In R. v. Chouhan, 2021 SCC 26, a majority of the Supreme Court ruled that jurors must be instructed on the issue of implicit bias. Preliminary 1.1.1 and Preliminary 3.1.1 contain instructions on implicit bias that are intended to accord with the majority’s requirements.

Some members of the Court also offered guidance on issues related to the procedures for selecting juries in the wake of the statutory abolition of peremptory challenges.  Those issues include the use of the power to excuse jurors (under s. 632(c) of the Criminal Code), the scope of challenges for cause (s. 638(1)(b)), and the application of the new stand-aside power (s. 633).

While it is important to read the decision in Chouhan as whole, the following paragraphs of the judgment address specific procedures and warrant close attention:   Excusing jurors (paras 35-36, per Moldaver and Brown, JJ., Wagner, CJC concurring); challenges for cause (paras 61, 62, 67, per Moldaver and Brown, JJ., Wagner, CJC concurring, and paras 119-121, per Martin, Karatkatsanis, and Kasiser JJ.); and the stand aside power (paras 70, 74, 81, per Moldaver and Brown, JJ., Wagner, CJC concurring).

[1] If a panel is being used to select more than one jury, this instruction may require some modification. It should be given only where there is no general (as opposed to an individual) challenge for cause. Where there is a general challenge for cause, Preliminary 2.2 should be given.

[2] At present, there is some uncertainty over the procedure to be followed under the new legislation. Section 635(1), as amended, reads as follows:

Order of challenges

635 (1) The accused shall be called on before the prosecutor is called on to declare whether the accused challenges the first juror for cause, and after that the prosecutor and the accused shall be called on alternately, in respect of each of the remaining jurors, to first make such a declaration.

Prior to amendment, this provision governed the order of peremptory challenges as well as challenges for cause.  Now that peremptory challenges have been abolished, the only basis on which counsel can challenge a prospective juror is challenge for cause under s. 638 of the Code. In some cases, the judge will authorize a challenge to all prospective jurors based, for example, on race or publicity. In that instance, section 2.2 of these instructions will apply. However, s.638 also contemplates that an individual juror may be challenged for cause on the delineated grounds. This has traditionally been a rare occurrence, perhaps because counsel have had access to peremptory challenges.

The question is whether the use of the word “shall” in s. 635(1) requires that counsel be called upon to indicate, for each prospective juror, whether there is a challenge for cause under s. 638 of the Code. Or does it suffice for counsel to simply advise if and when any such challenge arises? Does the prospective juror look at the accused and the accused look at the juror as in the past? Does that serve any purpose in the absence of peremptory challenges? Do counsel have the right to make submissions on whether a prospective juror is stood aside? The precise parameters of counsel’s participation in the new process have yet to be determined. We anticipate that case law will develop as cases unfold, and we will update these instructions accordingly.

[3] A challenge for cause relating to partiality must be based “on a ground sufficiently articulated in the application” that there is in the case of some potential jurors a “realistic potential for . . . partiality” (R. v. Sherratt, [1991] 1 S.C.R. 509 at p. 536). Other bases for challenge for cause concern citizenship, criminal convictions, physical ability, and facility with language (s. 638).  The new approach to the challenge for cause process is addressed in Chouhan at paras. 61-63, 67, 119-21.