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.
Liberal
Ali Ehsassi Liberal Willowdale, ON
You believe that peremptory challenges are significant and it's imperative that we abolish them because any other changes that are brought could very much be defeated in the absence of getting rid of peremptory challenges. Is that correct?
Liberal
Ali Ehsassi Liberal Willowdale, ON
Absolutely. Thank you for that.
I also have a question regarding the new public confidence ground for judges standing aside prospective jurors, which is section 633. You are saying, currently, as the change is proposed, that we would see judges having too much discretion, and that it should be more explicit.
Could you elaborate on that particular recommendation?
Prof. Kent Roach
Sure. If you look at some of the jurisprudence, such as Justice Moldaver's majority opinion in Kokopenace, it's pretty clear that Justice Moldaver thinks that random selection is the most important principle, whereas Justice Cromwell, in the dissent, with Chief Justice McLachlin, thinks that the significant under-representation of indigenous people on juries presents a really pressing problem. So instead of depending on whether I get a Justice Moldaver disciple or a Justice Cromwell disciple, I think Parliament should be clear about why it is adding this ground, and it shouldn't simply leave it to judicial discretion.
Confidence in the administration of justice is in the eyes of the beholder, and if this is about preventing another Gerald Stanley case, I think Parliament should be clear about that.
Arif Virani Parkdale—High Park, Lib.
Thank you for being here, Professor Roach and Mr. Kettles. Welcome.
I feel that both aspects of my legal career are represented on this panel: my life at MAG and my life at U of T.
With respect to what Mr. Blaney was questioning you about, I'll put it to you simply. Do we have a problem with the overrepresentation of Irish men in the criminal justice system or in corrections?
Parkdale—High Park, Lib.
Thank you.
Would you say that your comments and concerns about the overrepresentation of indigenous persons equally apply to the experience of black Canadians and South Asian Canadians?
Parkdale—High Park, Lib.
Okay.
I'm not sure whether you followed it, Professor Roach, but yesterday we had Jonathan Rudin here from Aboriginal Legal Services, and he talked about something that was intellectually curious to me. It was about the efforts we're making to address intimate partner violence and the reverse onus provisions on bail. He explained that they would actually have an unintended consequence with respect to indigenous women. He talked about the fact that mandatory charging provisions lead to convictions that we might not have foreseen, and that indigenous women who are already overrepresented could be hard done by these amendments.
Do you share that view, and if so, could you tease out your analysis?
Prof. Kent Roach
Certainly mandatory charge policies may be well intentioned, but they can also have disproportionate effects, and we know that the overrepresentation of indigenous women in prisons is even more extreme than the overrepresentation of indigenous men.
I would be concerned about anything that could potentially add to that issue. You have to remember that, at the bail stage, a lot of this really depends upon police charging practices. There's some evidence that police sometimes overcharge or regularly charge without perhaps evaluating all the equities.
Liberal
The Chair Liberal Anthony Housefather
Thank you so much, Mr. Kettles and Mr. Roach, for your testimony.
Habitually, everybody would come up and shake your hand, but since you're not here, just know that we've all shaken your hand and we really appreciate the insight you've given the committee. Thank you.
I'd like to ask the people from our next panel, Mr. Friedman and Ms. MacDonnell, to please come forward so that we can move to the next panel as quickly as possible.
Thank you so much.
We'll take a brief, one-minute recess, so people can grab a drink or something.
Liberal
The Chair Liberal Anthony Housefather
We are now resuming with our fourth panel of the day.
I want to thank you both for accepting the fact that we're running a little late. It's much appreciated.
We're joined by Mr. Solomon Friedman, who is a criminal defence lawyer here in Ottawa. Welcome, Mr. Friedman.
Liberal
The Chair Liberal Anthony Housefather
Ms. Vanessa MacDonnell is an associate professor in the common law section of the faculty of law at the University of Ottawa.
Welcome.
Prof. Vanessa MacDonnell Associate Professor, Faculty of Law - Common Law Section, University of Ottawa, As an Individual
Thank you.
September 18th, 2018 / 7:10 p.m.
Liberal
Criminal Defence Lawyer, As an Individual
Thank you.
Mr. Chair, Vice-Chair and honourable members, thank you for inviting me to testify on the amendments to the jury selection provisions contained within Bill C-75.
I'll say just a few words about myself so you know where I come from. I'm a criminal defence lawyer in Ottawa. I've had the privilege of picking juries across the province, including in first-degree murder trials. I've picked juries. I've exercised peremptory challenges, and I've exercised the challenge for cause provisions. I also lecture part-time in the law of evidence and criminal trial advocacy at the University of Ottawa. It's a pleasure to be here tonight.
I want to begin with the following general, broad observation.
We all know that Canadians expect laws to be passed that are legislated on the basis of sound policy. That policy will be formulated upon the consideration of empirical research and verifiable evidence. This is particularly important in the criminal law context, where amendments to the code and related legislation have profound impacts on the rights and liberties of accused persons. But most importantly, when it comes to process and procedure, unwise amendments, of course, risk eroding the protections that have been put in place to avoid wrongful convictions or other miscarriages of justice.
With that in mind, I look at the peremptory challenge and the proposal by the government to abolish it in Bill C-75.
I go back to February 4, 2018. In the aftermath of the not guilty verdict in the Gerald Stanley case in Saskatchewan, the justice minister issued a statement to the media. She stated, among other things, that she is concerned with the under-representation of aboriginal persons on juries. As you'll hear, of course, I share the minister's concerns. But then she turned to the topic of peremptory challenges. She stated that changes to the use of peremptory challenges would need to be "carefully studied and considered”. What are the results of that careful study and consideration? How careful and considered could that study have been, when two months later Bill C-75 was tabled, which proposes the wholesale abolishment of the peremptory challenge, most importantly without any meaningful substitute?
I note that the topic of juries, much less peremptory challenges, was not mentioned at all in the Justice Minister's criminal justice system review, conducted, pursuant to her mandate letter, between May 2016 and May 2017. Consider that among the dozens of suggestions for improvements to the justice system, there was not a word about the peremptory challenge.
The fact of the matter is that there is no empirical evidence whatsoever to suggest that the peremptory challenges used systemically exclude minorities or indigenous persons. The reality is this: There actually has been no objective research conducted by this government, or any other, on the use of peremptory challenges in the criminal justice system. There is, however, clear and convincing evidence that our criminal juries in general fail to represent the populations they serve.
Earlier this year, the Honourable Justice Giovanna Toscano Roccamo, a judge of the Ontario Superior Court of Justice, delivered her report to the Canadian Judicial Council on jury selection in Ottawa. It was about a jurisdiction that I'm very familiar with, right here. Her report was based on the statistical analysis of jury pools in Ottawa, and it compared them with the demographic makeup of the census tracks they were drawn from. In Ottawa, an individual living in Orleans Queenswood, a census track with a median income of $56,000, where 92% of the residents are homeowners and only 13% are visible minorities, is 10 times more likely to be chosen for a jury panel than is a person living in Ledbury—Heron Gate, where the median income is $24,000, fewer than 7% of people own their homes, and over 69% are visible minorities.
Her findings about aboriginal under-representation were even more stark. In her study of Hastings County, which includes both Belleville and the Tyendinaga Mohawk Reserve, she found that “not a single juror among prospective jurors on any panel list was drawn from the First Nations reserve.”
This is directly related to the way juries are chosen in Ontario and elsewhere in Canada. Bill C-75 does absolutely nothing to remedy that. Instead, this bill would abolish one of the few tools that counsel can actually use to improve the representativeness of the criminal jury.
I'm aware that the committee has heard some testimony. I heard it in the panel prior. I am more than happy to discuss my own experience.
You've heard anecdotal evidence about criminal counsel using peremptory challenges to exclude indigenous or racialized jurors in criminal trials. I'm here to tell you that the opposite is true.
Peremptory challenges are regularly used by counsel to improve the prospects of a more diverse jury. I have regularly used them this way, as have many of my colleagues.
Given the overrepresentation of aboriginal persons and racialized minorities as accused in our criminal justice system, at present the peremptory challenge is often the only tool counsel can use in order to ensure that the jury, even in some small way, is representative of the accused. Remember that in Canada we have struck a particular balance when it comes to jury selection. Unlike many other jurisdictions, we do not allow our jurors to be questioned extensively about their backgrounds or potential biases. Instead, a combination of the peremptory challenge and a very regimented challenge for cause process strikes this balance between juror privacy and the need to determine the impartiality of the triers of fact in a criminal proceeding.
Removing the peremptory challenge without any suitable substitute upsets this balance. To do so without any objective data as to how peremptory challenges are presently being used—or misused, as some would allege—flies in the face of the evidence-based decision-making we've heard so much about.
That's not to say that our system is perfect or immune to review or improvement. In my respectful view, there are a number of simple measures this committee should consider with respect to jury selection.
Number one, as recommended by the Law Reform Commission report on the jury in 1980, all potential jurors on the panel should be given a detailed, standardized questionnaire in order to provide the judge and counsel with substantive information upon which to justify the exercising of challenges or stand-asides.
Number two, this questionnaire could also be retained and anonymized in order to serve as the basis for academic research about the makeup and biases of our jury pools. Moreover, basic statistical research should be conducted about how peremptory challenges are being exercised. In other words, we need to answer the simple question: Are peremptory challenges being misused? The last time this matter was studied by the federal government was in 1980. Policy decisions about the trial process are too important to base on anecdote and innuendo. Real research and hard data should be the basis of criminal legislation.
Number three, in my respectful view—and I will correct Professor Roach—recommendation 15 of the Iacobucci inquiry does not call for the abolishment of the peremptory challenge. Justice Iacobucci calls for imposing a "modified Batson challenge", an American challenge modified for our system that requires individuals who appear to be exercising the peremptory challenge on a discriminatory basis to explain to the judge what their non-discriminatory basis for using it is. That was Justice Iacobucci 's recommendation.
Number four, section 629 of the Criminal Code should be amended to allow either party to challenge the jury panel on the ground of unrepresentativeness, as found by successive studies and judicial inquiries. This is in line with what was proposed by the Criminal Lawyers' Association and by Professor Roach.
I close with this thought. Peremptory challenges have existed in our common law for nearly a thousand years. They have been a constant in the Canadian jury selection process since the very first Canadian Criminal Code. They're part of this careful balance that's aimed at preserving the fairness and integrity of the jury trial, which is a right guaranteed to all accused persons charged with serious offences.
Jury selection can no doubt be improved. Bias and discrimination can be removed from the process. Juries can be made more representative, but nothing in Bill C-75 as presently drafted would accomplish any of that. Judges, lawyers, jurors, and all justice system participants deserve better.
Thank you very much for your time and your kind attention.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much for the presentation.
Ms. MacDonnell, you're up.
Associate Professor, Faculty of Law - Common Law Section, University of Ottawa, As an Individual
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.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
We're going to move to questions.
Mr. Cooper, go ahead.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Mr. Chair.
Thank you, Ms. MacDonnell and Mr. Friedman.
Ms. MacDonnell, I'm not sure if I heard you correctly, so maybe I could just clarify. Did you say in your testimony that Crowns are using peremptory challenges to limit the participation of indigenous or other visible minorities?
Associate Professor, Faculty of Law - Common Law Section, University of Ottawa, As an Individual
When you have a peremptory challenge, where there is no obligation to explain why you're excluding a juror, there is a potential for both Crown and defence to seek an advantage. In particular, if you're dealing with an indigenous or racialized accused, and you have the sense that perhaps a jury with fewer indigenous or racialized people might be a more favourable jury for the Crown—
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
But do you have any statistics? Do you have any data or any empirical evidence to back up that statement?