Lawyers differ on reforms in wake of Stanley verdict

A panel discussion between two prominent Saskatchewan lawyers revealed starkly different perspectives on federal justice reforms proposed in the wake of the Gerald Stanley trial.

The talk was held at Regina’s MacKenzie Art Gallery to celebrate Law Day on Wednesday. It brought together assistant deputy attorney general Anthony Gerein and defence lawyer Aaron Fox.

They weighed in on the concept of reasonable doubt, a principle Fox said is being “eroded.”

He criticized the recently tabled Bill C-75, which will eliminate the peremptory challenges that played a role in the selection of the jury that acquitted Stanley — a jury that included no visibly Indigenous members.

But Fox zeroed in on the bill’s move to restrict the use of preliminary inquiries, which allow the defence to test Crown evidence before trial. He faulted federal Justice Minister Jody Wilson-Raybould for saying that would spare complainants the trauma of testifying twice.

“The next step is that you can say OK we’ll presume what they say is correct and the defence has got to meet it,” Fox said. “It’s a very slippery road and you don’t want to go down that road.”

Fox seemed less concerned about the move to get rid of peremptory challenges — which allow lawyers to remove prospective jurors without cause — though he said a better move would be to allow fewer per trial.

He said that would make it difficult to stack juries with a single racial group, without entirely depriving lawyers of an important tool.

But Gerein, the man who recently announced the Crown would not pursue an appeal in the Stanley case, objected to the notion that trials are becoming more lax. He argued that preliminary inquiries were meant for a different time, before rules forcing prosecutors to disclose evidence.

“It is, in the Crown’s respectful opinion, fair to say why would we go through two trials, why would we put that child through that twice?” he said.

Fox also expressed confusion at provisions in the federal bill that could limit the kind of questioning used to defend Jian Ghomeshi at his sexual assault trial.

He read directly from the bill and said “I don’t know what that means.”

The two lawyers mainly steered clear of the Stanley case itself. But Gerein did broach the makeup of juries. He pointed out the Supreme Court has ruled on the issue, saying that courts must avoid “micromanaging ” who sits on juries.

“We are working on the assumption that we are getting impartial people,” said Gerein, expressing faith in the ability of jurors to put aside their biases.

Both lawyers agreed a trial is not the place to solve racism in Saskatchewan.

“The criminal law isn’t where we should be going to solve social problems,” Fox said.

“A criminal trial is there to deal with one thing and one thing only: is this individual guilty?”