by Alison Craig
On March 29, 2018, Bill C-75 was introduced for its first reading in the House of Commons. Proponents of the Bill argue that it will bring about a “cultural shift” in the justice system, speed up the process, and unclog the courts. The Bill makes significant changes to the jury selection process – changes which result in more unfair trials, less cultural diversity on juries, and a greater potential for wrongful convictions. Gone will be peremptory challenges, which allow counsel for the accused (and the Crown) to exclude a limited number of jurors without having to provide a reason.
Jury selection is one of the most important steps in the trial process. A fair, impartial, and representative jury is essential to ensuring that a person accused of a crime gets a fair trial. Indigenous people and people of colour are entitled to be tried by a jury of their peers. Until now, the use of peremptory challenges has been a critical tool in bringing that about – or at least attempting to.
I will never forget walking into the courtroom in a small Ontario city with my black client several years ago to select a jury and seeing 199 white faces staring back at me. Only one out of the 200 potential jurors was black. My client was understandably petrified. I was able to use the peremptory challenges available to me to allow the one black man to be on the jury. Had the challenges not been available, my black client would have been tried by an all white jury.
This is an experience with which every defence lawyer is well familiar. Even in large cities like Toronto, racialized communities are grossly underrepresented on jury panels. Lawyers routinely use peremptory challenges to exclude white jurors in order to give racialized jurors a chance to be selected. Taking them away will result in more all-white juries, and consequently more unfair trials. Trial fairness requires that juries include people with similar life experiences as the accused person.
The proposed change in the law comes in response to the verdict in the Colten Boushie trial, in which an all white jury acquitted a white man of murdering an indigenous youth. The Government argues it will result in juries that are “more representative of the population”. Nearly every trial lawyer, however, believes it will do the exact opposite. If the Government is truly concerned about representative juries, they should take steps to address the fact that racial minorities and indigenous people are grossly underrepresented on prospective jury panels, rather than removing one of the few critical protections an accused person has during the jury selection process.
Peremptory challenges are not just used to attempt to ensure racial diversity. There are many other unfit jurors that peremptory challenges are used to exclude. For example, there is the potential juror who gives the accused dirty looks. There is the potential juror who would clearly rather be any place other than serving jury duty. There is the potential juror who asks the judge to be excluded for a humanitarian, financial, or compassionate reason, yet is for some reason refused. Those are just a few examples of potential jurors that I routinely exclude with peremptory challenges. Ask yourself this: if you were an accused, would you feel that you were getting a fair trial with any of those people on your jury? If your guilt or innocence were being judged by somebody who had clearly decided your guilt before hearing any evidence, or by somebody whose mind was clearly elsewhere? Likely not. Yet without peremptory challenges, you would have no choice.