The bill, alongside other federal-level proposals, means that juries in Ontario may look very different in the future, say lawyers.
“One of the criticisms of allowing people who have criminal records to serve on juries is this notion that they may be biased against the prosecution or have animus toward the justice system because they were convicted. And I think, ultimately, what we are moving toward in Canada, more and more, is a holistic approach to these issues,” says Lisa Jørgensen, principal at Cooper Jørgensen in Toronto.
“[I]f you have been convicted of a particular crime, you may not be able to be objective sitting as a juror on a very similar situation of fact. But you probably have nothing in your experience that makes you any more likely or less likely to have strong views on the outcome of a totally unrelated criminal offence.”
Currently, jurors are barred from serving if they have been “convicted of an offence that may be prosecuted by indictment and have not received a pardon,” the bill says. Instead, the bill proposes that people are only ineligible to serve as jurors if they are “legally confined in a correctional institution.”
The bill also proposes to repeal criminal record checks to assess juror eligibility.
Des Rosiers says the Juries Act needs reform because it excludes too many people from the jury pool. Instead, she says, Ontario should bring its jury pool rules in line with those of provinces such as Saskatchewan.
The Juries Act as it stands “presumes that anyone who has been convicted of a criminal offence that could have been prosecuted by indictment is unable to act fairly and impartially as a juror,” wrote Des Rosiers in an emailed statement. “Communities who may have been at times ‘overpoliced,’ whose membership is overly represented in the criminal justice system, are systematically excluded, which compounds the problem of underrepresentation of these groups in the jury pool.”
Gregory Lafontaine, who practises at Lafontaine & Associates Barristers in Toronto, was one of the lawyers that argued R. v. Yumnu, a Barrie, Ont.-based case that ended up before the Supreme Court of Canada in 2012.
That case challenged the fairness of “a ‘jury vetting’ practice in the Barrie area, consisting of inquiries conducted by the police, at the behest of the Crown Attorney’s office, as to whether potential jurors had a criminal record or whether they were otherwise ‘disreputable persons’ who would be undesirable as jurors,” said the Supreme Court of Canada decision. The panel of judges in that case said that while the Crown should not have asked the police to use police databases to detect “disreputable persons,” the trial was still fair.
Lafontaine says the simpler jury eligibility model proposed in Bill 52 represents “a shift entirely in the other direction” from the Yumnu decision.
“People who have had convictions for relatively minor offences at some point in their life and aren’t pardoned presently can’t sit on a jury and, in my view, there’s not necessarily a good reason for that. Somebody may have been convicted [of a] minor offence in their 20s and [are] now in their 50s and have led an otherwise exemplary life, but they are not able to qualify for jury duty. They might actually bring life experiences that may provide them unique insight into the experience of [the] justice system,” says Lafontaine.
“The sort of whole theory behind having those checks in place in the pre-Yumnu time was individuals might try to slip on to the jury where they have a serious indictable conviction in the past. I think that’s far-fetched.”
The Ontario bill comes amid a looming justice reform bill, Bill C-75, at the federal level, which also proposes changes to juries. The two bills look at two aspects of jury composition, says Jørgensen: Who is in the pool and who gets picked.
Kate Robertson, an associate at Markson Law in Toronto, says the criminal justice system is moving away from “blunt” tools such as province-level bans on jurors and focusing increasingly on reforming policies to redress issues such as the overrepresentation of Indigenous communities in the criminal justice system, which excludes them from juries.
“When we are looking at the contemplated reforms under Bill C-75, really everyone agrees with the ultimate question that juries must be representative. The contested question right now is deciding the best way to achieve that goal,” says Robertson. “I would think that if Bill C-75 passes in its current form, it will likely be that much more important to ensure that the pool of eligible jurors is itself representative of the wider community. That’s because, under Bill C-75, the bill removes a procedural tool called pre-emptory challenges that currently can be used as a mechanism . . . of ensuring that the jury itself is representative in a particular case.”
As a member of the Liberal party, Des Rosiers’ bill may not represent the agenda of the majority of the provincial government, and it’s also still unclear which aspects of the federal and provincial bills will be approved and how they may interact. Nonetheless, Des Rosiers says, Bill 52 is not “political.”
“Lawyers interested in criminal justice should support this bill,” says Des Rosiers.