Jury Selection and Preliminary Inquiries

“Don’t mistake activity for achievement” – John Wooden

I kept coming back to this quote as I came across a number of articles discussing proposed changes to the way juries are selected and the availability of preliminary inquiries.

Currently both Crown and defence counsel have 12 peremptory challenges available to them when jury members are selected from a pool of candidates. That means each side has the ability to have 12 potential jurors excluded simply by saying so. No reason needs to be provided for having a juror dismissed.

The proposed changes would remove these peremptory challenges. These proposed changes stem from public outcry over the acquittal of Gerald Stanley after he shot Colton Boushie. Mr. Boushie was of aboriginal descent and the jury was all white.

The stated goal has been to achieve more representative juries. This is laudable. The problem is the chosen path appears unlikely to meet that goal without improvements in the ways in which jury pools are created. Making juries more representative requires that the candidates to sit on those juries be representative of the population.

Peremptory challenges have also been a tool to increase the number of people of aboriginal descent on the jury when the accused is aboriginal.

Preliminary inquiries have been under attack for years. The proposed changes will move them closer to extinction as they would only be available in cases where the offences charges bring the possibility of life imprisonment.

A preliminary inquiry is a hearing where the Crown is required to satisfy the trial judge that there is some evidence on which a properly instructed jury could convict. This is a low standard. It allows the accused to test some of the evidence and both sides to refine the issues for trial. Often, following a preliminary inquiry a trial can be avoided. If a trial follows a preliminary inquiry it can be conducted in less time as the parties have had the benefit of hearing the evidence already and being able to focus on the issues that need to be litigated.

There is little to suggest that a properly focused preliminary inquiry causes any delay in getting cases resolved.

In both instances we have activity but it is doubtful that these steps can be considered achievements as there is reason to doubt the likelihood that they will lead to the desired outcomes.