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

This paper explains how the Supreme Court of Canada’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 paper analyzes Chouhan through the lens of baselines. First, the paper uses Chouhan to describe what baselines are — that is, by examining both the judgment and hearing, the paper reveals how implicit political positions significantly drove the legal analysis in the case. And, given the political character of that baseline reasoning, the paper briefly critiques the Court in two ways: (1) it critiques Moldaver and Brown JJ. 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 paper uses Chouhan to describe what baselines do — that is, by examining Moldaver and Brown JJ.’s opinion in Chouhan, the paper demonstrates how judges’ baseline commitments can motivate their reasoning and lead them to make analytical errors. In their opinion, Moldaver and Brown JJ. 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, Moldaver and Brown JJ. strawman both jury diversity and peremptory challenges to bolster their position. Specifically, when jurists argue for more jury diversity, Moldaver and Brown JJ. simply respond that no jury can be perfectly diverse, a fallacious response because doing something for jury diversity need not require doing everything. The paper 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.

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