Thank you, Chair, and thank you for the opportunity to make a submission on Bill C-75.
I am Crown counsel at Ontario's Ministry of the Attorney General, but it's important that I make clear I'm appearing in my personal capacity, and that my views don't represent the Government of Ontario or Ontario's attorney general.
The focus of my submission is on section 271, which is the proposal to eliminate peremptory challenges from the Criminal Code. I'm supportive of the amendment. My view is basically summed up in three points. I will try not to make them very long.
First, peremptory challenges undermine both the representativeness and impartiality of Canadian criminal juries. Second, peremptory challenges undermine the public confidence in the administration of justice, and third, peremptory challenges can invite mischief associated with jury vetting in some cases.
My first point is that the requirements of having representative and impartial juries are crucial elements to ensure both the fair trial rights of an accused person as well as ensuring that the conscience of the community is represented in adjudicating on acceptable conduct. When I say representativeness, of course, I don't mean there has to be a statistically perfect cross-section, or that every possible group and demographic subgroup in society has to be represented on a jury.
However, juries are really only representative if they are randomly selected from a reasonably representative segment of the population. Similarly, impartiality is achieved both by excluding people who are not indifferent as to the outcome in a criminal case, but it's reinforced by what sometimes is referred to in the case law as the diffused impartiality that happens when you have a representative and diverse range of viewpoints on a criminal jury.
It's my view that peremptory challenges undermine both of these goals. They certainly don't further either one.
When we're looking at representativeness, when you have peremptory challenges, you're getting further and further away from the ideal of random selection, and instead of having random selection, what you actually do is introduce an element of selection bias, where you're replacing the random selection with assumptions about behaviour that are based primarily on stereotypical assumptions, and no real information about how perspective jurors might behave.
When you're looking at impartiality in the context of peremptory challenges, instead of excluding people on a good faith or rational basis that they are not impartial about the outcome, what ends up happening is that both Crown and defence counsel are invited to attempt to secure a strategic advantage in the litigation to which they are not really entitled.
No one is entitled to a favourable jury, only one that's impartial. It would be my view that if there is a realistic prospect, and a rational reason why a juror might be incapable of being impartial, then the remedy for that lies in having a challenge for cause that's established on evidence and ruled on by a trier of fact.
Moving to my second point, having peremptory challenges cannot help but lower the public confidence in the administration of justice when members of the public and perspective jurors watch perspective jurors excluded on the basis of no reason, on the basis of no evidence, and without any information.
When those exclusions are based basically on the gut feeling of who is likely to be sympathetic to one side or the other, then that doesn't give the public or perspective jurors a feeling that jury selection is happening in a way that is fair and impartial, and also represents the community. Of course, it can't help but create an assumption that the juror who has been challenged, again usually on the basis of no evidence and for no reasons given, is in some way incapable or incompetent to have been selected or to be impartial in the case.
My third and final point is simply that the existence of the challenge for cause mechanism invites a mischief in the form of jury vetting. Jury vetting is the process of finding out information about prospective jurors for the purpose of finding or divining their attitudes, beliefs and preferences with a view, potentially, to exercising a peremptory challenge to exclude them. The case law is full of cases where this has been done, both on permissible and more impermissible bases.
My overall point is that the peremptory challenge creates an incentive for both the Crown and for defence counsel to try to find out information about jurors' backgrounds. Many prospective jurors would be alarmed if they knew what Crown or defence counsel were trying to find, and it can, in some cases, be a violation of their privacy.
Just to sum it up, it's my view that the existence of the peremptory challenge mechanism invites abuse by creating a perverse incentive.
That's my submission. Thank you.