2J4 Tel : (819) 822-3434 Tel: (819) 770-4888, ext 105 Fax : (819) 822-3220 Fax : (819) 770-0712 Email: [email protected] Email : [email protected]
GABRIEL BABINEAU Desjardins Côté, s.n.a. 500, Place d’Armes, bureau 2830 Montréal (Québec) H2Y 2W2 Tel :(514) 284-2351 Fax : (514) 284-2354 Email : [email protected]
COUNSEL FOR THE ASSOCIATION OTTAWA AGENT FOR THE QUÉBÉCOISE DES AVOCATS ET ASSOCIATION QUÉBÉCOISE DES AVOCATES DE LA DÉFENSE AVOCATS ET AVOCATES DE LA DÉFENSE SCC File No. 39062 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
B E T W E E N: HER MAJESTY THE QUEEN APPELLANT (Respondent) -and-
PARDEEP SINGH CHOUHAN RESPONDENT (Appellant)
TABLE OF CONTENTS
PART I - OVERVIEW ...... 1 PART II - ARGUMENT ...... 1 1. Response to the interveners concerning s.11(d) and 11(f) of the Charter ...... 1 A. Discrimination against Aboriginal Canadians ...... 1 B. The erroneous assertion that peremptory challenges are subjective, unable to be justified objectively, and therefore valueless ...... 4 C. The subjective feelings of the accused are relevant ...... 6 D. The History of Jury Challenges supports their maintenance today ...... 8 E. Other jurisdictions have eliminated peremptory challenges so why does not Canada . 9 2. The unconstitutionality of the legislation cannot be saved by s. 1 of the Charter ...... 9 3. Temporal Application - Prospectivity / Retrospectivity ...... 10 PART III - AUTHORITIES CITED ...... 11 1
PART I - OVERVIEW
1. The interveners have dealt significantly with the constitutionality of the repeal of peremptory challenges and other issues to a lesser extent. The issues raised will be dealt with thematically.
PART II - ARGUMENT 1. Response to the interveners concerning s.11(d) and 11(f) of the Charter
A. Discrimination against Aboriginal Canadians
2. The appellant on cross-appeal (hereinafter “appellant”) agrees that aboriginal Canadians have been subject to terrible discrimination over their history. The history of Canada as regards Aboriginals is largely a history of injustice and racism. None can gainsay this. It is sad but unsurprising that this racism has been seen to perpetuate itself in the question of jury selection. 3. It is not contested that racialized persons of aboriginal decent would wish persons on the jury that would reflect their lived reality. This is the same truth that operates for racialized persons who are not of aboriginal descent. All of them live in a society which has historically marginalized them. All of them are minorities in Canada. 4. All of them have structural reasons why they are less likely to be on a jury roll or be picked as a juror. The under inclusion of aboriginals was documented in Kokopenace.1 Racialized persons of other backgrounds may well not appear on voter rolls for similar and in some cases different reasons. They may be transient and not be enumerated. They may not have the language skills to be accepted. They may be in the country in significant numbers but not have citizenship. Very importantly, because of their history of discrimination they may be jaded about the state and undermotivated to assist it in its processes. The appellant adopts the analysis of the Canadian Muslim Lawyers Association and Federation of Asian Canadian Lawyers (hereinafter “ CMLA / FACL”) regarding the barriers faced by racialized persons in this regard.2 5. It is worthy of note that most of the specific examples cited where aboriginals have been excluded from juries are cases where the state was unable to obtain a conviction because of this
1 R v Kokopenace, 2015 SCC 28. 2 Factum of the Intervener Canadian Muslim Lawyers Association and Federation of Asian Canadian Lawyers at paras 15-18. 1 2
practice. The Aboriginal Legal Services (hereinafter “ALS”), goes so far as to imply that there is some form of community right to a representative jury pursuant to s.11 of the Charter.3 This submission must be rejected. The community does not have a Charter right to a given outcome. 6. It is absolutely clear that the legislation in question was brought forward because of the Stanley case. Within hours of the result our Prime Minister was declaring that he mourned the verdict. The government perspective was that the verdict was an outrage and needed urgent structural change. Within a very short period of time the peremptory challenge was a dead letter for all accused in all circumstances. This was fundamentally brought about because the state failed to obtain a conviction in that case. Government essentially suggested that because there were no aboriginal jurors, the jury made the wrong decision. As a purported solution they eliminated the possibility of an accused trying to get a more representative jury for themselves. 7. There are two problems with this cause and effect. Firstly, Criminal law has long been more concerned with wrongful convictions than wrongful acquittals. If this were not so we would not have the criminal burden of proof. Secondly, a provision can be misused in certain circumstances and yet be crucial to justice in other circumstances. 8. Even if it could be said that the Crown could have been able to obtain more convictions in cases involving an aboriginal complainant if there had been no peremptory challenges, this does not detract from the reality that eliminating peremptory challenges will certainly result in racialized persons loosing considerable faith in jury trials as an institution. This is not speculation or inference, it is the evidence at this trial.4 This evidence was presented, not the subject of cross examination and accepted by the trial judge. In all the submissions by the interveners there is no significant opposition to the evidence that a criminal defendant has much more faith in a jury that he is allowed to help pick. Further, it does not detract from the fact that the elimination of peremptory challenges will prevent racialized accused from seeking to put persons on the jury who best reflect their lived reality. The two very experienced lawyers who testified in this case testified that they were not aware of jurors being excluded in Toronto because of their race. They did say that it was their practice and that of many of their colleagues to try to get racialized people on their
3 Factum of the Intervener Aboriginal Legal Services at paras 26-37. 4 Trial Transcript of R v Chouhan, September 16, 2019, p 19-20, p 38-40 [see Appellant’s Record, Vol II, Tab 9, p 173-174, p 192-194]. 2 3
juries. This was both to ensure justice and to ensure that their clients felt that their jury was in fact a jury of their peers.5 9. The aboriginal experience does not rebut the fact that for the accused before the bar and many similarly situated accused, peremptory challenges are essential to their having, and perceiving that they are having a fair trial. 10. If a given process is constitutionally mandated for Mr. Chouhan to have a fair trial, it cannot be taken away because that process has prevented convictions in other jurisdictions. The Chouhan case is not the Stanley case. The Crown did not object to the procedures followed in Stanley and did not appeal that verdict. The Intervener David Asper Centre for Constitutional Rights has specified that the greatest problem with the discriminatory use of peremptory challenges is that the accused cannot be challenged on the use of their challenges.6 Crowns can be challenged under existing law. Again, the fear of wrongful acquittals is less than the fear of wrongful convictions. 11. It would be remarkable indeed if this Court were to find that accused persons have no right to representativity in their jury7, but that the community does. The community is not on trial. The community does not have Charter rights. S.11 gives rights only to those charged with an offence. 12. Finally, the assertion that a provision has been misused is not a dispositive criticism of its constitutionality overall. Some people cheat welfare, OHIP, subsidized housing or methadone clinics. All serve a valuable function. A constitutional safeguard is not rendered meaningless by the fact that it can be misused. The criminal standard itself allows many people who are factually guilty to go free. It remains a cornerstone of our desire to see justice done in a criminal trial. 13. The Intervener The British Columbia Civil Liberties Association (hereinafter “BCCLA”) has provided an excellent summary of the evidence to support the fact that most often peremptory challenges are used to support substantive equality.8 Their summary is adopted by the appellant. 14. It is worthy of note that the very large majority of those who spoke at the senate and commons committees did so against the idea of eliminating peremptory challenges. This included Crowns, defence counsel and many organizations.9
5 Supra note 4, p 44-46 [see Appellant’s Record, Vol II, Tab 9]. 6 Factum of David Asper Centre for Constitutional Rights at para 10. 7 R v Kokopenace, 2015 SCC 28 at para 39. 8 Factum of the British Columbia Civil Liberties Association at para 2. 9 Ibid. 3 4
B. The erroneous assertion that peremptory challenges are subjective, unable to be justified objectively, and therefore valueless
15. A number of the interveners assert that because peremptory challenges have a somewhat shallow empirical justification, they are valueless in selecting an objectively impartial jury. 16. Clearly, when assessing the suitability of a prospective juror, the accused does not have an enormous amount of empiricism to make their decision. They do not know the person personally, they have never worked with them or socialized with them. Notwithstanding this, racialized persons who have lived with discrimination have well honed antennae to detecting biases in those with whom they interact. This was the subject of uncontested testimony at the trial.10 17. The accused and their counsel watch the prospective jurors file into the room. They watch as they receive their preliminary remarks from the Trial Judge. They watch as their name is drawn from the drum and their reaction as they are picked and come forward. They know their name, their occupation and their address. From this they have an idea of their social standing in the community. They can watch how the juror interacts with their peers and how they look at counsel and the accused. If there is a challenge for cause they can see how they answer the question. Do they hesitate, are they firm, do they smirk. Finally when they are called to look at the accused they can see how they look at them. Do they smile, frown, scowl, smirk, glare, look away? By all these clues can an accused decide if a person will give her a fair trial. It is not a perfect system, but it is a crucial one. It is subjective because it is perspective of the accused or the accused and counsel. It is not for that reason at all illegitimate. 18. Racism is pervasive and insidious in Canada. It is also the subject of significant opprobrium in much of society. The challenge for cause process as it is now practiced in Canada is valuable but cannot be said to be a panacea to the ferreting out of biased jurors who would not give the accused a fair trial. 19. Further, as submitted by many of the interveners who oppose the new legislation, it is a near impossibility to come up with objective indicia of bias or racism in the process which would remain if peremptory challenges were eliminated. This is especially so because the nature of the empiricism gained by the accused and to a certain extent by counsel, cannot be usefully transmitted to the presiding justice for a number of reasons.
10 Supra note 4 [see Appellant’s Record, Vol II, Tab 9, p 192-194]. 4 5
20. Racialized accused who have often been the subject of discrimination for their whole lives, see people differently and through a different lens than do justice system participants who have not been the subject of such discrimination. They may be used to overt racist language, but more often are used to the passing sneer, the refusal to look in the eye, the hostile glance. This empiricism is real and likely to be correct. It is also almost impossible to be transmitted to an often white judge. 21. Let us imagine a racialized accused looks at potential juror 12 standing in line and that juror gives him a condescending look and whispers something to his fellow potential juror 13 who then looks at him with disgust and says something heated back to 12. The accused in that case sees all the signs of bias. Let us then assume that both persons answer no to the challenge for cause. The accused would clearly believe these jurors will not give him a fair trial. He is however powerless to convince a justice of this fact unless, the trial judge had observed the same gesture and had perceived it the same. Even if the accused was Shakespeare, he would face an impossible task of transmitting what he saw into objectively verifiable reasons to excuse. Accused persons are not Shakespeare. Accused are often marginalized, undereducated and not verbally facile. 22. To use another example. Women are in a workplace and a number of them speak and agree that a given co-worker is creepy. They all get a bad feeling from him and would avoid getting on an elevator with him. They all agree on these points but would be unable to express this in a way that would convince a male authority figure. They would be asked: “did he make inappropriate comments, did he touch you” and the like. Despite the answer being no, these women would continue to have this uneasy feeling about their co-worker. 23. A further problem is that observations in the courtroom are a very difficult basis to form judicial decisions. In the case at bar, the lone juror who was excused was said by the accused to have adjusted his glasses with his middle finger at the accused. This was not seen by the Crown and the Judge and this is understandable. The prospective juror for much of his time in Court has his back to the Justice. The Crown may well have his head down or the like. But what if the accused saw something and the Justice was not prepared to take it at face value? What would happen? Would there be voir dire and evidence called? What if one counsel saw something and the other said they did not. Would counsel then become a witness? 24. Peremptory challenges give to the accused the ability to draw on a lifetime of experience to ensure that as much as possible the jury being picked is one who is not biased against her. Given
5 6
all the factors mentioned above, none of the procedures which would remain after the abolition would come close to being able to achieve that result. It is time to trust racialized accused that they know what they are talking about when they see people who they believe would not give them a fair trial. The perception of the accused matters. 25. It is worthy of note that the Intervener Debby Baptiste, herself a racialized Canadian, agreed that racialized people know best when someone is biased against them and that their perceptions are likely correct.11 26. The position of the Intervener South Asian Bar Association of Toronto (hereinafter “SABAT”) is correct that persons of colour have a lifetime of experience of being treated unfairly but that often the indicia of such a proclivity are difficult to articulate in a way as to convince another. The eloquent phrase by counsel for the BCCLA that the subtlety of the bias cannot be turned into its immunity is specifically adopted.12 27. The appellant also adopts the position of the Intervener Criminal Lawyers’ Association that there are other objective reasons why an accused would wish to challenge a juror which are appropriate but outside of the knowledge of the Crown or the trial Judge.13
C. The subjective feelings of the accused are relevant
28. A number of the interveners raise the idea that the subjective belief of the accused is of no moment because the entire focus of s.11 is an objective analysis of whether a reasonable person would believe that the accused had had a fair trial. 29. Firstly, the appellant specifically adopts the position of the Intervener Canadian Association of Black Lawyers (hereinafter “CABL”) that the traditional objective standard is insufficient to ensure the constitutionality of this legislation.14 A modified objective standard was the standard urged upon the trial judge and the Court of Appeal (hereinafter “ONCA”). In order for an ordinary person to decide if a jury picked without peremptory challenges would be biased, they would have to know many things which might not be in the ken of this ordinary person. They would have to be vested with all of the knowledge set forth in the factum of the CABL.15 They
11 Factum of the Intervener Debbie Baptiste at para 39. 12 Factum of the Intervener South Asian Bar Association at para 12 and Supra note 8 at para 9. 13 Factum of the Intervener Criminal Lawyers’ Association at paras 14-19. 14 Factum of the Intervener Canadian Association of Black Lawyers at paras 9, 19-23. 15 Ibid at para 21. 6 7
would in a real way have to be able to glimpse the world as it is to racialized people in order to make an objective decision. In a multicultural and diverse society, the reasonable person must be fully contextualized. The reasonable person must accept that black people are acutely over- represented in criminal justice. They must also accept that racism affects decision making about racialized people. This is why they distrust the justice system to treat them fairly.16 A fully informed person would conclude that peremptory challenges are crucial to mitigate the proven harm of racism. 30. The submission was made by some of the interveners that if peremptory challenges were truly necessary they would be unlimited. This argument respectfully does not bear analysis. Often, in decisions about the granting of rights, we do not deem these rights to be unlimited. We circumscribe these rights for a multitude of reasons. In this case we wish to eliminate bias but we also wish to move the trial process along. We have decided that twelve jurors are the appropriate number not fourteen or six. We allow counsel to address the jury but do not permit this right throughout the trial. We allow cross examination but put restrictions on it as well. A right does not need to be unlimited to be constitutionally necessary. 31. Even if this court finds that the perspective of the accused is not relevant to s.11(d) it is very much the position of the appellant that s.11(f) provides guarantees which are different than those provided in s.11(d). Those guarantees mandate that the participation of the accused in the selection of her jury is an essential component of a trial by jury. It is an essential component of the “benefit” of a trial by jury. The intervener The Advocates Society (hereinafter “TAS”), has put forward an excellent analysis of s.11(f) which is specifically adopted.17 32. The fundamental difference between a trial by judge and a trial by jury is its independence from the state. The ability to participate fully in the composition of the jury is essential to the demonstration of that independence. Many of the procedures involved in picking the jury are determined by the state. This is all the more so now that Judges determine the validity of the challenge for cause. 33. It is not enough to say that the Judge is deemed impartial. If Judge alone trials were all that was constitutionally necessary, then 11(f) would not have been enacted. In order for a jury trial to
16 R v Le, 2019 SCC 34 at paras 89-97 17 Factum of the Intervener The Advocates Society at paras 5-29. 7 8
be a jury trial, the selection of that jury must be, and be seen to be, independent of the state. The ability of the accused to participate in this process if a fundamental part of that guarantee. 34. It is not seriously contested in this litigation that an accused would be more likely to feel he received a fair trial if he was able to participate in the forming of the jury. It was the subject of uncontradicted evidence that absent this control many racialized accused might forgo a jury trial.18 Racialized people know well the reality which has been accepted by this court: racism is a pervasive and insidious part of Canadian life and by extension will be present in a jury panel. 35. Peremptory challenges are an essential guarantee because they weed out those who are or who may be perceived to be biased against the accused. They are also a vital guarantee because they are a process to make a more representative jury more likely. An accused has no right to a jury of a certain composition but he has the right to a fair process.19 36. Kokopenace was not concerned with in court jury selection. It was concerned with a challenge to how the effect of the jury rolls affected the representativity of the jury panel. The appellant endorses and adopts the language of the BCCLA that Kokopenace permitted a weak upstream process (jury roll) and that in order for the process to be constitutional it must be counterbalanced by a strong downstream process (in court jury selection).20
D. The History of Jury Challenges supports their maintenance today
37. A number of interveners have reviewed aspects of the history of the peremptory challenge in order to support the notion that it does not support their maintenance in a modern setting. Although it is true that peremptory challenges have been used in different ways over the years, that they have had different effect over time and that they were not always or often used for race based reasons, it is however clear that peremptory challenges have been a central feature of jury selection in the common law tradition since at least 1300. This right was given so that the accused might have a better feeling that his jury would give him justice. It was done so that the jury could be considered independent of the state. 38. It is of note that the procedures used for picking a jury have not always been static. It is however fundamental and uncontested that even well prior to the modern incarnation of the jury
18 Supra note 4, p 19-20 [see Appellant’s Record, Vol II, Tab 9, p 173-174]. 19 R v Kokopenace, 2015 SCC 28 at para 39. 20 Supra note 8 at para 15. 8 9
trial as an impartial body who are strangers to the facts, it was a right of the accused to challenge prospective jurors without having to justify this challenge. 39. If constitutional principles derive in part from the wisdom of centuries old rights granting decisions, this record speaks volumes about more than seven hundred years of such wisdom. 40. The appellant adopts and relies as well on the factum of the Intervener Defence Counsel Association of Ottawa (hereinafter “DCAO”) where the historical justifications for the peremptory challenge are further elucidated. It is of note that the history of Canadian jury picking includes documented concerns that the government would seek to pack juries with their supporters.21 The necessity of peremptory challenges to ensure independence from the state is a longstanding justification and is certainly one of the “benefits” of a trial by jury. 41. The appellant adopts and relies on the passage from Bryant cited by DCAO that the jury trial is entrenched in the constitution and is preserved from open attack or subtle erosion.22
E. Other jurisdictions have eliminated peremptory challenges so why does not Canada
42. As a full answer to this question the appellant endorses and adopts the analysis set out by SABAT on this subject.23 The jurisdictions in question have a system of jury picking with is completely at odds with Charter guarantees found in Canada. Legal systems without Charters of Rights may migrate in directions not permitted in countries which benefit from them. Jurisdictions which for example allow Crown challenges but not defence challenges have little to teach Canada about proper procedures in that regard.
2. The unconstitutionality of the legislation cannot be saved by s. 1 of the Charter
43. A number of interveners spoke to the categories of the s.1 analysis. Without going into those arguments in depth it is enough to say that this legislation clearly does not meet the minimal impairment test. It is a remedy crafted on the sudden to respond to a concern about an acquittal in particular and discrimination against native jurors in general. 44. Many other mechanisms were available to counter the harm perceived. The appellant adopts the position of CMLA / FACL that the Batson regime is a mechanism to prevent or at least
21 Factum of the Intervener Defence Counsel Association of Ottawa at para 32. 22 Ibid at para 25. 23 Supra note 12 at paras 18-30. 9 10
lessen discrim1nation.23 If it was felt that no other mechanism save prohibition was acceptable, there could have been a wholesale prohibition on peremptory challenges against persons identifying as firstnations. 45. There is no evidence of any substantial concern with the illicit use of peremptory challenges save in the aboriginal context. None were profferedbefore parliamentary committees. If it was imperative to address the underrepresentation of aboriginal juries it could have been addressed with particularity and not by denying all Canadian accusedits use.
3. Temporal Application - Prospectivity/ Retrospectivitv
46. The respondent Chauhan relies on its earlier factumsave as follows. 4 7. It is illustrative that the intervener Attorney General of Canada (hereinafter "AG Canada") agrees that the legislation ought to have been interpreted prospectively. This was also theirposition in many trial courts in Ontario. Provincial Attorney's General in a number of Canadian jurisdictions took the very risky contrary position and much uncertainty has resulted. Respectfully, their decision should not now be used against accused. 48. The respondent agrees with and adopts the one reason provided by the intervener AG Canada as to why the legislation should apply prospectively. However, the respondent strongly disagrees with the AG Canada's position that the rationale of the ONCA forprospectivity (vested rights) is incorrect. The respondent urges this Court to find that the reasons articulated by the ONCA are also correct.
ALL O WHICH IS RESPECTFULLY SUBMITTED BY:
Dirk Derstine Tania Bariteau Counsel forthe respondent Counsel forthe respondent
DATED at Toronto, this 21st day of September 2020.
23 Factum of the Jnterveners Canadian Muslim Lawyers Association and Federation of Asian Canadian Lawyers at paras 21-30 11
PART III - AUTHORITIES
CITED CASE LAW Paragraphs
R v Kokopenace, 2015 SCC 28. 4, 11, 36
R v Le, 2019 SCC 34. 29
11