On March 29, the Federal Government introduced Bill C-75, which contains lengthy amendments to the Criminal Code. Bill C-75 intends to completely abolish section 634, the provision that allows for peremptory challenges to potential jurors.
Currently in Canada, there are two ways to challenge a juror: peremptory challenges and challenge for cause. Challenges for cause requires the challenger to give reasons for the challenge, and the potential juror is then asked pre-approved questions by the judge. Conversely, peremptory challenges allow the Crown or defense to challenge a potential juror without explanation. Under the current provision, both the Crown and defense are entitled to between 4 and 20 peremptory challenges each, depending on the charge.
Peremptory challenges are problematic because they lawfully allow a challenge against a juror for superficial and potentially discriminatory reasons. A peremptory challenge can be raised without the juror answering any questions. While some criminal lawyers cite that peremptory challenges allow them remove jurors that appear disinterested or biased, Kent Roach classifies them as “really an invitation to discriminate.” Some defense lawyers say that the practice allows them to ensure minority representation in trials with minority accused; which is an important consideration for overrepresented populations in the criminal justice system. Despite the apparent good intentions of ensuring that a jury is representative by use of peremptory challenges, the practice still ultimately boils down to each side being able to challenge a juror for impressionistic discriminatory reasons.
Abolition of peremptory challenges comes in the wake of the acquittal of Gerald Stanley of murder of Colten Boushie by an all-white jury. Stanley’s defense rejected several Indigenous People by peremptory challenge. Many critics blamed peremptory challenges for the creation of the non-inclusive jury that intensified the tensions surrounding the trial, and ultimately the feelings of injustice after the verdict.
Outside of the recent Stanley case, peremptory challenges have also been used to challenge jurors that look like they may be more sympathetic to the accused in cases of sexual assault. The process allows the defense to tailor juries to their client; it can be positive in cases where it ensures that juries are representative, but it is problematic in almost every other circumstance. Simply put, the potential benefit to minorities that the peremptory challenges may sometimes confer is not a good trade for the disservice to the reputation of the justice system in the long-term. Prevention of the use of peremptory challenges for discriminatory reasons is not a new concept; R v Gayle (2001) confirmed that the Crown cannot use them to discriminate based on sex. Former Justice Iacobucci recommended changes to peremptory challenges in 2013, saying that if they were “used for a discriminatory manner, I don’t think there’s any justification.” Comparatively, England, Ireland and Scotland have all abolished the practice entirely.
Abolition of peremptory challenges will not automatically ensure that juries will subsequently be representative of minority populations. There is much more reconciliation work needed to ensure that Indigenous people are properly and fairly represented. However, abolition will allow us to be sure that lack of representation was not due to unjust racial discrimination. Under Bill C-75, challenges for cause will remain a valid way for both the Crown and defense to challenge a juror for articulated reasons. Requiring both the Crown and the defense to provide reasons for a challenge to a potential juror is more closely aligned with the values in the Charter, and will do more to maintain the public’s confidence in the justice system.
While Bill C-75 may provide the first step in attempting to ensure a fair, representative jury for criminal trials, the heart of the issue of Indigenous representation in juries is Indigenous representation in jury selection pools. The current methods used to source potential jurors are not effectively producing representative samples of the population.
In Iaccobucci’s 2013 report, First Nations Representation on Ontario Juries, he recommends generating a voluntary database of voluntary potential jurors by using multiple sources including health insurance, transportation records and band residency information. The questionnaires sent out should be in simple language, as well as translated into the appropriate Indigenous language. Iacobucci also recommended adopting a practice from the US where if a summons is not returned, another one is sent to the same postal code. The most important thing that Canada can do going forward is to work with Indigenous communities and band councils to develop a fair and collaborative database that potential jurors can be drawn from, as reliance on the methods to form jury pools in urban areas has been shown to be ineffective in rural reserves.
Another interesting addition to the Criminal Code if Bill C-75 does comes into force is to section 633, the provision that allows the judge to place a juror on stand-by. Section 633 will replace the current section 633 and section 634 (peremptory challenges).
"633: The judge may direct a juror who has been called under subsection 631(3) or (3.1) to stand by for reasons of personal hardship, maintaining public confidence in the administration of justice or any other reasonable cause (italics are mine)."
The current provision for placing a potential juror on stand-by does not contain the phrase “maintaining public confidence in the administration of justice”. This particularly vague term is very similar to the language used in the last arm of the Grant test for exclusion of evidence under section 24(2) of the Charter. Would inclusion of this language open up judicial discretion to ensure that juries are representative of minority populations if that is found to maintain public confidence? Placing potential jurors on stand-by allows for a pool of potential jurors to be available if the 12 spots are not filled at the end of the initial selection process.
The abolition of peremptory challenges is a positive step in the reconciliation process, and in the preservation of the reputation of the justice system as a whole. The practice is problematic for many reasons, most notably for the continuation of systemic discriminatory exclusion of minority populations on criminal juries. The abolition of the practice will not guarantee fair representation of Indigenous people on juries in the future; much more work is needed to reconcile the current allowances for underrepresentation in the jury pool system.
Criminal Code, RSC 1985, c C-44, s 633, 634, 638.
Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments, 1st Sess, 42nd Parl, 2018, cl 217 (first reading 29 March 2018).
First Nations Representation on Ontario Juries. Canada, Ministry of the Attorney General, Report of the Independent Review Conducted by The Honourable Frank Iacobucci (Ottawa, 2013).