juries peremptory challenges
Illustration by Cathryn Virginia

The Dirty Secrets of Jury Selection, According to Lawyers

Lawyers reveal how a person's race, job, and demeanour might get them excluded from a jury.
March 9, 2020, 10:00am

After Gerald Stanley was acquitted of murdering Colten Boushie in 2018, arguing that his gun misfired when he shot the young Cree man at close range, protests broke out across the country.

The case had exacerbated tensions between rural white Canadians and Indigenous peoples.

Stanley, 58, a white farmer, testified that he was scared when 22-year-old Boushie and his friends drove onto their property; Boushie’s friends said they were looking for help after getting a flat tire. Stanley said he thought he had only loaded two rounds into his handgun until a “hang fire” resulted in a third round going off while his gun was pointed at Boushie’s head.

Stanley was acquitted of second-degree murder by an all-white jury. The jury could have convicted him of manslaughter instead, but didn’t.

According to media reports, potential Indigenous jurors were vetoed by Stanley’s attorneys, who exercised their peremptory challenges.

Peremptory challenges allow both the Crown attorneys and defence lawyers in Canada to reject people in the jury pool without having to give a reason. Generally, each party is given between four and 20 challenges, depending on the severity of the charges. But after the Stanley acquittal, the Liberal government scrapped peremptory challenges, leaving the trial judge with the final say on jury composition. The constitutionality of the new legislation has been challenged, with many lawyers saying it makes the jury selection process less fair to the accused. In January, the Ontario Court Of Appeal ruled that scrapping peremptory challenges is constitutional, but the old rules allowing for peremptory challenges should still apply to cases that were in the system before the new laws kicked in.

The issue may ultimately be decided by the Supreme Court.

But most people don’t really understand how peremptory challenges are used. Can they be manipulated to stack a jury in one party’s favour? Is it common for an entire race of people to be vetoed from a jury pool? What about jobs? Do Crowns really weed out teachers because they’re “soft”? Here’s what defence attorneys said:

Race

Defence attorneys who spoke to VICE said contrary to the Stanley case, peremptory challenges are often used to make juries more diverse, particularly if the accused is a person of colour.

“In my experience, you are much more likely to be representing a visible minority who is charged with a crime against a white person,” said Toronto-based attorney Owen Goddard, who successfully challenged the constitutionality of banning peremptory challenges in a case involving an Indigenous man accused of murder. That decision was partially struck down in the aforementioned Ontario Court of Appeal ruling.

He said his clients of colour often “want to get someone who looks like them on the jury.”

Defence lawyer Christopher Hicks represented Sinbad Marshall, 25, a Indigenous man who was convicted of second-degree murder in December for beating to death an 82-year-old white woman. Hicks will be appealing the verdict, arguing in part that he should have been allowed to use peremptory challenges.

“I ended up with a jury of 12—two men, 10 women, and I’ve got a dead woman here. And my client was Indigenous and I had one person of colour,” he said, noting that he even addressed the issue with the jury itself in court.

“I was trying to raise their sensitivity to these issues.”

Ottawa-based defence attorney Michael Spratt said years ago he represented a young Haitan immigrant who was tried for second-degree murder following a bar fight in L'Orignal, Ontario that involved racist remarks.

“He was maybe one of the only racialized individuals that lived in L'Orignal.”

Outside the courthouse, Spratt said there were signs that referred to his client as the N-word, stating he should be hung. Spratt said the Crown challenged the only potential Black juror—a teacher in her 40s.

“My client, who was like the only Black guy in town whose offence was motivated and provoked by racial hate and who was subjected to this disgusting protest when he was brought into court, sees the Crown attorney challenge the only Black person in the room,” he said. Although it may have been a coincidence, or the Crown not wanting two teachers on the jury, “from (my client’s) perspective justice wasn’t perceived to have been done at all.”

Toronto defence lawyer Sean Robichaud said while he never issues blanket vetoes on potential jurors based on ethnicity, he is mindful of people who seem like they wouldn’t be able to relate a client coming from a high crime area.

“I’ve had cases where someone is charged with a very serious street-style killing,” he said.

“If you have a group of very affluent engineers and accountants who went from Upper Canada private school and off to Queen’s, they’re not going to get why your client is carrying a gun all the time and they may not be sympathetic to that.”

Occupation

Hicks said he looks for jurors who have “achieved something in life.”

“I want smart people on the jury so they can understand the legal points.”

He said he challenges housewives because he believes they lack perspective.

“Housewives, if there’s a robbery downtown, they think it happened on their front lawn and they’re worried about their kids,” he said. “They just have a smaller universe than the rest of us.”

Hicks also said he’s not keen on teachers because they’re “very conservative and always used to being right.” Other lawyers have said Crown attorneys sometimes challenge teachers because they’re perceived to be “softies” and sympathetic to an accused person.

Robichaud said he may veto people with jobs that relate to a case to avoid having an overbearing juror in deliberations.

“If there’s a lot of evidence in the sexual assault kit that might be damaging to my case, I may not want a nurse on there,” he said. “She may be in the back room in the jury room thinking ‘well, I’m going to enhance the expert’s evidence and say things in my experience’ and run with evidence that I can’t defend against.”

Goddard said he would always challenge a retired cop, and that Crowns would likely always challenge someone who works at a defence firm.

“There’s an appearance that they may not be impartial,” he said. “If you look to your client and say ‘are you OK with a retired police officer being on the jury, they’re going to say totally not’.”

Dirty looks

All the lawyers who spoke to VICE said they are cognizant of how someone in the jury pool behaves, including whether or not they seem annoyed to be there, tired, and whether or not they seem more deferential to the Crown. In particular, they watch out for dirty looks when a juror is asked to make eye contact with the accused.

“You also get people who I think operate under the assumption that if you’re arrested and charged with something, you’re guilty. Someone will look at the accused person as someone who is disgusted,” Goddard said. “That’s the time when you will use the challenge.”

A fool’s game

Goddard said two lawyers may have completely different views on when to issue a challenge, and that neither is necessarily right or wrong. But he’s heard some bizarre theories.

“It used to be said, if you have a potential juror who shows up wearing a bowtie, don’t let him on your jury cause he’s going to be weird.” As a young lawyer, he said he never understood that rule and often thought “what the hell are you talking about?”

Spratt said many of the top criminal lawyers in Canada have done trials where they’ve simply chosen the first 12 jurors, without using any challenges.

“It’s such a fool’s game to try to guess what an individual juror is going to do that you can overthink it,” he said. “It’s just a mixture of prejudice, voodoo, and gut instinct.”

All of the lawyers VICE spoke to said removing peremptory challenges was a reactionary move by the Liberal government, and a mistake.

“They’re basing their justice policies upon hashtags and virtue signalling,” said Robichaud. “It’s taken away the tools for defence lawyers to ensure a fairer jury for the particular case at hand

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