Front Burner - Will a fix for racial bias in jury trials backfire?

Episode Date: October 9, 2020

In 2018, the public outcry around the Gerald Stanley case, where a white farmer was acquitted in the killing of Colton Boushie, a young Indigenous man, paved the way for the creation of Bill C-75. It's legislation meant to address racism in the jury selection process. But some say it actually does the opposite. The dispute made its way to the country's highest court this week. And while the court upheld the law, opinions remain divided on its usefulness. Today, we hear from two lawyers with different points of view on this jury reform legislation. Peter Thorning and Caitlyn Kasper both intervened in this week's hearings. Thorning represented the Canadian Association for Black Lawyers, and Kasper represented Aboriginal Legal Services.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Canada's justice system is not a level playing field. Year after year, Indigenous peoples and Black Canadians are overrepresented in the country's prisons, both provincially and federally. Anger at this can boil over.

When Gerald Stanley, a white farmer, was acquitted in the killing of Colton Boushey, a young Indigenous man, there was widespread grief and protest. We hope for killing of Colton Boushey, a young Indigenous man. There was widespread grief and protest. We hope for justice for Colton. However, we did not see it. We did not feel it throughout this entire process. This is how they treat us First Nations people.

It is not right. Something has to be done about this. And the public outcry around that verdict led to the creation of Bill C-75, legislation that's meant to address racism in the jury selection process. The jury at Stanley's trial was all white. But some take issue with that law, saying that it actually does the opposite of what it intends. I rise in this House today to make Canadians aware of some very troubling changes the Liberals

are proposing in Bill C-75. Particularly in relation to access to justice and fairness, which has actually been worsened in this bill. This dispute has made its way to the country's highest court after a man named Pardip Chauhan was charged with first-degree murder, and his lawyers argued that these jury reforms infringed on his charter rights. The arguments for and against were heard this week, and the court upheld the law. But that has not resolved the dispute,

and today we'll hear from both sides. I'm Josh Bloch. This is FrontBurner. I'm here with Peter Thorning and Caitlin Casper. Both of them intervened in the case that challenged Bill C-75. Peter represented the Canadian Association for Black Lawyers, and Caitlin represented Aboriginal Legal Services. Hello to you both. Hello.

Hi, good afternoon. Caitlin, I want to start with you. As I mentioned, this jury reform legislation came about in large part because of what happened to Colton Boushey, a 22-year-old Indigenous man killed by a white farmer in Saskatchewan. First of all, can you remind us of what happened to Colton Boushey? In August of 2016, he was shot and killed by Gerald Stanley, who was a farmer in Saskatchewan. Anger simmers over the Boushey case from those who think the justice system failed. Others see this as a case of a farmer protecting his property and family. The jury trial panel was called in the Battleford jurisdiction.

And approximately, I believe, over approximately 200 jurors were called and the defense council utilized five of their 12 peremptory challenges to exclude visibly Indigenous people who had come for the purpose of that jury panel. And that in and of itself resulted in a all non-Indigenous jury, which, as we know, ultimately acquitted Gerald Stanley. There's a profound sense of grief in Saskatchewan this evening. And as this verdict was read out in the courthouse, there were screams, people broke down. Some people have stated that race has nothing to do with this process. Yet the defense felt threatened by an Indigenous person being on the jury. I think that speaks volumes. And the trial led to widespread calls to change how juries are selected in Canada,

and specifically around peremptory challenges. And before I talk about those changes, Peter, tell me a bit more about how the process of jury selection in a criminal case works. I of people that were in court to get to your eventual 12. And there's a number of mechanisms that were used to reduce the number of people to the 12 that you're going to have. And one of the mechanisms that was used involved what's called a peremptory challenge. When Crown and defense lawyers select jurors at the start of a case, each side has a number of peremptory challenges. That is the word that is used when you want

to eliminate a potential jury member without even speaking to that person. So someone might look at me or you and say, okay, well, I don't want her on my jury. And there was another process whereby people would be removed for things like an appearance of conflict of interest, say, for instance, if they knew one of the witnesses or knew one of the parties involved

in the case or knew the complainant. Right. And the idea here is that you end up with a jury of your peers, that you have a cross section of society that will be hearing a case and deciding on a case. Right. Now, it's a little bit more nuanced than that, because what happens is, unfortunately, the randomness, the representativeness that one expects to get from their community isn't always the case, because the Juries Act will lay out what sort of things need to be done in order for a person to be eligible as a juror. So oftentimes, when people show up to court, there isn't a cross-representation of society just on that basis alone,

just because of the culling that has been done prior to the in-court procedure. Let's say, for instance, if you live in a big city center and the amount of visible minorities in any given city center, let's just say hypothetically, were, you know, 20 to 40 percent. You wouldn't expect to find the people who were called to court

to be filled with 20 to 40 percent of visible minorities just because, for instance, the Juries Act will, in various provinces, will prevent people who have criminal records from sitting on jury. But, you know, Black people are overrepresented in the criminal justice system. Guys are Indigenous people. And they, just by virtue of the fact that they have a criminal record,

would be told that they can't come to court to sit on jury. of the fact that they have a criminal record would be told that they can't come to court to send out a jury. Well, Gerald Stanley's trial clearly spoke to the frustrations with how the jury selection process actually plays out. And Caitlin, this jury reform legislation

was created to try and make jury selection more fair, more representative. Tell me about, first of all, who was behind this push. After the verdict came in from the non-Indigenous jury, obviously there was a lot of widespread public concern about what had happened and what had led to the conclusion of that trial. It was a massive sense of a miscarriage of justice.

You're supposed to have a jury of your peers. And if you're an Indigenous youth and your jury is entirely Caucasian, it's not exactly a jury of your peers. We will not stop our pursuit for justice. We will stand here and honour my late brother, my family member. Then the Minister of Justice, Jody Wilson-Raybould, pushed for reform on behalf of the Liberal government and basically indicated that discrimination in the selection of juries had been well documented throughout the years.

This trial has highlighted an issue that has been long-standing. I appreciate the national conversation that's being had not only about criminal justice system reform, but around jury selection and preemptory challenges. So the Department of Justice passed, they passed the Bill C-75. And with it, they kind of tabled that idea that discrimination of any kind has no meaningful role in promoting fairness and impartiality in the criminal justice process. So that really laid that foundation for why that elimination of peremptory challenges occurred. We want to be heard, but most of all, we should be included. The colonial courts were created without Indigenous input and therefore continue to oppress Indigenous people.

Referring to what Peter was saying, we already absolutely correct indigenous input and therefore continue to oppress indigenous people. Referring to what Peter was saying, we are already absolutely correct. There are already those limitations on some people being eligible to sit on the jury, but then when you do have indigenous people who do pass all the bars for being eligible to sit as a juror, they were still being challenged and still were not allowed or able to participate. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization.

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That's not a typo, 50%. That's because money is confusing. In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. Gerald Stanley's trial essentially opened many people's eyes to the problem of the way that juries are made up. Obviously, this is something that there has been great concern around for decades, and how specifically it relates to overrepresentation of Black and Indigenous people in Canadian prisons or their ability to receive a fair trial. And then Jody Wilson-Raybould

came up with this solution, this law that would eliminate preemptory challenges, that stops lawyers from being able to remove a juror for no reason. But Peter, I understand that you have challenged this law and have issue with it because you say it can have the opposite effect. I mean, tell me about that. The identified problem that came out of that Gerald Stanley trial is that parentheses are used in a way which is discriminatory. But I don't think that that is the reason why the law was changed. I think the law was changed because there was a sense that a person who was guilty of murder was not convicted of murder. And generally speaking, that causes an outrage.

And when there isn't a conviction, even though there's a presumption of innocence, in a situation where the public believes there should be one, then the government acts. Because, quite frankly, the fact that black people and Indigenous people are overrepresented in the criminal justice system is a fact that has been known by many for decades. And people don't do anything about it. That is the first problem. The second problem is that the government could have taken a less minimally impairing way of addressing the issues that have been identified by my friend. For instance, the government could have said it is

against the law to exercise a peremptory challenge in relation to an Indigenous person, period. The law could have said that all peremptory challenges that are seen to be used in a way which is discriminatory have to be justified. The problem with Bill C-75 is that it goes too far. Bill C-75 now removes peremptory challenges, which have been used to increase representativeness for Black accused, for Indigenous accused, for any marginalized accused. Tell me more about that. How so?

I think that there's a very distinct difference between a white police officer who removes black people from his jury because he thinks that they might not be sympathetic to him. There's quite a difference between that and a black accused, which is much more often the case, looking at 11 white faces and saying, I want to exercise my peremptory because I don't want one more. Right. Right. So the representativeness problem began with the jury's act. It begins with the fact that black people are over-policed, the fact that Indigenous people make up a very large portion of the number of people that we

have in jams. And as a result, they don't come to court to sit on juries. The numbers are so low. You know, that's the real problem. are so low. You know, that's the real problem. Caitlin, I hear Peter saying that this Bill C-75 is not the right remedy to address this issue of representation on juries. What's your response? I have to say that I respectfully disagree with Peter.

This was well documented as far back as 1991. For Native people in Manitoba and other parts of Canada, the inquiry's report and recommendations are now the best hope for major changes to the justice system. We don't blame the victims and the witnesses for not going to court. They've lost interest. Justice isn't done. This not just uh what happened at the gerald stanley trial and further to that uh and i think what is even more interesting um about this debate is that it is both uh defense counsel who will dismiss indigenous jurors and crown counsel will not use their peremptory challenges to try to save or make sure that Indigenous people are included.

So this is an issue, and I think we saw it highlighted, absolutely, in the Gerald Stanley trial, is that it's not even if it's just the Indigenous person who is the accused where this is happening. It's also if the Indigenous person is a victim of the crime as well. person is a victim of the crime as well. And so when you have that kind of discrimination coming, regardless of the role that an Indigenous person is playing in the process, I agree with Peter on the sense that I think that we'll talk about a little bit later about what we think should be done in terms of getting bodies in the seats in the jury panel. But where our real issues come from is the Indigenous bodies are there. They're not being selected. The Liberal government chose stark black and white letter legislation to say it's over.

Peremptory challenges cannot be used this way anymore. peremptory challenges cannot be used this way anymore. No longer will you be allowed to use stereotyping or discrimination to randomly subjectively kick people off the jury because you have a peremptory challenge. It's over. It's no longer going to be allowed to be done. And Caitlin, I'm curious to know how significant it is to remove the peremptory challenges, you know, remove the ability for a lawyer to remove a juror without any reason. I mean, surely you can just circumvent that by providing some kind of other reason, even if your intent is to not have Indigenous jurors on a jury. Well, and I think that we're going to see that as it plays out over the next little while.

When you challenge a juror for cause, obviously, you know, that's going to happen in terms of having to have a substantive reason. And ultimately, it's going to be the judge who makes that determination as to whether or not that reason is valid or it's not valid. Right. And it seems like you have different views on the legislation, but it's clear that you both

want the same thing in the long run, a fairer, more representative justice system. And Peter, you've alluded to this, but what other changes do you want to see in the jury selection process that would help achieve that goal? I think that, you know, the first thing is that they need to change the rules about who becomes eligible to sit on juries. And, you know, one of the rules that they need to change is the rule in which if you're convicted of a criminal offense, you're prevented from sitting on a jury. Now, the government believes that if a person has a criminal offense, you're prevented from sitting on a jury. Now, the government believes that if a person has a criminal record, then they would be automatically opposed to

whatever it is the Crown has to say in court. I don't think that that's true. That change is a change that needs to happen, because that will assist, I think, in creating a more balanced journey. And that is, I think, what we both want. Right. Caitlin, what about you? What else would you like to see done in addition to Bill C-75? I think Peter's absolutely correct. I think the issue of criminal records is a huge one. I think that we need better education. I think a lot of individuals, it doesn't matter whether or not you're Black or Indigenous, a lot of marginalized communities and a lot of just people growing up within Canada don't understand the importance of the jury system. They don't understand necessarily what their roles and obligations are and how big and how an important part of the system

they are as jurors. And so I think that there needs to be better education done of the public and have definitely pointed to certain communities who are underrepresented in the jury process. And finally, I think that they need to completely rework, and I'm sure Peter would agree with me on this, they need to completely rework their supports for jurors in terms of how much juries get per day, in terms of providing, you know, the real supports that we know of child care, family care, that kind of thing. We could be doing such a better job in terms of supporting and making it possible for people to be able to commit themselves to serving on a jury. And so I think that all of those things could be done to promote a healthier juror system. Peter, what's the consequence of a lack of action

on this issue? The real consequence of not taking action is that the system is going to virtually guarantee that many disadvantaged, marginalized people, Blacks and Indigenous people will face all white juries. That's the consequence of what has gone on. I totally, absolutely agree. And I think the Supreme Court has been very clear uh that one of um you know the basis of a fair trial is that you know the accused needs to believe in it in terms of uh fairness and what constitutes fairness but there's a second uh broader perspective and that's the one of the community and that's incredibly important um that the society believes in that process as well. And I think that there's real danger when there's estrangement between, you know, the black community, the indigenous community, when you have that estrangement where that import of that process is not valued by that community, because they're so disconnected from it, because they're not allowed to fundamentally participate in it, then there's a real crisis and a real corrosion of

the belief in justice. And that's a huge issue that I'm hoping Bill C-75 will help address. Thank you both so much for speaking with me today. Thank you for having us. That's all for today. Before we go, this is my last week hosting FrontBurner. And I want to thank you. It's been an absolute honor to be part of this show for the past few months, especially as our world has been so convulsed by so many significant events from COVID to the US elections to the massive protests for racial justice. And I want to say a huge thank you

to the FrontBurner team. The producers of FrontBurner are the fabric of the show. The topics we cover, the guests we find, the nature of those interviews, the scripts and the beautiful production and sound design. The team works incredibly long days to turn around five episodes every week, and they make it very hard for a host to fall on their face, so thank you. FrontBurner is brought to you by CBC News and CBC Podcasts, and that team of producers this week was Imogen Burchard, Elaine Chao, Allie Janes, and Shannon Higgins.

Derek Vanderwyk does our sound design with help from Mandy Sham. Our music is by Joseph Shabison of Boombox Sound. The executive producer of Front Burner is Nick McKay-Blocos. On Tuesday, Jamie Poisson is coming back. Yay, Jamie Poisson! I'm Josh Bloch. Thank you for listening to FrontBurner.

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