Saturday, March 03, 2018

Is Canada's legal system really stacked against indigenous people?

In the aftermath of the Gerald Stanley and Raymond Cormier acquittals, there are increasing calls to amend the Canadian justice system.
These calls take two main guises: firstly, revise, or even abandon, the "preremptory challenges" rule, which allows lawyers to throw out out up to six potential jurors without any explanation, thus arguably allowing the possibility of a biased jury (this practice really ought to be the basis of the common phrase "jury rigging", but, alas, it is not); and secondly, make changes so that indigenous people are better represented in juries.
I am all in favour of amending the rules on peremptory challenges, which seems like a ridiculous system to me, and one I had no idea even existed until these recent trials brought it into the spotlight. By all means, allow challenges to jurors, but let the judge rule whether the challenge is justifiable, taking into account Canadian Charter rights, not just some overpaid lawyer's perception of whether it might help their own case.
The second part, though, is more problemmatic. For one thing, we should not be amending the legal system just to the benefit of one racial or minority group, but to level the playing field for all. But also, just how would that worthy aspiration be achieved in practice?
I know that many indigenous people in northern areas have complained that they just can't afford to serve on a jury, given the geographic distances involved, and their generally impoverished situations. This poverty argument applies to indigenous and non-indigenous alike, and certainly needs to be addressed. I have never understood why there is not some kind of means-tested subsidization system for jurors. Middle-classed jurors can usually arrange for time off work, and most companies will happily continue to pay their workers who are called on to perform their civic duty. On the other hand, working class people, who may be paid by the hour or have less understanding employers, or who may be self-employed with no financial safety net to speak of, can just not afford to take an unspecified length of time off work for jury duty. This poverty trap probably affects recent inmigrants and women disproportionately, an issue I have also never seen discussed. Surely, the costs of subsidizing these people, in the interests of making juries more representative of the general population, would be negligible among the other costs of our legal system.
As for better representing indigenous populations, well, my understanding is that juries are selected from the local area for each court case. So, I assume that juries in the Toronto area, for example, would reflect - notwithstanding the economic considerations mentioned above - a substantial Asian population, and the various black, brown and other populations more or less in proportion to their numbers in the general population.
According to StatsCan, only about 4.3% of the Canadian population is aboriginal (including about 2.7% from First Nations, 1.4% M├ętis, and 0.2% Inuit), so statistically one would expect an average of zero indigenous people on any one 12-person jury (or, about one in every two juries). This would, however, theoretically change in those northern regions in which indigenous people are more populous.
In the case of courts in the more remote rural areas of northern Ontario, Manitoba, Saskatchewan, etc, the juror catchment areas are necessarily much larger, due to the sparse and scattered population, but prima facie there is no reason to suppose that the aboriginal population is not being called in relation to their population. Some of these will plead poverty and travel costs (see above); some will be ejected by the iniquitous peremptory challenges system (see above); some will be so cynical of the justice system as not to want to be part of it, although this is indefensible in my view, on a par with complaining about a government but then not trying to change it democratically by not bothering to vote. Having said that, I have no idea of the relative indigenous/non-indigenous populations of areas such as those involved in the trials of Gerald Stanley and Raymond Cormier. Was the indigenous population under-represented in the original jury pool? I have no idea. Among all the virtual ink that has been spilled in discussion of the cases, I have never seen such an analysis, which is perhaps surprising.
So, does the Canadian legal system really discriminate against indigenous people. Well, for some of the reasons discussed above, probably so. But intrinsically, probably not.

No comments: