The Liberal government wants to move swiftly on reforms to ensure more Indigenous people are represented on juries as anger builds across the country over the acquittal of a Saskatchewan farmer in the death of a young Cree man.
Questions have been mounting about the composition of the jury that found Gerald Stanley not guilty of second-degree murder in the death of 22-year-old Colten Boushie on Friday. Some observers say the process was biased because the defence team excluded five potential jurors who appeared to be Indigenous. CBC News has not independently determined the reason for their exclusion.
Under Canada's Criminal Code, defence lawyers and Crown prosecutors can exclude people from a jury without giving any reason through what are called "peremptory challenges." Critics say the long-standing procedure can lead to discrimination against potential jurors — and can deliver a jury that is biased or lacks understanding of Indigenous cultural and social customs.
Today, Justice Minister Jody Wilson-Raybould said changes could be coming soon.
"We are looking at peremptory challenges. We are going to consider how we can utilize the expertise in this room and across the country, about how we can substantially improve the criminal justice system and the jury selection process," she said.
The Justice department already had started a study of peremptory challenges, but the Boushie case and the resulting heightened public scrutiny of the Indigenous experience in the justice system have put the issue on the front burner.
Not guilty verdict
Weekend protests were staged across the country after Stanley was found not guilty of second-degree murder in the 2016 death of Boushie, a resident of the Red Pheasant First Nation.
Prime Minister Justin Trudeau — who has been facing criticism for weighing in on the jury's not guilty verdict by saying the criminal justice system must "do better" — said today the government will take steps to address "systemic issues."
He said it's not right that Indigenous people are over-represented in Canada's prisons and under-represented on jury panels.
"We have much we need to do together to fix the system in the spirit of reconciliation. That's exactly what we're going to be doing," he said.
Justice Canada's website points to over-representation of Indigenous people in the criminal justice system as both victims and offenders, noting that Indigenous adults represent 4.1 per cent of the of the total Canadian adult population — but 26 per cent of of adults in federal custody.
The reasons include social and economic factors, a lack of access to services and supports, intergenerational trauma and discrimination in the justice system itself, according to the department's website.
Before Friday's verdict, angry members of the Boushie family said that all the Indigenous-looking jury candidates were challenged and excluded by Stanley's defence team.
"The deck is stacked against us ... Where is the First Nations' say in this? We don't have a voice," said Boushie's uncle, Alvin Baptiste, of the juror selection process.
In trials where the accused could be sentenced to a term of more than five years, the prosecution and defence teams are each allowed twelve peremptory challenges. They are allowed up to 20 if it's a trial on charges of treason or first degree murder, but only four for offences that could lead to a sentence of less than five years.
Justice Canada, Statistics Canada and the Canadian Centre for Justice Statistics do not have data on the number of Indigenous people who have served on juries relative to non-Indigenous Canadians.
Niigaan Sinclair, a professor in the department of native studies at the University of Manitoba and son of Senator Murray Sinclair, who served as chair of the Truth and Reconciliation Commission, said studies on Indigenous representation on juries have led to no concrete actions to eliminate racism and prejudice from the process.
"In this case, Indigenous jurors were removed without any stated cause or purpose, so all we can be left to assume is that the defence believed Indigenous jurors would be biased against the accused. And to assume that is good old-fashioned stereotypes," he said.
Sinclair said Indigenous people also face financial, family and social barriers to serving on a jury.
Indigenous Bar Association President Scott Robertson said Indigenous people are often ruled out of jury selection based on questions about home addresses and criminal records. He said more flexible eligibility requirements for people convicted of lesser offences could diversify the jury pool.
Deep distrust of system
But Robertson said that, barriers aside, many Indigenous people don't want to serve on a jury because they have a deep distrust of the justice system.
"The criminal justice system has not been too kind to Indigenous people," he said. "There's a systemic problem of people who are actually charged not showing up for court for their own appearances.
"So the idea that they're going to go and serve on a jury ... There's just no way. There's complete apathy toward the criminal justice system."
Robertson said the critical first step is to get more Indigenous people working as police officers, lawyers and judges, in order to build trust.
A February 2013 report from former Supreme Court justice Frank Iacobucci made 17 recommendations to address what he called a "crisis" for Indigenous Canadians in Ontario's justice and jury system — among them a call for an end to peremptory challenges.
His other recommendations included:
- Providing cultural training for officials who have contact with Indigenous people, including police, court workers, Crown prosecutors and prison guards.
- Using existing government databases and sources such as band residency information, transportation and health ministry information and other records to expand the database of potential Indigenous jurors.
- Allowing Indigenous people living on-reserve to volunteer for jury service.
- Simplifying the language on the questionnaire for prospective jurors and translating it into Indigenous languages.
- Amending the rules that automatically disqualify Indigenous people with criminal records for minor offences from jury service.
- Improving compensation for jury members.