'Huge' pool of 750 people summoned as potential jurors for Colten Boushie case

The small Saskatchewan town of Battleford is about to be flooded with hundreds of people called to potentially serve as jurors in the high-profile trial of farmer Gerald Stanley.

Stanley, who is in his mid-fifties, is accused of second-degree murder in the death of 22-year-old Colten Boushie, a Cree man from the Red Pheasant First Nation reserve.

Twelve people will decide Stanley's fate in the weeks to come,based on the evidence fleshing outwhat happened in August 2016on the Stanleyfarm near Biggar.

But on Monday, Chief Justice Martel Popescul must first oversee the selection of the dozen jurors from a pool of 750 randomly chosen people. The average number typicallysummoned for a Battleford jury is400.

"It's a huge number," said Saskatoon-based defence attorney Brian Pfefferleof the Stanley pool. It's big enough that the jury empanelmentwill take place not in the Court of Queen's Bench courthouse but in theAlex Dillabough Centre, normally home to weddings and badminton games.

"I think it will be a long, hard day," said Pfefferle.

The sheriff's office is summoning the larger-than-normal jury rollfrom the Battleford Jury Boundary, atoweringswath of Saskatchewan land that's one of the biggest judicial boundaries in the province. It stretches from just north of Kindersley all the way to the border with the Northwest Territories.

Given the boundary's size, the Boushie family has certain expectations going into Monday, says the family's attorney.

"They hope, and they expect, that there will be a representative jury pool," said Toronto-based Chris Murphy, who will be joining about 15 of Boushie's relatives, including his mother Debbie Baptiste, to watch the trial from the public gallery.

From near and far

The Battleford Jury Boundary includes several sizeable population centres.

The closest one to Battleford just an eight-minute drive over the North Saskatchewan River is North Battleford, where 28 per cent of the population is Indigenous, according to figures from the 2016 census.

Further up the jury boundary, toward small northern villages, the demographic scale begins to sizeably shift.

In Beauval and La Loche, respectively, Indigenous people make up 82 per cent and 96 per cent of the population.

The problem, says Pfefferle, is that "those are often the communities where it becomes more difficult for them to attend court."

"Particularly northern jurors are going to have to find a way to get [there]," Pfefferle said. "Socio-economic issues can lead to people not being available. Health issues. It's anyone's guess."

But Glen Luther, a criminal law professor at the University of Saskatchewan, says it would be wrong to suggest that, with no Indigenous peopleon the jury, "therewon't be a fair hearing of the evidence."

A recent Supreme Court of Canada ruling said as much.

Clifford Kokopenace, an Indigenous man from the northwestern Ontario reserve of Grassy Narrows First Nation, was charged with second-degree murder in the stabbing death of his friend. A jury from the District of Kenora convicted him of a lesser offence of manslaughter.

• Aboriginal people not deliberately excluded from juries, Crown says

• Supreme Court says conviction stands despite lack of First Nations people in jury pool

Kokopenace appealed his conviction based on the grounds that problems getting Indigenous on-reserve residents on hisjury roll raised the question of whether the resulting jury was representative.

The court overturned his prior-won appeal, writing that "representativeness is not about targeting particular groups for inclusion on the jury roll."

But Murphy says the decision did highlight that "underrepresentation of aboriginal on-reserve residents in the jury system is a serious policy concern that merits attention."

Past jury concerns

In Saskatchewan, "there has been a history of examples that have raised concerns," said Luther.

In 1995, an all-white jury found two men guilty of manslaughter in the death of Pamela George, a mother of two from Sakimay First Nation who was found face down in a ditch west of Regina. The accused were originally charged with first-degree murder.

Blaine Favel, then-chief of the Federation of Sovereign Indigenous First Nations (FSIN), called the verdict "one of the most unjust in Saskatchewan judicial history."

Eight years later, an all-white jury acquitted two men in a case involving the sexual assault of a 12-year-old Indigenous girl in Tisdale.

The men admitted topickingup the girl on a Sunday, givingher five beer and then engagingin sexual activity with her outside the truck.

Changes to jury selection process

The Tisdalecase was under fire for its racially unbalanced jury and prompted the Saskatchewan government to review its jury selection process.

The province was alsomoved to do so by a commission co-founded with FSIN in 2002. Among its goals was "increasing the involvement of aboriginal citizens and organizations in justice processes."

One of the commission's recommendations was for child care to be provided to people serving on a jury.

The Ministry of Justice didn't go that far, but in 2005 the daily fee paid to criminal trial jurors was doubled to $80.

The government also began compensating travelling jurors for their mileage or their spending on public transportation if considered "reasonable," as the province's jury regulations putit.

But Murphy says those fees don't apply to people summoned to travel more than halfway down the province just to find out whether or not they'll make it on the jury.

"You receive a jury summons and you live on a reserve that's near the N.W.T. border? You cannot literally drive yourself there," he said.

'Least biased database available'

A spokesperson for the Ministry of Justice said the department is committed to "a fair justice system that upholds the law."

In addition to the new and increased fees, the ministry says it selects jury pools from all parts of a jury boundary, not just the communities near the trial courthouse.

It does so using provincial health card numbers, which everyone in the province, including Indigenous people, possesses.

• Filling juries in small N.W.T. communities a growing problem

"This has been the system used to select jurors since 1983," said the spokesperson, adding that the health records database is "the least biased database available in this province."

Before 1983, sheriffsused documents like assessment rolls to create annual lists of 150 potential jurors living within 32 kilometres of their judicial centre. They could also use their own discretion to choose people outside that boundary.

Lawyers can nix jury picks

Given the large pool of 750 people selected for the Stanley trial, "I think the registrar and the sheriff in Battleford is concerned to have a representative jury, or try too, anyway," said Luther.

But what ultimately happens Monday morning startingat 10 a.m. CST is in the hands of the Crown and defence attorneys.

Each lawyer will be able to nix 12 of his opponent's picks for the jury, under what's called a peremptory challenge.

"One would expect the defence to challenge anybody that's visibly aboriginal," said Luther, adding that it is legally acceptable for Stanley's Saskatoon-based attorney, Scott Spencer, to do so.

"He has, according to the court and according to the Criminal Code, the right to make those choices and he doesn't have to explain himself. That's the meaning of the word peremptory."

Luther predicts Burgewill seek a balanced jury instead of challenging any white candidates.

"The likelihood is that thenumber of non-aboriginal people in the jurypool is going to greatly outnumber the aboriginal people,so he's really not in a position to just start challenging every white person."

Spencer declined to comment for this article, citing his preparation for the trial, which is expected to officially get underway, jury in place, on Tuesday.

• Coming trial 'is not a referendum on racism,' says lawyer for man accused of killingBoushie

On Friday, however, he issued a statement seeking to stub out racial tension as a factor in the trial. He said it will be "very difficult" to have a fair trial if "jurors feel that they have to pick a side."

Crown attorney William Burge also declined to comment for this story.

Their peers in the legal community are eager to watch one of the province's most-anticipated criminal trials finally unfold.

Said Luther: "I wish I could simply go and be in Battleford for thoseweeks."