Two years ago, the federal government axed peremptory challenges, removing the ability of Crown and defence counsel to reject potential jurors out-of-hand, without any need to explain.
That change, according to the Canadian Association of Black Lawyers, was a dangerous misstep. "Peremptory challenges are required to protect the constitutional rights of Black accused persons," the Association wrote in its written submissions to the top court in R. v. Chouhan. Abolishing them led to "the exacerbation of the very issue that it claimed to fix: systemic racism."
Aboriginal Legal Services, also intervening in the case, took the diametrically opposite view. "The exclusion of Indigenous jurors through the use of peremptory challenges is a real and persistent problem that has a corrosive impact on the jury process," the organization told the court in their appeal factum. It noted that Indigenous groups have been calling for the elimination of automatic jury disqualifications for years.
It was an unusual split. Peremptory challenges were eliminated in 2018, as CBA National reported at the time, in a bid to rectify the perceived injustice of Gerald Stanley acquittal by an all-white jury after standing trial for the murder of Indigenous youth Colten Boushie.
Surprising some court watchers, the Supreme Court decided Chouhan from the bench earlier this month and upheld the law eliminating peremptory challenges.
André Bear, who is pursuing his law degree at the University of Saskatchewan, offers two conflicting stories that illustrate well what's being lost and gained, now that peremptory challenges are gone for good.
He recounts an experience during Stanley's criminal trial. "A visibly native potential juror walked in the room — he had two braids, and dark skin," Bear says. A peremptory challenge was used "once the defence lawyer got a good look at him," he says.
He provides the counterexample of Austin Eaglechief, an Indigenous man who died after a chase involving Saskatoon police in 2017. A coroner's inquest impaneled a jury to study the incident and make recommendations. "It was peremptory challenges that were used... to deny jurors who had ties to the Saskatoon Police Service," Bear notes.
Bear, a member of the Indigenous bar, also serves on the Canadian Juries Commission and as a chief's liaison for the Confederacy of Treaty Six. Those two examples illustrate, for him, that even if the challenges have a useful function, their use in building fundamentally non-representative juries says all it needs to about their overall effect on the system.
Joshua Sealy-Harrington, who practises at Power Law and is currently pursuing his doctorate at Columbia Law School, acknowledges many of the problems baked into the use of peremptory challenges. But, he says, there were options to fix the tool.
"If there's a concern about the Crown using it, then legislate it so that only the defence can use it," he suggests. Or, "you can say that you can't strike Indigenous jurors." He suggests giving the judge the power to intervene if there is a clear discriminatory pattern to the challenge's use.
"There was a lot of complexity here, and you just threw it out," he says. Sealy-Harrington also represented the B.C. Civil Liberties Association for their intervention on Chouhan.
Asked whether removing the challenges will leave criminal lawyers with fewer tools to bring diversity to juries, Sealy-Harrington says: "I don't think it's 'probably'; it's 'certainly.'"
The potential problems illustrated by Stanley's trial went well beyond the use of peremptory challenges. The case also turned on the use of force in supposed self-defence situations, as well as the obvious deficit of Indigenous jurors on the rolls ("You can't deny that there are Indigenous people in the community of North Battleford [where Stanley was tried]," Bear says. "It's an old Indian fort.")
Another problem is the absence of data on the overall impact of the peremptory challenges. But even without that information, Sealy-Harrington contends, "you can't pretend like the court has to have concrete sociological ethnographic evidence."
There is plenty of evidence to suggest, however, that the problem goes far deeper. Former Supreme Court Justice Frank Iacobucci wrote a taxonomical report in 2013, explaining some of the reasons why juries seem to be consistently lacking for Indigenous members.
"A lot of the other mechanisms that exist with respect to jury selection are really rooted in clear evidence of discrimination," Sealy-Harrington says.
The court has previously said, in R. v. Kokopenace, that the list of possible jurors don't need to look like a random cross-section of a community, so long as the state takes reasonable measures to allow the broader population to participate in the process.
Sealy-Harrington says our system still labours under a belief that juries are impartial because they were chosen through a supposedly random process, which was endorsed by Kokopenace. He says that's a mistake.
"We know that race, and gender, and sexuality matter," Sealy-Harrington says. Systemic racism plays a role in why fewer Black and Indigenous people are invited to participate in the jury rolls, why fewer are interested in participating, and why fewer can take time off work to sit on the jury. That's before peremptory challenges even enter the equation. Once the system ensures that there are fewer racialized or diverse people available to participate, the disproportionately-white jury cannot be impartial — innate biases "impacts how they deal with evidence and credibility," he says, adding that there are no mechanisms to deal with those implicit biases.
Peremptory challenges were one, imperfect, mechanism that helped lawyers tilt the odds of that system, he says. "What is going to happen now? We're going to have more all-white juries," Sealy-Harrington adds. "More all-white juries is a bad thing."
While peremptories may be gone, lawyers can still challenge jurors for cause.
"The hope is that, in the court's eventual ruling, they breathe some kind of life into other mechanisms," says Sealy-Harrington. The quick ruling in Chouhan was likely delivered to "clean up" uncertainty around whether the enacting legislation applied retroactively.
"That issue, in my understanding, had resulted in a lot of confusion," he says. Indeed, even hearing the challenge as quickly as they did underscores some level of urgency from the Supreme Court to put a final point on the end of the challenges.
Many anxiously await the reasons to see if the court tries to compensate for the loss of peremptory challenges. The Trudeau government's changes also offered judges a new power to "stand aside" (or "standby") jurors to "maintain public confidence in the administration of justice." The law also vests judges, not already-selected jurors, with the power to determine challenges for cause.
Hopefully, the courts interpret challenges for both cause broadly and standbys broadly, says Sealy-Harrington. But reading in a broader understanding of those powers can only go so far because they rest powers with the bench. "Judges are reticent to get into the fray and change the composition of juries," he notes.
Ultimately, he's not optimistic "for a dramatically broad, bullish court."
It's up to the lawmakers, then, to step up. "Parliament could allow for a challenge to a trial jury if it's all white," says Sealy-Harrington. "People with certain criminal records are barred [from serving on juries] — that maps onto race. We could remove that. Permanent residents are barred; that maps on to race." More compensation for jurors, too, would go a long way, he adds.
Bear, for his part, notes that real fixes aren't easy or straightforward. He calls peremptory challenges, and the way they were used to disqualify Indigenous jurors, "only one symptom of a legal system that is embedded with racism." Their elimination, even if it is a step in the right direction, is a limp fix. "It's really disappointing that [the Trudeau government] didn't identify or lay out the whole picture of why this is a problem in the first place."
Bear and Sealy-Harrington agree there's plenty of work to be done, and the pace of progress has been frustratingly slow.
For Bear, the saga has only reinforced his belief that Indigenous people have a fundamentally difficult time getting a fair shake in Canada's justice system. Bear says diverting Indigenous accuseds into Indigenous legal systems like the Cree courts is a natural counterweight to our current system's problems.
Letting Indigenous nations chart their path on justice, and maybe even changing Canada's system to reflect those systems, he says, means "taking a new approach to justice."