Trial by jury is constitutionally entrenched in our criminal justice system, but more subtle is its critical role to our democracy. Jury nullification — the power of a jury to refuse to apply an oppressive law — is illustrative of trial by jury serving as both a judicial and political institution. Bill C-75 threatens this synergy.
Bill C-75 was spawned in the aftermath of two cases rocking the public, R. v. Jordan in 2016 and R. v. Stanley in 2018. The Supreme Court’s ruling in R. v. Jordan indicted the criminal justice system’s culture of complacency toward delay. Eighteen- and 30-month deadlines were imposed for prosecutions in the provincial and superior courts, respectively. In the wake of Jordan, proposals for creating procedural and substantive efficiencies proliferated. In early 2018, while the justice system was being critically assessed, Gerald Stanley, a white farmer, was tried for the alleged murder of Colten Boushie, an Indigenous man, who was trespassing. At issue was whether the fatal shot was intentional or accidental. During jury selection, Stanley issued peremptory challenges of five citizens who appeared to be Indigenous. Ultimately, he was acquitted by an all-white jury. The public criticized the all-white jury. The critics were blissfully unaware of what the Supreme Court said in R. v. Kokopenace in 2015.
“There is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society. Courts have consistently rejected the idea that an accused is entitled to a particular number of individuals of his or her race on either the jury roll or petit jury,” said the SCC ruling.
Notwithstanding jury representativeness being a function of how the government constitutes a jury roll, as well as the fact that the Liberals themselves ensured the legacy of an all-white Supreme Court of Canada in 2017, jury selection got reactively tossed on the Jordan-inspired legislative chopping block.
Bill C-75 was tabled soon after. Among other things, it professes to expedite matters in the criminal justice system and address issues in jury selection. In my opinion, C-75 will unjustifiably erode the political and judicial efficacy of trial by jury.
For example, bill C-75 seeks to preserve s. 638(c) of the Criminal Code. The section allows for the exclusion of all citizens who served time in a penitentiary but have not been pardoned from serving on a jury. In combination with provincial legislation, criminal records are being used to automatically disqualify up to 10 per cent of the population. This in turn deprives the system of a valuable set of perspectives and experiences.
Ironically, automatically disqualifying citizens because of a criminal record — rather than on proof of actual bias (like for all other citizens) — strikes at the heart of the politics in R. v. Stanley. Aboriginal Canadians are over-represented in our criminal justice system and prisons. The automatic exclusion of citizens with criminal records disproportionately excludes Aboriginals from jury duty — the very thing that getting rid of peremptory challenges is allegedly aimed at remedying.
Bill C-75 also proposes to change how a jury is selected. Since 1892, rotating jurors have been used to determine the truth of a challenge for cause. Using rotating jurors avoids the risk that a single opinion might unfairly taint jury selection. The use of rotating jurors also benefits the jurors by providing them with the preliminary experience of judging a witness. Judges are now to fulfil this role. To the extent that judges impose their views on the composition of a jury, the more the jury belongs to the government, as opposed to the litigants, and the people. This shift tacitly communicates an implicit lack of confidence in the peoples’ responsible use of power.
Similarly, bill C-75 proposes that peremptory challenges be eradicated for litigants but seeks to vest that power exclusively with the judiciary. Rather than equip lawyers with “Batson challenges” during jury selection — an American procedure that allows for the review/denial of a peremptory challenge if it is based on objectionable criteria — Parliament prefers to wrest this power away from the people and their lawyers, who best understand their causes.
One of the vital roles trial by jury fulfils is the infusion of the lay jurors’ perspectives into the law. The common sense of lay jurors colours the views of the judiciary, which could otherwise become parochial and oligarchical. As judgments of the court better harmonize with the perspectives of the people, the greater the “consent of the governed.” If there are fewer jury trials, the more this symbiosis will suffer.
Every indictable offence must be tried by a jury, except where otherwise expressly provided by law, where a defendant so elects. No summary conviction offences can be tried by a jury. Bill C-75 proposes to “hybridize” more than 100 indictable offences, which will allow a Crown attorney to determine if the offence should be prosecuted by indictment or summarily. Pragmatically, this will result in more summary elections and, therefore, fewer trials by jury.
While we should be encouraging greater citizen involvement in our democracy, bill C-75 advocates for less. Alexis De Tocqueville aptly wrote on the virtues of jury duty in Democracy in America.
“It imbues all classes with a respect for the thing judged and with the notion of right. . . . It invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society and the part which they take in its government. By obliging men to turn their attention to other affairs than their own, it rubs off the private selfishness which is the rust of society,” he said.
Trial by jury is good for our criminal justice system and our democracy. Bill C-75 is not.
Michael A. Johnston is a barrister-at-law with Shore Davis Johnston in Ottawa. He can be reached at shoredavisjohnston.com, email@example.com or @MJ_Esq on Twitter.