It seems trial by jury is due for an overhaul.
Over the course of Gerald Stanley’s trial for the murder of Colten Boushie, the seemingly
all-white jury received widespread criticism, in a case that was racially charged from the
beginning.
When Stanley was ultimately acquitted, Boushie’s family and Indigenous communities called for
justice reform.
But this is far from the first time the small number of Indigenous peoples serving as jurors
has been questioned.
And the current process of jury selection is part of the problem.
Here’s how it works.
It varies across jurisdictions, but jury selection is pretty similar across Canada.
Every year, a jury roll is compiled at random from people who are eligible for jury duty.
When a case to be tried by jury comes around, people from the roll are selected at random
and sent a summons calling them for jury selection.
Both the Crown and the defence are allowed a certain number of what are called
peremptory challenges.
Meaning they can reject a juror without having to give any reason.
During the selection process, the judge can only ask potential jurors a few questions.
So, lawyers make a decision to challenge or agree on the juror based on
a brief first impression, and all the biases that come with it.
Take the Stanley trial for instance.
During the selection process, it was reported that the defence simply said, “challenge”
every time a potential juror who looked Indigenous walked up.
And right there, without justification, that person was excluded from the 12-person jury
until it was made up entirely of white people.
In the wake of the Stanley trial, the Liberals announced that they would be looking into
the jury selection process, including peremptory challenges
But people have been trying to address this as far back as the '80s.
Justices Murray Sinclair and Alvin Hamilton oversaw the Aboriginal Justice Inquiry for
Manitoba which came about in the aftermath of two high profile cases involving Indigenous
victims.
One of the issues it looked into was the lack of Indigenous people on juries.
The commission found several reasons: until 1952 Status Indians were unable to vote, but
jury rolls were compiled from voter lists, leaving them out of the mix. And for two decades
afterwards, reserve officials weren’t obligated to submit names of potential jurors.
And the trial by jury method doesn’t necessarily fit with traditional Indigenous concepts of
justice, so some opt out of participating all together.
The inquiry also mentioned language barriers, problems summoning, the list goes on and on, and peremptory
challenges was one of the many problems.
The commissioners did not necessarily
want challenges removed entirely
but that only challenges for cause should be allowed.
But recommendations like these clearly were not put into place over the last 27 years.
Justice Frank Iacobucci conducted a review.
In 2013, he looked at the barriers First Nations people faced with juries on Ontario
He made over a dozen recommendations, one of which that “there should be an amendment to the
Criminal Code that would prevent the use of peremptory challenges to discriminate against
First Nations people.”
Iacobucci made note that in the U.S. judges are able to supervise the use peremptory challenges
if they think the challenge is being used in a discriminatory manner.
With the Stanley verdict, people want to see change now,
like they did 30 years ago, but the question is,
will the suggestions stop at a report, or will the justice system actually change?