Patience is a virtue but—in the case of jury selection—it also has been an unjust exigency that has been forced on Indigenous peoples by a succession of Canadian colonialist governments.
After at least 143 years of jury colonialism, Canada’s federal government has made changes to prevent Indigenous people from being excluded from juries without a necessary statement of cause.
This has happened 28 years after the 1991 Report of the Aboriginal Justice Inquiry of Manitoba (AJI) stated the following in its Chapter 17 “A Strategy for Action” section on Juries:
Systemic discrimination is clearly seen in the jury selection process. The right and responsibility of Aboriginal citizens to sit on a jury should be ensured by legislative and administrative change. The ease with which Aboriginal people can be excluded from the jury selection process should be stopped.
Action to be Taken by the Federal Government: [emphasis in original]
Amend the Criminal Code to do away with stand-asides and peremptory challenges, to provide that only challenges for cause, dealing with the impartiality of the juror, be permitted, and that the trial judge be the one to rule on any challenge (Hamilton & Sinclair 1991: 656).
Twenty-eight years after this & subsequent other judicial & related evidence-based investigations advised this action, the federal government now has abolished “stand asides” or “peremptory challenges” that serve to exclude Indigenous people from juries by permitting the concealment of racism to operate in the selection process (cf. Iacobucci 2013: s.3. Findings 24. ff. & Recommendation 15; Ruden et al. 1996: 205, 206). The Canadian Government recently amended the Criminal Code of Canada in the STATUTES OF CANADA 2019, CHAPTER 25: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts . . . The introductory Summary states among the general effects of the Act:
(c) abolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice; (Parliament of Canada 2019).
Not being a legal clerk or lawyer, & because the terms “stand aside” & “peremptory challenge” are not cited in the text of the Act itself, I am not now able to find the specific Criminal Code section(s) amended. The “Coming into Force” sections 405 through 407 of the Act do not clearly identify nor reveal when the specific amendments are to be implemented on a schedule that ranges from 30 to 180 days after royal assent.
A search of the Criminal Code of Canada existing on-line today, 6 July 2019, reveals that its section 634 continues to show all 12 references to “peremptory challenges” (Government of Canada 2019). Section 634 of the Criminal Code is NOT listed in the coming into force sections noted above.
Therefore, I am reluctant—but am forced—to trust that the promise to eliminate stand asides or peremptory challenges without cause now has been—or will at some unspecified date be—effectively eliminated.
Patience is a virtue indeed! However, in this case, the patience required by Indigenous peoples for the past 28 years since the publication of the AJI & all of the subsequent evidence-based recommendations (to say nothing about the previous history) has been, & will always remain, an egregious delay and therefore a denial of fundamental justice for Indigenous peoples. In the words of the AJI it is a part and parcel of “a massive injustice . . . of the most profound kind” (Hamilton & Sinclair 1991: 1). See a fully-documented overview of this history in Thistle (2018).
In conclusion, it must be noted that this is only one of the unconscionably long list of recommendations concerning crucial reforms required for the Canadian & provincial justice systems relative to Indigenous people that have not yet been implemented. Much urgent work remains to be done (cf. Welch 2013).
Government of Canada. 2019. Criminal Code of Canada, 1985, c. C-46 (Section 634) at https://laws-lois.justice.gc.ca/Search/Search.aspx?txtS3archA11=%22stand+aside%22&txtT1tl3=%22Criminal+Code%22&h1ts0n1y=0&ddC0nt3ntTyp3=Acts (accessed 6 July 2019).
Hamilton, Alvin C. & Sinclair, C. Murray. 1991. Manitoba Public Inquiry into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba Volume 1: The Justice system and Aboriginal People. Winnipeg: Province of Manitoba Queen’s Printer [See the AJI Recommendations on-line at http://www.ajic.mb.ca/volumel/recommendations.html (accessed 6 July 2019)].
Iacobucci, Frank. 2013. First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by The Honourable Frank Iacobucci, February 2013. Toronto: Ministry of the Attorney General https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/iacobucci/First_Nations_Representation_Ontario_Juries.html (accessed 6 July 2019).
Parliament of Canada. 2019. House Government Bill C-75. Assented to June 21, 2019. Legisinfo at https://www.parl.ca/DocumentViewer/en/42-1/bill/C-75/royal-assent (accessed 6 July 2019).
[Ruden, Jonathan et al]. 1996. Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada. Royal Commission on Aboriginal Peoples. Ottawa: Minister of Supply and Services Canada. http://www.bac-lac.gc.ca/eng/discover/aboriginal-heritage/royal-commission-aboriginal-peoples/Pages/item.aspx?IdNumber=517 (accessed 6 July 2019).
Thistle, Paul C. 2018. ‘“Indian-Hating” & “Massive Injustice of the Most Profound Kind”: Jury Colonialism Experienced by Indigenous People from Miserable Man (Kit-Ahwah-Ke-Ni), 1885 to Colton Boushie, 2018.’ Saskatchewan River Region Indian-European Trade Relations web site Jury Colonialism 1885 -2018 page at https://indianeuropeantraderelations.wordpress.com/indian-european-trade-relations-in-the-lower-saskatchewan-river-region-to-1840-thistle-1986/jury-colonialism-1885-2018/ or in the last item in the menu at the top of this blog page (accessed 6 July 2019).
Welch, Mary Agnes. 2013. “25 years after the Aboriginal Justice Inquiry began, much of its promise has yet to be realized.” Winnipeg Free Press Last Modified: 09/14/2013 8:56 AM, https://www.winnipegfreepress.com/local/slow-road-to-justice-223729431.html (accessed 6 July 2019).