Lit­tle done on jury re­form de­spite long-known gaps

Cor­rec­tive pro­pos­als abun­dant but fixes com­pli­cated, elu­sive

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The ac­quit­tal in the Colten Boushie killing that has an­gered many Indige­nous peo­ple and sparked crit­i­cism from the fed­eral 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. Crit­ics have noted no Indige­nous peo­ple were se­lected out of the 200 prospec­tive jurors who showed up to sit on the panel that later ac­quit­ted Ger­ald Stan­ley of shoot­ing the 22-yearold Cree man as he sat in an 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 judge and now Se­na­tor Mur­ray Sin­clair rec­om­mended changes af­ter the mur­der of He­len Betty Os­borne, an Indige­nous woman, in Man­i­toba in 1971. One of four ac­cused in that case 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. We do not be­lieve that this should be al­lowed to con­tinue.”

For­mer Supreme Court of Canada jus­tice Frank Ia­cobucci, in re­sponse to chal­lenges that threat­ened to grind the crim­i­nal jus­tice sys­tem to a halt in north­ern On­tario, made sim­i­lar ob­ser­va­tions in Fe­bru­ary 2013 in re­la­tion to the sys­temic dearth of Indige­nous jurors. “There is not only the prob­lem of a lack of rep­re­sen­ta­tion of First Na­tions peo­ples on ju­ries that is of se­ri­ous pro­por­tions, but it is also re­gret­tably the fact that the jus­tice sys­tem gen­er­ally as ap­plied to First Na­tions peo­ples, par­tic­u­larly in the North, is quite frankly in a cri­sis,” Ia­cobucci wrote in his re­port.

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.

“A look at other coun­tries shows that there are com­pro­mises along those lines,” An­tweiler said.

“Sev­eral Euro­pean coun­tries — Ger­many among them — use hy­brid sys­tems that em­ploy both pro­fes­sional and lay judges,” he con­tin­ued.

The re­al­ity, how­ever, is that opt­ing for a jury trial in se­ri­ous cases — a sys­tem dat­ing back cen­turies — is a con­sti­tu­tion­ally en­shrined right in Canada.

But find­ing enough peo­ple in gen­eral to serve on ju­ries, de­spite a le­gal obli­ga­tion to do so, is a lon­grec­og­nized prob­lem — es­pe­cially when it comes to Indige­nous and other mi­nor­ity groups.

With lit­tle or no pay of­fered to pan­el­lists, many peo­ple sim­ply can’t af­ford what can be a dis­rup- tive and even trau­matic ex­pe­ri­ence.

Ad­di­tion­ally, crim­i­nal law can be hugely com­plex, with judges’ in­struc­tions to jurors on ar­cane le­gal points last­ing hours or even days.

That raises ques­tions about how much an av­er­age ju­ror re­ally un­der­stands head­ing into de­lib­er­a­tions, which in Canada — un­like the U.S. — are es­sen­tially top se­cret.

The re­sult of that legally im­posed se­crecy is a dearth of re­search or data about why jurors ar­rive at a ver­dict — in­for­ma­tion that could help im­prove the sys­tem. Govern­ments need to start col­lect­ing data on jurors — who was called up and who was ac­cepted or re­jected, and so­cio-de­mo­graphic in­for­ma­tion in­clud­ing gen­der, age, oc­cu­pa­tion, and educa­tion level, An­tweiler said.

“We need to have solid data to un­der­stand which bi­ases are present in ju­ror se­lec­tion, and how trial out­comes dif­fer when ju­ries are in­volved,” he said.

Steven Pen­ney, a law pro­fes­sor at the Univer­sity of Al­berta, said more ef­fort is needed to en­sure pools from which jurors are se­lected are more rep­re­sen­ta­tive — par­tic­u­larly in cases in­volv­ing Indige­nous peo­ple.

“It’s hard to be­lieve that ei­ther Cana­di­ans as a whole or Indige­nous com­mu­ni­ties in par­tic­u­lar can have faith in a sys­tem that seems to al­low for the sys­tem­atic and un­jus­ti­fied ex­clu­sion of Indige­nous peo­ple or peo­ple who ap­pear to be Indige­nous from ju­ries,” Pen­ney said.

Both Pen­ney and Kent Roach, a crim­i­nal law pro­fes­sor at the Univer­sity of Toronto, said a key prob­lem with cur­rent jury rules — and one that could be fixed with a Crim­i­nal Code amend­ment — is what’s known as the “peremp­tory chal­lenge.”

It 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. “Not that it’s a magic cure, but it’s go­ing to re­spond to the dis­crim­i­na­tory use of peremp­to­ries.”

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.

While the law al­lows for un­lim­ited chal­lenges for cause, the num­ber of peremp­to­ries is lim­ited, de­pend­ing on the sever­ity of the charge.

For ex­am­ple, Stan­ley, who faced a sec­ond-de­gree mur­der charge, had a to­tal of 14 peremp­to­ries — as did the Crown.

Had he faced a first-de­gree mur­der charge, the num­ber of such chal­lenges would have in­creased to 20.

In a case such as this, where there is a real dan­ger jurors might be blinded by racism or stereo­typ­ing, it’s baf­fling why the Crown didn’t is­sue chal­lenges for cause over po­ten­tial bias, Roach said.

“If you imag­ine a sit­u­a­tion where ei­ther the Crown or the ac­cused wants to keep mi­nori­ties off the jury, if you have 14 peremp­tory chal­lenges and 200 prospec­tive jurors, that’s prob­a­bly go­ing to ac­com­plish the task.”

We should do what Bri­tain has done and get rid of peremp­to­ries. Not that it’s a magic cure, but it’s go­ing to re­spond to the dis­crim­i­na­tory use.

JUSTIN TANG/THE CANA­DIAN PRESS

Colten Boushie’s mother Deb­bie Bap­tiste and other fam­ily mem­bers and sup­port­ers were in Ot­tawa on Tues­day to meet with politi­cians and call for changes to the jus­tice sys­tem.

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