R. v. Chouhan: The Reasonable Person Test and Application of the Amendments

After a jury found Gerald Stanley not guilty of second-degree murder in the shooting death of Colten Boushie, the federal government amended the Criminal Code to eliminate peremptory challenges in the selection of juries, as well as a change in the trier of challenges for cause. Judges took different views about whether this change was prospective or retrospective. As the Ontario Court of Appeal has now ruled on this matter in Chouhan, many cases, decided on the wrong side of the issue, are likely to be appealed. Indeed at least one, an individual convicted for sexual assault, already has. The Court of Appeal decision in Chouhan raises three thought-provoking issues: the meaning of procedural and substantive changes to the law ; the consequences for on-going proceedings after the amendments are in force (the impact of prospective and retrospective amendments); and the “reasonable person” test.

Then Minister of Justice Jody Wilson-Raybould introduced the amendments, as part of a major criminal law reform package, in response to the perception that the Crown had used peremptory challenges to avoid having Indigenous jurors in the Stanley case (see Bill C-75) (in Stanley, it was not the accused, who is white, but the victim, who was Indigenous). Criminal lawyers expressed concern that peremptory challenges worked both ways: they could be used to stack a jury in favour of a jury composed of “majority” members of society (as in Stanley), but they could also help to prevent a jury’s being composed of members of the majority population when the accused was a member of a disadvantaged group.

At trial, McMahon J. stated he found the affidavits and testimony of two experienced defence lawyers, who contended minority clients needed peremptory challenges, credible and “compelling” (but not sufficiently so to find the abolition of peremptory challenges unconstitutional) (Chouhan, trial, paras. 14-21). An opinion writer suggested how other reforms to peremptory challenges could help diminish the potentially racist use of peremptory challenges (see here). There was also criticism that the changes did not go far enough (see here). A report in the London Free Press) included comments in favour of and opposed to the amendments.

Section 634 of the Criminal Code had permitted a specified number of peremptory challenges depending on the charge, that is, challenges that did not have to be justified. The amendment eliminated peremptory challenges completely. Section 640 of the Criminal Code had provided that two jurors already sworn or other lay triers would decide the truth of challenges for cause; this provision was also amended, to make the judge the trier.

The Criminal Code did not specify whether the amendments were retrospective or prospective only. However, according to a report in The Globe and Mail, at the time of the amendments, a spokesperson for the federal government stated it “believes the peremptory-challenges ban should be applied to new cases only, and that this idea did not need to be spelled out because it should have been clear from case law and principles of statutory interpretation”.

In R. v. Chouhan, the trial judge held the amendments were not unconstitutional and they both applied retrospectively. He held that prosecutions that began before September 19, 2019, the date of the amendments, but tried on or subsequently to September 19th were subject to the amendments. The Court of Appeal held that Justice McMahon was partially wrong: it agreed the amendments were constitutional, and the change to the trier of the truth of challenges for cause applied retrospectively (that is, to trials held after September 19th, regardless of when the right vested), but the abolition of the peremptory challenges applied prospectively (only when the accused’s right vested on or after September 19th, whereas Chouhan’s right vested when he had selected trial by judge and jury before then). The Court of Appeal ordered a new trial.

The amendments came into force on September 19, 2019. This was the day Chouhan was to select a jury for his trial for first-degree murder, having previously selected a jury trial. Chouhan challenged the elimination of the peremptory challenges (repealing section 634 of the Criminal Code) and the shift from juror/lay triers to the judge trier of challenges for cause (section 640 of the Criminal Code) under sections 7 and 11(d) and (f) of the Canadian Charter of Rights and Freedoms. (Chouhan, trial decision, para. 5)

Section 7 of the Charter reads, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Sections 11(d) and (f) provide the following:

Any person charged with an offence has the right…(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal … [and] (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment….

The claims under sections 7 and 11(d) and (f) of the Charter are interrelated, all based on an accused’s right to be tried by an independent and impartial jury. However, section 11(d) applies to the actual jury that hears the case and section 11(f) applies to the jury panel from which the actual jury is selected.

Justice Watt, for the unanimous Court of Appeal, explains what section 11(d) guarantees — and what it doesn’t guarantee: it “guarantees the accused and community perceive the trial to be fair”, that “the trial satisfies its truth-seeking function” and “the accused basic procedural fairness”. There is a limitation: “the practical limits of the justice system”. Section 11(d) does not guarantee, however, either “a particular trial process” or “the process most advantageous to the accused”. (Chouhan, majority, paras. 48 and 49) Section 11(d) requires a “prevailing system of jury selection, consisting of the sum of its various components, that results in a fair trial” (Chouhan, CA, paras. 85). The point is to assess the whole process, not each individual element.

Section 11(f) may be somewhat different from section 11(d), but it also shares characteristics:

Section 11(f) of the Charter guarantees the benefit of a jury trial to an accused charged with an offence for which the maximum punishment is imprisonment for five years or a more severe punishment. A central component of this right is representativeness, which plays a larger role in the constitutional guarantee in s. 11(f) of the Charter. This is so because representativeness is a component of the right to the benefit of trial by jury. But the meaning assigned to representativeness under s. 11(f) is the same as that allotted to it under s. 11(d). Representativeness protects an accused’s right to an adequate selection process. The state discharges its obligation of representativeness when it provides a fair opportunity for a broad cross-section of society to participate in the jury process. (Chouhan, CA, para. 105)

Justice Watt’s comments reflect the distinction in the jurisprudence between the jury “roll” or panel, for which the state is responsible, and the “petit” or actual jury, which is subject to in-court procedures for determining impartiality. And as far as the jury roll is concerned, it is not the composition of the roll, but the process of obtaining the roll. The assumption (or presumption) is that if the pool of potential jury members resulted from an appropriate practice, random actual jury selection results in representativeness. Thus if the way the jury panel is initially determined is flawed, it cannot be assumed that the actual jury is representative. In R. v. Kokopenace, Moldaver J., for the majority, explained,

if the state deliberately excludes a particular subset of the population that is eligible for jury service, it will violate the accused’s right to a representative jury, regardless of the size of the group affected. It is self-evident that the state will not have made reasonable efforts if it deliberately excludes part of the population. Deliberate exclusion undermines the integrity of the justice system and cannot be tolerated. However, if it is a question of unintentional exclusion, it is the quality of the state’s efforts in compiling the jury roll that will determine whether the accused’s right to a representative jury has been respected. If the state makes reasonable efforts but part of the population is excluded because it declines to participate, the state will nonetheless have met its constitutional obligation. In contrast, if the state does not make reasonable efforts, the size of the population that has been inadvertently excluded will be relevant. A failure to make reasonable efforts in respect of a small segment of the population will not undermine the overall representativeness of the jury roll because there is no right to proportionate representation. When only a small segment of the population is affected, there will still have been a fair opportunity for participation by a broad cross-section of society. (Kokopenace, SCC, majority, para. 66)

There were no allegations in Chouhan about problems with the process of creating the jury roll. Yet it is worth noting that the Supreme Court’s comments in Kokopenace perhaps understate or avoid the boundary between intentional and unintentional efforts to etablish a representative poll.

Former Supreme Court Justice Frank Iacobucci stressed the problems with preparation of jury rolls in his 2013 report, First Nations Representation on Ontario Juries (“Iacobucci Report”). Iacobucci noted, “it is difficult to deal with one issue in a discrete manner without dealing with the influences of many other factors that impact on the specific issue in question” since “these matters not only lurk in the background but are also of great relevance” (Iacobucci Report, Preface, paras. 2 and 3).

The Iacobucci Report identified a number of disincentives for Indigenous people to respond to a jury summons, including cultural barriers; the part the criminal legal system has played in the lives of Indigenous peoples; the requirement to identify as a Canadian citizen (many First Nations members consider themselves to be citizens of their Nation and would answer “yes” to a question about that); the requirement of fluency in English or French may be a problem for some members of First Nations; often a trial is held a long distance from where the members of First Nations live. In short, there were many systemic barriers that affected the representativeness of the jury roll and thus must be presumed to affect the random representativeness of the actual jury (Iacobucci, paras. 209-244). A proper assessment of how Ontario addressed these disincentives and any current barriers would contribute to answering whether the process of ensuring Indigenous representation on the jury panel satisfies constitutional requirements.

(See here for an article on government response to the report five years later. Also see Omar Ha-Redeye on proposed amendments to the Ontario Juries Act on Slaw. One change has been to use OHIP numbers rather than addresses as a source for jury lists: Juries Act, s.4.1)

Of note: one of Iacobucci ‘s 17 recommendations, related to the petit jury rather than the jury poll, was that the Ontario Ministry of the Attorney General advise the federal attorney general to amend the peremptory challenge to allow judicial oversight or consider the possibility of abolishing it (Iacobucci Report, Recommendation 15).

As did McMahon J., Watt J.A. applied “the reasonable person test” in determining whether the amendments were constitutional, that is, whether they would infringe on Chouhan’s right to a fair, independent and impartial jury.

At trial, Chouhan’s counsel urged McMahon J. to apply a variant of the test, “a modified-subjective test” that would take into account the accused’s “age, racial and cultural background” (Chouhan, trial decision, para. 23). Justice McMahon rejected this submission and applied what has become the conventional (objective) reasonable person test: “whether a reasonable person, fully informed of the circumstances, would have a reasonable apprehension of bias” (that is, whether the jury would not be impartial) (Chouhan, trial decision, para. 28). In reaching his conclusion that the amendment is constitutional, McMahon J. took into account other elements of the jury selection process, which he considered protected Chouhan’s right to a fair, independent and impartial jury trial. The Court of Appeal also applied the reasonable person test to find the amendments constitutional.

Justice Watt identifies the “reasonable person” standard as follows:

[62] …[T]he question is whether a reasonable person, fully informed of the circumstances, would have a reasonable apprehension of bias … The informed person begins their analysis with a strong presumption of juror impartiality and a firm understanding of the numerous safeguards in the jury selection process designed to weed out potentially biased candidates and to ensure that selected jurors will judge the case impartially. The reasonable apprehension of bias has never hinged on the existence of a jury roll or, for that matter, a jury that proportionally represents the various groups in our society ….

[63] The test for impartiality includes a twofold objective component. First, the observer. The person considering the alleged bias must be reasonable. The observer must be informed of the relevant facts and view the matter realistically and practically. The reasonable observer does not depend on the views or conclusions of the accused …. (citations omitted)

The reasonable person standard was at one time termed “the reasonable man test” or reflecting its English roots, “the man on the Clapham omnibus test”. This refers to someone who leads an ordinary life, but has managed to acquire a great deal of information about how the legal system works, along with certain assumptions about how the jury operates. It is, of course, an artificial and abstract construct, a convenience allowing us to think that the legal system is not something apart from people as a whole, and therefore, not apart from the accused or other persons involved in a legal proceeding. During my lifetime in law, the reasonable man standard became the reasonable person standard in recognition of including women’s experience in the test. This wasn’t just a change of language, but an undermining of the assumptions underlying the concept of reasonable man.

The term “man” in the reasonable man standard was not a neutral or generic term, but a reflection of how law developed on the basis of male behaviour and expectations about how men would behave in certain situations. (See a discussion of this and why renaming the standard “reasonable person” wasn’t an effort to introduce subjectivity into the standard, but to have it respond to demands of equality in Victoria Nourse’s “After the Reasonable Man: Getting Over the Subjectivity/Objectivity Question” here.)

A particularly well-known example of shifting the label (and its content) is found in the understanding that what a reasonable man might do in a bar fight is not an appropriate standard to apply to a woman who kills her abusive partner (see, for example, Mayo Moran’s “A Reasonable Person: A Conceptual Biography in Comparative Perspective, which considers other contexts, as well, here). The reasonable man standard had to change to reflect reality. The point is that we may have reached the stage when the assumptions underlying the reasonable person standard and the information that person needs to possess have to be examined to determine if it reflects reality and the goal of equality. This time, a change in label, is unlikely to satisfy should the standard fail that test.

Justice Watt acknowledges the “fully informed person must appreciate the existence of racism in society”; however, “the application of this standard does not depend on the subjective views of the accused” (Chouhan, CA, para. 91). One must ask, therefore, who does decide about the impact of the racism? We do not have an answer to this; nor do we know the extent to which those applying the standard actually appreciate the impact of racism – or of what other disadvantages are prevalent in society are inferentially subsumed in the reasonable person standard. One might also ask whether the reasonable person standard – and the reasonable persons it refers to — can carry the burden of society’s systemic disadvantages?

As a preamble to assessing constitutionality of the amendments, Justice Watt reviews the various changes in the jury selection process over some 150 years, ending to today in the elimination of the peremptory challenge and the change in the trier of challenges for cause. This sets the stage for these (and other jury selection) changes to be the latest in a line of changes to the jury selection process. He acknowledges that the peremptory challenge has advantages, including allowing the direct involvement of the accused in the jury selection process, and may result in a more representative jury.

But there are also disadvantages: they are arbitrary, may be humiliating to the juror who is challenged and, based on stereotypes, may enhance discrimination on the jury. (Chouhan, CA, paras. 51 to 56). And these outweigh the advantages: “At bottom, peremptory challenges are not an effective tool for weeding out biased jurors. They are exercised arbitrarily, relying on guess work and uncertain mythologies about those most likely to react unfavourably to the challenger’s case.” (Chouhan, CA, para. 57) (Also see Chouhan, CA, paras. 77 to 83, where Watt J. outlines the characteristics of peremptory challenges.)

Justice Watt explains what section 11(d) guarantees — and what it doesn’t guarantee: it “guarantees the accused and community perceive the trial to be fair”, that “the trial satisfies its truth-seeking function” and “the accused basic procedural fairness”. There is a limitation: “the practical limits of the justice system”. Section 11(d) does not guarantee, however, either “a particular trial process” or “the process most advantageous to the accused”. (Chouhan, majority, paras. 48 and 49) Section 11(d) requires a “prevailing system of jury selection, consisting of the sum of its various components, that results in a fair trial” (Chouhan, majority, paras. 85). The point is to assess the whole process, not each individual element.

Justice Watt’s treatment of peremptory challenges illustrates how the same phenomenon may play a central role for some purposes, yet be insignificant when considering it in a different context. This is not an unusual situation: context matters and can be determinative. Here, Watt J.A. downplays them when assessing their abolition for constitutionality, but later treats them as fundamental to the impartiality of the jury when determining whether the amendment is prospective or retrospective.

Recognizing the reality of racial prejudice in the criminal legal system and in society as a whole, peremptory challenges are insufficient on their own to address the problem, they are “structurally incapable” of addressing real or perceived racial bias. The problem is with the jury as a whole, but peremptory challenges are incapable of dealing with the impartiality of an entire jury panel. Justice Watt maintains, jurors should have “an appreciation of the existence of racism in society”, but does not address how similar that might be to the accused’s assessment or how someone who does not experience racism themselves might “appreciate” its existence. Finally, representativeness is relevant to the jury roll, not the actual jury, and there is no constitutional right to representativeness of the actual jury; therefore, “the availability of peremptory challenges to achieve something to which an accused is not constitutionally entitled does not make the abolition of those challenges unconstitutional” (Chouhan, CA, para. 94).

Although juror bias is a possibility, there are “various in-court mechanisms” to safeguard against it. These include the challenges for cause and the judge’s authority to excuse a juror or have a juror stand aside on a numtber of grounds. There is now a new basis for the judge to take such action under section 633 of the Criminal Code, that of “maintaining public confidence in the administration of justice”. The only example available of this protection was that a judge had a potential juror stand aside after the juror had been found impartial after a challenge for cause. Why? Because Chouhan advised the judge that the prospective juror had made a rude gesture towards him, presumably a ground on which Chouhan would have used a peremptory challenge.

There is no violation of section 11(d) of the Charter. Nor is there a violation of section 11(f), even though representativeness plays a larger role in the guarantee of a jury trial in the circumstances, among others, facing Chouhan. Nevertheless, representativeness has the same meaning for both sections and it does not mean proportionate representativeness (Chouhan, CA, paras. 105-106). The “core” of the case is the impartiality of the jury “selected to try the case and the fairness of the trial”, interests protected by section 11(d): no contravention of section 11(d), therefore no contravention of section 11(f). There is also no contravention of section 7 (Chouhan established no link between the abolition of peremptory challenges and deprivation of life, liberty and security of person and section 7 adds nothing to the interests protected by section 11(d)).

The shift from juror triers of challenges for cause to the judge does not contravene section 7 or sections 11(d) or (f) because the process remains the same and the judge already had a role in jury selection.

Justice Watt then considers the temporal applicability of the amendments, concluding that the abolition of peremptory challenges is prospective as affecting the substantive right to an impartial jury, while the shift to the judge as trier of challenges for cause is retrospective as being procedural.

Legislation may apply prospectively, retroactively or retrospectively. If prospective, it applies only to future events, not affecting events that have occurred previously; if retroactive, it applies to past events, even though completed; if retrospective, it applies to future events, including those that are ongoing or may be part of an event that began previously. Chouhan raises only the prospective and retrospective impacts. Applied in this context, a retroactive amendment might be the elimination of the right to a jury trial that applies to accused who have already selected a jury trial, that is, retroactivity takes away rights people thought they had already exercised. “Prospective” means the amendment applies to future proceedings; here, if the amendments are prospective, the changes would not apply to Chouhan because the jury selection had not begun. Retrospective means legislation or amendments apply to ongoing proceedings, including those that began (but were not completed) before the legislation comes into force; here, the amendments would apply to jury selection.

Except that this is not the complete analysis. The real question is whether the amendments are procedural or substantive. Procedural changes apply to proceedings already begun, substantive changes do not change rights already vested (this is not true of retroactive legislation or amendments, which do take away vested rights). Yet procedural amendments may have some substantive impact and, if so, the amendments will be applied prospectively, that is, in the future. As the majority said in R. v. Dineley,

[10] There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively… However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases…. (citations omitted)

[11] Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately… Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions “procedural” or “substantive”, but in discerning whether they affect substantive rights.

Justice Watt discussed the principles governing whether legislation is applied prospectively or retrospectively, derived from the common law and from sections 43 and 44 of the Interpretation Act, more fully than did the trial judge. He acknowledged that neither of the operative terms is “entirely satisfactory or unfailingly accurate” (Chouhan, CA, para. 183). He sets out the principles governing the applicability of the effect are as follows:

[185] As a matter of first principle, the common law presumes legislation does not apply retrospectively to events or conduct that took place before the legislation comes into force…

[186] The presumption against retrospectivity is a tool for determining the intended temporal reach of legislation. Absent evidence that Parliament considered the potentially unfair effects, legislation does not affect prior events or conduct in pending litigation. The purpose of the presumption is to prevent a change in the law from looking to the past and attaching new prejudicial consequences to a completed transaction. The presumption bespeaks fairness and engages the rule of law. Its effect is that new legislation operates from the date of its enactment and applies to what takes place going forward …

[187] However, like many other presumptions, this presumption is not absolute, unyielding, or preclusive. It may be rebutted by Parliament, expressly or by necessary implication. Or it may be rebutted because the nature or character of the legislation itself gives rise to a countervailing presumption that procedural legislation applies retrospectively – immediately and generally to both pending and future acts and events.

[188] The presumption of immediate application of procedural legislation finds support in ss. 44(c) and (d) of the Interpretation Act. It has been characterized in several different ways. No one has a vested right in procedure. The effect of a procedural change is considered a benefit for all. Procedural provisions are an exception to the presumption against retrospectivity. Procedural provisions are intended to have immediate effect … But this presumption may also yield, as it does, for example, where Parliament’s contrary intent appears ….

[189] To engage the presumption that a procedural amendment applies immediately and generally to both pending and future acts or conduct, the legislation must be purely procedural. This qualification, which finds statutory support in s. 43(c) of the Interpretation Act, means that the amendment must govern only how rights are enforced or asserted, not affect substantive rights ….

[190] To determine whether legislation is procedural and, more narrowly, purely procedural, we do not look simply at the form in which it is enacted. We must also have regard to its function and effect … The important thing is not the label we attach to the provision, but its effect on existing rights and obligations ….

[191] This requires a functional inquiry into the circumstances of each case. The inquiry focuses on whether the application of the amending provisions affects any substantive rights.

Applying the principles, Watt J.A. held the abolition of the peremptory challenge is prospective, applying only to future proceedings and thus not to Chouhan’s trial, while the change to the judge as trier of challenges for cause is retrospective, and therefore applicable to Chouhan’s trial (Chouhan, CA, para. 192).

Justice Watt noted that amendments addressing jury selection seem “inherently procedural” and therefore, pursuant to sections 44(c) and (d) of the Interpretation Act, would apply to Chouhan’s trial. However, this would be the case if the amendment were “purely” or “exclusively” procedural. That is, if it did not have an impact on substantive rights, including removing them.

After deemphaissizing the importance of peremptory challenges in deciding their constitutionality (they are merely one of several protections), now Watt J.A. emphasizes how important peremptory challenges have been in the selection of the jury. The Criminal Code gave persons accused of crimes the right to be tried by a jury, a substantive right. Peremptory challenges were one of the ways the accused could participate in the jury selection process. The issue is whether the abolition of peremptory challenges interfered with the right to trial by jury. Justice Watt concluded, “Elimination of peremptory challenges will almost inevitably have a significant impact on the composition of the jury eventually selected to determine the accused’s fate. In most cases, the absence of any peremptory challenges will result in a differently constituted jury.” (Chouhan, CA, para. 208) This will not make the jury selection process unconstitutional, but it does have a significant impact:

[A]n amendment which significantly diminishes an accused’s ability to affect the ultimate composition of the jury chosen to try the accused negatively impacts on the accused’s statutory right to trial by jury as it existed prior to the amendment. For the purposes of determining the temporal scope of the legislation, this loss of one aspect of the accused’s right to participate in the selection of the jury affects in a negative way the accused’s right to trial by jury as it existed before the amendment. Therefore, the amendment is presumptively prospective. Nothing in the language of the amendment or in the material placed before this court rebuts that presumption. (Chouhan, CA, para. 210)

The conclusion that the abolition of peremptory challenges to Chouhan reflects the vesting of his right to a jury trial before September 19, 2019 (the accused must have been charged with an offence within the exclusive jurisdiction of the Superior Court, have been directly indicted or elected [formally or informally] trial by judge and jury, as is the case here.) (Chouhan, CA, para. 212)

The substitution of the judge for jurors as triers of the challenges for cause retains the same presumption of impartiality, the onus on the party challenging to show cause, the standard of proof and consequence as when jurors or lay persons made the determination. It does not impair the right to trial by judge and jury (Chouhan, CA, para. 215). Therefore, this change is purely procedural and applies to the Chouhan trial.

However carefully we structure the jury system, and however much we respect our longstanding legal system and trial by judge or by judge and jury, we are reminded over and over again of its flaws. The Stanley case is certainly not alone in eliciting responses to jury’s acquittal that are informed by where people are situated in society and by their experiences outside the walls of the courtroom. While the outcome was heavily criticised and led to the abolition of the peremptory challenge as a tool in jury selection, not everyone agreed (see, for example, Charles Lugosi, “No criticism needed: Canada’s jury system works”).

We may be committed to “ensuring” that racism does not enter the courtroom, but we do not seem to have very successful ways of achieving that objective (see, for instance, Rakhi Ruparelia, “Who are you calling racist: What would you say if someone asked you if you were racist?”). Ruparelia, for one, argues that the questioning of jurors by Black accused “concerns itself not with prejudices (i.e. attitudes) but with partiality (i.e. behaviour), is predicated on wishful thinking that we can compartmentalize our racism (even when it is subconscious) and set it aside in our decision-making if instructed to do so by a judge”.

We may believe that judges are able to dispossess themselves of biases they have inherited from a sexist society, but we have seen too many examples of judges using stereotypes in sexual assault cases, although sometimes these may be “fixed” on appeal (see my Slaw post on the issue).

There are many take-off points in the Chouhan decisions, some not specific to the facts of the case itself: how far can (and should) the individual accused’s experience influence the make-up of the jury, rather than understandings about systemic discrimination generally; what is the impact for the victim; has the reasonable person standard outlived its usefulness; to what extent can any legal proceeding transcend the years of societal development lurking behind it; and, specifically, has the federal government learned that it should specify the temporal application of its legislation?