Sask. defence lawyers applaud Ont. judge's ruling allowing jury selection challenges

Saskatchewan defence attorneys are welcoming a Hamilton, Ont., superior court judge's decision to uphold the old system of peremptory challenges during jury selection — a system that came under fire and was turfed following the 2018 Gerald Stanley trial.

On Monday, Justice Andrew Goodman ruled that the federal government's elimination of peremptory challenges — a change that went into effect on Sept. 19 — violates the charter rights of an Indigenous man going on trial this week for a 2017 murder in Hamilton. 

Under the old rules, lawyers could "challenge" a potential juror and drop that person from the jury pool without giving a reason. Now only a judge can challenge a juror.

• New jury selection rules are unfair to Indigenous man, Hamilton judge rules

The Hamilton defendant's lawyers said the new rules could lead to a jury that discriminates against their client. Goodman agreed the changes endangered the man's right to a fair trial under the Charter of Rights and Freedoms.

A Saskatchewan connection 

In Saskatchewan — where the use of peremptory challenges during the Stanley trial evoked much debate — the Hamilton decision did not escape notice. 

Stanley, a white farmer, was accused of second-degree murder in the death of Colten Boushie from the Red Pheasant Cree Nation. A jury found him not-guilty. No visibly Indigenous people made it onto the jury. 

• Stanley trial exposes problems with jury selection, say legal experts

Brian Pfefferle, a Saskatoon defence attorney, had argued against the elimination of peremptory challenges.

"The obvious irony of this is that the amendments were made touting that there was going to be some advantage given to minority groups, particularly Indigenous people," Pfefferle said of the Hamilton's judge's reversal of the new rules, which allowed the jury selection to proceed with challenges. 

"The very purpose for which we're using [the challenges] is in fact trying to get that diversity there."

Asked about the jury selection process for the Stanley trial, during which jury pool members who appeared Indigenous were challenged, Pfefferle said the old system could be abused, but that the federal government missed an opportunity when making its amendments. For example, Pfefferle suggested that for trials involving an Indigenous defendant, the federal government could have guaranteed that at least two of the jurors are Indigenous. 

Andrew Mason, the president of the Saskatoon Criminal Defence Lawyers Association, said lawyers have the option of using another tool called a "challenge for cause." But that's a messier process, he said. 

"That gets into a very complicated, time consuming process of litigation to address those concerns that could be much more simply dealt with by the use of the peremptory challenge," he said. 

Mason said not every jury has to reflect Canada's diverse population, the process for selecting jurors just can't be seen to exclude or prefer any particular group. 

Getting rid of challenges was overkill, he said. 

Challenges in Saskatchewan 

Pfefferle pointed to a recent decision by Court of Queen's Bench Justice Richard Danyliuk that allows trial defendants who were charged before Sept. 19 to proceed with peremptory challenges. 

"It may be a while before we see a similar constitutional challenge of the legislation simply because it appears that the judges [here] are following Justice Danyliuk's decision and we're going to need to get jury trials that stem after [Sept. 19]," he said.

"We may not see constitutional challenges in Saskatchewan of a similar vein for several months but I certainly expect them."

Meanwhile, Mason said more needs to be done to ensure the jury selection process doesn't fall short in other ways.

"If your process excludes people who are poor who have to travel a long distance and can't because they don't have any money and there's no payment to prospective jurors coming to court to pay for their travel costs, then that process could be in violation of the charter," Mason said.