Identification of cases where right to peremptory challenges has vested
Paragraph 212 of the decision of the Ontario Court of Appeal in R. v. Chouhan 2020 ONCA 40 sets out the criteria for determining when an accused person has a vested right to be tried under the provisions of the former legislation.
 To be clear, not all accused charged with an offence before September 19, 2019 have a vested right to a trial by judge and jury under the former legislation. For the right to have vested, the accused must have, before September 19, 2019:(i) been charged with an offence within the exclusive jurisdiction of the Superior Court; (ii) been directly indicted; or (iii)elected for a trial in Superior Court by judge and jury. I include in the third category accused who have formally entered an election as well as those who have made a clear, but informal election, as evinced by the transcript of proceedings or endorsements on the information. Otherwise, the accused’s right did not vest, the amendment applies, and no party has a right to peremptory challenges at the trial.
Counsel are expected to notify opposing counsel and the court in advance of the trial date if they are taking the position at trial that the right to peremptory challenges has vested. Counsel should provide the basis for the assertion that the right has vested.
Counsel are expected to identify these cases at the judicial pretrial. Where the judicial pretrial has already been held, counsel should advise the court on the next court date that is not a trial date. For matters currently set for trial, where no intervening court date is scheduled, counsel are expected to notify opposing counsel and the court in advance and in writing or by scheduling a judicial pretrial. This is not an issue that should be raised for the first time on the trial date.
Chief Justice G. Morawetz
January 30, 2020