In Depth

'Huge' pool of 750 people summoned as potential jurors for Colten Boushie case

The family of Colten Boushie hopes the jury pool summoned for the trial of Gerald Stanley, who has been charged with second-degree murder in Boushie's death, is representative of the wider community, says their lawyer.

Boushie family hopes Gerald Stanley jury pool is representative of wider community, says lawyer

A larger-than-normal jury roll of 750 has been called to Battleford Monday for potential selection on the jury for Gerald Stanley's trial. He's charged in the second-degree murder of Colten Boushie. (Remembering Colten Boushie/Canadian Press)

The small Saskatchewan town of Battleford is about to be flooded with hundreds of people called to potentially serve as jurors in the high-profile trial of farmer Gerald Stanley.

Stanley, who is in his mid-fifties, is accused of second-degree murder in the death of 22-year-old Colten Boushie, a Cree man from the Red Pheasant First Nation reserve.

Twelve people will decide Stanley's fate in the weeks to come, based on the evidence fleshing out what happened in August 2016 on the Stanley farm near Biggar.

The drive between Red Pheasant First Nation, where Boushie lived, and Biggar, which Stanley's farm is said to be near, is just over a half hour. (CBC)

But on Monday, Chief Justice Martel Popescul must first oversee the selection of the dozen jurors from a pool of 750 randomly chosen people. The average number typically summoned for a Battleford jury is 400.

"It's a huge number," said Saskatoon-based defence attorney Brian Pfefferle of the Stanley pool. It's big enough that the jury empanelment will take place not in the Court of Queen's Bench courthouse but in the Alex Dillabough Centre, normally home to weddings and badminton games.

"I think it will be a long, hard day," said Pfefferle.

The sheriff's office is summoning the larger-than-normal jury roll from the Battleford Jury Boundary, a towering swath of Saskatchewan land that's one of the biggest judicial boundaries in the province. It stretches from just north of Kindersley all the way to the border with the Northwest Territories.

The district that Stanley's jury will be chosen from is huge, stretching all the way north to the border with the Northwest Territories. (CBC)

Given the boundary's size, the Boushie family has certain expectations going into Monday, says the family's attorney.

"They hope, and they expect, that there will be a representative jury pool," said Toronto-based Chris Murphy, who will be joining about 15 of Boushie's relatives, including his mother Debbie Baptiste, to watch the trial from the public gallery.   

From near and far

The Battleford Jury Boundary includes several sizeable population centres.

The closest one to Battleford — just an eight-minute drive over the North Saskatchewan River — is North Battleford, where 28 per cent of the population is Indigenous, according to figures from the 2016 census.

Further up the jury boundary, toward small northern villages, the demographic scale begins to sizeably shift.

In Beauval and La Loche, respectively, Indigenous people make up 82 per cent and 96 per cent of the population.

Health cards have been the basis for jury selection in Saskatchewan for the last 35 years. (CBC)

The problem, says Pfefferle, is that "those are often the communities where it becomes more difficult for them to attend court."

"Particularly northern jurors are going to have to find a way to get [there]," Pfefferle said. "Socio-economic issues can lead to people not being available. Health issues. It's anyone's guess."

Saskatoon-based defence attorney and Boushie trial observer Brian Pfefferle says many barriers exist for Indigenous people to make it to a jury selection process in the first place. (Don Somers/CBC)

But Glen Luther, a criminal law professor at the University of Saskatchewan, says it would be wrong to suggest that, with no Indigenous people on the jury, "there won't be a fair hearing of the evidence."

A recent Supreme Court of Canada ruling said as much.

Clifford Kokopenace, an Indigenous man from the northwestern Ontario reserve of Grassy Narrows First Nation, was charged with second-degree murder in the stabbing death of his friend. A jury from the District of Kenora convicted him of a lesser offence of manslaughter.

Kokopenace appealed his conviction based on the grounds that problems getting Indigenous on-reserve residents on his jury roll raised the question of whether the resulting jury was representative.

The court overturned his prior-won appeal, writing that "representativeness is not about targeting particular groups for inclusion on the jury roll."

Chris Murphy, the Toronto-based Boushie family lawyer, says the family hopes for a racially representative jury. (Chris Murphy)

But Murphy says the decision did highlight that "underrepresentation of aboriginal on-reserve residents in the jury system is a serious policy concern that merits attention."

Past jury concerns

In Saskatchewan, "there has been a history of examples that have raised concerns," said Luther.

In 1995, an all-white jury found two men guilty of manslaughter in the death of Pamela George, a mother of two from Sakimay First Nation who was found face down in a ditch west of Regina. The accused were originally charged with first-degree murder.

Blaine Favel, then-chief of the Federation of Sovereign Indigenous First Nations (FSIN), called the verdict "one of the most unjust in Saskatchewan judicial history."

All-white juries in Saskatchewan have been heavily criticized in the past. (CBC)

Eight years later, an all-white jury acquitted two men in a case involving the sexual assault of a 12-year-old Indigenous girl in Tisdale.

The men admitted to picking up the girl on a Sunday, giving her five beer and then engaging in sexual activity with her outside the truck. 

Changes to jury selection process

The Tisdale case was under fire for its racially unbalanced jury and prompted the Saskatchewan government to review its jury selection process.

The province was also moved to do so by a commission co-founded with FSIN in 2002. Among its goals was "increasing the involvement of aboriginal citizens and organizations in justice processes."

One of the commission's recommendations was for child care to be provided to people serving on a jury.

The Court of Queen's Bench courthouse in Battleford will serve as home for the trial, which is expected to last at least two weeks. (CBC)

The Ministry of Justice didn't go that far, but in 2005 the daily fee paid to criminal trial jurors was doubled to $80. 

The government also began compensating travelling jurors for their mileage or their spending on public transportation if considered "reasonable," as the province's jury regulations put it.

But Murphy says those fees don't apply to people summoned to travel more than halfway down the province just to find out whether or not they'll make it on the jury.

"You receive a jury summons and you live on a reserve that's near the N.W.T. border? You cannot literally drive yourself there," he said.

'Least biased database available'

A spokesperson for the Ministry of Justice said the department is committed to "a fair justice system that upholds the law."

In addition to the new and increased fees, the ministry says it selects jury pools from all parts of a jury boundary, not just the communities near the trial courthouse.

It does so using provincial health card numbers, which everyone in the province, including Indigenous people, possesses.

"This has been the system used to select jurors since 1983," said the spokesperson, adding that the health records database is "the least biased database available in this province."

Before 1983, sheriffs used documents like assessment rolls to create annual lists of 150 potential jurors living within 32 kilometres of their judicial centre. They could also use their own discretion to choose people outside that boundary.

Lawyers can nix jury picks

Given the large pool of 750 people selected for the Stanley trial, "I think the registrar and the sheriff in Battleford is concerned to have a representative jury, or try too, anyway," said Luther.

But what ultimately happens Monday morning starting at 10 a.m. CST is in the hands of the Crown and defence attorneys.

Each lawyer will be able to nix 12 of his opponent's picks for the jury, under what's called a peremptory challenge.

Gerald Stanley, pictured in January 2018, has been out on bail prior to the trial. (Scott Spencer)

"One would expect the defence to challenge anybody that's visibly aboriginal," said Luther, adding that it is legally acceptable for Stanley's Saskatoon-based attorney, Scott Spencer, to do so.

"He has, according to the court and according to the Criminal Code, the right to make those choices and he doesn't have to explain himself. That's the meaning of the word peremptory."

Luther predicts Burge will seek a balanced jury instead of challenging any white candidates.

"The likelihood is that the number of non-aboriginal people in the jury pool is going to greatly outnumber the aboriginal people, so he's really not in a position to just start challenging every white person."

Spencer declined to comment for this article, citing his preparation for the trial, which is expected to officially get underway, jury in place, on Tuesday.

On Friday, however, he issued a statement seeking to stub out racial tension as a factor in the trial. He said it will be "very difficult" to have a fair trial if "jurors feel that they have to pick a side."

University of Saskatchewan law professor Glen Luther says he expects Stanley's lawyer to challenge the selection of Indigenous-looking jury candidates. (Don Somers/CBC)

Crown attorney William Burge also declined to comment for this story.

Their peers in the legal community are eager to watch one of the province's most-anticipated criminal trials finally unfold.

Said Luther: "I wish I could simply go and be in Battleford for those weeks."

About the Author

Guy Quenneville

Reporter and web writer for CBC Saskatoon

Story tips, ideas, complaints, just want to say 'Hi'? Write me at guy.quenneville@cbc.ca

With files from Jason Warick