Justice reform can’t just be knee-jerk

Eliminating peremptory challenges during jury selection and restricting preliminary inquiries won't necessarily improve the system

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There has been considerable talk recently about reforming the justice system. The talk has become particularly shrill following the Colten Boushie and Tina Fontaine murder trials in Saskatchewan and Manitoba.

The federal justice minister has said she plans to eliminate peremptory challenges because, in her mind, not enough Indigenous people were selected for the juries. Peremptory challenge is the right of attorneys during jury selection to reject a certain number of potential jurors without stating a reason.

Both the elimination of peremptory challenges and restrictions on preliminary inquiries are ideas that have been around for many years. I remember debating the Law Reform Commission proposals on these issues 30 years ago. There are still good reasons for changing these procedures and for leaving them alone.

Many people have, for example, suggested that in case of Gerald Stanley, who was accused of murdering Boushie, the outcome would have been different if there had been Indigenous people on the jury.

And yet, in the trial over the death of Fontaine, the outcome was an acquittal despite the fact that there were Indigenous people on the jury.

In comparing these two cases, it’s obvious that peremptory challenges had nothing to do with the outcomes.

People who have said that the way peremptory challenges are conducted need to be changed, including members of Parliament and lawyers, have, in fact, reasoned that every person on the jury was racist and unable to separate the facts of the case from their values.

It is, in fact, insulting to Indigenous people to suggest that they will convict non-Indigenous people simply for racial reasons. Indigenous people are as capable as anyone of separating the facts of murder case from their values.

The result in the Fontaine case puts a lie to the notion that Indigenous people are unable to separate these two fundamental things. The case, in fact, proves that Indigenous people can be as diligent and impartial as anyone.

The Fontaine case is also relevant to the discussion around the restriction of preliminary inquiries. In this case, there was a direct indictment. This means that the Crown opted to skip the preliminary inquiry stage and go directly to trial. Preliminary inquiries are used to determine if there’s sufficient evidence to go to trial.

It’s quite possible, once the facts were revealed in a preliminary inquiry, that the case would not have proceeded to trial. If that had happened, everyone would have been spared considerable emotional pain and the expense of the trial.

How would getting rid of the preliminary inquiry be an improvement?

Obviously, the answers to the peremptory challenge and preliminary inquiry policies are not clear cut. In the coming months, a number of people will debate these tough issues, hopefully in an intelligent and impartial manner.

And, just as hopefully, the decision in Parliament won’t simply reflect today’s crass political considerations.

Even so, there is the real issue of rural crime in Western provinces. Saskatchewan newspapers have, in fact, discussed this issue with much more candour than the Globe and Mail, for example. These newspaper editors and editorial writers have on-the-ground knowledge of the issues.

Although rural crime is committed by people of all ethnic backgrounds, unfortunately, it’s a particularly severe problem in rural areas that are close to some – though not all – First Nations. Whether Toronto editors like it or not, a Saskatchewan male resident of a First Nation is 33 times more likely than a non-Indigenous male to be convicted of an offence. Manitoba numbers are similar.

The rural crime statistics reflect differences in conviction rates between Indigenous and non-Indigenous residents. It’s impossible to have a meaningful discussion about rural crime on the Prairies, in areas that are near some First Nations communities, if alarming statistics like this are ignored.

Before we can understand the outcome of the Boushie and Fontaine murder trials, both Indigenous and non-Indigenous people need to be able to candidly and intelligently discuss this important fact.

Good policy is dependent on a good understanding of the facts and logic, not on the racial background of jury members.

Brian Giesbrecht is a retired judge and a senior fellow at the Frontier Centre for Public Policy.


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