Court File and Parties

COURT FILE NO.: CR-16-0007-00 DATE: 2017-07-19

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN A. A. Sadler & C. Hepburn, for the Crown

- and -

JONATHAN GREEN R. Sinding, for the Accused

Accused

HEARD: July 7, 2017 by video conference, at Thunder Bay, Ontario

Mr. Justice W.D. Newton

Reasons on Application

Overview

[1] Mr. Green brings an application before his scheduled jury trial challenging the jury panel on the grounds that the panel is not representative of the population and, therefore, not in compliance with the Juries Act, R.S.O. 1990, c. J.3.

[2] Counsel spoke to this application on July 7, 2017 and I summarily dismissed the application with written reasons to follow.

The Facts

[3] Mr. Green is charged with sexual assault.

[4] His trial was set to begin, and did begin, on July 10, 2017.

[5] Immediately upon receipt of the jury panel list [^1] counsel for Mr. Green served this application.

[6] In support of the application Mr. Green’s counsel filed an affidavit from his clerk in which the clerk compared the composition of the jury panel list to population data for the District of Rainy River. It is asserted in the affidavit that the on reserve indigenous population is estimated at 11% and that the population of the unorganized territories is estimated at 5.8% of the total population of the District of Rainy River. It is also asserted that if the jury panel list was proportionate to the population of the District then 17 persons from on reserve communities and nine persons from the unorganized townships should be on the jury panel list. It is asserted that the panel list has one person from an on reserve community and no one from the unorganized townships.

[7] The challenge is not based on Mr. Green’s ethnicity rather simply that the jury panel is not representative.

The Law

[8] For clarity, I use the term jury to represent the 12 citizens chosen to try the case, jury panel to represent the 150 names of the people summonsed for jury duty and jury roll to represent the list from which the jury panel is selected.

[9] In R. v. Kokopenace, 2015 SCC 28 the Supreme Court addressed the issue of representativeness of juries.

[10] The following paragraphs from that decision are instructive:

41 The first feature -- the use of source lists that draw from a broad cross-section of society -- aims to capture as many eligible jurors in each district as possible. A perfect source list would capture all eligible jurors and would therefore proportionately represent all eligible groups in the district. However, the Charter does not mandate a proportionately representative list, nor would such a requirement be feasible. Indeed, it would be virtually impossible to find a source list that meets this requirement.

42 The second feature -- random selection -- focuses on the manner in which individuals are selected from the source lists for inclusion on the jury roll. It ensures that everyone captured on the source lists has an equal chance of being selected for the jury roll. Consequently, representativeness cannot require a jury roll of a particular composition. This would necessitate a selection process that inquired into prospective jurors' backgrounds -- a concept that is incompatible with random selection. Indeed, no province requires that its jury rolls proportionately represent the cultures, races, religions, or other individual characteristics of its inhabitants. Requiring that a jury roll proportionately represent the different religions, races, cultures, or individual characteristics of eligible jurors would create a number of insurmountable problems. As the Ontario Court of Appeal held in R. v. Brown (2006), 215 C.C.C. (3d) 330, 2006 ONCA 827, at para. 22:

There are an almost infinite number of characteristics that one might consider should be represented in the petit jury: age, occupation, wealth, residency, country of origin, colour, sex, sexual orientation, marital status, ability, disability and so on. It would be impossible to ensure this degree of representation in any particular jury.

46 Consequently, in defining representativeness as it pertains to the jury roll, the focus is on the process, not the result. If the state has used an adequate process, the jury roll will necessarily be representative even if particular subsets of the population have few individuals on the jury roll.

51 One important clarification about the relationship between representativeness and impartiality is in order. The narrow way in which representativeness is defined in Canadian jurisprudence means that impartiality is guaranteed through the process used to compile the jury roll, not through the ultimate composition of the jury roll or petit jury itself. A jury roll containing few individuals of the accused's race or religion is not in itself indicative of bias. [Emphasis added]

Analysis and Disposition

[11] The argument advanced is that since the jury panel is not representative proportionately to the District population then the selection process to prepare the roll must be flawed.

[12] In R. v. Kokopenace the Supreme Court clearly stated that there must be an evidentiary basis to attack the jury selection process.

[13] One cannot infer that a failure to have a jury panel representative proportionately to the population of the District means that the process to prepare the jury panel is flawed.

[14] In R. v. Cody, 2017 SCC 31 the Supreme Court reinforced the instruction to trial judges to actively case manage applications and directed that, when appropriate, applications should be dismissed summarily:

38 In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 7 O.R. (3d) 277 (C.A.), 1992 ONCA 7751, at pp. 287-89; R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.), 1996 BCCA 1005). And, even where an application is permitted to proceed, a trial judge's screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel -- Crown and defence -- should take appropriate opportunities to ask trial judges to exercise such discretion. [Emphasis added]

[15] Accordingly, I exercise my trial management powers to summarily dismiss this application as there is no evidentiary basis to attack the composition of the jury panel.

“Original signed by”____ The Hon. Mr. Justice W.D. Newton

Released: July 19, 2017

Footnotes

[^1]: Section 20 of the Juries Act provides that the panel list shall not be disclosed until 10 days before the jury sittings.