On Wednesday the Supreme Court, issuing an immediate decision from the bench in a criminal appeal, upheld the Liberal government’s abolition of peremptory challenges to jurors. The court’s reasons have not yet been published, but the woolly details of the legal argument are not what’s interesting here — even to me. The interesting thing is the quiet, almost en-passant way in which the issue has been settled.
The government wiped out peremptory challenges — the right of the defence or the Crown to excuse a few jurors without any explanation during the selection process — as part of its package of criminal justice reforms in Bill C-75, although the word “reforms” will not be used by most defence lawyers without a touch of bitter irony.
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Canada’s defence bar mostly despises this move, adopted as a knee-jerk reaction after a Saskatchewan farmer was acquitted of second-degree murder for the shooting of a Cree youth, Colten Boushie. The defence in that case used its peremptory challenges to dismiss jurors who appeared to be Aboriginal. This was widely seen as confounding the ideal of jury representativeness, but no Indigenous person was in danger of being bunged up in prison for decades as a consequence of that trial. Even as a reactionary political response to the death of Boushie, the eradication of peremptory challenges wasn’t particularly logical.