Agora Journal Volume 11, 2020
Racism on the Canadian Jury Panel: A Deeper Look into Aboriginal Bias
Tiffany Tunke

Research that tracks the treatment of nonwhite individuals within the criminal justice
system has raised alarming reason for concern. More specifically, research showing prejudice
within the jury selection process and internalized biases from the jury panel should be held at
higher esteem. Members of the jury represent the People in a way that the members of the
judicial system cannot. Diversity on the jury serves to display the true representative nature of
the populous. Racial diversity can affect what the jury sees, and how they interpret it. Society as
a whole benefit when every juror is conscious of the role they play in preserving an effective
judicial system.
Canada and the United States differ in their legal particulars, but the general operation
remains the same. A major difference lies in the fact that Canadian juries are formed on the
basis of criminal cases, but rarely for less serious and civil suits. However, Americans have petit
and grand juries that operate similarly to Canadian criminal court cases. The literature review of
American cases of racism usually mention the Batson trial (1986). As this is a revolutionary
case, expansion seems necessary.

Batson v. Kentucky
James Kirkland Batson was convicted of burglary in Kentucky in 1986 (Batson v.
Kentucky, 1986). During the peremptory process – which involves potential juror exclusion
without reason or cause – the prosecutor Joe Guttmann challenged six individuals – four of

whom were black – and the final jury was composed of 12 white jurors. Kirkland was
sentenced, despite the efforts of the defense lawyer, who moved to discharge the entire jury
panel. Leong (2010) “…addresses the concern that, in the prevailing paradigm of Batson
litigation, virtually no factual investigation takes place” (p. 1573). The criminal defense lawyer
1

on his case continued his appeal to the United States Supreme Court, which requested he prove
systematic exclusion in his community. After a lengthy process, the Court ruled in Batson’s
favor and inevitably lowered the burden of proof that a defendant must meet to declare
discrimination. The Court also held that the Equal Protection Clause guarantees the defendant
that the State will not exclude members of his race from the jury. Furthermore, a “state’s
purposeful or deliberate denial to Negroes on account of race of participation as jurors in the

administration of justice violates the Equal Protection Clause” (Powell, 1986, n.p.). If racially
diverse juries are truly essential to fairness, then prosecutors should be extending their mandates
above and beyond Batson, instead of simply adhering to the minimal requirements (Taslitz,
2012).

United States
The sixth amendment to the United States Constitution guarantees defendants the right to
a fair trial by an impartial jury (U.S. Const. amend. VI). The pool from which the members are
drawn must be representative of the community, but the challenging task is the selection process
of the interviews. “Because attorneys are expected to win cases, however, their motivation to
select unbiased jurors is cause for concern” (Norton, Sommers & Brauner, 2007, p. 467).
As stated earlier, protecting clients and receiving the best possible outcome for them is

driving the decisions in the jury challenge process. After all, it has been established that a
“…methodologically diverse body of research indicates that racial and ethnic bias against
nonwhite defendants continues to affect criminal case outcomes” (Lynch & Haney, 2011, p. 69).
Although many legal proceedings in Canada operate differently than their southern neighbor, a
pattern of systematic discrimination is still prevalent in Canadian society.

Canada
In Canada, race relations between White and Indigenous people “have been characterized
by years of subordination and oppression” (McManus, Maeder & Yamamoto, 2018, p. 284).
One major emphasis of this was the attempt by the Canadian settler state and Christian churches
2

to remove Indigenous rights to land, language, spirituality and governance. As such, Indigenous
children were taken from their homes in a process known as the ‘60s Scoop’ (MacDonald &
Gillis, 2017, p. 36). The authors of this article also believe that this process of systematic
removal is directly linked to the extremely high rates of Indigenous imprisonment in our
Canadian Justice System. Statistics Canada (2017) states that Aboriginal adults make up the
greatest proportion of admissions to custody in Manitoba and Saskatchewan – at 74% and 76%

respectively. A recent trip to the Bowden Institution in Alberta was informative about the
statistics at their prison; the coordination manager stated that roughly 80% of their inmates are
Status First Nations.

Canadian Juries
In Canada, up to sixty thousand Canadians serve on jury panels each year (Law
Commission of Canada, 2001). A guarantee of the justice system is the right have an impartial
trial by a jury of our peers. Furthermore, section 11(d) of the Charter guarantees that anyone
charged with an offense is presumed innocent until guilt can be proven (Canadian Charter of
Rights and Freedoms, 1982). The Criminal Code conforms to the standards in the Charter of
Rights and Freedoms.
Peremptory challenge is a law written in the criminal code as a right of attorneys to

exempt members of the random jury selection process with a valid and lawful reason when
determining their competency. Sometimes, this challenge process is referred to as ‘voir dire’.
The idea behind this challenge is to safeguard the judicial process and ensure fairness in the legal
proceedings. This right of challenge has limitations by the criminal code of wherever the trial is
to take place. The Canadian Criminal code states that twenty challenges are allotted for high
treason, twelve for a maximum penalty of over five years, and four challenges with a penalty less
than five years. One can extend these challenges (by one) if the judge orders additional jurors on

the stand (Criminal Code, 1985).
To believe that in Canada, any citizen of legal age may be selected and considered for
jury duty, is a bit misleading. In fact, the legal system requires that random names be selected
from the Provincial licensing database, within a certain proximity of the courthouse.
3

Unfortunately, this excludes individuals not fortunate enough to have a form of legal government
identification, or those persons residing in rural communities outside the scope of the courthouse.
Another cause for underrepresentation is the disqualification of languages outside of the official
French and English tongues used in courtrooms.
Oftentimes, these processes exclude a large portion of the Aboriginal population. This is
unsurprising given the unique history of race relations in Canada, which saw the gross
mistreatment of Indigenous peoples (McManus, Maeder & Yamaoto, 2018). Canada has
traditionally exempted Indigenous languages from jury service (Israel, 2003). Very little
attention has been given to the potential impact these practices have had on Native American
people (Israel, 2003), and the problems that occur in the challenge process have been
considerably underplayed. Although the provincial governments designate the laws regarding
administration of justice, the federal level deals with Indigenous peoples and the lands reserved
for them. In British Columbia for example, the Jury Act of 1996 does not specify how the jury
panel should be selected, and the sheriff holds discretion in determining the selection process
(Israel, 2003). This process results in uninformed selection that is not at all random. In Alberta,
the sheriff randomly selects the potential jurors, but is not required to ensure the list supplied
contains a fair representativeness of the community. Even if the jury selection list were to be
compiled from postal codes, Indian Crown reserves remain excluded from the scope of selection,
as most courts reside outside Indigenous communities. In the Northwest Territories, for
example, the list is normally drawn from within thirty kilometers from the court (Israel, 2003).
Such exclusions may negate the right to a fair and impartial trial made up of a representation of
the community.
Attending the selection process is an obligatory part of the selection process. It allows an
individual to exercise their legal right to aid in the outcome of a trial by peers. There are a
number of reasons that an individual may be excused from this right during the selection process.
It is written in the legal code that the prosecutor or defence council may excuse a potential juror

for valid reasons (Criminal Code). However, as the wealth of research in the area of racial jury
selection shows, that law is not always the canon of practice.
Schuller, Erentzen, Vo and Li (2015) write that after the prospective juror responds to the
question, “…the task of the two triers is to determine whether that individual will be accepted as
4

a juror” (p. 408). Canadian jurors are put through a tried and tested method that must involve the
unanimous approval of the triers’, defense and crown in order to be accepted for the jury position
(Figure 1. p. 409). If any one of these three makes a challenge, the juror is excused from the
trial. The question asked during this process is some variant of whether or not the potential juror
believes that they would be able to judge the evidence prevented without prejudice or bias, and
the race of the individual is also mentioned. Additionally, the defendant is always present during

this challenge procedure. This process may interfere with the potential juror’s ability to be open
and honest. Lawyers on both sides of a case want the best possible outcome for their clients.
Therefore, they are prone to challenge potential jurors that they feel might not give them a
desired outcome.
Generally, jurors do not know why they have been struck, which side struck them, and
are unaware of the larger peremptory strike pattern through which discrimination sometimes
becomes clear (Leong, 2010). Leong (2010) states that “peremptory strikes based on stereotypes
do violence to individual identity” (p. 1575). A venire person struck by race suffers a personal
and unjust humiliation. Furthermore, exclusion from the jury also represents exclusion of group
membership, which shatters the opinion that the jury represents the voice of all the people
(Taslitz, 2012).
The use of unrestricted peremptory challenges was in place for almost 200 years (Norton,
Sommers & Brauner, 2007). Many judges and scholars have advocated for the broad-spectrum

abolition of peremptory challenges all together (Hoffamn, 1997). They feel that this inhibits the
representativeness of the general population and does more harm outweighs the benefits.
Further, if the challenge process actually achieves what it intends to, we would not still be seeing
this much prejudice on the jury panel. However, Sommers (2006) argues “…that the voir dire is
more than just a method for identifying unsuitable jurors”, but an opportunity to socialize
citizens regarding their role as acting officers of the courtroom (p. 601). Thinking practically,
even if voir dire is unable to identify biases in jurors, is reminds them that there is importance on

rendering judgements free of prejudice.

Canadian Studies
5

Thirteen hundred and ninety-two prospective jurors challenged by the defense from
Ontario court cases were used as participants for this Schuller et al. (2015) study. In every case,
the wording of the challenge question involved the participants’ race (as black, East Indian,
person of color or Vietnamese). A table showing participant’s responses was analyzed for selfassessment of their own potential biases. Most of the time, assessments of an unbiased nature
were given. Sensibly, potential jurors were less likely to feel they could judge without bias when

the crime was violent. The researchers point out that while these results are heartening, there is
no actual evidence that individuals who self-assess as impartial are indeed unbiased. The real
challenge is the individual’s ability to accurately gauge how their prejudice might affect their
decision-making. Taslitz (2012) raises the interesting observation that “a color-blind man cannot
see purple” (p. 1702) but through experience, and not merely biology we are affected by what we
see.
A 2018 study conducted by McManus, Maeder and Yamamoto sought to understand
whether participants would discriminate against Black or Indigenous defendants and whether
racially charged media affects juror decision making (p. 274). Two hundred ten Canadian juryeligible participants in this study were recruited via online forum, 27 of which were excluded
based on incorrect attention checks. A 3 (Defendant race: White, Black or Indigenous) x 3
(Media article: Specific, General, Neutral) between-subjects design was used. The participants
were randomly assigned to an article from the Canadian Press that they are asked to review as a
distracter task. Following the article, they are asked to play the role of juror and read one of
three transcripts where the race of the defendant was manipulated. The conditions were
manipulated by means of stereotypical names and photographs. The juror questionnaire asked
them to render a verdict (guilty or not guilty) and a recommendation for punishment (none to
maximum punishment allowed by law). The study found that the type of article read affected
mock jurors’ sentencing decisions for Black and Indigenous defendants. Furthermore, for the
Indigenous defendant, any mention of race in media (general or specific) resulted in harsher
recommended sentences relative to no mention of race.

Proposed Method

6

As discussed above, it is established that bias in the jury selection process is an
unresolved concern of the American and Canadian judicial systems. Looking past the problems
in the jury selection procedure, an internalized prejudice exists on the jury panel. Past research
has focused on racial biases, but very little on the Native American peoples specifically. For
hundreds of years, stereotypes and prejudice around this demographic has remained prevalent. A
mock jury study provides for a realistic examination of individual interpretations of evidence that

closely mirrors a real life courtroom setting. In the following proposed study, it is hypothesized
that a prejudiced view of Aboriginals in the courtroom setting will be revealed.

Participants
The proposed study will include five hundred participants, obtained outside of a college
or university setting. Students will not be rejected or discouraged from participation in this
study, but a more representative sample of a typical jury is necessary in assuring validity in a
courtroom setting. The sample will include an equal number of men and women (250 each) of
legal voting age. Ideally, the sample will also include relatively equal distribution across
different ethnicities (100 Caucasian, 100 Black or African American, 100 East Indian, 100
Native American, and 100 East Asian). To recruit participants, a large venue such as a shopping
center in a large metropolis (such as Edmonton, Alberta) would be an ideal location to collect
diverse responses. Individuals will be approached and asked to participate in an anonymous
fifteen-to-twenty-minute study in order to be eligible to enter a draw to win $500. Demographics
that include participants’ age, gender and ethnicity will be collected in order to ensure purposive
sampling for this study.

Design
This study involves random assignment into one of two groups. Group 1 – the control
group – will listen to an audio recording of a trial (Dependent Variable) that has been created for
the purposes of the study. Group 2 will be exposed to the same audio tape as Group 1 but will be
privy to additional information about the suspects’ ethnicity and background information
7

(Independent Variable). The physical description of the suspect(s) will not be provided, and
their voice will never be heard.

Materials
The materials required for this study include audio recording equipment and paper scripts
in order to make the audio tape. A clip board, headphones, and pen are needed for the
participants use during the study process. An informed consent sheet which outlines the ethical
protocol related to this study, along with any written ethical procedures relevant to the nature of
the research experiment. Additionally, scrap paper and a closed box with a hole cut in the top for
participants names when eligible into the draw.

Procedure
After the individual has agreed to participate in the study – but before the study
commences – each participant will be required to fill out a form that entails his or her age,
gender, and ethnicity to ensure purposive sampling. Afterwards, they will be informed of the
details of the study, informed of their ethical rights, and a consent form will be signed (which the
participants will receive a copy of). As previously stated, an audio recording of a trial will be
created for the purposes of this study. This mock recording will simulate courtroom settings and
include the voices of a Judge, Prosecuting Lawyer, Defense Lawyer, and an Eyewitness. Note
that the defendant is never heard. The description is as follows:
A jewelry storeowner (eyewitness)–referred to by the name of Mr. Smith–receives a call
from his security company notifying him that the back entrance alarm of his store has been
tripped due to entry. Living only a block away, Mr. Smith arrives at the location before the local
police. Inside (a meter away from the back entrance), he finds an unconscious Caucasian man
bleeding from a head wound, and another man – also wounded from struggle – standing beside
him. The conscious man (referred to by the name of Kelly) asserts that he was walking through
the alley and witnessed the now unconscious man entering the premises. Kelly approached the
8

other man to tell him that he was about to call the police when a struggle broke out between
them. The police arrive, and arrest both men and escort them to the hospital for medical
attention. After the unconscious man (referred to as Justin) awakens, he tells the police the same
story, but proclaims them that he was the one who witnessed Kelly break-in and enter the
premises. The audio recording depicts Mr. Smith being sworn-in and questioned by the
prosecution and defence about his recollection of events. In the process of the break-in, a very

expensive stained-glass door (valued at over $5000) was destroyed and Mr. Smith is seeking
damages from Kelly, whom he suspects is the most likely suspect. After both sides question Mr.
Smith, the audio-recording ends in a recess so the jury can deliberate and come to a decision.
After the audio recording ends, the participants in Group 1 will receive a questionnaire
that asks them to assume the position of juror and render a verdict (guilty or not guilty) against
Kelly. They are also asked to indicate their confidence level on a five-point scale (0-not
confident at all/5—absolutely confident). Group 2 will be given the same questionnaire, but the
top of their information sheet will include the first and last name of the defendant (Kelly
Crowshoe), their ethnicity (First Nations), and some background information (resides on a local
reserve, never been arrested). After completing the questionnaire, participants will be debriefed
about the purpose of the study, thanked for their participation, and entered into the draw. The
draw information consists of a first name and phone number to further ensure confidentiality.
After the data has been collected and the draw is made, all entry forms will be shredded and
recycled.

Predicted Results
The predicted result of this proposed study will illuminate prejudice and bias between the
two groups. The audiotape was designed to have no affirmative verdict. For Group 1, the results
should be split fifty/fifty between guilty and non-guilty verdicts, considering the suspect could

have been either man and there is no marked differences between the two. It is suspected that
Group 2, privy to more information, will have a higher guilty verdict rate. As stated in the
literature review, there has been a long-standing bias against aboriginal individuals in the
Canadian legal system, and unfortunately, most of the country. However, it is worth noting that
9

should the guilty verdicts in Group 2 be less than that of Group 1, an apparent bias would still be
present within the mock jurors. A true blind study comparison would ideally have mirrored
results to the non-blind sample in order to implicate an unbiased study.

Implications and Conclusions

Taken together, the literature review and the proposed current study raise imperative
questions about our judicial system and whether the process can ever be made racially fair. If a
juror seems impartial enough to be placed on the panel, past research suggests that a bias still
exists. It would appear that sentencing is not merely enforced on the merits of culpability alone.
Race, socio-economic class, gender, and other extralegal factors that would normally be
inadmissible are affecting the outcome of many court cases. The line between facts and mere
inferences is very thin and not often clear. Additionally, these studies serve to highlight

important differences in cognitive and emotional processes in relation to present-day racism. In
countries like the United States that enact the death penalty, maximum sentencing serves to
intensify this already problematic decision-making process. Although some countries have
enacted laws to eradicate racism in the courtrooms, the actual matter is a much broader and more
elusive concern. The implication of this study will further the growing knowledge that the
Aboriginal communities are seriously underrepresented and impartially viewed in North
America. Hopefully, this proposal with inspire further research and implement a positive change
in the way Native Americans are viewed and treated throughout the judicial systems.

10

References
Batson v. Kentucky, 476 U.S. 79 (1986). Retrieved from https://supreme.justia.com/cases/federal
/us/476/79/
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule
B to the Canada Act 1982(UK), c 11.
Criminal Code, R.S.C., C-46 (1985). Retrieved from http://laws.justice.gc.ca/en/C-46/index.html
Hoffman, M. B. (1997). Peremptory challenges should be abolished: A trial judge’s perspective.
University of Chicago Law Review, 64(3), 809-872.
Israel, M. (2003). The underrepresentation of Indigenous peoples on Canadian jury panels. Law
& Policy, 25(1), 37-62.
Law Commission of Canada (2001). Community Participation in Criminal Jury Trials and
Restorative Justice Programs. Ottawa: Law Commission of Canada.
Leong, N. (2010). Civilizing Batson. Iowa Law Review, 97, 1561-1583.
MacDonald, D. & Gillis, J. (2017). Sovereignty, indigeneity, and biopower: The carceral
trajectories of Canada’s forced removals of children and the contemporary prison system.
Sites: A Journal of Social Anthropology & Cultural Studies, 14(1), 35-55.
McManus, L., Maeder, E. & Yamamoto, S. (2018). The role of defendant race and racially
charged media in Canadian mock juror decision making. Canadian Journal of
Criminology & Criminal Justice, 60(2), 266-295.
Powell, J. (May 1, 1986). Excerpts from decisions on race and jury panels. New York Times.
Retrieved December 7, 2018.
Schuller, R. A., Erentzen, C., Vo, A. & Li, D. (2015). Challenge for cause: Bias screening
procedures and their application in a Canadian Courtroom. American Psychological
Association, 21(4), 407-419.

11

Sommers, S. R. (2006). On racial diversity and group decision making: Identifying multiple
effects of racial composition on jury deliberations. Journal of Personality and Social
Psychology, 90(4), 597-612.
Statistics Canada. (2017). Adult and youth correctional statistics in Canada 2016/2017.
Retrieved from https://www150.statcan.gc.ca/n1/pub/85-002-x/2018001/article/54972eng.htm
Taslitz, A. E. (2012). The people’s peremptory challenge and Batson: Aiding the people’s voice
and vision through the “representative” jury. Iowa Law Review, 97, 1675-1712.
U.S. Const. amend. VI.

12