WAKE-UP CALL: PACHOLIK,

Inquests can pick names from two boxes: one for specific racial group, one for others

Jury selection in Saskatchewan courtrooms is more akin to watching a bingo game than an action-packed crime show.

The clerk shuffles a deck of numbered index cards, tosses them into a wooden box, and gives it a few shakes. The number on each card has been assigned to a prospective juror, one of dozens or sometimes hundreds of residents summonsed for jury duty after a computer program picks them at random from health cards.

Typically, the clerk pulls 20 cards in the first round, and people corresponding to those numbers line up at the front of the courtroom. Each one, in turn, is told: “Juror look at the accused, accused look at the juror.”

Based on that look, the defence lawyer and Crown prosecutor each, in turn, say content or not to that potential juror. Those are the peremptory challenges that everyone is now talking about after the Gerald Stanley trial — the ability to simply say yea or nay for no apparent reason. Maybe it’s the glint in an eye, the cowboy hat or body piercings, gender, skin colour, the criminal record you do or don’t have (lawyers do some homework) — who knows why many are called and few chosen?

Depending on the charge, each side gets anywhere from four (lesser offences) to 20 (firstdegree murder) peremptory challenges.

Colten Boushie’s family argues the defence weeded out any visibly Indigenous person from standing in judgment of Stanley by using such challenges.

Now let’s imagine there were two boxes, and potential jurors drawn in rotation from each box.

And what if Box 1 included anyone who self-declared Indigenous ancestry, while Box 2 was everyone else. Sounds like a stretch? Not really.

It’s the process used in Saskatchewan when choosing coroner’s juries. Under the Coroners Act, depending on the circumstances of a death, the chief coroner can require the jury be composed, wholly or in part, of persons from a specific racial or cultural group.

The move to more racially diverse coroner’s juries came about years ago after controversy and criticism of the previous system, often in cases involving white police officers shooting Indigenous men and women.

What I’ve never been able to fathom is why that process that works so well has never been adopted in the criminal courts.

It’s disingenuous of politicians to only now, after the Stanley trial, acknowledge the criminal jury system is rife with racial imbalance.

I’ve covered countless jury trials over 30 years. The vast majority of the faces staring out from the jury box are white. And those in the prisoner’s dock are largely Indigenous. For years, journalists, lawyers, activists and even a Supreme Court justice have raised this issue.

Indeed, it was the topic of a study by the province’s Justice Ministry in 2004 after a racially charged sexual assault case. The study became public a decade later as evidence in a couple of cases challenging — without success — what lawyer Bob Hrycan called “systemic under-representation” of Indigenous people in the jury selection process. The irony that it finally took a white accused to put this on the public and politicians’ agenda isn’t lost.

Criticism of an “all-white jury” has been levelled in this province before in other cases. The public will never know for certain if indeed any of those seemingly white jurors at the Stanley trial have roots or ties to the Indigenous population.

As a prosecutor pointed out to me three years ago when Hrycan similarly argued potential Indigenous jurors were rejected through challenges, you can’t always judge a book by the cover. But at least in the coroner’s two-box system, the guess work is removed because of the selfdeclaration.

Justice must not only be done, it must be seen to be done. And to those at the Stanley trial, it looked as if white people in the jury box, and Indigenous people decidedly not. One can then appreciate the outcry over the verdict.

If only men sat on juries for women, don’t you think there’d be people up in arms? Don’t you think there’d be change? Oh, wait a minute, there was.

In a letter to the editor, the Saskatchewan Coalition Against Racism notes diversity on juries has as much to do with life experience as skin colour. Going back to my example, if men were consistently acquitted of sex crimes by all-male juries, the public would rightly question the lack of a woman’s perspective in the jury room. In that same regard, what perspective does an Indigenous juror bring that a non-Indigenous person might be missing?

Maybe a racially diverse jury would have reached the same verdict at Stanley’s trial. But the difference, I suspect, is there’d be more faith that justice was done — and was seen to be done.