Chief of Six Nations calls for Indigenous jury members as trial with echoes of Colten Boushie case begins

The chief of the Six Nations of the Grand River says she will be watching closely as jury selection begins Monday for the trial of a Hamilton man accused of second-degree murder for allegedly shooting and killing a First Nations man. 

Ava Hill said she wants to be sure the "same mistakes" aren't made as in the acquittal of the man accused of killing Colten Boushie in Saskatchewan.

In that case, an all-white jury reached a not guilty verdict in the death of Boushie.

"There's a lot of issues in the whole justice system that we need to work on … I just hope that the same mistakes aren't made," she said. "I hope and pray right things are being done."

Hill said she and other First Nations members plan to be at the John Sopinka Courthouse as lawyers begin sorting out the group of people who will consider whether Peter Khill, accused of killing Jon Styres, is guilty.

Police charged Khill, a millwright and former reservist, after a man died in his driveway in the Binbrook area around 3 a.m. Feb. 4, 2016. Police said an adult male appeared to be stealing a truck from Khill's rural on the outskirts of Hamilton.

Police said Styres, who lived in Ohsweken, which is part of the Six Nations reserve, died on scene of "gunshot-related injuries."

The case carries echoes of the Boushie case. A man from the Red Pheasant First Nation in Saskatchewan, he was shot and killed by Gerald Stanley in August 2016. 

The jury in Battleford, Sask., deliberated for 13 hours in February before finding Stanley, 56, not guilty of second-degree murder.

The verdict was described as an "outrage" and a "black eye for Canada" by Isadore Day, Ontario regional chief of the Assembly of First Nations.

It was also seen by as a blow to efforts at reconciliation and led to criticism that the justice system is stacked against Indigenous people.

University of Toronto law professor Kent Roach is writing a book on the Stanley verdict and said he'll be among those watching the Khill trial closely.

Who is on this jury matters. It matters very much to the public confidence in the jury's verdict.-Kent Roach, University of Toronto

The jury selection expert described the cases as "remarkably similar" and said the first question that will be answered Monday is whether or not there's a fair cross-section of diverse candidates on the panel of prospective jurors.

"Of course we know that in Ontario and indeed in all of Canada we have problems with underrepresentation of Indigenous people on that panel," he explained.

The second question will be whether or not lawyers will ask for permission to question possible jurors about racial biases the could "infect" their decision making ability. Although there is case law to support asking that type of question, it would still need to be approved by the trial judge.

If allowed, the question could take one of two forms, according to Roach.

It could be as blunt as "Are you a racist?" Or a more subtle, series of questions trying to get people who might not want to admit being a racist to reveal the fact they subscribe to stereotypes.

"I think we need to challenge prospective jurors about racism and racist assumptions. I think these are difficult problems and we need to get at them," Roach said. "There's no point hiding and saying 'Oh no, this isn't an issue.'"

Jeffrey Manishen, Khill's defence lawyer, declined to comment on questions from CBC News about his plans for jury selection.

A spokesperson for the Ministry of the Attorney General also declined to comment on whether the Crown would be asking to challenge potential jurors on racial bias.

Will Indigenous jurors be dismissed?

Roach said the trial will also raise issues around the use of peremptory challenges — which allow lawyers to dismiss 12 to 14 prospective jurors, based on the number to be selected — without having to show why they aren't fit.

"One of the problems is if [the challenges] are used to keep Indigenous people or other radicalized minorities off of the jury," he explained, pointing to Bill C-75, introduced after the Stanley verdict to get rid of peremptory challenges in an effort to reform jury selection so the panels are "more representative of the Canadian population."

I think the court should be aware of that, that they're being watched.- Ava Hill, Chief of Six Nations

But some lawyers have argued the challenges are actually a way to make juries more diverse by challenging would-be white jurors.

Roach said many will be watching to see if prospective Indigenous jurors are dismissed or whether the challenges are used to make a more representative jury — something he called another lesson from the Stanley verdict.

"Who is on this jury matters. It matters very much to the public confidence in the jury's verdict. That's going to be a big issue."

Distrust of the legal system

Hill said she recognizes there are barriers, including a general distrust for the justice system, that block many Indigenous people from feeling comfortable as part of a jury.

But she firmly believes that if a case involves an Indigenous person, Indigenous people should be on the jury.

"That's something we're going to be watching for," she said. "And I think the court should be aware of that, that they're being watched."