THE ELIMINATION OF PEREMPTORY CHALLENGES IS NOT ENOUGH -Brayden Gray

Background

Prior to 2018 peremptory challenges were a tool used by legal counsel in forming juries. They were used during jury selection and allowed counsel to prevent any potential jury member they decided from participating on the jury, without having to disclose a reason for doing so (with a limited number of challenges, depending on the type of offence). Peremptory challenges have been, and still are, controversial in the United States and England. These challenges were only directly confronted by the Canadian courts and legislators in recent years.

Although there has always been some debate surrounding peremptory challenges, especially in other countries, controversy involving peremptory challenges was only recently amplified in Canada due to the discriminatory use of peremptory challenges in R. v. Stanley. Countless media articles were produced closely detailing the situation, which sparked discussion surrounding juries and fairness, especially in reference to Indigenous people. This is because at jury selection there were only five Indigenous potential jurors that could have served on the jury, and all of them were removed by the defence counsel for Stanley through peremptory challenges, leaving the jury of seven women and five men completely void of any Indigenous representativeness; this sparked discontent amongst the Indigenous community and others. Stanley created a national dialogue surrounding Indigenous representativeness on juries and discriminatory use of peremptory challenges.

Due to public pressure, legislators passed Bill C-75 which proposed to eliminate peremptory challenges altogether. On March 29, 2018, then Minister of Justice and Attorney General of Canada Jody Wilson-Raybould introduced this Bill, the not-so eloquently titled An Act to Amend the Criminal Code, the Youth Criminal Justice Act, and other Acts to make consequential amendments to other Acts, which reached over 300 pages in length. As is evidenced by the title, it is an omnibus bill. As part of this bill, there were several changes to juries, the most drastic arguably being the removal of peremptory challenges from jury selection. The main objectives of this proposed elimination were to prevent discrimination in jury selection and promote racial diversity on the jury. This is evidenced by one judge’s statement, that “[t]here is little controversy that the impugned elimination of the peremptory challenge was enacted in direct response to the Stanley trial, where the accused was Caucasian and the victim was Indigenous.”

Whether this purpose will be successfully realized or not cannot yet be conclusively determined. For example, in written submissions to the Supreme Court of Canada (SCC), the Canadian Association for Black Lawyers stated that abolishing peremptory challenges exacerbated the issue it means to fix, systemic racism, and that peremptory challenges were required to protect the constitutional rights of Black accused persons. Aboriginal Legal Services have argued the opposite and said peremptories were a real problem to diversity and that their elimination was long overdue.

The final nail in the coffin was added in 2020; the SCC in R. v. Chouhan ruled that the elimination of peremptory challenges from the jury selection system via Bill C-75 was constitutional. This meant that peremptory challenges could no longer be used during the jury selection process. This was a fairly large development, as peremptory challenges, in one form or another, have been present in the criminal system since as early as the 12th Century in England.

Legislators passed Bill C-75 in an attempt to address public concerns about discrimination in jury selection, and jury diversity. However, I argue that it is clear this alone is not enough to bring equity to jury diversity—peremptory challenges were only one mechanism that may have mitigated racial representativeness on Canadian juries in a statistically meaningful manner. Upon further analysis the removal feels almost token; it is a possible move towards respecting racial diversity and contemporary understandings of race, but it really does not address more systemic issues and feels as though the call was only answered due to public pressure.

Legislators have more issues to address if their purpose is truly achieving diverse jury representation, and more specifically increasing Indigenous representativeness on juries. One only has to look as far as the Iacobucci Report to recognize remaining issues. If legislators were truly concerned about Indigenous representativeness on juries, why was only one aspect addressed? A cynical observer may suggest it was in actuality to quell public pressure, not to prevent discrimination against minorities, specifically Indigenous people. For sake of thoroughness, I will first detail the benefits of a diverse jury, this will also speak to the need for diverse juries and the purpose of eliminating peremptory challenges to achieve that end. I will then outline three problems in the jury system that are preventing Indigenous representativeness on juries that have yet to be practically addressed in any significant way. These issues need solutions that legislators could—and should—implement if they were genuinely concerned with representativeness and improving jury diversity.

Race and Juries

Racial Bias on Juries

The majority in R. v. Kokopenace claimed that representativeness on juries is a right insofar as it is a tool to ensure impartiality, juror impartiality being the ideal that all processes must abide by. They also claimed, “there is no empirical data to support the proposition that jurors of the same race as the accused are necessary to evaluate the evidence in a fair and impartial manner.” Despite these claims by the SCC, the empirical evidence proves that racial bias in jury decisions exist. It appears that this is intuitive to others, as there was public outcry when there were no Indigenous persons on the jury in Stanley, which in turn put into question the fairness of the trial for the mind of the public.

There is ample evidence that race impacts jury decision-making. Many American studies have found participants were more likely to render guilty verdicts for “other-race” defendants than for defendants of their own race and that jurors perceive accused of the same race more positively than other-race accused, a clear example of juror bias that does not support impartiality. In one American study, it was found that the greater proportion of white people to Black people on a jury, the greater the likelihood that the Black defendant would be given the death sentence, especially if the victim was white. These are not only American findings, and many studies in Canada have also had similar findings that show race impacts juror decision-making, and therefore impartiality. If racial homogeneity is negatively impacting the outcomes of juries and tainting them with obvious bias, then it should be of utmost importance to achieve jury diversity to prevent injustices caused by those biases. Therefore, legislators' purpose of encouraging racial diversity on the jury is one that should be pursued aggressively.

Discriminatory Use of Peremptory Challenges

There has been clear empirical evidence that peremptory challenges were used (and still are in America, despite the Batson challenge) to prevent certain races from serving on the jury. Many studies have supported this claim, and although it is difficult to conduct research in Canada regarding juries due to restrictions, which makes jury data lacking, much American research has confirmed that peremptory challenges are routinely used in a discriminatory manner. Not only is this supported in the empirical research, but it can also be seen anecdotally in Stanley, and in the case involving the murder of Helen Betty Osborne, where there was no Indigenous person on the petit jury. This is chronicled in the 1991 Aboriginal Justice Inquiry: “the victim was Aboriginal and the community in which the crime occurred had a large Aboriginal population … it must be stated clearly that the jury was not representative of the community from which it was drawn and in which the crime was committed”. The evidence that peremptory challenges were used to target minorities, and prevented racial diversity on juries—therefore harming jury impartiality, as outlined above—is strong.

The combination of discriminatory use of peremptory challenges and racial biases impacting jury decision making made removing peremptory challenges as part of jury construction a logical conclusion for lawmakers. Given that race has a large impact on jury decision-making, and therefore impartiality, it is clear that achieving juries that are more representative is a worthy pursuit. This is what legislators have attempted to do by eliminating peremptory challenges; doing so can possibly reduce jury representativeness, protect minorities from being disproportionately struck without reason, and increasing representativeness, creating juries that are less biased and more impartial—creating better juries. It will also prevent acts of discrimination against minorities, specifically Indigenous people, which in turn may increase their trust in the justice system, a system that they have understandably distrusted.

However, if legislators were seeking to increase representativeness, and reduce discrimination against Indigenous people in jury selection, why stop at peremptory challenges? There are many more—and likely more effective—ways to encourage jury diversity than eliminating peremptory challenges. If legislators truly intend to alleviate issues of jury diversity, and discrimination against who can serve on a jury, there is much work to be done.

Ways to Further the Goal of Jury Diversity

The Jury Roll

Juries are created through the gathering of persons listed on a jury roll. Contemporary, common practice differs between provinces but typically includes creating a list of jurors through medical databases, drivers’ license databases, or voter lists. This can be problematic itself, considering not all potential jurors may have valid licenses, for example. Historically, it was restricted to criteria such as land ownership or other exclusionary measures. The problems with jury rolls were a key feature in the 2013 Iacobucci Report. Issues such as necessary questionnaires not making it to reserves or not making it in enough time to answer and return through the mail, or the questionnaires only being available in English and French prevent many Indigenous people in more remote areas to be represented on the jury rolls. Even an understandable lack of confidence in the justice system on behalf of Indigenous peoples prevents Indigenous representation on jury rolls as they are not particularly incentivized to do so.

Due to issues above (which are by no means extensive) these lists lack Indigenous representativeness proportional to the population; this was even the case in Stanley. This is not inconsistent with the courts' demands, however. The SCC has ruled that “although Canadian courts have held that the jury roll must be representative, they have never held that it must be proportionately representative”, meaning the jury roll does not need to proportionally match the demographics of the community of which it is drawn. This means that “the unintentional exclusion of a small community . . . does not undermine the representativeness of the jury roll.”

Although the court does not require proportional representativeness on jury rolls, if legislators were to contradict this and require proportional representativeness there likely would be a great increase in Indigenous representativeness on juries; it would force new and better systems for ensuring jury roll representation. If legislators are willing to eliminate a system, peremptory challenges, that lasted in one form or another for over eight centuries, surely they would be willing to adapt jury roll reform intended to better reflect contemporary understandings of racial representation.

By improving the jury roll to better represent Indigenous peoples where appropriate, more of them could make it to the jury selection process, and without peremptory challenges their representation would be much more likely, meaning a fair and less obviously biased jury would be much more likely. These improvements should include making jury roll questionnaires available in more languages, and reforming the system so that questionnaires do not get lost or are too late in their return due to much longer delivery times to and from reserves. These are realistic changes that would move towards the purpose of representativeness that legislators claimed when drafting Bill C-75.

Juror Pay

Juror pay can also disproportionately impact Indigenous representation on juries. Juror pay is not a new gripe with the jury system, as one news article argues for minimum wage pay for jury duty in 2011.

Jurors are paid differently depending on the province. The most progressive is Newfoundland & Labrador which requires employers to pay employees their regular wages and benefits while on jury duty—Manitoba has gone a different route, paying only $30 beginning on the 11th day of service. This means that a juror who regularly receives a minimum wage for full-time work in Newfoundland & Labrador and participates in jury duty could receive ~$900 over 11 days, depending on circumstances. The same circumstances in Manitoba would net the juror $0. For those living paycheck-to-paycheck or those of lower-socioeconomic status, this can be devastating. Justice Stribopoulos, a Superior Court of Justice judge, said in 2011 (as a professor at the time) that, “[n]ot many people can afford to sit on a jury . . . as a result, we tend to get people who are either civil servants or employed by large corporations that give employees paid leave . . . or retirees – and not very many other people at all.” This was confirmed by the Iacobucci Report in 2013. Given that Indigenous people are disproportionately of lower socioeconomic status, the issue of juror pay disproportionately impacts them; they may often ask to be excused from jury duty, and if they aren’t, they could lose a place to live, be unable to care for their children, among other complications. The lack of juror pay can directly cause a lack of Indigenous representation on juries.

The issue of juror pay has been present for a long time – if legislators were truly concerned with representativeness on juries, they could have addressed this long ago, likely with much less controversy. Some provinces have already implemented a fair pay system for jurors, why has this not occurred in provinces with higher Indigenous populations such as Manitoba? It would not be an unprecedented development and would help greatly. This is yet another issue that possibly prevents Indigenous representativeness on juries even more than peremptory challenges did. If representativeness was the concern, why was this not addressed when examining jury diversity post-Stanley?

Criminal Records

Criminal records, even minor ones, can prevent otherwise acceptable potential jury members from serving on the jury. In Ontario for example, if a juror has a criminal record with an offence that could be tried as an indictable offence, they are barred from participating on a jury—similar restrictions apply to other provinces. This applies to hybrid offences (offences that can be tried as summary convictions, or indictable) as well, which is “nearly every offence in the Criminal Code”. This means that even people with very minor criminal records, such as shoplifting at the age of 18 or 19, cannot serve on juries. It is disproportionately Indigenous people that have these minor criminal records due to a slew of social factors caused by colonization, and therefore they are disproportionately prevented from participating in a jury compared to other races. This problem was recognized by the Iacobucci Report, where the proposed remedy was allowing individuals with minor offences to serve on juries after a specified amount of time following their conviction. That way, after a certain amount of time those with minor criminal records can serve on juries. It has even been argued that if a jury is supposed to be of one’s peers, those with minor criminal records from mistakes in the past regarding the law would be more representative for many of those being tried.

If legislators were concerned about increasing Indigenous representativeness on Canadian juries then they could open up the pool of potential Indigenous jurors by removing certain limitations placed on those with criminal records, of which Indigenous persons are disproportionately representative. Instead, however, they have remained silent on this issue, as with the others, and instead focused narrowly on peremptory challenges, which some have argued may have had the opposite of the intended effect.

Conclusion

Bill C-75 was legislation that included in it the removal of peremptory challenges from the jury selection process. When peremptory challenges were removed through this Bill, many praised the removal as a step in the right direction following the Stanley case, especially after decades (if not centuries) of controversy surrounding the tool. Further many will praise the Supreme Court of Canada for upholding the constitutionality of Bill C-75 in Chouhan. Legislators finally acted after being put under public pressure, with (hopefully) the intent of making the jury a fairer process.

However, there is reason to remain cynical towards the intent of legislators. There is reason to suspect this would not have happened without the immense public pressure. It appears less likely for issues preventing further jury diversity such as jury roll inadequacies, lack of juror pay, and minor criminal records to reach the public sphere and garner the same attention and support due to their lesser potential of attracting public outcry, therefore making it less likely these issues will be reformed as necessary. If legislators were as serious about jury diversity as they have wanted to appear to be, then these issues should be addressed sooner rather than later.

It is absolutely clear that race on juries can make differences in jury trials. If legislators wanted to increase the representativeness of Indigenous persons on juries to adjust for this fact, then there should have been—or should be in the future—more widely-encompassing changes to how the jury is created. They had the chance to do so post-Stanley. It is not as if this information is not available, the 2013 Iacobucci Report emphasized all of these issues and gave recommendations; this report was even used during the Bill C-75 debates to discuss the lack of Indigenous representation on Canadian juries. However, legislators ignored the report’s discussions about other major issues surrounding jury creation even though it was at their disposal and not hidden—it is a capstone document in the topic area.

Jury construction has a long way to go if it is to keep pace with contemporary understandings on race representativeness, and these residual issues should have been much more recognized by legislators when abolishing peremptory challenges from the jury selection procedure. Sadly, I cynically suspect, these issues will not be addressed in the manner they deserve, and a lack of representativeness on juries will continue to be a struggle for quite some time.

Endnotes...................

1 R v Stanley 2017 SKQB 366 [Stanley].

2 Brittney Adams, “Lessons from Batson in a Comparative Criminal Context: How Implicit Racial Biases Remain Unaddressed in Canadian Jury Selection” (2019) 7:2 Am Indian L J 1.

3 Ibid.

4 R v King, 2019 ONSC 6386 [King].

5 Justin Ling, “Why are we eliminating peremptory challenges?”, The Canadian Bar Association: National (19 October 2020), online: [https://perma.cc/ZPC6-Y8L7].

6 Ibid.

7 R v Chouhan, 2020 ONCA 40 [Chouhan].

8 King, supra note 4.

9 Honorable Frank Iacobucci, First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by the Honourable Frank Iacobucci (Toronto: Ministry of the Attorney General, 2013).

10 R v Kokopenace, 2015 SCC 28 [Kokopenace].

11 Ibid at para 53.

12 Samuel Sommers & Phoebe Ellsworth, “Race in the Courtroom: Perceptions of Guilt and Dispositional Attitudes” (2000) 26:11 Pers & Soc Psychol B 1367; Tara Mitchell et al, “Racial Bias in Mock Juror Decision-Making: A Meta-Analytic Review of Defendant Treatment” (2005) 29:6 L & Hum Beh 621; Dennis Devine & David Caughlin, “Do They Matter? A Meta-Analytic Investigation of Individual Characteristics and Guilt Judgments” (2014) 20:2 Psychol Pub Pol’y & L 109.

13 William J. Bowers, Benjamin D. Steiner, & Maria Sandys, “Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors’ Race and Jury Racial Composition” (2001) 3:1 J Const L 171.

14 Evelyn Maeder & Joel Burdett, “The Combined Effect of Defendant Race and Alleged Gang Affiliation on Mock Juror Decision-Making” (2013) 20:2 Psychia Psychol & L 188.

15 Catherine Grosso & Barbara O’Brien, “A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials” (2012) 97:5 Iowa L Rev 1531.

16 Mark Israel, “The Underrepresentation of Indigenous Peoples on Canadian Jury Panels” (2003) 25:1 Law & Pol’y 37 at 38.

17 Samuel Sommers & Michael Norton, “Race and jury selection: Psychological perspectives on the peremptory challenge debate” (2008) 63:6 Am Psychol 527; Samuel Sommers, “Race and the decision making of juries” (2007) 12:2 Leg & Crim Psychol 171.

18 Report of the Aboriginal Justice Inquiry of Manitoba, vol 2 (Aboriginal Justice Implementation Commission, 1999) at ch 7.

19 Iacobucci, supra note 9.

20 Miriam Katawazi “Can you afford jury duty? Here’s how each province compensates you for your service”, The Star (16 February 2018), online: [https://perma.cc/VR28-ZGJ9].

21 Israel, supra note 16.

22 Vanessa MacDonnell, “The Right to a Representative Jury: Beyond Kokopenace” (2017) 64:3/4 Crim LQ 334.

23 Kokopenace, supra note 10 at para 53.

24 Ibid at para 180.

25 Todd Humber “Tie juror pay to minimum wage”, Canadian HR Reporter (25 April 2011), online [https://perma.cc/QHL9-BEAL].

26 Ibid.

27 Kazi Stastna “Jury duty: Unfair burden or civic obligation?”, CBC (08 November 2011) online: [https://perma.cc/HG2G-LPK6].

28 Iacobucci, supra note 9.

29 Statistics Canada, Aboriginal Statistics at a Glance: 2 nd Edition, Income, Catalog No 89-645-x2015001 (Ottawa: Statistics Canada, 2015) [https://perma.cc/2YJJ-R68X].

30 Colin Perkel “Criminal record doesn’t automatically disqualify Ontarians from jury duty” CTV News (13 October 2015) online: [https://perma.cc/UM9A-CP5J].

31 Shannon Kari “Scrutiny needed on how jury rolls put together”, Law Times News (26 February 2018) online: [https://perma.cc/CSD6-QPB6].

32 Vicki Chartrand “Broken system: Why is a quarter of Canada’s prison population Indigenous?”, The Conversation (18 February 2018) online: [https://perma.cc/N2GP-NBSV].

33 Scott Reid “The Tragedy of Colton Boushie – Jury Selection in Canada and Peremptory Challenges”, Edward H. Royle & Partners LLP (16 February 2018) online: [https://perma.cc/8R5Y-KP5J].

34 Iacobucci, supra note 9.

35 Kari, supra note 31.

36

37 The Criminal Lawyers Association (Ontario), “Submissions on Behalf of the Criminal Lawyers’ Association (Ontario) to the House of Commons’ Standing Committee on Justice and Human Rights Studying Bill C-75”(2018), online: [https://perma.cc/M9V9-DZFP].