Eliminating peremptory challenges make trials less fair

April 11, 2018
Article Source
Toronto Star

From a Toronto Star opinion piece: Bill C-75's elimination of peremptory challenges will make it harder for Indigenous people and people of colour to get a fair trial in this country. 

The peremptory challenge is a tool in the jury selection process. The Criminal Code gives both the defence and the prosecution a limited number of these challenges, which allow them to dismiss prospective jurors from the jury without giving a reason. 

The rationale for the peremptory challenge is to help ensure an impartial and representative jury. 

Where the accused is a person of colour, ensuring an impartial and representative jury means getting some diversity on the jury. Every day in Canada there are trials in which the accused and every non-police witness are persons of colour, while every police officer and member of the administration of justice is white. Having a diverse jury is important to the integrity of our system. It legitimizes the process in the eyes of the accused and the communities to which they belong.

Without the peremptory challenge in our toolkits, diversity will prove elusive for most juries. Even in a city as diverse as Toronto, there are relatively few people of colour and Indigenous people in the jury pool. (That is a problem in itself that governments must address.) The peremptory challenge permits defence counsel to pursue a diverse jury, and that is how we use them every day in this country.

Can peremptory challenges be abused? Absolutely. The prosecution can abuse them and so can the defence. We ought to guard against that abuse. If either side appears to use their challenges in a discriminatory manner, then the other side should stand up and object. Canadian courts have already held that the discriminatory use of the peremptory challenge would run afoul of the Charter.

In the United States, the courts have formalized this procedure. It is called a "Batson challenge," named after the 1986 case, Batson v. Kentucky, in which the U.S. Supreme Court held that using peremptory challenges to eliminate African-American jurors was a violation of Equal Protection Clause.

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