Sarah Leamon: Verdict in Colten Boushie killing should open door for genuine reforms around juries

Why not let jurors speak publicly about how they reached their conclusions?

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      Colten Boushie has unwittingly became the newest face of racism in Canada.

      By now, we are familiar with the story.

      Boushie was a young Indigenous man whose life was tragically cut short after he and his friends ended up on Gerald Stanley's rural property on August 9, 2016.

      They were creating somewhat of a disturbance and as a result of that, Stanley shot Boushie once—in the back of the head—ending his life in a split second.

      Stanley was charged with second-degree murder.

      As we know, Stanley's case proceeded to trial, and when it did, he opted for a jury trial. From the perspective of a criminal defence lawyer, he was wise to do so.

      A jury trial meant that Stanley could have his fate decided by a group of people who were relatively unversed in the law and judicial proceedings.

      Otherwise, the verdict would be in the hands of a single judge, who may or  may not have had a healthy appetite for reasonable doubt and a keen ability to assess witness credibility.

      It also meant that Stanley could, to some degree, control the composition of the jury.

      He could select jurors who might be more sympathetic toward a 56-year-old white farmer than they would be toward a 22-year-old Indigenous intruder...but we'll get back to that later.

      At trial, Stanley gave evidence in his own defence.

      He claimed the gun that he used to shoot Boushie went of due to hang-fire—an extremely rare phenomenon that causes an unpredictable delay between the time that the trigger is pulled and the time the round is fired.

      He said that he never meant to hurt Boushie, or anyone else, and simply wanted to scare the young adults off his property before they could cause any more trouble.

      After hearing the evidence, the jury deliberated for one day. They returned with a verdict: not guilty.

      It has been reported that when these words were read, people in the room yelled out in disbelief. They screamed "murderer!" and sobbed openly for the injustice they felt.

      But in the eyes of the law, Stanley is not a murderer. He is innocent. And he walked out of the courtroom on February 9, 2018, a free man.

      Over the last few days, much has been said about injustice and the state of our legal proceedings in this country. As a community, we have openly wondered if Colten Boushie was failed due to his Aboriginal heritage.

      Would this have happened to a white boy? Would the police have acted differently? Would the jury have decided something else?

      Would it have been different if Boushie hadn't been Indigenous?

      There is little doubt that racial tensions played a significant factor in this story and in Stanley's ultimate acquittal.

      Canada's treatment of First Nations people has always been our dirty little secret. We like to think of ourselves as the friendly northern neighbours to a country fraught with ugly racial tensions.

      We like to think we are different. We like to think that racism doesn't happen here.

      But that isn't true.

      If anything, the Boushie trial served as a judicial microcosm, dramatically playing out long-standing racial tensions that are much bigger than just two men whose paths tragically crossed one late summer day.

      So where do we go from here?

      Perhaps the most solemnly consequential change that could come about as a result of this case could be jury reform.

      Jury reform is long overdue in our country, and should occur in two major ways. First, in ensuring more equitable and proportional representation on jury panels and, secondly, in allowing jurors to talk about the reasons for their findings after judicial proceedings have concluded.

      In Canada, lawyers are able to exclude potential jurors by using pre-emptory challenges. This allows the lawyers to refuse a juror without explanation.

      While there are limits to what a lawyer may ask a potential juror, there are no limits as to why they may decide to exclude them from proceedings.

      This means that potential jurors who are visibly identifiable as Indigenous can be expected to be excluded from deciding, for example, the fate of a white man accused of killing an Indigenous youth.

      Visible minorities are chronically underrepresented on juries in this country, and it is no mistake. 

      Lawyers have become adept at using pre-emptory challenges to their clients' advantage. They select jurors who look like the accused rather than the complainant.

      They choose people of particular age ranges and with particular backgrounds. They do all of this in the best interest of their client—and no one can blame them.

      They are playing by the rules of the game.

      So the rules need to be adjusted.

      It's in the best interest of society and fundamental justice for juries to be varied and representative of our multicultural and diverse population. Pre-emptory challenges should be restricted, or at least amended, in order to ensure this.

      The second update that should happen has to do with what happens after the trial has concluded.

      As the law stands now, jurors are prohibited from speaking about the jury process or how they reached their conclusions.

      It is said that this rule of silence serves a dual purpose: it preserves the integrity of the judicial process and it ensures the safety of jurors, who may otherwise fear for their well-being should their deliberations and reasoning become known.

      But allowing jurors to speak after a verdict is rendered and the appeal process has been exhausted might be exactly what we need.

      It would create a more transparent judicial process. It would also foster an increased sense of accountability in the jurors themselves.

      It has the potential to change the very fabric of deliberative discussions that happen in secret behind closed jury doors...for the better.

      While there may be concerns about increased appeals, individual profiteering, and juror privacy should the ban on speaking out be lifted, a properly crafted and well-thought-out piece of legislation could mitigate these risks.

      For example, jurors might be told that while they can speak to the media following a verdict, it would be an offence to identify any fellow juror, or to collect a profit for doing so.

      And while there are many knots to work out, two things are clear: the jury process failed to achieve a sense of justice for Colten Boushie and the time is ripe for reform.