The Supreme Court of Canada has upheld the constitutionality of changes to the jury selection process widely seen to have come in response to a Saskatchewan jury’s acquittal of Gerald Stanley in the death of Colten Boushie.
In a ruling from the bench on Wednesday, the high court said scrapping so-called “peremptory challenges” amounted to a purely procedural change, one that applies retrospectively.
Peremptory challenges are a mechanism that allowed lawyers for either side to dismiss a certain number of prospective jurors without an explanation.
The federal Liberals passed Bill C-75, eliminating the challenges, shortly after the 2018 trial of Stanley, who was acquitted on a murder charge stemming from Boushie’s death.
Boushie, a Cree man from Red Pheasant First Nation, was shot and killed in 2016 on a rural Saskatchewan property owned by Stanley, a white farmer.
Criticism of the Stanley case was focused on peremptory challenges after the defence used them to exclude several visibly Indigenous people from serving on the panel.
On Wednesday, a lawyer for the Boushie family argued before the Supreme Court on behalf of Debbie Baptiste, Boushie’s mother. Baptiste was given intervenor status in the case of Pardeep Chouhan, an Ontario man seeking to have a first-degree murder conviction overturned on the grounds that the changes in C-75 were unconstitutional, and in any case, should never have been retroactively applied to his case.
Prior to the appearance at the Supreme Court, Boushie family lawyer Eleanore Sunchild provided a statement to media outlining Baptiste’s argument that peremptory challenges were used to discriminate against Indigenous jurors in the Stanley case.
“The use of peremptory challenges in the case against Gerald Stanley was another example of a system designed to exclude Indigenous people, and potentially capitalize on existing racist sentiment to craft a more favourable jury. The use of peremptory challenges in this way meant that for Ms. Baptiste and other Indigenous people, the verdict could not be perceived as fair because the jury was not selected in a fair way,” Sunchild wrote.
In January, Ontario’s Court of Appeal unanimously affirmed the constitutionality of getting rid of the challenges, but ruled the move to scrap them couldn’t be applied retroactively.
As a result, many jury trials that unfolded in the time between the implementation of the new rules and the appeal court’s ruling could have potentially been overturned.
— With files from The Canadian Press