The Road to Hell: The Intentions of Politicians in Eliminating Peremptory Challenges are Irrelevant to an Accused
There is someone I knew in high school who was really involved in politics and used to table for the “Young Convervatives” or “Young Liberals” or “Young NDP” (the party is irrelevant). He used to annoy the shit out of me. I did not find him especially bright, interesting or charismatic and he had no discernible experience or achievements, but was always posturing as if he had policy solutions to very complex problems. There were no cell phones at the time to pretend to take a phone call, so whenever he would start talking to me I would always pretend I was in a rush to get to class. What I did not expect when I was in high school and used to try to avoid him is that if I were to fast forward about twenty-five years that this is exactly the type of person who becomes a politician.
If I sound angry, it is because I am – very angry – about the elimination of peremptory challenges. Never in my lifetime have I felt such personal revulsion at politicians so badly screwing up a policy. As usual, the politicians who screwed up will bear none of the consequences of their error.
Peremptory challenges allow a defence lawyer to have some control over the composition of the jury. They are useful to challenge potential jurors who scowl at the accused, don´t make eye contact with him or her, don´t look like they want to be there or for whatever reason you think they might be hostile to your client. Peremptory challenges became an emotionally charged issue after the jury acquittal of Gerald Stanley, a white man, who was accused of murdering Colten Boushie, an Aboriginal man. The defence was accused of using peremptory challenges to eliminate Aboriginal people from the jury. After the jury acquitted Gerald Stanley, politicians who were obviously completely oblivious to the nuances of the situation, decided peremptory challenges must be eliminated to increase racial justice in this country.
It is my contention that the law will have the exact opposite effect than the one intended. For a non-white accused, peremptory challenges can be much more significant than the circumstances described above. Peremptory challenges can be used to try to get an ethnically diverse jury if the accused wants one and this can be a matter that is deeply visceral and important to an accused person. If this is not obvious, an experience I had recently will demonstrate the importance.
In January 2020, I had a jury trial where my client was a Jamaican female accused of importing cocaine. The way jury selection begins is about 100 people walk into the courtroom who comprise the jury panels that you are selecting jurors from. I am used to this happening, but I looked over at my client and she appeared to be in a panic. As she was looking at the 100 people coming into the room, I saw that she had a look of absolute terror in her eyes. My client then tugged my arm and said to me in a hushed, shaking voice:
“Ryan can you please try to get black people on my jury? It would mean so much to me to have at least one.”
“Of course.” I answered.
I have thought about this moment of that trial a lot in recent weeks and what she feared. I have thought about what it must have felt like for her to see the jury panel coming in and to realize that there were not too many black people in the room and that it was very possible that her jury would not have anyone on it who she felt could identify with her – truly identify with her. My client later told me that she was concerned about how the jury would perceive her and if they would perceive her negatively just because she was Jamaican and black and charged with importing drugs, circumstances she could do nothing about. I tried to calm her down as best I could, but nothing I said could or would calm her down. She wanted a black person on the jury to safeguard against that kind of thinking, even if it only provided some comfort in her own mind.
With my peremptory challenges in hand, I managed to get two black males on the jury. The jury decided to make one of the black males the foreman who read the verdict of not guilty two weeks later.
Now imagine that Parliament has eliminated peremptory challenges to increase racial justice. Imagine that there is now no way to give the accused any ability through his or her lawyer to get an ethnically diverse jury to reduce racism. This is, in my view, a disgrace.
I am convinced that my anger about the elimination of peremptory challenges is related, in some ways, to the anger that many are feeling during the current unrest in 2020 that began with the murder of George Floyd by a sadistic police officer. In addition to police brutality, the unrest is also related to the conclusion of many in economically poor conditions that the system is rigged against them. They are, in my view, right about this conclusion.
Nassim Taleb wrote about the problem of the system being rigged in his book Skin in the Game. The problem, he argues, is that decision-makers and those in positions of power are totally detached from the consequences of their errors. People took note of this especially after the near collapse of the financial system in 2008 where the architects of the collapse personalized the rewards of their risk-taking and bad policies and then got a government bailout and socialized the disaster created by their errors. Nobody who took the risks and made the errors suffered any consequences. At the same time, many people from economically disadvantaged circumstances and, in particular black Americans, have been the victims of a system that punished them mercilessly for even the most minor offences, like drug possession. This incongruence led to the Occupy Wall Street movement. It is my view that the current unrest is a re-emergence of the Occupy movement with more of a racial component.
The truth is that people are right to be angry, just as I am right to be angry about the elimination of peremptory challenges. The policy of eliminating peremptory challenges will decrease racial justice and lead to more people angry at the system and feel that justice was not served in their case. Had my client been convicted without the opportunity to even try to get blacks on her jury, she would have never forgiven the system that criminalized her forever while allowing that circumstance to exist. Now imagine this happening in aggregate in every jury trial across the country all the time and the effects of that over time.
It is said that the road to hell is paved with good intentions. I am certain that the Liberals who eliminated peremptory challenges had the best of intentions, but those intentions are irrelevant to me and any accused person, I only care about the effects of their policy. The consequences of their policy will be borne entirely by people accused of crimes, particularly black and Aboriginal accused. As for that annoying person I knew in high school, he has been a career politician who has never had a real job. In my view, it is right to conclude that this is a bad system that cannot go on forever.