A Separation: Why the End of Peremptory Challenges is the Beginning of the End of the Commonwealth

When I was growing up, I don´t think I ever met a single French–Canadian, but when the 1995 Quebec referendum unfolded, I felt a deep connection and solidarity with them and stayed up into the early morning hours anxiously awaiting the results from Montreal to make sure we were still going to be one country the following day. I am not exactly sure why I felt this connection or cared so much, but I think it had a lot to do with my love of hockey and the feeling that I grew up with the French-Canadians in the NHL. I still remember my excitement when Mario Lemieux scored on a glorious end-to-end rush against the Minnesota North Stars and I jumped off my couch at the same moment that Bob Cole exlaimed, “LOOK AT LEMIEUX!” A poster of Lemieux hoisting the Stanley Cup hung on my bedroom wall. In 1993, when the Leafs went on an incredible run in the playoffs and came within a Kerry Fraser blown call of reaching a dream final against the Montreal Canadiens, but eventually fell in seven games to the LA Kings, Patrick Roy exacted some revenge for Leafs fans by getting into such a zone where he simply could not be beaten, especially in overtime, and communicated his confidence to Tomas Sandstrom with an unforgettable wink. The 1994 Eastern Conference Finals between the New York Rangers and the New Jersey Devils was the best and most exciting playoff series I had ever seen and the Devils had a rookie goaltender named Martin Brodeur who was a showstopper every night. The series went seven games and the Rangers looked like they were going to win by a score of 1-0 until Stephane Richer tied the game for the Devils with 7.7 seconds left. The game went into double overtime and both teams went back and forth with chances to win this epic series until the game was finally and memorably ended by MATTEAU! MATTEAUI MATTEAU! STEPHANE MATTEAU! in double overtime. In the Stanley Cup Finals in June of 1995, just before the Quebec referendum in October, Claude Lemieux transformed himself from a good player into the best player in the league and torched the heavily favoured Detroit Red Wings in the finals as the Devils swept the Red Wings to win the Stanley Cup. Then, in an act of what I thought of as extreme Canadian patriotism, Claude Lemieux shed tears of joy as he was awarded the maple leaf-shaped Conn Smythe trophy as the MVP of the playoffs. 

When the results of the Quebec referendum finally tipped in favour of the “No” vote and it was obvious that we were still going to be one country the following day and for the foreseeable future, I went to sleep happy, knowing we would be one nation chasing the same silver chalice every spring.

Fast forward about 23 years from that night and another fissure appeared in our country, except this time I had a very different reaction to it. The fissure began when a 22-year old Aboriginal male, Colten Boushie, was shot dead by a Tokarev pistol that was in the hand of Gerald Stanley who was subsequently charged with second-degree murder. Coulten Boushie was in an SUV with three of his friends that drove down the driveway of Gerald Stanley´s farm and a chaotic situation ensued. One of the people who Coulten Boushie was in the SUV with, Eric Meechance, got out of the SUV and climbed on an ATV on the Stanley farm and attempted to start it as Stanley´s son Sheldon yelled at him. Gerald Stanley testified that he kicked the taillight of the SUV because he thought the vehicle was going towards his son and that, around the same time, he looked for his wife who had been cutting the grass on a lawnmower and could not see her and panicked because he thought the SUV had hit her on its way down the long, gravel driveway. Cassidy Cross-Whitestone, who had been in the SUV with Boushie, testified that she heard Gerald Stanley say to his son Sheldon to get his gun and saw Stanley fire two shots into Colten Boushie´s head, although the autopsy showed only one bullet wound. Gerald Stanley testified that the shooting was an accident, that he had fired his gun in the air to empty it of bullets to scare the people in the SUV before heading towards the vehicle to grab the keys out of the ignition with the gun in his hand when the gun suddenly “went off.” Stanley´s lawyer, Scott Spencer, argued it was a case of “hang fire”, which is when there is a delay between the time the trigger is pulled and the shot is fired from the gun.

I am sure I am not doing justice to the facts of the case with this brief summary, but that is my point - we have a system of trial by jury going back to the Magna Carta in 1215. The system allows an accused person to elect to have a trial by jury and to have members of the public decide whether the state has met the burden of proof beyond a reasonable doubt. The jury hears all the evidence with fairness to both the Crown and the defence who have an opportunity to call evidence, challenge the evidence of the other side and make arguments to the jury. The jury sees all the evidence unfold throughout the trial and are in the best position to decide whether the standard of proof beyond a reasonable doubt has been met. Jurors swear an oath to do justice between the state and the accused and judge the case on the evidence alone and they take time out of their lives, for free, to do their civic duty. Politicians who do not swear an oath or hear or see the evidence, or even really know what the evidence is, are not in a better position than the jury to make the decision of whether the state has met its burden of proof. It is an unqualified disgrace for politicians to disrupt this historic process, posture as if they are in a better position than the jury to decide the case and comment on the correctness of jury verdicts.

Canadians who serve on juries consistently impress me in terms of how much they care about their civic duty. I notice this every time I have a jury trial without exception and often when I read about them in the news. I noticed this recently in the Kalen Schlatter trial when the jury was given the option to pause the lengthy six-week trial, which can be very gruelling, because of fears about the spread of Covid-19. Operations at the Superior Court in Toronto had completely ceased, as had most of the rest of the country, but the jury chose to continue at risk to their own well-being to see their duty through. The jurors understood the importance of their duty to the victim and her family, the accused and his family and to the rest of society. I once had a jury out deliberating for six days before they came back and acquitted and I remember being astounded that twelve members of the public were willing to discuss the evidence to come to a unanimous verdict for that long. I believe the people in this country care deeply about the idea of civic duty and want to do the right thing when they serve on a jury. There is no better system of justice than this. It is part of the bedrock of our civilization and must never be allowed to become the subject of debate. Politicians who comment on jury verdicts attack and undermine this foundation that ultimately binds our civilization together with shared democratic values. 

Furthermore, the judicial branch of the government is a vital component of the democratic balance and is meant to be free of political interference. The separation of powers was always intended to ensure that one branch of the government never has too much power. It too is part of the foundation of our society. Politicians commenting on verdicts threaten the very idea of the separation of powers in a democracy. It is impossible to overstate the danger of political interference into the judiciary because we know exactly what the alternative to an independent judiciary looks like - we have seen it unfold in every tinpot dictatorship and tyranny in history up until the present day. Imagine what it was to be charged with a crime against the regime in The Soviet Union, what it felt like for Nelson Mandela to be charged with treason by the Apartheid regime in South Africa or what it is to be charged with a crime against the regime in North Korea and just what a trial is like under those circumstances. To allow the separation of powers and the independence of the judiciary to be subject of debate is to lose the argument. They are part of the foundation of our democracy. It is another reason that it is a disgrace for politicians to comment on whether a verdict is correct.

But Jagmeet Singh, the leader of the federal New Democratic Party, and many others knew better than the twelve jurors in Saskatchewan having not seen the trial, read any of the trial transcripts or really knowing anything about the evidence in the case other than the fact that Colten Boushie was Aboriginal and Gerald Stanley is white. That was enough for Jagmeet Singh to weigh in and decree about the verdict:

“We didn´t have justice for Colten. There wasn´t addressing of the systemic racism, there wasn´t addressing that it seems so painful that a young man can be killed in such a matter. This court case hasn´t addressed the pain that people felt, that there´s disregard for an Indigenous life, that that life is disposable.”

There you have it ladies and gentlemen. The jurors made the wrong decision in the Stanley case and the implication and allegation inherent in Jagmeet Singh´s statement was clear – the twelve jurors in Saskatchewan who swore an oath to do justice and heard the evidence were maligned as racists who acquitted on the basis of race without a shred of evidence that race had anything to do with their decision. If that were not bad enough, the twelve jurors are criminally prohibited (section 649 of the Criminal Code) from discussing what went on in the jury room and defending themselves from this allegation. There is a great legal term to describe someone who maligns twelve jurors as racists who are prohibited from defending themselves based on nothing more than knowing the race of the accused and the victim – a jerk.

I am appalled at what the Liberals did in eliminating peremptory challenges following the Gerald Stanley verdict. It is obvious what the Liberal brass thought of the verdict, but at least Justin Trudeau, Jody Wilson-Raybould and others had the decency not to directly comment on it. Their policy in response to the verdict in eliminating peremptory challenges is a scandal, but something short of a disgrace. The elimination of peremptory challenges will make it impossible for defence lawyers to have any control over who gets on the jury and this is, ironically, a terrible effect for accused persons that come from minority communities that suffer from a stigma in a criminal courtroom, in particular black and Aboriginal accused persons, but that is an issue for another blog.

The presumption of innocence, the right to a trial by jury, the independence of the judiciary and by extension the right to have a trial without political interference, all of these are threatened when a politician comments on the correctness or properness of a jury verdict. These issues, in my view, are not up for debate. They are part of our civilizational heritage that we have a duty to carry on from one generation to the next. If we fail to do this, it will be to the shame of our generation and to the detriment of future generations. I will not dignify opposition to these principles with a response.

When I heard Jagmeet Singh, the leader of a national party that got nearly 20% of the popular vote in the 2019 election, say the jury reached the wrong verdict in the Gerald Stanley case because of the wisdom that flowed from his knowledge that the victim was Aboriginal and the accused was white, I felt something inside me snap and thought to myself that I have absolutely nothing in common and feel no connection whatsoever with my compatriots who want to abolish our 800 year tradition of the presumption of innocence, the separation of powers and trial by jury in cases involving a white accused charged with a crime against a non-white. The presumption of innocence applies equally to everyone, whether it is a non-white accused of a crime against a white or a white accused of a crime against a non-white. Race is an irrelevant factor in the jury´s determination of whether the state has proved their case beyond a reasonable doubt and this is not a matter of politics. I am determined to fight for that principal with all of my might no matter the race or ethnic group of my client, no matter who is charged and no matter how noble the intentions of the enemies of that principal are.

If there are people who disagree and want political interference in the judiciary, particularly with respect to the right to a jury trial and the presumption of innocence, in a case involving a white accused charged with a crime against a non-white victim, there is no basis for us to discuss this in one nation. It is not a dialogue, it is a fight. And the best solution is a separation.