Jury selection casts doubts on justice system

Something is not just in the Canadian justice system. And I think it has to do with jury selection.

As everyone probably knows by now, an all-white jury acquitted Gerald Stanley of murdering Colten Boushie, a 22-year-old Cree man.

Some facts are uncontested: Boushie had been drinking with four buddies. They were driving around in an SUV, and drove onto Stanley’s farm. Stanley came out carrying a loaded handgun. During an argument, Stanley shot Colten Boushie in the back of the head.

Other matters are not clear. Such as whether the five genuinely wanted help for a leaky tire. Or if they intended to steal and/or damage property.

Stanley claims the fatal shot resulted from a “hang fire” — a delay between pulling the trigger and the bullet leaving the gun. Gun experts disputed his claim.

A CBC investigation suggests that the RCMP botched its gathering of evidence. They left the car in which Boushie was killed uncovered, with the door open. A rainstorm washed away blood splatters in the car before forensics experts could examine them. No photos were taken of blood spatters on the roof of the car. The gun and Stanley’s hand both showed significant gunpowder residue. But Boushie’s body didn’t, suggesting that the bullet that killed him was not shot at close range.

Emotions ran high. Saskatchewan farmers rallied behind Stanley, claiming that they had a right to defend their property from indigenous invasions. Indigenous people called the jury’s verdict proof of a historic bias against indigenous peoples -- citing many trials in which whites accused of murdering indigenous victims were acquitted.

Meanwhile, indigenous people have a far higher conviction rate than white people. About 23 per cent of inmates in federal prisons are indigenous, although they make up barely five per cent of Canada’s population.

The Saskatchewan government has since decided not to appeal the acquittal. The Crown prosecutor said that the judge, the prosecutor and the defence lawyer had followed the law scrupulously.

But it’s precisely the law that’s the problem. “They keep asking us to have faith in the justice system,” said Boushie’s uncle Alvin Baptiste, “but indigenous people have no faith in the justice system at all.”

The root of contention is jury selection.

Theoretically, juries are chosen at random from the total population of Canadian citizens.

Some exclusions apply. But beyond those, lawyers have “peremptory challenges.” Either side can disqualify up to 14 potential jurors — in this case — without giving any reasons.

It might be because the person wears a business suit. Or has a beard. Or, perhaps, looks indigenous.

In the U.S., judges can demand reasons for peremptory challenges. In Canada, they can’t.

Although it’s illegal to challenge for gender or racial reasons, the Globe and Mail reported that Stanley’s defence rejected every potential juror who looked indigenous.

“Peremptory challenges are really asking lawyers to rely on their stereotypes,” charged Jonathan Rudin of Aboriginal Legal Services in Toronto. “You never see people being excluded from a jury because they’re white.”

I have no inside knowledge of the system. Indeed, I have only once been called for jury duty. A native man — the term we used in those days — was accused of raping a woman who had accompanied him to his fishing boat and had passed out drinking.

I wasn’t asked a single question about my prejudices (which I did have at the time, I admit), or any prior knowledge of the case. The defence lawyer eliminated me after a single glance.

It seems to me that potential jurors should be dismissed only if there is reasonable cause to believe they cannot produce an unbiased, unprejudiced verdict. Juries must render their verdict “beyond a reasonable doubt”; surely “reasonable” should also apply to jury selection.

Over the years, a variety of studies have recommended abolishing peremptory challenges, or at least amending them. In 1991, the Manitoba Aboriginal Justice Inquiry called Manitoba’s jury system a “glaring example of systemic discrimination” and called for peremptory challenges to be eliminated.

Similarly, in 2013, former Supreme Court Justice Frank Iacobucci issued a “scathing report” about the under-representation of First Nations people on juries. He recommended that Ontario amend its Criminal Code to prevent peremptory challenges against First Nations people called for jury duty.

Iacobucci argued the under-representation of indigenous jurors has affected perceptions about the legitimacy of the whole judicial process.

It would take very little to amend jury selection, and to make the Canadian justice system look a lot more just.

Jim Taylor is an Okanagan Centre author and freelance journalist. He can be reached at rewrite@shaw.ca. This column appears every Satuday in Okanagan Weekend.