Jury reform remains elusive
Juries must be ‘representative’ of community
The acquittal in the Colten Boushie killing that has angered many Indigenous people and sparked criticism from the justice minister has cast a harsh spotlight on Canada’s criminal jury system whose shortcomings, particularly in cases involving minorities, have been well documented over the decades.
No law mandates the makeup of juries as long as, the Supreme Court has found, they are “representative” of the community — a fuzzy concept at best.
In Boushie’s case, critics have noted no Indigenous people were selected out of the 200 prospective jurors who showed up to sit on the panel that acquitted Saskatchewan farmer Gerald Stanley of shooting the 22-year-old Cree man as he sat in a SUV on Stanley’s property.
The case is far from the first in which an all-white jury has sat in judgment of a white person accused of a crime against black or Indigenous victims.
In 1991, former Manitoba justice and now senator Murray Sinclair recommended changes after the murder of Helen Betty Osborne, an Indigenous woman, in Manitoba in 1971 in which one of four accused was ultimately convicted years later.
“The lack of aboriginal jurors gives the impression that the trial, from the aboriginal person’s perspective, was not a fair one,” Sinclair noted. “And in a sense, it was not fair — the jury simply was not representative of the local community.”
Corrective proposals have been abundant, but fixes are elusive.
Werner Antweiler, a professor with the Sauder School of Business at the University of British Columbia who has written on juries, said in a blog post that one potential route is to abolish juries completely, leaving judging to judges. Another possibility, he said, is a “hybrid” system in which ordinary citizens in judicial proceedings advise judges.
The reality, however, is that opting for a jury trial in serious cases is a constitutionally enshrined right in Canada.
Kent Roach, a criminology law professor at the University of Toronto, said a key problem with current jury rules is what’s known as the “peremptory challenge.” The challenge allows either prosecution or defence to nix a juror without giving any reason — a process that could see potential jurors excluded because they are Indigenous or Black or in sexual assault cases, because they are women.
“We should do what Britain has done and get rid of peremptories,” Roach said.
Such challenges are distinct from “challenges for cause” whereby defence or prosecution have been allowed since a Supreme Court ruling 20 years ago to question a prospective juror on sensitive issues such as racism and bias. The Crown in the Boushie case, however, did not ask such a question.
Debbie Baptiste holds up a photo of her son Colten Boushie, as the family spoke to reporters in the House of Commons, in Ottawa on Tuesday.