We must end discrimination in jury selection

April 10, 2018
Article Source
The Globe and Mail

From a Globe and Mail opinion piece: David Tanovich is a professor of law at the University of Windsor and fellow of the Royal Society of Canada. He has co-authored a book on jury selection and has argued leading jury selection cases in the Supreme Court of Canada and Ontario Court of Appeal.

The peremptory challenge − the unfettered ability of lawyers to exclude a limited number of otherwise qualified jurors from serving − has come under intense scrutiny over the last 35 years.

In 1986, the U.S. Supreme Court placed peremptory challenges under the control of its Equal Protection Clause in the famous Batson v Kentucky case. In 1988, they were abolished in England. In 1991, the Aboriginal Justice Inquiry (Manitoba) recommended that they be abolished in Canada. Other jurisdictions, including in Australia, have reduced the number. In New Zealand, lawyers only have four challenges. In Tasmania, six challenges are available but only to the accused.

This is a wealth of experiences, perspectives and research that the federal government could rely on in deciding what path to chart for Canada. It used Bill C-75 to abolish peremptory challenges. The reaction has largely focused on the impact of abolition on jury representativeness and the ability of the defence to remove a juror where there is lingering concern about bias or disinterest.

However, as Professor Kent Roach has observed, the peremptory challenge is a poor tool to address these important concerns. Bill C-75 has increased a trial judge's jurisdiction during jury selection. This is a good first step. Removing many of the barriers to eligibility, incentivizing service and expanding the process we use to screen jurors for bias (known as challenges for cause) will more effectively enhance representativeness, impartiality and confidence in the process. There is much more work here for the government to do.

The real issue is that peremptory challenges are an open invitation for discrimination.

The Aboriginal Justice Inquiry found that "it is common practice for some Crown attorneys and defence counsel to exclude Aboriginal jurors" and expressed grave concern for a "system that permits Aboriginal people to be so often and so easily excluded from sitting on a jury." We saw this in the Gerald Stanley case.

In the United States, there is a long history of peremptory challenges being used by the prosecution to exclude black jurors. In 2012, a Michigan State study revealed that over a 20-year period in North Carolina, prosecutors in death-penalty cases struck black jurors at a rate of 2.5 times the rate for non-black jurors. 

Read more: We must end discrimination in jury selection