3. Should Juries Be "Representative" and How?

In the session on the role judges we spoke of the importance of “embodying justice.” Canadian society rests much of its adherence to criminal justice on impartial, unbiased, and, importantly, individual human judgement based on prolonged experience with the values shared by the community. Where the judge stands as the de facto depositary of this public trust, the Charter provides in Section 11 that an accused person facing five years of imprisonment or more may elect this embodied justice to expand to a jury of twelve individuals. The jury shifts the metaphor from a single, professionally trained member of the judicial elite to twelve lay persons randomly selected. As a symbol, the jury has potent Enlightenment era origins: politically, it is the representation of a criminal justice rendered by The People, not the elite. It is the King’s handing down powers long abused for the protection of the greater good in liberal and democratic society. What is more, jurors may be closer to the community's sense of fairness. A verdict pronounced by one’s peers, in sum, is one vested with the legitimacy (1) of human judgement soundly committed to impartiality and absence of bias; (2) of norms and judgement derived from a group substantial enough (twelve) to reflect, democratically, the values shared throughout the community; and (3) of a judicial process whose fairness is safeguarded by the population more generally. It is a protection against possible abuses committed by a judiciary verging towards authoritarianism and, at the same time, the symbol of a justice at the height and measure of its own community.

A recurrent theme throughout this course is the Durkheimian overtones shared across the many symbols of Canadian criminal justice – the fact that in many instances the rules of the criminal system serve to guard appearances of justice. More than an absolute guarantee against injustice, juries primarily stand as a legitimizing mark for the infliction of hard treatment. A common problem inherent to the demands of a lay jury, however, is the unprofessional nature of the work carried out: the complicated set of facts and legal principles characterizing today’s legal system (as opposed, say, to the thinner common law and simpler society of a few centuries ago) frequently leads to poor performance. In addition, a number of problems plague contemporary juries, most notably the ubiquity of communication technologies and the temptation of checking facts online. A number of jurisdictions have sought to reach a balance between popular will as represented by juries one the one hand, and professionalism as represented by judges on the other hand, establishing a form of jury whose verdict is closely accompanied by the work of a judge. A form of power exercised more democratically, juries thus also present the risk of a justice unsettled by lack of rigour, emotional influence and vulnerability to the spectacle of crime more generally.

Legally the main risk is one of bias. It is the risk of a decision arrived at based on considerations other than the facts and applicable law, corroded by preconceptions intolerable to a principled justice system. This risk is particularly acute in cases involving minorities. Where one may prefer to be judged by one’s peers and according to norms and values one is accustomed to, the jury system may prove to have just the reverse effect in such circumstances. Perceptions entertained in any given community as to any (stigmatized) minority risk forming a common blind spot across jury members, distorting the evidence presented (this theme has been at the center of heated societal debate around cases such as that of Colten Boushie in Canada more recently, or of O.J. Simpson in the United States in the past decades). The Parks case illustrates this reality, recognizing that racial bias in certain cases may indeed influence the outcome of the trial. Legally the case law has developed a presumption to the effect that juries should be considered impartial. This presumption stems from the juror’s oath and many other precautions featured in the trial process, such as explicit warnings to jury members of the risk of bias and of the constant effort consequently demanded. As part of this process, the Parks case focuses on the right to pose questions to potential jury members in order to assess their potential partiality. The case recognized the right to pose such a question where there may exist a realistic possibility that one or more prospective jurors would, because of racial prejudice, not be impartial. In a case where the right to pose such a question is violated, this decision specifies that evidence must be furnished detailing the extent of racism towards the minority at stake in the region in question. Surveys were provided demonstrating this phenomenon, as well as an important amount of case law from the United States dealing with this issue.

Interestingly the judge comments on the presumption against jury bias in the following manner: “There is a longstanding debate about the effectiveness of these trial safeguards. That debate is part of the wider dispute concerning the effectiveness of the jury system as an adjudicative process. Our system requires that I accept that the jury system is effective, and that the safeguards are effective, […].” The Parks decision constitutes a subtle reading and recognition of the social reality behind the law, openly recognizing that perceptions based on racial bias are particularly influential in the decision-making process because they tend to filter the information provided to the decision-maker. This decision can be contrasted with the more recent Kokopenace case, the tone of which seems less sensitive to this issue. In this decision the Supreme Court refused to recognize, in the case of an accused person belonging to a minority group, a right to be tried by a jury composed of a minimal number of members of this very group. Instead the Court specified that the right to be tried by a “representative” jury under sections 7 and 11 of the Charter only guarantee the composition of a jury selected randomly from the greater public in the district in question. In its reasons, the Court specified that composing a jury representative of the accused’s minority would be unduly cumbersome and that the modalities of the law already reflect a spirit chiefly concerned with the representativeness of the Canadian public at large, with many provisions making for a jury seldom representative of any minority group in any given district. The majority, under Justice Moldaver, spends little ink on the social problems engendered by bias in jury trials, and recurrently highlights the practical difficulties involved in the guaranteeing of such a right by the Charter. One may question, however, whether a jury representative of a biased society should be truly be considered “representative” – after all the very spirit of the jury is the protection offered by the judgement of one’s “peers” against arbitrariness. 

The Parks, Kokopenace and Find cases all touch on the challenge for cause process. Under Section 638(1) Cr. C. parties may challenge jury composition for motives such as: that jury a jury member is partial or biased, was convicted of an offence, does not reside in Canada, is physically unable to perform his or her duties, or does not speak the official language employed in the proceedings. In bias cases the Find decision states that establishing a realistic potential for juror partiality generally requires satisfying the court on two matters:  (1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision. The bias must be sufficiently pervasive in the community to raise the possibility that it may be harboured by members of a jury pool, and will normally be evidenced by supplying studies and statistics as exemplified in the Parks decision. Ultimately, the decision to allow or deny an application to challenge for cause falls to the discretion of the trial judge. If in doubt, the judge should err on the side of permitting challenges. The Find decision adds that strong views about a serious offence do not ordinarily indicate bias. Here the defence had sought to protect against bias triggered by accusations of multiple sexual aggressions committed on minor persons aged between six and twelve years old. This judgement illustrates that Charter protections are not to be stretched merely because of the taboo character of the acts prosecuted. Indeed, recognizing that such crimes in and of themselves risk overturning the presumption of impartiality may undermine public trust in the judicial system. 

Finally, the Davey case illustrates the fact that parties are allowed to seek information available publicly on proposed jury members. In this case the crown had asked information to the police department directly, thus accessing information normally not available publicly. For the purpose of exercising its discretion in the peremptory challenge process, the Crown is permitted to ask the opinion of someone who is part of the prosecution team, or to consult with those assisting the prosecution, including individual police officers, regarding concerns relating to partiality, eligibility, or suitability of any prospective juror. This right also applies to defence, illustrating the meticulous and highly strategic process that is jury selection. 

Class preparation:
John Morgan, The Jury, 1861

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