The Lack of Representation of Indigenous People in Canadian Juries.

AuthorGallardo-Ganaban, Christopher
PositionFeature: Juries in Canada

Earlier this year, the acquittal of Gerald Stanley in R. v. Stanley, 2018SKQB27 ("R. v. Stanley") sparked important discussions on the Canadian criminal justice system and Indigenous peoples' experiences within this system. Specifically, this decision sparked a discussion on the representation of Indigenous peoples on Canadian juries.

What happened in R v Stanley?

In R. v. Stanley, the Saskatchewan Court of Queen's Bench held a jury trial in the case of a Caucasian defendant, Gerald Stanley, who was charged with second-degree murder of an Indigenous man, Colten Boushie.

The incident giving rise to the charge occurred on August 9, 2016. Mr. Boushie and four friends were drinking. After getting a flat tire, they drove to a farmhouse owned by Mr. Stanley, crashing into one of his cars. One of the friends tried to start an ATV on the property. This resulted in Mr. Stanley firing two warning shots with his handgun in an attempt to scare the group off. Mr. Stanley alleged that he approached the SUV, and Mr. Boushie was in the driver's seat. He alleged that his gun accidentally fired, killing Mr. Boushie instantly.

The jury selected appeared to be all white, and the result was Mr. Stanley's acquittal. This brought forward discussions amongst Indigenous communities, other citizens and legal professionals: is this appropriate in meeting the goals of our criminal justice system and is the jury selection process fair for Indigenous people?

Importance of a Representative Jury

To provide context regarding the composition of juries, we can look to the decision of the Supreme Court of Canada in R. v. Sherratt, [1991] SCR 509. The Court held that the requirement of a representative jury is a constitutional principle, and that juries must represent the larger community as far as is possible and appropriate in the circumstances.

However, this idea was narrowed in R. v. Kokopenance, 2015 SCC 28. In this case, the accused, an Indigenous man, challenged the representativeness of his jury. In Kokopenance, the Supreme Court of Canada determined what efforts the state must make to ensure that a jury is representative of the community. It held that an accused at trial is not entitled to a jury that includes members of their own race or religion; rather, they are only entitled to a fair and honest process of random jury selection.

Justice Moldaver, in writing for the majority, stated that it is not the result of the jury selection process that should be at issue...

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