OTTAWA — On Jan. 29, more than 200 people filed into a gymnasium in Battleford, Sask., to be the jury pool for the imminent trial into the shooting death of Colten Boushie, a 22-year-old Indigenous man.
The unusually large group had already been whittled down from 750 people summoned from the massive jury boundary, which stretches all the way up western Saskatchewan to the Northwest Territories.
On that day, the pool was used to select a jury of seven women and five men, plus two alternates. But according to the numerous reporters and observers in the gym that day, the defence counsel made sure to block as many as five jurors who appeared to be Indigenous, leaving a jury that looked entirely white.
“Something that we feared has come true,” said Jade Tootoosis, Boushie’s cousin, to media later that day.
The Indigenous jurors were blocked through peremptory challenges, a tool that’s been in Canada’s Criminal Code since it was created in 1892. It allows both the Crown and the defence to reject jurors without any explanation, but for decades there have been warnings that it enables race-based discrimination.
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On Friday, the jury acquitted Gerald Stanley, the white farmer accused of killing Boushie (he argued the gun discharged accidentally.) The use of peremptory challenges is now under intense debate, and the Boushie family has travelled to Ottawa to meet with cabinet ministers. They’re scheduled to meet Prime Minister Justin Trudeau on Tuesday.
Has the time for reforms finally come? Here’s a rundown of what’s at stake.
Why does Canada use peremptory challenges?
There are legitimate reasons for blocking jurors, and they’re used — and sometimes abused — by both sides.
But defence lawyers tend to be protective of peremptory challenges because the government controls so much else about the jury selection process. The challenges are a powerful tool to give up.
“Not many people would disagree with (removing the challenges), except maybe some defence lawyers,” said Chris Murphy, the lawyer representing the families, on Monday.
He said that as recently as a year ago even he would have argued for keeping them, but his experiences have changed his mind.
“(Lawyers) literally get to eyeball that person for three seconds before you make a decision,” Murphy said. “And so if you’re an Indigenous person watching this process, what are you to think? What is this decision based on?”
Colten Boushie and Gerald Stanley.
Can it really be legal to exclude jurors based on race?
Concerns about race-targeted use of peremptory challenges in Canada have been around for decades.
In 1988, Manitoba launched an Aboriginal Justice Inquiry, co-chaired by Sen. Murray Sinclair (a provincial judge at the time). The report studied a murder case of a 19-year-old Indigenous woman in the northern city of The Pas, and concluded six Indigenous people were blocked from …read more