Jury reform has been on the Canadian political and legal community’s agenda since February, when a jury in Battleford, Sask., acquitted a farmer named Gerald Stanley of killing Colten Boushie, a 22-year-old Cree man.  At the beginning of the trial, at least five persons who appeared to be Indigenous were rejected as potential jurors through the use of peremptory challenges. The result was an all-White jury.

The Trudeau government has responded to the Stanley case by proposing in Bill C-75 to abolish those challenges. Many defence lawyers fiercely oppose Bill C-75.  They argue that eliminating their ability to use peremptory challenges to reject older White jurors will make juries even less diverse. Some also argue that jury reform would not be necessary if prospective jurors faced questions about anti-Indigenous racism and their ability to be impartial. (These types of questions were raised during the Peter Khill case this year. Khill, like Stanley, was acquitted of killing an Indigenous man, in his case Jon Styres from Six Nations near Hamilton, Ont.)

The complexity of Canadian juries is an obstacle to reform. As with so many issues confronting Indigenous people, there is a confusing mix of federal and provincial jurisdiction. In simple terms, the provinces are responsible for getting prospective jurors to court and paying them. The federal Criminal Code establishes the procedure for determining which 12 people will be on a jury. This divided jurisdiction virtually ensures that one level of government will not be firmly on board with comprehensive jury selection reform.

Judges also play a central role, but they have often been cautious and even defensive when it comes to challenges to their juries.  One of the shortcomings of Bill C-75 is that it does not attempt to influence provincial and judicial roles in jury selection.

Ottawa’s proposed legislation is hardly a sufficient response to deep Indigenous distrust of a justice system that consistently fails Indigenous people as accused or as crime victims. But even making the small improvement of abolishing peremptory challenges and their invitation to discrimination will be difficult and contentious. At the same time, the results may be quite limited.  Significant underrepresentation of Indigenous people on Canadian juries will likely remain an intractable and uncomfortable reality.

Justice Minister Jody Wilson-Raybould holds a press conference in the foyer of the House of Commons on Parliament Hill in Ottawa on March 29, 2018. THE CANADIAN PRESS/Sean Kilpatrick

Juries and the provincial role

The provinces have a key role in determining the ultimate makeup of juries. Ontario and Saskatchewan, for example, have two very different systems.

Ontario’s approach to composing juror lists is based on property tax assessments. This might help to explain the underrepresentation of Black and other racialized people on juries, as measured by a recent Ryerson/Toronto Star study of juries in Toronto and Brampton. The Ontario approach also likely underrepresents renters and lower-income earners.

Since former Supreme Court Justice Frank Iacobucci’s 2013 report on the dramatic underrepresentation of First Nations reserve residents on juries in the North, the Ontario government has been doing the difficult work of building better relations with Indigenous communities. The future of this work, however, is uncertain under Doug Ford’s government. Meanwhile, Indigenous underrepresentation on juries continues.

Saskatchewan uses health cards to compile its lists and pays jurors the comparatively high amount of $80 per day. (In Ontario, jurors are paid $40 as of day 11, and $100 per day as of day 50.) If Stanley’s defence counsel had not used peremptory challenges, there likely would have been a more diverse jury with more Indigenous people in his Saskatchewan trial than is the norm in Ontario, including in Khill’s Hamilton trial.

But the provinces cannot be forced to change their processes even when they produce dramatic and consistent underrepresentation of Indigenous people on juries. In 2015, the Supreme Court ruled in R. v. Kokopenace that the Charter would not be violated in cases of severe underrepresentation so long as the government did not deliberately exclude groups and made reasonable efforts to call a fair cross-section of the population for jury service.

Justice Michael Moldaver concluded for the Court that juries should not bear the weight of historical injustices and strained relations – this despite the fact that we know that juries can contribute to them. He also raised the familiar “where does it stop” theme, raising the spectre of socially engineered juries to reflect every demographic. This undercuts the unique Indigenous experience of colonial discrimination that the Court has recognized elsewhere, for example in its sentencing jurisprudence.

The Supreme Court’s 2015 decision is regrettable, but it is not an aberration. The courts have been cautious and defensive when it comes to challenges to juries. They have refused to impose an effects-based concern about equality and systemic discrimination to juries even though they take such an approach in every other area of the law.

Juries and the federal role

There are multiple areas where the federal government could have exercised its jurisdiction and brought in more substantial jury reform: in introducing an equality-based standard into the Criminal Code, in expanding challenges of jurors for cause and in requiring judges to ensure a representative jury.

Bill C-75 fails to push provinces such as Ontario into taking steps toward more inclusive juries. More specifically, it fails to amend an 1892 Criminal Code provision that allows challenges to the composition of the panel of prospective jurors only if the provinces have engaged in “partiality, fraud or wilful misconduct” in compiling panels of prospective jurors.

What is needed is for Parliament to place an equality-based standard into the Criminal Code. The standard would require the provinces to produce panels of prospective jurors that do not underrepresent identifiable groups. Special justification would be required whenever Indigenous people or other racialized groups are significantly underrepresented on lists of potential jurors in comparison with their numbers in the population.

Bill C-75 recognizes such a results-based equality standard or principle in other areas of the criminal justice system. For example, it proposes that police officers pay attention to the circumstances of Indigenous people and other groups overrepresented in the criminal justice system before incarcerating people before trial. The extent of Indigenous overrepresentation among prisoners is shocking and growing. The most recent statistics are that 28 to 30 percent of persons admitted to custody are Indigenous. The numbers are even higher for youth (50 percent) and women (42 percent).

A similar and more results-based equality standard for assembling panels of prospective jurors that devotes special attention to the circumstances of Indigenous people would counterbalance the 2015 Supreme Court decision. There is a need for more targeted affirmative action in C-75, perhaps with time to allow the provinces to undertake the needed reforms.

Another potential area of federal intervention is in expanding challenges for cause.

The jurors in the Stanley trial were not questioned about whether they could be impartial in light of the dangers of racist prejudice and the extensive and at times hateful pretrial publicity in the case.

By contrast, prospective jurors in Hamilton, Ont., were asked at the Peter Khill trial whether their ability to decide the case impartially would be affected by the fact that the accused was White and the deceased was Indigenous.

Peter Khill leaves court in Hamilton, Ont. on June 12, 2018. THE CANADIAN PRESS/Colin Perkel

Bill C-75 addresses challenges to prospective jurors for cause only by allowing judges to decide whether a prospective juror is impartial and can serve on a jury.  Currently, two jurors or “triers” are asked to evaluate the jurors in question.

The proposed legislation leaves to judicial discretion what questions can be asked of prospective jurors and whether they are asked, even though this is critical in determining whether a prospective juror is impartial.

Fearing a slippery slide into wide open American practices of questioning prospective jurors, Canadian courts have been cautious in allowing questions. Ontario courts have allowed a blunt “are you a racist” question by the accused since 1993. The Supreme Court approved it in 1998 and it was used in the Khill trial.

There are concerns, however, that the one blunt question will not reveal stereotypes: for example, in the Khill case, stereotypes associating Indigenous people in the particular area with theft of motor vehicles or with violence.

Judges have traditionally prioritized concerns about the privacy of prospective jurors and efficiency over the need for more searching questions. Judges may need a nudge, if not a push, from Parliament to allow more questions. Just because the Americans have gone too far in allowing prospective jurors to be questioned, for example, about their politics, does not mean that Canadian courts have the balance right, especially when questioning prospective jurors about racist stereotypes.

Finally, Bill C-75 empowers judges to excuse jurors, with an eye to obtaining a jury that is more representative of those involved in the case and maintaining public confidence in the jury system. And yet it does not require judges to use this power or specifically make a link to underrepresentation of Indigenous people or other groups overrepresented in the justice system.  Without parliamentary guidance, many judges may continue to emphasize treating all prospective jurors the same through random selection.

Two UK commissions of inquiry, one in response to the Stephen Lawrence case where White accused were initially acquitted of killing a Black youth, recommended tailor-made juries with three or more visible minorities in relevant cases. Predictably, their controversial recommendations were not implemented by the government.

Radical jury reform

Meanwhile, more radical forms of jury reform appear to be complete nonstarters, even though Canada has some experience with them.

In 2014, Stony Lee Cyr, a member of the Pasqua First Nation, argued that Treaty 4, signed by his nation and Canada in 1874, required a jury of six Indigenous and six non-Indigenous people. Cyr lost his treaty case. He also lost a Charter challenge to Indigenous underrepresentation on Regina juries despite a sheriff admitting that since 1996 he could not remember a case with an Indigenous accused where there was an Indigenous juror.

Mixed juries should not be dismissed as a novel form of extreme multiculturalism. Mixed juries composed of equal numbers of citizens and noncitizens were used in England in cases involving noncitizens such as merchants from 1189 to 1870. Mixed juries composed of six francophones and six anglophones were used in Quebec and Manitoba into the 1970s.

Jurors in these mixed juries could still be challenged if they were not impartial between the parties. Moreover, all 12 jurors had to agree unanimously to a verdict in both the English and the Canadian versions of the mixed jury. In other words, mixed juries were not designed to produce partiality or deadlock: they simply ensured that different perspectives had to be considered before the jury reached a verdict

It is an interesting thought experiment to consider what the Stanley case would have been like with a mixed jury with equal numbers of Indigenous and non-Indigenous people. Would the credibility of the Indigenous witnesses have been seen differently? Would Stanley’s implicit claims of self-defence and defence of property based on the prevalence of rural crime have been viewed another way? What would Louis Riel’s 1895 treason trial have been like if a mixed jury had been used? In both cases, the jury’s verdict might have been received differently even if the verdict was the same.

To be sure, mixed juries, like any other form of jury reform, are not a panacea. Indigenous people might not want mixed juries, especially if they could turn to an Indigenous justice system applying Indigenous laws. For example, the Six Nations Council responded to Peter Khill’s acquittal by a jury by banning him from their territory for life.

Bill C-75 doesn’t come close to embracing more radical jury reform such as mixed juries. Nevertheless, it will still face much opposition.

The abolition of peremptory challenges and other changes proposed in Bill C-75 will be controversial, but they constitute necessary reforms.  Both the American experience and the more limited Canadian experience suggest that discriminatory uses of peremptory challenges are difficult to control.  Abolition is necessary to stop a repeat of the Stanley case.

Alas, Bill C-75 should have been more ambitious and aggressive in pushing both provinces and judges to take more steps to ensure representative but impartial juries.

Bill C-75 will not end the underrepresentation of Indigenous people on Canadian juries. Moreover, it does not address the legacy of discrimination and distrust reflected in Indigenous reactions to the Stanley and Khill acquittals.  This will require more, much more, than attempting to reform Canada’s complex and difficult-to-reform jury system.

This article is part of What can we learn from the Stanley trial? special feature.

Photo: Shutterstock/By ggw

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Kent Roach
Kent Roach is a professor of law at the University of Toronto. His most recent books are Remedies for Human Rights Violations, published by Cambridge University Press, and Canadian Policing: Why and How it Must Change, published by Irwin Law. 

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