Peremptory Challenges: Judging a Juror by their Jacket

These days, it is hard for any person to make it through childhood without hearing the nearly ancient adage that “you cannot judge a book by its cover”. This timeless phrase reminds the listener that what is on the surface is often superficial. It highlights the fact that observations of peoples’ outward appearances often tell us nothing at all about a person’s character or abilities and sometimes they can even entirely mislead us. Indeed, many children understand this simple piece of wisdom, and yet it is wisdom that still appears to be absent in the Canadian legal system.

In a Canadian jury trial, both Crown and defence lawyers are afforded an ability to remove several potential jurors at the start. These removals are called peremptory challenges and are laid out in section 634 of the Criminal Code. [1] The number of jurors that may be removed with peremptory challenges varies depending on the nature of the offence at trial. While choosing to exercise a peremptory challenge, legal counsel receives nothing more than a name, occupation, and a glance at the person’s current appearance. No reason needs to be provided for the juror’s removal. In effect, lawyers are asked to judge a juror by their cover.

It should come as no surprise that peremptory challenges have sometimes led to concerning results. A large body of scientific evidence has established that people subconsciously and unknowingly carry certain implicit biases. [2] These biases can lead people to treat those most like them relatively better than those who are less so. In layman’s terms, people appear to be better at empathizing with people they share features with. At best, these biases may accidentally affect the peremptory challenges of lawyers acting in good faith. At worst, lawyers may actively exploit these biases to help them succeed at trial. For example, a defence lawyer may prefer jurors who are relatively similar to their client in age, race, sex, appearance, and occupation. Alternatively, a prosecutor may prefer jurors who share similarities with the victim of a crime. In other words, in any given case a defence lawyer may wish to remove jurors who share similarities with a victim and a prosecutor may wish to remove jurors who share similarities with an accused. Placing the ethics of such tactics aside, a lawyer using peremptory challenges in this fashion would appear to be giving themselves an advantage at trial.

Thankfully, most Canadian lawyers have avoided using peremptory challenges to exploit human biases. In R v Gayle, the Ontario Court of Appeal even expressly forbade Crown prosecutors from using peremptory challenges on racial or ethnic grounds because of their public and quasi-judicial role. [3] Given the role of defence counsel as staunch advocates expected to protect their clients’ interests, however, it appears unlikely that they would be held to the same standard by the courts. In fact, defence counsel are generally expected to use every advantage they are given to secure the best results for their clients. With this in mind, the discriminatory use of peremptory challenges by defence counsel can unfortunately be seen as just another tool to help them do that. [4]

Because of their inherent dangers, peremptory challenges have attracted much criticism. University of Toronto law professor Kent Roach has referred to them as “a stone-cold invitation for jury selection to be infected by conscious or unconscious racist stereotypes”. [5] University of Alberta law professor Steven Penney has echoed similar concerns. [6] Former Supreme Court Justice Frank Iacobucci recommended the consideration of potential reforms to peremptory challenges in his report entitled First Nations Representation on Ontario Juries, where he proposed amending the Criminal Code to prevent them from being used to discriminate against racial minorities, but also drew attention to previous mentions of abolishing them entirely. [7] Indeed, in his report, Iacobucci referenced the Aboriginal Justice Inquiry, where it was recommended that “the Criminal Code of Canada be amended so that the only challenges to prospective jurors be challenges for cause, and that both stand-asides and peremptory challenges be eliminated.” [8]

As it stands right now, Canada’s system of peremptory challenges appears to be outdated. The United States Supreme Court has already forbidden peremptory challenges from being used based on race or sex, and the United Kingdom has abolished the practice entirely. [9] It seems clear that Canada ought to consider similar reforms. Due to the arbitrary nature of the practice in general, the complete abolishment of peremptory challenges appears to be the reform favoured by many, including Kent Roach. [10] To allow peremptory challenges to remain, even with severe restrictions, would continue to invite lawyers to exclude potential jurors based on their outward appearances and occupations. If not for race or sex, jurors may just as easily be excluded for their choice of piercings or clothing style. A lawyer may even judge a juror by the make of their jacket. The unnecessary risk is that whether done consciously or subconsciously, lawyers could continue to be able to remove jurors without knowing anything at all about the content of their character. If Canada really does believe that one should not judge a book by its cover, then the practice of peremptory challenges ought to be entirely abolished, and jurors ought to only be removed with good and explicit reasons for doing so.

Endnotes

[1] Criminal Code, RSC 1985, c C-46, s 634.

[2] Keith Payne, Laura Nieme & John M. Doris, “How to Think about “Implicit Bias””, Scientific American (27 March 2018), online: <https://www.scientificamerican.com/article/how-to-think-about-implicit-bias/>.

[3] R v Gayle, 2001 CarswellOnt 1322 at para 66, 145 OAC 115.

[4] David Butt, “How the justice system let race taint the Stanley verdict”, The Globe and Mail (11 February 2018), online: <https://www.theglobeandmail.com/opinion/how-the-justice-system-let-race-taint-the-stanley-verdict/article37931748/>.

[5] Kyle Edwards, “Gerald Stanley trial aftermath: How to avoid appointing all-white juries”, Maclean’s (12 February 2018), online: <https://www.macleans.ca/news/gerald-stanley-trial-aftermath-how-to-avoid-appointing-all-white-juries/>.

[6] Jason Warick, “The long list of problems Colten Boushie’s family says marred the case”, CBC News (13 February 2018), online: <https://www.cbc.ca/news/canada/saskatoon/colten-boushie-family-list-problems-gerald-stanley-case-1.4532214>.

[7] Ontario, Ministry of the Attorney General, First Nations Representation on Ontario Juries (Independent Review), by The Honourable Frank Iacobucci (Toronto: Ministry of the Attorney General, February 2013) at 376.

[8] Aboriginal Justice Implementation Commission, Report of the Aboriginal Justice Inquiry of Manitoba (Winnipeg: Aboriginal Justice Implementation Commission) vol 1.

[9] Supra note 6.

[10] Jason Warick, “Stanley trial exposes problems with jury selection, says legal experts”, CBC News (4 February 2018), online: <https://www.cbc.ca/news/canada/saskatoon/jurors-indigenous-representation-1.4517610>.