The Tragedy of Colton Boushie – Jury Selection in Canada and Peremptory Challenges
With the tragic death of Colton Boushie being much in the news of late following the acquittal of his killer, Gerald Stanley, there has been ample discussion about the purported travesty which is the Canadian jury selection procedure. Many commentators, often distinguished academics from a variety of Canadian law schools, have been quick to suggest that the jury selection procedure is tainted by racial bias, or at least allows racial bias to infect the selection process.
The purpose of this blog is to give a primer on the jury selection process in Canada, and then to examine how these processes played out in the Gerald Stanley trial.
Jury Selection Generally
The Criminal Code of Canada sets out the process by which juries are selected in this country. The Code provides that in every jury selection the defence shall be called upon before the Crown on the first challenge, thereafter the Crown and the defence shall alternate being called upon first to make their challenge.
The Code also sets out the number of peremptory challenges available to the Crown and the defence. For offences for which the maximum sentences is five years or less, each side is allowed four (4) peremptory challenges. For trials of First Degree Murder and High Treason, each side is permitted twenty (20) such challenges. All other trials see twelve (12) peremptory challenges a side. Note that even Second Degree Murder defendants only get twelve challenges.
If the trial judge orders alternate jurors to be selected, then each side is entitled to one additional peremptory challenge for each alternate juror. For example, at a trial of First Degree Murder with an order for two alternates, the Crown and defence would each have twenty-two (22) peremptory challenges.
In trials with multiple defendants, each defendant gets the number of challenges set out in the Code. The Crown, however, gets the sum total of ALL the challenges of each of the defendants. Thus, in a trial of First Degree Murder with, for example, three co-defendants and no alternate jurors ordered, each defendant would be allotted twenty peremptory challenges, while the Crown would be allotted sixty (60) challenges.
Usually before the selection / challenge procedure takes place (which will be discussed below), the judge excuses a number of potential jurors for various reasons. Some of these are medical or work related. Others, however, are premised on the person being unlikely to follow their oaths to try the case based solely upon the evidence called and the legal instructions of the trial judge. Potential jurors who know the judge, any of the lawyers, witnesses, complainant, or the defendant, are excluded from the jury. As well, people who themselves have been victims of similar offences, or even those who know people who have been victims of similar offences, are routinely excluded from serving on the jury. This is because those of us in the trenches conducting trials every day understand that those jurors may have strong feelings about the case being tried which are likely to transcend the evidence. They may well not be able to judge the case fairly, which is what justice in any particular case demands.
Justice demands a fair trial, not any particular verdict.
Challenge for Cause Jury Selection
Expanded procedures known as a challenge for cause are employed when there is reason to believe that for some reason the potential jurors may not be impartial. By far the most common ground of a challenge for cause is racial bias. Any visible minority is entitled as of right to challenge every potential and enquire into whether that person has a bias against their particular racial or ethnic background, and whether if they do it can be set aside. The other primary ground of challenge for cause shows up in cases where there has been significant pre-trial media publicity.
In these sorts of cases, the challenge for cause procedure occurs first. Two “triers” (potential jurors randomly chosen, they cannot end up on the jury), hear the challenge question asked by counsel. They hear the other potential jurors answer the question. They then decide whether the potential juror is “acceptable” to sit on the jury (in other words, the person has no bias, or can set that bias aside) or is “not acceptable”.
All of those potential jurors who are deemed to be “acceptable” then face the defendant and can be challenged peremptorily by either the Crown or the defence, until twelve jurors, and any alternates have been chosen.
Gerald Stanley and Colton Boushie
Criticism of the Gerald Stanley trial for shooting and killing Colton Boushie, a young First Nations man from Saskatchewan, began almost immediately during the selection of the jury. The defence used their peremptory challenges to, in part, challenge every person who came before the court who appeared to be First Nations. This use of the peremptory challenges, it is said, amounted to overt racism in the selection process.
In my view, this is an unfair criticism for several reasons. Firstly, it is a commonly accepted truth amongst Crowns, defence counsel, and judges, that having jurors who sympathize, empathize, or identify with the defendant, the victim / complainant, or with the witnesses, is simply not a good idea. The reasons for this should be obvious.
If someone identifies with the victim, or the defendant, the juror may not be able to assess the evidence impartially. They may tend to view the evidence more favourably towards the defendant if they identify with defendant and more favourably towards the victim if they identify with the victim. This is a natural human tendency and one that everyone in the justice system recognizes. If this tendency were not accepted, we would not exclude jurors who know witnesses, defendants or counsel.
Seen in that light, the exercise of peremptory challenges by the Gerald Stanley to exclude First Nations jurors was an exercise in excluding jurors who might be likely to identify with the victim of this tragic shooting – Colton Boushie. This sort of exclusion goes on every day, in every jury trial, in every province in Canada. It just happens that in this case the basis of the challenged jurors being likely to identify with Mr. Boushie was premised on the racial makeup of the jurors and Mr. Boushie.
In other cases, it might be the employment status of the jurors which could cause them to identify with the victim. Defence counsel would be negligent not to peremptorily challenge taxi drivers from a jury panel judging a case about the robbery of a taxi driver. No one would suggest it was improper for defence counsel in such a case to challenge the juror.
Nor would anyone think it was improper to peremptorily challenge based on racial makeup where the defendant was a racial minority. If a black defendant was on trial for sexually assaulting a white complainant, given the prevalence of anti-black sentiment (a predominant historical underpinning of which is the completely unfounded belief that black males are assaulting white males and sexually assaulting white females) you can be sure that as many white males as possible would be challenged.
The second reason why the criticisms of the Gerald Stanley jury selection are unfounded and unfair is simply that there is no way to know the actual racial makeup of the jurors selected or challenged. While defence counsel may have been able to successfully challenge potential jurors who had an outward appearance of being First Nations, there could well have been persons who identify as First Nations who do not outwardly appear to be so. It would have been impossible to exercise a challenge on those potential jurors. We will simply never know the actual racial makeup of Gerald Stanley’s jury.
Criticisms of Peremptory Challenges by Academics
The criticisms of the process, the evidence, the defence theory, and the verdict, predominantly coming from the ranks of academia, are notable as coming from people who did not actually sit in the trial. These academics, while well-meaning, are premising their comments and criticisms upon only what the media has reported.
If someone wishes to criticize a verdict or the way in which a trial played out, one should be aware of all of the evidence in a case, not simply what has been reported in various media reports
Be that as it may, the criticisms in this case boil down to allegations of different manifestations of the same overarching problem – racism in the Canadian Legal Institution.
To be sure, racism is endemic in Canadian society. While we like to think of ourselves as “not like the Americans”, or that racism exists in Canada but that “it’s not as bad as in America”, sentiments like that are likely untrue, and definitely unhelpful in rooting out racial bias.
However, to leap from “racism is endemic” to “every single one of the twelve jurors was racist”, which appears to be what some academics are suggesting, is unfair, and unfortunate. Many of these same academics are quick to suggest that jurors who identify with the victims can put that aside and “follow their oaths” to judge the case fairly.
Twelve jurors gave up a significant period of time from their personal life to listen to the entirety of the evidence. Something none of the academics currently criticizing their verdict appears to have done. They heard all the evidence, the submissions of counsel, and the instructions of the trial judge, and they did so under the glare and scrutiny of national media coverage. They are now being publicly accused of racial bias
Why Peremptory Challenges are Important
Peremptory challenges are very important tools in selecting a jury. There are times during a challenge for cause selection when the triers, frankly, get it wrong. A clearly unacceptable juror, who explicitly indicated he or she would be biased, is deemed to be acceptable by the triers. I have personally seen this happen numerous times. Challenging the juror peremptorily is then the only way to exclude this person from the jury. It becomes the failsafe when the challenge for cause process is ineffective.
Peremptory challenges are also important for weeding out jurors who are evidently hostile to the defendant. It may not be for any ground that is otherwise challengeable. In other words, the juror may not be biased on grounds of race, or publicity. But the juror may glare at your client during selection. The juror may appear confused, or not able to follow instructions. Those are often not the sorts of jurors counsel wants on their client’s jury.
The reasons for exercising peremptory challenges are varied and virtually infinite. Different counsel will give you different reasons for why the same person should have been challenged. Or different reasons why the same person should have been on the jury. The selection of jurors is more of an art than a science. But it is the use of peremptory challenges that allows counsel to pick a jury that gives his or her client the best possible chance at acquittal, which is the explicit role of defence counsel.
There are no easy fixes to selecting a jury in Canada. One suggestion put forward after the Gerald Stanley case was that the Crown should have brought a race-based challenge for cause. Essentially to ask the jurors if they could decide the case fairly based on the fact that Colton Boushie was First Nations. This might well have been effective. On the other hand, perhaps First Nations people, being asked if they could be impartial would have said no, and thus been challenged for cause by the triers, meaning another First Nations person off the jury but without the defence having had to use a peremptory challenge.
Before dismissing this possibility as speculation, allow me to let you in on a little secret. This happens with a fair degree of regularity in our courts. I have conducted a number of jury selections for black defendants in which a black juror said he or she could NOT be impartial where the defendant was black and the Crown case consisted of police witnesses.
There is no guarantee that a Crown challenge for cause would have resulted in any First Nations jurors on Gerald Stanley’s trial.
Eliminating peremptory challenges is not only unproductive, it is counter-productive. Exercising peremptory challenges is one of the ways that counsel defending a racial minority, can attempt to ensure that someone of the same racial background as the defendant is on the jury. If someone of the same racial background is six jurors away, and everyone in-between is white, peremptory challenges allow the defence to get to that juror. Eliminating peremptory challenges will actually make it more difficult for racialized defendants to have a racialized juror on the jury.
As always, high-profile cases make for bad decisions on criminal justice reform. There is a tendency amongst commentators, and particularly amongst politicians, towards knee-jerk reactions.
If there is a conversation to be had about jury selection, let’s have it where it belongs, in the Parliament, or at least in Parliamentary committees. And let’s involve the people who do this work every single day – Crowns and defence counsel who are doing trials, particularly jury trials, and who have experience with these very issues.
With all that said, here are some very workable suggestions for increasing representativeness of jury panels, and hopefully juries.
1. Improve the methods with which jury rolls are compiled. It is inconceivable that in a country as diverse as Canada, one can still see jury panels assembled, 100 – 200 people, in which only a handful is non-white. Clearly a more comprehensive jury roll is required. Different provinces use different methods of selection. Some use driver’s licensing data. Some use voting lists. The point is, each of these systems has gaping holes. Some people don’t drive. Some don’t vote. Very often, it is racialized minorities who are left off these sorts of lists. So government needs to devise a better system of putting together eligible jurors.
2. Increase the number of people who are eligible to serve on juries. Section 3(4)(b) of the Juries Act of Ontario provides that persons who have been convicted of an offences “which may be prosecuted” by indictment, are ineligible to serve on a jury, unless they have received a pardon. I will let you in on anther little secret. The vast majority of offences in the Criminal Code are what are known as “hybrid” offences. That is, they may be prosecuted summarily, or by indictment, at the discretion of the Crown. In other words, they “may be prosecuted by indictment”. Note that the section does not say a person is ineligible for jury duty if they were convicted of an offence “which was” prosecuted by indictment. Want to know a third little secret? The vast majority of offences in Canada are prosecuted summariliy.
The result of this single provision is that people who have had very minor run-ins with the law, are ineligible for jury duty. Often times those persons are racialized minorities. Mischief Under $5,000 (petty vandalism), Theft Under $5,000 (oftentimes shoplifting), Simple Possession of ONE GRAM of cannabis resin or 30 grams of marijuana are all hybrid offences. A number of other fairly minor offences, such as those related to gaming and betting (sections 202, 203, and 206) are all indictable offences. Accordingly, anyone who has ever been convicted of any of these sorts of offences is ineligible to serve on a jury unless they have obtained a pardon.
Racialized individuals, particularly First Nations, but also black and others, have a significantly higher rate of being investigated by the police. Once investigated, they have a significantly higher rate of being charged and convicted. The result, is that a far lower proportion of blacks and First Nations persons remain eligible for jury duty as compared to whites, but this is often due to being convicted for extremely minor offences. As well, these are the very same people who may not be able to afford or obtain a pardon, so they remain ineligible to serve on a jury for the rest of their lives following a youthful indiscretion.
If the government is truly serious about increasing the rate of visible minorities in jury pools, take steps to remove barriers to their participation such as the above-discussed provision, or similar provisions. Perhaps consider making pardons automatic for select minor offences such as shop-lifting provided there is no re-offence within a set period of time.
3. Require the Crown to justify the use of its peremptory challenges. The Crown is a quasi-minister of justice. The Crown does not win or lose but only seeks justice. The defence, by contrast, is duty-bound to use every lawful, ethical means to try to obtain an acquittal for his or her client. The Crown should have a very persuasive reason for peremptorily challenging a juror. The defence need not have such a reason, and certainly should not be required to state the reason.
Requiring the Crown to state and justify the exercise of its peremptory challenges would eliminate the risk of the Crown challenging every racial minority on the panel. To those truly dedicated to the improvement of fairness in the criminal justice system for racialized minorities, this is the far greater risk than that of the defence seeking to obtain a favorable jury.
4. Allow juries to discuss their reasoning after the delivery of the verdict. One unfortunate fallout from the Stanley verdict is that jurors who are now being accused of being racist are unable to explain themselves or their verdict. If jurors were permitted to discuss the deliberations, even in broad terms, then we would all better understand how and why they came to their collective decision – the verdict.
Such an amendment would also have long-term benefits. It would allow studies of juries, and it would allow researchers better access to understand the dynamics behind juror decision-making. It would better reveal actual bias and by that revelation, allow better changes to preclude it in the future.
5. A final solution might be to have a much more intense jury selection process, similar to how juries are selected in the United States, in which prosecutors and defence counsel are given wide latitude in asking potential jurors numerous questions to determine that juror’s suitability.
While this sort of procedure might result in a longer process and more court time being required for a trial, the benefit of having a vetting process that is in depth and allows a better understanding of each juror’s background would vastly outweigh the costs of having lengthier trials. The quality of justice should not be determined by reference to how long a trial takes.
In closing, Colton Boushie’s death was a tragedy, but we should not allow our elected officials to rush through ill-conceived “remedies” for the justice system that would do more harm than good. There are solutions out there to be had. Eliminating peremptory challenges is not one of them. Let us hope that the government consults with trial lawyers to seek out more effective tools to rid the justice system of bias in its ranks.