Archive/File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-005-02
Last-Modified: 1997/01/28
Source: Department of Justice Canada

5.3.5 Random Selection of the Jury Pool

"Simple random selection" of prospective jurors from a
source list is the accepted practice in Canada for choosing
jurors. Simple random selection involves choosing a starting
place on a list at random and drawing every "nth" (e.g.,
every lOth) name from that list. It is assumed that if the
sample is sufficiently large and truly randomly drawn, it
(i.e., the jury pool) will be representative of the universe
(i.e., source list) from which it is chosen. However,
representativeness of the sample assumes that the
individuals on the source list are homogeneous with respect
to the relevant characteristic which is the object of the
sampling. The assumption for purposes of jury selection is
that none of the characteristics of the individuals on the
source list, such as ethnic origin, make any difference. In
other words, the assumption is that the community which is
to be represented by jury members is, for purposes of their
eligibility for jury duty, homogeneous.

It is clear, however, that this method of jury selection may
not adequately represent minorities with respect to equality
of opportunity for jury duty.<181> Simple random selection
would not account for the small size of minority
ethnocultural groups or possibly, depending on the structure
of the source list, their relative concentration in certain
residential areas. According to Fukurai, et al.,

     Traditional methods of jury selection, which are based
     on random sampling, are inadequate because minority and
     ethnic groups are unequally distributed within a
     jurisdiction. Random sampling therefore generates
     unrepresentative juror pools .... With simple random
     sampling, there is no guarantee that areas with a
     minority concentration will be samples, and therefore
     no guarantee that the list of potential jurors will
     reflect the ... composition [of the area sampled.]<182>

In addition to the spatial concentration problem, there is
the equally basic problem of the small size of most minority
groups. A technique known as stratified sampling, which
involves oversampling for small subgroups within the
population, could be used to overcome this problem. However,
stratified sampling requires that the sampling frame (source
list) from which the sample is drawn identifies the
characteristic which is being oversampled. If ethnic origin
is not identified on the source list, stratified sampling is
not an option. On the other hand, if source lists are
structured geographically, cluster sampling would be
possible and might provide a greater opportunity for members
of minority groups to be selected to serve on juries.

Provinces should explore more sophisticated methods of
sampling from source lists. The sampling procedure issue
must be addressed together with improved procedures for
preparing source lists. Such measures must not only ensure
that members of all groups are included, but also that the
source list is structured so that it provides a sampling
frame which facilitates on technical grounds a sampling
procedure which will maximize the probability of being
selected for members of all groups in the population.

5.3.6 Representativeness

The assumption embedded in the preceding sections is that
Canadian society is not culturally homogeneous with respect
to opportunity to serve on juries. The sources of jury
selection should be reasonably representative of the
community where the offence occurred, and the selection
procedure should not systematically exclude members of
minority groups in the community. The principle of equality
of opportunity for members of all groups to participate in
the determination of innocence or guilt in criminal cases is
important in a diverse, pluralistic society. It is essential
in promoting public confidence in the justice system as a
whole.<183>

According to both Etherington<184> and Pomerant,
representativeness should be achieved through improvements
to the out-of-court selection process. In Pomerant's words:

     It is submitted that the only practical way to
     implement the requirement [of representation] is to
     adopt the definition used in the United states and the
     second sense in which it is referred to by the Supreme
     Court of Canada. The sources of selection should be
     reasonably representative of the community where the
     offence is alleged to have been committed. The
     applicable selection procedures and the manner of their
     execution should not result in the exclusion or under-
     representation of significant minority groups in the
     community, and an effective remedy for inappropriate
     exclusions that do occur should be made available."
     <185>

Another approach to achieving representativeness in special
circumstances,  which does not take issue with Pomerant's
view, should also be mentioned. A recent report of the Royal
Commission on Criminal Justice in England suggests a special
procedure for certain exceptional circumstances where the
racial or ethnic factor is highly relevant, and where the
normal selection process has not yielded a jury which
includes minority group members. In cases in which the
ethnic or racial dimension is clear, for example, where a
member of a minority is accused of assaulting a member of a
hate group, a mechanism should be available to select
members of a particular ethnic community to serve on the
jury trying the case. In such a case, legal counsel could
seek the permission of the presiding judge to continue
drawing randomly from the available source list until the
desired number of minority group members were chosen. 86
This would not be an avenue open for normal cases of
assault, for instance, involving minority victims or
accused. It would only be available at the discretion of a
judge, in those situations where the interests of justice
would be served.

5.3.7 In-court Jury Selection

The members of the jury are selected from the
representatives in the jury pool who appear in court. Even
assuming that an improved selection process operating up to
this stage has provided the court with a pool of prospective
jurors representing all ethnocultural elements within the
affected community, there is the potential for bias during
stages of juror selection in the court. These issues relate
to challenges to the array, challenges for cause, and
peremptory challenges.

5.3.7.1 Challenge to the Array

The challenge to the array permitted under s.629-630 of the
Criminal Code allows counsel to challenge the adequacy of
the jury panel on the basis of fraud, wilful misconduct or
partiality on the part of the person charged with assembling
the panel. Jury panels or pools may not be representative of
the diversity of the community for reasons discussed above.
Challenges to the array because of absence of persons from
minority groups have been disallowed in Canada even when the
community from which the array was chosen was composed of a
large number of minority persons, because no impropriety
could be proved. <187> Both Petersen<188> and
Etherington<189> support Pomerant in the view that the
grounds for challenge to the array should be broadened to
allow for significant lack of representativeness of the
diversity of the affected community.

5.3.7.2 Peremptory Challenges

Peremptory challenges allow both Crown counsel and defence
lawyers to eliminate prospective jurors on the basis of an
initial and cursory assessment of their demeanour or visible
characteristics. There is concern that in using peremptory
challenges lawyers may apply stereotypical views on the
attitudes to minority groups.<190> The fear that the use of
peremptory challenges result in unreviewable exclusions of
minority persons from juries has led to several suggestions
for reform of the peremptory challenge including abolition
of the practice, reduction of the number of peremptory
challenges allowed to both sides, and allowing judicial
review of challenges.<191> Given the widespread support
within the legal profession for retaining peremptory
challenges,<192> Pomerant recommends the collection of
empirical data on the operation of peremptory challenges in
Canada in order to expose and remedy any improper use. <193>

5.3.7.3 Challenge for Cause

Section 638 of the Criminal Code gives prosecution and
defence lawyers an unlimited number of challenges to
prospective jurors in order to assure that jurors will be
fair and impartial. However, Canadian law, following the
British legal tradition, does not allow challenges for cause
on the basis of possible ethnic or racial bias.<194> One
empirical study on challenges for cause noted that the
increasing awareness of racism in Canadian society, and the
accompanying possibility that racist attitudes of jurors
could jeopardize the accused's right to a fair trial should
cause policy makers to reconsider the grounds for challenges
for cause.<195>

In support of expanding the grounds for challenges for cause
to include racial or ethnic bias, Pomerant states that
"taking more time to conduct a careful questioning of
prospective jurors in the selection process is an acceptable
price to pay in order to demonstrate to the public and the
parties that the system is concerned to ensure that
discrimination of the kind proscribed in the Charter is not
permitted to be a factor in the determination of guilt or
innocence." <196>

5.4 Summary

The devaluing of victims and witnesses presents a threat to
the integrity of the justice system and jeopardizes respect
for the rule of law and confidence in the justice system by
members of minority groups. With respect to participation in
the justice process as jurors, the absence of procedures
which assure that the members of affected minority
communities have anything less than a fair and equal chance
of being selected from a local area or region appropriate
with respect to the commission of an offence represents a
failure of the justice system to come to terms with the
multicultural reality of Canada. Failure on the part of the
justice system to proactively promote access to justice not
only represents a failure to promote accessibility per se,
it remains blind to the risks to social harmony and national
unity which can arise from perceived failure on the part of
minority groups to achieve justice in a society.

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