The trial of Gerald Stanley, who is charged with second-degree murder in the death of Saskatchewan First Nations man Colten Boushie, is exposing a fundamental flaw in Canada's justice system, say some legal experts.

Jury selection took place last week at a community centre gymnasium in the town of Battleford, located approximately 140 kilometres northwest of Saskatoon. 

Potential jurors were called to stand before the lawyers and judge, and any of them could be "challenged" by the lawyers and excluded from the jury.

Under the current system, lawyers are not required to give reasons for these so-called peremptory challenges.

Boushie

Colten Boushie was killed on a farm near Biggar, Sask., in August. (Facebook)

The Boushie family say they were angered that all the Indigenous-looking jury candidates were challenged and excluded by  Stanely's defence team.

"The deck is stacked against us ... Where is the First Nations' say in this? We don't have a voice," said Boushie's uncle, Alvin Baptiste. 

'It invites bias on the basis of race'

A jury selection process that allows peremptory challenges is vulnerable to allegations of racism against Indigenous people, say some who study the justice system.

penney

Being able to reject jurors without giving reason 'invites bias on the basis of race,' says Steven Penney, co-author of Criminal Procedure in Canada. (submitted)

"It invites bias on the basis of race, but also gender and other factors," said Steven Penney, a University of Alberta law professor and co-author of Criminal Procedure in Canada. "It's not a value we should allow in our system. This case is highlighting those flaws. It may help to spur change."

Federal Minister of Justice Minister Jody Wilson-Raybould said she shares the concerns about the lack of Indigenous people on juries.

In an emailed statement last Friday, she said peremptory challenges have always been part of the common law and the Canadian justice system. She said any changes would require careful study and consideration.

Gerald Stanley arrives in court JAnuary 31, 2018

Gerald Stanley arrives in court with his defence team. (Guy Quenneville/CBC)

"Nonetheless, the underrepresentation of Indigenous jurors is an issue in several provinces and it is a reality I find concerning," Wilson-Raybould said.

She said the National Judicial Institute is looking at ways to increase the complement of Indigenous jurors, and she supports its work.

Boushie's cousin, Jade Tootoosis, said she was not surprised by the exclusion of Indigenous-looking jury candidates but found it "extremely frustrating."

Eleanore

Eleanore Sunchild is advising the Boushie family. (Jason Warick)

Eleanore Sunchild, a local lawyer advising the Boushie family, noted multiple commissions and inquiries have emphasized the need to be more inclusive of Indigenous people in the justice system. Several have recommended scrapping peremptory challenges.

"It shouldn't be allowed. It seems archaic," Sunchild said.

Anger justified, says law professor

University of Toronto professor Kent Roach is following the case in his criminal law class. He said the Boushie family is correct to be angry.

Roach, the longtime editor of Criminal Law Quarterly, also wants peremptory challenges abolished. He said the federal government could eliminate it in a package of Criminal Code of Canada changes being contemplated.

"I think it's a very simple amendment. It could be done very quickly," he said.

Sunchild, Roach and others said the Stanley trial jurors are likely competent, fair people, but First Nations and M├ętis people have different life experiences and see the world through a different lens than non-Indigenous people.

Other ways to challenge jurors

Penney and Roach said lawyers could still challenge jurors in other ways.

A "for cause" challenge allows jurors to be asked about their biases, likely through a series of agreed-to questions. If jurors are revealed as unsuitable, they are rejected.

Sunchild said it's too late to help the Boushie family, but she hopes changes will help others.

"I hope this case illustrates to Canadians some issues Aboriginal people face."

The trial continues Monday with defence arguments. The Crown wrapped up its case last week.