The Supreme Court of Canada has upheld new jury-selection rules that the federal government argued would prevent the rejection of potential jurors based on their race.
The Liberal government banned peremptory challenges – the rejection of a prospective juror with no reasons given – after an all-white jury acquitted a white farmer, Gerald Stanley, in the 2016 shooting death of Colten Boushie, a 22-year-old Cree man. Legal observers said Mr. Stanley’s lawyer had used its peremptory challenges to reject Indigenous jurors.
The Supreme Court made its ruling from the bench after a hearing in which Indigenous groups faced off against several groups representing racialized minorities, over whether the new rules prevent discrimination, or promote it. The court has not yet issued written reasons for its ruling, but members such as Justice Michael Moldaver made clear that they saw the challenges as arbitrary and ineffective in ridding juries of bias.
The constitutionality of the new rules was challenged in a Toronto-area murder case featuring a South Asian man, not as victim but as accused. Pardeep Chouhan argued that his right to a fair trial on a first-degree murder charge depended on his being able to use the peremptory challenges to try to weed out potential racists from his jury. (The right to a jury trial is protected for offences punishable by five years or more.)
After the court’s ruling, Christopher Murphy, who represented Debbie Baptiste, Mr. Boushie’s mother, as an intervenor in the Supreme Court hearing, said in an interview that Ms. Baptiste was “ecstatic.” She had flown to Ottawa immediately after the Stanley acquittal to press for abolition of peremptory challenges. “She never gave up this fight," he said in an interview.
“I was present at the jury selection in Battleford [Saskatchewan]. … I was a big fan of peremptory challenges before I witnessed what I witnessed that day.”
Mr. Chouhan was convicted at his trial. But while the Ontario Court of Appeal upheld the ban on peremptory challenges, it threw out his conviction, and ordered a new trial because the trial judge used the new jury-selection rules. Those rules took effect the very day Mr. Chouhan’s jury was being selected, Sept. 19, 2019; Mr. Chouhan had long since chosen trial by jury, believing peremptory challenges would be available to him.
The Supreme Court said the appeal court was wrong to have dismissed the conviction. It said the changes to the jury rules were merely procedural, and that the rules could therefore apply retroactively. In all, 45 convictions in cases of violent crime had been at stake, awaiting the Chouhan ruling on retroactivity. With his conviction restored, Mr. Chouhan now faces life in prison with no parole eligibility for 25 years.
The bigger question in the case was whether Parliament, in trying to end the rejection of prospective jurors based on their race, made it more difficult for accused persons from racial minorities to reject jurors who might harbour implicit bias based on race.
For the Stanley trial, prospective Indigenous jurors had been summoned from a 1,000-kilometre swath of the province, Mr. Murphy told the court on behalf of Ms. Baptiste. And five whose numbers were picked from a drum, and who by appearance were Indigenous, were rejected for no reason other than their race, he said.
“Dismissing presumptively impartial jurors on racial grounds is an overt example of race-based discrimination that no longer has any place in a Canadian trial,” Mr. Murphy told the court. Lawyers for Aboriginal Legal Services, in separate submissions, also argued in support of the elimination of the challenges.
But counsel for Muslim, Black, South-Asian and Asian-Canadian legal groups intervened to argue, much as Mr. Chouhan’s lawyer Dirk Derstine did, that the peremptory challenges let people in racialized communities know that a fair trial is possible.
The jury-selection law that took effect last September still allows for “challenges for cause,” in which the defence (and Crown) can give reasons to object to a potential juror, though the objection does not have to be accepted. And the new law gives judges permission to stand aside jurors to protect public confidence in the justice system. But a lawyer for the South Asian Bar Association argued that neither is as effective as peremptory challenges in addressing implicit bias.
“When the juror doesn’t look the accused in the eyes right away, or looks away quickly, or doesn’t look at all, or just looks plain hostile, and we get that feeling, how can we articulate it in words that provide a legal basis for excluding a juror?” Janani Shanmuganathan asked the court.
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