Evidence of meeting #105 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was crown.
A recording is available from Parliament.
7:45 p.m.
NDP
Murray Rankin NDP Victoria, BC
Yes, but you're a part-time professor, so I'm giving you the benefit of the doubt.
Proposed subsection 629(4) was suggested as an amendment by the Criminal Lawyers' Association of Ontario that would allow the accused or the prosecutor to challenge the panel on the basis that it is not representative of the community from which it was drawn. Both the Crown and the defence would have that opportunity. What's your take on that?
7:45 p.m.
Criminal Defence Lawyer, As an Individual
I think that's the full answer to the argument that this is really a provincial matter. If you were to enact that, I know I would exercise that challenge, and every jury trial would get held up until the provinces passed their legislation. It wouldn't take very long at all. I don't think we need to bring people to the table and have a discussion about this. If you import a minimum standard of representativeness into the Criminal Code, of course the provinces are going to follow, because people have a constitutional right to a jury trial. If you can't get a representative jury trial in a given province, that process is constitutionally flawed.
7:45 p.m.
Liberal
The Chair Liberal Anthony Housefather
I think that will give us more Jordan problems for at least a period of time, but I understand.
Mr. McKinnon, you're next.
7:45 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you. I'll be sharing my time with Mr. Boissonnault.
Thanks to both of you for being here. This has been a very interesting presentation. I appreciate it.
Mr. Friedman, my understanding is that for a crime such as first-degree murder, there are 20 peremptory challenges available for both sides.
7:45 p.m.
Criminal Defence Lawyer, As an Individual
—as many as all the accused put together.
7:45 p.m.
Criminal Defence Lawyer, As an Individual
That's correct, or four for an offence that falls below those two thresholds.
7:45 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Can you explain to us how that actually works in a real jury selection process? Is it often that all of them get used, or just a few?
7:45 p.m.
Criminal Defence Lawyer, As an Individual
I've had cases where I've selected a jury and advised the judge at the outset that I didn't intend to use any of my peremptory challenges, that I wanted the first 12 people who were ready to serve. I've done that. I've also had cases where I've exhausted my peremptory challenges. The way it works is that the challenges rotate between the defence and the Crown. Each one is permitted to say "Challenge" or "Content" with respect to each juror, but that's only after they've passed the challenge for cause.
That's also something interesting. I wanted to explain how that works, how the challenge for cause precedes the peremptory challenge. Sometimes you get an answer on your challenge for cause. We're talking about what information you have. Professor MacDonnell says, and I respect that view, that you're going to be looking at their faces or using some discriminatory assumption. I can tell you that I had a challenge for cause where the question about publicity was asked. The question was, “Notwithstanding anything you've read about this case, could you be impartial between Her Majesty and the accused?” That's the standard question. The juror thought for a really long time about that and said, “I hope so”, and the juror was ruled acceptable. I'm sitting there and I just heard a juror say, “I hope so” to the question “Could you be impartial?”
We have to remember that juries are unlike judges, who are legally presumed to be impartial. Obviously, judges are appointed and have legal training, so we make all these assumptions about them. We don't get to ask challenges for cause to a judge. In California they do, and they get to exercise one peremptory challenge per judge. Any lawyers looking for a judge shopping jurisdiction should hightail it to California.
With juries, we don't quite have those presumptions. Where we have a concern about challenge for cause, we ask it. The peremptory challenge is also a useful tool when you get a slightly less than satisfactory or a lukewarm answer on your challenge for cause. That's how the process works.
7:45 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
If there are 20 of them available, can you give us some idea of what a typical situation would look like? Is it usually just a few, and there are all kinds left over?
7:45 p.m.
Criminal Defence Lawyer, As an Individual
Any defence lawyer will tell you that there's no such thing as a typical criminal case. I don't want to give you answers. Here's the thing. I don't want to come to this committee and say that peremptory challenges are only properly used or they're never properly used. That's why I say we actually need statistical research. Mind you, it's very easy to do.
You take sample juries and take actual statistics from them, such as their racial makeup. You take a sample that's diverse enough across the country, 1,000 of them. You'll know who is being challenged peremptorily, and you'll know which side is using the challenges and for what purpose. It's not difficult to do, in my view. I don't think there's a typical number of peremptory challenges that are used.
7:45 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Professor MacDonnell, can you weigh in on that? What's your view of how many peremptory challenges are ordinarily used, if I can use that term? Have there been any studies on this?
7:50 p.m.
Associate Professor, Faculty of Law - Common Law Section, University of Ottawa, As an Individual
I don't have anything to add to what Mr. Friedman said. I think he's been involved in lots of jury selections.
7:50 p.m.
Liberal
7:50 p.m.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Thanks very much, Mr. Chair and Mr. Fraser.
Thank you, both. I'm wondering if you can return next week, same time, same place. We'll need the intellectual stimulation, six panels or 20 panels from now.
I love the health records idea. I will suggest it to the minister at a future federal-provincial-territorial meeting, and I'll raise it with the Alberta minister, the attorney general. It's smart and it's there.
7:50 p.m.
Associate Professor, Faculty of Law - Common Law Section, University of Ottawa, As an Individual
There are provinces that are currently doing it with great success. I also agree that Mr. Friedman makes a great point, that if you can challenge the array based on an absence of representativeness, that would hold the provincial government's feet to the fire.
I think the concern is still the kind of foot-dragging potentially. The provincial governments have known for 30 years that the current mechanisms are flawed. I hope that this would speed things up. It's a terrific suggestion, one of Professor Roach's suggestions. It's actually a really easy fix.
7:50 p.m.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
I like it a lot.
In typical Supreme Court fashion, there's balance in the judgment. One of my colleagues across the way talked about R. v. Sherratt, which said that peremptory challenges have proper uses but also “can be used to alter somewhat the degree to which the jury represents the community.” Would you agree with that part of the Supreme Court judgment?
7:50 p.m.
Associate Professor, Faculty of Law - Common Law Section, University of Ottawa, As an Individual
Yes. I will also say that there is Supreme Court case law. I didn't come prepared with it, but it's possibly the Bain case, where the Supreme Court itself acknowledged that sometimes the Crown misbehaves. You give the Crown the power, and as with any power, sometimes it will be misused.
The Supreme Court of Canada, which is quite judicious in its criticism of anyone, has acknowledged that, because these powers can be exercised with essentially no accountability, there is a potential for misuse. Therefore, we need to read the Supreme Court statements around juries and jury selection in their entirety.
7:50 p.m.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Yes. Thank you.
Mr. Friedman, you described the way you would go about collecting the data. Thank you for that. I heard there is no data, and then questions about how to collect the data, so that's very helpful.
7:50 p.m.
Criminal Defence Lawyer, As an Individual
Knowing that I am not a data scientist, that's just how I—
