Stanley acquittal should not lead to scrapping peremptory challenges, say criminal lawyers

The Toronto criminal lawyer who represented the family of Colten Boushie says the problem is the lack of indigenous jurors available for selection, not the jury who found Gerald Stanley not guilty in the young indigenous man’s death.

“Based on the evidence, the jurors took an oath to render a fair and just verdict. Based on the evidence they heard, the submissions made and the charges that the judge gave to the jury, a route of acquittal was a possibility,” says Chris Murphy, lawyer for the Boushie family.

On Feb. 9, Gerald Stanley was acquitted in the death of 22-year-old Boushie.

Boushie died on Aug. 9, 2016 after he and some friends drove on to Stanley’s property near Biggar, Sask. Police were later told by Boushie’s friends they had a flat tire and needed help. Stanley claimed they were trying to steal his ATV. Stanley testified that he was scared for his wife and son’s safety. He said that he fired two warning shots and thought the gun was empty. A third shot killed Boushie.

In the Stanley case, all members of the jury were white and the potential jurors who were indigenous were blocked by the defence, using peremptory challenges. No justification is required for the use of a peremptory challenge.

Murphy says he thinks peremptory challenges could be viewed as discriminatory.

"I sat next to Colten's family when the jurors were being selected. As each indigenous juror was challenged, there was a deepening feeling of hopelessness," says Murphy. "The goal of jury selection is to choose an impartial jury. There are better ways to assess impartiality than simply eyeballing a person. I walked away from this case believing that peremptory challenges are not in the interests of justice, and indeed borders on state-sanctioned discrimination."

A peremptory challenge allows the Crown or defence counsel to eliminate a potential juror from serving on the jury. In a case where the accused faces five or more years in jail in a charge other than first-degree murder and treason, Crown and defence are entitled to 12 peremptory challenges each.

The elimination of peremptory challenges would not help indigenous people or visible minorities in the justice system, lawyers say.

Murphy says the family does not necessarily believe indigenous jurors would have arrived at a different conclusion just because of their indigenous heritage.

“Their life experience and potential knowledge of indigenous traditions and customs would have assisted the entire 12-person jury at arriving at the truth because they would have experiences that they could share with the remainder of the jury that would put things in perspective about what the witness was testifying about,” he says.

Jessica Orkin, a partner at Goldblatt Partners LLP, says in this case peremptory challenges were “hugely problematic” but that getting rid of them will not fix the problems with representation of indigenous people on juries. The problem is that there are not enough indigenous people in the process from the beginning.

“If we had more representative jury rolls, if there were far more indigenous people on the rolls, then you have a limited number of peremptory challenges, you wouldn’t be able to use them to sway the jury in that way,” she says.

Criminal defence lawyer Sean Robichaud says that, as indigenous people are over-represented as the accused in the criminal justice system, eliminating the peremptory challenges to ensure the jury represents the victim will only disadvantage them.

“The right to challenge jurors is a right an accused, not of a victim or victims or witnesses of a trial, so that’s the starting point to all this,” he says.

In the Stanley case, the accused was white and the victim indigenous. Robichaud says that the roles are often reversed and the accused will be indigenous or a visible minority. In those cases, since peremptory challenges are meant to allow the defence some say in forming the jury, their elimination would not further the accused’s interest in a representative jury.

“To me, the position that’s being put forward is completely inconsistent with the law. It’s extremely dangerous. It is short-sighted and it’s actually counter-productive to the objectives to ensure that First Nations people get fairer treatment within the justice system.”

In an Ontario court of appeal case from 2001 —  R. V Gayle —  it was established that the Crown cannot use peremptory challenges for racial purposes. If a pattern is identified by defence counsel that the Crown is challenging jurors based on race, they can make an argument citing Gayle with the Judge.

When the defence uses peremptory challenges in a way seemingly motivated by the race of the candidates, it is harder to challenge those actions, Murphy says.

“There is a big difference between oversight of the Crown’s peremptory challenges for racial purposes and the defence’s use, being that the Crown has an obligation to uphold the Charter because they’re a state actor,” Orkin says.

In R. V Gale, the judges wrote, “the rationale for peremptory challenges is to foster confidence in the fairness and impartiality of jury trials. The Crown should not be permitted to subvert that rationale by using peremptory challenges to achieve precisely the opposite result.”

Orkin says that it may be useful to require an explanation for a peremptory challenge. The courts would have to develop case law on what are valid reasons to use a peremptory challenge.

She adds that Canada, unlike the United States, does not ask extensive and intrusive questions of its potential jurors. Peremptory challenges are a necessary tool to eliminate unsuitable jurors, and one case of possibly misused peremptory challenges should not mean their demise.

“I, as someone who practises on the defence side, am uncomfortable with the response to a case, an instance of injustice, where the peremptory challenges were used in an unjust way. I am uncomfortable responding to that by throwing out the whole institution of peremptory challenges,” she says.

Criminal lawyer Michael Spratt, Abergel Goldstein & Partners LLP, says there are many good reasons to use a peremptory challenge, such as if a juror is disinterested, appears biased or shows animus toward the accused.

“We need to have mechanisms for parties to exclude those individuals. And a peremptory challenge is the only way we currently have to make sure that our juries are engaged and will function appropriately,” he says.

Spratt says there are problems with the jury system and it is positive that politicians and the public are taking notice.

“Normally, the accused is a racialized individual or young indigenous man who is being tried by an all-white jury and it’s unfortunate that we had to wait for the death of an indigenous man for these questions to be raised,” he says. “But there clearly is a problem with under-representation of indigenous people on our juries and that is not just from the use of peremptory challenges, but that is from layer upon layer of systemic exclusionary measures that indirectly target indigenous people.”

Editor's note: Updated Feb. 15, 2018 11:09 a.m. to included additional comments from Chris Murphy.