Justice Committee on Sept. 18th, 2018

[Prof. Vanessa MacDonnell]

That is very difficult. This is actually one of the problems associated with peremptory challenges: to know why it is that the Crown and defence exercise their peremptory challenges. It's one of the reasons why the Batson-type challenge has been adopted in the U.S., where you try to determine if the pattern of challenges is such as to give rise to a potential or a perception of racially discriminatory use of the challenges.

It's been very difficult to get to this issue.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

So there is no data.

What you're saying is inconsistent with what the Supreme Court has said in the Sherratt decision, that peremptory challenges can in certain circumstances produce a more representative jury.

What do you say to that?

[Prof. Vanessa MacDonnell]

As I said, if you start out with a flawed list, you're going to end up with a flawed list. If you draw jury lists from municipal property assessment lists, you start out with a list that represents only a fraction of the population. There's very good evidence.

The Toscano Roccamo report, which Mr. Friedman referred to, provides empirical evidence that if you start with a property assessment list to draw your jury lists, you will end up with jury panels composed predominantly of middle-class, white homeowners. There is data on that. My point here is that if you start with a flawed list, you'll end up with a flawed jury panel, and you cannot resuscitate that flawed list by exercising peremptory challenges.

In any event, even if there is a marginal benefit from the standpoint of equality or diversity, you have to measure that against the downside of having these challenges and the potential for their misuse. I think there is lots of scholarship to suggest that the potential for misuse is real.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Okay.

Mr. Friedman, you made mention of the Batson challenge process in the U.S. Could you perhaps elaborate a bit on how that works?

[Solomon Friedman]

Sure. That refers to the Batson v. Kentucky decision in the United States. It has to be modified for Canada, because in the United States jury selection process they engage in something they call “voir dire”. We call “voir dire” something completely different. They have sustained questioning of jurors about their backgrounds and their biases so there's more information to work with in respect of any challenge.

The way many lawyers foresee that working, and it appeared the Iacobucci commission did that as well, is that, for example, if you believe the other party is exercising the challenge in a discriminatory manner, they are required to explain to the judge what their non-discriminatory basis is.

I could speak from personal experience. If I see that the 20 members who have been called up using the lottery system from the body of the court are 12 white people, and then an aboriginal or a racialized person, and I want that jury to be representative, I will use some of my peremptory challenges, even though they are being used against people who all appear to have the same racial identity. If I'm asked about that, my explanation would be that I want a more diverse jury, not a less diverse jury. A Crown counsel, for example, may challenge two young black people and say that it's because of their occupations, or because they live close to where the crime was committed.

I also want to respectfully disagree with Professor MacDonnell about how limited the information is that we have now. Generally, the week before the jury trial you will get a full jury list that has the name and the general location, if not the address, of the juror. We live in the social media age. It's quite easy to go through those lists and find out all sorts of fascinating things about that jury pool upon which to make use of your peremptory challenge.

To say that it's just looking at the colour of the person's face, or whether they look at your client.... I will say this. Sometimes whether they meet my client's eyes is, indeed, an important consideration. The registrar says, “Juror, look upon the accused. Accused, look upon the juror.” If that juror won't look my client in the eye, I probably don't want them sitting in the jury box.

It's not a perfect tool; it's a flawed tool. If we put those constraints on it, like the Batson challenge.... We have to remember that the jury trial itself is like the parliamentary equivalent in the judicial system. It imports democracy into the criminal process. That's why judges don't make the findings of fact. But what we're going to do now is put in everything: the challenges for cause to be decided by the judge; the stand-asides, which would otherwise be peremptory challenges, to be determined by the judge. We want that element of democracy.

At the end of the day, when you're charged with a serious offence, you're constitutionally entitled to put your faith in the hands of your fellow citizens, and the peremptory challenge lets it remain, in my respectful view, democratic.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you.

[The Chair, Liberal, Anthony Housefather]

That went by really fast.

We have Ms. Khalid, and then Mr. McKinnon.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you to the witnesses.

Mr. Friedman, in your opening remarks you mentioned that you have used peremptory challenges yourself in the courts. Can you give us a few examples as to how you have used them and for what purpose?

[Solomon Friedman]

Certainly. Last year, I was lead counsel on a first-degree murder trial. There were four accused. My client was a racialized young man charged with a fairly publicized homicide in a large urban area. There was a challenge for cause to address the publicity issue, but obviously I was extremely concerned that the generally overrepresented juror—that is, our white, older, affluent homeowner—not necessarily make up my 12-member jury. I used peremptory challenges to do everything I could to get young persons, to get minorities, to get immigrants, and to get people who might have different life experiences, or different experiences with the justice system, onto that jury. I used peremptory challenges, as my colleagues do all the time, to make the jury more diverse.

I agree with Professor MacDonnell that we're starting from a really bad situation. It is bad. It's funny that, until I read Justice Giovanna Toscano Roccamo's report, I'd always go back to the office after picking a jury in Ottawa and say, “Why are all my jurors from Orleans? It's unbelievable. What is in the water that produces Orleans jurors?” We now know it's because when you come from the municipal tax assessment rolls, that's where you're going to be overrepresented.

I have used peremptory challenges, and we do it all the time to get more diverse jurors. Is it the best tool? Of course it's not, but right now it's what we have, and Bill C-75 doesn't give us an adequate substitute.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Have you seen your colleagues in the courtroom perhaps using peremptory challenges to have a more favourable outcome for their trial, as opposed to having a more impartial or a more objective jury?

[Solomon Friedman]

As a defence lawyer, I've sworn an oath to try to get the most favourable outcome for my client by any legal means necessary, so if I or any of my colleagues used peremptory challenges to get a less favourable outcome, I'd be calling up the law society probably, and maybe you guys want to do the same.

That's why I take issue when we hear about how the Crowns misuse them. Misuse that is discriminatory use should be prohibited and regulated. There are no perfect ways to do it, but there are ways.

One of the fundamental principles of our adversarial system is that you have two opposing adversaries, both with their own interests. Now, the Crown has a bit of a different interest, as the Minister of Justice is not exactly a fully partisan litigant, but the point is that you have two opposing interests and you're going to get a fair jury. I sometimes sit there when the Crown says, “Oh, I really wanted that person on the jury”, and the Crown probably feels the same way when I exercise a peremptory challenge. The point is that you have balance. I'm going to hope it's most favourable for my client. That is my ethical duty, and the Crown is going to do what it can to present the best case it can, and obviously present the evidence. It's that balance of the two adversarial sides that hopefully produces a fair result.

[Prof. Vanessa MacDonnell]

If I may, just on this particular point, the difficulty I have with what Mr. Friedman is saying is that the jury selection process, as the Supreme Court has said, is not actually intended to be adversarial. In the Yumnu case, the Supreme Court of Canada made clear that the collective obligation of Crown and defence counsel at the jury selection stage is to ensure an impartial jury. Really, at this stage it's not about the Crown trying to get the best jury it can and the defence trying to get the best jury it can. Peremptory challenges allow Crown and defence counsel to exclude jurors who they think may not be impartial, but the core of the adversarial process really only starts once the jury is selected. It's not appropriate for counsel to approach jury selection in an adversarial manner. They do it all the time. That's the reality of how things operate, which is one of the reasons why getting rid of peremptory challenges makes sense, because it ensures that one more tool for undermining the impartiality of juries is removed.

I'll just leave it at that.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Ms. MacDonnell, are you aware of England having abolished peremptory challenges, I think in the late 1980s? Do you have any feedback as to how that worked out and whether we can take any lessons from what England may have learned?

[Prof. Vanessa MacDonnell]

I don't know what the impact has been of abolishing peremptory challenges in the U.K. What I do know is that through the uses of peremptory challenges that Mr. Friedman suggested he makes, we're really just chipping away at the margins of what is already, I think, a very flawed process. My sense is that if you can come up with a good explanation for why a juror should be excluded, then you have a challenge for cause available to you. The challenge for cause allows you to do that. What we're talking about is eliminating the ability to just exclude a juror without needing to provide any explanation. If you can articulate a legally justifiable reason for excluding a juror, use a challenge for cause. We're getting rid of that space where you might have a bad feeling about some person but it doesn't rise to the level of a legally defensible reason for excluding someone. That's where I become concerned, because what I see there is the ability to misuse these challenges. I am more comfortable with just not having them and looking to increase representativeness through other means.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Do I have more time?

[The Chair, Liberal, Anthony Housefather]

You're hitting six minutes.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you very much. That was very interesting.

[Murray Rankin, NDP, Victoria, BC]

I'm tempted not to ask any questions and just invite you two to debate. I think you'd get a lot more out of it than my questions would elicit.

[Some hon. members]

Oh, oh!

[Murray Rankin, NDP, Victoria, BC]

I suppose I just want to clear one thing up, Mr. Friedman, because you challenged the good Professor Roach on his recall of recommendation 15 of the Iacobucci report. I'll read it to you, because I think you're both right. It says:

the Ministry of the Attorney General discuss with the Implementation Committee the advisability of recommending to the Attorney General of Canada an amendment to the Criminal Code that would prevent the use of peremptory challenges to discriminate against First Nations people serving on juries.

It goes on to say:

It should also be recalled that the Manitoba Inquiry report recommended the abolition of peremptory challenges to avoid the underrepresentation of Aboriginal people on juries.

In the middle of the recommendation, as I think you suggested, there's a reference to the American practice of using this specifically in order to address the discrimination head on. I think you're both right, but I just wanted to clear the record because I think that's fair.

Professor MacDonnell, you acknowledged the difficulty for the federal government to do much where the real issue is the rolls—how they are generated and so on. You said at the end of your remarks that you agreed with each of the recommendations made by Professor Roach. One of the ones I found provocative was his recommendation that in order to deal with this problem we allow people who are merely permanent residents of Canada to be jurors. Do you have any thoughts on that?

[Prof. Vanessa MacDonnell]

My first recommendation would be that all provinces use the health card lists, because those are the most comprehensive lists available in the provinces for drawing jury rolls. That's more representative than voter lists and property assessment databases. Those lists include permanent residents, and I think this is one way of increasing diversity. Residency status is another axis to diversity, and this would get us closer to the goal, which is to have juries that represent the full diversity of the community.

I agree with Professor Roach that there's nothing about the fact that permanent residents aren't citizens that should meaningfully exclude them from jury service. They're part of our communities.

[Murray Rankin, NDP, Victoria, BC]

Practically speaking, the federal government could nudge the provinces at federal-provincial meetings of attorneys general, but really, they can do whatever they want in terms of best practices. I'm very persuaded personally, by the way, about using the health card. Should the federal government perhaps be giving seed funds or starting a pilot project, something to get the provinces to do the right thing?

What happened in Saskatchewan is an abomination, and Justice Iacobucci had serious problems with what happens in Ontario, too. This is a national problem.

[Prof. Vanessa MacDonnell]

It's a national problem, and I'll tell you, it's a national problem that goes back 30 years. This is not a new discussion, but there are challenges for the federal government. I think the federal government has ways of bringing governments to the table and can certainly deal with those areas of law reform that fall under its jurisdiction. A lot of this is contained in provincial juries acts. That's the reality.

[Murray Rankin, NDP, Victoria, BC]

I want to go to Professor Friedman in the time available.

[Solomon Friedman]

I'm just "Mr." The "professor" is on my—