Institutionalized Racism: The Need for Reform
of the Criminal Jury Selection Process
Cynthia Petersen*
The prevalence of white juries in criminal trials is
characteristic of the Canadian criminal justice system.
While criminal defendants have attempted, with min-
imal success, to challenge various aspects of the jury
selection process, the systemic exclusion of minorities
persists. Through an analysis of Canadian case law,
the author canvasses the ability of parties to the action
to challenge the racial composition of the jury, both
under challenge and change of venue procedures in the
Criminal Code, and by the assertion of constitutional
rights under the Canadian Charter of Rights and Free-
doms. In both areas, the author argues, the courts have
failed to develop the section 15 analysis as articulated
in Andrews v. Lav Society of British Columbia.
The evolution of pre-Charter equality jurispru-
dence is analyzed to explain the continued insistence
by the courts that proof of purposeful discrimination is
required in order to establish a violation of equality
rights. However, as the author notes, the Charter has
added a new dimension to jury selection challenges.
Although allegations of violations under section 1(ft)
have met with relative failure, the author scrutinizes
the jurisprudence and argues that the issue of repre-
sentativeness on jury trials is essentially a question of
equality and should be addressed as such. This argu-
ment is extended to include the equality rights of vic-
tims of crimes and of prospective jurors. Under a sec-
tion 15 analysis, it is argued that all people should
have equal access to jury duty in recognition of their
equal worth as members of the community, and as a
means to combat institutionalized racism.
The author concludes that a reformation of the
challenge for cause procedure is required in order to
achieve representativeness in the Canadian jury selec-
tion process. In order for such reform to be effective,
all peremptory challenges should be eliminated and
the challenge for cause procedure should be liberal-
ized both to prevent racially motivated exclusion of
jurors and to allow for the exclusion of jurors with rac-
ist views.
Dans les proc~s criminels au Canada, il arrive sou-
vent que tous les membres du jury soient de race blan-
che. Malgr6 les tentatives de bon nombre d’accusds de
contester la fagon dont les jur6s sont choisis, ‘exclu-
sion syst~mique des minorit6s continue de s6vir. A
partir d’une analyse de la jurisprudence canadienne,
l’auteure examine les diff~rentes avenues possibles
pour attaquer la composition raciale du jury, tant en
vertu des dispositions du Code criminel qu’avec la
Charte canadienne des droits et libertis. L’auteure
pretend que dans les deux cas, les tribunaux n’ont pas
su s’inspirer de l’analyse de l’article 15 6noncde par la
Cour supreme dans larrt Andrews c. Law Society of
British Columbia.
Dans une 6tude de la jurisprudence ant6rieure bs la
Charte, l’auteure explique pourquoi les tribunaux
exigent encore que, pour qu’une situation discrimina-
toire soit illicite, il faut que la discrimination at dtd
voulue. Elle s’empresse de dire toutefois que l’avsne-
ment de la Charte n’est pas sans consequences pour la
s6lection des jurys. Malgr6 le peu de succ~s qu’ont
connu les arguments bases sur l’article I(f), l’auteure
examine Ia jurisprudence et insiste sur le fait que la
question de la repr6sentativitd des jurys est une ques-
tion d’6galit6 et devrait etre analys6e comme telle. Cet
argument s’6tend jusqu’aux victimes d’actes criminels
et aux jurds 6ventuels. S’appuyant sur l’article 15,
l’aut~ure dit que tous ont droit A, la possibilit6 d’ltre
jur6 tant en vertu de 1’6galit6 des membres de la com-
munaut6 qu’t cause de la n~cessit6 de combattre le
racisme du syst~me actuel.
L’auteure conclut que, pour arriver As un systlme de
s6lection qui soit vraiment repr6sentatif, les proc6-
dures actuelles en mati~re de rcusation motivde
doivent faire l’objet d’une r6forme. Pour ce faire, elle
pr~conise l’abolition des rdcusations plremptoires et
la libdralisation du regime des r~cusations motivdes
pour empecher que des jur6s soient exclus en raison de
leur race et pour permettre l’exclusion de jur&s ayant
des attitudes racistes.
* Faculty of Law, Common Law Section, University of Ottawa. This paper might never have
been conceived without the input of Professors Toni Pickard and Phil Goldman. It began as a
research memo for them in the summer of 1989. 1 thank them both for their direction and guidance.
I thank Professor Randall Kennedy and the students in his course on Race, Racism and American
Law (Harvard University, spring 1990) for the engaging class discussions which influenced my
thinking on this subject. I also benefited from the critical comments of the faculty members who
attended my seminars at the University of Ottawa (December 1989) and the University of Windsor
(January 1990). I am grateful for Teressa Nahanee’s exceptional research skills and for Wendy
Warhaft’s assistance in completing the final version of the paper. Finally, I thank Calla Thompson
for her insightful comments on successive drafts of the paper. A preliminary version of this article
appeared in T. Pickard & P. Goldman, eds., Dimensions in Criminal Law (Toronto: Emond Mont-
gomery, 1992).
McGill Law Journal 1993
Revue de droit de McGill
To be cited as: (1993) 38 McGill L.J. 147
Mode de r6f6rence: (1993).38 R.D. McGill 147
McGILL LAW JOURNAL
[Vol. 38
Many Canadians were shocked by the verdicts in the trial of the four white
Los Angeles police officers who brutally beat a Black motorist, Rodney King,
on the night of March 3, 1991. Three of the officers, Theodore Briseno, Stacey
Koon and Timothy Wind, were acquitted of all charges on April 29, 1992. The
jury failed to reach a verdict with respect to an assault charge against the fourth
officer, Laurence Powell, for whom a mistrial was declared.’ The astonishment
of concerned Canadians did not reflect self-righteousness nor an indictment of
the American criminal justice system, as though similar events could never have
transpired in our country. Racist police violence is not unknown in Canada2 and
it is not unusual for white police officers to be acquitted of crimes committed
against Black men.’ On the contrary, the virtually routine exoneration of racist
police violence has contributed to increasing cynicism toward the Canadian
criminal justice system. Yet many Canadians, including those who belong to
communities affected by police violence, expected convictions in the trial of the
police officers who beat Rodney King. Despite a general lack of faith in the
legal system, many were stunned by the verdicts. Their amazement stemmed
from the fact that the beating was captured on videotape by an amateur photog-
rapher. Eighty-one seconds of tape recorded the four white officers kicking and
delivering 56 baton blows to the defenceless Black man.4 Segments of the tape
were aired on television and millions of viewers thereby witnessed the brutal
assault. Many viewers (including those who supported the police) believed that,
with the tape as evidence, the prosecution would secure convictions. The public
outrage expressed in the aftermath of the trial was exacerbated by the fact that
for some, there was hope that the justice system would not fail this particular
Black victim.
For others, hope was lost on November 26, 1991, five months before the
verdicts were delivered. It was on that date that Superior Court Judge Stanley
Weisberg selected East Ventura County as the site for the trial.5 An appellate
izen (16 May 1992) A12.
ILaurence Powell will be retried. See “Judge Orders Retrial for Police Officer” The Ottawa Cit-
2″Since the early ’70s, 16 unarmed blacks have been shot by police in Canada” (J. Miller, “A
Question of Color” The Ottawa Citizen (23 May 1992) Fl). Many shootings have occurred in
Toronto, but other smaller cities have also witnessed this violence. For example, J.J. Harper, an
Aboriginal leader, was fatally shot by Winnipeg police in 1989. Vincent Gardner, a 49-year-old
unarmed Black man, was shot by a Nepean police officer in 1991. In Montreal, three Black men
and three Hispanic men have been fatally shot by police since 1987 (A. Picard, “Rampage Seen
as Warning of ‘Hot Summer’ in Montreal” The [Toronto] Globe and Mail (6 May 1992) A8). Inci-
dents of racist police violence have also been reported in Vancouver. Most recently, two Chinese
Canadians, Feng Hua Zhang and Wai Shuen Wong, “were roughed up and dragged from their …
home” by police who mistakenly believed that they were drug dealers. Zhang, who does not speak
English, was struck and kicked by police officers for failing to put his hands behind his back (M.L.
Young, “We’re Victims Again, Pair Says of Ruling” The Vancouver Sun (28 May 1992) Al).
31n the past 18 months, in the Toronto area alone, five white police officers have been acquitted
of charges stemming from their involvement in the shootings of Black victims (T. Appleby,
“Embattled Police Seek Solutions” The [Toronto] Globe and Mail (9 May 1992) Al at A9).
4Appleby, ibid. at A9.
5″Four Officers’ Trial is Moved” The New York Times (27 November 1991) B7. See also L. Can-
non & L. Smith, “The Tale of the Tape: Video Wasn’t Enough to Convince Jury in King Beating”
The Ottawa Citizen (2 May 1992) B1.
1993]
REFORM OF CRIMINAL JURY SELECTION
court ordered the change of venue because the political climate in Los Angeles
was too volatile.6 The prosecution argued that the trial should be held in a
racially diverse metropolitan centre,7 but Judge Weisberg selected the court-
house in Simi Valley, “an isolated suburban community West of Los Angeles
with a black population of only 1.5 per cent.”‘ It is well known as a community
in which many police officers live.9 The demographics of the County virtually
guaranteed that there would be no Black jurors for the trial. Indeed, there were
none. One Filipino, one Hispanic and ten white jurors comprised the six men
and six women who decided the case.1″ One can only speculate whether or not
the verdicts would have been different if the jury had contained Black members.
It is not uncommon for defendants to be tried by disproportionately, or
exclusively, white juries. However, the prevalence of predominantly white
juries is not unique to the American legal process;” it is also a characteristic of
the Canadian criminal justice system. 2 It is one of the multiple factors which
inform the widespread perception that the system serves the exclusive interests
of white victims and white defendants.
6The defence requested the change of venue. Judge Bernard Kamins initially denied the request.
On July 24, 1991, an appellate court reversed his decision and ordered the change, citing the “high
level of political turmoil and controversy” which’ the case had generated in Los Angeles (S.
Mydans, “Los Angeles Trial Ordered to Move” The New York Times (24 July 1991) A17). Judge
Kamins was later removed from the case because he sent a note to the prosecution which was dee-
med to be improper contact (R. Perez-Pena, “Judge in Police Beating Trial Sets Aside Confusion”
The New York Times (6 March 1992) B8).
On May 22, 1992, Judge Weisberg rejected a defence motion for a change of venue and ruled
that the retrial of Laurence Powell would be held in Los Angeles Cohnty (“Retrial Stays in LA”
The [Toronto] Globe and Mail (23 May 1992) A9).
7The prosecution favoured Alameda County, which includes the cities of Oakland and Berkeley.
Alameda is located 350 miles north of Los Angeles and “has a liberal political bent and a large
black population.” Judge Weisberg rejected the suggestion due to cost and inconvenience (Perez-
Pena, ibid. at B8).
8Cannon & Smith, supra note 5 at B1. Simi Valley was described by one journalist as “not just
a white suburb, but an outer-outer suburb full of people who have fled even the mainly white outer
suburbs of LA” (J. Lichfield, “Riots in America” The [London] Independent (3 May 1992) 15).
9One in five officers from the Los Angeles Police Department live in or around Simi Valley.
There are also many retired police officers living in the area (Lichfield, ibid. at 15). The region
is commonly known as “Cop County” (J. Hiscock, “Bandage That Only Opened a Race Wound”
The [London] Sunday Telegraph (3 May 1992) 15).
10″Trial Jury is Selected in Videotaped Beating” The New York Times (3 March 1992) A14. See
also Hiscock, ibid. at 15.
“For evidence of the problem in England, see H. Mills, “Juries ‘Should Reflect Racial Balance”‘
The [London] Independent (1 May 1992) 3; R. v. Thomas, Lee, Aidoo-Ababio andHudson (1989),
88 Cr. App. R. 370 (Central Crim. Ct.); R. v. Ford, [1989] 3 All E.R. 445 (C.A.); D.P. Herbert,
“Multi-Racial Juries: The Way Forward” (20 May 1990) [unpublished].
121n a speech delivered at a conference on the administration of criminal justice, Halifax lawyer
Davies Bagambirre is reported to have said: “In Nova Scotia, you rarely find a black man or a black
,woman on a jury. It’s unheard of, it’s unthinkable” (K. Cox, “System Excludes Minorities, Lawyer
Says” The [Toronto] Globe and Mail (30 June 1989) A8). The under-representation of Aboriginal
people on juries in Manitoba is documented in the report of the Aboriginal Justice Inquiry of Man-
itoba, The Justice System and Aboriginal People, vol. 1 (Winnipeg: Province of Manitoba, 1991)
(Commissioners: A.C. Hamilton & C.M. Sinclair) at 377-87 [hereinafter The Justice System]. See
also K. Roach, “Juries Have Outlived Their Usefulness” The [Toronto] Globe and Mail (2 May
1992) D3.
REVUE DE DROIT DE McGILL
[Vol. 38
The jury selection procedure in criminal trials is deeply flawed. Histori-
cally, Canadian laws explicitly prohibited the participation of women on juries
and effectively precluded the participation of ethnic, religious and racial minor-
ities. 3 Due to legal reform, women are now permitted to serve as jurors4 and,
with few exceptions, juries are sexually integrated. Statutory and regulatory
amendments have also been made in an effort to improve the racial diversity of
juries, but the systemic exclusion of Aboriginal, Arab, Asian, Black and His-
panic persons persists.’5 This exclusion results from the combination of numer-
ous factors which arise at different stages in the jury selection process.
Criminal defendants have attempted, with minimal success, to challenge
various aspects of the jury selection procedure. In this paper, I canvass those
efforts and analyse the reasons for their failure. I also develop an argument,
based upon the developing equality jurisprudence under the Charter,6 which I
believe demonstrates the constitutional invalidity of the laws that regulate the
criminal jury selection process in Canada.
Jury selection in criminal proceedings is governed by both federal and pro-
vincial legislation. Subsection 91(27) of the Constitution Act, 186717 confers
upon the Canadian Parliament jurisdiction over “It]he Criminal Law … includ-
ing the Procedure in Criminal Matters.” Subsection 92(14) of the same Act
grants jurisdiction over “[t]he Administration of Justice” to the provincial leg-
islatures. Consequently, the in-court process for selecting jurors for criminal tri-
als is established by the provisions 6f the Criminal Code, but the eligibility cri-
teria for potential jurors are established by provincial and territorial statutes.
Jurisdictional conflict is avoided by subsection 626(1) of the Criminal Code,
which recognizes that persons are qualified to serve as jurors in a criminal pro-
ceeding if they meet the requirements established by the law of the province
where the trial is to be conducted.
Jury eligibility varies regionally but there are some legislative provisions
which are common to most of the territorial and provincial statutes. For exam-
ple, individuals convicted of criminal offences are generally excluded from jury
duty. Also, persons in specified occupations such as lawyers, judges, justices of
the peace, Members of Parliament and medical practitioners (among others) are
usually ineligible to serve as jurors, as are their spouses. 8
13See e.g. text accompanying notes 19-22.
14″[N]o person may be disqualified, exempted or excused from serving as ajuror in criminal pro-
ceedings on the grounds of his or her sex” (Criminal Code, R.S.C. 1985, c. C-46, s. 626(2) [here-
inafter Criminal Code]). This section was introduced by the Criminal Law Amendment Act, 1972,
S.C. 1972, c. 13, s. 46.
ule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
15This is not an exhaustive list of persons excluded by the jury selection process.
16Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Sched-
‘7Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3.
‘8See e.g. The Jury Act, 1981, S.S. 1990, c. J-4.1, s. 4; Juries Act, R.S.N.S. 1989, c. 242, s. 5;
Jury Act, S.N.B. 1980, c. J-3.1, s. 3; Jury Act, R.S.N.W.T. 1974, c. J-2, ss. 6-7. For a constitutional
challenge to some of the eligibility criteria in the Juries Act, R.S.O. 1990, c. J-3, see R. v. Church
of Scientology of Toronto (No. 1) (1992), 74 C.C.C. (3d) 327 (Ont. Ct. (Gen. Div.)). Subsection
2(b) of the Ontario Juries Act specifies that only Canadian citizens are eligible for jury duty. Judge
1993]
REFORM OF CRIMINAL JURY SELECTION
In addition to establishing eligibility criteria, provincial and territorial laws
govern the initial stages of the jury selection process. These statutes authorize
the annual preparation of a jury roll by an official (usually the sheriff) in each
judicial district. The roll is a list of potential jurors for all the trials to be held
during the ensuing year. The names which appear on the roll are generated in
a random fashion from other pre-existing lists. The selection of these pre-
existing lists frequently constitutes the first phase in the elimination of prospec-
tive Aboriginal, Arab, Asian, Black and Hispanic jurors.
Historically, provincial voters’ lists were the favoured sources for the com-
pilation of jury rolls. This meant that Aboriginal people and members of other
disenfranchised races were precluded from serving on juries. British Columbia
passed legislation in 1875 declaring that “no Chinaman or Indian” could vote.’ 9
By 1922, every province except Nova Scotia and Newfoundland had enacted
similar laws disqualifying “Indians” from the franchise.’ Each of these laws
was eventually repealed but Aboriginal people did not acquire universal adult
suffrage in all provincial elections until 1969.21 It is therefore not surprising that
January 1972 is “reported to be the first time Indians served on a Canadian
jury.
22
In most provinces, sheriffs are authorized to exercise their discretion in
selecting the lists from which the jury rolls are compiled. In some areas, provin-
cial and municipal electoral lists continue to be used in the preparation of jury
rolls, notwithstanding that their enumeration processes often result in the under-
representation of certain segments of the population. Municipal assessment rolls
are also used and they similarly under-represent particular populations. They
include only the names of property owners and thereby exclude lower income
groups. This exclusion has a disproportionate impact on people of colour who
are over-represented among the poor and working class and are therefore under-
represented in municipal assessment rolls.’
Southey ruled that this provision infringed the right of the accused to a representative jury, but that
it was a justifiable limit under s. 1 of the Charter. The accused also challenged the constitutional
validity of certain occupational disqualifications contained in s. 3 of the Ontario Juries Act. Judge
Southey held that if the exclusion of lawyers, law students, law enforcement officers and their
spouses constituted a limit on the accused’s right to a representative jury, then it was justifiable
under s. 1 of the Charter. With respect to medical doctors, coroners and veterinarians, Southey J.
ruled that “[tihe exclusion from juries of persons engaged in those occupations does not … mate-
rially reduce the representativeness of jury panels” (ibid. at 339).
19An Act to Make Better Provision for the Qualification and Registration of Voters, S.B.C. 1875,
c. 2.
1987) at 5-7.
Act, S.Q. 1969, c. 13, s. 1.
20W. Moss, Aboriginal People: History of Discriminatory Laws (Ottawa: Library of Parliament,
21Quebec was the last province to extend its provincial franchise: An Act to Amend the Elections
22Moss, supra note 20 at 10, citing (1972) 14:10 The Indian News.
3White people constitute the majority of Canada’s poor population, but people of colour are dis-
proportionately poor. See “Selected Employment Income Indicators by Ethnicity and Sex,” table
in D.K. Stasiulus, “Rainbow Feminism: Perspectives on Minority Women in Canada” (1987) 16:1
Resources for Feminist Research 5 at 8. See also the report of the National Council of Welfare,
Women and Poverty Revisited (Ottawa: Minister of Supply and Services, 1990) at 112-24.
McGILL LAW JOURNAL
[Vol. 38
Some sheriffs have experimented with alternate lists in a deliberate effort
to correct the problem of misrepresentation.2 4 In Manitoba, sheriffs have
adopted the practice of using registration lists from the provincial health insur-
ance plan.’ In The Jury Act of Saskatchewan, this practice is specifically man-
dated by law.26 In Alberta, it is prohibited by law. 7 Clearly, there is no uniform
approach to the problem. The Ontario Juries Act 8 is the only provincial statute
which specifically requires the use of lists from Indian reserves. 9 None of the
provincial or territorial statutes require that the lists selected to compile a jury
roll be adequately representative of the racial composition of the district’s pop-
ulation. Thus the first step in the jury selection process often initiates the sys-
temic over-representation of white people on juries.
The creation of a panel constitutes the second step in the jury selection
process. A panel is a pool of potential jurors for a particular court sitting. Its size
varies depending on the number of accused and the number of jury trials to be
conducted during the court sitting. In order to draft a panel, names are drawn
at random from the jury roll and summonses are delivered by registered mail to
those persons whose names are drawn. Recipients of the summonses are usually
requested to contact the sheriff by telephone. Respondents who are not
exempted by the sheriff are requested to appear in court on a particular date.
Those who eventually appear in court, and are not then exempted by the judge,
comprise the panel from which individual juries are drawn.
Inevitably, some people fail to receive their summonses, some fail to
respond to their summonses, some are exempted by the sheriff, some fail to
appear in court as requested and some are exempted by the judge. Therefore, as
a matter of expediency, more people than necessary are summoned by the sher-
iff.”0 Once a predetermined number of prospective jurors have been confirmed,
241n a recent Alberta case, the deputy sheriff responsible for compiling the jury roll testified that
traditional municipal sources (i.e. electoral lists and municipal assessment rolls) were “too narrow.”
He therefore obtained permission to use a utility company customer list. The company provided
utility services to the local Indian reserves as well as to several municipalities. The list included
the names of renters as well as property owners. The deputy sheriff used the list in a calculated.
effort to overcome problems of misrepresentation. Unfortunately, the list did not generate a rep-
resentative jury roll; it excluded people under the age of 23 and significantly under-represented
women. See R. v. Nepoose (no. 1) (1991), 85 Alta. L.R. (2d) 8 (Alta. Q.B.) [hereinafter Nepoose
(no, 1)]; R. v. Nepoose (no. 2) (1991), 85 Alta. L.R. (2d) 18 (Alta. Q.B.) [hereinafter Nepoose (no.
2)].
2SThe Justice System, supra note 12 at 380.
26Supra note 18 at s. 6(1).
27″The Alberta Health Care Insurance Act, R.S.A. 1980, c. A-24, prohibits the release of any
information obtained for the purposes of that program” (Nepoose (no. 2), supra note 24 at 23-24).
28Supra note 18.
29 In the selecting of persons for entry in the jury roll in a county or district in which an
Indian reserve is situate, the sheriff shall select names of eligible persons inhabiting the
reserve in the same manner as if the reserve were a municipality and, for that purpose,
the sheriff may obtain the names of inhabitants of the reserve from any record available
(ibid. at s. 6(8)).
30As many as twice the required number of jurors may be summoned (Nepoose (no. 1), supra
note 24 at 15). Note that the reference to “exception writ” (ibid.) should read “exemption rate.”
This is an obvious transcription error.
1993]
REFORM OF CRIMINAL JURY SELECTION
the sheriff ceases pressuring those who have not yet responded and may even
reject subsequent respondents by informing them that they are no longer
needed.3
This summoning procedure has been identified as the primary reason Abo-
riginal people are under-represented on jury panels. The report of the Aboriginal
Justice Inquiry of Manitoba explains that Aboriginal people often live in com-
munities which have poorer mail service and telephone service than non-
Aboriginal communities.32 This causes delay in the delivery of their summonses
as well as in their responses. Without these delays, non-Aboriginal people are
more likely to respond quickly to their summonses and are therefore more likely
to be represented on the panel.33
The summoning procedure also favours property owners, even if the jury
roll includes the names of renters (which is not always the case). People who
rent apartments are likely to change addresses more often than property owners.
They are therefore less likely to receive their summonses by mail. Their failure
to respond may be ignored by the sheriff who has summoned considerably more
people than required to fill the panel. This contributes to the systemic over-
representation of the property-owning middle class on juries, and consequently
to the over-representation of white people who are already over-represented
within that economic class.’
The exemption procedure also has a differential impact upon certain com-
munities. When prospective jurors respond to a summons by telephone, they
may be exempted from jury duty by the sheriff, sometimes at their own request.
For example, many provincial and territorial laws provide for the exemption of
individuals for whom jury duty would create a serious hardship.35 Some laws
also permit exemption based on religious objection.36 There is evidence that the
rate of exemption for Aboriginal persons is higher than the rate for non-
Aboriginal persons, at least in Alberta37 and British Columbia.38 There is no
3 1The Justice System, supra note 12 at 383.
3 21bid. at 383.
3 31bid. at 382.
3 4See supra note 23.
35See Jury Act of Saskatchewan, supra note 18 at s. 5(2)(a); Juries Act of Ontario, supra note
18 at s. 23(2)(b); Juries Act of New Brunswick, supra note 18 at s. 5(1); Jury Act, R.S.N. 1990,
c. J-5 at s. 6(1); The Jury Act, R.S.M. 1987, c. J30, s. 25(1)(b); Jury Act, R.S.B.C. 1979, c. 210,
s. 5(1)(b); Jury Act, R.S.P.E.I. 1988, c. J-5, s. 6.
36See Jury Act of Saskatchewan, ibid. at s. 5(2)(c); Juries Act, of Ontario, ibid. at s. 23(1); Jury
Act of Newfoundland, ibid. at s. 7; The Jury Act of Manitoba, ibid. at s. 25(I)(a); Jury Act of British
Columbia, ibid. at s. 5(1)(a).
37Nepoose (no. 1), supra note 24 at 15.
381n a recent case before the British Columbia Supreme Court, the accused objected to the racial
composition of the jury panel because it contained no Aboriginal persons. One of his arguments
related to “deletions on the jury list.” Judge Harvey rejected the argument, stating that “such dele-
tions are the result of prospective jurors applying in the usual manner to the office of the Sheriff
for exemption.” Although the information provided in this-case is rather obscure, it may reasonably
be inferred that the accused was objecting to the high exemption rate of Aboriginal jurors (R. v.
Chipesia (1991), 3 C.R. (4th) 169 at 171 (B.C.S.C.) [hereinafter Chipesia]).
REVUE DE DROIT DE McGILL
[Vol. 38
requirement in any province or territory that an exempted Aboriginal person be
replaced by another Aboriginal person.
While there is little documentation on the respective exemption rates of
various segments of the population, it is not difficult to imagine how the exemp-
tion procedure could further eliminate prospective Aboriginal, Arab, Asian,
Black and Hispanic jurors. For example, individuals who do not meet eligibility
criteria are automatically exempted from jury duty. Thus the failure to meet stat-
utory language requirements results in exemption. In Quebec, the Jurors Act
disqualifies “all persons who do not speak French or English fluently”39 subject
to the exception that “an Indian or an Inuk, even though he does not speak
French or English fluently, may serve as a juror if the accused is an Indian or
an Inuk.”40 In the Northwest Territories, the law requires that jurors be “able to
speak and understand either the French language or the English language”‘” but
provides the following exception for Aboriginal persons:
An aboriginal person who does not speak and understand either the French lan-
guage or the English language, but who speaks and understands an aboriginal lan-
guage, as defined in the Official Languages Act and is otherwise qualified under
this Act, may serve as a juror in any action or proceeding that may be tried by a
jury in the Territories.4 2
In the Yukon, all individuals must be “able to speak and understand the
English language” in order to qualify to serve as jurors.43 Five provincial stat-
utes contemplate the disqualification of any juror who does not comprehend the
language in which a trial is to be conducted.’ Four provincial statutes contain
no explicit language requirements. 45
Language requirements present an obstacle for many Aboriginal people
and immigrants whose first language is not one of the two official languages of
Canada and whose fluency in English or French is inadequate. Moreover, if the
sheriff believes that potential jurors are not sufficiently fluent, then they may be
exempted, despite a good command of the English or French language. Due to
accent discrimination, *people of colour are more likely to be exempted from
juries on these grounds.
Mari Matsuda has argued persuasively that accent discrimination is part of
an embedded culture of domination.46 There exists in Canada, as in other parts
of the world, an unspoken norm of “non-accent” which is an artificial social
39Jurors Act, R.S.Q. c. J-2, s. 4(i).
40Ibid. at s. 45.
41The Jury Act of the Northwest Territories, supra note 18 at s. 5(c).
42An Act to Amend the Jury Act, S.N.W.T. 1986, c. 7, s. 1.
43Jury Act, R.S.Y. 1986, c. 97, s. 4(c).
The Jury Act of Saskatchewan, supra note 18; Jury Act of British Columbia, supra note 35 at
s. 4; Jury Act, S.A. 1990, c. J-2.1, s. 5(1)(t); The Jury Act of Manitoba, supra note 35 at s. 4; Jury
Act of Prince Edward Island, supra note 35 at s. 5.
45The Ontario Juries Act, supra note 18; the New Brunswick Jury Act, supra note 18; the Nova
46See M.J. Matsuda, “Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence
Scotia Juries Act, supra note 18; Judicature Act, R.S.N. 1970, c. 187.
for the Last Reconstruction” (1991) 100 Yale L.J. 1329.
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construction. 7 Although everyone has an accent, only some people are per-
ceived to be accented. Only those who deviate from the norm are perceived to
“have an accent.” In evaluating a prospective juror’s fluency in English or
French, a sheriff is liable to be influenced by his or her accent. Some accents
are not likely to impede acceptance as a juror. For example, certain European
accents such as French, Irish, British and Scottish accents, give the impression
that the speaker’s first language is French or English and therefore do not raise
doubts about the speaker’s fluency in French or English. In contrast, accents
such as Chinese, Japanese and Mexican accents are viewed, often fallaciously,
as indicia of poor fluency,” perhaps because they give the impression that the
speaker’s first language is neither English nor French.”9 It is trite to note that the
former accents are current among predominantly white populations, while the
latter are current among populations of colour. The link between accent discrim-
ination and racial discrimination becomes even more apparent when one consid-
ers that many Black people are often perceived by white people to be illiterate
and/or inarticulate in English or French despite the fact that their accents may
not be indicative of another mother tongue (e.g. Jamaican and Haitian
accents).” They too are more likely to be exempted from jury duty based on a
sheriff’s subjective evaluation and implementation of statutory language
requirements.
The people who survive the initial stages of the selection process, who
appear in court as requested,5 and are not then exempted by the judge,52 form
the panel for a court sitting. Juries for multiple criminal trials may be selected
from one panel.
Prior to the selection of a jury for any criminal trial, the parties may object
to the composition of the jury panel. If successful, such an objection results in
the summoning of a new panel. This process is commonly referred to as “chal-
lenging the array.” In Canada, such challenges are restricted by subsection
629(1) of the Criminal Code which states:
The accused or the prosecutor may challenge the jury panel only on the ground
of partiality, fraud or wilful misconduct on the part of the sheriff or other officer
by whom the panel was returned.
471bid. at 1330, 1361.
4SMari Matsuda provides several useful examples (ibid.).
491 am perhaps being generous to the prejudiced listener. Man Matsuda explains how race and
class boundaries are maintained by accent discrimination (ibid. at 1397).
50A number of experiences have confirmed my view that race discrimination and accent discrim-
ination are intrinsically linked. I have discussed this phenomenon with a Jamaican woman who is
the mother of two children. Her children have experienced difficulty in the Ontario English school
system because of accent discrimination. Also, in reviewing the files, of applicants to law school
(in my capacity as a member of the admissions committee), I encountered two files from Jamaican
students who discussed the impact of racism on their lives and on their early education. Both appli-
cants mentioned accent discrimination within the English school system in Canada. I have had a
similar discussion with a Haitian man who complained about the French school system in Quebec.
51Travel costs associated with jury service are not pre-paid but rather are reimbursed after the
fact. For Aboriginal people who live in remote areas, this expense operates as a disincentive to
appear in court (The Justice System, supra note 12 at 383).
52The judge may exempt prospective jurors who appear in court. For example, a person who is
related to the accused, to the victim, or to one of the lawyers, may be exempted.
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As a result of the limitations imposed by this subsection; successful
motions to challenge an array have been extremely rare.
One of the few reported cases in which a panel was successfully chal-
lenged is R. v. Catizone,53 a 1972 Ontario County Court decision. The accused
woman challenged the array because the panel of 70 potential jurors included
only three women, none of whom. were available for her trial.’ The panel was
dismissed and the case was traversed to the next court sitting. Judge Stortini
suggested that the new panel should include, if possible, equal numbers of men
and women. He expressed concern about the then widespread practice of return-
ing all male jury panels, acceding to defence counsel’s request that he “take a
stand on this matter” and set an example for other counties.55 There was no find-
ing of partiality, fraud or wilful misconduct on the part of the sheriff or sheriff’s
deputies. Therefore, Stortini J. did not actually have the authority to dismiss the
panel. This case is not only anomalous, but also technically incorrect according
to the law.
In other reported cases, challenges have almost invariably been unsuccess-
ful. The decision in Rose v. R.56 provides a useful example. The array in Rose
was constituted under the Quebec Jury Act which, in 1972, declared women to
be ineligible as jurors. 7 Counsel for the accused argued that the Jury Act was
discriminatory and therefore contrary to the Canadian Bill of Rights.”8 Judge
Marquis emphasized that the case did not involve “a decision concerning the
vindication of the rights of women”59 but rather a question of the equality of the
(male) accused before the law. He ruled that the accused suffered no discrimi-
nation because he was subject “to the same rules and the same system as all
other accused” and was therefore treated equally before’ the law.’ Ultimately,
the challenge was dismissed because the requirements of section 558 (now sec-
tion 629) of the Criminal Code had not been satisfied: “In the instant case, there
53(1972), 23 C.R.N.S. 44 (Ont. Co. Ct.) [hereinafter Catizone].
54Two had claimed exemption and the third was serving on a grand jury.
55Catizone, supra note 53 at 46-47.
56(1972), 19 C.R.N.S. 66 (Que. Q.B.) [hereinafter Rose].
57Jury Act, R.S.Q. 1964, c. 26, as am. by S.Q. 1971, c. 15.
58S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. I, s. l(a), (b) [hereinafter Bill of Rights].
59Rose, supra note 56 at 78. In obiter dicta, Marquis J. stated:
[There is no discrimination where a man is called upon to perform a certain function
tnd a woman is required to fill some other role of equal importance but of a different
nature. If the various roles played by men and women in society were to be considered
discriminatory, we would be forced to the logical conclusion that all the professions
would have to contain an equal number of persons of both sexes, and this would apply
to judges, teachers, government officials, etc. Can it really be said that this parity
should extend to the area of manual labour, involving the heavy work done by street
labourers, miners, workers in heavy industry or, in one word, workers involved in all
those activities requiring physical strength not available to a woman whose charms and
energy, nevertheless, are adaptable to other tasks which are often much more important
and more useful? (ibid. at 74)
Later, he revealed the nature of the tasks which he believed to be best suited for women: “the mag-
nificent role of wife and mother” (ibid. at 76).
6Ibid. at 77.
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was no evidence of partialityfraud or wilful misconduct on the part of the sher-
iff or his deputies.”‘”
The first Canadian jury case involving an allegation of racial discrimina-
tion was decided in 1973. In R. v. Bradley and Martin (no. 1),62 the co-accused
were two Black men who challenged the array because it contained no Black
jurors. The trial was to be conducted in Essex county which, at that time, had
a Black population of approximately 6,000 persons and a total population of
250,000 to 300,000 persons.63 Counsel for the defence indicated that they had
never seen a Black person as a member of a jury panel in Essex county. Judge
Galligan accepted that as being their “personal experience” but also accepted
the assurance of the Crown Attorney that he had seen panels which included
Black members.’ Defence counsel did not suggest that the sheriff was person-
ally motivated by racism but rather that the jury selection procedure in the
county resulted in systemic racial discrimination and was therefore partial “in
the legal sense.”’65 Galligan J. rejected their interpretation of the meaning of
“partiality” within section 558 (now section 629) of the Criminal Code. He
ruled that the undisputed fact that there were no Black people on the jury panel
before them was not “the slightest proof of any partiality” on the part of the
sheriff or his deputies.66
Counsel for the co-accused also argued that the exclusion of Black people
from the jury panel constituted a violation of their clients’ equality rights as pro-
tected by the Bill of Rights. Galligan J., in a separate oral judgment, expressed
his opinion as follows:
In my view the requirement in the Bill of Rights of a fair hearing in accordance
with the principles of fundamental justice means that all accused persons shall be
entitled to the same hearing that is provided for by law. I do not think that the Bill
of Rights goes so far that it requires that there be persons of a particular race,
national origin, colour, religion or sex summoned to try accused persons who hap-
pen to be of that particular race, national origin, colour, religion or sex.67
This reasoning is typical of the equality jurisprudence developed under the
Bill of Rights. According to the courts, the Bill declared only formal equality. 8
It is therefore not surprising that reliance on the Bill of Rights proved to be
unsuccessful in subsequent cases. In R. v. Diabo69 the defendant was accused of
committing armed robbery on the Kahnawake reserve. He was a member of the
61Ibid. at 78.
62(1973), 23 C.R.N.S. 33 (Ont. S.C.) [hereinafter Bradley and Martin (no. 1)].
63Ibid. at 35.
64Ibid. at 39.
651bid. at 35.
66Ibid. at 39.
67R. v. Bradley and Martin (no. 2) (1973), 23 C.R.N.S. 39 at 40 (Ont. S.C.) [hereinafter Bradley
and Martin (no. 2)].
6tFor another example, see Tysoe J.A.’s interpretation of the meaning of “equality before the
law” as protected by the Bill of Rights: “They shall be entitled to have the law as it exists applied
equally and without fear or favour to all persons to whom it relates or extends” (R. v. Gonzales
(1962), 32 D.L.R. (2d) 290 it 296, 37 C.R. 56 (B.C.C.A.)).
69(1974), 27 C.C.C. (2d) 411, 30 C.R.N.S. 75 (Que. C.A.) [hereinafter Diabo cited to C.C.C.].
REVUE DE DROIT DE McGILL
[Vol. 38
Mohawk Nation and a resident of the reserve. At the time of the trial, the Que-
bec Juiy Act specified that no person could serve as a juror unless “domiciled
in a municipality and entered on the valuation roll of that municipality.”‘7 Kah-
nawake, like all other Indian reserves, is not a municipality. Since the residents
do not pay taxes, Kahnawake does not have a valuation roll. The provincial law
in 1974 effectively deprived all Kahnawake residents, indeed, all residents of
any Indian reserve, of the right to serve on juries in Quebec. Thus, no Kahna-
wake residents appeared as potential jurors for the accused’s trial. Based on
these facts, the accused put forward three arguments in his challenge to the
array. First, he asserted that the Jury Act was discriminatory and was therefore
contrary to the Bill of Rights.’ Second, he alleged that the sheriff or the sheriff’s
deputies were guilty of partiality, fraud or wilful misconduct. Finally, he
claimed that the Quebec law denied him the right to be tried by a jury of his
peers. Each of these arguments was dismissed at trial. Diabo appealed the deci-
sion.
Justice Owen, writing for a unanimous Court of Appeal, ruled that the case
did not involve racism and berated the accused for making such an allegation:
He comes marching into Court waving the flag of racial discrimination and rattling
the saber of “Drybones”. He is flying false colours because this is clearly not a
cage of racial discrimination. 72
Owen J.A. reasoned as follows:
It is true that no registered Indian living on the Reservation at Caughnawaga [Kah-
nawake] could sit as a juror at the trial of Diabo. The reason for this is not the fact
that he belongs to the Indian race but rather the fact that he does not reside in a
municipality that has a valuation roll. The basis of the exclusion from the jury list
under the terms of the Quebec Jury Act of a registered Indian living on the Caugh-
nawaga [Kahnawake] Reserve is geographical not racial.7 3
The artificial distinction between geography and race, and the attempt to
rationalize racism by calling it geographical discrimination, is transparent.
Indeed, this judicial reasoning is so transparent that it would be uninteresting
were it not also oppressive and discriminatory.
With respect to Diabo’s second argument, the Court of Appeal held that the
allegations of partiality, fraud and wilful misconduct were unfounded and were
therefore properly dismissed by the trial judge. Finally, the court upheld the trial
judge’s ruling that “the accused had the right to be judged by a jury constituted
in accordance with the law but no right to be judged by a jury of his peers.”’74
Thus the appellate judges acknowledged, perhaps inadvertently, that non-
Aboriginal people did not constitute the “peers” of the accused, at least not for
70Jury Act, R.S.Q. 1964, c. 26, s. 1, as am. by S.Q. 1971, c. 15, ss. 1, 2.
7iThe Bill of Rights applies only to federal legislation. Counsel for the accused successfully
argued that the provisions of the Quebec Jury Act were incorporated in the Criminal Code by virtue
of s. 554(l) (now s. 626(1)). It is odd that this issue was not addressed in earlier cases.
72Diabo, supra note 69 at 416.
731bid. at 415.
741bid.
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.159
jury purposes. This finding was subsequently contradicted by Justice Guy’s
judgment in R. v. LaForte,75 a 1975 decision of the Manitoba Court of Appeal.
In the latter case, one of three co-accused, Elsie Noella Gaskin, challenged
the array because it contained few women and no Band Indians. She noted the
existence of a Manitoba provincial policy, adopted in 1971, which obliged Band
Councils to submit names drawn from their electoral lists for the purpose of jury
selections. The trial judge held that the provincial Jury Act did not require pro-
portionate or minimum representation of Band Indians or of women on any jury,
whatever the race or sex of the accused.76 She was unable to demonstrate par-
tiality or wilful misconduct on the part of the sheriff and her motion was con-
sequently dismissed. The co-accused were tried jointly and all three were con-
victed. One of them, Wilfred David LaForte, appealed his conviction, arguing
that it was delivered by an improperly constituted jury.
Laforte did not allege partiality on the part of the sheriff. Instead, his fac-
turn read as follows:
[I]t is submitted that under the Jury Act of Manitoba, and/or under the Bill of
Rights, the jury panel should have included Band Indians. And the matter is left
with the time-honoured declaration in Magna Carta that an accused is entitled to
be tried by his peers.77
Justice Guy responded to these arguments as follows:
[T]he argument that the Canadian Bill of Rights was passed to prevent discrimi-
nation is completely inconsistent with the argument that Indians cannot be tried by
non-Indians.
The very definition of the word “peer” is: “An equal in standing or rank; one’s
equal before the law.”- That is exactly what the Bill of Rights was designed to
accomplish –
to make everyone equal before the law. Counsel for the appellant
is equating the word “peers” with the word “Indians.” That is not the purpose of
the Bill of Rights.78
In a separate but concurring judgment, Justice Matas conceded that the
absence of Band Indians and the presence of only 16 women on a panel of 96
persons “indicate[d] there had been discrimination.”79 He nevertheless ruled that
there was no violation of the Bill of Rights because there was no evidence of
impropriety and “[i]n the absence of any such evidence, it must be assumed that
those charged with the responsibility of selecting the jury panel did so prop-
erly.”8” In support of this ruling, Matas J. cited the decisions in Bradley and
Martin (no. 1) and Bradley and Martin (no. 2).
75(1975), 62 D.L.R. (3d) 86, 25 C.C.C. (2d) 75 (Man. C.A.) [hereinafter Laforte cited to D.L.R.].
76The Court of Appeal unanimously approved this ruling. Justice Matas stated:
[The] appellant has confused eligibility of band Indians to sit on juries with a require-
ment that a jury panel must have band Indians represented on it. There is nothing in
the Jury Act, R.S.M. 1970, c. J30, requiring any proportionate or minimum represen-
tation of band Indians on any jury, whatever the racial origin of an accused may be
(ibid. at 90).
77Ibid. at 87.
78Ibid. at 88.
791bid. at 90.
t 0Ibid. at 91.
McGILL LAW JOURNAL
[Vol.-3 8
It was not until 1984 that three justices of the Saskatchewan Court of
Appeal delivered a judgment which suggested a deviation from the traditional
position that an array could only be challenged if the sheriff or his deputies were
guilty of partiality, fraud or wilful misconduct. In R. v. Bird,”‘ the appellant was
a treaty Indian who appealed his conviction on the basis that the jurors who tried
him were chosen from a panel that was returned through a process which sys-
tematically excluded Aboriginal people. Writing for a unanimous court, Chief
Justice Bayda stated:
A process which systematically excludes, either by design or unwittingly, an iden-
tifiable group from serving on a jury may be a sufficient ground for vacating a
conviction made by a jury selected by that process.82
Bayda C.J. nevertheless dismissed the appeal, ruling that it was not neces-
sary to decide the issue because the appellant’s evidence did not establish that
the process used in his case resulted in systemic exclusion of an identifiable
group. Unfortunately, the obiter dicta in this judgment had no impact upon the
development of equality jurisprudence under the Bill of Rights. In fact, it was
selectively ignored by judges in subsequent jury cases.
In R. v. Butler,.3 the co-accused were brothers belonging to an American
Indian Band. They made an unsuccessful motion to challenge the array at the
outset of their joint trial. They indicated that they intended to establish that the
sheriff had used the provincial voters’ list as the source of names for the jury
roll and that the enumeration process for the list did not reach certain classes of
people, including Band Indians. The trial judge refused to hear the evidence and
ruled that their motion could not proceed because the matters about which they
complained, even if proved, would not establish partiality on the part of the
sheriff.
The trial judge’s decision was upheld by the British Columbia Court of
Appeal. Justice Esson stressed that the appellants’ argument was based solely
on the inadequacy of the provincial voters’ list. The cases of Bradley and Mar-
tin (no. 1), Diabo and LaForte were cited as “settled law” requiring proof of
deliberate exclusion to establish a violation of the Bill of Rights.’ Interestingly,
Esson J.A. did not mention that the obiter dicta in Bird contemplated a success-
ful challenge based on inadvertent systemic discrimination. He ignored the fact
that the Bird decision contradicted the so-called “settled law.” His selective use
of precedent was particularly striking since he quoted at length from the Bird
judgment in order to support a separate aspect of his ruling.”5
81[1984] 1 C.N.L.R. 122 (Sask. C.A.) [hereinafter Bird].
21bid. at 122.
83[1985] 2 C.N.L.R. 107 (B.C.C.A.) [hereinafter Butler].
841bid. at 120-21.
85Although the appellate court in Butler upheld the dismissal of the pre-trial motion to challenge
the array, it ordered a new trial on other grounds. On the third day of the trial, new evidence sur-
faced which demonstrated that the deputy sheriff was not impartial. Counsel for one of the two
accused filed an affidavit claiming that the deputy sheriff admitted the existence of a deliberate pol-
icy of excluding Aboriginal jurors. Racist remarks were attributed to him. The deputy sheriff sub-
sequently filed his own affidavit, claiming that his comments had been taken out of context. The
presiding judge refused to address the matter because the trial was already in progress. On appeal,
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REFORM OF CRIMINAL JURY SELECTION
The Bird decision did not alter the course of the evolution of Canadian
equality jurisprudence. The judiciary continued to insist upon proof of purpose-
ful discrimination in order to establish a violation of the Bill of Rights. Thus the
Bill of Rights offered no greater protection against all white (or predominantly
white) juries than subsection 629(1) of the Criminal Code. While Canadian law
did not expressly sanction the systemic exclusion of Aboriginal, Arab, Asian,
Black and Hispanic jurors, it precluded effective challenges to such de facto
practices.
The advent of the Charter introduced a new dimension to jury panel chal-
lenges, but did not immediately facilitate their success. R. v. Smoke86 was the
first reported jury case involving a Charter argument. The accused challenged
the array because it did not include any residents from two local Indian reserves.
The evidence revealed that the two reserves contained approximately 1,200 eli-
gible jurors. The evidence also indicated that Aboriginal persons living in
municipalities outside of the reserves had been summoned to the jury panel. The
trial judge denied the accused’s motion, finding no partiality or wilful miscon-
duct on the part of the sheriff. The accused then brought an application for pro-
hibition with certiorari in aid to quash the trial judge’s decision. Alternatively,
he argued that the court should grant prerogative relief pursuant to subsection
24(1) of the Charter because the trial judge’s ruling was contrary to subsection
11(d)., 7 Judge Hollingworth acknowledged that empanelling Aboriginal persons
from other municipalities was not equivalent to empanelling those who resided
on the reserves. However, the fact that Aboriginal persons had been called as
potential jurors was considered proof that there was no prejudice to the
accused.”8 According to Hollingworth J., the accused’s constitutional right to a
fair trial by an impartial tribunal had not been violated.
The accused in Smoke did not allege a violation of his right to a trial by
jury, as guaranteed by subsection 11 (f) of the Charter. A recent Supreme Court
of Canada judgment suggests that this might have been a useful legal strategy.
In the case of R. v. Sherratt,s9 Madam Justice L’Heureux-Dub6 remarked:
The perceived importance of the jury and the Charter right to jury trial is mean-
ingless without some guarantee that it will … represent, as far as is possible and
appropriate in the circumstances, the larger community.90
She then asserted:
Provincial legislation guarantees representativeness, at least in the initial array.
The random selection process, coupled with the sources from which this selection
Esson J.A. ruled that the trial judge should have investigated the matter to determine whether or
not the evidence proved partiality on the part of the deputy sheriff. The investigation not having
been conducted, a new trial was granted. The Bird decision was considered because it involved a
motion to vacate a conviction rather than a pre-trial motion to challenge an array.
86[1984] 2 C.N.L.R. 178 (Ont. S.C.) [hereinafter Smoke].
87Subsection 11(d) states that any person charged with an offence has the right “to be presumed
innocent until proven guilty according to law in a fair and public hearing by an independent and
impartial tribunal.”
88Smoke, supra note 86 at 182.
1911991] 1 S.C.R. 509, 3 C.R. (4th) 129, 63 C.C.C. (3d) 193 [hereinafter Sherratt cited to
S.C.R.].
9lbid. at 525.
REVUE DE DROIT DE McGILL
[Vol. 38
is made, ensures the representativeness of Canadian criminal juries. (See the pro-
vincial Jury Acts.) Thus, little if any objection can be made regarding this crucial
characteristic of juries. 91
In support of the latter assertions, Madam Justice L’Heureux-Dub6 quoted from
a 1979 study conducted for the Law Reform Commission of Canada. 2 She did
not mention the jurisprudence or literature93 which contradicted the study’s find-
ings. Her comments were unrelated to the issue before the Court as the case at
bar did not involve a challenge to the array. Presumably, in a case on point, the
parties would draw the relevant material to the Court’s attention. If, in the
future, the Court were presented with proof that provincial statutes consistently
fail to furnish representative jury panels, then a violation of subsection 11 (f) of
the Charter might be found.
A similar interpretation was recently adopted by a judge of the Alberta
Queen’s Bench in R. v. Nepoose (no. 1).94 The accused alleged that the under-
representation of women on the panel from which her jury was to be selected
violated subsection 11(f) of the Charter. In compiling the panel, the deputy sher-
iff confirmed 175 potential jurors, but only 98 people appeared in court as
requested. After exemptions, there were 87 prospective jurors available for trial,
62 of whom were men and only 25 of whom were women.9′ The gender imbal-
ance was attributed to the fact that the deputy sheriff inadvertently used a list
with a ratio of 2.5 men for each woman.96 Judge McFadyen ruled that the panel
before her was “not reasonably representative of the community.”‘
” Based on
the obiter dicta from Madam Justice L’Heureux-Dub6’s judgment in Sherratt,
she found a breach of the accused’s right to a trial by jury. As a remedy, she
ordered that a supplementary panel be called to correct the gender imbalance
and to ensure the proportionate representation of Aboriginal women.9″
9tlbid.
92p. Schulman & E.R. Myers, “Jury Selection” in T. Elton & N. Brooks, eds., Studies on the Jury
(Ottawa: Law Reform Commission of Canada, 1979) 395 at 408.
93See L. Smith, “Charter Equality Rights: Some General Issues and Specific Applications in
British Columbia to Elections, Juries and Illegitimacy” (1984) 18 U.B.C. L. Rev. 371 at 397, note
192.
94Supra note 24.
951bid. at 11.
96Ibid. See also supra note 24.
97Ibid. at 12.
98McFadyen J. ordered that the supplementary panel be drafted by randomly selecting names
from the jury roll and by rejecting all the men’s names. This procedure would be followed until
an additional 50 women’s names were drawn. Only 37 women were required but McFadyen J. esti-
mated that 50 names should be drawn in order to generate 37 prospective women jurors.
McFadyen J. further ruled that if this procedure did not generate the names of at least five Abo-
riginal women, then the names of the first selected women were to be struck and additional
women’s names drawn until at least five Aboriginal women’s names were added to the panel. Abo-
riginal women would be identified by their addresses (i.e. women who lived on reserves were
assumed to be Aboriginal). The Crown Attorney suggested that Aboriginal people represented four
to five per cent of the local population but McFadyen J. contradicted him and stated that the pro-
portion was in excess of ten percent. Proportionate representation would therefore require a miin-
imum of six Aboriginal women out of a total of 124 potential jurors. McFadyen J. assumed that
the process would generate the name of at least one Aboriginal woman who did not live on the
reserves, which is why she ordered a minimum of only five names from the reserves (ibid. at
15-17).
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163
The decision in Nepoose (no. 1) established an important Canadian prec-
edent. By relying on subsection 11(f) of the Charter, the accused was not
required to demonstrate deliberate exclusion in order to challenge the composi-
tion of the jury panel. She thereby avoided the principal obstacle which had
impeded the success of earlier challenges. McFadyen J. appropriately focused
on the problem of representativeness rather than being concerned with defend-
ing the process or exonerating the sheriff from blame. However, the importance
of representativeness was inadequately explored. This inadequacy was due to
the way in which the argument was framed.
By alleging a violation of section 11 of the Charter, the case was removed
from equality discourse. It was therefore impossible to discuss meaningfully the
significance of representativeness. The accused’s objection to the gender imbal-
ance in her jury panel was made within the context of a patriarchal society and
a male-dominated legal system. However, her case was neither argued nor
decided in light of those considerations. Thus the significance of achieving gen-
der parity was obscured.99
Thus Nepoose (no. 1) established a dangerous precedent in Canadian law.
While reliance on section 11 of the Charter may assist some defendants, it will
ultimately undermine efforts to expose the inherent biases of the criminal justice
system. By diverting attention away from the issues of power and inequality, it
will preclude recognition of the jury selection process as an oppressive institu-
tion which perpetuates discrimination against traditionally disempowered peo-
ple.
Section 11 of the Charter would be of no assistance to a man like Rodney
King. It fails to address equality considerations; rather, it is intended merely to
protect the legal rights of individuals who come into conflict with the law. The
language of the section explicitly limits the scope of its protection to “[a]ny per-
son charged with an offence.” Thus a Black victim of racist violence committed
by white assailants could not argue that subsection 11(f) guarantees the propor-
tional representation of Black people on the jury panel.
Linking the issue of representativeness to the right to a trial by jury not
only ignores the important concerns of victims, but also restricts the issue to a
limited class of criminal jury trials. The Charter right to a trial by jury is explic-
itly limited to individuals charged with civilian offences punishable by at least
99One week after McFadyen J. ordered the supplementary panel to correct the gender imbalance
in the original array, counsel for the accused submitted that the entire panel ought to be discharged
because the jury selection procedure excluded young people and people living outside of a partic-
ular geographic region. People living more than 60 km from the courthouse were not included in
the jury roll and no one under 23 years of age was summoned for the jury panel. Based on these
exclusions, the accused argued that the selection procedure violated her right to a representative
jury, as guaranteed by subsection 11(f) of the Charter. McFadyen J. rejected the argument, noting
that misrepresentation of a particular group is not unconstitutional unless that group “has some rel-
evance to the accused” whereby its exclusion might “cause … some prejudice” to the accused. She
referred to the gender imbalance in the initial array as an example of a factor that “had relevance
and had to be corrected.” She did not elaborate further upon the meaning of “relevance.” This was
a rather futile attempt to contextualize the issue of representativeness without the benefit of an
equality analysis. See Nepoose (no. 2), supra note 24 at 22-23.
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five years imprisonment. These arbitrary restrictions demonstrate the absence of
an equality basis for arguments developed under subsection 11(f).
The inability of subsection 11(f) to address equality considerations is
apparent in many instances. For example, imagine that an Aboriginal man is
accused of a highly publicized crime and as a result of the publicity, requests
a change of venue for his trial. The judge grants his request but selects a venue
whose demographics are significantly different from those of the community in
which the crime was allegedly committed. In particular, the population of the
newly selected judicial district is overwhelmingly white. Can the accused object
to the judge’s decision? Can he challenge the array if, as anticipated, it contains
few Aboriginal members? If the jury panel accurately reflects the racial compo-
sition of the judicial district for the trial, then the arguments developed in Sher-
ratt and Nepoose (no. 1) will prove to be of no assistance to the accused. Argu-
ments for jury representativeness which are founded on subsection 11(f) of the
Charter are so decontextualized that they cannot respond to many of the ineq-
uities of the criminal justice system. To be appreciated, the accused’s concerns
must be evaluated within the context of a racist society and a white-dominated
legal system. In other words, his argument must be located within equality juris-
prudence. Alleging a violation of subsection 15(1) of the Charter would there-
fore be the appropriate legal strategy under the circumstances.
Subsection 15(1) would also be available to victims of crime who are pre-
cluded from using section 11 to challenge the racial composition of jury panels.
The equality rights of victims, as well as defendants, are violated when mem-
bers of their race are excluded from the jury panel. The overwhelming majority
of people involved in the criminal justice system are white (e.g. the police offi-
cers, the courtroom officers, the lawyers and the judges). Defendants and vic-
tims from racial minorities are likely to experience a sense of alienation in this
all-white environment. The presence of people of colour on the jury may not
eliminate, but may alleviate, their alienation. The absence of jurors of their own
race increases the likelihood that there will be barriers to their ability to convey
their version of the facts. In particular, it increases the likelihood that racial
stereotyping will influence the jury’s evaluation of the evidence.
White jurors are most likely to be influenced by racial stereotypes because
they tend to have the least awareness about the dynamics of racism and they
tend to have the least contact with communities of colour. However, all people
are susceptible to racial stereotyping. Although it is possible to internalize the
beliefs of the dominant culture, people of colour are least likely to adopt stereo-
typical beliefs about the members of their own race because they are likely to
have contact with a community which exposes the falsity of those stereotypes.
Jurors of the defendant’s and victim’s race may therefore correct an imbalance
of attitudes which might otherwise govern the outcome of the trial.”t
ItSimulated jury studies have found that the race of the defendant affects determinations of
guilt. White subjects in these studies were more likely to find a person of colour guilty than they
were to find an identically situated white person guilty. These studies are summarized in S.L. John-
son, “Black Innocence and the White Jury” (1985) 83 Mich. L. Rev. 1611 at 1625-34. Johnson also
summarized the results of similar studies which investigated the impact of the victim’s race on
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REFORM OF CRIMINAL JURY SELECTION
When members of the victim’s race are excluded from the jury, there is an
increased risk that racist attitudes will operate in the defendant’s favour. The
system’s failure to address this risk demonstrates a disregard for the victim’s
needs; it trivializes and condones their victimization. The current jury selection
process implies that crimes committed against white victims are more egregious
and are therefore more deserving of efficacious prosecution. The process
thereby violates the equality rights of victims of colour. 10
In evaluating jury selection procedures, it is critical to move beyond an
examination of the rights of the accused and of the victim to a consideration of
the rightsa of prospective jurors. Since one of the primary functions of the jury
is “to act as the conscience of the communities,”‘” all people should have equal
access to jury duty in recognition of their equal worth as valued members of
their community. Jurors are entrusted with an important task. The disproportion-
ate over-representation of white people on jury panels implies that their values*
are more important, that their judgment is more respected, and that their per-
spectives are more legitimate than the values, judgment and perspectives of
those who are under-represented. Jurors are invested with the power to make
vital decisions which not only affect the outcome of individual trials but also
contribute to the formation of community standards. The concentration of that
power in the hands of white people constitutes institutionalized racism.
The jury also “provides a means whereby the public can learn about, and
critically examine, the functioning of the criminal justice system.”‘ 3 Jurors are
exposed to the mechanics of the courtroom process; the legal system is thereby
demystified. Due to their under-representation on jury panels, people of colour
are deprived of the equal benefit of this educational experience. White people
are privileged by their participation in the jury system. This, too, constitutes
institutionalized racism.
The equality rights of Aboriginal, Arab, Asian, Black and Hispanic people
are violated by the laws, regulations and practices which result in their systemic
exclusion from criminal jury panels. They are entitled to serve as jurors in all
criminal trials, regardless of the race of the victim or of the accused.
The issue of represenfativeness on.jury panels is quintessentially a question
of equality and should be addressed as such. The early Bill of Rights cases were
argued on that basis, albeit unsuccessfully. The rather dismal jurisprudence
determinations of guilt. White subjects in these studies perceived defendants to be more culpable
when their victims were white, less culpable when their victims were Black (ibid. at 1634-35). For
further development of the argument that jurors of colour might correct this imbalance, see Her-
bert, supra note 11 at 23-24, 28-30. See also R. Jameson, “Ethnic Background May Influence
Jurors’ Decisions” (1980) 16:3 Trial 11.
101In order to demonstrate a violation of s. 15 equality rights, a victim of colour need not prove
that the defendant would be convicted if the victim were white. The fact that the jury system rein-
forces the alienation and anxiety of victims of colour by failing to address the increased risk of
racist decision-making in the defefidant’s favour, is sufficient to establish that victims of colour suf-
fer a differential impact which disadvantages them.
102Law Reform Commission of Canada, The Jury (Report no. 16) by F.C. Muldoon, R.F. Paul
& L.D. Lemelin (Ottawa: Minister of Supply and Services Canada, 1982) at 5.
031Ibid.
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[Vol. 38
developed through those cases may have contributed to the reluctance to pursue
the equality rights strategy. Counsel for defendants began to search for alterna-
tive approaches. The advent of the Charter presented an exciting opportunity
for creative new arguments, but section 15 did not immediately come into
effect.” Thus the temptation to use section 11 was strong. Moreover, the early
section 15 cases mirrored the Bill of Rights jurisprudence and thereby quelled
any optimism that may have existed in that regard.
R. v. Kent, Sinclair and Gode0 5 was the first jury case involving an alleged
violation of subsection 15(1) of the Charter. One of the co-accused, Sinclair,
was a Treaty Indian whose mother tongue was Cree. At the outset of the trial,
he challenged the array pursuant to section 558 (now section 629) of the Crim-
inal Code. Unable to prove partiality on the part of the sheriff, his motion failed
and he was ultimately convicted. On appeal, he argued that his equality rights
had been violated because he was tried by an improperly constituted jury. Of the
114 people summoned for the original jury panel, only one was Aboriginal. The
panel was exhausted before a full jury had been selected, so an additional 36
people were summoned from the jury roll. The supplementary panel included
only one Aboriginal person (who eventually served on the jury). As proof of
racial discrimination, the accused relied exclusively upon the fact that there
were only two Aboriginal persons in a total panel of 148 potential jurors. His
counsel submitted: “[w]e do not need more evidence than that.”1″6 The justices
of the Manitoba Court of Appeal rejected this submission, ruling that it was
insufficient simply to point to the under-representation of members of a partic-
ular race on the array. Justice Matas cited the requirement, articulated in the
Butler case, that a violation of the equality provision of the Bill of Rights be
proven by evidence of deliberate racial exclusion. He then declared that “this
principle would be equally applicable to a challenge to a jury array based on the
Charter.””
This initial decision was rather discouraging, but subsequent cases signif-
icantly altered the evolution of constitutional equality jurisprudence. In partic-
ular, the Supreme Court of Canada ruling in Andrews v. Law Society of British
Columbia0 s marked a momentous departure from earlier Bill of Rights cases.
104The Charter came into force on April 17, 1982. Due to a three-year moratorium set out in
s. 32(2), s. 15 did not come into effect until April 17, 1985.
105(1986), 40 Man. R. (2d) 160, 27 C.C.C. (3d) 405 (Man. C.A.) [hereinafter Kent, Sinclair and
Gode cited to Man, R.].
1061bid. at 174.
1071bid. In the United States, the accused may establish a prima facie case of unconstitutional
discrimination by demonstrating a wide disparity between the proportion of his or her race in the
population of the county and the percentage represented on the jury panel. Once aprimafacie case
has been established, “the burden shifts to the State to rebut the presumption of unconstitutional
action by showing … permissible racially neutral selection criteria and procedures” (Alexander v.
Louisiana, 405 U.S. 625 at 632 (1972)). American courts have declared that a primafacie case of
discrimination cannot be rebutted merely by an official’s testimony that the jury selection was con-
ducted without bias. Specific and substantial evidence must be tendered to counter the evidence
of systemic exclusion. See e.g. Whitus v. Georgia, 385 U.S. 545 (1967); South Dakota v. Plenty
Horse, 184 N.W.2d 654 (So. Dak. Sup. Ct. 1971).
111[1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 [hereinafter Andrews cited to S.C.R.].
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REFORM OF CRIMINAL JURY SELECTION
Among other important developments, it adopted the principle developed under
human rights legislation, that intent is not required as an element of discrimina-
tion.” It is now well established that subsection 15(1) of the Charter prohibits
inadvertent as well as deliberate discrimination.”‘ Thus provincial jury selection
procedures may be unconstitutional notwithstanding the good intentions of
those who administer them. Subsection 629(1) of the Criminal Code may also
be unconstitutional because it precludes the success of jury panel challenges in
the absence of deliberate misconduct on the part of the sheriff.
Surprisingly, recent cases have not manifested the kind of legal argument
or judicial reasoning that might reasonably be anticipated in the post-Andrews
era of Charter equality litigation. In Chipesia,”‘ no Charter arguments were
made. The accused and the victim were both Aboriginal persons and the offence
allegedly occurred on an Indian reserve in British Columbia. The panel sum-
moned for the trial did not include any Aboriginal jurors. The accused furnished
evidence of two court circulars which outlined new provincial policies designed
to increase the participation of Aboriginal persons on juries.”i The circulars
instructed sheriffs to consult Band membership lists in conjunction with provin-
cial voters’ lists because the latter systematically under-represent Indians living
on reserves. Pursuant to the new policy, sheriffs would be provided with “an
estimate of the number of Indians living on reserves in relation to the total pop-
ulation from which jurors are selected.”” 3 In preparing a jury roll, names of
Aboriginal persons living on reserves were to be selected using these percentage
figures as a target amount.
The accused submitted that the total exclusion of Aboriginal persons from
the jury panel must have resulted from a conscious decision to ignore the new
policy directives. He offered this argument as evidence of partiality on the part
of the sheriff. Judge Harvey rejected the argument, noting that the sheriff pre-
pared the jury list at a time when he had no knowledge of the accused’s or vic-
tim’s race or of the contents of the court circulars, which he testified he had
never received. Harvey also noted that the provincial voters’ list used by the
sheriff to compile the jury roll may well have included the names of Aboriginal
persons. Adhering strictly to the terms of subsection 629(1) of the Criminal
191bid. at 173-75. In 1984, Professor Smith predicted that the success of Charter challenges to
jury selection procedures would depend on the courts’ position “on systematic or non-intentional
discrimination arising from facially neutral provisions which have a disproportionate impact on a
particular group” (Smith, supra note 93 at 390).
1 0″[A]s Andrews v. Law Society of British Columbia made clear …. not only does the Charter
protect from direct or intentional discrimination, it also protects from adverse impact discrimina-
tion …” (McKinney v. University of Guelph, [19901 3 S.C.R. 229 at 279, 2 C.R.R. (2d) 1).
In the United States, proof of purposeful discrimination is required in order to demonstrate a vio-
lation of the Equal Protection clause. Proof of a statute’s disparate impact is insufficient. Dispro-
portionate impact is not, however, completely irrelevant. The United States Supreme Court has
ruled that “an invidious discriminatory purpose may often be inferred from the totality of the rel-
evant facts, including the fact … that the law bears more heavily on one race than another” (Wash-
ington v. Davis, 426 U.S. 229 at 242 (1976)).
‘1 1Supra note 38 at 170.
” 2The circulars were issued by the Assistant Deputy Minister of Court Services in British
Columbia. One was a draft dated June 1989 and the other was dated July 1989, with the effective
date of the policy improvements indicated, as September 1, 1989.
113Chipesia, supra note 38 at 170.
McGILL LAW JOURNAL
[Vol. 38
Code, he concluded that “there is no evidence which proves the sheriff or his
deputy consciously, deliberately planned to exclude Native Indians from this
jury list.””‘ 4
The accused did not allege an infringement of subsection 15(1) of the
Charter but Judge Harvey nevertheless chose to address the issue. He indicated
in obiter dicta that the decision in Kent, Sinclair and Gode would be “determi-
native” Of a subsection 15(1) challenge.” 5 Although an equality rights violation
was not pleaded, with the consequence that Harvey J. did not have the benefit
of counsel’s submissions on this point, it is nonetheless astonishing that he
deferred to a judgment which not only pre-dated critical developments in Char-
ter equality jurisprudence, but which was explicitly based on Bill of Rights juris-
prudence.
The most recent reported decision involving a challenge to a jury panel
was Nepoose (no. 2).”‘ The defendant was an Aboriginal woman accused of a
crime that was committed in the Aboriginal community in which she resided.
That community is located within a judicial district with a radius of approxi-
mately 60 km. The jury panel was drawn from the population of the larger judi-
‘cial district, of which Aboriginal people constitute only a small percentage. The
accused argued that her constitutional right to a trial by jury included the right
to be tried by a jury selected from the community in which the offence was
committed. She further argued that the community in which the offence was
committed ought to be defined in a limited fashion, particularly in cases involv-
ing crimes committed on an Indian reserve in which both the victirii and defend-
ant are Aboriginal persons. Judge McFadyen held that “nothing … in the crim-
inal law or the Charter … requires such a limited interpretation of the right to
the benefit of a jury trial.”‘” 7
McFadyen J. explained her decision as follows:
While participation from minority groups must continue to be encouraged and
facilitated, no accused is entitled to trial by a jury selected on the basis of racial
considerations which would result in the eliminatiori of the general population
from the jury panel.” 8
McFadyen J. failed to recognize that the jury panel before her had in fact
been selected (albeit unintentionally) “on the basis of racial considerations”
which resulted in the elimination of Aboriginal persons who, moreover, consti-
tute part of “the general population.” The practice of summoning jurors from a
large (predominantly white) geographic region drastically reduced the number
of Aboriginal persons on the panel. The requested geographic restriction would
facilitate the participation of Aboriginal persons, an objective which McFadyen
J. endorsed. The proposed restriction would simultaneously decrease the partic-
ipation of non-Aboriginal persons, but it would not thereby violate their equality
“”Ibid. at 171.
15lbid. at 170.
” 6Supra note 24.
1’7lbid at 25.
“8Ibid.
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REFORM OF CRIMINAL JURY SELECTION
rights, as Judge McFadyen suggested.119 Subsection 15(2) of the Charter recog-
nizes the constitutional legitimacy* of measures undertaken to ameliorate the
material conditions of inequality suffered by disempowered groups. 20
The recent decisions in Chipesia and Nepoose (no. 2) suggest that the
Supreme Court’s interpretation of subsection 15(1) has not yet been fully
embraced by the lower courts. While it is disconcerting that cases are likely to
require appellate review in order to receive a proper contextualized equality
analysis, it is comforting that, in the end, existing provincial jury selection pro-
cedures are unlikely to withstand Charter scrutiny. The constitutional equality
provisions minimally guarantee protection against the systemic exclusion of
potential jurors based on their race.
The prospect of successful court challenges may induce legislative
reform. 21 However, the over-representation of white people on juries will not be
eliminated simply by amending the provincial statutes and regulations. The
in-court process for empanelling juries for criminal trials also contributes to the
exclusion of Aboriginal, Arab, Asian, Black and Hispanic jurors.122 This process
is governed by the provisions of the Criminal Code.”z The relevant provisions
are currently undergoing reform.1″
119″[T]o exclude eligible members of society because they were not of a particular race would
be as discriminatory as to exclude them because they were of a particular race” (ibid. at 26). In
support of this statement, McFadyen J. quoted from a Bill of Rights case: Bradley and Martin (no.
2), supra note 67. In that case, it was said that:
It is my opinion that the Bill of Rights does not attempt to, and indeed does not have
the power of forcing upon the Province of Ontario the obligation to use discrimination
in the selection of jurors. In my view it would be as much discrimination to insist that
a particular number of persons be of a particular race or colour as it would be to say
that such persons cannot participate as jurors in the trial process (Bradley and Martin
(no. 2), ibid. at 40-41).
She also quoted from a pre-Andrews Charter case.
The equality provisions of s. 15 do not require a jury composed entirely or proportion-
ately of persons belonging to the same race as the accused. An accused has no right
to demand that members of his race be included in the jury. To so interpret the Charter
would run counter to Canada’s multicultural and multiracial heritage and the right of
every person to serve as a juror … It would mean the imposition of inequality (Nepoose
(no. 2), ibid. at 26, quoting Kent, Sinclair and Gode, supra note 105 at 174-75).
1’2Criminal Code, s. 631.
124This paper was written in June 1992.
120″By its terms s. 15(2) informs us that measures aimed at ameliorating the conditions of those
who are disadvantaged because of such personal characteristics as race … (those in other words
who have been the victims of discrimination) are constitutionally permissible” (Harrison v. U.B.C.,
[1990] 3 S.C.R. 451 at 474-75, 77 D.L.R. (4th) 55, Wilson J. (dissenting on another point)).
12 1The Attorney General of Ontario is conducting a review of that province’s jury selection proc-
ess. See House of Commons Debates (11 June 1992) at 11796. See also T. Tyler, “Provincial Task
Force to Probe How Jurors Selected for Duty” The Toronto Star (9 May 1991) A7. Other provinces
may also be undertaking similar reviews. The Aboriginal Justice Inquiry of Manitoba made several
useful recommendations which should be implemented in all of the provinces and territories (The
Justice System, supra note 12 at 383, 387).
122For example, on January 30, 1989 at the Thompson assizes in Winnipeg, Aboriginal people
represented 36% of the initial jury panel but the three juries constituted from the panel contained
only two Aboriginal members each. Thus Aboriginal people represented only 17% of each jury
(The Justice System, ibid. at 379).
REVUE DE DROIT DE McGILL
[Vol. 38
Under the existing selection procedure, the names of jury panel members
are called at random and the individuals come forward in the courtroom. Both
the accused and the Crown are permitted to challenge each potential juror either
peremptorily”z or for cause.’ Both are entitled to an unlimited number of chal-
lenges for cause.’ The accused is entitled to twenty, twelve or four peremptory
challenges, depending on the seiousness of the offence charged.” The Crown
is entitled to only four peremptory challenges, but may direct as many as forty-
eight jurors to stand by until the jury panel has been exhausted.’29 Jurors stood
aside are only recalled if a full jury is not selected from the remaining panel. 3 ‘
The accused is required to declare whether or not each juror will be challenged
before the Crown is required to make a similar declaration.’ 3′ Any person whose
name is called and who is not rejected or stood aside is sworn as a jury member.
The process continues until sufficient jurors are sworn. In the provinces, a jury
consists of twelve members; in the Yukon Territory and the Northwest Territo-
ries, it consists of only six members.’32
In the post-Charter era, numerous courts examined the constitutional
validity of this process. The limit on the number of jurors in the Territories was
consistently declared invalid, albeit never by the Supreme Court of Canada. 133
Numerous defendants objected to the Crown’s ability to stand aside jurors and
to the requirement that the accused declare first whether or not a prospective
juror would be challenged. These objections were made with varying degrees
of success.3 4 The cases culminated in a recent Supreme Court of Canada deci-
sion which, in turn, prompted the current process of legislative reform.
In R. v. Bain,”5 the Supreme Court held that the Crown’s exclusive right
to stand aside jurors violates the defendant’s constitutional right to an independ-
ent and impartial jury. The numerical discrepancy between the Crown’s and the
defendant’s ability to dismiss prospective jurors permits the Crown a greater
role in fashioning the jury.’This impairs the appearance of impartiality which is
tification or explanation for the objection.
125A peremptory challenge is made by objecting to a prospective juror without offering any jus-
126A challenge for cause requires the articulation of a justification for excluding a prospective
juror. There are a limited number of acceptable grounds to justify a challenge for cause. See text
accompanying notes 170-73.
127Criminal Code, s. 638(1).
1281bid. at s. 633.
129Ibid at s. 634(1), (2).
130lbid. at s. 641.
131Ibid. at s. 634(3).
321bid. at s. 632. In those Territories, the accused is entitled to half the number of peremptory
133R. v. Bailey (1985), 17 C.R.R. 1 (Y.S.C.); R. v. Punch, [1985] N.W.T.R. 373, 48 C.R. (3d)
374 (S.C.) [hereinafter Punch cited to N.W.T.R.]; R. v. Emile, [1988] N.W.T.R. 196,42 C.C.C. (3d)
408 (C.A.).
‘ 34See e.g. R. v. Olson (1987), 47 Man. R. (2d) 115, 34 C.C.C. (3d) 564 (Q.B.); R. v. Byers
(1987), 66 Nfld. & P.E.I.R. 212, 36 C.C.C. (3d) 86 (P.E.I.S.C.); R. v. Stoddart (1987), 37 C.C.C.
(3d) 351, 20 O.A.C. 365 (C.A.); R. v. Favel (1987), 60 Sask. R. 176, 39 C.C.C. (3d) 378 (C.A.);
R. v. L.(P.T.) (1990), 9 W.C.B. (2d) 660 (P.E.I.S.C.).
challenges and the prosecutor may not direct more than 24 jurors to stand by.
135[1992] 1 S.C.R. 91, 87 D.L.R. (4th) 449, rev’g (1989), 68 C.R. (3d) 50, 47 C.C.C. (3d) 250
(Ont. C.A.) [hereinafter Bain cited to S.C.R.].
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REFORM OF CRIMINAL JURY SELECTION
an essential element of the right guaranteed by subsection 11(d) of the Char-
ter.136 Thus the Court declared the invalidity of subsections 634(1) and (2) of the
Criminal Code which “provide the Crown with a combination of peremptory
challenges and stand-bys that is more than four times in excess of the number
of peremptory challenges permitted to an accused.” ’37 The declaration of inva-
lidity was suspended for six mopaths.
The federal government responded to this decision by introducing Bill
C-70, An Act to Amend the Criminal Code (Jury).3 Passage of the Bill was
expedited so that the amendments could come into force upon the expiry of the
six-month suspension of the declaration in Bain.39 Bill C-70 proposes three fun-
damental changes to the in-court jury selection process.”
It repeals the section
of the Criminal Code Which limits the number of jurors to six in the Yukon and
Northwest Territories. 41 It stipulates that, in every trial, the accused and the
Crown will be entitled to equal numbers of peremptory challenges: twenty,
twelve or four each, depending on the gravity of the offence charged.42 Finally,
it requires the presiding judge to call alternately on the accused and the prose-
cutor to declare first whether or not a juror shall be challenged. 43
The primary objective of Bill C-70 is to equalize the positions of the
accused and the Crown in selecting jurors for criminal trials. The Supreme
Court ruling in Bain will eliminate the tactical advantage previously enjoyed by
the Crown. However, under certain circumstances, it would leave the Crown
with fewer peremptory challenges than the accused.'” The provisions of Bill
C-70 preclude that eventuality. 45
In its haste to respond to the Bain decision before the six-month suspension
of the declaration expires, the federal government has refused to pause to
address the issue of racism within the criminal jury selection process. The
Honourable Ian Waddell, representative of the New Democratic Party, has crit-
136Ibid. at 104, 148-49.
137Ibid at 104.
138Bill C-70, An Act to Amend the Criminal Code (Jury), 3d Sess., 34th Parl., 1992 (came into
force 23 July 1992, S.C. 1992, c. 41) [hereinafter Bill C-70].
139House of Commons Debates (5 May 1992) at 10100; House of Commons Debates (11 June
1992) at 11795-97.
14It also proposes other minor changes which will not be canvassed in this paper.
141Bill C-70, s. 2. This amendment has the potential to improve the racial diversity of juries in
the Yukon and Northwest Territories. See Law Reform Commission of Canada, The Jury in Crim-
inal Trials (Working Paper No. 27) (Ottawa: Minister of Supply and Services, 1980) at 36. See also
Punch, supra note 133 at 392.
ducing a new s. 635(1)).
always limited to four. See text accompanying notes 128-29.
142Bill C-70, s. 2, introducing a new s. 634(2).
143The judge shall call upon the accused first with respect to the first juror (Bill C-70, s. 2, intro-
144In some cases, the accused will have 20 or 12 peremptory challenges whereas the Crown is
145″The Supreme Court of Canada has suspended the effect of its decision for six months in
order to permit Parliament to amend the Criminal Code. … Failure to enact new jury provisions
before July 23 would have the potential to leave the Crown at a distinct disadvantage in the jury
selection process once the suspension of the judgment is lifted on that date” (Mr. Rob Nicholson,
House of Commons Debates (5 May 1992) at 10099).
McGILL LAW JOURNAL
[Vol. 38
icized the government for “[going] through the process of drafting and debating
amendments to the Criminal Code without making full use of this opportunity
to really effect meaningful and innovative change …,,.’ His criticism has been
met with the response that the Department of Justice is currently studying the
problem.’47
In fact, the new in-court jury selection procedure is likely to increase the
participation of Aboriginal, Arab, Asian, Black and Hispanic jurors, at least
marginally. However, this improvement will not be to the federal government’s
credit. Rather, it will be a serendipitous result of the abolition of stand-asides in
the Bain decision.
The judicial reasoning in Bain was not informed by an anti-racist critique
of the jury selection process. The Supreme Court Justices mentioned only one
concrete example of an abusive use of stand-bys. They cited R. v. Pizzacalla,45
a case in which the Crown Attorney admitted using 20 out of 23 stand-asides
to exclude prospective male jurors. The result was that an all-female jury tried
and convicted the male defendant on three counts of sexual assault. The defend-
ant successfully appealed his conviction, arguing “that the manner in which the
Crown exercised its right to stand aside jurors gave ‘the appearance that the
prosecution had secured a favourable jury, rather than simply an impartial
one.”” 49 The implication was that subsection 11(d) of the Charter was thereby
violated. 5
The Ontario Court of Appeal decision in Pizzacalla is the only reported
case involving allegations of improper use of stand-asides. There is, however,
reason to suspect that it is common practice for some Crown Attorneys to reject
jurors on the basis of their race. The perception of criminal defence lawyers sur-
veyed by the Aboriginal Justice Inquiry of Manitoba supports such a suspicion.
Asked whether Crown attorneys challenged or stood aside Aboriginal persons
more often than non-Aboriginal persons, 83% of Legal Aid staff lawyers and
77% of private counsel responded affmnatively.” Based on my limited expo-
sure to jury selections, I have come to share that perception.15 2
17% of Crown attorneys agreed (The Justice System, supra note 12 at 384).
146House of Commons Debates (11 June 1992) at 11793.
‘471bid at 11796.
141(1991), 7 C.R. (4th) 294 (Ont. C.A.) [hereinafter Pizzacalla].
1491bid. at 296.
15iThis may be inferred from the cases which were cited by the Court.
‘Only
152As a law student in the spring of 1987, 1 obtained a summer position with the Attorney Gene-
ral’s office in Kingston, Ontario. My first day on the job was also the day for jury selections for
the summer court sitting. I watched attentively as the jtiries for four trials were empanelled. There
was only one person of colour in the array, a Chinese woman who appeared to be in her thirties.
Twice her name was called and both times she was stood aside. Later, I asked the Crown Attorney
why he had rejected her. He responded that although his actions “might appear to be racist,” he
actually had a legitimate reason for excluding her: “She probably cannot understand English well
enough to follow the testimony during the trial.” The woman had complied with all of the (English)
directions given during the selection process. She had not spoken a word. There was no reason to
believe that English was not her first language or that she could not understand and speak it with
ease.
On one other occasion, I had the opportunity to observe a criminal jury selection process. I went
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Although widespread racist use of stand-asides has not been empirically
documented, there is sufficient evidence of misuse to discourage the preserva-
tion of this Crown right. 3 Moreover, as Justice Cory stated in Bain,
[I]t would seem that whenever the Crown is granted statutory power that can be
used abusively then, on occasion, it will indeed be used abusively. The protection
of basic rights should not be dependent upon a reliance on the continuous exem-
plary conduct of the Crown, something that is impossible to monitor or control. 154
Cory J. did not specifically contemplate the influence of racism on the jury
selection process, but his comments are nevertheless appropriate in that context.
While the abolition of stand-asides is desirable, it will not completely elim-
inate the potential for racism in jury selections. Through the use of peremptory
challenges, both the Crown and the defence have at their disposal the means to
exclude jurors summarily. Bill C-70 explicitly preserves the use of peremptory
challenges. In fact, it increases the number of challenges available to the Crown
in certain circumstances. 5′ With no reasons provided and none demanded, a
minimum of eight and as many as forty prospective jurors may be challenged
peremptorily. 56 Both parties have considerable opportunities to make juror
selections based on racist or otherwise discriminatory grounds. 7 The in-court
process for empanelling juries consequently remains open to manipulation and
abuse.
Past incidents of abuse have been documented. The Aboriginal Justice
Inquiry of Manitoba recorded the following statistics, which include the use of
stand-asides as well as peremptory challenges:
On one day of the Thompson assizes in January 1989, thirty-five of the forty-one
Aboriginal people who were called to serve on three juries were rejected. In one
case, the Crown rejected sixteen Aboriginal jurors; in another, the defence rejected
two and the Crown rejected ten; in the third and final case, the defence accepted
all the proposed Aboriginal jurors while the Crown rejected nine. Two jurors were
rejected twice.’ 5s
to the Kingston courthouse with a group of law students as part of a class assignment in 1988.
Afterward, a student commented that there were few people of colour on the jury panel (only three)
and that those whose names were called (one Hispanic woman and one Asian man) were stood
aside by the Crown Attorney; the Hispanic woman was stood aside twice.
53See text accompanying note 158.
1
154Bain, supra note 135 at 103-04. Justices Lamer and LaForest concurred.
‘ 55See text accompanying notes 144, 145.
156In cases in which the prosecution and the defence are entitled to 20 peremptory challenges,
as many as 40 prospective jurors may be excluded.
157The Crown and the accused are provided with a list of the names, occupations and addresses
of the prospective jurors. Certain details can be gleaned from this panel list. For example, some
names suggest that the juror is probably Jewish, some addresses suggest that the juror is probably
poor or working-class, and some occupations suggest that the juror is probably middle-class or
wealthy. If the juror’s name is called, other details immediately become apparent. Personal char-
acteristics such as gender, race and age are usually identifiable. Certain types of disabilities are vis-
ible. Finally, a juror’s mode of dress may be informative. For example, the observer may notice
an expensive suit, a yarmulka or a turban. Thus, in addition to racism, other forms of discrimination
such as ableism, anti-Semitism, and classism may influence the selection process.
158The Justice System, supra note 12 at 384.
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The highly publicized Helen Betty Osborne case provides another useful
example. In that case, an Aboriginal woman was murdered in a community in
which Aboriginal people constitute more than 50% of the population. The
defence counsel peremptorily challenged the six Aboriginal jurors who were
called. A jury with no Aboriginal members was empanelled for the trial. 59
Canadian courts have yet to be confronted by constitutional challenges to
such discriminatory practices. Based on obiter dicta from various Supreme
Court decisions, the judicial response to some potential arguments may be pre-
dicted. In his dissenting opinion in Bain, Mr. Justice Gonthier suggested that the
Charter offered protection against prosecutorial abuse of peremptory challenges
based on race.” However, in Sherratt, Madam Justice L’Heureux-Dub6 com-
mented that peremptory challenges were justified notwithstanding that they can
“be used by the parties to alter somewhat the degree to which the jury represents
the community.”” Thus it appears that a prosecutor’s racially motivated use of
peremptory challenges does not violate the defendant’s right to a trial by a (rep-
resentative) jury, as guaranteed by subsection 1f(f) of the Charter. The defen-
dant’s right to an impartial tribunal, as guaranteed by subsection 11(d), may
offer no greater protection under the circumstances. In Bain, Justice Stevenson
remarked that the peremptory challenge “may be used under partisan consider-
ations, and so long as the right of exercise is proportionate neither the crown nor
the accused can be said to have an unconstitutional advantage., 162
The judicial response to a subsection 15(1) argument is particularly diffi-
cult to predict. In the past, Supreme Court justices have been rather emphatic
about the unfettered nature of peremptory challenges, but no pronouncements
have been made in a context in which the issue of racism was before the Court.
In the 1979 case of Cloutier v. R., 63 the Court ruled that an accused person who
unsuccessfully challenges a prospective juror for cause is not thereby precluded
from exercising a peremptory challenge with respect to the same juror.”6 Mr.
Justice Pratte reasoned as follows:
The very basis of the right to peremptory challenges, therefore, is not objective but
purely subjective … The very nature of the right to peremptory challenges and the
Bait, ibid. at 126.
Debates (12 June 1992) at 11896.
1591bid. See also House of Commons Debates (11 June 1992) at 11794; House of Commons
160Bain, supra note 135 at 133. Madam Justice McLachlin and Mr. Justice Iacobucci concurred.
161Sherratt, supra note 89 at 532. This was reiterated in Gonthier J.’s dissenting judgment in
162Bain, ibid. at 159. Contrary to Stevenson L’s assertion, a party who wishes to secure an exclu-
sively white jury will almost inevitably have a tactical advantage, notwithstanding that both parties
have equal numbers of peremptory challenges. Since virtually all jury panels are predominantly
white, peremptory challenges can be used to deplete the pool of jurors of colour. If it is not
depleted, then it will suffer disproportionate losses. Consider, for example, a panel of 100 jurors,
75 of whom are white. If one party exercises 20 peremptory challenges to exclude white jurors and
the other exercises 20 peremptory challenges to exclude jurors of colour, then the remaining panel
will include 55 white jurors and 5 jurors of colour. The initial panel which was 75% white is now
almost 92% white.
Stevenson J.’s remark also ignores the equality rights of the jurors who are entitled not to .be
excluded on the basis of their race.
163[1979] 2 S.C.R. 709, 48 C.C.C. (2d) 1 [hereinafter Cloutier cited to S.C.R.].
164This has been incorporated into Bill C-70, s. 2, introducing a new s. 634(1).
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objectives underlying it require that its exercise be entirely discretionary and not
subject to any condition. 16 5
The “purely subjective” nature of peremptory challenges was recently reiterated
by Justice Stevenson in Bain.66 Thus the Supreme Court appears reluctant to
impose limits on the exercise of peremptory challenges. It may, however, be
compelled to do so if confronted with circumstances which amount to a blatant
violation of subsection 15(1) of the Charter.
In the United States, the Supreme Court has ruled that a prosecutor’s
racially motivated use of peremptory challenges violates the Equal Protection
Clause of the Fourteenth Amendment.67 It has recently extended that ruling to
defence counsel’s exercise of peremptory challenges.1 68 Canadian courts may
some day reach similar conclusions. However, rather than relying on the judi-
ciary to respond to complaints of misuse, it would be preferable to eliminate
peremptory challenges. 69 The logic and fairness of preserving peremptory chal-
lenges in Bill C-70 is questionable, given that they have been used in the past
to exclude jurors based on their race.
As the Aboriginal Justice Inquiry of Manitoba recommended, it would be
best to preserve only challenges for cause as a means for rejecting prospective
jurors. 70 Challenges for cause are not readily susceptible to abuse. The grounds
for such challenges are exhaustively enumerated in subsection 638(1) of the
Criminal Code. The most common ground is that the juror is not “indifferent
between the Queen and the accused.” When a challenge for cause is asserted,
the opposing party may admit it, in which case the juror will not be swom.’ 7′
The opposing party may alternatively submit that the ground for the challenge
is not recognized in law, in which case the judge will rule on the propriety of
the challenge.’72 Finally, the opposing party may contest the challenge, in which
case the issue will be tried by the two jurors who were last sworn. 73 Given the
stringency of the challenge procedure, it would be very difficult to effect a race-
motivated exclusion under the pretext of one of the permitted grounds. The
165Cloutier, supra note 163 at 720-21.
166Bain, supra note 135 at 153′
167Batson v. Kentucky, 476 U.S. 79 (1986). For more information on the American case law, see
C. Petersen, “The United States Criminal Jury Selection Process” in T. Pickard & P. Goldman, eds.,
Dimensions of Criminal Law (Toronto: Emond Montgomery, 1992) 1115.
16’Georgia v. McCollum, 120 L. Ed. 2d 33 (1992).
169The elimination of peremptory challenges must occur as part of a comprehensive overhaul of
the criminal jury selection process. Jury panels must become representative and the challenge for
cause procedure must be improved (see below). In the absence of these changes, the elimination
of peremptory challenges may reinforce the over-representation of white people on juries. This has
happened in England. See Herbert, supra note 11 at 3-4.
2 S.C.R. 267, 15 O.R. (2d) 324 [hereinafter Hubbert cited to O.R.].
170See .The Justice System, supra note 12 at 385.
171See R. v. Hubbert (1976), 11 O.R. (2d) 464 at 479, 29 C.C.C. (2d) 279 (C.A.), aff’d [1977]
172The Ontario Court of Appeal suggested in Hubbert the following example of an improper
challenge: “that a prospective juror and a prospective witness are of the same racial origin” (ibid.
at 479).
173Crimnal Code, s. 640(2). If no jurors have yet been sworn, then two prospective jurors are
appointed by the Court to try the issue.
McGILL LAW JOURNAL
[Vol. 38
challenger must satisfy the presiding judge that there is some foundation for the
challenge. In order to do so, counsel must communicate a reason outside of the
mere words of the Criminal Code.74 Although challenges for cause are not
restricted to extreme cases or exceptional circumstances,175 they are confined to
cases in which there is a realistic potential for the existence of partiality on a
sufficiently articulated ground. 76 In Canada; counsel are rarely permitted to
challenge a juror for cause. If permitted to proceed, a challenger may call the
prospective juror as a witness. The opposing party may also question the juror.
The judge exercises control over the process and may rule as to the relevance
of the questioning, but the ultimate determination of the success of the challenge
is left to the two triers of the issue. If the triers decide that the challenge has
been substantiated, then the juror will not be sworn. The triers may, however,
find against the challenger, in which case the juror will be sworn (provided that
the juror is not then peremptorily challenged).
Clearly, it is difficult to misuse the challenge for cause procedure to strike
prospective jurors on account of their race. Unfortunately, it is equally difficult
to use the procedure to exclude jurors who adhere to biased views which may
jeopardize the impartiality of a trial. Based on the grounds enumerated in sub-
section 638(1) of the Criminal Code, a defendant or a prosecutor should be per-
mitted to reject a juror whose racist views render him or her “not indifferent
between the Queen and the accused.” However, difficulty may arise in obtaining
permission to question jurors in such a way as to elicit possible racial prejudice.
In the past, the judiciary has been reluctant to accept mere apprehension of rac-
ism as a foundation for a challenge for cause. 177
Two Ontario cases furnish evidence of this reluctance. In R. v. Racco (no.
2),178 Judge Graburn refused to permit defence counsel to question prospective
jurors about their possible prejudice against Italians. He stated:
I know of no prejudice against any ethnic group in this city, and no evidence to
that effect has been tendered before me … and I am most anxious at the outset of
the trial that challenges for cause do not furnish the backgiound of racial, national
or religious overtones in the trial … It may be that in other places a hint of bias
or prejudice has been detected and that a challenge for cause has been necessary
in order to ensure the accused a fair trial, but in my opinion, such is not evident
in this city. 179
In R. v. Crosby,8
the accused was a Black man who sought to question
prospective jurors about their possible racism. Judge Osler noted that the major-
174The Ontario Court of Appeal has held that the reason must be “in more than general words”
(Hubbert, supra note 171 at 479). The Supreme Court of Canada has ruled that the trial judge
“must be given an adequate explanation for the challenge outside of the mere words of the section”
(Sherratt, supra note 89 at 527-28).
175See text accompanying note 184.
176See text accompanying note 186.
177The United States Supreme Court has similarly developed a restrictive test for determining
when race-directed questions may be put to prospective jurors. For information on the Anierican
process, see Petersen, supra note 167 at 1118-20.
178(1975), 29 C.R.N.S. 307, 23 C.C.C. (2d) 205 (Ont. Co. Ct.) [hereinafter Racco (no. 2) cited
to C.R.N.S.].
1791bMd, at 310.
180(1979), 49 C.C.C. (2d) 255 (Ont. H.C.).
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REFORM OF CRIMINAL JURY SELECTION
ity of Crown witnesses were white and that the majority of defence witnesses
were Black. He also noted that “few, if any,” of the prospective jurors were
Black. He nevertheless refused to permit the questioning based on the following
reasons:
I think it is a matter of common knowledge that throughout society there are many
people who hold particular prejudiced views about other segments of society….
Certain long persisting prejudices are generally acknowledged, relating frequently
to religious differences and frequently to differences of colour. Sometimes they
relate to differences of national origin. From time to time something in the nature
of a cause celebre arises in a given community which indicates that passions are
running high and that hate and prejudice regarding one or more segments of the
community is rampant in that community. Fortunately, in our land we have been
spared most of the major manifestations of this phenomenon. … It seems to me
that, in the absence of any notorious episode in a community of the type I have
mentioned, to permit challenges of this kind to go forward simply on the ground
that man [sic] is prejudiced and that black and white may frequently be prejudiced
against each other is to admit to a weakness in our nation and in our community
which I do not propose to acknowledge.’
Osler J.’s requirement that there be a “notorious episode” before the poten-
tial for racism can be addressed was consistent with other early cases on the use
of the challenge for cause procedure. In Hubbert, five justices of the Ontario
Court of Appeal unanimously ruled that only in “extreme cases” would public-
ity concerning a particular crime give rise to the degree of partiality that would
lead to the right to challenge for cause.” The justices stressed that trials “should
not be’unnecessarily prolonged” by “speculative” challenges.” 3
In the post-Charter era, a defendant’s right to a trial by an independent and
impartial tribunal may override these considerations. In Sherratt, Madam Jus-
tice L’Heureux-Dub6 criticized the trial judge for using the word “extraordi-
nary” to describe the challenge for cause procedure. “The process,” she wrote,
“is neither ‘extraordinary’ nor ‘exceptional.'”” She elaborated:
If the challenge process is used in a principled fashion, according to its underlying
rationales, possible inconvenience to potential jurors or the possibility of slightly
lengthening trials is not too great a price for society to pay in ensuring that accused
persons in this country have, and appear to have, a fair trial before an impartial tri-
bunal, in this case, the jury. 185
The threshold test, as established by the Supreme Court of Canada, is whether
or not there exists a realistic potential for partiality on the part of a prospective
juror. 6 It remains to be seen whether the judiciary will be willing, in future
cases, to admit the realistic potential for racist partiality on the part of virtually
any juror.
To refuse to do so would demonstrate a regrettable lack of even rudimen-
tary race awareness. People of colour experience racism in all aspects of their
1811bid. at 255-56.
182Hubbert, supra note 171 at 477.
83Ibid, at 476.
184Sherratt, supra note 89 at 536.
1851bid. at 533.
’86Ibid, at 536.
REVUE DE DROIT DE McGILL
[Vol. 38
lives (e.g. employment, housing, public transit and education). It is unrealistic
to assume that racism will not also be present in the jury room. The apprehen-
sion of bias that may be experienced by a defendant of colour, or by the pros-
ecutor in a case involving a victim of colour, should not be trivialized or
ignored. Counsel should be permitted to question prospective jurors in such a
way as to attempt to identify those whose racial prejudices would likely inter-
fere with their ability to be fair.
Such a liberalization of the challenge procedure should also extend to cases
in which there is a reasonable apprehension of other forms of discrimination.
For example, in cases involving lesbian or gay victims or defendants, counsel
should be permitted to inquire about prospective jurors’ potential homopho-
bia.’ sT Similar inquiries might be necessary, in appropriate circumstances, with
respect to anti-Semitism, ableism, classism or sexism.
In the Pizzacalla case, the Crown Attorney might not have been inclined
to stand aside male jurors if he could have been assured that they were not
biased against the victims. The case involved allegations of sexual assault made
by female employees of the male accused. The Crown explained his actions as
follows:
In my experience, I was of the view that I might encounter a man or more than
one man who felt that, somehow, a person in the workplace has the right to fondle,
touch, make passes at, or otherwise touch people in the workplace. 8
Given the prevalence of sexual harassment in the workplace,’89 the Crown’s
concern could hardly be characterized as unreasonable. He should have been
permitted to question the jurors about their attitudes regarding sexual harass-
ment.
Liberalization of the challenge for cause procedure is a crucial element of
the required reform of the Canadian criminal jury selection process. A commit-
187Ruthann Robson recounts the story of Annette Green, a battered woman who was convicted
of murder for killing her abusive lesbian lover. Green’s defence attorney advised Professor Robson
that “[o]ne jury member related an incident to the judge in which two venire members spoke in
the women’s restroom about their desire to be selected as jurors in order to ‘hang that lesbian
bitch”‘ (R. Robson, “Lavender Bruises: Intra-Lesbian Violence, Law and Lesbian Legal Theory”
(1990) 20 Golden Gate University L. Rev. 567 at 575, note 35). See also Harvard Law Review Edi-
tors, Sexual Orientation and the Law (Cambridge: Harvard University Press, 1990) at 42-43; A.
Young, “Out of the Closets, Into the Street” in K. Jay & A. Young, eds., Out of the Closets: Voices
of Gay Liberation (New York: Douglas/Links, 1972) 6 at 15.
In a recent New York case involving the trial of two men for the murder of a gay man in a “gay
bashing” incident, defence counsel requested that prospective jurors be asked whether or not they
were lesbian or gay in order to exclude all lesbians and gay men from the jury. State Supreme Court
Justice Ralph Sherman refused to put the question to all the prospective jurors, but did ask one
juror whether she was a lesbian because she indicated that she “knew gays.” See “Judge Asks
Female Juror If She Is a Lesbian” Bay Windows (7 November 1991) 12.
1 8sizzacalla, supra note 148 at 295.
1t 9See Canadian Human Rights Commission, Unwanted Sexual Attention and Sexual Harass-
ment: Results of a Survey of Canadians (Ottawa: Ministry of Supply and Services, 1983); B. Robi-
chaud, A Guide to Fighting Workplace Sexual HarassmentlAssault (Ottawa: Cheriton Graphics,
1988); C. Backhouse & L. Cohen, The Secret Oppression: Sexual Harassment of Working Women
(Toronto: MacMillan, 1978).
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REFORM OF CRIMINAL JURY SELECTION
ment to facilitate the participation of jurors of colour must be accompanied by
a commitment to facilitate the exclusion of jurors with racist views. While racist
views will not necessarily be discovered by questioning prospective jurors, they
cannot be discovered without questioning.
Multi-racial juries are likely to possess the diversity of experiences and
multiplicity of perspectives that are required for an enlightened deliberative
process. Increased jury representativeness is therefore an important goal. How-
ever, not all perspectives ought necessarily to be represented on juries. In his
dissenting opinion in Bain, Justice Gonthier made the following remarks:
Of course, I do not consider that jurors come to their task with a completely blank
slate, devoid of any preconceptions and prejudices. Each juror has his or her own
particular mind-set, and it forms part of his or her representative quality. 19
Although racist jurors represent a segment of the Canadian population, that fact
alone does not justify their participation on juries. Criminal juries should
embody the collective good sense of the community, not the collective racism
of society.
19Bain, supra note 135 at 126.
