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

Access to the Protection of the Criminal Justice System

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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