TORONTO — The acquittal in the Colten Boushie killing that has angered many Indigenous people and sparked criticism from the justice minister has cast a harsh spotlight on Canada's criminal jury system whose shortcomings, particularly in cases involving minorities, have been well documented over the decades.
No law mandates the make-up of juries as long as, the Supreme Court has found, they are "representative" of the community — a fuzzy concept at best.
In Boushie's case, critics have noted no Indigenous people were selected out of the 200 prospective jurors who showed up to sit on the panel that acquitted Saskatchewan farmer Gerald Stanley of shooting the 22-year-old Cree man as he sat in a SUV on Stanley's property.
The case is far from the first in which an all-white jury has sat in judgment of a white person accused of a crime against black or Indigenous victims.
In 1991, former Manitoba justice and now senator Murray Sinclair recommended changes after the murder of Helen Betty Osborne, an Indigenous woman, in Manitoba in 1971 in which one of four accused was ultimately convicted years later.
"The lack of aboriginal jurors gives the impression that the trial, from the aboriginal person's perspective, was not a fair one," Sinclair noted. "And in a sense, it was not fair — the jury simply was not representative of the local community. We do not believe that this should be allowed to continue."
Former Supreme Court of Canada justice Frank Iacobucci, in response to challenges that threatened to grind the criminal justice system to a halt in northern Ontario, made similar observations in February 2013 in relation to the systemic dearth of Indigenous jurors.
"There is not only the problem of a lack of representation of First Nations peoples on juries that is of serious proportions, but it is also regrettably the fact that the justice system generally as applied to First Nations peoples, particularly in the North, is quite frankly in a crisis," Iacobucci wrote in his report.
Corrective proposals have been abundant, but fixes are elusive.
Werner Antweiler, a professor with the Sauder School of Business at the University of British Columbia who has written on juries, said in a blog post that one potential route is to abolish juries completely, leaving judging to judges. Another possibility, he said, is a "hybrid" system in which ordinary citizens in judicial proceedings advise judges.
"A look at other countries shows that there are compromises along those lines," Antweiler said. "Several European countries — Germany among them — use hybrid systems that employ both professional and lay judges."
The reality, however, is that opting for a jury trial in serious cases — a system dating back centuries — is a constitutionally enshrined right in Canada.
But finding enough people in general to serve on juries, despite a legal obligation to do so, is a long-recognized problem — especially when it comes to Indigenous and other minority groups. With little or no pay offered to panellists, many people simply can't afford what can be a disruptive and even traumatic experience.
Additionally, criminal law can be hugely complex, with judges' instructions to jurors on arcane legal points lasting hours or even days. That raises questions about how much an average juror really understands heading into deliberations, which in Canada — unlike the U.S. — are essentially top secret.
The result of that legally-imposed secrecy is a dearth of research or data about why jurors arrive at a verdict — information that could help improve the system. Governments need to start collecting data on jurors — who was called up and who was accepted or rejected, and socio-demographic information including gender, age, occupation, and education level, Antweiler said.
"We need to have solid data to understand which biases are present in juror selection, and how trial outcomes differ when juries are involved," he said.
Steven Penney, a law professor at the University of Alberta, said more effort is needed to ensure pools from which jurors are selected are more representative — particularly in cases involving Indigenous people.
"It's hard to believe that either Canadians as a whole or Indigenous communities in particular can have faith in a system that seems to allow for the systematic and unjustified exclusion of Indigenous people or people who appear to be indigenous from juries," Penney said.
Both Penney and Kent Roach, a criminology law professor at the University of Toronto, said a key problem with current jury rules — and one that could be fixed with a Criminal Code amendment — is what's known as the "peremptory challenge." The challenge allows either prosecution or defence to nix a juror without giving any reason — a process that could see potential jurors excluded because they are Indigenous or black — or in sexual assault cases, because they are women.
"We should do what Britain has done and get rid of peremptories," Roach said. "Not that it's a magic cure, but it's going to respond to the discriminatory use of peremptories."
Such challenges are distinct from "challenges for cause" whereby defence or prosecution have been allowed since a Supreme Court ruling 20 years ago to question a prospective juror on sensitive issues such as racism and bias. The Crown in the Boushie case, however, did not ask such a question.
While the law allows for unlimited challenges for cause, the number of peremptories is limited, depending on the severity of the charge. For example, Stanley, who faced a second-degree murder charge, had a total of 14 peremptories — as did the Crown. Had he faced a first-degree murder charge, the number of such challenges would have risen to 20.
In a case such as this, where there is a real danger jurors might be blinded by racism or stereotyping, it's baffling why the Crown didn't issue challenges for cause over potential bias, Roach said.
"If you imagine a situation where either the Crown or the accused wants to keep minorities off the jury, if you have 14 peremptory challenges and 200 prospective jurors, that's probably going to accomplish the task."
Colin Perkel, The Canadian Press