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Opinion: When is the last time you saw an Indigenous juror?

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In the aftermath of the jury verdict acquitting Gerald Stanley in the killing of Colten Boushie, I was contacted by the Edmonton Journal to comment on juries and the jury system in the Canadian criminal justice system. “Scrapping Peremptory Challenges would increase Jury diversity: Edmonton lawyer.” (Edmonton Journal, Feb. 15, 2018).

My suggestion was met almost immediately with scorn from some of my defence colleagues with thinly veiled comments, “you don’t know what the h*** you are talking about” and it has continued with the odd snide remark almost two weeks later.

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By way of background, I am a criminal defence lawyer who also happens to be of a Cree-speaking Indigenous background. I was raised in the same judicial district where Colten Boushie lost his life and I spent a great deal of time playing high school and club sports in that part of Saskatchewan.

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For the past 12 years, I have criss-crossed the northern half of Alberta practising criminal defence and child-welfare law. Like most of my defence colleagues, a large percentage of my clients are Indigenous.

My interview was a wide-ranging 10-15-minute telephone interview conducted at the side of a highway while I was on my way back to the city from a rural courthouse. We discussed a number of issues related to the jury process and, in the course of the interview, I suggested that peremptory challenges be eliminated.

Peremptory challenges are challenges that allow the prosecution or defence counsel to ask that any prospective juror be excused without providing any reason whatsoever. This creates a situation where either counsel can eliminate anyone including indigenous people and other minorities such as women from serving on a jury. This is still allowed in Canadian law despite Madam Justice L’Heureux-Dube’s admonition in R. v. Sherratt, a 1991 decision of the Supreme Court of Canada, “The modern jury was not meant to be a tool in the hands of either the Crown or the accused indoctrinated as such through the challenge procedure, but rather was envisioned as a representative cross-section of society, honestly and fairly chosen.”

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In my interview, I pointed out that this recommendation has been made by people much smarter than me. Specifically, in 1991 Associate Chief Justice Alvin Hamilton of Manitoba’s Queen Bench and Judge Murray Sinclair (as he then was) released their report on the Manitoba Aboriginal Justice Inquiry and made the following recommendation:

“The Criminal Code of Canada be amended so that only challenges for prospective
jurors be challenges for cause, and that stand asides and peremptory challenges be eliminated.”

More recently, in a 2013 review, First Nations Representation on Ontario Juries, former Supreme Court of Canada Justice Frank Iacobucci similarly recommended amending the Criminal Code, “that would prevent the use of peremptory challenges to discriminate against First Nations people serving on juries.”

As well, in a Feb. 8, 2018 article in the National Post (Gerald Stanley acquittal: What are peremptory challenges and why are they so controversial?) Osgoode Hall Law School professor and program director for Toronto’s Aboriginal Legal Services, Jonathon Rudin said it’s time for peremptory challenges to go, “The message it sends is just awful … that Indigenous people cannot be trusted to serve as a juror. You never see white people excluded from the jury because they’re white.”

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Other jurisdictions are far ahead of Canada with respect to peremptory challenges. For example, with the Criminal Justice Act, 1988 England has completely abolished the use of peremptory challenges because their use violated the principle of the random selection of jurors and fairness of the justice system because they can be used to manipulate the composition of juries.

In the United States, all jurisdictions allow for peremptory challenges but their use to selectively remove prospective jurors who are from a recognizable group (e.g. race, gender, religion) has been ruled unconstitutional by the U.S. Supreme Court in 1986 in the case of Batson v. Kentucky because such practice violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

My suggestion that peremptory challenges be scrapped entirely is hardly a novel idea. We have nothing to lose – when was the last time we saw an Indigenous person on a jury?

Richard Mirasty is an Edmonton criminal defence lawyer.

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