Canada's jury system does not adequately address racism and bias

In an 1873 letter to the New York Tribune, Mark Twain wrote, “The humorist who invented trial by jury played a colossal practical joke upon the world, but since we have the system we ought to try and respect it. A thing which is not thoroughly easy to do, when we reflect that by command of the law a criminal juror must be an intellectual vacuum, attached to a melting heart and perfectly macaronian bowels of compassion.”

The truth is that it is getting harder and harder to respect the jury system.

In April, a Toronto jury asked Superior Court Justice Michael Code for help during deliberations. As reported by the Toronto Star, “The overwhelmingly white jury had reached verdicts for the two Black accused in the Sept. 23, 2019, killing of Edwin McGowan, 52 – both guilty – but could not reach a unanimous decision over the fate of the sole white defendant, several jurors explained in a set of notes to the judge.”

According to the notes passed to the judge, the jury suspected the one juror resisting to convict the white accused was racist.

Ultimately the jury convicted the white accused of the lesser charge of manslaughter, but the stench of racism hung over the court and will undoubtedly be an issue on appeal.

In Canada, unlike our neighbours to the south, we know very little about specific jurors, and there are few mechanisms to weed out racism and bias.

When an accused is a visible minority, the primary safeguard against racism is asking each juror if they are racist.

The question is not even that clear and typically goes something like this, “As the judge will tell you, in deciding whether or not the prosecution has proven the charge against an accused, a juror must judge the evidence of the witnesses without bias, prejudice or partiality. Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is a [insert race] man and the deceased is [insert race].”

We count on racists admitting they are racists, and we allow admitted racists who say they can still be impartial to serve on the jury.

And a 2019 federal law designed to increase jury diversity and equity has worsened things.

In 2018 Gerald Stanley was acquitted of murder for his role in the tragic death of Colten Boushie, a young Indigenous man from Saskatchewan. After the acquittal, Boushie’s family made allegations that Stanley’s defence used peremptory challenges, which allow either the Crown or defence to reject a limited number of jurors without any reason, to exclude Indigenous jurors.

The family was right. Stanley used peremptory challenges to exclude five Indigenous prospective jurors from the jury during the jury selection process.

Then federal Minister of Justice, Jody Wilson-Raybould, was quick to say that she shared the family’s concerns but cautioned that any changes to the jury selection process would require “careful study and consideration.”

And then, less than a month later, Wilson-Raybould introduced Bill C-75, 600 pages of omnibus legislation which overhauled the jury-selection process and eliminated peremptory challenges.

Bad facts can make bad laws, and that is just what happened.

Defence lawyers told the government that the accused often uses peremptory challenges to increase jury diversity. If the jury looked all white, defence counsel could exclude white jurors to make the selection of a racialized juror more likely.

Wilson-Raybould told the House of Commons that her legislation would “strengthen the power of judges to stand aside some jurors in order to make room for a more diverse jury that will in turn promote confidence in the administration of justice.”

The Supreme Court of Canada disagreed.

In the case of Chouhan, Canada’s highest court ruled, “To the contrary, the reasonable, informed observer would lose confidence in a jury selection process that requires trial judges to sacrifice the vital principle of randomness on the altar of diversity and select individual jurors merely on the basis of their race or other aspects of their identity.”

Last week, the Ontario Court of Appeal was even more explicit in ordering a new trial because the judge used the C-75 stand aside powers, saying “the judicial stand-aside power … cannot be used to actively promote diversity on the … jury.”

But the Supreme Court seems to think this is all fine. They say that the “vital principle of randomness” in the selection of jurors ensures impartiality by eliminating systemic bias against certain classes of accuseds, provides a diversity of viewpoints, and prevents the exclusion of particular groups from jury service.

In other words, the Supreme Court has embraced whitewashed fiction as the main guard against a poisoned jury.

In reality, jury selection is far from random. Canadian juries are usually middle class, white, and old. Half of any jury pool will be excused for financial hardship.

In Ontario, jurors start receiving compensation of $40 per day on the 11th day of trial, which increases to $100 a day if the trial goes longer than 50 days. People who can’t afford to travel can’t be on a jury. So, single parents with childcare issues, the self-employed, or the working poor cannot afford to be on a jury.

And it is impossible to be randomly selected for jury duty if your name is not on the list in the first place. There have long been issues with broken jury lists that systemically exclude racialized, impoverished, and Indigenous citizens.

In reality, randomness means whiter and wealthier juries with little ability to weed out racism and bias.

Twain knew more than our politicians and courts combined when he said, “It is a shame that we must continue to use a worthless [jury] system because it was good a thousand years ago ...”

Twain was right. Until we fix the systemic and fundamental problems with the jury system, it is time for trial by jury to join trial by ordeal as a criminal justice relic.