Release: Michael Johnston represented the DCAO at the Supreme Court of Canada

On 7 October 2020, the case of R v Chouhan was argued before the Supreme Court of Canada. This case dealt with the constitutionality of recent amendments to jury trial procedures, in particular, the elimination of “peremptory challenges” and the elimination of the “rotating triers” procedure. The Defence Counsel Association of Ottawa (DCAO) intervened in this appeal, arguing that:

The Defence Counsel Association of Ottawa (“DCAO”) respectfully submits that a purposive constitutional analysis of s. 11(f) can lead to only one conclusion: the “trial by jury” promised by the Charter includes the requisite elements of independence, constitution, and representativeness as guaranteed by the use of peremptory challenges, and the hearing of challenges for cause by lay triers.

In the criminal trial’s “little parliament”, the peremptory challenge and lay triers, are analogous to the individual’s right to vote on the constitution of the jury. The impugned legislative amendments will silence these voices, and simultaneously empower the government-appointed official, in violation of the Charter guarantee to the “benefit of trial by jury”.

Michael A. Johnston had the privilege to represent the DCAO by submitting the written argument as well as appearing before the Court during oral arguments.

The Court ruled that the amendments were constitutional, but their reasons for this decision will not be released until a later date.