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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.
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.
6:40 p.m.
Bellechasse—Les Etchemins—Lévis, CPC
Very well.
Mr. Roach, Mr. Kettles,
I feel privileged to be here tonight with experts who have a good reputation and whose intentions are very noble.
Mr. Roach, I was listening to your opening remarks. In my understanding, your amendment seems to be oriented toward your concern that there is overrepresentation of natives in prison. Am I correct?
6:40 p.m.
Prof. Kent Roach
Yes. There's overrepresentation in prison and also among victims.
6:40 p.m.
Bellechasse—Les Etchemins—Lévis, CPC
Do you feel the justice system is not properly serving those who are accused at this time? Is that why you are bringing those recommendations in that bill?
6:40 p.m.
Prof. Kent Roach
I'm writing a book about the Stanley case, where the issue is not simply the indigenous accused but the indigenous victim. When I talk about overrepresentation, I talk about overrepresentation both in prison and among victims. The challenge for cause amendments that I have proposed deal with trying to eliminate racist stereotypes, not only with respect to the accused but with respect to witnesses and the complainant.
6:40 p.m.
Bellechasse—Les Etchemins—Lévis, CPC
In your opening remarks, I didn't hear you mention the word “victims”. Now you refer to the accused and victims.
Through your amendment, are you suggesting that the current system we have with juries is biased and that we need to correct this?
6:40 p.m.
Prof. Kent Roach
Certainly in the situation where there were five otherwise qualified indigenous people who could have served in the Stanley case, in a district where 30% of the adult population is indigenous. We'll never know what went on in the jury room. It's illegal, as you know, Mr. Blaney, to inquire about that. But I don't think there was an appearance of justice in the Stanley case, given the way the jury was selected.
6:40 p.m.
Bellechasse—Les Etchemins—Lévis, CPC
Okay. You're suggesting that jurors are biased and there's a need for an amendment to correct this.
In your comments—and correct me if I'm wrong—you suggested that there be an overrepresentation of natives in the jury for native cases. Is that correct?
6:40 p.m.
Prof. Kent Roach
Yes. I am suggesting a targeted form of affirmative action. As you know, this is consistent with the Canadian approach to equality. It's even part of the Constitution in subsection 15(2), which contemplates affirmative action. I'm saying that with respect to indigenous people or other people who are overrepresented in the criminal justice system, we need to make sure those groups are represented among the jury pool.
6:40 p.m.
Bellechasse—Les Etchemins—Lévis, CPC
So if I take, for example, a black person who is convicted of a crime, would you suggest that there be an overrepresentation of black people in the jury so that you would feel that their deliberations would be more accurate? Is that what you're suggesting?
6:40 p.m.
Prof. Kent Roach
Yes, because we're all influenced by our life experience in drawing inferences from fact. In some ways, the beauty of the jury system is that we all have to listen to each other's perspective before the twelve reach a unanimous verdict. I actually think that we will benefit, and I don't think we would have seen the sort of protest that we saw in Mr. Stanley's case if the jury had been more reflective of the community.
6:40 p.m.
Bellechasse—Les Etchemins—Lévis, CPC
Mr. Roach, I have an Irish background. Suppose I were convicted of a crime. Should I be with a jury with an overrepresentation of people with an Irish background?
6:40 p.m.
Prof. Kent Roach
No, Mr. Blaney. That's a—
6:40 p.m.
Liberal
The Chair Liberal Anthony Housefather
Sorry, Mr. Roach, I'm interrupting you for one second, just to let Mr. Blaney know that this is his last question. He's trying to deal with you in his second language. He keeps saying "convicted"; he means "accused".
6:45 p.m.
Prof. Kent Roach
Mr. Blaney, to answer your question, Irish people would not fall within my definition because we're not looking for the slippery slope to a perfectly proportionate jury. I'm just saying that, regarding the Supreme Court, everyone recognizes that we have an issue and a problem with regard to indigenous people, so let's deal with that, and let's not fall off the slippery slope.
6:45 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you very much, Mr. Chair.
Thank you, gentlemen, for joining us today.
Mr. Kettles, I'd like to start with you. I appreciate the comments you made. You talk about being in favour of eliminating the peremptory challenges. We've heard from some witnesses that peremptory challenges allow the opportunity to actually increase diversity in juries, and in fact they're used for that purpose.
Can you comment on your experience and whether you believe that to be something that actually happens, or is this something that doesn't happen very frequently and therefore getting rid of peremptory challenges would actually be the better way to go?
6:45 p.m.
Counsel, Crown Law Office - Civil, Ministry of the Attorney General of Ontario, As an Individual
Sure. The case law that I'm familiar with certainly suggests that peremptory challenges could be used in a given case to increase the diversity of a jury. The way that would work is that if you had an initial array of, say, 30 white male jurors, in theory someone could use some of their peremptory challenges to excuse those jurors in the hope that a more diverse group would come forward.
I think the balance of authority in the vast majority of cases demonstrates that it's actually been used in ways that reduce diversity and representativeness. The case of Colten Boushie and Gerald Stanley is certainly the most recent and, in some ways, the most visibly disappointing and shocking example, but it's certainly not the first time the peremptory challenge power has been used in ways that exclude entire groups or entire segments of Canadian society. It would be my overall view that in some ways, the mischief associated with the peremptory challenges outweighs any possible benefit.
I don't deny that there might be some anecdotal evidence that there are some cases in which it can be used to bolster diversity, but I think those don't outweigh the situations where it has been proven to undermine it.
6:45 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you.
Mr. Roach, I want to touch on an interesting point you raised in your brief and touched on again, and that's with respect to an amendment allowing permanent residents to serve on juries.
I'm from Nova Scotia, and I'm familiar with how they select juries there. Obviously, the administration of justice is up to the provinces, and in selecting their jury pools they take data from the health registration list. I don't know how it works in other provinces, but I believe that some of them may use the voters list, in which case you have to be a Canadian citizen in order to be on the list.
Do you see any problems with making the selection of jury pools available to permanent residents?
6:45 p.m.
Prof. Kent Roach
That's a legitimate point. I think one of the things the committee should consider is making some of these amendments proclaimed in force in a province only when the province has had time to prepare for it. Our jury selection is a very complex system, so a number of the amendments that I make would have implications for the province. I gather that's why the government did not take a more robust approach to reforming the jury.
However, if we wait for each province and territory to get on board, it's just never going to happen. We need federal leadership. One way it can be accommodated is to say that if you use a voters list, as in Alberta and perhaps in Nova Scotia, obviously that's not going to work for a permanent resident, so you would give a kind of transition period, a couple of years for the province to adopt a better, more inclusive jurors list.