Her Majesty the Queen v. Pardeep Singh Chouhan

(Ontario) (Criminal) (By Leave)


Canadian charter (Criminal) - Right to trial by jury (s. 11(f)), Criminal law, Jurors, Selection, Challenges for cause - Charter of Rights and Freedoms — Right to trial by jury — Right to fair and public hearing by independent and impartial tribunal — Right to liberty and security of the person — Criminal law — Jurors — Selection — Challenges for cause — Peremptory challenges — Curative proviso — Federal legislation amending jury selection process in criminal trials — Accused challenging constitutional validity of amendments and arguing for prospective application only — Amendments deemed constitutional and applicable retrospectively — Accused convicted of first degree murder by jury selected according to new process — Court of Appeal affirming constitutional validity of amendments but finding elimination of peremptory challenges should not apply retrospectively — Conviction overturned and new trial ordered — Whether there is divergence amongst provinces in temporal application of jury selection amendments — Whether curative proviso in Criminal Code should apply to procedural errors in jury selection — Whether Court of Appeal erred in law in finding that elimination of peremptory challenges does not apply retrospectively — Whether Court of Appeal erred in law in finding that jury selection amendments were constitutional and did not infringe rights under Charter — Whether there is risk of divergence among provinces regarding constitutional validity of jury selection amendments — Criminal Code, R.S.C., 1985, c. C-46, ss. 640, 686(1)(b)(iv) — Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 11(f).


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On September 19, 2019, Bill C-75 came into force and modified the jury selection process under the Criminal Code by eliminating peremptory challenges and empowering trial judges to decide challenges for cause. The respondent, Mr. Pardeep Chouhan, was charged with first degree murder. Prior to the jury selection procedure for his trial, and prior to Bill C-75 coming into force, Mr. Chouhan brought a constitutional challenge to the Criminal Code amendments, arguing that they infringed his rights under the Canadian Charter of Rights and Freedoms. In the alternative, Mr. Chouhan submitted that, even if constitutionally valid, the amendments should not apply retroactively.

The Ontario Superior Court of Justice dismissed the constitutional challenge, finding that the amendments did not infringe any Charter rights, affected only procedural matters, and could be given retrospective effect. Mr. Chouhan’s jury was therefore constituted according to the amendments in the new process, and he was found guilty of first degree murder by the jury.

The Ontario Court of Appeal unanimously affirmed the constitutional validity of the amendments, and agreed that the change to challenges for cause could apply retrospectively. However, it ruled that the elimination of peremptory challenges should not apply retrospectively to all pending cases, as it affected an accused’s substantive right to trial by jury. As such, this amendment should not have applied to the selection process in Mr. Chouhan’s case, and the jury was improperly selected. The Court of Appeal overturned Mr. Chouhan’s conviction, and ordered a new trial.

The Crown now appeals the Court of Appeal’s decision, and Mr. Chouhan cross-appeals on the issue of the constitutional validity of the Criminal Code amendments.