A jury’s recent decision to acquit a 56-year old man on the charge of second-degree murder has prompted intense political debate about whether Canada’s current jury selection process is fair. The trial involved a Saskatchewan farmer, Gerald Stanley, who fatally shot Colton Boushie, a 22-year-old Cree man who, along with 4 friends, had driven onto the farmer’s property to get help when their vehicle suffered a flat tire.
The ‘not guilty’ verdict has received criticism by many, particularly among the Indigenous community, who assert that the all-white jury trial was unfair and the jury may have been biased. The Liberal government is taking these criticisms very seriously and is proposing reforms to Canada’s Criminal Code, including the jury selection process, aimed at making the system fairer for all Canadians.
As reported in the trial, before driving onto Stanley’s property, Boushie and his friends had been drinking and had attempted to steal a vehicle from a neighbouring farm. Once driving onto Stanley’s farm, the friends allegedly tried to start an ATV on the property and were yelled at by Stanley who thought that they were planning to steal the ATV. Stanley’s 28-year-old son then smashed the victim’s SUV windshield with a hammer, causing the SUV to crash into one of Stanley’s vehicles. After retrieving his handgun and firing warning shots into the air, Stanley testified that he fired more shots to empty the gun, and then reached into the SUV to turn off the ignition. At this point, Stanley’s gun allegedly went off by accident and shot Boushie (who was sitting in the front passenger seat) in the head.
This was by no means a ‘slam dunk’ case for the Crown. In order to find Stanley guilty of second-degree murder, the Crown was required to establish, beyond a reasonable doubt, that the accused had the intention to kill Boushie. To prove manslaughter, the Crown would need to prove that the accused’s action was “a marked departure from what a reasonable person would do in the circumstances”.
Whether or not the ‘not guilty’ verdict was just under Canadian law, some lawmakers and regular Canadians suggest that the all-white jury in this case calls into question whether ‘justice was being served’ in the trial. Certainly, it was a heart-breaking verdict for the family and friends of the victim who may feel that, in addition to their devastating loss, they are disadvantaged by a legal system stacked against First Nations people.
Canada’s Jury Selection Process
Canada’s Criminal Code allows lawyers for the Crown and defence to exclude potential jurors for any reason, through a system of ‘peremptory challenges’. The decision to exclude a particular person by either side does not require explanation by the lawyer, and is generally based on whether a potential juror may be biased against the Crown’s or defence’s side and therefore, may not result in a fair trial for their respective side. However, others criticize this process for being discriminatory and excluding Indigenous peoples.
Jury selection currently begins with a random process calling hundreds of potential jurors to appear for the selection process. In order to qualify as a potential juror in Ontario, a person needs to be a Canadian citizen, 18 years or older, and a resident of Ontario. The names of potential jurors, referred to as the ‘jury roll’ are often derived from provincial and municipal electoral lists.
The lawyers for the prosecution and defence are presented with a list of possible jurors, which includes background information such as the person’s name and occupation. On the day the jury is selected, potential jurors must appear in court and are asked questions to determine whether there are any reasons they shouldn’t serve, such as, if they might suffer a serious hardship or loss if they serve. A potential juror may also be rejected if they may have a conflict of interest (such as a personal connection with someone involved in the trial).
After the judge has determined which potential jurors should be excused, the Crown prosecutor and counsel for the defence may choose to challenge or reject a potential juror who they feel may be biased against their side, such as someone who has the same occupation as the opposing party. Under the peremptory challenge system, both the Crown and defence may challenge between 12 and 20 potential jurors in cases involving serious offences.
In a report titled ‘First Nations Representation in Ontario Juries” written by the Honourable Frank Iacobucci, the former Supreme Court Justice asserted his concern that Canada’s judicial process is unfair for First Nations peoples on several levels, particularly with respect to the jury selection process. First Nations peoples living on reserves are overrepresented in the prison population, and are significantly underrepresented on juries, and among prosecutors, defence lawyers and judges. One of Justice Iacobucci’s recommendations to improve fair representation on juries requires the government to obtain more current and accurate records of persons living on reserves, to ensure reliable information for selection and also, to encourage First Nations persons to return jury questionnaires and to serve when summoned.
The issue of potential discrimination in Canada’s jury selection process extends beyond First Nations people. All-white juries are a common occurrence in criminal trials and are referred to by some, as ‘institutionalized racism’. Yet the exclusion of minorities impacts not only Aboriginal peoples, but also Black, Asian, Hispanic and other minorities in Canada, which suggests this question should be addressed as a much bigger issue.
In a January 31st opinion article written for the Globe and Mail, University of Toronto law professor, Ken Roach, proposed that Canada abolish peremptory challenges and instead, allow the Crown and defence lawyers to challenge potential jurors on grounds that they (the prospective juror) are not likely to be impartial. Of course, this change will likely significantly increase the time required for jury selection, particularly in a serious case such as the Stanley trial where it took only one day to choose a jury.
Certainly, any proposed legislative change in Canada’s jury selection process should be carefully considered in terms of achieving fairness for both the accused and victims. And, in addition to being just, the system must also have the appearance of fairness.