National Post (National Edition)
‘Representative’ juries in Canada get fresh test
Hamilton trial has echoes of Boushie case
It’s been billed as a lookalike to the trial of Gerald Stanley, but what it has best illustrated thus far is the complexity of figuring out race in a mixed-race modern world.
Stanley, of course, is the Saskatchewan farmer who earlier this year was acquitted of second-degree murder in the 2016 death of Colten Boushie, a young First Nations man.
It was a decision that prompted outrage among Indigenous people and led the federal government to propose sweeping changes to the jury selection system and criminal law in a bill that is still working its way through Parliament.
Here, it is Peter Khill who is charged with the same crime in the shooting death of Jon Styres, a 29-year-old Indigenous man, in February of 2016 in the quasi-rural area of Binbrook outside Hamilton.
The 28-year-old Khill formally pleaded not guilty Monday, as his trial started with jury selection before Ontario Superior Court Justice Stephen Glithero.
The judge told the assembled pool of about 250 people that the alleged circumstances were that Styres was “apparently in or near a truck parked” on Khill’s property about 3 a.m. that Feb. 4, that a noise drew attention outside, and that “in order to stop what was going on,” Khill fired a shotgun and caused Styres’ death.
Jury selection in the Stanley case was a flashpoint for Indigenous anger, as native people appeared underrepresented in the jury pool. Some native people also believed Stanley’s lawyer used his peremptory challenges — these allow both defence and the Crown to “challenge” a certain number of jurors without giving a reason — to weed out Indigenous-looking potential jurors.
That later led to a general allegation that this was how many defence lawyers used the challenges, and one of the government’s proposed changes would do away with them entirely.
In truth, picking jurors is akin to picking horses: a little knowledge may help, but since a little is all that lawyers in Canada ever get, it remains largely a mug’s game.
But in the Khill trial, unlike the Stanley trial, the lawyers are also “challenging for cause,” a process that allows for a constrained direct question, usually about pretrial publicity or bias.
In this case, all prospective jurors are asked if their ability to judge the evidence fairly would be compromised “by the fact that the deceased victim is an Indigenous person and the person charged with the crime is a white person?”
Of about 60 potential jurors who were asked this question Monday, only three replied in the affirmative.
One man said, “I would struggle with being impartial” and gave no further explanation. A woman said, “I don’t think I can be impartial. I live in the same community and have had my home broken into four times.” And another man said flatly, “I believe the system is seriously flawed.” He gave no additional details.
All three were promptly excused from service by the judge.
But the interesting thing is how difficult it is to tell people’s racial makeup strictly from their appearance in a genuinely heterogeneous society.
Khill, for instance, while repeatedly described as a white person to the potential jurors, appears brownskinned.
And Indigenous people don’t all look the same, or what came to be called by the press at the Stanley trial “visibly Indigenous.” An observer at the jury pool selection at the Khill trial would have been hard-pressed to identify anyone as Indigenous, let alone as “visibly Indigenous.”
And the only potential jurors the lawyers used their “peremptory challenges” to exclude were all, well, visibly white.
Defence lawyer Jeff Manishen, for instance, used his peremptories to challenge five white women and three white men; Crown prosecutor Steve O’brien used only one of his, to veto a white man.
At one point, it was as though the old Seinfeld skit, where Elaine goes out with a man she believes is black, and he dates her because he thinks she is Spanish, had come to life: Elaine was trying to pick “black” activities and restaurants; the man was pushing “Spanish” events and places.
In the end, realizing they were in fact both white, they went shopping at the Gap.
The trial now has 12 jurors and one alternate, and prosecutor O’brien is expected to give his opening address Tuesday. The trial, the judge said, is likely to last three to four weeks.
IN TRUTH, PICKING JURORS IS AKIN TO PICKING HORSES.