A BC court has ruled that changes to the jury selection process brought in as part of Bill C-75 cannot be applied retrospectively.
As we previously explained on this blog, Bill C-75 gained Royal Assent in June, however, some of the changes it made to the Criminal Code only came into effect on September 19. One of these changes was the elimination of peremptory challenges in jury selection.
What are the changes to jury selection?
Peremptory challenges previously allowed lawyers from both sides of the courtroom to dismiss jurors before a trial without explanation. They played an important role in ensuring juries consisted of impartial people who took their roles seriously.
Bill C-75 eliminated peremptory challenges and replaced them with a system where lawyers must request to dismiss prospective jurors. They have to provide reasons, such as possible racial or gender bias, to a judge who has the final say.
What happened in the BC court case?
The BC Supreme Court recently had to decide whether the section of Bill C-75 pertaining to jury selection should apply to a trial that had already commenced. Rajkumar Subramaniam was charged with unlawful importation and possession of a controlled substance in 2015. He elected for a jury trial. Following some delays, the court scheduled the trial for September 30 with jury selection on September 24. The amendment came into effect on September 19, so the question was which rules should apply? The old or the new?
The Court’s decision-making process hinged on whether the amendment affected substantive law or procedural law. Substantive laws govern how we as a society should behave. For example, substantive laws set out punishments for crimes or torts in civil matters. Procedural laws, on the other hand, govern how to administer and enforce substantive laws. In other words, they dictate the actual court procedures and how they go about their business.
Substantive vs. procedural law
Discussing the issue of peremptory challenges, the judge said: “What has historically been regarded as a right so fundamental to the process of jury selection that even depriving an accused of a single peremptory challenge is sufficient grounds to set aside a guilty verdict and order a new trial, is being done away with.”
The judge also said:
“The peremptory challenges provisions of the Code are procedural, in the sense that they prescribe a method to be followed to secure an accused their Charter right to a jury trial. But the right to peremptory challenges itself has been so fundamental to Canadian criminal law, and is so deeply entrenched, that it must be regarded, standing on its own, as a substantive right.”
The BC Supreme Court found that when Mr. Subramaniam elected a jury trial and sought an adjournment so both sides could select a new jury, he had no expectation that the legislation would come into effect and he would lose his right to a peremptory challenge.
The Court, therefore, found the Bill C-75 amendments did not apply. The jury selection would go ahead under the previous version of the Criminal Code.
Where this leaves us
This case means courts must abide by the previous Criminal Code jury selection provisions in cases commenced prior to Bill C-75. Any trials from here on out are out of luck. And it’s a shame. While peremptory challenges played an important role in vetting unhelpful jurors. As the BC Supreme Court judge acknowledged, peremptory challenges had become “fundamental” to the process of jury selection in Canada.