Sen. Murray Sinclair strikes team to recommend changes to Criminal Code

46 posts / 0 new

Thu, 2018-03-08 16:04

6079_Smith_W

While he said it will be a long process, he hopes to be making announcements within the year.

http://www.cbc.ca/news/canada/manitoba/jury-selection-murray-sinclair-1....

Said Sinclair: "I think we're going to start initially to talk about the jury selection process and the fact that you can have a jury in a part of the country where 50 per cent or more of the population are Indigenous people and yet so few people who are Indigenous actually made it into the pool of people eligible for the jury — just eligible.

"Maybe moving jury trials into the communities is our answer, as they do in Nunavut, as they do in the Northwest Territories."

He said at this point in time, the team he has assembled is looking at the results of the 1991 Aboriginal Justice Inquiry of Manitoba.

The Aboriginal Justice Inquiry was called in response to two cases — the killing of Helen Betty Osborne in 1971 and the killing of Island Lake Tribal Council executive director J.J. Harper in 1988.

Peremptory challenges were used in the Osborne case, eliminating six Indigenous people from the jury panel.

The inquiry recommended getting rid of peremptory challenges.

Thu, 2018-03-08 16:44

Mr. Magoo

Other jurisdictions have abolished peremptory challenges. I wonder what the outcome was for them? On the one hand (using the Stanley trial as an example) peremptory challenges allowed the defense to exclude potential jurors who appeared to be Aboriginal. At the same time it would have allowed the Crown to exclude a retired white farmer. Did the Crown exercise their right to peremptory challenges as well, and how would that have affected the makeup of the jury?

I'm not, personally, against ditching peremptory challenges, but I genuinely don't think that's something that can only benefit Aboriginals (or women or POC or any other group). If jury selection comes down solely to lottery, with some exempted for material reasons, we'll need to be ready to accept what we get.

I've also suggested the possibility of retaining peremptory challenges for the defense, but not for the Crown. That would benefit an Indigenous defendant, but could have only made things worse in the Stanley case.

Thu, 2018-03-08 17:34

6079_Smith_W

And there's the U.S. where by court ruling it was made illegal to use these challenges against an identifiable group.

I think it is a bit more fundamental than "who benefits", because that continues to play into the treatment of the legal system as a game.

This is about excluding members of the community from a jury based on race. That in itself is a problem, even without making assumptions (right or wrong) about how people might weigh evidence and arguments.

Thu, 2018-03-08 17:38

milo204

if anything, the problem is the RCMP's lazy, negligent investigations that lead to missed evidence and crown lawyers not doing due dilligence on cases and ultimately making a weak argument and not being prepared enough.

perhaps making the premtory challenges require an explanation or something like the non premptory ones and just having more of them would make more sense too...

Thu, 2018-03-08 17:42

6079_Smith_W

That would be challenge for cause, which is something else. The whole argument for peremptory is that you get to do it without saying why. Which is fine, if you don't use it in a racist, or otherwise discriminatory way.

But this is only one of presumably many problems in the legal system this group will look into. It is just too bad it has taken over 25 years to start looking at these recommendations.

Thu, 2018-03-08 17:50

milo204

i don't know how many challenge with cause they get, but maybe just increasing that number would make sense. the challenge part seems totally valid, but they should at least provide a reason. i wonder what lawyers think of the without cause part, like what's their reason for wanting some with cause and some without?

Thu, 2018-03-08 17:55

6079_Smith_W

http://edmontonjournal.com/opinion/columnists/opinion-when-is-the-last-t...

Peremptory challenges are challenges that allow the prosecution or defence counsel to ask that any prospective juror be excused without providing any reason whatsoever. This creates a situation where either counsel can eliminate anyone including indigenous people and other minorities such as women from serving on a jury. This is still allowed in Canadian law despite Madam Justice L’Heureux-Dube’s admonition in R. v. Sherratt, a 1991 decision of the Supreme Court of Canada, “The modern jury was not meant to be a tool in the hands of either the Crown or the accused indoctrinated as such through the challenge procedure, but rather was envisioned as a representative cross-section of society, honestly and fairly chosen.”

Thu, 2018-03-08 18:24

Mr. Magoo

Quote:
And there's the U.S. where by court ruling it was made illegal to use these challenges against an identifiable group.

Yes, they're one of the jurisdictions I mentioned.

Quote:
I think it is a bit more fundamental than "who benefits", because that continues to play into the treatment of the legal system as a game.

OK. But so does the idea that if there had been any Aboriginal jurors in the Stanley case, the outcome would have been, shall we say, "better"?

To put it a totally different way, if the jury had taken 45 minutes to convict Stanley, nobody would be worried about that jury make-up. This isn't the first ever rejection of peremptory challenges based on principle, it's a reaction to the fact that Stanley got off.

Quote:
This is about excluding members of the community from a jury based on race. That in itself is a problem, even without making assumptions (right or wrong) about how people might weigh evidence and arguments.

It's facile to reduce peremptory challenges to the right to exclude potential jurors "based on race".

Neither the defense, nor the Crown, wants jurors who will identify with the other side.

In a case where a white person is accused of killing a white person, or a black person is accused of killing a black person, who do the defense and the state exclude based on race?

Quote:
he whole argument for peremptory is that you get to do it without saying why. Which is fine, if you don't use it in a racist, or otherwise discriminatory way.

The whole idea of the peremptory challenge is that it need not be rationalized.

What you say is a little bit like saying that every citizen should have the right to vote, Which is fine, if they don't use that vote in a racist, or otherwise discriminatory way. Since citizens don't have to defend their vote, how shall we know for sure? Naturally we can assume, but how can we ever say "this MP should not have been elected since it's just totally obvious that all the people who look like her voted for her and that's wrong"?

Thu, 2018-03-08 21:09

6079_Smith_W

This has nothing to do with whether an all white jury is potentially capable of a fair judgment.

What it is about is the unfairness of systematically excluding Indigenous people based on race.

For that same reason your vote analogy doesn't follow either. But if you turn it around it does make sense: the fact that white men might be potentially capable of voting fairly is in no way an argument for denying women or Indigenous people that same right.

But while these parlour discussions might be amusing for some, I think the far more serious findings of the Aboriginal Justice Inquiry and the Iacobucci Inquiry carry more weight in speaking to what is actually a serious injustice.

Thu, 2018-03-08 23:18

#10

cco

Let's postulate, for the moment, a Canada where peremptory challenges are abolished, and all challenges must be made for cause or bias. Would this result in more aboriginal people on juries?

The US has been brought up as an example a great deal in these threads. There, you can't reject every black juror based solely on race. But you can reject, for example, every juror who has a family member who's been arrested, or been the victim of police brutality. Shockingly enough, in many jurisdictions, this adds up to the same thing. Perversely, the existence of racial bias in the justice system translates into an excuse for perpetuating it, because a juror who's been discriminated against couldn't possibly fairly judge a case involving discrimination.

So the implication here, from those who wish to abolish peremptory challenges, is that white jurors can't be impartial between the Crown and the defendant, but that aboriginal jurors all could be, and couldn't be subject to any challenges on that basis (or on the basis of race-influenced criminal convictions of their own). I'm not necessarily opposed to abolishing peremptory challenges, but I'm far more skeptical when it comes to treating that as a cure-all for discrimination in the justice system.

Fri, 2018-03-09 00:02

#11

6079_Smith_W

Nobody has said all white jurors can't be fair. Nor that all Indigenous jurors are. Nobody is claiming it is a cure all for everything any more than recognizing the right of Indigenous people to vote is a cure all.

But removing the ability to arbitrary exclude them from the legal process is actually a fairly simple principle that Indigenous people have been calling for for decades. It has the weight of commission reports, professional legal opinions, political will, and court rulings behind it. It is time to act on it.

People who are nay-saying about finally dealing with this racist tactic might want to take a good hard look at the results of the way the system is currently designed to function.

Fri, 2018-03-09 00:03

(Reply to #11) #12

6079_Smith_W

Fri, 2018-03-09 00:04

#13

Mr. Magoo

Quote:
i don't know how many challenge with cause they get, but maybe just increasing that number would make sense

There's no limit.

Quote:

Challenge for cause
638. (1) A prosecutor or an accused is entitled to any number of challenges on the ground that

(a) the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to;

(b) a juror is not indifferent between the Queen and the accused;

(c) a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months;

(d) a juror is an alien;

(e) a juror, even with the aid of technical, personal, interpretative or other support services provided to the juror under section 627, is physically unable to perform properly the duties of a juror; or

(f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 to be tried before a judge and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be.

No other ground
(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).

Quote:
Would this result in more aboriginal people on juries?

Is the victim Aboriginal? Is the defendant Aboriginal? Is neither Aboriginal?

I have a hard time imagining the trial of a third generation Polish-Canadian, accused by the Crown of assaulting a Jamaican immigrant in Parkdale, in which the lynchpin of whether or not justice was done consists of how many Aboriginal jurors there were. In that hypothetical case, I think it would all turn on whether there were any Polish-Canadians on the jury, or Jamaican immigrants.

At any rate, we can certainly abandon peremptory challenges, and trust the lottery system to get the demographics right.

Fri, 2018-03-09 13:11

#14

6079_Smith_W

The coroner's office specifically requested Indigenous presence on an inquest jury selected today in Saskatoon. The inquest is being held into the death of Jordan Lafond:

In that inquest, the coroner made it clear he wanted at least half of the inquest jury to be Indigenous. Under the province's Coroner's Act, the coroner has the right to ensure there was a separate, randomly-selected pool of Status First Nations jurors to select from, as well as another separate pool from the general public.

"We arrived at what everyone walking out of that room would agree was an impartial jury. I don't see the downside to it," Murphy said.

Kent Roach, a law professor and expert in law and public policy at University of Toronto, said Saskatchewan's inquest system may have something to offer the criminal system — especially as experts look at ways to get more Indigenous people involved in the jury process.

http://www.cbc.ca/news/canada/saskatoon/lawyer-calls-sask-inquest-jury-s...

Certainly Indigenous inclusion is something that people aren't going to feel as threatened by in this case because a coroner's inquest cannot assign blame or find someone criminally responsible. But at very least it will hopefully demonstrate that the mountains won't crumble to dust and the moon turn to blood over a radical move like this.

Tue, 2018-03-13 00:22

#15

Rev Pesky

In that you ignored the question the first time, 6079_Smith_W, I'll ask it here.

How do you know there were no jurors with First Nations ancestry on the Stanley jury?

Tue, 2018-03-13 07:55

#16

6079_Smith_W

I did answer that question Rev. I responded directly actually. Go back and look.

Wed, 2018-03-14 01:54

#17

Rev Pesky

I did go back, and read every post you made after the question. No answer to my question. Perhaps I missed it, but just for the sake of making sure, either point me to the post in which the answer is contained, or answer it here.

Wed, 2018-03-14 04:56

#18

6079_Smith_W

It's post 394, second and third paragraphs.

Thu, 2018-03-15 00:26

#19

Rev Pesky

From 6079_Smith_W:

All the news reports made the point of saying "no visibly Indigenous", because no, we don't know for sure. But if someone is making that decision based on how someone looks, it doesn't matter if someone passes for white and happens to make it on to the jury.

It is still racist abuse of the peremptory challenge. I think we have gone through these ones already.

Just to be clear, you don't know that there were no jurors with First Nations ancestry, is that correct?

Thu, 2018-03-15 09:21

#20

6079_Smith_W

Just to be clear, did you read my answer, and if so why are you asking?

If you want me to repeat it thinking you might put me on the spot I am not sure why because we have actually been around this specific point a few times in these threads.

It doesn't matter, because if you have lawyers turning away everyone who looks Indigenous it is still racism. Yes, we use the white shorthand, but the media have consistently said "Indigenous appearing".

The fact that some seem to be stuck on the question of how we know they were really white is a bit of a joke, and in fact an illustration of what a racist construction whiteness really is. Same for the more general fact that some people happen to pass for white, and some make efforts to do so. This doesn't mean this isn't about racism. It is a pretty sharp example of why it IS.

Then there is the concern that the most important thing here is that it is a slur against white people, and that if we can raise the question that there might have been an Indigenous person there it might actually mean something. Or that like that magic bullet it is some unknown point that we can keep spinning around so as to avoid the real problems of systemic racism here.

Truth be told, I think if there was an Indigenous person on that jury they might have come forward, unless they were too embarrassed. But it really doesn't matter. Yes, in a general sense it is important to have the perspective of people who see and understand racism, but it doesn't make the outcome any less problematic, and non-white people can also play a role in propping up racism. White people do have the potential for honesty, and I don't hold them any less responsible because they were white.

None of this changes the fact that refusing people a spot on a jury because they are part of an identifiable group is discriminatory.

Thu, 2018-03-15 18:22

#21

Mr. Magoo

Quote:
Yes, in a general sense it is important to have the perspective of people who see and understand racism

OK. But as I've suggested, the defense in a carjacking case is certainly going to want to use a peremptory challenge against any prospective juror who was recently carjacked.

Do we need the perspective of someone who was recently carjacked on that jury? Wouldn't they have an understanding that someone who has never been carjacked couldn't have?

Thu, 2018-03-15 18:50

#22

6079_Smith_W

The problem is refusing people a spot on a jury because they are from an identifiable group.

Thu, 2018-03-15 19:19

#23

Mr. Magoo

In this context that really seems like a category of convenience.

The defense and Crown use peremptory challenges to weed out jurors they feel might bring bias to their job -- whether that bias is rightfully earned or not. They're not solely interested in declining jurors because of how they look.

No matter how we slice and dice it, it still comes down to either:

a) we should tinker with the makeup of a jury

b) we should not tinker with the makeup of a jury

We can't act like it's a travesty of justice when someone is declined because they look like someone who might have a bias, and then be fine with someone being declined because their potential reason for bias isn't externally visible.

Let me put it very simply: should we EVER tinker with juries, or should we NEVER tinker with juries? Excluding things like a material conflict of interest, or basic ineligibility, of course.

Thu, 2018-03-15 19:32

#24

6079_Smith_W

Every time you have asked that question I have said I'd be fine with peremptory challenges gone. Same simple answer.

But they aren't actually all the same. In some jurisdictions it is something lawyers can raise an objection to if it appears to be based in discrimination.

Thu, 2018-03-15 20:07

#25

Mr. Magoo

Quote:
Every time you have asked that question I have said I'd be fine with peremptory challenges gone. Same simple answer.

OK. I'm actually down with that, so let's do that.

Quote:
But they aren't actually all the same. In some jurisdictions it is something lawyers can raise an objection to if it appears to be based in discrimination.

Then you're not talking about a peremptory challenge. That would be challenge for cause, already described.

The difference might seem small, but it's the difference between "I won't eat at that restaurant because of this thing that happened" and "I won't eat at that restaurant because it's my right to not eat at a restaurant if I don't wish to".

Thu, 2018-03-15 20:16

#26

6079_Smith_W

No the law in the U.S. concerns peremptory challenges.

If it happens that it is used consistently against people of an identifiable group someone can object.

And the Canadian court ruling mentioned in that article above is based on the fact these challenges should not be used to make the jury a "tool". Subtle distinction maybe, but I get it. It isn't an indictment of the use of peremptory challenges, only their clear abuse.

And refusing any Indigenous person is pretty clear abuse.

Thu, 2018-03-15 20:23

#27

Mr. Magoo

Quote:
No the law in the U.S. concerns peremptory challenges.

OK, but what's that all about in the Indigenous Issues and Culture forum? They do lots of stuff weird.

Quote:
It isn't an indictment of the use of peremptory challenges, only their clear abuse.

Problem is, that abuse isn't ever clear.

If a peremptory challenge had to be justified, we could look at that justification and decide whether or not we think it's valid.

When no justification is required, we can't say "Oh, but here's the reason that they didn't say, and it's not valid".

Thu, 2018-03-15 20:37

#28

6079_Smith_W

It's not actually wierd at all. It's the way they do it there, and it is relevant because if a U.S. lawyer refused all Indigenous people from a jury that objection could be raised. That might not be the solution Sinclair's group comes up with, but it is one solution.

Again, I have no problem getting rid of it, but so far the objections here haven't focused on peremptory challenges being inherently wrong, only that they are something which are open to abuse.

Thu, 2018-03-15 21:07

#29

Mr. Magoo

Quote:
It's the way they do it there, and it is relevant because if a U.S. lawyer refused all Indigenous people from a jury that objection could be raised. That might not be the solution Sinclair's group comes up with, but it is one solution.

I'm sure all of babble would agree that they have much to teach us.

Quote:
but so far the objections here haven't focused on peremptory challenges being inherently wrong, only that they are something which are open to abuse.

And I've already suggested that when no reason is required, no reason can constitute "abuse". That's not my "opinion", that's just how "any reason is sufficient and none are demanded" works.

Thu, 2018-03-15 22:51

#30

6079_Smith_W

But it isn't how it works in the U.S. if someone raises an objection of alleged discrimination:

In Batson, the court outlined a three-step approach for analyzing challenges to peremptory strikes. First, the party objecting to the strike must present facts that "raise an inference" that the strike was racially based. Second, the party who made the strike must present a "neutral explanation." Finally, the trial court must determine whether the party objecting to the strike has established "purposeful discrimination."

http://www.apa.org/monitor/2009/01/jn.aspx

And here is how it was applied in one case:

Applying Batson, the court determined that the defendant made a "prima facie showing that the challenge was based on race" because the prosecutor struck all of the remaining African-American jurors. The prosecution advanced two race-neutral rationales for the peremptory strike of one of the African-American jurors, arguing that the juror appeared "very nervous" and expressing concern that a potential scheduling conflict would incline him toward a lesser verdict so as to expedite the deliberations.

The court found that the trial court failed to make any factual determination as to the juror's demeanor or his schedule and, therefore, did not credit this explanation. Accordingly, the Court found that the prosecution's rationales were a "pretext" for discrimination.

So if someone is challenged on a peremptory challenge they then are given the opportunity to offer an explanation. Based on the arguments the court decides whether the allegation is valid or not.

Fri, 2018-03-16 00:47

#31

Mr. Magoo

Interesting.

Evidently it's named for the defendant in the case in which it first became law.

When has it been used by the prosecution? In other words, while it seems to be invoked if all black potential jurors are excluded from the jury that tries a black man, has it been similarly invoked if all black potential jurors are excluded from the jury that tries a white man?

Since I guess we're still really just talking about the Stanley trial, let's not forget that the defendant was white and that we don't generally believe the Crown should enjoy any extra advantage in a trial.

Fri, 2018-03-16 01:30

#32

6079_Smith_W

It can be used if a lawyer in the case feels a peremptory challenge has been used in a discriminatory way. It doesn't limit who can use it and in fact it has been used in civil cases. You can parse it how you want, but the rule is actually pretty simple.

Why do you feel preventing an illegal racist act is an extra advantage? I'd say you have that one backwards. I don't see that either side in any trial should be able to break the law to their advantage.

Sat, 2018-03-17 10:53

#33

Rev Pesky

From 6079_Smith_W:

The problem is refusing people a spot on a jury because they are from an identifiable group.

The way you've been going on, I thought you knew the jury was all 'white'. I accept that you dont' know that. Of course, if there were jurors with First Nations ancestry, that means the juries decision was just a juries decision, not some racist conspiracy to prevent the law from dealing with white people.

Here's another question. The final makeup of the jury was 7 women and 5 men. It would be interesting to know whether all of those the defence peremptorily challenged were men. That could indicate the defence wanted more women on the jury.

Sat, 2018-03-17 14:43

#34

6079_Smith_W

That doesn't make sense for the reason I just pointed out. Racism is usually based on perception so the fact someone might pass and not be targeted is irrelevant. And the rule in the states is that it can be challenged if it is believed it is being done to unfairly influence the trial so the sex question may not be relevant.

But if no peremptory challenges were allowed this would not be a problem at all.

There have been a number of attacks in the states where Sikh people have been injured or killed by people who thought they were Muslim. Does the fact they got it wrong make it not a racist attack? In the same way if someone doesn't notice someone who happens to pass as white it doesn't make the tactic any less racist.

You are grasping at speculative straws here which are not relevant to the main question. What is known is that in the Stanley case (as in some other cases) every visibly Indigenous person was refused a place on the jury. That is the point this concerns.

Sat, 2018-03-17 17:24

#35

Mr. Magoo

Quote:
It can be used if a lawyer in the case feels a peremptory challenge has been used in a discriminatory way. It doesn't limit who can use it and in fact it has been used in civil cases. You can parse it how you want, but the rule is actually pretty simple.

OK. But most of what you can find to read about it exclusively refers to it's use by the defense in protest of the State's/Crown's attempt to "jurymander" the jury. A few ambiguously referred to "counsel". But I don't think I saw a single example or precendent case in which the Batson challenge was used by the State/Crown to protest the defense exempting jurors for discriminatory reasons, so I continue to wonder whether this is one of those things, like the Crown's obligations of disclosure, that apply to one side but not the other.

I think we probably all agree that the defendant, in a criminal trial, should be entitled to any advantages or benefits of doubt in a way that the State/Crown is not. As an example, I think we all intuitively understand why a black man, on trial for rape, should be entitled to be tried by a jury that was not intentionally "cleansed" of black jurors. But it's so much less clear why the State/Crown is similarly entitled to proceed with a jury that was not intentionally "cleansed" of white people.

Quote:
Why do you feel preventing an illegal racist act is an extra advantage?

I'm using the term to describe anything that is likely to make one side "win". And I think that's also part of why I wonder whether Batson is used by both sides -- while we surely understand why a defendant wants to "win", we typically expect the State/Crown to be satisfied with presenting the evidence. They're not supposed to be itching for a win.

Sat, 2018-03-17 17:55

#36

NorthReport

There definitely are some excellent lawyers but no one occupation should have more than maximum 10% representation in the House of Commons

Sat, 2018-03-17 18:10

#37

Mr. Magoo

Quote:
no one occupation should have more than maximum 10% representation in the House of Commons

So no more than one in ten of the people that we choose to make our laws should be permitted to have chosen law as their career?

I think the United States is way ahead of us on this. Comedians, wrestlers, actors, real estate magnates, reality TV stars... awesome. Anything to break the monotony of people versed in the law.

Sat, 2018-03-17 19:29

#38

6079_Smith_W

They already have a great advantage in the prosecution's burden of proof.
There is no need use racist manipulation, and it is not an advantage to expect lawyers to stay within the spirit of the law (and we already have a court decision spelling that out).

Sat, 2018-03-17 19:44

#39

Mr. Magoo

Quote:
They already have a great advantage in the prosecution's burden of proof.

Super. But again, can a Batson challenge be made by the State/Crown if the jury doesn't seem "white enough" to convict? And again, some info sources are a bit ambiguous about this, so I kind of want to hear about how the State/Crown shot down some peremptory challenges and got themselves that white jury they hoped for.

The State/Crown isn't supposed to need a sympathetic jury. They're supposed to have the truth on their side. And so I must ask again about Batson.

Sat, 2018-03-17 21:30

#40

6079_Smith_W

Not sure what you mean Magoo. However much you might think it is some sort of game (and I know plenty in the profession see it that way too) this is actually a pretty simple concept and rule. And I'd be fine with simplifying it further and getting rid of peremptory challenges.
But then again so are you, so I m not sure why you keep coming back to this.

Sat, 2018-03-17 21:45

#41

Mr. Magoo

Quote:
Not sure what you mean Magoo. However much you might think it is some sort of game (and I know plenty in the profession see it that way too) this is actually a pretty simple concept and rule.

I get the simplicity of it. It's just not clear to me that it's typically used by both the defense and the prosecution.

Also, I don't exactly know how I'd feel about the prosecution using it just to score a conviction, for its own sake.

Quote:
And I'd be fine with simplifying it further and getting rid of peremptory challenges.
But then again so are you, so I m not sure why you keep coming back to this.

I'm not convinced that you're ready to take your chances with a random lottery, I guess. But if you are then let's go with that, yes? No do-overs, ever?

Sat, 2018-03-17 22:33

#42

6079_Smith_W

You are the only one who has raised it as a concern, Magoo.

And I think I just said Batson can be used by either side, and in civil cases.

Wed, 2018-03-21 12:59

#43

6079_Smith_W

Legal academics from across Canada have formed a group to look into issues raised by the Stanley trial, including property rights:

http://www.cbc.ca/news/canada/saskatoon/lawyers-academics-doing-deep-div...

But his interest was piqued when jury selection got underway. Under Canadian law, lawyers can use a certain number of peremptory challenges to excuse potential jurors without giving a reason why. Stanley’s lawyer used peremptory challenges on all visibly Indigenous potential jurors and the eventual seven-woman, six-man jury appeared to be all Caucasian.

Tanovich said he was shocked by two things: first, that the Crown prosecutor did not argue for a limit on peremptory challenges, and second, that the Crown did not ask for potential jurors to be vetted for bias.

“That also then got me thinking about and wondering about the conduct of the prosecution and what sort of job they would do throughout the entire trial,” Tanovich said.

Tue, 2018-03-27 10:01

#44

6079_Smith_W

Jailed for using fraud to get food. There are links in the story to the wider problem - Saskatchewan's low rate of courts seeking Gladue reports. A court ruling has ordered that to change.

A Saskatchewan woman who pleaded guilty to impersonating another woman to obtain groceries will get a new sentence after a superior court justice ruled that the sentencing judge failed to address her Indigenous ancestry.

“A sentencing judge has a statutory duty to determine if the offender is aboriginal and the failure of a sentencing judge to consider Gladue factors when sentencing an aboriginal offender renders the decision open to appellate review,” Zuk wrote.

http://thestarphoenix.com/news/local-news/woman-to-be-re-sentenced-after...

Fri, 2018-03-30 07:25

#45

Rev Pesky

Speaking of peremptory chanllenge:

Lawyers say post-Boushie justice reforms could actually make juries less diverse

Defence lawyers are sounding the alarm about sweeping changes to the criminal justice system unveiled Thursday by the Liberal government, warning the proposals will further stack the deck against those accused of a crime while doing little to promote a more equitable justice system.

Bill C-75, introduced Thursday by Justice Minister Jody Wilson-Raybould, will remove sections of the Criminal Code that allow for peremptory challenges.

..."The great irony of all this is it's in response to Colten Boushie, where the complaint is that the jury wasn't representative enough," Friedman said. "But I can tell you this, when I have an accused person who is Indigenous, if I have a young black man, I want a juror that looks like my client, that has had similar life experiences.

"I use peremptory challenges to get a more diverse and representative jury, to see if I can get racialized individuals on the jury. That is now gone. We cannot do that now."

Friedman said the jury pool is overwhelmingly white, older and middle class.

...He said if the government is serious about bolstering Indigenous representation on juries it ought to spend money on advertising targeted at Indigenous communities, to encourage people to actually respond to their jury summons and show up for jury selection.

Another defence lawyer, Michael Spratt, said he's also troubled by the move to eliminate peremptory challenges.

"When you have 100 people lined up, potential jurors, only a very small percentage, a disproportionately small number, are people of colour," he said. "We will often use preemptive challenges to excuse white jurors or non-minority jurors so we can get to those racialized jurors that look like our client."

Well, there's a couple of lawyers freely admitting they use the peremptory challenges to change the makeup of their juries. And as anyone could have pointed out, those peremptory challenges have helped First Nations accused as much as they've hurt them.

As the man said, by far the largest group in the jury pool is older caucasians. Remove the peremptories and that is what you'll get as your jury.

Fri, 2018-03-30 09:09

#46

6079_Smith_W

From the article:

Friedman said that during his last homicide trial, the Crown dismissed every young black man with a peremptory challenge. "Every one — and our clients were all racialized. I find the Crowns are using their challenges to keep off minorities or Indigenous individuals. I'm trying to use them to keep them on the jury."

Evidently they aren't all white. Sounds like he is describing the same situation, but is just unsure about the proposed change. What he leaves out is that if there are disproportionately fewer non-white people it is that much easier to shut them out entirely. That is what has been happening.