Stanley acquittal should not lead to scrapping peremptory challenges, say criminal lawyers
Canadian Lawyer speaks to Jessica Orkin about the representation of Indigenous people on juries
In the wake of Gerald Stanley’s acquittal of the murder of Colton Boushie, some people are questioning whether Crown and defence lawyers should have “peremptory challenges” when selecting the jurors. In criminal cases, each side has a certain number of peremptory challenges, which allow them to reject a prospective juror without giving a reason.
The few Indigenous people who were part of the Stanley jury pool were rejected by the defence through the use of peremptory challenges. In the end, the jury was composed entirely of white people. Some have questioned whether peremptory challenges should be eliminated.
Canadian Lawyer spoke to Jessica Orkin, who does not agree that getting rid of peremptory challenges is the answer.
Jessica Orkin, a partner at Goldblatt Partners LLP, says in this case peremptory challenges were “hugely problematic” but that getting rid of them will not fix the problems with representation of indigenous people on juries. The problem is that there are not enough indigenous people in the process from the beginning.
“If we had more representative jury rolls, if there were far more indigenous people on the rolls, then you have a limited number of peremptory challenges, you wouldn’t be able to use them to sway the jury in that way,” she says.
Orkin says that it may be useful to require an explanation for a peremptory challenge. The courts would have to develop case law on what are valid reasons to use a peremptory challenge.
She adds that Canada, unlike the United States, does not ask extensive and intrusive questions of its potential jurors. Peremptory challenges are a necessary tool to eliminate unsuitable jurors, and one case of possibly misused peremptory challenges should not mean their demise.
“I, as someone who practises on the defence side, am uncomfortable with the response to a case, an instance of injustice, where the peremptory challenges were used in an unjust way. I am uncomfortable responding to that by throwing out the whole institution of peremptory challenges,” she says.