On debate, Senator Sinclair.

I have a few brief comments with respect to the comments that have just been made by Senator Batters and, specifically, will focus on the issue of peremptory challenges as they are addressed in Bill C-75. There are many other provisions in Bill C-75 that could have been addressed, but since she focused only on this one I will talk about only this issue.

I find it interesting that during the course of submissions made to the committee by the various presenters on Bill C-75’s provisions dealing with peremptory challenges, the strongest argument that people marshalled in favour of utilizing and maintaining peremptory challenges was that they could be used to continue discrimination. What I mean by that is that the argument we have heard time and time again is that it’s taking away from defence counsel who are representing Indigenous accused the right to remove White people from the jury so they can have more Indigenous people on the jury, an act of discrimination in itself. Of course, it was in a case of the use of peremptory challenges to remove Indigenous members of the jury pool from sitting on a jury that the issue first came to light and has been the source of studies from the late 1980s and, in the case of non-Indigenous Black jurors, it has been in the course of case comment in the United States as well as other studies.

Peremptory challenges are not regulated at all by the Criminal Code. They allow defence counsel to essentially say, without saying it out loud: “I don’t like this person. I don’t like the way this person looks. Therefore, I don’t want him or her on my pool.” It was utilized against women, keeping women off juries, for example, when it involved rape or sexual assault cases, the argument being that the women will be sympathetic to the victim and therefore should not be allowed on. When studies showed, in fact, that women were harder on female victims of offences in some cases, then lawyers were convinced to stop approaching things in that way.

Peremptory challenges have been used historically to allow discrimination to occur, not exclusively to allow discrimination to occur, but have always been marred by the fact they have been used to discriminate against women, people of colour and, now apparently, people who are of White background.

The reality is that all of this has led to countries around the world taking a serious look at the use of peremptory challenges and removing it from their system. England removed the right to use peremptory challenges in 1988. New Zealand, Australia and other Commonwealth countries have removed from the criminal trial process the right to use peremptory challenges.

The basic reason is that because the intention of the jury system is that if the pool is properly created, if you draw properly from the community, you will get a fair cross-section of the community in the jury pool from which members of the jury can be selected. Therefore, the jury itself should be representative of the community that is sitting in judgment of the accused.

It has worked against the accused in a couple of ways in that regard. When we studied the issue of the use of juries in Indigenous communities and Indigenous people in the 1991 Aboriginal justice inquiry report, of which I was co-author, we pointed out was that the selection of people from the communities in the North to sit on the jury pool suffered because distances that people had to travel to get to where the jury trial was being held proved to be too difficult for many people. Language issues proved to be problematic. In addition, no financial assistance was provided to people being called from a community that was 100 miles north of an urban centre to allow them to stay in hotels or to have access to food while they were waiting to be selected on a jury or not. Sometimes people in the North who only had sporadic employment would lose an opportunity for employment because while they were sitting on a jury the only job they might have for that season was passing them by in the community, and they were not being compensated for being on a jury. It was the way the jury pool itself was being created.

Sitting in a jury pool, you were called by the random selection process to stand up in order for the lawyers to determine whether they wanted you to be on the jury. They then could discriminate against you because of your race, and that seemed even more eminently unfair. So our recommendation was to do away with peremptory challenges, as had been the case in England, Australia and New Zealand.

I’m proud to tell you the fact that in New Zealand, Australia and England, the criminal justice system has not gone to hell. It has not fallen apart. Everybody still gets a fair trial. People are still called to sit in jury pools and sit on juries, and they are able to do so in a fair way without peremptory challenges being used to discriminate against them. The reality is that the system has not been negatively impacted by the removal of peremptory challenges in those countries.

The reference to the Batson decision in the United States said that judges should supervise the use of peremptory challenges to ensure they are not discriminatorily utilized, but recent studies have shown that judges have been lax in their enforcement in the use of discriminatory techniques by lawyers who do not have to disclose why they set someone’s name aside or say they don’t want them on the jury.

So the reality is that peremptory challenges have been a source of injustice in many communities as well as the source of unfairness to people who get called to serve on juries who are then told to go home. “We don’t want you because” — in the mind of a lawyer — “we don’t like the race that you come from; we don’t like your gender,” or for whatever reason.

What we said in the AJI report and what this bill says is it’s time to put a stop to that. The criminal justice system will not come grinding to a halt. People will still be able to get a fair trial and have a jury of their peers, people who are representative of the community where the offence has occurred and from which they come.

There is no reason for us to continue to allow this discriminatory practice to continue, and I would encourage all of us to vote against this proposed amendment.

Thank you.

Senator Sinclair, would you accept a question?

I certainly will.

I thank you very much for the question, honourable senator. I think that’s the point I made. I suspect maybe your practice in the courts probably post-dated the earlier practice, which I referenced, which was that male lawyers in the early part of the jury system in Canada — I’m talking about the 1950s and 1960s according to the studies we had looked at during the AJI, but also according to anecdotal evidence — often removed women from sitting on juries involving sexual assault cases because they believed that a female juror would be sympathetic to the female victim of a sexual assault trial.

Studies later showed that those who were removed were, in fact, less sympathetic towards a female victim than males. This suddenly increased the number of female members of a jury panel. I suspect that, in fact, is the aura of the practice of law at the time that you might be talking about.

More importantly, again, this is an example of where the justification used to encourage the maintenance of the pre‑emptory challenges process is to say that we should allow lawyers to continue to discriminate against a particular group because we want another group to be represented on the jury. The use of discriminatory practices based upon myths and stereotypes should be disallowed in the jury selection process, not encouraged and not maintained.

I have presided over hundreds of jury trials as a judge. I want you to know that I believe fervently in the jury system. I believe in it so much that I have often felt that they came to a decision that I would not have come to as a trial judge, but that they were representative of the community and they are the ones that were charged with making that decision. I accepted that as their role.

Thank you again, honourable senator, for the question and for making the point.

The reality is that the best way to address the fairness of jury pools and panels — that is, those who are sitting on juries — is to ensure that the pool selection process is a better process than what we now have in place. That is clearly to address the issue as raised through the fact that the criminal procedure involving jury trials is a divided procedure. The provinces have jurisdiction over the way that jury pools are created, many provinces used to rely upon the use of municipal rolls or band membership lists. More and more provinces are now moving to utilizing the health rolls so that those who have a health number are called for jury trials and called to sit in the pool. The pool itself then becomes the community from which the members of the jury are selected.

If the pool is not properly representative of the jury, then the panel is not likely to be properly representative of the jury. That’s what we need to ensure, not through the use of pre-emptory challenges, to create a proper pool. If the use of the jury selection process — which is a random-draw process, as you know, senator, whereby your name gets drawn literally out of a hat, they call your name and you are then placed on the jury, could result in 12 men or 12 women being on a jury panel. Those are the ways that our juries are now created. Until we come up with a better way, then that’s what we have to —

The time is up, honourable colleagues. Do you request more time Senator Batters?

Senator Sinclair, will you accept more questions?

I will accept the question. It’s for the chamber to decide if I have more time.

Honourable senators, do we agree to five more minutes?

There is a “no,” Your Honour.

I apologize, I did not hear the “no.” No more time is allowed.

Are honourable senators ready for the question?

In amendment it was moved by the Honourable Senator Batters, seconded by the Honourable Senator Mockler that Bill C-75 be not now read a third time, but that it be amended on pages —

Is it your pleasure, honourable senators, to adopt the motion in amendment?

All those in favour please say, “yea.”

All those against please say, “nay.”

In my opinion, the nays have it.

I see two honourable senators rising. Do we have an agreement on the bell?

15 minutes.

15 minutes.

15 minutes. The vote will take place at 4:53 p.m.

Call in the senators.