Discriminatory and Unfair Practices Against the Indigenous Peoples of Canada in the Selection of Criminal Juries

Indigenous Peoples are overrepresented in all aspects of the Canadian criminal justice system. Most dramatic are their rates of incarceration. One way to potentially reduce conviction rates and the resulting custodial numbers is to make improvements to the fairness and effectiveness of jury selection. For the purposes of this thesis that requires reconsidering the disqualification of the criminally convicted from jury service as well as rethinking the systems that are in place for challenging prospective jurors. The goal of the jury selection process is to seat a representative, independent and impartial body of citizen adjudicators. It is and will always be an imperfect system as are all human ventures. However, the aim of the enterprise remains of fundamental importance to the rendering of just and accurate verdicts. Yet identifying and selecting a group of ideally diverse and fair-minded jurors to sit in judgment is not a simple task. Indeed, the question ultimately becomes not whether the paradigmatic jury can be compiled, but whether the present model of empanelment can be improved upon. My analysis of the governing Canadian jurisprudence suggests that the present jury selection regime is inadequate. That view is further buttressed after considering and comparing the experiences in England and the United States of America on the same issues. In the end, I propose utilizing a more expansive pool of prospective jurors given the significant number of Indigenous Peoples who are presently disqualified from jury service due to their criminal antecedents. Additionally, I argue that challenges for cause need to become more inquisitorial in order to function optimally. Finally, I conclude that peremptory challenges require more judicial oversight as to their use and a reduction of their number achieved through legislative action.