Canada’s Justice Minister says she is concerned about the under-representation of Indigenous people on Canadian juries.

Justice Minister Jody Wilson-Raybould said that legislated changes to the use of peremptory challenges, which are granted to both Crown and defence to block potential jurors without further explanation and have been cited among the causes of under-representation, would “need to be carefully studied and considered.”

“The under-representation of Indigenous jurors is an issue in several provinces and it is a reality I find concerning,” Ms. Wilson-Raybould said in a statement.

Ms. Wilson-Raybould said she supports the work being done by the National Judicial Institute, an independent institute focused on educating judges on jury selection.

The issue came into focus last week in the trial of Gerald Stanley, who is accused of killing 22-year-old Cree man Colten Boushie on his Saskatchewan farm in 2016.

Ms. Wilson-Raybould said that she was not commenting on the Boushie case specifically, but was speaking generally.

When the jury in Mr. Stanley’s trial was selected, every potential juror who appeared to be Indigenous was challenged by the defence.

This is considered entirely legal and proper in the Canadian system, which has always allowed the use of peremptory challenges in jury selection. In the Boushie case, Crown and defence were given 14 challenges, although the number can rise to 20 depending on the type of offence being prosecuted.

Mr. Boushie’s family expressed frustration with the system.

“It was really difficult to sit there today and watch every single visible Indigenous person be challenged by the defence,” Jade Tootoosis, Mr. Boushie’s cousin, said outside court last week. “It’s not surprising, but extremely frustrating.”

The issue of Indigenous representation on juries has been raised many times over the years. As long ago as 1991, the Aboriginal Justice Inquiry in Manitoba, led by justices Murray Sinclair and Alvin Hamilton, found that the jury process systematically excluded Indigenous people.

“One of the reasons we have juries is to involve people from the community in the administration of justice,” the commissioners wrote.

“If one group is excluded from that jury service, that group is deprived of the opportunity to apply its scrutiny to cases.

“The fact that juries rarely include Aboriginal people means that the testimony of Aboriginal witnesses and accused are not understood by the jury, from the Aboriginal perspective.”

The inquiry found that it seemed to be common for some Crown and defence counsel to exclude Indigenous jurors by using peremptory challenges. One of its recommendations was that peremptory challenges be eliminated.

In the United States, the Supreme Court ruled in a case known as Batson v. Kentucky that using peremptory challenges to exclude jurors based on race was unconstitutional. The UK eliminated peremptory challenges in the late 1980s.

The under-representation of Indigenous people on Canadian juries has deep historical roots. The Aboriginal Justice Inquiry noted that from Confederation until 1952 in Manitoba, Indigenous people were not allowed to vote, and therefore did not appear on the voters’ lists from which juries were drawn. For two decades after that, the lists of potential jurors who lived on reserves, unlike those in towns and municipalities, were not required to be submitted to the county court judge who assembled the jury rolls. It was not until 1983 in Manitoba, when the province switched to using health registration information (as Saskatchewan now also does), that Indigenous people began to be properly represented in the jury system.

“For a century the legal system made it clear that it did not want or need Aboriginal jurors. It is a message Aboriginal people have not forgotten,” Mr. Sinclair and Mr. Hamilton wrote.

This week, Mr. Sinclair, now a member of the Senate and the former chair of the Truth and Reconciliation Commission, addressed his earlier work.

“We should not tolerate discriminatory behaviour that excludes jurors on the basis of race,” he wrote on Twitter.

Chris Murphy, lawyer for the Boushie family, said more also needs to be done to ensure that Indigenous people summoned for jury selection can actually take part. The Battleford jury district, for example, stretches all the way to the border with the Northwest Territories. Being asked to travel long distances without compensation (until actually selected for a jury) presents a huge burden.

“The farther you get from the cities, the population is more densely aboriginal and the travel is longer and more expensive,” Mr. Murphy said. The system should recognize that and ensure financial barriers are not hindering people from taking part in the justice system, he said.

The Globe and Mail, February 4, 2018