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Acquittals in deaths of Indigenous victims

Nobody deserves to die - even when they are committing a crime.

Normally those who do the killing are subjected to prosecution and if convicted, held to account.

Nevertheless, since Biblical times, it has been recognized that there are exceptions and justifications for certain killings.

Canada's Criminal Code ‎reflects such defences - and it is up to a jury to decide whether or not the accused has successfully invoked any of them.

What seems to be overwhelmingly misunderstood is the role that a jury plays in a homicide trial. Canadians seem to believe that what they see on American television shows is reflective of the Canadian justice system.

It is not.

It is rare that jurors are even questioned. And if they are, the questions are tightly controlled, and, indeed, need to be approved by the judge.

In most cases we don't know their names and are only generally aware of what their occupation is and the area they live in. ‎In short, all we know is what we see when they stand up after their numbers are selected "bingo" style by the Clerk of the Court.

And when they stand up, it is remarkable how many make it clear that they do not want to be on the jury - although they still haven't actually been picked. And so, the excuses are made. Often, that is the most humorous part of a very serious process.

It is these people, randomly chosen by luck, ‎who most commonly kick themselves off of the jury.

Only after the judge excuses many of the potential jurors, do the lawyers get to exercise their restricted number of challenges. ‎If those run out, the jury is simply a reflection of the luck of the draw.

How the potential jurors get to be on the panel in the first place is beyond the control of any lawyer.

Leaving aside the large number of people who get excused before they even reach the courtroom - and like many other lawyers, it is a rare week that I don't get a call from someone asking how they can avoid jury duty - the formation of jury panels is subject to provincial legislation. If there are any complaints about that - direct them to those authorities.

While it would be nice to have juries reflective of the diversity of the entire community, to insinuate that the days of jury manipulation by counsel still exist is a fallacy. Having acted for a man who was accused of attacking a woman, only to see the Crown Attorney literally hand-pick an all-female jury (as was permitted by the then-legislation)‎ which went on to convict him, I can assure you that nobody is more interested in a fair and fairly-representative jury than criminal defence lawyers.

Having said that: being deprived of the ability to freely question the jurors, being unaware of who they are or what their backgrounds are, or what their actual biases and perceptions are, being severely restricted in our challenges - we have learned that we must use any vetoing of a potential juror sparingly.

How do we do that? Unfortunately, by stereotyping.

Whether it's the person's colour, gender, occupation or just their "look", we have nothing else to go on. And if the law is changed to just picking the first 12, so be it. It certainly won't end the outcries ‎from those who feel that the jury is not a fair reflection of the community.

Of course all that presumes that a demographically balanced jury is the best jury. The problem is that we don't know - and the reason we don't know is because it is against the law to ask jurors why they decided the way they did. In other words, were they biased, prejudiced or racist - despite their oath?

Government after government has refused to analyse the issue, pretending instead that jurors are‎ fair-minded and able to set aside their preconceptions.

Until there is an acquittal, such as occurred recently in Hamilton, Winnipeg and‎ Saskatchewan.

Then the outcry focuses upon the "unfair" jury. As if a "fair" jury would have seen that the only "fair and just" verdict was a conviction.

The outrage focuses upon the acquittal - as if the accused really was guilty, ought not to be presumed innocent, and "gets away" with murder, despite defences that are carved into our Criminal Code and Charter of Rights and Freedoms.

But that is the subject of another post.

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