“I’m not a lawyer.” That’s what both Gerald Butts, Prime Minister Trudeau’s former principal secretary and Michael Wernick, former Clerk of the Privy Council said to excuse the fact that both tried to obstruct justice for Prime Minister Justin Trudeau by applying improper (illegal?) pressure of former Attorney General Jody Wilson-Raybould in an effort to try to get her to interfere in the ongoing prosecution of SNC-Lavalin. I‘m not a lawyer, either, but that didn’t stop me, recently, from commenting on judicial matters. I was discussing illegal migrants but I said, “I am not confident that justice will take the course that I believe it should …[and I added that] … Very properly, Canadian judges place a heavy burden on government prosecutors who would deprive any individual of his or her liberty.“
Now I see a story in the Globe and Mail that gives me some cause for hope.
Sean Fine, the Good Grey Globe‘s legal affairs reporter says that “A federal ban on unexplained objections to potential jurors, enacted after a defence lawyer appeared to use the legal tactic to keep Indigenous people off a jury in a high-profile case, has been struck down by an Ontario judge. The ruling highlights the potential for chaos in jury trials across the country, now that the selection process has become an unsettled area of law … [because] … The Liberal government intended the ban to address perceived bias in jury selection after a Saskatchewan jury acquitted white farmer Gerald Stanley of second-degree murder last February in the shooting death of Colten Boushie, an Indigenous man, who had been on his property … [but] … The judge’s ruling this week was in response to an Indigenous defendant who argued that the seven-week-old law discriminated against him – the opposite of its stated purpose. By the judge’s own description, the ruling throws jury trials into uncertainty in the province, because several other Ontario judges have upheld the ban … [but, again] … the ruling could have wider implications. Although it does not apply directly to other provinces, jury verdicts nationwide could be on shaky ground if the Supreme Court ultimately rules against the jury process as set out in the new law.“
I have little doubt that, in the Boushie case, Gerald Stanley’s lawyer used his peremptory challenges, as they are called, to keep people who might sympathize with the victim, Colten Boushie out of the jury box, thereby making the jury more likely to acquit Mr Stanley, as the jurors ultimately did. I also suspect that the lawyer representing Dale King, an indigenous man accused of murder in Hamilton, the case upon which Justice Goodman just ruled, wants to keep people from the murder victim’s ‘community’ (he has a distinctively ethnic name) out of the jury box because he feels they might discriminate against his client. The judge appears to have agreed, as would I.
Sean Fine explains that “Objections to potential jurors, without a reason being given – known as peremptory challenges – have been around since the Magna Carta of 1215. They were seen as a way to give defendants confidence in the people who were judging them … [and] … Justice Andrew Goodman stressed that he still sees them that way. Ruling on a constitutional challenge by Dale King, who is accused of second-degree murder, he said Mr. King had been denied the right to participate in the selection of a representative jury … [saying, in an 81-page decision, that] … “In order to provide for a measure of protection against the discrimination of jurors, Parliament has abolished [Mr. King’s] ability to prevent discrimination against himself.”“
I am not especially concerned with the specifics of either the R v Stanley or R v King cases. I am, as Justice Goodman seems to be, concerned that when the crown, the government, the state, decides that it wants to deprive someone of their liberty that the deck is not stacked against the defendant. I believe that liberty s one of our most fundamental rights. I believe as I said earlier, that judges should “place a heavy burden on government prosecutors who would deprive any individual of his or her liberty.” I also believe that Bill C-75 which the Trudeau regime passed into law in 2018 in response to the Boushie case was ill-conceived because, as Justice Goodman said, a defendant is entitled to every possible measure of fairness, including in jury selection, when he is ““the individual whose liberty is at stake.”” The Trudeau government was virtue signalling, in Bill C75, trying to win votes for its First Nations agenda when it should have been considering legal fairness.
I think that most people who end up in court are there for pretty good reasons. I know that the police and prosecutors make mistakes, but, by and large, here in Canada, I think that most people end up in front of a judge and jury because something did happen and there is a case to be answered. But once in court the crown, the government has many advantages and the law needs to work for the defendant, the person “whose liberty is at stake” to ensure that whatever legal advantages are available are protected … peremptory challenges have been one, small but long-standing, traditional tool the defendant had, until Prime Minister Trudeau took it away in an attempt to buy a few indigenous votes.
Rights matter and I believe that ALL the important rights belong to the individual and they, mostly, protect the individual against collectives, including the biggest collective of all: the sate itself. Justice Andrew Goodman has made a decision that I hope will help to redress the balance between the often defenceless individual and the all too powerful state. What Justice Goodman has done, it seems to me, is to stand up for the rights of the individual, for your rights and my rights should we ever be unfortunate enough to have to defend ourselves ina court, against the power of the state. I believe that’s an important thing for a judge to do … but I’m not a lawyer.