Government proposes changes to jury-selection process after the Colten Boushie case

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Just weeks after the conclusion of the trial of Gerald Stanley, the Liberal government is planning to change the way juries are selected in Canada.

Mr. Stanley was acquitted of second-degree murder in February in the killing of Colten Boushie, 22, of Red Pheasant First Nation in Saskatchewan. The acquittal sparked protests across the country. During jury selection, potential jurors who appeared to be First Nations were rejected under a provision known as a peremptory challenge.

Legislation introduced on Thursday would eliminate peremptory challenges. While the government said the proposed change would make juries more representative, criminal defence lawyers said the government missed a chance to enact more meaningful reforms.

Jury selection is one of many topics included in Bill C-75, which the Justice Minister described as an attempt to create a wide-reaching cultural shift in the justice system.

“We need a jury selection system that has the confidence of all Canadians,” Justice Minister Jody Wilson-Raybould said in Ottawa on Thursday.

Debbie Baptiste, Mr. Boushie’s mother, who met with Ms. Wilson Raybould and Prime Minister Justin Trudeau after Mr. Stanley’s trial last month, said she was pleased to hear the government is taking action.

“There’s going to be change. Maybe we do have hope after all,” Ms. Baptiste said. “This makes me feel good.”

Chris Murphy, a Toronto defence lawyer who represents Mr. Boushie’s family, said the proposed changes, had they been in place for Mr. Stanley’s trial, would have likely resulted in some First Nations people being on the jury. But eliminating peremptory challenges without expanding the areas on which potential jurors can be questioned is a mistake, he said.

“It’s great that people can’t be challenged for the colour of their skin,” Mr. Murphy said. “I think it’s good to get rid of peremptory challenges, but I’m concerned that it wasn’t replaced with something more robust.”

The only other challenge allowed is called “for cause,” in which potential jurors are asked if they are able to hear the case impartially. That provision remains intact with minor changes under the new legislation.

Britain eliminated peremptory challenges in the late 1980s. The U.S. Supreme Court ruled that using peremptory challenges to exclude jurors based on race was unconstitutional.

Currently, when a jury is selected, both Crown and defence lawyers can challenge, or essentially block, a juror without explanation. Depending on the severity of the case, lawyers have between four and 20 peremptory challenges.

In the Stanley case, the defence peremptorily challenged five potential jurors who appeared to be First Nations, and no one visibly Indigenous was chosen for the jury. In the middle of the trial, Ms. Wilson Raybould said she was concerned about the under-representation of Indigenous jurors in several provinces.

Shortly after the verdict, Ms. Wilson-Raybould tweeted her sympathy to Mr. Boushie’s family and said: “As a country we can and must do better.“ Political opponents said the remarks implied the jury’s verdict was wrong.

Frank Addario, speaking on behalf of the Criminal Lawyers’ Association, said it is clear the changes were inspired by the Stanley case, but they are not enough. They would not push provincial governments to put together more representative jury panels and they could remove one of the few levers available to the accused, of whom a disproportionate number are Indigenous, to shape their own trial, he said.

“They have not really done anything to increase jury representativeness,” Mr. Addario said. “They could have rejigged it and said if you live in Kenora where 10 per cent of the population is Indigenous, then 10 per cent of the array of 500 or 1,000 [potential jurors] should be Indigenous. … While you would think that responding to the Stanley case is an attention grabber of a legislative gesture, the real heart of the work is in creating more representative juries and courtrooms in which Indigenous people are treated fairly.”