REVISITING JURY INSTRUCTIONS ON RACIAL PREJUDICE TOWARDS INDIGENOUS PEOPLES IN CANADIAN CRIMINAL TRIALS

Abstract

This article examines the Supreme Court of Canada’s assumptions in Barton and Chouhan on racial bias in Canadian criminal jury trials. Jury research offers important insights related to the differential impact of jury instructions for racialized and Indigenous persons, and for accused and victims. If jurors cannot understand jury instructions, or if jury instructions, or victim or defendant race, do not predict sentencing or conviction outcomes, then we might have little confidence in reducing anti-Indigenous prejudice through jury instructions. Worse yet, if jury instructions prime, rather than suppress, prejudicial reasoning, then we may want to entirely rethink the use of specialized instructions for this purpose; our reforms might instead focus on jury diversification. I argue that the Canadian jury research casts doubt on the Supreme Court of Canada’s jurisprudence on a juror’s capacity to control racial bias against Indigenous persons in criminal trials.