A Saskatchewan jury’s acquittal of Gerald Stanley in the death of a 22 year old Cree man Colten Boushie has galvanized and polarized public opinion in Canada. Followed less than two weeks later by another jury acquittal in the death of 15 year old Anishinaabe girl Tina Fontaine, these cases raise troubling questions about whether Indigenous people can receive justice in the Canadian criminal justice system.
Colonialism and Systemic and Historical Racism
Both cases should be seen in light of systemic racism that has and continues to discriminate against Indigenous people both as accused and victims. More than one in four prisoners in Canada are Indigenous. Indigenous people, especially Indigenous women and girls, also experience significantly higher rates of crime than non-Indigenous persons.
Systemic racism against Indigenous people in Canada is historic and that history is colonialism. The acquittal in the Boushie case came in Battleford, the same place where on November 27, 1885, six Cree and two Assinboine men were hanged and buried together. They did not have counsel or translators at their murder trials. Their juries were composed of “white, Protestant settlers, the same persons who had lived in fear of an Indian attack during the rebellion.” Blair Stonechild and Bill Waiser Loyal till Death (Saskatoon: Fifth House Publishers, 1997) at 198. The presiding judge had recently had his house burned down and had written before the trials that the “the Indians should be taught a severe lesson.” Ibid at 211
Prime Minister Macdonald instructed that the Battleford Eight be charged with murder rather than treason to ensure the death penalty. Ibid at 199. A week before the hangings he contemplated that the executions “ought to convince the Red Man that the White Man governs.” Ibid at 221.
There is a straight line from 1885 to the present. It includes the wrongful conviction of 19 year old Mi'kmaq man Donald Marshall Jr. by an all white Nova Scotia jury in 1971. No Indigenous person had ever served on a jury in Nova Scotia reflecting in part the use of property tax and voter rolls that have excluded Indigenous persons.
The Tina Fontaine case echoes the 1971 murder of Helen Betty Osborne, a 19 year old Cree woman. Only one of four men involved was convicted of murder with another being acquitted by an all white jury in the Pas. Indigenous people made up about 30% of the community, but only about 18% of the prospective jurors. It did not matter, however, because the accused used six peremptory challenges to remove six Aboriginal people on the panel from sitting on the jury.
The Manitoba Aboriginal Justice Inquiry subsequently concluded: “Whether it is the accused or the victim who is Aboriginal, the perception of a fair trial will be enhanced if Aboriginal persons are properly represented on juries. They are, after all, very much affected by the outcome of trials in their communities.” Manitoba Aboriginal Justice Inquiry The Death of Helen Betty Obsorne (1991) ch. 8. It recommended that peremptory challenges be abolished.
The Panel of Prospective Jurors
The jury selection in the Stanley case followed all too familiar patterns of alienation and exclusion of Indigenous people from the justice system. Attempts were made to summon 750 potential jurors. We do not know how many Indigenous people were among the 200 who arrived in Battleford, but we do know that Indigenous under-representation on juries is a problem in many parts of Canada.
A 1992 Saskatchewan justice review raised concerns that Indigenous accused experienced difficulties being tried by a jury “of his or her peers”. Report of the Saskatchewan Indian Justice Review (1992) at 48. A 2004 report also recommended efforts to increase Indigenous representation on juries while noting that special efforts had been made to enhance it on coroners’ juries. Final Report from the Commission on First Nations and Metis Peoples and Justice Reform (2004) ch.6.
The Supreme Court in R. v. Kokopenace, [2015] 2 SCR 398 decided that there is no right to proportional representation on a jury roll or the actual jury. It rejected a results based approach in favour of one that required the state to make reasonable efforts. It stressed that jury selection should not be used as a means to remedy systemic wrongs and problems. It upheld a manslaughter conviction even though only 8 of 175 people on a Kenora jury panel lived on reserve. The Court also held that the Indigenous accused did not have standing to raise equality right claims on behalf of prospective Indigenous jurors.
In a strong and prophetic dissent, Justice Cromwell (Chief Justice McLachlin concurring) argued that the majority’s reasonable efforts test was not sufficient given the significant under-representation of Indigenous people on the jury roll and the state’s ability to do better in achieving a representative sampling of the community. Cromwell J. stated that “the unintentional yet substantial under-representation” of Indigenous people on the jury “inevitably, in my view, casts a long shadow over the appearance that justice has been done.” Ibid at 304.
Reform 1: Amend s.629 of the Code To Make Jury Panels More Representative
Although the summoning of jurors is a matter of provincial responsibility, Parliament can and should reverse Kokopenace. The Charter as interpreted by the Supreme Court establishes only minimal standards of fairness for criminal trials.
Since it was first enacted in 1892, section 629 only allows the accused or prosecutor to challenge jury panels on the basis of “partiality, fraud or wilful misconduct.” Almost all reported challenges under this old provision have failed in the absence of evidence of intentional discrimination.
A more modern standard rooted in substantive equality and patterned after the Kokopenance dissent could promote more representative jury panels. The accused and the prosecutor should be able to challenge jury panels under s.629 because they fail to produce a fair and random sample of the community. Such a reform would place pressures on provinces to develop better ways to ensure more representative jury panels including outreach and support of Indigenous and other groups such as African-Canadians who are under-represented both on jury panels and actual juries. Local jury trials especially in the north and better pay for jurors could also ease the barriers and hardships that some Indigenous people face in serving on juries.
Reform 2: Abolish Categorical and Unjustified Restrictions on Potential Jurors and Allow Volunteers
Section 638 should also be amended to remove the categorical and archaic disqualifications of jurors who are “aliens” or “have been sentenced to death” or a prison term over 12 months. As Justice Iacobucci documented many Indigenous people are put off by the questions about Canadian citizenship. There are many more proportionate approaches than a life-time ban for those convicted of serious offences. It is difficult to justify categorical exclusions many of which date back to 1892.
The Code should also be amended to allow those who are most comfortable in Indigenous languages to serve on juries with interpretation services, as is already done in the Northwest Territories and Quebec. If necessary, provinces and territories could opt in as translation services became available.
As used in New York and recommended by Justice Iacobucci, volunteer jurors should be authorized in the Code to supplement the jury roll as another way to increase Indigenous participation. There is already an element of de facto voluntariness given high rates of non-returns of jury summons and high rates of excusing jurors on a hardship basis. The real issue with all prospective jurors should be whether they are competent and impartial.
Discriminatory Use of Peremptory Challenges
We know that Mr. Stanley used at least four peremptory challenges to exclude visibly Indigenous people from the jury. After examining the trial of those accused of murdering Cree women Helen Betty Osborne in the Pas and finding evidence of both defence and Crown use of peremptory challenges to exclude Indigenous people, the Manitoba Aboriginal Justice Inquiry recommended in 1991 that peremptory challenges be abolished. If this had been done, the jury in the Stanley trial may well have been differently composed.
Justice Iacobucci in his 2013 report warned that despite a range of efforts that could and should be undertaken to increase Indigenous representation on juries, they all could be defeated if peremptory challenges were used in a discriminatory manner to exclude prospective Indigenous jurors.
Alas, Canadian law has been unable to control the discriminatory use of peremptory challenges. The Ontario Court of Appeal in R.v.Gayle (2001) 154 C.C.C.(3d) 1 suggested that their discriminatory use may be inconsistent with the special role of the Crown but the few reported challenges to Crown uses of peremptories have failed most recently in R. v. Cornell, 2017 YKCA 12, a case where concerns were also raised about the under-representation of Indigenous people on the jury panel. The US has developed a complex jurisprudence to attempt to control discriminatory uses of peremptories but many have concluded that it has failed.
Reform 3: Abolish Peremptory Challenges
Equality cuts both ways. We should not ignore discriminatory use of peremptories by the accused or the realistic possibility of partiality because of the race of the complainant. There are many cases where stereotypes about Indigenous victims may have the same type of insidious and tainting effect as stereotypes about Indigenous accused
Control of discriminatory defence use of peremptories would be very difficult. The victim may not have standing and would often have to rely on the Crown. In any event, the Crown would have to establish state action and an equality violation under our complex and contextual equality rights jurisprudence. A statutory mechanism to prevent discriminatory use of peremptories would be cumbersome and likely ineffective. The simpler and better solution is to abolish peremptories. The accused does not have a Charter right to peremptory challenges or racist uses of them.
The Arguments to Retain Peremptories
Some defence lawyers and some Crowns oppose the abolition of peremptories. They cite cases where they have used peremptories to keep people off juries who they sincerely believe were partial or incompetent. These concerns can be addressed by expanding challenges for cause and giving judges more discretion to remove jurors.
Some invoke Blackstone who defended peremptories as part of “the tenderness and humanity” towards the accused that “English laws are justly famous”. But even Blackstone admitted that peremptories could be used by the parties to ensure that they not “be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike.” Moreover, England abolished peremptories in 1988. Canada should do so in 2018.
Some argue that peremptories can be used to produce a more representative jury. But there are other more transparent tools to achieve these laudable objectives including requiring a more inclusive standard for jury panels under s.629, abolishing some of the categorical exclusions of non-citizens and those sentenced to more than 12 months. Each province and territory must work with Indigenous communities to find creative and respectful ways to make Indigenous people more willing and able to serve on juries.
Reform 4: Expand Challenges for Cause
Many of the arguments in favour of peremptories and against expanded and volunteer jury participation ignore the continued and perhaps more important role that challenges for cause could play under a reformed jury selection system. The fact that the US has gone too far in allowing questioning of prospective jurors does not mean that we have struck the right balance between juror privacy and the need for an impartial jury.
Section 638 of the Code could be amended to resolve conflicting lower court jurisprudence and allow for the use of more sophisticated multiple choice questions that could better reveal the deep and often subconscious type of racism that may give rise to challenges for cause. It could also deal with real concerns that the blunt question allowed in Williams does not really reveal subconscious racist stereotypes and assumptions about accused or victims that may taint jury deliberations.
Expanded challenges for cause may take more time, but probably less time than US style litigation about alleged discrimination in the use of peremptories or even the extensive satellite litigation that already occurs over the use and order of peremptory challenges today.
The Crown’s Failure to Challenge Prospective Jurors for Cause for anti-Indigenous Racism
It does not appear that prospective jurors were questioned in the Stanley/Boushie trial under R. v. Williams [1998] 1 SCR 1128 about whether the racial tensions behind the case would affect their ability to decide the case impartially on the basis of the evidence. This is a shocking and disturbing omission that has received much too little attention.
There is precedent for the Crown to establish that there is a realistic possibility of partiality and hence a ground for challenge for cause in cases where the victim was Indigenous. In R. v. Rogers (2000) 38 CR (5th) 331; [2000] OJ No 3009. Justice Mackinnon held in that case “racism will be at work on the jury panel as soon as the victim is described as an Aboriginal… I do not agree with defence counsel’s submission that the question proposed would be counterproductive in that it would inject racial overtones into a case where none previously existed. A question directed at revealing those of the panel whose bias renders them partial does not “inject” racism into the trial but seeks to prevent that bias from destroying the impartiality of the jury’s deliberations.” ibid at para 6 Consistent with R. v. Find [2005] 3 SCR 458 [7], the focus of such a Crown initiated challenge for cause should be on racial hostility towards in this case the complainant.
In a case where an accused complained about the lack of Indigenous people on a jury in Estevan, the Saskatchewan Court of Appeal in R. v. Horse, 2003 SKCA 51 [9] stressed the importance of the Williams question to ensuring the fairness of the trial. But regrettably the Williams question designed to screen jurors for racism was not asked in the Stanley/Boushie case. This combined with the accused’s use of peremptory challenges to exclude visably Indigenous jurors undermines public confidence in the verdict.
The Williams challenge for cause is at present the only shot at ensuring that racism does not infect jury deliberations. Section 649 and the common law rule of the secrecy of jury deliberations as interpreted in R. v. Pan [2001] 2 SCR 344 means that even explicit appeals to racism in jury deliberations will not be grounds for appeal.
Reform 5: Affirm Judicial Discretion to Remove Partial or Incompetent Prospective Jurors
If peremptory challenges are abolished, trial judges may also need to make increased use of their discretion under s.632 of the Code to excuse jurors for reasonable causes related to competence and perhaps impartiality. Fortunately, the courts have stressed the breadth of the judge’s discretion noting that it is conducted in open court and that judges can excuse potential jurors not only because of hardship and partiality but for “any other reasonable cause”. R. v. Kossyrine, 2017 ONCA 388[50]; R. v. Riley, 2017 ONCA 650 [124].
The Supreme Court has, however, warned that trial judges should not usurp the role of the triers in challenge for cause. Thus it may be advisable for Parliament to affirm the supervising role of the trial judge in ensuring competent and impartial jurors. Increased judicial discretion in shaping juries should be more acceptable and subject to review than allowing the parties to use peremptories for their partisan advantage.
The Urgent Need for Jury Reform
Juries are important because they are used in our most serious cases and because they are symbolic of the community that we are and want to be. Although accused often avoid jury trials, they have a Charter right to them if they face five years imprisonment or more.
Murder trials can be conducted by judge alone with Crown consent but the acquittals in the Cormier and Stanley case raises concerns that the accused may have benefited from defences and bias that effectively placed young Indigenous victims on trial.
A jury based on a fair cross-section of the community that has to unanimously agree to a verdict can encourage full and frank discussion and empower those who find themselves in the minority. At the same time a jury that does not represent a cross-section of the community can render verdicts that will inflame tensions and raise reasonable concerns about bias and racism. In a democracy, the verdicts reached by juries, as well as the way they are selected, are legitimate subjects for debate.
But things must get better. A first but not sufficient step is to abolish peremptories while also expanding challenges to the representativeness of the jury panel and to ensure the impartiality of each juror. There is a special need to work creatively with Indigenous communities to attempt to increase Indigenous participation on juries and to eliminate some of the hardships and reasonable suspicions that Indigenous people may have about jury service in a Canadian criminal justice system that has failed their communities. We need to be imaginative and consider the use of volunteer jurors from Indigenous communities.
All of this will be for nought, however, if Indigenous jurors are subject to discriminatory peremptories. Peremptories are an invitation to the accused and the Crown to act on unarticulated and unjustified prejudices and hunches and to attempt to achieve the jury they think is most favourable for their cause. Our justice system has failed to regulate their discriminatory use. We can learn from the problems that US courts have had in regulating discriminatory uses of peremptory challenges. Facially neutral reasons for discriminatory use of peremptories such as "I am excluding this person not because he or she is Indigenous but because of where they live or work or who they know" are not likely to inspire public confidence that there is no discrimination.
A Better Way?
It is a testament to the patience, restraint and strength of Indigenous communities that their reaction to the acquittals in the Stanley and Cormier cases involving the deaths of Colten Boushie and Tina Fontaine cases have been not only peaceful, but eloquent and dignified. Instead of understandable anger and rage, the families of the young deceased and others have called for peace and reform.
We should have the humility to recognize that the Canadian criminal justice system has repeatedly failed Indigenous people both as accused and victims. In some and perhaps many cases, there may be better ways to handle criminal justice matters that do not involve juries under the Criminal Code but rather involve Indigenous laws and justice systems.
That said, the Canadian criminal justice system must not discriminate and jury selection reform is urgently needed to prevent a repeat of the discriminatory jury selection process used in the Colten Boushie/Gerald Stanley case.
The easiest fix is abolishing peremptory challenges. In addition, the grounds to challenge jury panels should be expanded to include concerns about their representativeness. All jurors must be impartial and competent, but a number of categorical restrictions on who can serve as a juror can no longer be justified. Instead, the grounds for challenges for cause and judicial screening should be expanded and clarified to serve the public interest in having impartial and competent jurors who are selected in a fair and transparent manner.
