Principles of justice should be at centre of jury selection process

It’s time for a shakeup of Canada’s jury selection process.

Since the acquittal of Gerald Stanley in the death of Colten Boushie, a 22-year-old Indigenous man, by an all-white jury earlier this year, the practice of peremptory challenges — where the Crown and defence each have the ability to automatically dismiss a certain number of potential jurors (depending on the severity of the alleged offence) without having to explain why — has come under justifiable scrutiny.

The practice allows lawyers to shrink the jury pool with potentially unsavoury methods. In the case of the Stanley trial, his legal team used peremptory challenges to dismiss every Indigenous candidate.

Of course, not everyone is suitable to serve on a jury in every case. Everyone has their own biases. But these biases should be determined through an interview process, not solely based on peoples’ appearances, which opens the floodgates for racial profiling.

This is why University of Alberta law professor Steven Penney called peremptory challenges “arbitrary, unfair and potentially discriminatory” in a debate with criminal lawyer Kelly Dawson in the pages of Alberta Views magazine last month.

Indigenous people are seldom represented on juries, no doubt a sign of larger alienation from Canadian society. This is due to myriad factors, as Dawson points out — those selected for jury duty must be in the province’s registries database, so they have to have registered a vehicle or purchased property, which does tend to exclude Indigenous people who disproportionately live in poverty.

And people who have been convicted of crimes cannot serve on juries, based on the assumption they would be biased towards the accused, having been in the same boat as them. Again, Indigenous people make up a wildly disproportionate number of people in our jails. (The question of whether people with criminal records should automatically be disqualified from juries could be a separate editorial.)

The underlying cause here, though, is the legacy of colonialism and historical trauma, which has contributed to the vicious circle of poverty and crime in Indigenous communities. Dawson argues we must address these issues rather than eliminate what he regards as a useful tool for lawyers to ensure their client gets a fair trial.

It’s unclear how permitting lawyers to arbitrarily dismiss potential jurors ensures fairness for anyone, nor is it any clearer how eliminating peremptory challenges is counterproductive to addressing systemic issues faced by Indigenous people in Canada. If a lawyer has a good reason to disqualify someone, regardless of their race, gender or ethnicity, they should be able to explain why.

As Penney writes, “biased jurors are more likely to be exposed by questioning them about their beliefs by inferring those beliefs from appearance and demeanour.”

Proponents of peremptory challenges, like Dawson, say the practice saves valuable court time by not forcing the Crown and defence to interview every single potential juror. But fundamental principles of justice ought not to be compromised as a time-saving measure, particularly if we as a society are interested in genuine reconciliation with Indigenous people and racial justice.

Nobody’s saying eliminating peremptory challenges is a panacea, but it’s a step in the right direction.