Time to tackle jury problem

The case of Gerald Stanley, the white Saskatchewan farmer acquitted by an all-white jury earlier this month in the shooting death of Colten Boushie, a young Cree man, has shone a spotlight on a long-standing failing of Canada’s legal system: juries, which are supposed to reflect the diversity of the larger community, far too often do not.

That case has prompted a much-needed and overdue conversation about the urgent problem of Indigenous justice in Saskatchewan and beyond.

But the challenge of unrepresentative juries is not limited to Indigenous communities and certainly not to Saskatchewan.

An investigation by the Star and the Ryerson School of Journalism exposed the daunting dimensions of the challenge here in Ontario. Over the course of two years, reporters analyzed 52 juries in Toronto and Brampton, finding that while so-called visible minorities constitute a majority in both municipalities, 71per cent of all jurors were white.

This is particularly troubling when you consider who stood accused in the trials. Forty-six per cent of all defendants were Black, yet Black people comprised only 7 per cent of jurors.

This is both a moral and a constitutional problem. That a jury should be as representative as possible of our diversity is a foundational principle of modern justice, which the Supreme Court of Canada ruled more than a quarter-century ago is protected by the Charter.

The modern jury, wrote Justice Claire L’Heureux-Dubé in a 1991 decision, “was envisioned as a representative cross-section of society, honestly and fairly chosen,” lest it “be unable to perform many of the functions that make its existence desirable in the first place.”

Yet 27 years after that ruling, juries across Canada and in Ontario in particular remain whiter, older and richer than society as a whole.

Part of the problem is the use of so-called peremptory challenges, a controversial tool that allows lawyers to disqualify potential jurors without providing a reason. Gerald Stanley’s defence team, which employed the practice to nix anyone who appeared to be Indigenous, provided an object lesson in how peremptory challenges can undermine the representativeness of juries.

In the United States, a country that knows well the costs of all-white juries deciding the fate of racial minorities, the Supreme Court put strict limits on the use of peremptory challenges. In the wake of the Boushie case, the Trudeau government says it is considering finally doing the same here in Canada and, as report after report has recommended, it absolutely should.

But provincial governments, too, have a role to play and Ontario has long been a laggard. Unlike most other provinces, Ontario derives its jury pool from property assessment rolls, which largely exclude students, low-income and Indigenous people, among others.

Because Black, Indigenous, young and low-income people are disproportionately likely to be charged with crimes and disproportionately unlikely to be found on property assessment rolls, defendants too often find themselves being judged by a jury that looks nothing like them.

In his 2013 report on the underrepresentation of Indigenous peoples on juries, former Supreme Court justice Frank Iacobucci recommended that, to address this problem, Ontario follow the lead of several other provinces by using health insurance records, which are far more comprehensive, to determine the jury pool. Iacobucci also suggested that compensation for jury duty be increased so that low-income people are better able to bear the costs.

The consequences “if this report and its recommendations . . . are put on the shelf,” Iacobucci wrote five years ago, “will be very serious.”

These include not only the infringement on the right of the accused to a fair trial, but also the imperiling of important social aims of the justice system: to maintain peace in our communities, promote healing and preserve trust in the fairness of our legal institutions.

Yet the shelf is exactly where Iacobucci’s report ended up. And in the wake of the Stanley ruling, we are seeing the former justice’s warning bear out. The corrosive but entirely understandable mistrust being expressed in protests across the country poses a threat to democracy and the rule of law.

As the prime minister tweeted earlier this month, “Canada can and must do better.” In Ontario, in particular, that means finally taking Iacobucci’s report off the shelf and ensuring that our juries better reflect our diversity.

Ontario must do more to ensure that juries represent our diversity