The federal government has just announced plans to end
peremptory challenges during the selection of a jury. It is easy to see why. It
has been argued that if there had been some jury members who were Indigenous during Stanley's trial over the murder of Colten Boushie, then
the outcome would have been different. It is a lovely argument and the
government's plan may do something may end some of the angst amongst Indigenous
people over the clearly discrimatory criminal justice system. It
shouldn't. The government is using
faulty logic that at best will do nothing and at worst may make things worse.
There is no reason to believe that if somewhere around a
third of Stanley's jury had identified themselves as being Indigenous that the
outcome would have been different. If in fact the jury were as racist as seems
to be implied, the jury just would never have come to a decision that they all
could agree on. If all of the jury had identified themselves as Indigenous, then
Stanley could have argued with some justification, that he was not tried by a
jury of his peers. Furthermore there is no guarantee that the jurors selected
at random would contain anyone self-identifying as Indigenous. It could be
quite likely that trials where there defendant was Indigenous that all of the
jury would be white and the defence counsel would have no way of trying to
reshape the jury. It quite frankly feels as if someone is trying to fix a
problem by addressing one example of that problem.
The most viable long term solution must be to increase the
size and makeup of the jury pool. All citizens need to be better educated into
their responsibilities to participate in juries. It is far too easy to
"get out" of jury duty. Employers and other institutions need to be
encouraged to create process by which people are encouraged and supported to
participate.
When I was doing my graduate degree, I was selected to be in
a jury pool. I was excited. l have spent a fair amount of time in courts
supporting people and I wanted to be part of the process. But none of my
professors were particularly interested in looking at ways that I could
participate and still complete my assignments. I then called up the appropriate
office - told them I was too busy with my school work and they said fine. I was
struck off the list. It should have been harder for me to absolve myself of my
responsibilities. Creating excuses to get out of jury duty, like stretching the
rules about paying income tax, should not be a national pastime.
Communities that have historically felt disenfranchised from
our legal system may need special training/assistance to more effectively
participate in the process. It would be well worth our tax dollars to provide
that assistance. While it may be appropriate to limit peremptory challenges, we
should perhaps ensure first that the jury pools are representative of the
general population.
There is a long list of indicators that our legal system
does not treat all people the same. Many of them are well researched and
understood. Fixing one little problem is only window dressing designed to
appease some of the public. We should not be fooled into believing that the
problem is solved.
