Thank you for having me here tonight.
As the chair said, I am a law professor at the University of Ottawa. I have taught criminal law, constitutional law and the law of evidence since 2010. I also practise criminal defence part-time. I've written extensively about the jury selection process. I've appeared before this committee, most recently on the question of mental health and other supports for jurors.
I'll begin by saying that I support the government's proposal to abolish peremptory challenges. I think it's important here to provide a bit of context, partly in response to Mr. Friedman's opening comments, to situate this legislation in the broader context of law reform around juries.
The important point to keep in mind here is that it's absolutely true that these proposed changes, the proposed abolition of peremptory challenges, did come about as a result of the acquittal of Gerald Stanley in a murder case in Saskatchewan. As you all no doubt know, Stanley was charged after he shot Colten Boushie, an indigenous man, on his property. There were no indigenous people on the jury that acquitted Stanley, and there was some suggestion that the defence may have exercised its peremptory challenges to exclude indigenous people.
It's undoubtedly true that this was the impetus for these amendments, but as Professor Roach said earlier, for decades there have been government reports recommending that these kinds of changes occur. I'll also say that there has been a sustained concern in the academic literature about peremptory challenges. It's important to distinguish between the impetus for the law reform and its overall wisdom. That case may have gotten the issue on the political agenda, but this is a long-standing concern and one that I'm very happy to see the government addressing.
As you no doubt know, peremptory challenges allow the Crown and defence counsel to exclude jurors without providing any reason for doing so. The reality is that when counsel exercise their peremptory challenges, they typically know very little about the potential jurors they're challenging. They know name, address, and occupation, and they know whatever they can glean about a potential juror's gender and race by looking at them. Because they know so little, inevitably the decisions counsel make about whether to challenge a potential juror are based on stereotypes, whatever conclusions they draw, based on where someone lives or what they look like, about whether they're likely to be partial or to favour the Crown or the defence. My concern about this type of approach, and about a system that allows that approach, is, as others have pointed out, that this can undermine the perceived legitimacy of our justice system, of the criminal process, and that it creates the potential for these challenges to be misused and to be based on stereotypes, racial and gender stereotypes in particular, about the way potential jurors are likely to conduct themselves or engage in decision-making.
My first submission to the committee would be that the abolition of peremptory challenges is justified by the concern for the legitimacy of our system, the impartiality of our system, and the fairness of the criminal process.
The other thing that's important to point out here is that peremptory challenges have the potential to harm accused persons as much as they help them. In the context of this proposed amendment, there has been a lot of discussion about whether abolishing peremptory challenges could disadvantage accused persons and whether that could disrupt important protections that exist for accused persons. In this way, again, it's important to contextualize the Stanley case, which gave rise to these proposed amendments. The Stanley case dealt with a white accused who was facing trial for murder of an indigenous man, but far more often what you're dealing with is a racialized accused who is on trial, and the potential that the Crown will exercise its peremptory challenges to exclude jurors of a particular race, indigenous people, women, or the like. It's important to recognize that these challenges have historically been, and can be, used against accused persons to their detriment.
We have to balance the perceived benefit of having the peremptory challenge in your pocket to challenge someone whom defence counsel doesn't feel quite right about against the very real risk, I would suggest, that these challenges are going to be used in a way that disadvantages the accused person. My view is that, on balance, the potential harm, not only to the system but to accused persons, is greater than any benefit that accrues.
Finally, and other witnesses have suggested this, it's important for the federal government to view this particular piece of law reform as part of a larger discussion about reforming the jury process across the country. Mr. Friedman and I agree here that there are serious concerns with the representativeness of jury pools in Ontario and elsewhere.
The difficulty here, of course, is that the federal government is limited in its ability to bring about significant changes to the way juries are composed. The early stages of this process, where the representativeness issues are most severe, fall within provincial jurisdiction, but there is no reason why the federal government can't take a leadership role in getting provinces together and talking in a serious way about how representativeness can be meaningfully achieved.
Certainly, in the province of Ontario, the current practice is to use municipal property assessment lists to select potential jurors, and it won't surprise you to learn that if you compile jury roles from property assessment lists you're going to end up overrepresenting property owners and people who can afford to purchase property, and you'll under-represent people who aren't meant to be on that list in the first place, because we're talking about a property ownership database.
This is a significant problem that I would suggest ensures that the process is flawed from the start. By the time you get around to exercising the few peremptory challenges you have or don't have, following the entry into force of this bill, assuming it's passed, my sense is that the horse has already left the stable. You can't fix fundamental problems with jury representativeness using the peremptory challenge.
What we really need to do, if we want to get to the root of this problem, is get the provinces together, and get all provinces that are not currently using health card lists as the jury source list to use those lists. They are by far the most accurate lists. More or less everybody has a health card. The privacy issues that might be associated with the use of health cards are actually easily addressed. You start with a good list, and then you build in measures to ensure that the representativeness of that list isn't eroded. The suggestion that somehow peremptory challenges can help increase diversity when you start out with a flawed list is, I think, a flawed argument.
I'll stop there. I agree with all of the proposed amendments that Kent Roach suggested earlier.
Thank you.