Colten Boushie case again in spotlight
Arguments on jury selection process
OTTAWA • In a case heavily influenced by the 2018 acquittal of Gerald Stanley over the killing of Colten Boushie, the Supreme Court of Canada heard arguments Wednesday about jury selection rules, including whether abolishing peremptory challenges is constitutional.
Peremptory challenges allow lawyers to reject a potential juror without giving any explanation. The Liberal government eliminated them in Bill C-75, and instead gave judges more discretionary power to bar jurors.
The issue is complex and divisive, as many First Nations groups argue peremptory challenges are often used to block Indigenous jurors and ensure all- white juries, while advocates for other racialized communities argue the opposite: that the challenges are in fact used to prevent all-white juries.
“The subjective nature of peremptory challenges excludes Indigenous people from serving as jurors and originates from the very same discriminatory stereotypes that have been described by this court over the last two decades,” argued lawyer Caitlyn Kasper, representing Aboriginal Legal Services, during the hearing.
But representatives from the Canadian Association of Black Lawyers, the Canadian Muslim Lawyers Association and the South Asian Bar Association of Toronto all argued that while peremptory challenges may need some reform, they’re an essential tool for lawyers to engineer a more diverse — and therefore fair — jury.
“We argue that the wholesale removal of the peremptory challenge was an error of law, primarily because what is left over does not do enough to guarantee a fair trial for a Black accused,” argued lawyer Peter Thorning of the Canadian Association of Black Lawyers. He said the changes in C-75 “virtually guarantee that in many trials across this country, Black accused will face all-white juries.”
Joshua Sealy- Harrington, representing the B. C. Civil Liberties Association, argued there is widespread “implicit racial bias” in Canada, and other methods available to the court aren’t good enough for keeping it off a jury.
“This seeming contradiction, a biased society producing an unbiased jury, can only be justified if the process for jury selection filters implicit racial bias,” Sealy- Harrington said. “Peremptory challenges were the only measure capable of acting as that filter.”
The Supreme Court is hearing the case of Pardeep Singh Chouhan, a man charged with first- degree murder over a 2016 shooting. Chouhan’s lawyers argue that in abolishing peremptory challenges, “Parliament removed all possibility for the accused to participate in the selection of the jury that would ultimately decide their guilt or innocence,” and thus violated his Charter right to an impartial trial. This argument was unsuccessful in both Ontario Superior Court and in the Ontario Court of Appeal.
However, there is another case that hangs heavily over the issue.
C-75 was tabled in March 2018, shortly after Stanley, a white Saskatchewan farmer, was acquitted by an all-white jury of murdering Boushie, a Cree man from the Red Pheasant First Nation. The trial is widely seen to have motivated the government to legislate the abolishment of peremptory challenges.
Boushie’s mother Debbie Baptiste was given intervener status in the Chouhan hearing.
“What happened in the Stanley trial was that there was a white accused charged with killing an Indigenous young man, and peremptory challenges were used to exclude all of the Indigenous jurors,” said Baptiste’s lawyer Christopher Murphy in Wednesday’s hearing. “It was happening quietly before the Stanley trial, and I submit that the Stanley trial was the powder keg that ignited the issue that brings me before you today.”
Many of the Supreme Court Justices expressed skepticism that peremptory challenges are an effective way to ensure fair and impartial juries.
At one point, as Thorning argued that Black people are already under- represented in jury pools, Justice Michael Moldaver interjected.
“I don’t doubt any of this, but how do you then justify peremptory challenges where there’s a Black accused, and every time a Black person is selected randomly from the panel at the back, the Crown says 'challenge’?" Moldaver asked.
“There is a process in place that we have to deal with that situation,” Thorning responded, saying judges are supposed to ensure peremptory challenges aren’t used in a discriminatory fashion.
“And how many times has that ever been used to stop that kind of conduct?” Moldaver asked. “Really? Really?”
At a different point, Justice Malcolm Rowe spoke up after another Moldaver intervention.
“Justice Moldaver gives the big-city perspective, I’m from a smaller place,” said Rowe, who is from Newfoundland. “And I found in my experience, long, long ago as a trial judge, that peremptory challenges were used to weed out what I’d call church ladies, who because the accused had been drinking and engaged in sinful activities, must be guilty.”
The Supreme Court hearing will also determine another crucial issue: whether the new jury selection rules should be applied retroactively to cases that were already in progress when the new law came into effect on Sept. 19, 2019.
Neither the federal justice department nor Parliament inserted language into C-75 that specified whether the new rules should apply to ongoing cases. The result has been a mess as courts have had to determine whether the new rules are largely procedural, and thus should apply retroactively.
In the Chouhan case, the Ontario Court of Appeal determined the new rules should not apply retroactively.
If upheld by the Supreme Court, that would cause dozens of retrials in Ontario where judges had already ruled that the new rules do apply retroactively.
the Stanley trial was the powder keg that ignited the issue.