How to reform Canada's jury system

Supreme Court Justice Claire L'Heureux-Dube called the jury "the conscience of the community," and wrote that it can "act as the final bulwark against oppressive laws or their enforcement."

And yet, despite the lengthy history and lofty rhetoric attached to jury trials, some legal experts harbour serious doubts about how they work — and indeed, whether they work at all.

In the trial of Gerald Stanley, a white Saskatchewan farmer accused of killing a young Indigenous man named Colten Boushie, the defence used a tool called peremptory challenges to exclude all the visibly Indigenous jurors, resulting in what appeared to be an all-white jury. The jury acquitted Mr. Stanley after a single day of deliberation.

Mr. Boushie's family reacted with heartbreak and disbelief — as did many others across the country. Prime Minister Justin Trudeau and Justice Minister Jody Wilson-Raybould both said publicly that the country must "do better."

The Sunday Edition host Michael Enright spoke to three experts about some of the long-standing legal and philosophical debates about Canada's jury system this verdict has reignited.

• The Honorable Frank Iacobucci was a justice on the Supreme Court of Canada from 1991 to 2004. After retiring from the court, he joined Torys LLP. He has conducted numerous public inquiries, including an independent review of First Nations Representation on Ontario Juries.

• Annamaria Enenajor is a criminal and constitutional lawyer and partner at Ruby Schiller & Enenajor Barristers in Toronto.

• Nader Hasan is a criminal and constitutional lawyer and a partner at Stockwoods LLP.  He is also an adjunct professor at the University of Toronto Faculty of Law.

First Nations representation

Frank Iacobucci says Canada's justice system urgently needs to be reformed to address the systemic exclusion of Indigenous people.  

"I believe the most important societal issue facing Canada is its relationship with Indigenous people — 1,400,000 people who have a history of mistreatment. They're underrepresented in juries, overrepresented in the penal institutions of our country. And we are not really doing much," he tells Michael Enright.

"There's a lot of good people out there doing legal aid, giving advice, giving support … but this issue of how the justice system treats Indigenous people is extremely important, because it deals with their liberty."

Juries can function as an important check and balance against state power, but we cannot be ignorant of the fact that they are also sometimes used as vehicles of oppression.- Annamaria Enenajor

Following an investigation of Ontario's justice system in 2013, Iacobucci wrote a scathing report about the under-representation of First Nations people on juries.

"The jury selection process begins with assembling the jury roll, and that was the key problem identified in the Iacobucci report and by the Ontario Court of Appeal in the Kokopenace case," explains criminal and constitutional lawyer Nader Hasan.

"First Nations people just weren't getting on the jury rolls. The questionnaires weren't going out to reserves. The responses weren't coming in, partly due to lack of confidence in the administration of justice. And for [some people in First Nations communities], English or French isn't the first language, so we have to have these questionnaires available in other languages as well."

Iacobucci argued the under-representation of Indigenous jurors has serious repercussions for the perceived legitimacy of the process.

"The public is more likely to perceive trials, and by extension the legal system as a whole, as being fair if prospective jurors are representative of the wider community from which they are drawn," he wrote in the report.

"Conversely, the wholesale exclusion of particular groups from the jury pool risks undermining public acceptance of the fairness of the criminal justice system."

"I believe the most important societal issue facing Canada is its relationship with Indigenous people... They're underrepresented in juries, overrepresented in the penal institutions of our country. And we are not really doing much."- Frank Iacobucci

Peremptory challenges

One of Iacobucci's recommendations in the 2013 report was that the Attorney General consider an amendment to the Criminal Code that would prevent the use of peremptory challenges against First Nations people serving on juries. The Crown and defence can use peremptory challenges to exclude jurors without any explanation.

"If it's used for a discriminatory motive, I don't think there's any justification," he tells Michael Enright.

"If you're going to have great improvements in the recruitment [of Indigenous people] for the pool, for the jury roll, it makes no sense to have all those changes done and then just knock them off."

I think [peremptory challenges] serve an important function. The accused is the one on trial. It's important, in their eyes, that they see that justice is being done. It gives them a modicum of control over that process.- Nader Hasan

​Annamaria Enenajor, a criminal and constitutional lawyer, says peremptory challenges are often based on stereotypes.

"It's based on things like the assumption that people of a like ethnic background to somebody are more likely to empathize with that person," she tells Michael Enright.

But when a jury is not representative, she says, that can hamper the jurors' ability to reach a fair decision.

"I think the vast majority of jurors in our system take their function extraordinarily seriously. However, when you have issues of representation ... social science evidence has told us that that has a significant impact on reasoning, and ultimately, fairness."

Hasan says it would be wrong to abandon peremptory challenges altogether.

"I think they serve an important function. The accused is the one on trial. It's important, in their eyes, that they see that justice is being done," he says. "It gives them a modicum of control over that process."

"I know that it was the reverse problem in the recent trial that's on everybody's mind," he adds, "but usually the problem ... is with the Crown using their peremptory challenges and striking black jurors and Indigenous jurors."

Hasan adds, however, that the mere existence of these challenges does not give lawyers the right to exercise them in a discriminatory way.

He says he'd like to see Canada implement a system similar to the American process of "Batson challenges," which comes from a case called Batson v. Kentucky.

"If you think your adversary is exercising their peremptory challenges in a discriminatory way, you can raise a challenge," Hasan explains, "and if you put forward a prima facie case that there's been a pattern of discriminatory challenges … then the other side will be called to account."

Jury trials

Hasan says that while jury trials can be complex and time-consuming processes, they nevertheless serve an democratic important function.

"The jury has been around for 800 years or more for a reason. It is an important check, it is an important balance, against the power of the state."

"Let's not take for granted what we have now," Hasan adds. "It's not unforeseeable that we could one day end up with a prime minister appointing judges that have values that are antithetical to Charter values. In that case, the jury once again becomes the conscience of the community, not just in a symbolic historic way but in a very real way."

Enenajor emphasizes that it's important to be realistic about the flaws of jury trials.

"There is a degree of mystique and sacredness around the function of the jury that I think warrants interrogation," she says.

"Not every single jury trial will be a best case scenario. You will have very complex issues that are raised. The jurors may not understand them … and there may be people who decide on cases because of, 'I don't like the look of that person,' or the defence counsel may have a really catchy slogan — 'If the glove don't fit, you must acquit.'"

"Juries can function as an important check and balance against state power," Enenajor says, "but we cannot be ignorant of the fact that they are also sometimes used as vehicles of oppression."

Click 'listen' above to hear the full interview.