C-75 UP TO THE CHALLENGE
Power to exclude jurors arbitrarily needs to end now, writes Kent Roach.
As we approach the 50th anniversary of the assassination of Martin Luther King, it behooves us to recall this statement from Dr. King: “You don’t have to see the full staircase, just take the first step.”
When it comes to equality and juries, the first and necessary step is the abolition of peremptory challenges. These allow both Crown prosecutors and defence lawyers to exclude people from juries simply because they do not like the way they look.
A number of defence lawyers have criticized the proposed abolition of peremptory challenges contained in Bill C-75, which the federal government introduced last week. These lawyers claim abolishing such challenges will make juries less diverse. They say they use peremptory challenges (often in large cities) to make juries more representative. Yet this ignores the fact that peremptory challenges were used by the defence to keep five visibly Indigenous people off the jury in the trial of a non-Indigenous Saskatchewan farmer, Gerald Stanley, for the killing of an Indigenous man, Colten Boushie.
It was not the first time this has happened: The defence kept all Indigenous people off the jury in a murder trial in The Pas, Man., in which the victim was Helen Betty Osborne, a 19-year-old Cree woman who had moved there to attend high school.
It also ignores that Bill C-75 would amend the Criminal Code to allow judges to stand aside potential jurors not only to respond to hardship but, when necessary, to promote confidence in the administration of justice — something that was shaken by the all-white jury’s controversial acquittal in the Stanley case and by the underrepresentation of minorities on juries. Much will depend on how this judicial discretion is exercised.
Abolishing peremptory challenges by Crown or defence is no knee-jerk quick fix, as some claim. In 1991, it was recommended by the Manitoba Aboriginal Justice Inquiry chaired by Justices Alvin Hamilton and Murray Sinclair. Retired Supreme Court Justice Frank Iacobucci concluded in an extensive 2013 report that no amount of effort to increase the woeful underrepresentation of Indigenous people on our juries would work without eliminating the discriminatory use of peremptory challenges.
Some defence lawyers point to the United States for solutions. U.S. courts have required, first the prosecutor and later the defence, to provide some “non-discriminatory” reason to justify the use of peremptory challenges that look discriminatory.
Canadian lawyers could have brought similar challenges since 1985 when charter equality came into effect, but they have failed to do so. Even if made, such challenges would add time and litigation to our burdened courts. Moreover, they would not likely be effective given that most conclude that American lawyers have been clever enough to find some apparently neutral reason to keep minorities off juries. Canadian lawyers would be no less clever.
But there are many steps still to be taken to climb the staircase to full equality on our juries. Parliament should push back on a 2015 Supreme Court of Canada decision that held that it was fine to have a jury trial of an Indigenous accused in Kenora in which only eight of 175 prospective jurors were Indigenous.
In a prophetic dissent in light of the Stanley verdict, Justice Thomas Cromwell (Chief Justice Beverley McLachlin concurring) argued that the majority’s “reasonable efforts” test was not sufficient given the significant under-representation of Indigenous people on the jury roll, and the result “casts a long shadow over the appearance that justice has been done.”
Related to the above, Parliament should modernize the Criminal Code requirement, first enacted in 1892, that the composition of jury panels can only be challenged if the provinces engaged in wilful misconduct. This will require work with the provinces, but there should be federal leadership.
Here are some other things we should do:
We need to increase the pay of jurors for their difficult public service.
We should consider allowing permanent residents and volunteers from Indigenous communities to serve as jurors.
We should consider holding jury trials not just in county seats like Battleford, but in local communities in the North.
There are many high steps in the staircase towards equality, but as Dr. King reminded us, you must take the first step. That first step is abolishing peremptory challenges.
Kent Roach has taught criminal law at the University of Toronto since 1989 and has litigated cases involving jury selection in the Supreme Court of Canada and the Ontario Court of Appeal.