In response, the federal government has stated that it may amend the Criminal Code to eliminate the right of the Crown and defence to exercise peremptory challenges of prospective jurors.
The belief is that this would reduce the likelihood that individuals are excluded solely because of their racial background.
Defence lawyers say, however, that if the goal is a more representative jury, then changes need to be made to how jury rolls are put together and not the method of jury selection in court.
“Jury panels often are not very reflective of the community,” says defence lawyer Tyler Smith, who has acted in many jury trials in Toronto and surrounding regions.
Given the population of Toronto, he points out, it would be reasonable to expect a much more diverse group of people called for jury duty.
“As well, you don’t see many younger adults in general,” notes Smith, a partner at Hicks Adams LLP.
A little-known amendment enacted by the Ontario government late in 2009 has also imposed another restriction on who is eligible to serve as a juror in the province.
The change to the Juries Act was spelled out in one sentence within an omnibus bill called the Good Government Act, 2009.
It prohibits anyone convicted of a “hybrid” criminal offence from ever serving on a jury unless they have obtained a criminal record suspension (according to federal rules, there is a minimum of a five-year waiting period to apply for a record suspension for a summary offence conviction).
Previously, only individuals with a conviction for an indictable offence were excluded from jury eligibility. Nearly every offence in the Criminal Code is now hybrid, including very minor crimes.
The narrowing of who is eligible to become a juror was enacted in 2009 just months after it was revealed that police in many jurisdictions in Ontario had been running secret background checks on potential jurors for the benefit of the Crown.
The provincial Information and Privacy Commissioner launched an investigation and brought an end to the practice.
The province should reconsider the legislative changes it made that restrict who can serve on a jury, says Smith.
A previous conviction for a minor offence “should not render someone ineligible for jury duty. In fact, it might make the person a better juror,” he says.
That view is echoed by veteran Toronto defence lawyer David Bayliss.
“You are entitled to a jury of your peers. That includes people who have had problems when they were young,” he adds.
The eligibility rules impact disproportionately on individuals who grew up in neighbourhoods that are not affluent, suggests Bayliss.
“Someone who is caught shoplifting when they are 19 should not be disqualified. That would be very unfair,” he says.
The restriction was noted by former Supreme Court of Canada Justice Frank Iacobucci in his 2013 report commissioned by the province to examine the lack of First Nations representation on juries.
Among his recommendations were that any individual convicted of certain minor offences be permitted to serve on juries after a certain amount of time had passed since their conviction.
Jury rolls in Ontario are generated by the Municipal Property Assessment Corporation, based on voter lists that are updated every four years.
The Iacobucci report also highlighted the fact that seven other provinces use health card lists to generate more expansive lists of people who are eligible to serve as jurors.
To date, the province has not acted on these suggestions in the Iacobucci report. On the issue of peremptory challenges, which is within the jurisdiction of the federal government, the Criminal Code permits a minimum of four or a maximum of 20 challenges for both the Crown and defence, depending on the offence.
No reason is required to exercise these challenges.
If the federal government were to eliminate this right, it would be unfair to defendants and disproportionately impact criminal accused from indigenous and other minority communities, say both defence lawyers.
Unless there is a challenge for cause question, “there is no other direct participation in the jury selection for the defendant,” says Bayliss.
“It is an important tool to get a fair and reasonable jury. You are going up against the power and resources of the state,” says Smith.
The leading case in Ontario on peremptory challenges is still a 2001 decision by the Court of Appeal that explained that this right “fosters confidence” in the jury selection process.
As well, it is only the prosecution that has a duty not to use the challenges improperly, because of the quasi-judicial role of the Crown.
“It is my view that public confidence in the administration of justice would be seriously undermined if Crown counsel were permitted to exercise the power of peremptory challenge on racial or ethnic grounds,” wrote Justice Robert Sharpe in R. v. Gayle.
The Ministry of the Attorney General did not respond to questions about possible changes to broader jury eligibility and the database used to create jury rolls by press time.