The risks in fixing jury selection in Canada

By Yves Faguy February 20, 201820 February 2018

The risks in fixing jury selection in Canada

Alice Woolley has an interesting post up on the ethical duties of jurors, in the wake of the acquittal, by a jury on which seemingly sat no Indigenous Canadians, of Saskatchewan farmer Gerald Stanley in the killing of Colten Boushie, a member of the Red Pheasant First Nation.

Did the Stanley jurors act unethically? On the one hand, there is reason to be concerned that they may have done. The evidence against Stanley was so significant, and the evidence for this having been an accident that occurred despite his proper handling of the firearm so weak, the decision to acquit of manslaughter seems on its face unreasonable. One can speculate about the role of racial bias and stereotypes in the jury’s reasoning, and whether it simply refused to apply the law, preferring instead the position that killing is justified when people come on your property and make you afraid – i.e., that they refused to apply the law not as the conscience of their community, but because they disagreed with applying it here.

On the other hand, the lawyer for the Bouchie family, Chris Murphy, has said “…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.” If the evidence admitted raised a reasonable doubt in the jury’s mind, and the jury acquitted on that basis, their decision was proper, whether or not we agree with it.

In my view it’s simply impossible to know whether the Stanley jurors acted unethically. But the certain lesson to be learned here is that we need to ensure our juries are representative of the community, that we provide them proper instructions so that they understand their powers and how to exercise them, that we allow them to explain themselves, and that we treat them with the respect and consideration they deserve. Jurors do have ethical duties; it’s our job to help ensure they satisfy them.

Do read the whole thing.

A. Scott Reid, meanwhile, also has a must-read up – a primer of sorts on peremptory challenges in jury selection. Noting that peremptory challenges (not having to give a reason for excluding a potential juror) in criminal trials are a necessary “failsafe” when the triers get a challenge for cause wrong.  He warns there are no easy fixes the system:

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.

Reid’s post is also worth a read, as he offers some ideas on how to improve representativeness on jury panels, including requiring 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

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