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Stanley acquittal should not lead to scrapping peremptory challenges, say criminal lawyers

More indigenous people on jury rolls would improve system
|Written By Aidan Macnab
Stanley acquittal should not lead to scrapping peremptory challenges, say criminal lawyers
Chris Murphy says the family of Colten Boushie does not believe indigenous jurors would have arrived at a different conclusion but their inclusion would have been able to affect the perception of other jurors.

The Toronto criminal lawyer who represented the family of Colten Boushie says the problem is the lack of indigenous jurors available for selection, not the jury who found Gerald Stanley not guilty in the young indigenous man’s death.

“Based on the evidence, the jurors took an oath to render a fair and just verdict. Based on the evidence they heard, the submissions made and the charges that the judge gave to the jury, a route of acquittal was a possibility,” says Chris Murphy, lawyer for the Boushie family.

On Feb. 9, Gerald Stanley was acquitted in the death of 22-year-old Boushie.

Boushie died on Aug. 9, 2016 after he and some friends drove on to Stanley’s property near Biggar, Sask. Police were later told by Boushie’s friends they had a flat tire and needed help. Stanley claimed they were trying to steal his ATV. Stanley testified that he was scared for his wife and son’s safety. He said that he fired two warning shots and thought the gun was empty. A third shot killed Boushie.

In the Stanley case, all members of the jury were white and the potential jurors who were indigenous were blocked by the defence, using peremptory challenges. No justification is required for the use of a peremptory challenge.

Murphy says he thinks peremptory challenges could be viewed as discriminatory.

"I sat next to Colten's family when the jurors were being selected. As each indigenous juror was challenged, there was a deepening feeling of hopelessness," says Murphy. "The goal of jury selection is to choose an impartial jury. There are better ways to assess impartiality than simply eyeballing a person. I walked away from this case believing that peremptory challenges are not in the interests of justice, and indeed borders on state-sanctioned discrimination."

A peremptory challenge allows the Crown or defence counsel to eliminate a potential juror from serving on the jury. In a case where the accused faces five or more years in jail in a charge other than first-degree murder and treason, Crown and defence are entitled to 12 peremptory challenges each.

The elimination of peremptory challenges would not help indigenous people or visible minorities in the justice system, lawyers say.

Murphy says the family does not necessarily believe indigenous jurors would have arrived at a different conclusion just because of their indigenous heritage.

“Their life experience and potential knowledge of indigenous traditions and customs would have assisted the entire 12-person jury at arriving at the truth because they would have experiences that they could share with the remainder of the jury that would put things in perspective about what the witness was testifying about,” he says.

Jessica Orkin, a partner at Goldblatt Partners LLP, says in this case peremptory challenges were “hugely problematic” but that getting rid of them will not fix the problems with representation of indigenous people on juries. The problem is that there are not enough indigenous people in the process from the beginning.

“If we had more representative jury rolls, if there were far more indigenous people on the rolls, then you have a limited number of peremptory challenges, you wouldn’t be able to use them to sway the jury in that way,” she says.

Criminal defence lawyer Sean Robichaud says that, as indigenous people are over-represented as the accused in the criminal justice system, eliminating the peremptory challenges to ensure the jury represents the victim will only disadvantage them.

“The right to challenge jurors is a right an accused, not of a victim or victims or witnesses of a trial, so that’s the starting point to all this,” he says.

In the Stanley case, the accused was white and the victim indigenous. Robichaud says that the roles are often reversed and the accused will be indigenous or a visible minority. In those cases, since peremptory challenges are meant to allow the defence some say in forming the jury, their elimination would not further the accused’s interest in a representative jury.

“To me, the position that’s being put forward is completely inconsistent with the law. It’s extremely dangerous. It is short-sighted and it’s actually counter-productive to the objectives to ensure that First Nations people get fairer treatment within the justice system.”

In an Ontario court of appeal case from 2001 —  R. V Gayle —  it was established that the Crown cannot use peremptory challenges for racial purposes. If a pattern is identified by defence counsel that the Crown is challenging jurors based on race, they can make an argument citing Gayle with the Judge.

When the defence uses peremptory challenges in a way seemingly motivated by the race of the candidates, it is harder to challenge those actions, Murphy says.

“There is a big difference between oversight of the Crown’s peremptory challenges for racial purposes and the defence’s use, being that the Crown has an obligation to uphold the Charter because they’re a state actor,” Orkin says.

In R. V Gale, the judges wrote, “the rationale for peremptory challenges is to foster confidence in the fairness and impartiality of jury trials. The Crown should not be permitted to subvert that rationale by using peremptory challenges to achieve precisely the opposite result.”

Orkin says that it may be useful to require an explanation for a peremptory challenge. The courts would have to develop case law on what are valid reasons to use a peremptory challenge.

She adds that Canada, unlike the United States, does not ask extensive and intrusive questions of its potential jurors. Peremptory challenges are a necessary tool to eliminate unsuitable jurors, and one case of possibly misused peremptory challenges should not mean their demise.

“I, as someone who practises on the defence side, am uncomfortable with the response to a case, an instance of injustice, where the peremptory challenges were used in an unjust way. I am uncomfortable responding to that by throwing out the whole institution of peremptory challenges,” she says.

Criminal lawyer Michael Spratt, Abergel Goldstein & Partners LLP, says there are many good reasons to use a peremptory challenge, such as if a juror is disinterested, appears biased or shows animus toward the accused.

“We need to have mechanisms for parties to exclude those individuals. And a peremptory challenge is the only way we currently have to make sure that our juries are engaged and will function appropriately,” he says.

Spratt says there are problems with the jury system and it is positive that politicians and the public are taking notice.

“Normally, the accused is a racialized individual or young indigenous man who is being tried by an all-white jury and it’s unfortunate that we had to wait for the death of an indigenous man for these questions to be raised,” he says. “But there clearly is a problem with under-representation of indigenous people on our juries and that is not just from the use of peremptory challenges, but that is from layer upon layer of systemic exclusionary measures that indirectly target indigenous people.”

Editor's note: Updated Feb. 15, 2018 11:09 a.m. to included additional comments from Chris Murphy.

  • Abolish Peremptory Challenges, and more, If the Jury System is worth Preserving.

    Chris Levy (Retired Law Prof.)
    I agree with Mr. Murphy that the evidence in the Stanley case was sufficiently problematic that an acquittal was a realistic possibility: a distinctly unsatisfactory RCMP investigation and key Crown witnesses whose stories changed significantly would suffice even if Mr. Stanley's own explanation seemed far-fetched and was disbelieved, After all, not believing a witness on a point is no evidence at all of the converse of what the witness has stated. I strongly disagree, however, with those lawyers who continue to defend the availability and use of peremptory jury challenges, choosing to see the Stanley case as an aberration. This is not just a situation that is problematic in cases involving First Nations individuals. True, they are vastly underrepresented in the jury pool, but so is any societal group that isn't Caucasian. To even permit the possible (and by no means infrequent) compounding of this systemic underrepresentation through the use of peremptory challenges is unacceptable. I regret to have to say that Mr. Spratt's examples of cases where peremptory challenges might be used are of no assistance to his argument: "animus" and "bias" are already grounds for challenging for cause. I assume that Mr. Spratt means "uninterested" or "not engaged" as his other ground - a "disinterested" jury is precisely what we do want, methinks - and this too might well be a proper ground for a challenge for cause. Of course, to sustain a challenge for cause one needs evidence, not mere unarticulated supposition or prejudice. Perhaps that is really what worries Mr. Spratt. I do agree that merely abolishing peremptory challenges is a totally insufficient response to the long-standing problems that the jury selection process in Stanley brought into the public eye so dramatically. Active steps are requited to secure a less unrepresentative pool: this requires not merely radical changes in the methods by which the pool is assembled, but a significant investment of money to ensure that rural people can travel the often substantial distances to the place of the trial without financial loss, and a regime that offers meaningful assistance with day care for children and dependent adults. And that is just a start! Another solution, of course, is to abolish jury trials altogether and focus attention on the seriously unrepresentative composition of the judiciary instead - but I digress.

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