The Nizkor Project: Remembering the Holocaust (Shoah)

Ethnocultural Groups
The Justice System in Canada
A Review of the Issues

Access to the Protection of the Criminal Justice System

5.3 Jury Selection in a Multicultural Society

There is a small body of Canadian literature which suggests that the jury selection process systematically excludes members of ethnocultural minorities. 164 A recent Nova Scotia Law Reform Commission discussion paper on the topic suggests that "members of disadvantaged, socially isolated and lower-income groups, many of whom are people of colour and/or immigrants, are systemically excluded from jury selection." <165>

Jury selection becomes a highly visible public issue in cases where a member of a minority group is tried and found guilty of a crime by an all-white jury, or in cases of police shootings where the victim is a member of a minority group. The occurrence of such situations does not reflect the range of problems experienced by accused and witnesses in contact with the criminal justice system. However, such relatively rare occurrences of perceived racial bias in jury verdicts has the potential to raise considerable hostility toward the justice system among minority groups. For example, in 1992, the most destructive urban riots in decades occurred in Los Angeles following the infamous Rodney King decision in which a group of white policemen were acquitted by an all-white jury of the beating of a Black man. Representation of minority group members on the jury for a trial when a minority member is an accused or a victim is clearly a highly symbolic issue for minority groups. Respect for the rule of law, confidence in the Canadian justice system, and harmonious relationships between minority communities and the justice system are at stake.

It is generally perceived both in society and in the law that juries should be impartial as well as representative of the community. <166> There are differences of opinion, however, on the meaning of representativeness. One position might be termed the "affirmative action" approach. In this approach, Kaiser, for example, argues that when a jury is not racially representative of the background of an accused, legislatively this should be grounds for challenge to the partiality of a jury.<167> Etherington points out that for many years Canadian, United States and British courts have rejected the idea of a jury of one's peers based on characteristics such as ethnicity, age, religion, and similar characteristics.<168>

A second approach to representativeness is based on the idea of equal chance of selection from a pool of potential candidates. <169> This could be called the "random selection" model, and it reflects the conventional approach in Canada of random selection from a pool, coupled with the ability of lawyers representing the parties to challenge prospective jurors. <170>

5.3.1 The Jury Selection Process

Jury selection in the criminal justice system is a four- stage process falling under the jurisdiction of both federal and provincial levels of government. The first three stages fall within provincial jurisdiction and represent the out-of- court procedures employed in selection of juries. The fourth stage is a matter of federal jurisdiction<171> and is played out in court. The four stages are as follows:

At the provincial level

* the assembly of source lists of persons who may be qualified, to serve as jurors is compiled;

*a determination is made of those persons on the source list who qualify or not, to serve as jurors;

* from those identified as qualified, a random selection of a panel of potential jurists to be summoned to appear in court for selection as trial jurors is made;

And at the in-court stage

* the actual selection, involving challenges to the array of prospective jurors, peremptory challenges and challenges for cause, of persons to be members of a trial jury, is made from among those summoned at stage three.

The greatest concerns in the jury selection process are the composition of original source lists; the disqualification and exemption of prospective jurors; the reliance on simple random selection methods to select the jury panel; and the possibility of systemic bias relating to "challenges" in the courtroom.

5.3.2 The Composition of the Source Lists

Sheriffs compile source lists for selecting prospective jurors at the provincial level. The methods for compiling the source lists varies considerably from place to place within each province.<172>

Provincial and municipal electoral roles are used in some places. Municipal assessment roles are also used in some jurisdictions, but their use might tend to eliminate people of colour who are disproportionately represented among the poor.<173> According to Petersen, "none of the provincial or territorial statutes requires that the lists selected to compile a jury roll be adequately representative of the racial composition of the district's population." <174> At a minimum, in view of this situation, a review of the relevant provincial and territorial statutes should be undertaken by each jurisdiction to assure that regulations regarding the composition of source lists are not systematically biased against the inclusion of ethnocultural and visible minorities.

5.3.3 Uniformity of Source Lists and Procedures among Provinces and Territories

Petersen observes that "there is no uniform approach to the problem" of source lists among the provinces and territories.<175> In Manitoba, sheriffs use medical health insurance lists to compile source lists; in Saskatchewan, this is specifically mandated by law; in Alberta, it is expressly prohibited by law. There are certainly geographical and demographic differences from one province or territory to the next that may impose unique conditions on the composition of source lists. Pomerant concludes that this is a proper area for reform since there is little reason why jury selection procedures should not be uniform across the country.<176>

5.3.4 Exclusion of Immigrants

All provinces in Canada require that jurors be Canadian citizens. The only exception in the country is the Northwest Territories which permits permanent residents to serve on juries.<177> As well, the Criminal Code specifies "alien" as a ground for challenging for cause.<178>

Currently, some 250,000 immigrants enter Canada each year. In some cases they may comprise a substantial component of an ethnic community. "Their exclusion from jury service may be seen as an undesirable barrier to a significant minority element and viewpoint from juries which should be drawn from the diverse elements from which the trial is held. <179> If a landed immigrant meets the language requirements for serving on a jury,<180> it is arguable that she or he should be able to serve as effectively as a citizen. Indeed, he or she may bring knowledge of the culture and conditions within a community based on a lived-in experience or other special knowledge that would benefit jury deliberations. This issue should be explored in a society with an official multicultural policy.

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