Canada's Original Think Tank

Second reading of Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act

Second reading of Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act

Second reading of Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act

Hon. Lillian Eva Dyck: 

Honourable senators, I rise today at second reading of Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act. This bill contains a number of amendments to the Criminal Code related to sexual assault and other amendments to repeal provisions that are obsolete, outdated, unconstitutional or contrary to the Charter of Rights and Freedoms. Senator Sinclair, the sponsor, outlined in detail the provisions of Bill C-51 in his speech.

At the beginning of his speech, he also said:

I will tell you, quite frankly, that I was contemplating introducing an amendment to this bill in order to remove the provision in the Criminal Code relating to peremptory challenges as a result of the recent debate going on in society. But in view of the Prime Minister’s announcement yesterday and my discussions with the minister, who, I am told, is contemplating making such a change in time to come, I will hold back to see what the government does.

However, I do want to make it clear that the issue of jury selection and the provisions of the Criminal Code continue to remain a huge issue for me, and one that calls for action.

I share this concern, and the remainder of my remarks will be to urge the Legal and Constitutional Affairs Committee to examine peremptory challenges when it studies Bill C-51. There are compelling reasons to consider such an amendment now, rather than wait a year or longer for the minister to do so.

It has long been known that peremptory challenges can be misused, and the recent concerns over the Gerald Stanley trial in Saskatchewan have highlighted this. During the jury selection process, potential jurors who were visibly Aboriginal were excluded by peremptory challenge by Stanley’s lawyer. As a result, the jury was visibly all white, while the victim was Aboriginal.

Many people raised concerns about this. The not-guilty verdict and the lack of an appeal by the Crown has created controversy and polarized Canadians on the fairness of the justice system for Aboriginals.

Colleagues, it has been known for decades that peremptory challenges can be used to unfairly skew the makeup of a jury. About 30 years ago, in the mid-1980s, both the United States of America and the United Kingdom eliminated the use of peremptory challenges.

In the 1991 Supreme Court of Canada decision R. v. Sherratt, Madam Justice L’Heureux-Dubé wrote:

The modern jury was not meant to be a tool in the hands of either the Crown or the accused and indoctrinated as such through the challenge procedure, but rather was envisioned as a representative cross-section of society, honestly and fairly chosen.

Also in 1991, in the report on the Manitoba justice inquiry, our colleague Senator Sinclair and Associate Chief Justice Alvin Hamilton recommended that:

The Criminal Code of Canada be amended so that only challenges for prospective jurors be challenges for cause, and that stand asides and peremptory challenges be eliminated.

Twelve years later, in 2013, Justice Frank Iacobucci recommended amending the Criminal Code to prevent the use of peremptory challenges to discriminate against First Nations people serving on juries.

Just last month, after the not-guilty verdict in the Gerald Stanley trial, the Minister of Indigenous Relations of Alberta, Richard Feehan, wrote to Justice Minister Jody Wilson-Raybould asking her to act swiftly to reform the peremptory challenge system.

Colleagues, the Senate has an opportunity with Bill C-51 to act expeditiously. We can act now by including peremptory challenges in committee study of the bill.

I believe that it is important for the Senate to do something now rather than wait for the minister to address the problems with the current use of peremptory challenges.

There are compelling reasons to consider eliminating peremptory challenges now rather than wait, especially for people in Saskatchewan. Numerous polls and statistical data from Statistics Canada paints a picture of Saskatchewan which is dismal for Aboriginals when it comes to justice issues. In Saskatchewan, compared to the rest of Canada overall, Aboriginals are more likely to face racism, be murdered, be accused of murder, be imprisoned and serve longer sentences compared to those who are not Aboriginal.

Over the last 30 years, according to Statistics Canada, the national homicide rate has declined, but the rates in the Prairie provinces, especially in Saskatchewan and Manitoba, have increased. In other words, there is a long history, a long-standing problem of high homicide rates in Saskatchewan and also in Manitoba.

Using the data from Statistics Canada, I calculated the homicide rate over a 10-year period, 2005 to 2014. Homicide rates are the number of homicides per 100,000 of a particular population. The homicide rate in Saskatchewan was double that of the national rate. The homicide rate nationally was 2.07, and in Saskatchewan, it was 4.09.

Regina, Saskatoon, Edmonton and Winnipeg have been at the top of the list for homicide rates for many years, and it should be noted that Stats Canada reported that 62 per cent of Aboriginal homicides occurred outside such census metropolitan areas.

Colleagues, in the last three years, Stats Canada has reported on the Aboriginal identity of victims and persons accused of homicide. I was shocked at the greater negative effect of Aboriginal identity in Saskatchewan compared to Canada as a whole.

Compared to the national picture, Aboriginals in Saskatchewan were not only accused of homicide more often, they were also victims of homicide at a much higher rate than those who are not Aboriginal. In Canada, Aboriginals were victims of homicide at 6 times the rate of non-Aboriginals and were accused at 10 times the rate. However, the situation was even worse in Saskatchewan, where Aboriginals were victims of homicide at 8 times the rate of non-Aboriginals and were the persons accused at 16 times the rate of those who were not Aboriginal.

Furthermore, to compound matters even further, the sentencing of Aboriginals has been shown to be harsher. The sentencing in Saskatchewan of Aboriginals compared to others who weren’t Aboriginal was examined over a 16-year period, 1996 to 2014, by James Scott, a defence lawyer from Saskatchewan. On average, he found that Aboriginals were sentenced to over twice as much jail time per person compared to those who were not Aboriginal.

Colleagues, this data suggests a systemic bias against Aboriginals in the justice system, or put another way, the justice system appears to be more lenient towards those who are not Aboriginal.

The over-incarceration of Aboriginals is also well known and well documented. In 2016, for example, in Saskatchewan, about 15 per cent of the population was Aboriginal, yet 80 per cent of the prison population was Aboriginal. About 4 to 5 per cent of the Canadian population is Aboriginal, yet 25 per cent of the Canadian prison population is Aboriginal.

As Senator Christmas noted earlier, on our committee trip to Western Canada we saw that when we visited the Prince Alberta penitentiary, 80 to 90 per cent of the prisoners were Aboriginal.

Colleagues, in addition to social determinants like poverty and addictions, racism plays a role in the over-representation of Aboriginals as victims and offenders in the criminal justice system. Various polls over the years have shown that racism against Aboriginals is the highest in Saskatchewan and Manitoba compared to the rest of the country.

In 2007, in a survey done by the Saskatchewan Anti-Racism Network, Aboriginals were twice as likely to face racism compared to other ethnic minorities, such as Chinese or East Asians.

In 2010, the Urban Aboriginal Peoples Study reported:

If there is a single urban Aboriginal experience, it is the shared perception among First Nations Peoples, Métis and Inuit, across cities, that they are stereotyped negatively.

Ninety per cent of those surveyed believe that they were consistently viewed in negative ways by non-Aboriginal people. This perception was especially strong in Saskatoon. In addition, 70 per cent reported that they had been treated unfairly because of their race.

In 2014, a CBC Environics poll found that prairie people were less tolerant of Aboriginals than other Canadians. In 2016, the NRG Research Group found that 46 per cent of those surveyed in Saskatchewan thought racism was a big problem. In fact, in 2016, the online comments after the shooting of Colten Boushie were so hate-filled and racist that former Premier Brad Wall intervened and asked people to stop. Such comments were posted again this year during and after the Stanley trial.

It is interesting to note that according to a Global News poll last month, while 32 per cent of Canadians viewed the Stanley verdict as flawed and wrong, in Saskatchewan only half as many, 17 per cent, held that view. Compared to the national average and to Eastern Canada, people in Saskatchewan were far less likely to view the verdict as wrong. This anomaly is congruent with the higher levels of racism against Aboriginals in Saskatchewan.

Colleagues, as I noted a few minutes ago, all of the above paint a picture of Saskatchewan which is dismal for Aboriginals. In Saskatchewan, compared to the rest of Canada overall, Aboriginals are more likely to face racism, be murdered, be accused of murder, be imprisoned or face longer sentences compared to those who are not Aboriginal.

With such long-standing over-representation of Aboriginals as victims or persons accused of homicide in Canada, especially in Saskatchewan, it is critical that potential Aboriginal jurors not be eliminated by the continued use of peremptory challenges.

The Stanley trial was only one homicide case in which the victim was Aboriginal. According to data from Statistics Canada, from 2014 to 2016, there were 407 Aboriginal homicide victims across Canada; 77 of these were in Saskatchewan. There were 479 Aboriginals accused of homicide across Canada; 97 of these were in Saskatchewan.

Hundreds of Aboriginals continue to be accused of or are victims of homicide annually. These numbers justify acting now rather than waiting for another year to eliminate peremptory challenges. The potential for unfairness is real and significantly large.

Colleagues, the statistical data showing the high levels of racism towards Aboriginals, combined with the gross over-representation of Aboriginals as offenders, victims and prisoners, should compel us to act now rather than wait for the minister to continue to study the issue of jury selection overall. Surely the Senate ought to act now and focus exclusively on the use of peremptory challenges. It has been known to be problematic since 1991.

Twenty-seven years to rectify this problem is already way too long to wait. We must act now. By acting now, rather than waiting another year or more for additional research by the Department of Justice, we can prevent any possibility that an all-White jury might purposefully be selected in order to tip the scales of justice in favour of non-Aboriginals over Aboriginals.

By eliminating peremptory challenges, there is a greater chance for a fair trial not just for Aboriginals but for all Canadians. Eliminating peremptory challenges would increase public confidence in the justice system and increase faith in a jury verdict.

Colleagues, I presented these statistics and numbers to you to substantiate the pressing need for change and show you the opportunity that the Senate has to start right now to amend Bill C-51 to include the elimination of peremptory challenges from the Criminal Code.

The Senate can show responsiveness and leadership on this important and topical issue by including a study of peremptory challenges during its study of Bill C-51.

I urge the Legal and Constitutional Affairs Committee to include the use of peremptory challenges in their study of Bill C-51 to determine whether they should be eliminated, as has been done in the U.S. and the U.K. and as has been recommended a number of times since 1991.

The Hon. the Speaker: I’m sorry, senator, but your time has expired. Are you asking for five more minutes?

Hon. Senators: Agreed.

Senator Dyck: Thank you, senators. Conducting such a study would be consistent with the bill’s aim to rid the Criminal Code of provisions which are outdated, obsolete, unconstitutional or contrary to the Charter of Rights and Freedoms.

Thank you very much.

Hon. Senators: Hear, hear!

Hon. Donald Neil Plett: Since we just granted Senator Dyck five more minutes, would she entertain a question?

Senator Dyck: Yes.

Senator Plett: I wasn’t in the courtroom in Saskatchewan during the Stanley trial. I suspect no one in this chamber was, I suspect the Minister of Justice wasn’t, and I suspect the Prime Minister wasn’t.

Of course, everyone had an opinion that justice was not served in that trial. Senator Dyck, do you know the makeup of the jury in that trial? And do you know whether there were challenges, whether any Aboriginals were excused because of the challenges, and, if so, how many?

Senator Dyck: Five potential jurors who were visibly Aboriginal were eliminated. The jury, as it was composed, was visibly all White. There were five jurors who were Aboriginal that could have served on that jury, but they were eliminated by Stanley’s lawyer.