Opinion

Why an all-white jury in Gerald Stanley trial is possible

Some 700 potential jurors will be summoned for duty in this in the homicide case of Colten Boushie. The selection of any jury is truly more of an art than a science.

Jury selection will be hot topic for observers but may not really affect outcome, says criminal defence lawyer

Gerald Stanley, left, follows his defence lawyer Scott Spencer as they leave provincial court after the first day of a preliminary hearing in Battleford, Sask. (Liam Richards/The Canadian Press)

The selection of any jury is truly more of an art than a science. 

Even still, the lawyers in the jury selection for the Gerald Stanley trial will vigorously comb over the jury lists – then use Google and review social media to get a "play book" on each prospective juror.

Undoubtedly, considerable time will be spent by observers discussing this part of the trial but, in the end, it may not really affect the outcome.

Right to impartial jury

In Canadian law, every person charged with a crime has a right to a fair trial before an impartial jury.

Some 700 potential jurors will be summoned for duty in this Saskatchewan case. Some may appear and seek exclusion; some may not appear at all. Once members seeking exclusion are dealt with, lawyers will have the
right to "challenge" (or reject) potential jurors for any reason.

A maximum number of 14 peremptory "challenges" per side will be permitted. No reasons are required for these "challenges."

This gives both sides the ability to shape the demographic of the trier of fact. In this trial, counsel can expect to begin
the trial with 14 jurors, 12 sitting jurors and two alternate jurors.

In reaching a verdict, the jurors will be required to determine the facts and "follow the law" as the trial justice formally instructs them to do.

Jury 'nullification'

Notwithstanding this requirement, juries are sometimes accused of following their own desires rather than applying the law to the facts of the case before them.

This is a practice referred to as "jury nullification." Such a practice can certainly lead to improper results.

Indigenous people historically less likely to serve on Canadian juries

The question in the mind of any lawyer during jury selection is fairly basic: is this person good for my
jury?

In the end, both sides are really only left with basic background information and a gut feeling – which may be partially based on stereotypes, including racial ones. Studies and commissions have found, for instance, that the state often disproportionately "challenges" Indigenous jurors.

As counsel do not have to provide reasons for "challenge,", there are no limitations on who may be removed from
consideration as jurors (other than the maximum permitted number of "challenges" in a given case).

Therefore, if either counsel decides it would be preferable not to have a particular Indigenous person on the jury, that person can be "challenged." The same could apply, however, to men or women, young or old, or to people of a particular occupation.

Superficially, then, rejecting a certain juror may appear racist, sexist, ageist or otherwise discriminatory, but such a view may not be fair in every case.

In addition to the potential disproportionate "challenges" to Indigenous jurors, because of the realities of northern travel, socioeconomic issues and the conventional mail and communication practices in remote communities, a disproportionate number of Indigenous jurors do not answer their jury summons.

A number of the previously listed factors were found as relevant hurdles to Indigenous participation in jury duty during the 1991 Report of the Aboriginal Justice Inquiry of Manitoba. They unfortunately remain relevant in Saskatchewan.

Constitutional validity of jury selection process

In the 2012 Harvey Ironeagle jury trial, former Chief Justice Gerein remarked that the jury panel must be "a representative cross-section of Canadian society."

With this principle in mind, two Indigenous accused, Stony Cyr and Lyman Papequash, recently — albeit unsuccessfully — challenged the Saskatchewan jury process on the basis that their constitutional rights, including the right of "representativeness" in the jury process, cannot be met through the existing jury selection process.

The findings in their cases echo the 2015 Supreme Court of Canada case of Clifford Kokopenace.

The majority of the Supreme Court in that case found that the jury selection process is constitutionally sound — and "representativeness" doesn't ultimately equate to exactness. Justice Moldaver found that "the right to a representative jury is an entitlement held by the accused that promotes the fairness of his or her trial, in appearance and in reality. It is not a mechanism for repairing the damaged relationship between particular societal groups and our criminal justice system."

Notwithstanding the outcomes of these constitutional challenges, the cases highlight another perceived and unfortunate disconnect between Indigenous people and the justice system.

Jury in this case is not unlike any other

The question looming before this jury selection is this: will an all-white jury be selected?

Likely yes. But is this any different than any other jury or any other trial in Saskatchewan? Likely not.

My experience is that – regardless of background – jurors take their duties very seriously and complete their service with honour and integrity. They appear to listen intently to the evidence and follow the instructions of the trial justice.

In 2000, an all-white jury convicted two former Saskatoon police officers of the unlawful confinement of an Indigenous detainee, Darrell Night. Conventional stereotypical views may have suggested a different result – perhaps even nullification. But that was not the case.

In many respects, the trial of Gerald Stanley is not unlike many other trials in Saskatchewan. It will involve longstanding legal principles, rules of evidence and a jury – no matter how demographically comprised – that will be expected to be impartial. If they convict the accused – justice, as our system knows it, will be served. If they acquit the accused, it will also be served.

That is all we can ask.

About the Author

Brian Pfefferle

Brian Pfefferle is a Saskatoon criminal lawyer and sessional instructor at the College of Law at the University of Saskatchewan.