Bill Graveland, Canadian Press
Published December 30, 2018 at 10:14 EST.
KALGARIA – Legal experts say that the proposed changes to the Criminal Code after a loud justification for the death penalty of a native man are short-sighted.
The main changes in the federal bill, which passed the third reading, are connected with imperative problems in the selection of the jury and the use of preliminary requests. Imperative problems allow lawyers to remove a potential juror without giving a reason.
A lawyer from Calgary, Balfour Der, who had worked for both a prosecutor and a lawyer for 38 years, said the proposed changes are a reaction of the knee jerk partly to the acquittal of a completely white jury farmer from Saskatchewan during 22-year-old Cree man.
“This is the government’s response to meeting the interests of the group that may have complained after this,” he said in a recent interview.
“I cannot imagine anything less useful in selecting jurors from both sides than not having peremptory trials. You are not just looking for a jury of your colleagues, but you are looking for an impartial jury. ”
During the jury selection process for the trial of Gerald Stanley, prominent jurors were released. The farmer said that he accidentally shot Kolten Bashi in the back of his head when a group of young people from the indigenous population went to Stanley farm near Biggar, Sask, in August 2016. He was found not guilty of second-degree murder in February.
The verdict caused a negative reaction throughout the country. The Bashi family, scholars and politicians said that acquittal emphasized systemic racism in the justice system and called for change, especially the choice of the jury.
Federal Justice Minister Jody Wilson-Raybould agreed. She said that troubleshooting would allow the jury to be more representative of the Canadian population.
“Our criminal justice system must be fair, just and fair for all Canadians,” Wilson-Reybould then said.
Lawyers will still have the right to challenge the interests of a potential juror in a case, but the law will allow the judge to make a decision.
Der, the author of the jury law textbook, said banning imperative trials would mean that you can “get stuck with the first 12 people who say they are ready, willing, and can be jurors.
"I do not know how this will lead to the fact that the jury will accept more people from among the first nations."
Lisa Silver, a law professor at the University of Calgary, who appeared before a standing committee of parliament that was considering the bill, said the Stanley verdict was the result of several factors.
“Removing unconditional problems is not a complete answer,” said Silver. "Some defense lawyers suggest that they used imperative calls when they had a client from among the indigenous population, and this is beneficial to them."
Attorney Silver, Der and Calgary Alain Hepner said that the best solution would be to change the way that the jury was selected. This list is currently derived from voter registration, driver’s license or renewal of identity cards.
“Aboriginal names are easy to recognize,” Hepner said. "These names are obvious, so let the jury, who are their peers."
The proposed legislation will also limit preliminary investigations only to crimes involving life imprisonment. Requests are hearings to determine if there is enough evidence to stand trial.
This change is due to the 2016 Supreme Court decision, which limits the time required for a criminal case to be brought to court before it is considered unreasonably deferred. The so-called ruling of Jordan states that cases of provincial courts must be considered within 18 months, and cases in higher courts within 30 months.
Silver said that preliminary hearings allow lawyers to weigh the brunt of the case and may lead to early admission of guilt.
“The preliminary was a legislative shield against the power of the state,” said Silver.
The hearings don't take long, Der said.
“Preliminary investigations do not cause delays. In any case, they can speed up a real trial, because both parties can see witnesses, listen to witnesses, find out what the problem is, not the problem. ”