Kinder, Gentler Crime Control: Could Bill C-75 be hurting minorities more than helping them?

On March 29th the Federal Liberals unveiled Bill C-75 which contains a number of proposed amendments to the Criminal Code but the two most controversial ones are the possible elimination of peremptory challenges and restricting preliminary inquiries to only those accused who are facing a possible life sentence.

A spokesperson for the Liberal Member who tabled the bill was quoted in a CBC article1 saying that the elimination of peremptory challenges will help get rid of discrimination in the jury selection process. Members of the Criminal bar quoted in the same article are arguing that this Bill is merely a knee-jerk political reaction to the recent acquittal of Gerald Stanley that will only end up hurting minorities who are involved in the justice system. The use of peremptory challenges came under fire after Stanley’s lawyers used the challenges in order to expel potential Indigenous jurors from serving on the jury panel. It is a common tactic used by defence lawyers to use peremptory challenges to stock juries with people who look like their client.

It is a well-known issue that minorities, and more specifically Indigenous peoples, are over represented within the criminal justice system. As of the 2016 Census2 Indigenous people made up roughly 4.9% of the total population but according to Stats Canada3 in 2015/2016 Indigenous adults made up roughly 26% of admissions into correctional services. Based on these statistics the baseline assumptions would be that 1 out of 4 accused in jury trials would be Indigenous but only 1 out of every 20 potential jurors would be Indigenous. This also assumes that Indigenous and non-indigenous offenders commit crimes requiring jury trials at the same proportions and that Indigenous peoples respond to jury summons at the same rate as non-indigenous people. These assumptions are very simplistic and the real numbers will vary greatly based on where in Canada you are and also doesn’t take into account serious issues surrounding Indigenous involvement in jury pools.

The Supreme Court of Canada has even recognized these issues and in its 2015 decision of R v Kokopenace4 referenced an report5 written by former Justice Iacobucci that found the issue of Indigenous underrepresentation in jury pools to be a multi-faceted and deep rooted problem that extends well beyond difficulties in obtaining accurate lists of potential Indigenous jurors.

So, not only are Indigenous peoples overrepresented as accused within the criminal justice system but also, based on Iacobucci’s findings and the Kokopenace decision, underrepresented within jury pools.

The necessary question to ask now is, what effect will the elimination of peremptory challenges have? For non-minority accused, peremptory challenges do allow for the defence to exclude potential minority jurors. On the other hand, Indigenous accused are faced with jury pools that are composed of significantly smaller proportions of Indigenous peoples compared to the general population.

For example, in the Kokopenace6 case, Indigenous people comprised one third of the adult population within the area where jurors were chosen from, but out of the jury pool that was put together only 8 out of 175 were Indigenous. Clearly this is only one example, but it seems to be a pervasive problem that Indigenous people are not forming a representative proportion of jury pools. When taking this into account, the question becomes, which segment of the population will be most effected if peremptory challenges are eliminated? Will it be the non-Indigenous accused who comprise 167 out of 175 potential jurors in the instance of Kokopenace or will it be the Indigenous accused.

It seems to me that defence counsel representing a client who is facing a jury pool with only a handful of jurors from the same background need every tool at their disposal in order to attempt to get one of the few similarly situated individuals onto their jury panel. The elimination of peremptory challenges will not be felt to same extent by accused across the racial spectrum. Perhaps the stated goal laid out by the government of eliminating discrimination in the jury selection process could be better met by efforts that are directed towards getting better Indigenous representation within Jury pools instead of their current path, which may end up further disadvantaging Indigenous accused.

One of the other provisions within Bill C-75 is to restrict the availability of preliminary inquiries to only those accused who are charged with crimes that carry a potential life sentence. The government has stated that the goals of this restriction are to help reduce persistent backlogs within the justice system and to stop re-traumatizing victims by forcing them to attend court multiple times.7 The purpose of preliminary inquiries is to test Crown evidence and ensure that only cases with sufficient evidence proceed to trial. Unsurprisingly, this provision has been met with strong opposition from defence lawyers who argue that restricting preliminary inquiries like this will be unfair to the accused.8 Defence lawyers also argue that the stated goal of reducing delays is disingenuous on the part of the government, since preliminary inquiries only constitute a small portion of court time (example: prelims only take up three percent of all court time in Ontario), but serve the function of narrowing issues to be argued about at trial, reducing or in some cases even eliminating required trial time.9 Also, a lot of criticism of Bill C-75 has been centered around the fact that the government ignored calls for legislation to address the problems imposed by the bevy of mandatory minimum penalties contained within the Criminal Code which are seen by many to be a main source of delays that the government is attempting to address by restricting preliminary inquiries.

These are only two of the provision in a Bill that otherwise seems to be taking some positive steps forward in criminal justice reform. Positive steps aside, I feel as though the government missed the mark with these two amendments. The government’s attempt at getting rid of discrimination in jury selection will only end up hurting the disadvantaged populations such as Indigenous peoples by taking away one of the few tools at their disposal that could be used to possibly form a representative jury. Also, their attempt at reducing delays targets a minor source of court time consumption instead of targeting mandatory minimums which reduce incentive for an accused to plead guilty, which leads to unnecessary trials and unnecessary wasting of court resources. Overall it appears the government took a few steps forward with introducing Bill C-75, but it also took a few steps back. How many steps it took in each direction will remain to be seen, but I hope that some of the criticism that has been voiced does not fall of deaf ears.

Endnotes

1) Tasker, J. P. (2018, March 30) Lawyers say post-Bouchie justice reforms could actually make juries less diverse. Retrieved from http://www.cbc.ca/news/politics/liberal-justice-reforms-jury-selection-1.4600007

2) Statistics Canada. (2017, October 25) Aboriginal peoples in Canada: Key results from the 2016 Census. Retrieved from http://www.statcan.gc.ca/daily-quotidien/171025/dq171025a-eng.pdf

3) Reitano, J. (2017, March 1) Adult correctional statistics in Canada, 2015/2016. Retrieved from http://www.statcan.gc.ca/pub/85-002-x/2017001/article/14700-eng.htm

4) R v Kokopenace 2015 SCC 28

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

6) Supra note 4.

7) Supra note 1.

8) Ibid.

9) Ibid.