Author: Tal Schreier

A Focus on Jury Reform

Posted on by Tal Schreier

by Cheryl Milne

Jury selection has been in the public eye since the beginning of, and the ultimate acquittal of Gerald Stanley in, the trial of the shooting death of Colten Boushie, a resident of the Cree Red Pheasant First Nation of Saskatchewan. The Stanley trial highlighted concerns about the selection of individual jurors. The media reported that defence counsel for Mr. Stanley appeared to using peremptory challenges to reject any potential juror who was visibly a First Nations person. Peremptory challenges require no reason, and are mainly used by counsel to reject people who don’t “look” like they might be favourable to their client.*  The case law on this practice primarily focuses on the actions of the Crown attorney in this selection process and the accused’s right to an impartial jury. Rarely have juries been dismissed or mistrials declared as a result. It is even rarer for the use of such challenges by defence counsel to be called into question.

Prof. Kent Roach, Chair of the Asper Centre’s Advisory Group, notes in an Op-Ed he wrote for the Globe & Mail, “Such challenges, where the accused or the prosecutor look the prospective juror in the eye and simply says challenge or not, are a stone-cold invitation for jury selection to be infected by conscious or unconscious racist stereotypes.” Roach states that now is the time to abolish peremptory challenges to eliminate this manifestation of bias in the system.

The Charter right to an impartial jury is that of the accused and not the victim nor the community. However, the majority of the Supreme Court in R v Kokopenace stated that the role of representativeness includes legitimizing the jury as the conscience of the community and promoting public trust in the criminal justice system. Asper Centre clinic students examined the role of juries in the clinic in the Fall of 2011. Their research on the issue of jury representativeness and race informed the legal arguments that we put forward both at the Ontario Court of Appeal and the Supreme Court of Canada in the Kokopenace case. The focus of the legal arguments was the under-representation of First Nations people, who live on primarily Northern reserves, on the jury pools from which individual jurors are picked. In the particular jurisdiction where Mr. Kokopenace was tried, First Nations on-reserve people made up approximately 30-36% of the population, yet they represented only 4% of the people within the jury pool. Mr. Kokopenace’s jury was selected from a panel on which only 2% were on-reserve residents.

The reasons, as in most cases of systemic racism, are complex and numerous. The Asper Centre arguments at the Supreme Court, made jointly with LEAF, focused on equality and discrimination in the criminal justice system, which is a value inherent in the concept of representativeness. An analysis of the Supreme Court reasoning in Kokopenace can be found on the Asper Centre website. It is perhaps unsurprising that the Court was unwilling to address the s.15 arguments put forward. Despite this, it is clear that discrimination in the formation of the jury pool was a key underlying issue. As LEAF noted in its press release, “The case was rife with evidence of systemic discrimination and yet the Court declined to find a violation of s. 15 of the Charter. A s. 15 analysis, or an equality analysis of s. 11 would have put into perspective the profound marginalization of Indigenous peoples in the Canadian criminal justice system and the resulting “reluctance” to participate in its structures.”

The Asper Centre has focused on the role of juries in our criminal justice system in several clinic projects. In our first clinic in 2009, a student researched the case law on jury representativeness and how a jury trial functions in order to lead a mock trial in Thunder Bay with First Nations high school students. The issue of lack of representativeness of juries in Northern Ontario had been disclosed within the context of two coroners inquests involving the deaths of First Nations people. The aim of the project which was done in partnership with the Ontario Justice Education Network (OJEN), was to educate young people, particularly First Nations youth, about the role of juries and the importance of participation in juries to our criminal justice system. The subsequent Iacobucci Independent Review, First Nations Representation on Ontario Juries, pointed to the lack of education about the criminal justice system as an issue to be addressed, but listed many more factors that demonstrate the complexity of the problem and the need for more than education to remedy the situation. Systemic discrimination and the lack of trust in a system that is viewed as working against indigenous people are deeper factors that require better understanding to resolve.

Another issue identified in the Iacobucci review was “concern for the protection of the privacy rights of their citizens with respect to the unauthorized disclosure of personal information for the purposes of compiling the jury roll.” The Asper Centre in another clinic project focused on the treatment of prospective jurors in the series of jury vetting cases that was heard by the Supreme Court in 2012. There the focus of the appeal was Crown Attorneys’ use of private information obtained by police but not shared with defence counsel to vet prospective jurors. The Asper Centre again focused on the impact on jurors in respect of their participation in the criminal justice system. While the court’s decision primarily focuses on the infairness to the accused, they did note the right to privacy held by the jurors in some of the records disclosed. In the end the convictions were upheld.

For reconciliation to have any meaning in the criminal justice system, all aspects of the system must be scrutinized. Equitable participation by First Nations, Métis and Inuit peoples as decision makers, not just as accused or victim, must be supported and valued. Practices that mask conscious or unconscious biases against indigenous peoples, such as peremptory challenges, or that discourage participation through failure to remedy under-representation on the jury rolls themselves, need reform. At the very least courts should be holding people accountable in these situations, whether acting for the Crown or defence. Many of the recommendations in the Iacobucci report should be applied more broadly by the federal government. To quote Prof. Roach, “Reasonable perceptions that jury selection and trials are stacked against Indigenous people have long existed … [but] reform must come.”

A group of nine academics have formed a think tank to look more closely at the Gerald Stanley trial. The jury selection is only one concern that has been raised. We hope that this group, which includes Prof. Roach, can shed some light on the systemic issues that have left many in the community, and in particular the First Nations communities in Saskatchewan, with the view that an injustice was done.

* Since the writing of this blog post, the Department of Justice has tabled a new piece of legislation aimed at reforming the criminal justice system.  Among the changes proposed, Bill C-75 has removed peremptory challenges for both the Crown and defence.  To counterbalance this, the legislation changes the way a potential juror can be challenged for cause and ultimately gives the judge the final say.

Asper Centre Clinic Student Reflects on Drafting the Bird Intervention Factum

Posted on by Tal Schreier

by Becky Lockert

This past fall, the Supreme Court of Canada granted the Asper Centre leave to intervene in R v Bird, a case that ties questions of access to justice and constitutionalism to the doctrine of collateral attack. The question at the heart of the case is, from the Asper Centre’s perspective, whether a court applying the collateral attack doctrine must explicitly consider countervailing factors to ensure that administrative orders are Charter compliant.

Mr. Bird, the appellant, was labelled a long-term offender and, upon the completion of his prison sentence, was subject to certain supervisory conditions. Although he had requested that he be released into his First Nations community, the Parole Board ordered Mr. Bird to reside in a community correctional facility. Notably, this community correctional facility is the same one where he served the end of his prison sentence.

On a January evening two years ago, Mr. Bird left his assigned correctional facility and did not return. Police apprehended Mr. Bird several months later, leading to a charge of breaching a long-term supervision order and the threat of up to ten years in prison.

At trial, Mr. Bird successfully argued that the imposition of the residency condition was contrary to s. 7 of the Charter and outside the statutory authority of the Parole Board, because continued incarceration cannot be a condition imposed by a long-term supervision order. Allowing the appeal, the Saskatchewan Court of Appeal held that Mr. Bird was precluded from challenging the legality of the supervision order condition. To make such an attack, the Court of Appeal concluded, would be allowing a collateral attack and contrary to legislative intent.

The Supreme Court granted leave to intervene to the Asper Centre in September 2017. The intervention team, consisting of Cheryl Milne (Asper Centre Executive Director) , Breese Davis (the Asper Centre’s 2017-18 Constitutional Litigator-in-Residence), and five clinic students, had six weeks to prepare our intervenor factum. Our task was to craft an argument that the Court, when determining whether to bar a collateral attack, should consider both the constitutionality of the administrative order and access to justice.

Cheryl and Breese immediately gave the reins to our small group of students. Gaining familiarity with the subject-matter was our first step; we assigned out research and set off to produce memos. Meeting regularly and communicating constantly, the group narrowed our issues and determined our approach. We would advocate for adding two branches to the collateral attack framework (from the Supreme Court’s judgment in R v Consolidated Maybrun Mines Ltd.).

First: courts cannot be complicit in the enforcement of unconstitutional administrative orders by refusing collateral attack against them. This would be contrary to the rule of law and the principle of constitutionalism. Especially in this case, where Mr. Bird’s liberty interest is at stake, compliance with the Charter cannot be left out from the Court’s analysis.

Second: courts should take note of access to justice challenges that make judicial review of administrative orders essentially inaccessible. Charter protections cannot be rendered meaningless by an effective inability to challenge potentially unconstitutional conditions.

Having determined our strategy, the drafting process began. For a number of us, this was to be our first factum. Cheryl and Breese put great faith in the group to craft the Centre’s written argument, providing helpful (and at times, challenging) feedback to our work-in-progress. The ability to maximize on Cheryl’s expertise in drafting intervenors’ facta and Breese’s wealth of knowledge as a seasoned criminal defence lawyer was immeasurably helpful. There were a series of late nights at the Faculty, including line-by-line group editing sessions where we wrote and re-wrote sections of the factum.

Following a series of drafts, more line-by-line edits, and finally a submission to Cheryl and Breese, we had our finished product. A few final tweaks on their end, and the factum was submitted to the Court and out of our hands.

The prospect of the Supreme Court reading our writing is a daunting one for students – daunting, but exciting. The Court will be hearing oral submissions on the case this upcoming March, and many of our student group will be coming along to see our arguments in action. How will the Court approach our arguments? Is our position persuasive, and will the Court accept the position that access to justice and constitutionalism must be considered?

Having this opportunity to draft an intervenor factum has been invaluable for our student group. On a personal note, I can attest to this being the most meaningful and challenging part of my law school career thus far. Being surrounded by four other dedicated and bright law students and having guidance from highly skilled supervising lawyers has resulted in a piece of work and an experience that I am proud to have been a part of.

Becky Lockert is a 2L JD Candidate at the Faculty of Law and was a student in the Asper Centre Clinical Legal Education Course.

Asper Centre Students convene Workshop for LAWS’ Global Citizenship Conference

Posted on by Tal Schreier

By Crystal Li and Juela Xhaferraj

On February 9, 2018, the University of Toronto Faculty of Law was host to hundreds of high school students who were attending the annual Global Citizenship Conference organized by Law in Action Within Schools (LAWS).  Members of the Asper Centre’s Immigration and Refugee Law student working group were pleased to lead one of the workshops for the students at the Conference. Members of the Asper Centre’s other two student working groups (on Indigenous Rights and Police Oversight) as well as students from the International Human Rights Program at U of T Law, also led workshops at the Conference.

In keeping with the Global Citizenship Conference’s overarching theme, the Immigration and Refugee Law group’s workshop aim was to demonstrate to the student participants how global events have a local impact. We explored this theme through the lens of the Syrian refugee crisis. After a general introduction to the events that precipitated the refugee crisis and the conditions facing refugees, the rest of the presentation turned to the responses to the crisis. To provide a comparative perspective, we described Turkey and Germany’s responses before discussing the Canadian context. Part of the discussion on Canada’s response focused on the Safe Third Country Agreement (STCA) and why it might be necessary to suspend it.  The STCA is a bilateral agreement between the United States and Canada that stipulates that asylum seekers must lodge a refugee claim in the country in which they first arrive and that, subject to some exceptions, Canada can refuse or bar someone from lodging a refugee claim and force their return to the United States.

The STCA discussion was also a means of introducing the students to the work of the Asper Centre and its students. This academic year, the Asper Centre’s Immigration and Refugee Law student working group provided legal research assistance to the public interest litigants (Amnesty International, Canadian Council of Churches and the Canadian Council of Refugees) who have joined an individual litigant challenging the constitutionality of the STCA.  This challenge is argued on the basis that the United States should not be deemed a safe country for refugees given that the rights of refugees in the United States under the Trump administration have seriously plummeted and hence the STCA should be suspended at this time.

During the workshop, the participating students actively engaged in the discussions and exhibited an impressive understanding of the issues facing refugees both globally and locally. While some students were skeptical of Turkey’s and Germany’s true motives in accepting a large number of refugees, most agreed that Canada should learn from the two countries’ approaches and take in more refugees. In particular, the students saw the analogy between Germany’s now suspended Dublin Regulation (which regulates which country in Europe must examine a refugee claimant’s application at first instance) and Canada’s STCA with the U.S.  Many of the students felt that the Canadian government’s refusal to suspend the STCA is inconsistent with the accepting and welcoming public image held up by the government.

Towards the end of the presentation, the students asked about the practice of immigration and refugee law and about the work of the Asper Centre.  Many of them found it exciting that law students are able to work on important immigration and refugee law cases while still in law school.

Crystal Li and Juela Xhaferraj are both 1L JD Candidates at the Faculty of Law and are members of the Asper Centre’s Immigration and Refugee Law student working group this year.

Former Asper Centre Constitutional Litigator-in-Residence John Norris Appointed to Federal Court

Posted on by Tal Schreier

 

John Norris, the Asper Centre’s former Constitutional Litigator-in-Residence in 2006 and Asper Centre Advisory Group member, who served as counsel for the Asper Centre in a number of our interventions, has been appointed a justice to the Federal Court of Canada.

A sole practitioner based in Toronto, he fills a new position created under An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act (S.C. 2010, c. 8).  An established trial and appellate lawyer, in criminal, constitutional and national security law, Norris was appointed in 2008 to the roster of Special Advocates for security certificate proceedings under the Immigration and Refugee Protection Act, and acted as Special Advocate in a lengthy and complex security certificate proceeding before the Federal Court.

Deeply committed to legal education, Norris has also been an adjunct professor at the Faculty of Law since 1996, teaching criminal law, evidence, constitutional law, national security law, and legal ethics courses.

Read the full announcement here.