Editorial: Weighing in on Ontario’s new jury rules

The government chose an interesting time to introduce a new law changing the rules for jury selection in Ontario.

In a bill currently making its way through the legislature, the province plans to amend the Juries Act to exclude anyone convicted of a hybrid criminal offence from serving on a jury. That would expand the current rules that make only people with records of an indictable offence ineligible.

The move is somewhat surprising given that it was less than two months ago that Privacy Commissioner Ann Cavoukian issued a highly critical report on the government’s controversial jury-vetting practices.

Her investigation centred on the privacy issues surrounding Crown prosecutors’ collection of personal information about potential jurors - data that went beyond mere criminal record checks - without sharing it with defence counsel. In response, the government vowed to implement Cavoukian’s recommendations to tighten the rules.

Nevertheless, the recent changes, which are contained within the larger good government act, appear in part to be aimed at that criticism.

The proposal, according to the government, would have all criminal record checks on potential jurors go through the provincial jury centre; ensure that they take place according to strict confidentiality requirements; and remove the names of ineligible jurors from the lists before they go out to courthouses “so that information is never provided directly to any of the participants in court proceedings.”

The government should get credit for acting quickly. But by expanding the definition of ineligible jurors, it has added a sore point for some defence lawyers concerned about the vetting issue.

The change, in fact, comes as the issue of jury selection has popped up in a few provinces. In Alberta, for example, the government has moved to exclude anyone charged with a criminal offence, let alone convicted of it.
Here in Ontario, the legal profession as well as the public have an opporunity to weigh in on the changes to who is ineligible during hearings before the standing committee on finance and economic affairs.

It is true that many jurisdictions eliminate convicted criminals from juries, but does that mean we should be expanding those restrictions? The concern is that the mere fact that someone has a criminal record, particularly for a minor crime dating back years, isn’t necessarily unable to be an impartial juror.

The goal is to ensure juries include a cross-section of society, a notion that’s especially important given that some groups are overrepresented in the criminal justice system. So by eliminating more people with a criminal record, those groups will have less chance to participate in juries.

As a result, given the timing and the lack of discussion so far, those interested in the issue will hopefully have their say before the proposals become law.
- Glenn Kauth

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