On September 19, 2019, certain new amendments to the Criminal Code took effect. Those amendments, among other things, repealed s. 634 of the Criminal Code, which enshrined the statutory right to peremptory challenges of potential jurors (as opposed to challenges for cause). The bill in question replaced s.634 with a new provision that allowed expanded powers for a judge to stand aside certain jurors. In R v King, Justice Goodman considered the constitutionality of this repeal-and-replace. The applicant had made arguments that “the repeal of s.634 of the Criminal Code…violates his right to a fair trial pursuant to ss.7, 11(d), and 11(f) of the [Charter]” [2]. The judge ultimately accepted these arguments, concluding that the repeal provision was unconstitutional. When it came to s.1, Justice Goodman did not conduct a full Oakes test analysis, given the Crown’s concession that “it would be a difficult task to sustain any argument under s.1” in the circumstances of a s.11 or s.7 breach. [257-258].
I am not a criminal law expert, and so the nuances of peremptory challenges are beyond me. And while the constitutional analysis in the case is interesting, other, brighter minds will analyze it. For me, the really interesting part of this case is the remedy. That is what I will focus on in this post.
After concluding that the repeal was unconstitutional, Justice Goodman had to craft an appropriate remedy. He was faced with arguments on the issue. At first, Justice Goodman recognized that under a “plain reading” of s.52 of the Constitution Act, 1982, “[i]t is recognized that a declaration of invalidity will create a legislative vacuum or frustrate Parliament’s clear legislative intent” [262]. He went on to note that, according to his take on principles of remedies law, “courts should not drastically alter the nature of the statutory scheme through a s.52(1) remedy” [263]. But in the face of this potential “vacuum,” the Crown submitted that “resort must be made to my inherent jurisdiction at common law to control the challenge process,” without the assistance of the former s.634 of the Criminal Code [265]. In other words, with no statutory guidance, the challenge process would devolve to the inherent jurisdiction of the courts, “to ensure that jury selection takes place in a fair and efficient manner such that an impartial jury is selected” [265].
But Goodman J did not accept this proposition, instead deciding that he could issue a s.52 declaration of invalidity that restored the law to the s.634 state:
However, if I accede to the Crown’s submissions, there is a real risk that individuals will be subjected to a jury selection that is unconstitutional. That is inconsistent with Charter values and the principles established in Schachter.
Accordingly, the declaration shall have immediate effect. Pursuant to s.52(1) of the Constitution Act, 1982, the repeal of s.634 is of no force and effect.
It is trite to state that there is no right without a corresponding remedy. The remedy here is to apply or adapt the previous s.634 of the Criminal Code as it existed prior to the enactment of s.269 of the Act. While not “reading-in” per se, (as the former section remains unaltered), the ultimate effect is the same.
In my view, there are a few problems with this sort of reasoning.
First, it is inconsistent with the way the Supreme Court has held declarations of invalidity to work (characterizing what the judge did here as a severance-sort of remedy). Striking down a legislative provision does not leave any discretion in a reviewing court when it comes to the particular time in which a declaration takes effect (with the notable exception of a suspended declaration of invalidity). Starting from first principles, a s.52 remedy works in two temporal directions. Prospectively, a declaration of invalidity “declares that, henceforth, the unconstitutional law cannot be enforced,” but it also “operate[s] retroactively so far as the parties are concerned, reaching into the past to annul the effects of the unconstitutional law” (Hislop, at para 82). Put differently, “[w]hen the Court is declaring the law as it has existed” then a retroactive remedy of this sort is appropriate (Hislop, at para 93). The remedy therefore operates as if the law never existed in the first place: “Thus, in principle, such a provision is invalid from the moment it is enacted…” (Martin, at para 28). More generally, s.52 “confers no discretion on judges” (see Ferguson, at para 35 in the context of constitutional exemptions).
Nothing in these precedents permit a judge to apply a retroactive declaration of invalidity (whether of a whole statute or by severing an offending part, as in this case) at the time frame he or she chooses. This is because when severance occurs, it reaches back to the time the statute was enacted, but it does no more. Thus, it is impossible to conclude that s.634 could somehow reappear, with the declaration taking effect before the replacement of s.634, because a declaration of invalidity does not bring back into force previous versions of a law–even when the law is a repeal. It merely strikes the replacement provision; in this case, new provisions governing the powers of the judge. For this reason, it is impossible to say that issuing a declaration of invalidity can be timed to bring s.634 back into force, because s.634 no longer exists under the repeal-and-replacement law. A different system exists. The judge should have dealt with the logical conclusion of striking down: under the right approach, there would be no peremptory challenge provision in the Criminal Code, and it would indeed be up to individual judges to craft the jury selection process to be consistent with constitutional rights until Parliament stepped in.
This leads to another problem with this decision: it is hard to see what the Court is actually doing, because much of its remedial analysis is unclear. This is true in a few ways. First, the Court failed to conduct the analysis that the Supreme Court set out in its seminal Schachter case. For example, in Schachter, at 717 the Court was explicit about the approach judges should take in fashioning remedies under s.52:
Once s.52 is engaged, three questions must be answered. First, what is the extent of the inconsistency? Second, can that inconsistency be dealt with alone, by way of severance or reading in, or are other parts of the legislation inextricably linked to it? Third, should the declaration of invalidity be temporary suspended?
Here, the judge did not define the extent of the inconsistency, which is usually set by looking to the branch of the Oakes test that the law failed (Schachter, 718). But as noted above, the judge did not conduct a s.1 analysis here. This meant that the extent of the inconsistency with s.7 and s.11 was left undefined, and the remedy chosen did not necessarily fit the violation.
Further, it is unclear what the remedy the judge actually imposed. He seemed to analogize it to a form of “reading-in.” But he paid no mind to the law governing reading-in, and thus imposed a remedy that was profoundly violative of Parliament’s purpose in the repeal provision. For example, in the companion case of R v Muse, the Court cited the Minister of Justice’s take on the purpose of the legislation:
Reforms in this area are long overdue. Peremptory challenges give the accused and the crown the ability to exclude jurors without providing a reason. In practice, this can and has led to their use in a discriminatory manner to ensure a jury of a particular composition…[t]o bring more fairness and transparency to the process, the legislation would also empower a judge to decide whether to exclude jurors challenged for cause by either the defence or prosecution. The legislation will strengthen the power of judges to stand aside some jurors in order to make room for a more diverse jury…I am confident that the reforms will make the jury selection process, more transparent, promote fairness and impartiality, improve the overall efficiency of our jury trials, and foster public confidence in the criminal justice system.”
Taken this way, it was a clear goal of the legislative provision(s) in issue to remove peremptory challenges and strengthen the existing powers of the judge to control the jury selection process. But the judge in King gave no mind to this legislative purpose. He basically read the old s.634 into the legislation. But reading-in, according to Schachter, can only make sense where it would further a legislative objective or constitute a lesser interference with that objective in a way that does not “constitute an unacceptance intrusion into the legislative domain” (Schachter, at 718). Here, the judge read-in s.634 which was clearly designed to be repealed by the new legislation, and the judge stepped into the shoes of Parliament to craft what he thought was an appropriate legislative scheme (the old s.634). This is not respectful of the purpose of the repeal-and-replace.
One might respond that, with analogy to the law on suspended remedies, the judge actually decided that merely striking the provisions would create a “legislative vacuum.” That vacuum was solved by reading in s.634. And the court would have some support in simply declining to issue a declaration of invalidity: see Mahe, at 392 “…the result of a declaration of invalidity would be to create a legislative vacuum. This result would not help the position of the appellants.” One could extend the reasoning here. But it is not clear that the abolition of peremptory challenges will not help the applicant. And even if it would help the applicant, the judge did not engage with the requisite analysis to make that conclusion. Instead, he relied on the nebulous notion of “Charter values” to assist his crafting of a remedy. It also is not clear that a legislative vacuum would be undesirable in this sense: judges would have the inherent power to craft the challenge process.
As is evident, there is much wrong with this decision. But at any rate, the issue of peremptory challenges has divided courts across the country. It will be interesting to see what happens on appeal.
Double Aspect 