“Silly Anecdotes”: From White Baselines to White Juries in R. v. Chouhan

This article explains how the Supreme Court’s decision in R. v. Chouhan concerning jury impartiality is an illustrative example of “baselines”, or how implicit political positions held by judges govern their legal analysis. It begins with a summary of the background in Chouhan: the issue before the Court (the abolition of peremptory challenges) and how the judgment resolved that issue by constitutionally vindicating the impartiality of systemically white juries (an unfortunate continuation of the Court’s widely critiqued judgment in Kokopenace). Then, the article analyzes Chouhan through the lens of baselines. First, the article uses Chouhan to describe what baselines are—that is, by examining both the judgment and hearing, the article reveals how implicit political positions significantly drove the legal analysis in the case. And, given the political character of that baseline reasoning, the article briefly critiques the Court in two ways: (1) it critiques Justices Moldaver and Brown for relying on weak baseline positions, like juries already being diverse (they are not) or Canada not having intractable racial inequality (it does); and (2) it critiques the Court’s recent notice limiting intervention submissions to “legal” issues insofar as that limitation can, perversely, prevent interveners from challenging those weak baselines from which the Court may conduct its analysis. Second, the article uses Chouhan to describe what baselines do—that is, by examining Justices Moldaver and Brown’s opinion in Chouhan, the article demonstrates how judges’ baseline commitments can motivate their reasoning and lead them to make analytical errors. In their opinion, Justices Moldaver and Brown purport to defer to Parliament while nakedly legislating from the bench—indeed, they rule that their policy preference of ignoring race in jury selection should, “as a matter of law”, take precedence over Parliament’s preference for race-conscious processes. Further, Justices Moldaver and Brown strawman both jury diversity and peremptory challenges to bolster their position. Specifically, when jurists argue for more jury diversity, Justices Moldaver and Brown simply respond that no jury can be perfectly diverse, a fallacious response because doing something for jury diversity need not require doing everything. The article concludes by noting how the continuing relevance of baselines in constitutional interpretation demands ongoing and critical reflection on how Canadian jurisprudence is routinely produced from a baseline of “silly anecdotes”: white subjectivity masquerading as universal objectivity, which institutionalizes white supremacy in law.