Honourable colleagues, I rise today to speak to Bill C-75 at third reading. This criminal justice reform bill is massive. I wish to limit my remarks to one small but significant portion of it the removal of peremptory challenges.

For those senators who are not aware, a peremptory challenge can be used by lawyers during the jury selection process for a criminal trial. By using a peremptory challenge, a lawyer can dismiss a potential juror from the jury selection pool without stating a specific reason. It’s always important to remember when we are considering this issue that Canada’s system of jury selection is considerably different from the U.S. I think many Canadians look at these types of issues and, influenced by television and movies from the U.S., think we have a lengthy and complex jury selection process in Canada. Generally, it is not. It is actually quite quick and efficient. That’s how it’s viewed by a number of the lawyers who use it. Eliminating peremptory jury challenges would take that part out and instead leave it to a complex, expensive delaying process of challenge for cause.

The Trudeau government argues that repealing peremptory challenges will create more diverse jury pools, but our Standing Senate Committee on Legal and Constitutional Affairs heard from lawyers who work in courtrooms every day and they presented substantial and compelling evidence that indicated exactly the opposite.

Peremptory challenges are, in fact, a tool that defence counsel use to increase diversity on juries and a quick and efficient method of rejecting potential jurors who may be prejudiced against an accused for any number of reasons, including racism. At times, this might even come down to a gut feeling or sense about a potential juror during the selection process if a possible juror scowls at an accused, for example, or refuses to make eye contact. The same clause of Bill C-75 that eliminates peremptory challenges also makes changes to the process of judges being allowed to stand aside jurors, adding the vague “maintaining public confidence in the administration of justice or any other reasonable cause” as a reason for doing so.

I have practiced law in Saskatchewan for 25 years. Saskatchewan has a high percentage of Indigenous people. It is in that context that I have heard significant concerns about this major change to the jury selection process contained in Bill C-75. I have heard these strong concerns from judges, defence counsel and Crown prosecutors. Those concerns were echoed vociferously by almost every single one of the witnesses we heard from on this issue in our study.

The Trudeau government’s Justice Minister barely even mentioned this significant change of eliminating peremptory challenges in our criminal justice system when he addressed the Standing Senate Committee on Legal and Constitutional Affairs. When I questioned Minister Lametti on the concerns expressed about the potentially negative ramifications these jury selection changes might have on racialized accused, he stated simply:

We have certainly heard those commentaries throughout. The preponderance of evidence in our view goes the other way.

Honourable senators, that is not at all what we heard during our committee study. The vast majority of the evidence in our meetings on Bill C-75 was that these jury selection changes on stand-asides and eliminating peremptory challenges should not be made. The Canadian Bar Association, which consists of thousands of lawyers across Canada, both defence lawyers and Crown counsel, opposes these jury selection changes in Bill C-75.

On the changes to the stand-aside provision, the Canadian Bar Association brief stated:

This is a broad and vague power . . . . There is also no guidance on what specific process a trial judge should follow in making this determination. In essence, it appears that judges would be invited to engage in their own peremptory challenge processes.

Canadian Bar Association witness Tony Paisana explained further why the CBA opposes these jury selection changes.

Our submissions come from the very first principled basis that you are entitled to a jury of your peers, and “your” means the accused’s peers. As we have heard over and over again throughout these hearings, Indigenous people and other racialized communities are overrepresented in the criminal justice system. The idea that that individual, faced with a jury that does not look like a jury of their peers, could have no meaningful say in the composition of that jury is very problematic for us.

. . . this peremptory challenge process gives such accused an opportunity to shape the jury so that it is more representative of their interests, of their community, of their cultural background and their experience, both in life and in the criminal justice system, to provide for a jury of their peers, not a jury of everyone’s peers.

Mr. Paisana went on to describe the impact that eliminating peremptory challenges will have on court delays.

You will see more challenges for cause. They are time consuming. They are very difficult to advance on behalf of the accused, so the results of those challenges will likely be fruitless in many cases.

In addition, you will note from the bill that they have proposed that the judge actually have some form of peremptory challenge themselves in the name of the administration of justice. What we envision, unfortunately, is all sorts of applications by accused persons to force the hand of the judge to exercise that power, resulting in voir dires or appeals where the judge refuses to do so and more delay, more applications where we already have a system where this sort of thing unfolds quite quickly.

William Trudell of the Canadian Council of Criminal Defence Lawyers echoed the CBA’s concerns about how the bill’s jury selection changes will impact court delays. He said, about the effect of getting peremptory challenges, “. . . it’s going to increase the time it takes to choose juries and invites this bill to give more power, if I might say, to the judge. The judge should not have more power in the selection of juries.”

On May 2, Annamaria Enenajor of the Criminal Lawyers Association, testified before our Senate Legal Committee and explained her organization’s objections to the jury changes in Bill C-75, saying:

There is a very limited mechanism for criminal defence lawyers where their client is an Indigenous or a racialized person. There is really no mechanism by which we can ensure that there is representativeness from their community on the jury. The peremptory challenges have been the only tool available for us to do that, to get to the only one, two or three members of the jury pool who might be of Indigenous or racialized background such that our client has members from their community on the jury.

The Trudeau government has cited a 2013 report on peremptory challenges conducted by former Supreme Court Justice Frank Iacobucci as supportive of their changes to jury selection process. Lawyer Michael Johnston provided our legal committee with this important context about the 2013 Iacobucci report:

You don’t throw the baby out with the bathwater. Can’t we find some way to preserve the benefits and mitigate the damages? That is exactly why I would respectfully submit that the Honourable Frank Iacobucci, when he studied this matter in 2013 of First Nations representations on Ontario juries, did not recommend their eradication with the greatest of respect.

In fact, Mr. Johnston pointed out that former Justice Iacobucci recommended “. . . to the Attorney General of Canada an amendment to the Criminal Code that would prevent the use of peremptory challenges to discriminate against First Nations people serving on juries.” He then goes on to reference the U.S. practice which is what is called a Batson challenge.

This is not to suggest, honourable senators, of course, that the U.S. Batson challenge should be the replacement for the peremptory challenge in the Canadian justice system. Clearly, any alternatives to replacing peremptory challenges would require further study in a Canadian context.

The point is that the Honourable Mr. Justice Iacobucci did not recommend the elimination of peremptory challenges but, rather, replacing it with an alternative. Of course, the Trudeau government did not present such alternatives for jury selection in Bill C-75.

This same lawyer, Michael Johnston, also provides our committee with some key context about the 1991 Manitoba report written by now Senator Sinclair.

. . . I want to draw to the Senate Committee’s attention that the report has to be understood contextually. That was written in 1991 when the Crown still had the power to stand by jurors. The Crown had the power to stand by 48 jurors in 1991 and have four peremptory challenges.

Obviously, Senator Sinclair is well equipped to explain his conclusions from his 1991 report, but I think it is helpful to have this context about both the 1991 Sinclair report and the 2013 Iacobucci report.

Mr. Johnston also brought to our attention that Senator Sinclair had then recommended that a major overhaul of the challenge for cause procedure occur if peremptory challenges are eliminated. That also has not happened in Bill C-75.

One of last witnesses appearing before our Senate Legal Committee on the issue of peremptory challenges was defence lawyer Brian Pfefferle from Saskatchewan. Mr. Pfefferle has conducted many jury trials in Saskatchewan, including representing a significant number of Indigenous accused in jury trials. He has frequently seen how peremptory challenges work in actual practice when representing Indigenous accused. Here is what he told us:

. . . it is extremely difficult to obtain Indigenous jurors on our juries because of a number of factors, but peremptory challenges are not a cause in my experience. In fact the opposite is true. I use peremptory challenges for the purposes of obtaining Indigenous jurors on my juries. . . .

. . . there’s the issue of when the clerk asks the juror to look at the accused and the accused to look at the juror. That experience is one that you cannot really describe. It’s not an experience of racial profiling or anything the like in my experience. If the juror won’t even look at my client, I don’t want them on my jury. Can I prove bias? No, I can’t. To an Indigenous person sitting on that jury and particularly standing in front of this grand crowd can be an intimidating experience.

Mr. Pfefferle went on to say:

It’s going to lead to significant, expensive delays in our jury trial process, again with Indigenous people being overrepresented in that process while underrepresented on juries. . . .

Rarely are we challenging a juror simply because of the way they look, but on occasion we are challenging them when they glare at our clients or give a look. We’re counsel, and human beings can identify those people who aren’t going to be fair.

The Trudeau government is hoping that the making these changes to the jury selection process will increase diversity on juries and make justice more equitable for racialized communities, including Indigenous Canadians, but time and again, the lawyers actually representing racialized accused in Canada’s courtrooms told us the changes would harm these communities.

Again, Saskatchewan defence counsel Brian Pfefferle, who represents many Indigenous accused on an ongoing basis in jury trials, said:

My experience anecdotally is certainly that peremptory challenges are valuable in creating diversity. As an example, I ended up running the jury trial in The Battlefords following the Gerald Stanley trial. I represented an Indigenous male who resided 600 kilometres away from the community where he was being tried. We used three straight peremptory challenges so that we could obtain what we viewed as a visibly Indigenous person on our jury. The accused was ultimately acquitted of his homicide charges.

Certainly Mr. Pfefferle and other defence counsel who testified in support of peremptory challenges do not view them as discriminatory practices. I don’t think that’s even what the government would contend. Instead, these defence lawyers clearly stated their intent to help their accused clients actually get a jury of their peers.

Honourable senators, eliminating peremptory challenges runs the risk of harming the very individuals this legislation purports to be trying to help. At the very least, this issue requires more study.

The jury selection changes in Bill C-75 were introduced 48 days after a highly emotionally charged verdict, an acquittal in the Gerald Stanley trial in Saskatchewan. There was not sufficient time for proper consultation on the major impact the removal of peremptory challenges could have on our justice system.

If the jury selection process is to be changed, it should not be before the issue of peremptory challenges has been adequately studied and an alternative is in place to mitigate potential consequences.

The Canadian Bar Association agreed, in their brief, stating:

Bill C-75 was introduced less than two months after the Stanley verdict. Some amendments to the jury process, including abolishing peremptory challenges, seem insufficiently considered. If legislative reform is required, it should be based on empirical data generated through a thorough examination of the jury system. The CBA Section recommends that the government undertake further study before making any major legislative amendments to the jury process.

Honourable senators, the counsel who represent Indigenous and other racialized accused on a frequent basis in jury trials in Canada view peremptory challenges as a useful tool to help their Indigenous and other racialized clients. Proceeding with removing peremptory challenges, as Bill C-75 asks us to do, could have unintended consequences to Canada’s criminal justice system, and it could negatively impact the most vulnerable Canadians this bill aims to help.

For those substantial and compelling reasons, I ask you, my colleagues, to consider this matter carefully and join me in voting to delete clause 269 and clause 270 in Bill C-75. Voting in favour of my amendment would leave the system of peremptory challenges in place as it is now. If we wish to revisit this issue in the future, let us do it properly after careful, thoughtful study and consideration.