The jury is known as the conscience of the community. Yet, when white Saskatchewan farmer Gerald Stanley went on trial on a charge of second-degree murder in the shooting death of Colten Boushie, who was Cree, the community wasn’t fully represented; Indigenous people were seemingly excluded. In these circumstances, could a jury assembled this way serve effectively as a conscience? Amid calls for reform of the jury system, here is what you need to know about challenges, juries and the possibility of change.

How did it happen that Indigenous people were excluded from the jury?

Jury selection for Mr. Stanley’s trial began with a pool of names randomly selected from Ministry of Health records, considered a fair basis for selection since nearly everyone has a health card. About 175 people came to court in Battleford, Sask., on Jan. 29. When the Chief Justice asked whether any had a valid reason not to be part of the jury, nearly 70 stood up and about 50 were allowed to go home, citing reasons such as poor hearing or failing health. The remaining names were placed in a drum and drawn at random. Neither Crown nor defence was given any information about the potential jurors except what they could discern from their appearance. Both sides used what are called peremptory challenges to block potential jurors. In this case, each side had 14 such challenges, which don’t need to be justified or explained. The defence blocked all the jurors who appeared to be Indigenous, whether young or old, male or female, which upset Mr. Boushie’s family. The defence also blocked people who did not appear to be Indigenous. Of course, it’s difficult to know precisely a person’s ethnic background purely from their appearance, but at least five challenges involved people who appeared to be First Nations. The Crown used fewer challenges, all on people who did not appear to be Indigenous.

Did the Crown challenge it at the time?

The Crown did not raise any objection during this process, nor did Chief Justice Martel Popescul.

Is there a possible ground of appeal here?

A discriminatory use of peremptory challenges could be a reason to reconsider the jury verdict, says Nader Hasan, a Toronto lawyer specializing in criminal and constitutional law. But the lack of a Crown challenge at the time makes it more difficult. “Sometimes, the courts of appeal will say, ‘If you didn’t raise it in the court below, you can’t raise it for the first time here.'”

Has Canada considered eliminating peremptory challenges, as they’ve done in the United Kingdom?

The Aboriginal Justice Inquiry (AJI) in Manitoba in 1991 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, although it was not acted on. The peremptory challenge was described by the Law Reform Commission in 1980 as a tool that means the accused has “some minimal control over the makeup of the jury and can eliminate persons for whatever reason, no matter how illogical or irrational,” but the AJI found it has “undesirable effects on the racial makeup of jury panels.” In his 2013 report on First Nations representation on Ontario juries, former Supreme Court Justice Frank Iacobucci recommended discussing the possibility of asking the federal government to amend the Criminal Code to prevent the use of peremptory challenges to discriminate against First Nations people.

If our system trusts jurors to decide cases based on what they hear in the courtroom, why does it matter who is on the jury?

The roots of the modern jury stem from 14th-century England; juries were an attempt to entrench the rule of law by reducing the control exercised by political and economic elites, according to John Whyte, a former deputy attorney-general in the Saskatchewan government. Even after judicial independence became an important feature of English law in the 18th century, juries were still seen as important in ensuring that justice is a reflection of local understanding and norms.

“Juries are conversations and conversations take a track,” Mr. Whyte said. “The question is how narrow a track, how open a track. I think it’s a problem when you don’t allow those conversations to have the experience of a diverse representation. Juries ultimately have to give one side the benefit of its doubt.”

What about the United States? Didn’t their courts get rid of race-based use of peremptory challenges? Why can’t our courts do the same?

In 1986, the U.S. Supreme Court ruled that the prosecution must not use its peremptory challenges to reject potential jurors because of their race. That created the “Batson challenge” – defence lawyers may speak up when they see apparent race-based rejections, and the prosecution may be called on for an explanation. There are even “reverse Batson challenges” when the defence attempts the same. In Canada, defence lawyers have challenged the Crown’s allegedly discriminatory use of peremptory challenges. In one case, a Superior Court judge in Ontario said in 1999 that neither the Crown nor the defence may use its peremptory challenges in a discriminatory way. The Supreme Court of Canada has not ruled specifically on the issue, but Mr. Iacobucci, reached on Monday, said the discriminatory use of peremptory challenges “should be equally prohibited here.”

What are some drawbacks of eliminating peremptory challenges?

Jury selection could take longer, in that prosecutors and defence lawyers would use more “challenges for cause” to speak directly to potential jurors. And defence and Crown lawyers would lose an important tool. It might be that they have an instinct to avoid an individual. Or they might be concerned about the angry rhetoric prevalent in Saskatchewan before the Stanley trial, said Aaron Fox, a criminal lawyer in Regina. “The Crown has a legitimate concern: There’s some people out there who have been sending out hateful, racist comments. You obviously want to make sure you don’t have anyone like that on the jury. On the other hand, you’ve got activists saying First Nations people aren’t going to get a fair trial. From a defence perspective, you’re scared you’re going to get someone like that on the jury.”

The Globe and Mail, February 12, 2018