DO WE REALLY WANT JUDGES LOOKING OVER THEIR SHOULDER AFTER EVERY VERDICT IN CASE SOMEONE LETS FLY WITH A FEW CHOICE WORDS — LIKE THE PRIME MINISTER? CHRISTIE BLATCHFORD’S VERDICT ON THE JURY.
Despite recent pontificating, it’s a system that works
It’s heartening that some individual lawyers, and those speaking for the Saskatchewan Trial Lawyers Association and Criminal Lawyers Association, have pushed back against recent comments by Prime Minister Justin Trudeau, Justice Minister Jody Wilson-Raybould and federal NDP Leader Jagmeet Singh.
All three politicians suggested — respectively in a scrum and on Twitter — that the jury verdict in the Colten Boushie case was wrong and that the Canadian justice system had failed the Boushie family and yet again, more broadly, Indigenous Canadians.
These comments, especially from the justice minister, were outrageous, given the separation that is meant to exist between the legislative and judicial branches and which is the very foundation of judicial independence.
When government signals its unhappiness with particular verdicts, as this one did unmistakably, judges are but a step or two away from being at the mercy of politicians. Surely no one wants judges looking over their shoulders, fretful about pleasing or displeasing their political partners.
Such remarks can also have the corrosive effect, as criminal lawyer Sean Robichaud said about them, “upon the confidence that is necessary for our democratic institutions to survive, let alone thrive.”
As a measure of the lawyers’ collective success in pointing out this serious departure from the Canadian convention of politicians not commenting upon particular court decisions, when the verdict in the Tina Fontaine case came less than two weeks later, only the NDP leader was at it again on social media. The PM and Wilson-Raybould were silent, and thus far, they haven’t met with the Fontaine family as they did with Boushie’s, a meeting correctly described by journalist Evan Solomon as “a very specific act of solidarity.”
What few seem to have defended (I say “seem” because I was in South Korea when all this unfolded and while I’ve caught up on my reading, I may have missed the odd remark on radio and TV) are the verdicts in the two cases, the two juries and the jury system itself.
Instead, much of the commentary was about the lack of Indigenous representation on the Boushie jury, where defence lawyer Scott Spencer used some of his peremptory challenges (both prosecutors and defence got 14 such challenges, meaning they could each “challenge” 14 prospective jurors without explanation as to why, in other words, simply because they didn’t like the cut of their jibs) to disqualify a handful of Indigenous-appearing candidates.
Wilson-Raybould has promised the government will look into reforming that aspect of the system; she ought to be careful, because defence lawyers representing black defendants use those challenges as Spencer is said to have done for his client Gerald Stanley.
In truth, jury selection in this country is a guessing game. Even where jurors are “challenged for cause” — it means asked specific questions about their biases or the like — it’s hardly infallible.
As for the notion that you can get justice only when the correct number of jurors looking back at you are the precise shade of your own skin colour — that only those of your race or culture are your true “peers” — that’s nonsense.
Besides, as Supreme Court of Canada Justice Michael Moldaver wrote in a 2015 decision on this very subject, how on earth would that work?
Before long, he said, “the jury selection process would become a public inquiry into the historical and cultural wrongs and damaged relationships between particular societal groups and our criminal justice system and the failings of the state to take adequate steps to address them.”
The result would be … chaos, with defence lawyers combing jury rolls at the start of every trial, arguing that the roll is unrepresentative “if any group’s rate of inclusion does not approximate its percentage of the broader population — assuming we could somehow solve the impenetrable problem of what groups we are talking about.”
This is not to say — and Moldaver took pains to point this out — that government shouldn’t try to repair Indigenous, or any other, estrangement from the justice system, only that messing with the jury trial isn’t the right vehicle.
And the strange thing is, for all its failings, the jury system works awfully well most of the time. The blather judges repeat ad nauseam — about the collective wisdom of 12 people — is mostly true.
Most of the time, against all odds and reason, and sometimes with only a fraction of the available evidence before them (the rest kicked out so as not to unduly prejudice the accused person), juries manage to muddle their way to the right verdict.
That verdict sometimes isn’t the one the victim, or the victim’s family, wants. (Or, for that matter, what the accused person wants.) But justice isn’t about healing a victim or bringing closure to a family or honouring a murdered person. It’s a much colder thing than that.
It’s about proof beyond a reasonable doubt (the judge in the Boushie/Stanley case said those last four words 38 times in his charge to the jury). That’s a very high standard indeed, as it should be, as you would want were it you shakily getting to your feet in a prisoner’s box somewhere to hear the jury foreman pronounce the verdict.