Nunatsiaq News
COMMENTARY: Around the Arctic February 14, 2018 - 1:30 pm

Legal Ease, Feb. 14

How can lawyers exclude jurors?


In a Canadian criminal jury trial, both the prosecution and the defence are allowed to block a certain number of people from sitting on the jury without giving any reasons for excluding them.

The right to block someone from sitting on the jury without any explanation is known as a peremptory challenge.

The idea is that the Crown or the accused may have a bad feeling about a specific individual—not something that can be made specific—but something that is real.

I have often had an accused tell me, “No, I don’t know what is going on, but that guy looked at me funny,” and so I exclude the juror.

The Crown and the accused each have a limited number of peremptory challenges, which varies with the offence charged.

The Criminal Code provides that the prosecutor and the accused are each entitled to:

(a) 20 peremptory challenges, where the accused is charged with high treason or first degree murder;

(b) 12 peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a), for which the accused may be sentenced to imprisonment for a term exceeding five years; or,

(c) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a) or (b).

In the recent Gerard Stanley homicide trial, it appears the right to use peremptory challenges was used to exclude any Indigenous Canadians from a racially charged trial.

While I have never seen such a case in my own career, it is deeply troubling that race would be used as a factor in jury selection.

Excluding people from a jury on the basis of race is appalling, but it appears to be lawful.

As far back as 1991, the Aboriginal Justice Inquiry in Manitoba, which looked at murder of Helen Betty Osborne, said:

We believe that the exclusion of potential jurors on the basis of their race is an unacceptable and probably unconstitutional practice which should be ended by reform of the method of juror selection. We recommend a considerable overhaul of the jury system in Volume One of our report.

Legislative change can remedy the apparent imbalance. It’s time for the jury selection system to be reformed.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.


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