Jury re­form re­mains elu­sive

Metro Canada (Vancouver) - - Canada/world -

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.

JUSTIN TANG THE CANA­DIAN PRESS

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.

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