The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-005-01


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

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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