Iacobucci: Peremptory Challenges to Discriminate Against Indigenous on Juries Should be Prohibited

Senior counsel and former Justice of the Supreme Court of Canada The Hon. Frank Iacobucci has told The Lawyer’s Daily the use of peremptory challenges to discriminate against Indigenous representation on juries should be prohibited.

Frank’s comments came after Ottawa heard “renewed calls from the NDP, legal experts and others to abolish peremptory jury challenges because such jury selection tools continue to be misused to exclude Indigenous people from juries,” The Lawyer’s Daily reported.

But the federal Justice Minister Jody Wilson-Raybould said she would consider Frank’s alternative to the abolition of peremptory challenges altogether in her broader review of the criminal justice system.

She would consider Frank’s 2013 advice to Ontario to consider asking Ottawa, through a change to the Criminal Code, to empower trial judges “to supervise the exercise of peremptory challenges and to enable judges to disallow their apparent use to discriminate against Indigenous people.”

“I remain of the view that the use of peremptory challenges to discriminate against Indigenous people representation on the juries should be prohibited,” Frank told The Lawyer’s Daily.

“The precedent for this is in the United States where they did this by case law.

“You leave it to the judge. You can use your peremptory challenge, but if the judge is of the view that there is exercising of the challenge to, in effect, discriminate against an individual racially then it’s disallowed.”

The Lawyer’s Daily story also mentioned Frank’s “First Nations Representation on Ontario Juries” report, in which he discusses this issue.

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