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Don't eliminate peremptory challenges, widen the jury pool: Hicks

The federal government’s plan to eliminate peremptory challenges of jurors is a wrong-headed “knee-jerk” reaction to a single high-profile trial and will certainly be challenged on constitutional grounds, says Toronto criminal lawyer Christopher Hicks, who handles many murder defences.

“It’s wrong to say that preliminary challenges are evil and they have to go,” says Hicks, a partner with Hicks Adams LLP. “You’re aiming at the wrong target here.”

The proposed reform, part of the government’s Bill C-75 justice legislation, is a political reaction to the furor caused by the acquittal in February of a white Saskatchewan farmer accused of second-degree murder in the shooting death of a young Indigenous man, Hicks says.

Court observers alleged that the defence used its peremptory challenges to exclude any apparently indigenous people from the jury. Protests from the aboriginal community and others following the acquittal, led the federal government to promise to review the practice, the Globe and Mail reports.

Peremptory challenges allow both Crown and defence to exclude a set number of potential jurors without giving a reason.

This long-standing practice has several benefits and is not the issue, Hicks says.

“It’s sort of a knee-jerk reaction to say, ‘Well, in this case, they used peremptory challenges,' and 'OK, the problem is peremptory challenges. Once we disallow them, all the other problems go away,’” Hicks tells AdvocateDaily.com.

Neither the Crown nor the defence is given enough peremptory challenges to tilt the playing field, he says. Their number is generally capped at 12 for each side in second-degree murder trials and at 20 in first-degree murder cases.

Defence lawyers often use them, not to exclude but to include racial minorities on juries because the candidate pool is often overwhelmingly white, he says.

“You live and breathe for someone in all that sea of white faces who is not white,” Hicks says. “You want that sort of balance no matter what colour your client is. You want that kind of representation in the community on your jury. And that’s how you get a fair trial.”

Hicks recalls recently defending a black man on a murder charge in London, Ont. where a large jury panel was called. “There wasn’t one black person on it. Not one,” he says. “Is the only black person who lives in London my client?”

The way to diversify juries is not to eliminate peremptory challenges, but to widen the pool, he says.

Ontario courts rely too heavily on property tax rolls to identify potential jurors, he says.

The system needs to expand its outreach so more minorities, including Indigenous people, are included, he says. “We have to broaden and deepen the net.”

Authorities should make use of records like driver’s licence registrations, government health insurance databases such as OHIP, and voter lists to locate potential jurors, Hicks says.

“You’ve got to use the tools you have to secure a fair trial for accused persons and for community satisfaction so people know that fair trials are being conducted,” he says. “So whether they are directly involved or not, they know that we have representative juries.”

In defending its elimination of peremptory challenges, the federal government points out there will still be an unlimited number of “challenges for cause” that the defence and Crown can use to weed out potentially biased jurors.

But Hicks says challenges for cause are limited to only a few issues, such as eliminating jury candidates affected by pre-trial publicity or those who are racially prejudiced against the accused. “Challenge for cause is not a substitute for peremptory challenges,” he says.

The elimination of peremptory challenges engages the fair trial rights of the accused and will certainly lead to constitutional challenges based on s.11(d) of the Charter, which deals with the presumption of innocence, and s. 11 (f) pertaining to trial by jury, he says.

“I promise you that the elimination of peremptory challenges is doomed,” he says.

The government says the legislation will enhance fairness by empowering judges to “stand aside” potential jurors, essentially putting them on standby while others are selected to ensure the jury is impartial.

But Hicks says this proposed process will have limited value because stand asides would still have to be considered once the rest of the panel is exhausted.

Another change in the proposed legislation is the apparent elimination of the long-standing practice of having pairs of jurors serve as “triers” of their peers, whereby they can exclude those who, when challenged for cause, appear to be biased, Hicks says.

This allows jurors to become engaged in the process as they help select fellow members, Hicks says. “It assists them in binding as a unit because they’ve helped choose each other,” he says.

But under the proposed reforms, a judge will apparently take over the triers’ power to reject jurors for bias, which will be a great loss, Hicks says.

“Why have a judge determine it? It makes no sense,” Hicks says.

“It’s unnecessary. It’s wrong-headed,” he says. “If you have a problem there are other ways to solve it instead of destroying peremptory challenges altogether and modifying challenges for cause to the extent that the judge decides everything.”

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