Steven Penney says yes.
Imagine receiving a jury summons in the mail. You dutifully report to the courthouse and wait patiently for the selection process to unfold. When your name is finally called, you stand before the judge, lawyers and defendant. One of lawyers utters “challenge,” and the judge immediately tells you to go home. Though you may have been told that this could happen, no one explains why you were dismissed. You are left to ponder the possible reasons: Was it because of my sex, race, age, demeanour or social class? You will never know, but chances are it was for at least one of those reasons.
If this process seems arbitrary, unfair and potentially discriminatory—it is. Thankfully the federal government has proposed eliminating these “peremptory challenges” from criminal trials. Under current law, the prosecution and defence have an equal number of these challenges (how many depends on the crime’s seriousness) and may use them as they see fit. They are not required to explain or justify their choices—hence the name “peremptory.”
Peremptory challenges are a relic of an age when the law cared little for diversity or representativeness. With few exceptions, jurors were white male owners of substantial landholdings. And until very recently, prospective jurors could not be questioned about and vetted for biases against racial minorities. In this milieu, peremptory challenges were viewed as a salve to defendants who could not otherwise exclude jurors who might appear to be hostile towards them.
Jury selection has changed greatly, however, in the 800 years since peremptory challenges were introduced. While we still have a big problem with the underrepresentation of Indigenous people in jury selection pools, we’ve eliminated most formal barriers to participation and buttressed the vetting of potential jurors for discriminatory bias.
Many criminal lawyers assert that peremptory challenges are still needed to ensure impartial juries. Some even claim they are widely used to promote diversity, for example by excluding white jurors in preference for Indigenous or African-Canadian ones. The evidence for this is sparse and anecdotal. For every account of challenges being used this way, a counterexample exists of a lawyer systematically challenging minorities, as in the Gerald Stanley trial, where the defence lawyer dismissed every Indigenous person presented for selection in a case involving the killing of an Indigenous youth by a white farmer.
The only rigorous, systematic evidence on peremptory challenges is from the US. The procedures used there are very similar to our own. And the near-universal consensus of researchers is that peremptory challenges lead to juries that are less diverse and more biased than juries selected without them.
The empirical record, in other words, confirms what our common sense already tells us: Giving lawyers an unchecked power to exclude jurors without justification produces less representative and impartial juries than procedures that rely exclusively on transparent, judicial determinations of juror suitability. It’s well past time to consign peremptory challenges to history’s dustbin.
Kelly Dawson says no.
In response to public outcry over the Gerald Stanley verdict, Canada’s government announced legislation to abolish peremptory challenges of jurors in criminal cases. If successful, this uninformed action will neither alleviate racial bias nor enhance overall trial fairness—quite the contrary.
The right of peremptory challenges has existed since the inception of our criminal jury system. It serves as a limited and quick means for Crown and defence lawyers alike to dismiss jurors who they suspect may be unsuitable. These suspicions might be based upon subtle visual cues such as frowning or smirking, or perhaps a juror expressed no interest in serving but was denied a hardship exemption. Peremptory challenges are allocated equally to both Crown and defence, with the overall number based on the seriousness of the charges (in the Stanley case, 12 each). After these challenges have been exhausted, the balance of required jurors are seated purely by random draw. Peremptory challenges are the only means to provide Crown and defence alike some small input into the jury’s composition. They serve to enhance the appearance of trial fairness, which in turn increases the likelihood that both the accused and the public will accept the verdict as just.
It remains an unacceptable reality that Indigenous people rarely serve as jurors in Canada. It is common to see an assembled “pool” of 100–200 potential jurors in which only two or three appear to be of Indigenous heritage. This reality is attributable to a provincially controlled process that effectively excludes many Indigenous people from potential jury duty.
Prospective jurors in Alberta are drawn from the province’s registries database. It includes only people who have had some form of official dealing with the provincial government, such as registering vehicles or purchasing property, and excludes a disproportionately large number of Indigenous persons. Alberta’s Jury Act also prohibits anyone with an unpardoned criminal conviction (regardless of age or seriousness of the offence) or an outstanding criminal allegation from serving as a juror. A disproportionately high number of Indigenous people become involved in our criminal justice system and are thus excluded from jury service. Many other barriers exist, including travel requirements, disillusionment with the Canadian legal system, and the nature of the jury questionnaire.
In 2001 New Zealand comprehensively reviewed their jury system, including the issue of underrepresentation of Indigenous Maori on juries. That country’s Law Reform Commission concluded that peremptory challenges were not a material cause for Maori underrepresentation. Factors such as Maori knowing individuals in the trial, a disproportionate rate of criminal records and a variety of practical obstacles (including the high cost of childcare) were all to blame.
Racial bias may well have been improperly dealt with in the Stanley case. But until the gross underrepresentation of Indigenous persons in our jury pools is addressed, abolishing peremptory challenges will not achieve anything—other than damage to our jury trial system and fleeting political cover for the federal government.
Steven Penney responds to Kelly Dawson
Kelly Dawson and I agree on a critical point: the underrepresentation of Indigenous Canadians on criminal juries has little to do with peremptory challenges. Rather, it is mainly a consequence of their underrepresentation in the pool of jurors available for selection at court.
There are many reasons for this situation, including a disinclination to participate in what some consider an alien and hostile system; logistical and socioeconomic barriers (such as geographic remoteness and poverty); discriminatory eligibility rules (such as bans on jurors with criminal records); and inadequate efforts by provincial governments to ensure proportional representation in selection databases and summons delivery. Ameliorating this problem will require both substantial institutional reform and the ongoing commitment of justice system participants to heal the wounds inflicted on Indigenous communities by colonization, residential schools and ongoing discrimination.
Where Dawson and I part ways is in our assessment of whether eliminating peremptory challenges will make this unfortunate situation slightly better or slightly worse. Like many criminal lawyers, Dawson believes that peremptory challenges help keep people who are partial to one side or the other off the jury. The jurors chosen will therefore be more likely to decide the case exclusively on the evidence and the law, rather than bias or enmity.
Unfortunately, little evidence supports this proposition. Lawyers typically know next to nothing about prospective jurors’ attitudes about the accused or the case. They are left to infer jurors’ mindsets from their appearance and demeanour, including (as Dawson observes) “subtle visual cues such as frowning or smirking.” Decades of social science research, however, has shown that people are not very good at predicting others’ states of mind from these kinds of cues.
To make matters worse, people also consistently overestimate their ability to discern others’ intentions. While lawyers may genuinely believe they are dismissing jurors likely to be hostile to their cause, in a high proportion of cases they will be wrong. Lawyers and judges often point out (correctly) that it is dangerous to assess witnesses’ credibility based on their body language and demeanour when testifying. The plausibility and consistency of their testimony, as well as its coherence with other evidence, is much more revealing of credibility than these nonverbal cues.
Peremptory challenges raise the odds of both wrongful acquittals and wrongful convictions.
Jury selection is no different: biased jurors are more likely to be exposed by questioning them about their beliefs than by inferring those beliefs from appearance and demeanour. Helpfully, the same proposed legislation (Bill C-75) that would eliminate peremptory challenges would also buttress the “challenge for cause” process used to question prospective jurors for partiality. Under this procedure, the defence and prosecution may ask the court to authorize the questioning of every prospective juror called for selection. If the lawyer for an Indigenous or other minority accused makes this request, the court will automatically permit questioning for racial bias. And as should have occurred in the Gerald Stanley trial, prosecutors may also seek to question jurors for racial bias when a white accused is charged with an offence against a non-white victim. Currently, the suitability of jurors questioned under this procedure is decided by other members of the jury pool. Under Bill C-75, this decision would be made by the trial judge, who is better placed to assess partiality in a fair, efficient and consistent manner.
The general finding that people are overconfident in assessing others’ mental states from nonverbal cues is buttressed by specific studies testing lawyers’ ability to choose favourable jurors. Lawyers using peremptory challenges in controlled experiments fared no better than chance in selecting jurors likely to vote for their side. Even worse, juries selected using peremptory challenges proved more extreme in their inclinations (tending to strongly favour either the prosecution or defence) than juries chosen without them. They were also less representative: jurors outside the socioeconomic mainstream were placed on substantially fewer juries than warranted by their prevalence in the general population. This belies the notion, repeatedly endorsed by the courts, that jurors are to be chosen from a “fair cross-section” of the whole community.
By making juries less demographically diverse and more ideologically extreme, peremptory challenges reduce the likelihood of a just verdict. This effect is magnified in more serious cases where each side is afforded a greater number of challenges. There is strong evidence, in other words, that peremptory challenges raise the odds of both wrongful acquittals and wrongful convictions.
As defence lawyers are acutely aware, discrimination in the criminal justice system is often facilitated by discretion. Decisions that can be made on subjective hunches with little or no justification are more likely to be biased than those that must be grounded on concrete information and objective standards. We shouldn’t be surprised that giving highly motivated adversaries an unfettered power to dismiss jurors without explanation results in juries that are less representative and less impartial than those chosen by random selection and (when necessary) open questioning.
Kelly Dawson responds to Steven Penney
Steven Penney opines that peremptory juror challenges be consigned to “history’s dustbin” as a relic from an age which cared little for “diversity or representativeness.” While these may be desirable elements for a justice system, they must never trump the paramount purpose of a criminal trial—to ensure a fair trial for the accused. Peremptory jury challenges have for centuries helped to serve this purpose. The federal government has now opted, in its typical knee-jerk fashion, to abolish this valuable protection of an accused’s right to a fair trial based on public reaction to one unique case, instead of properly examining the major underlying systemic and societal issues that face our Indigenous population in the courtroom and beyond.
Ironically, it is Indigenous members of our society who disproportionately find themselves standing in a prisoner’s dock before a room full of white potential jurors, with few if any Indigenous people in sight. It is a common experience for defence lawyers in this situation to challenge as many non-Indigenous members of the jury pool as possible in the usually futile hope of securing even one Indigenous juror to “even the deck.” While professor Penney dismisses the evidence for such claims as “sparse and anecdotal,” there is not one defence lawyer I have known in over 30 years of practice who has not shared my experience of using peremptory challenges for this purpose.
Penney argues that addressing racial bias in the jury selection process can best be achieved with procedures that rely “exclusively on transparent, judicial determinations of juror suitability,” instead of giving lawyers an “unchecked power” to challenge. Firstly, the power is far from “unchecked,” as challenges are limited in number and equal to what the opposing lawyer is entitled to. Secondly, his argument ignores the recognized value of affording the accused (again, disproportionately Indigenous) some small belief that he has a say in picking the “impartial” jury that will determine his fate. Lastly, the large majority of jury selections do not involve contentious issues such as racial bias—peremptory challenges remain a quick and effective tool for such cases.
Penney speaks of the value of “rigorous, systematic” evidence. Unfortunately, the only evidence we have as to what really happened during the Stanley jury selection process are anecdotal media reports. According to these reports, of the approximately 200 (out of 700 summoned) people who appeared for jury duty, about half appeared to be Indigenous. Approximately half of this number were excused at their request due to financial hardship, connections to the parties involved or other like reasons. It was further reported that, within the Indigenous group remaining, many appeared to be visibly or even vocally antagonistic towards the accused. In such an emotionally charged setting it is perhaps understandable that the defence might conclude that racial tensions threatened the accused’s right to a fair trial, and that peremptory challenges were used as an expeditious way of reducing that risk. Would a formal “challenge for cause” application have been a more appropriate legal tool in such a case? In a word, yes. Is this one rather unique case a reason to remove the availability of peremptory challenges for the many other cases where racial bias is not an issue? No.
Challenges serve the paramount purpose of criminal trials: to ensure a fair trial for the accused.
The countries which have previously considered eliminating peremptory challenges over racial bias concerns (New Zealand, UK, some states in Australia) have all conducted extensive research and consultation before making any changes to their criminal justice procedures. Most countries concluded that peremptory challenges should be retained in some form, while recognizing the need for improved safeguards against racial bias. Our government, in its rush for a quick and politically expedient fix, has failed to do any of this hard work.
Many solutions could specifically address concerns about the discriminatory use of peremptory challenges. These include reducing the number of such challenges allowed. Granting a smaller number might still protect the right of the accused (or the prosecution) to veto individuals who appear clearly unsuitable for service, while reducing the risk of challenges being used to fundamentally alter the racial composition of a jury. Another promising suggestion is to adopt the US rule that prohibits peremptory challenges based on race alone. This rule provides a judge with the power to require an explanation for the removal of a potential juror if it is believed that the requested exclusion is discriminatory. An additional benefit of this rule has been an apparent reduction in lawyers challenging racially diverse jurors in the first place. Lastly, the federal government must consider easing existing rules that restrict lawyers from seeking a more robust “challenge for cause” process.
In the context of the Stanley case, the use of peremptory challenges became a visible and easy flashpoint for criticism. But there were several other significant concerns about discrimination in the case related to both the investigation and prosecution. The Stanley decision also came at a time when several high-profile cases were seen to have failed other Indigenous victims, such as Cindy Gladue and Tina Fontaine. Without commenting on the specific legal outcomes of those cases, the underlying thread is that our criminal justice system has lost, or probably never had, legitimacy in the eyes of our Indigenous communities. This is a much more difficult and uncomfortable issue, one which cannot be fixed by a simplistic amendment to the Criminal Code.
Steven Penney is a University of Alberta law professor and co-author of Criminal Procedure in Canada. Kelly Dawson is a criminal lawyer and past president of the Criminal Trial Lawyers’ Association.