The Jury System Is The Foundation Of Justice

Those who have read the history of English jurisprudence and are knowledgeable about the contributions of the jury system to assuring fair trials and ensuring that justice is dispensed to the accused would not accept the politicization of a system of justice that has served the Western civilization for millennia.

One of the greatest contributions the jury system makes to ensuring justice for the accused is in its function of jury nullification. This means the jury has the legal right to ignore the penalties prescribed by law if the penalties are deemed unjust and in violation of fundamental justice.

This is how the jury acquitted the late great Canadian abortion rights pioneer Dr. Henry Morgentaler on successive occasions despite the actions of Jerome Choquette, the Catholic Provincial Minister of Justice in Quebec, who prosecuted him numerous times. Finally in R v Morgentaler [1988] The Supreme Court of Canada ruled that the abortion provision in the Criminal Code was unconstitutional since it violated women’s rights under Section 7 of the Charter of Rights and Freedoms pertaining to the security of the person.

Certainly history and our understanding of fundamental justice have vindicated Dr. Morgentaler. Decades later, with restrictions on abortion rights completely removed from the Criminal Code by the ruling of the Supreme Court of Canada that declared such restrictions and prescribed penalties unconstitutional, it is now clear that on the issue of abortion the jury system served the greatest cause of justice and human rights.

The main purpose of this essay, aside from asserting the importance of the jury system, is to deal with the specific question of jury composition that has been repeatedly raised by the ideologically inclined and “politically correct” advocates in recent times – that in the case of the White Saskatchewan farmer Mr. Gerald Stanley’s trial there were no Indigenous jurors included. The defence rightly used “peremptory challenges” to exclude five Indigenous potential jurors, believing that they would likely not be impartial in their decision.

In geographical context, the available Indigenous jurors would have certainly been from Colten Boushie’s region or even his own community and therefore highly unlikely to vote for Mr. Stanley’s acquittal.

The legal practice of peremptory challenges, which allowed Canadian Crown and defence counsel to dismiss potential jurors without providing a reason, was officially abolished in Canada under the politically correct regime of Justin Trudeau on September 19, 2019, through Bill C-75. This change presumably aims to reduce systemic discrimination in jury selection and was upheld as constitutional by the Supreme Court in R. v. Chouhan.

In accord with the well established English common law, the jury system is based on the principle that the accused must be judged by a jury of peers since only the accused’s peers fully understand the circumstances under which the accused took action. Indigenous jurors would not have been Mr. Stanley’s peers, and having included jurors who would have been advocates for the victim would have totally politicized and undermined the process of natural justice.

Following the acquittal of Mr. Stanley, Justin Trudeau immediately responded to the decision by stating, “I know Indigenous and non-Indigenous Canadians alike know that we have to do better”. He added that the system was “failing far too many Canadians”.

And his then Justice Minister Jody Wilson-Raybould stated “As a country we can and must do better — I am committed to working every day to ensure justice for all Canadians”. She later held meetings with the Boushie family to discuss reforms of Canada’s judicial system.

Wilson-Raybould, herself an Indigenous person and strong advocate of Indigenous rights, then set out to indigenize Canada’s judicial system and to replace Canada’s laws with Indigenous law, at least in dealings with Indigenous peoples.

In January 2019, Wilson-Raybould issued a historic 22-page document entitled the Directive on Civil Litigation Involving Indigenous Peoples. This directive aimed to fundamentally transform how federal lawyers approach legal battles with Indigenous nations, moving away from an adversarial stance toward one based on recognition of rights, negotiation, and the inclusion of Indigenous laws.

Some observations are pertinent here on the outlook of Wilson-Raybould.

For millennia human beings had no individual identity and their existence was not separate from that of the tribe to which they belonged. Modernity changed this total identity integration in the collectivity. For the first time in human history emerged the concept of the individual. People could now recognize themselves as having distinct identities from the tribe. This emergence of individual identity paved the way for the birth of the modern nation-state, universal citizenship, and equality of all before the law.

However, even in modern nation-states some individuals still retain their collective identity – Wilson-Raybould’s text message to the Prime Minister’s former principal secretary Gerald Butts illustrates this point:

“Timing of ‘pushing’ me out […] is terrible – it will be compounding and perplexing to people. This is not about me […] but this is about an approach to indigenous peoples. This situation is only going to deepen. […] I am getting texts/emails from indigenous leaders and BC etc.”  [Highlighting added]

Here we see an identity which is not that of an individual, but of the entire tribe. Tribal identity is totally incompatible with the concept of the modern nation-state, universal citizenship, and equality of all before the law. Here lies the former Prime Minister’s grave misjudgment in appointing Wilson-Raybould as Minister of Justice and Attorney General.

Certain other federal politicians such as Jagmeet Singh (former NDP leader) also denounced the ruling, stating there was “no justice” for Colten Boushie and that the verdict told Indigenous youth “that their lives have less value”.

Jane Philpott (former Indigenous Services Minister) described the jury’s decision as “devastating news” for the family, and Senator Murray Sinclair (The former Chair of the Truth and Reconciliation Commission) wrote “I grieve for a family that has seen only injustice”. Several provincial politicians who were pandering to the demands of Indigenous groups with the hope of improving their ratings also condemned the jury decision.

All the above declarations by self-serving politicians were dangerous and tended to diminish the Canadian public’s respect for the laws and the judicial system of Canada. The fact that such statements condemning the acquittal came from the then Canadian Prime Minister and Justice Minister was, under the British parliamentary system, cause for a successful vote of no-confidence in the Parliament since the Prime Minister and the Justice Minister have the special responsibility to protect the integrity of Canada’s justice system.

The mainstream media, too, especially television and the radio, failed Canadians in the case of the Colten Boushie tragedy.

In the vast majority of occasions, during their 10-second news clips, they neglected to mention that Mr. Boushie, a 22-year old man from the Cree Pheasant “Nation” in Saskatchewan, entered Mr. Stanley’s farm late at night in an SUV with a group of four other Indigenous persons after they had already broken into another farm and had attempted to steal a truck, were armed with a rifle, and they attempted to steal a vehicle by first entering the cabin of a truck parked by the house, presumably to see if there was a key in the ignition. Finding no key in the truck, they then started a quad in order to steal it. Alerted by the events and concerned for the safety of his family, Mr. Stanley, the farm owner, came out to confront the potential thieves. A confrontation followed during which Mr. Boushie, one of the would-be thieves, was fatally shot in the melee.

During the jury selection there was the demand by Indigenous groups that Indigenous persons should be included in the jury, which would have been a grave violation of jury selection principles.  In conclusion of the trial, the jury ruled that the intruder was shot by accident and acquitted Mr. Stanley.

Later on, Gerald Stanley was fined $3,000, plus a $900 victim surcharge, and banned from owning firearms for 10 years after he pleaded guilty to improper storage of firearms.

The judicial system in Canada is weak in matters of the defence of home and property. In fact, the defence of property is completely absent from the Charter of Rights. For example, if a homeowner is faced with a home invasion, he cannot use lethal force to defend his family or his property. He can do so only if he can prove to the court that his own life was in imminent danger from the home invaders.