Redress Risk Management (post until May 31/19)
Personal Injury

Jury changes may harm racialized defendants

Racialized criminal defendants have the most to lose from a proposed ban on peremptory challenges in jury cases, Hamilton personal injury lawyer Andrew Spurgeon tells AdvocateDaily.com.

If passed, Bill C-75 will eliminate the practice which allows both the defence and Crown to reject a set number of prospective jurors without giving any reason. The federal government introduced the proposals after an outcry over the trial of a Saskatchewan farmer acquitted of second-degree murder in the shooting of an Indigenous man.

According to a Globe and Mail report on the case, the farmer’s defence team used its peremptory challenges to exclude apparent First Nations people from the jury.  

But Spurgeon, partner with Ross & McBride LLP and a Law Society of Ontario bencher, says the Saskatchewan trial was an outlier in the sense that the concern about representation on the jury related more to the victim of the crime than the accused.

“On a certain level, the removal of peremptory challenges is likely to cause more prejudice for people from minority groups who are facing a charge,” he explains. “You’re getting rid of a tool that could enhance the position of defendants." 

According to Spurgeon, the challenges serve an important role in the criminal justice process. He says he would rather see any ban affect the prosecution side only.  

“Frankly, proving someone has committed a crime should be a hard thing to do because of the stigma attached to a conviction,” he says. “From my perspective, it makes more sense to get rid of the Crown’s right to peremptory challenges because I’m not sure they should care which 12 citizens are called to serve on the jury.”

Proponents of C-75 point out that the bill will not affect the unlimited number of “challenges for cause” that the defence and Crown can use to weed out potentially biased jurors.

Spurgeon says it’s surprising how honest prospective jurors can be when questioned on their ability to try a case fairly. While clerking for a judge, he once sat in on jury selection for a criminal trial involving two Indigenous men who claimed they killed a white man in self-defence. A number of people called for jury duty admitted the race of the defendants could affect how they judged the case.

“I think most people will be honest when they’re asked these questions,” Spurgeon says. “Some people say those challenges don’t have an impact, but I actually think they do.”

Still, he says other elements of C-75 are problematic, including a change that would eliminate the long-standing practice of having pairs of jurors serve as “triers” of their peers, given the task of deciding who, when challenged for cause, appear to be biased. Under the proposed law, the responsibility would be handed to the judge instead.

“The position of ‘trier’ should remain with colleagues in the jury pool,” Spurgeon says. 

When it comes to civil proceedings, he says parties in Ontario have even less leeway to influence the make-up of the jury — short of striking the entire panel and proceeding in front of a judge alone.

Spurgeon was counsel in the only Ontario case where a jury notice was struck on the basis of partiality of the jury pool in an insurance case involving a Muslim plaintiff in the immediate aftermath of the 9/11 terrorist attacks.

He points out that Ontario is one of just two provinces without provisions allowing a challenge for cause for partiality based on racial bias.

“If we’re going to continue having jury trials in the civil realm, I think introducing a challenge for cause makes sense,” Spurgeon says. “It could be rectified either by an amendment to the Courts of Justice Act or the Rules of Civil Procedure, and I don’t think it would add terribly much to the length of proceedings.”

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