For judges in the United States, dealing with Batson challenges to peremptory challenges is a staple of our law. The Globe & Mail has a story that shows it is now Canadian judges’ turn on how to ensure that juries are representative.
The Globe story:
A federal ban on unexplained objections to potential jurors, enacted after a defence lawyer appeared to use the legal tactic to keep Indigenous people off a jury in a high-profile case, has been struck down by an Ontario judge. The ruling highlights the potential for chaos in jury trials across the country, now that the selection process has become an unsettled area of law.
The Liberal government intended the ban to address perceived bias in jury selection after a Saskatchewan jury acquitted white farmer Gerald Stanley of second-degree murder last February in the shooting death of Colten Boushie, an Indigenous man, who had been on his property.
The judge’s ruling this week was in response to an Indigenous defendant who argued that the seven-week-old law discriminated against him – the opposite of its stated purpose. By the judge’s own description, the ruling throws jury trials into uncertainty in the province, because several other Ontario judges have upheld the ban.
But the ruling could have wider implications. Although it does not apply directly to other provinces, jury verdicts nationwide could be on shaky ground if the Supreme Court ultimately rules against the jury process as set out in the new law.
Objections to potential jurors, without a reason being given – known as peremptory challenges – have been around since the Magna Carta of 1215. They were seen as a way to give defendants confidence in the people who were judging them.
And Justice Andrew Goodman stressed that he still sees them that way. Ruling on a constitutional challenge by Dale King, who is accused of second-degree murder, he said Mr. King had been denied the right to participate in the selection of a representative jury.
“In order to provide for a measure of protection against the discrimination of jurors, Parliament has abolished [Mr. King’s] ability to prevent discrimination against himself,” the Ontario Superior Court judge wrote in an 81-page ruling released this week.
A spokesman for the Ontario Attorney-General’s department declined to say whether the province would appeal. Jonathan Shime, a lawyer representing Mr. King, also declined to comment on the case while it is before the courts.
Mr. King is accused in the shooting death of Yosif Al-Hasnawi two years ago in Hamilton. The case has a high profile because Mr. Al-Hasnawi was a good Samaritan breaking up a dispute when he was shot, and because two paramedics who arrived at the scene were charged with failing to provide the “necessaries of life” to him, after allegedly deeming him to have faked his distress.
The ban on peremptory challenges took effect on Sept. 19. Both the defence and prosecution had a certain number of challenges, depending on the seriousness of the offence; both sides had those challenges taken away from them in Bill C-75.
But even if, as an Ontario prosecutor argued in the King case, the system is fair and has the appearance of fairness to the public, that is not good enough for Mr. King, Justice Goodman wrote.
“He is entitled to the appearance of fairness, not only to the community at large, but more importantly to him, as the individual whose liberty is at stake.”
Justice Goodman ruled that the peremptory-challenges ban violated Section 7 of the Charter of Rights and Freedoms – the right to life, liberty and personal security – because it was broader than it needed to be. The government could simply have given enhanced power to judges to step in when either side discriminates in their use of peremptory challenges, or reduced the numbers of such challenges available, he said.
The immediate effect of the decision is to give Mr. King a right to peremptory challenges of prospective jurors. But it also creates uncertainty about what will happen for others exercising their right to a jury trial.
And that uncertainty is nationwide, Vancouver lawyer Marianna Jasper says, because if people are convicted under the new system, and the new system is ruled unconstitutional, they could be entitled to new trials. (The dispute over the ban’s constitutionality is not the only one. There have been conflicting decisions in Ontario and other provinces on whether the ban applies to charges laid before the law took effect.)
“The lawfulness of jury verdicts across the country will remain doubtful until (many years from now) the Supreme Court of Canada has addressed the constitutionality of the new regime, when it started to apply, and how it is to be administered,” Ms. Jasper said in an e-mail.
Ontario Superior Court Justice John McMahon had upheld the ban on Sept. 24, saying the law had several safeguards for accused rights, including the vesting of greater discretion in the trial judge to reject jurors.
Usually, judges are bound by rulings of other judges at the same level in a province – unless they deem them plainly wrong. And that is exactly how Justice Goodman termed Justice McMahon’s ruling.
For instance, under the new system, an accused might object that a potential juror sneered at them; a prosecutor might disagree, and the judge may not have seen it. The expanded judicial discretion is no help, Justice Goodman wrote, because it is unclear how judges would use it. Ignore disputed objections? he asked. Accept them? Ask questions, as yet unspecified, of the potential juror?
“Will the selection system descend into the morass of juror questioning, polling, submissions and the like that is found with our American cousins?”
University of Toronto law professor Kent Roach said the ban is fair because the Canadian legal system “utterly failed in attempting to prevent the discriminatory use of peremptory challenges,” and Parliament was justified in abolishing them.
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