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 …read more