COURT FILE NO.: CRIMJ(P) 359/17 DATE: 20190425 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – GARY HOFFMAN Applicant

Counsel: Daniel Guttman, Adam Bernstein and Theo Sarantis, for the Crown, Respondent Michael A. Moon and Nadia Klein, for the Applicant

HEARD: March 11, 12, 13, April 16, 2019

RULING ON CHARTER CHALLENGE TO JURY REPRESENTATIVENESS J.M. Woollcombe J.

Introduction

[1] The applicant, Gary Hoffman, is charged with manslaughter in relation to the death of Madad Kenyi. His trial is scheduled to proceed before me, with a jury, beginning on May 13, 2019.

[2] Pursuant to s. 629 of the Criminal Code, the applicant challenges the jury panel on the ground of partiality on the part of the sheriff. In his Amended Notice of Application, he submits that:

• His right to be tried by a jury of his peers and, in particular, his rights to an impartial and representative jury, as provided in ss. 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms (the “Charter”), have been violated by the failure of the Province of Ontario to make reasonable efforts to provide for a fair opportunity for a broad cross-section of society to participate in the jury process;
• The methodology used by the Province to compile jury source lists systematically and deliberately excludes portions to the populations of the public who do not own property; typically a marginalized population in Peel;
• That in its purpose or effect, the legislative regime of the Juries Act, R.S.O. 1990, c. J.3 deliberately excludes portions of the population from enumeration on jury rolls resulting in the appearance of bias at a systemic level and thereby reducing confidence in the criminal justice system and violating the applicant’s rights as guaranteed by ss. 11(d) and 11(f) of the Charter.

[3] Relying on his position that the Province excludes non-property holders from jury enumeration, on the differential impact this exclusion is said to have on non-Caucasians generally, and, more specifically on the black population in Peel, and on the resulting adverse impact this has on the administration of criminal justice and the role of the juries, the applicant initially sought the following orders:

• a declaration that the Province of Ontario has violated his rights under s. 11(d) and (f) of the Charter;
• a declaration that the limitations imposed on the applicant’s rights under ss. 11(d) and (f) of the Charter are not demonstrably justified as a reasonable limit within a free and democratic society as defined by s. 1 of the Charter;
• an order under s. 52 of the Constitution Act, 1867 requiring the Province of Ontario to amend the process by which jury criminal rolls are compiled so as to comport with the rights of an accused to a fair and representative jury as guaranteed by ss. 11(d) and (f) of the Charter, in such a manner and within such time frame as the court directs; and
• an order under s. 24(1) of the Charter staying the charges against him on the basis that it would be functionally impossible, in the absence of a full and complete enumeration of all citizens in the Region of Peel, to have a fair and representative jury, as guaranteed under ss. 11(d) and (f) of the Charter.

[4] After the hearing of the application, while my decision was under reserve, I was asked by the parties to hear further submissions from them. This was because on April 11, 2019, Ontario introduced amendments to the Juries Act as part of Ontario’s spring Budget Bill.

[5] The proposed legislation, which has received first reading, repeals ss. 4 to 7 of the Juries Act. The proposed legislation gives to the Ministry of Health and Long Term Care the statutory obligation of preparing a jury source list on or before June 1 of each year. The source list must contain the names and addresses of every person who, according to the most recent information available to the Ministry of Health and Long Term Care, is registered as an insured person under the Health Insurance Act, resides in Ontario, is a Canadian citizen and will be at least 18 on or before December 31 of the year in which the list is provided.

[6] In view of this proposed legislation, the applicant now seeks as a remedy a stay of proceedings until the coming into force of the proposed legislation, and the availability of a jury source list that is created by the Ministry of Health and Long Term care, which he accepts would be representative.

The Issue to be Decided

[7] I would frame the issue to be decided on this application in the following manner:

• Has the applicant met his burden of establishing that the manner in which the Province of Ontario compiled the jury source list for 2019 jury trials in Peel violated his rights as protected by ss. 11(d) and (f) of the Charter because: (1) the process creates a representativeness problem that gives rise to bias or a reasonable apprehension of bias (in violation of s. 11(d) for the Charter) or, (2) the process used fails to provide a fair opportunity for a broad cross-section of society to participate in the jury process because it disproportionately excludes non-property owners and as a result it disproportionately excludes black people from the source lists (in violation of s. 11(f) of the Charter)?

The Evidence on the Application

[8] On the application, the only witness who testified was Sydney Howes, who works as an Elections Information Specialist at the head office of the Municipal Property Assessment Corporation (“MPAC”). This body’s primary responsibility is for property assessment for municipal tax purposes in Ontario, in accordance with the Assessment Act, R.S.O., 1990, c. A.31. MPAC is also responsible, under the Juries Act, for compiling a list of individuals who meet the criteria in s. 2 of the Juries Act to be eligible for jury duty.

[9] In addition, the applicant filed an affidavit of Leah Gensey, to which a number of exhibits were attached. The applicant relies on only some of those exhibits including census documents from Statistics Canada from the 2016 Census of Population and documents from MPAC. The MPAC documents include, most significantly, a document entitled “Overview of MPAC’s Role in Preparation of Jury Lists”, and a Briefing Note from February 23, 2017 for the Minister of Finance and a letter to the Minister of Finance from MPAC’s Chair of the Board of Directors dated February 23, 2017.

[10] The Crown did not file affidavit evidence in response. But, during the course of the cross-examination of Mr. Howes, the re-examination, and the subsequent submissions, additional evidence was filed including:

• a Slide Deck entitled, “MPAC Enumeration Update” (Exhibit 1);
• an Agreed Statement of Fact (Exhibit 2);
• a table produced by Mr. Howes during his evidence in relation to Peel juror lists prepared for Peel in 2018. It sets out the numbers and percentages of “Borders”, “Owners”, “Spouses” and “Tenants” of the 100,000 randomly selected names on the July 2018 juror rolls as selected from the names database and the same thing for the 20,000 names on the October 2018 supplemental list. It also provides these figures as of March 11, 2019 for the 724,321 eligible jurors (Exhibit 3); and
• A document entitled “Crown’s Summary of Data from Statistics Canada” that summarizes some of the information from Statistics Canada for 2016 (Exhibit 4);

[11] In addition, both parties filed facta and casebooks and made helpful oral submissions on the application.

The Positions of the Parties

[12] It is the applicant’s position that the state’s process for creating jury source lists in Ontario, through MPAC, is so deficient that it creates an appearance of partiality. The applicant’s position is that the statistics before the court show that in Peel, white people are more often owners of property and black people are more often renters. Further, he says that the enumerative efforts of MPAC are weighed towards the inclusion of property owners and the exclusion of renters. The result, the applicant submits, is that white people are disproportionately represented on the jury source lists over black people. The applicant says that the state has been aware of this issue for some time and that it has failed to take reasonable steps to cast a net wide enough to be representative.

[13] The Crown’s position is that the applicant has failed to meet its burden of establishing violations of either ss. 11(d) or 11(f) of the Charter. The respondent says that the statistical evidence tendered by the applicant is confusing in the absence of any expert evidence to interpret and explain it. The Crown submits, first, that the evidence before the court does not support the applicant’s contention that the jury source list for 2019 was not representative and that, in fact, the process used by the state meet the constitutional requirements for a representative jury. Second, the Crown submits that even if there is evidence of under-inclusion of tenants, that does not lead to a finding that the source list is not constitutionally representative because tenancy in not a characteristic that is significant. Finally the Crown submits that the process used by MPAC to address any potential under-inclusion of tenants for the 2019 source list was reasonable and so the source list is representative as that term is understood in this context.

Analysis

a) The rights protected by ss. 11(d) and (f) of the Charter

[14] The question of what it means to have a jury that is “representative” was addressed in detail by the Supreme Court of Canada in R. v. Kokopenace, 2018 SCC 28. In the majority decision, Moldaver J. explained that an accused’s entitlement to a jury that is representative of the community promotes fairness in his trial, both in appearance and in reality. He explained that representativeness really focuses on the process used to compile the jury role, not on the result. In summary, he stated that:

…the state satisfies an accused's right to a representative jury by providing a fair opportunity for a broad cross-section of society to participate in the jury process. A fair opportunity will be provided when the state makes reasonable efforts to: (1) compile the jury roll using random selection from lists that draw from a broad cross-section of society, and (2) deliver jury notices to those who have been randomly selected. When this process is followed, the jury roll will be representative and the accused's Charter right to a representative jury will be respected.

[15] Making clear that the meaning of representativeness is circumscribed, and not absolute, Moldaver J. defined the term:

What is required is a "representative cross-section of society, honestly and fairly chosen": R. v. Sherratt, [1991] 1 S.C.R. 509, at p. 524. There is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society. Courts have consistently rejected the idea that an accused is entitled to a particular number of individuals of his or her race on either the jury roll or petit jury: R. v. Church of Scientology (1997), 33 O.R. (3d) 65 (C.A.), at pp. 120-21; R. v. Laws (1998), 41 O.R. (3d) 499 (C.A.), at pp. 517-18; R. v. Kent (1986), 27 C.C.C. (3d) 405 (Man. C.A.), at pp. 421-22; R. v. Bradley (No. 2) (1973), 23 C.R.N.S. 39 (Ont. S.C.), at pp. 40-41. As Rosenberg J.A. observed in Church of Scientology, at p. 121, "[w]hat is required is a process that provides a platform for the selection of a competent and impartial petit jury, ensures confidence in the jury's verdict, and contributes to the community's support for the criminal justice system."

[16] In coming to this conclusion, the Court expressly affirmed a line of jurisprudence in which appeal courts had previously considered whether the statutory exclusion of non-citizens from the jury roll resulted in the roll not being representative.

[17] This earlier jurisprudence included R. v. Scientology, [1997] O.J. No. 1548 (C.A.), in which the Court of Appeal considered whether the statutory exclusion of non-citizens in the Ontario Juries Act violated the accused’s right to a representative jury. In rejecting the argument that immigration status is relevant to representativeness, Rosenberg J.A. held, at paras. 146-148:

The right to a representative jury roll is not absolute in the sense that the accused is entitled to a roll representative of all of the many groups that make up Canadian society. This level of representativeness would be impossible to obtain. There are a number of practical barriers inherent in the selection process that make complete representativeness impossible. The roll is selected from a discrete geographical district which itself may or may not be representative of the broader Canadian society.

Further, the critical characteristic of impartiality in the petit jury is ensured, in part, by the fact that the roll and the panel are produced through a random selection process. To require the sheriff to assemble a fully representative roll or panel would run counter to the random selection process. The sheriff would need to add potential jurors to the roll or the panel based upon perceived characteristics required for representativeness. The selection process would become much more intrusive since the sheriff in order to carry out the task of selecting a representative roll would require information from potential jurors as to their race, religion, country of origin and other characteristics considered essential to achieve representativeness. The point of this is not to demonstrate that a jury panel or roll cannot or should not be representative, but that the right to a representative panel or roll is an inherently qualified one. There cannot be an absolute right to a representative panel or roll.

What is required is a process that provides a platform for the selection of a competent and impartial petit jury, ensures confidence in the jury's verdict, and contributes to the community's support for the criminal justice system. To use the words of Madam Justice L'Heureux-Dubé in Sherratt at p. 524 S.C.R., what is required is a "representative cross-section of society, honestly and fairly chosen". In my view, there is no characteristic that persons bring to the fact-finding process of the jury based solely on their immigration status. Canadian citizens are of all races, nationalities, ethnic origin, colour, religion, sex, age and ability. Immigration status is simply not a relevant characteristic when regard is had to the rationale underlying the right to a representative pool. A jury pool selected from Canadian citizens represents the larger community for the purposes of trial by jury.

[18] In R. v. Laws, [1998] O.J. No. 3623, the Court of Appeal considered a similar argument about the exclusion of non-citizens, though this time through the lens of a claim of a violation of s. 15 of the Charter. The argument advanced was that a s. 15 breach flowed from the fact that the exclusion of black permanent residents, who were not citizens, decreased the probability of black people being on the jury panel. This argument had been raised by the intervener in Church of Scientology, but not addressed. In Laws, the affidavit evidence indicated that 34.1 percent of the black residents of Toronto were non-citizens, whereas only 14.4 percent of non-black residents were non-citizens. Thus, it was argued that removing the citizenship requirement increased the probability that a black person would be chosen for the jury.

[19] In rejecting the appellant’s argument, the Court of Appeal affirmed, at paras. 62-63, that the right to a representative jury is not absolute and that complete representativeness is impossible to obtain. Further, the Court held that the inclusion of non-citizens would not materially increase the probability of a black juror ending up on the jury and that the accused had failed to meet his burden of showing that he was deprived of a real benefit or advantage. The Court went on to state that “an accused cannot demand that a member of his race be included on the jury” and quoted from the Manitoba Court of Appeal decision in R. v. Kent (1986), 27 C.C.C. (3d) 405 in which the court concluded that s. 15 does not require a jury composed, entirely or proportionately, of people belonging to the same race. Indeed, as the court held: “to so interpret the Charter would run counter to Canada’s multicultural and multiracial heritage and the right of every person and the right of every person to serve as a juror (unless otherwise disqualified)…”

[20] In Kokopenace, Moldaver J. went on to explain, at para. 39, that representativeness is about the process used to compile the jury roll. He said that the process has three features, two of which are relevant for this application. This first feature is that source lists draw from a broad cross-section of society. He explained that a perfect source list would capture all eligible jurors in the district. However, he made clear, at para. 41, that 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”.

[21] The second feature is random selection, which focuses on how individuals are selected from the source list for inclusion on the jury roll. The process must ensure that everyone on the source list has an equal chance of being selected for the roll. Again, Justice Moldaver emphasized that there is no requirement that the jury roll perfectly represent the cultures, races, religions or other individual characteristics of those in the district. Indeed, as the Court observed, even if a perfect source list were created, “it would be impossible to create a jury roll that fully represents the immutable characteristics existing within our diverse and multicultural society.”

[22] Having defined representativeness, Moldaver J. then explained the role it has under both of ss. 11(d) and 11(f) of the Charter. Those sections provide:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

[23] The focus of ss. 11(d) is on the independence and impartiality of the tribunal. Representativeness is an important guarantee of impartiality. Two problems with representativeness may impact on impartiality. First, if a particular group is deliberately excluded, there could be doubt cast on the integrity of the process by creating an appearance of partiality. Second, the state’s efforts to compile a jury roll “may be so deficient that they create an appearance of partiality”: Kokopenace at para. 50.

[24] The role of representativeness is broader under s. 11(f) of the Charter. As Moldaver J. explained, representativeness protects the accused’s right to an adequate jury selection process. A problem with representativeness may violate s. 11(f) even if it is not so serious as to undermine impartiality and violate s. 11(d).

[25] The legal test for representativeness was set out in Kokopenace at paras. 59-66. The Court held that it is the “act of casting a wide net” that ensures representativeness, not targeting particular groups for inclusion in the jury roll. The Court rejected the approach taken in the Court of Appeal, which asked whether the state made reasonable efforts to provide a fair opportunity for groups with “distinctive perspectives” to participate in the jury process. Moldaver J. observed that:

Shining the spotlight on "distinctive perspectives" is problematic and, in my view, improperly focuses on who is being included instead of the process for their inclusion. Moreover, it raises thorny questions about what qualifies as a "distinctive perspective" and what characteristics require representation -- questions that are not helpful when examining if the process was adequate.

[26] Instead, he explained that the question is whether the state has provided a fair opportunity for a broad cross-section of society to participate in the jury process. This test is met when the state makes “reasonable efforts” to:

a) Compile the jury role using random selection from lists that draw from a broad cross-section of society, and b) Deliver jury notices to those who have been randomly selected.

[27] It follows, as Moldaver J. explained at para. 66, that if the state deliberately excludes a particular subset of the population that is eligible for jury service, it will not have made reasonable efforts and will violate the accused’s right to a representative jury. If, however, there is unintended exclusion, “it is the quality of the state’s efforts in compiling a jury role that will determine whether the accused’s right to a representative jury has been respected”. If the state does not make reasonable efforts, the size of the excluded population becomes relevant.

b) Has the applicant established a violation of his rights under ss. 11(d) or 11(f) of the Charter?

[28] For the reasons that follow, the applicant has failed to establish a violation of his ss. 11(d) or 11(f) rights.

MPAC’s statutory obligation to create jury rolls and the process used

[29] Before reviewing the reasons for this decision, it is necessary to understand the process that is statutorily prescribed in Ontario to create the jury rolls and the evidence adduced on the application as to what process is used by MPAC.

[30] As set out in the Agreed Statement of Facts, each year, the sheriff asks the Director of Assessment of MPAC to randomly select names of people who are over 18 years of age, and are Canadian citizens, from MPAC’s property assessment database, as updated. Those identified by MPAC receive jury questionnaires [1]. Everyone who returns the questionnaire and who, based on the answers provided, appears to be eligible for jury duty, is placed on the jury roll.

[31] The jury roll is certified by the sheriff annually. The sheriff certified the jury roll for all juries that will be selected in Peel in 2019 on December 21, 2018. The jury panel that is to be summonsed for the applicant’s jury will summoned from this 2019 roll.

[32] There was significant evidence about the manner in which MPAC obtains the source list that it uses and how its lists are updated.

[33] Much of this was set out in a document entitled “Overview of MPAC’s Role in Preparation of Jury Lists”, which is Exhibit “M” to the affidavit of Leah Gensey. Mr. Howes also testified about the details of this process.

[34] The major source of names for MPAC is the property assessment process and database. That database is a “property” database, in which people are recorded as “owner”, “tenant”, “spouse” (or an owner or tenant”) or “border”. MPAC, and its predecessor the Ministry of Finance, have maintained a property assessment database for over 40 years.

[35] MPAC also has legislative responsibility for conducting enumeration and producing a Preliminary List of Electors (PLE) for each municipal election and by-election. To do this, MPAC maintains a “names database” which is maintained by updating the property assessment database, by using third party sources including information from the Elections Canada and Elections Ontario, and by enumeration activities.

[36] While there is a mandatory database for property owners, and Mr. Howes’ evidence was that it was up-to-date for owners, many Ontarians are not property owners. Consequently, as is obvious, MPAC’s property database does not capture all of those who are eligible for jury service. As a result, MPAC has used, and continues to use, various methods to supplement the property assessment database and to create a more comprehensive “names database” in order to create lists of potential jurors. More specifically, these include, or have included:

• Door-to-door enumeration in the 1970s. This was followed with mailed out enumeration forms in the 1980s, 1990s and 2000-2010. These methods are no longer feasible or cost-effective;
• Previously, MPAC sent out occupancy questionnaires to all new property owners. This was abandoned in 2013 because of low response rates and expenses for mailing and processing the forms;
• MPAC provides that any person can contact it to provide updated personal information.
• Under s. 16.1 of the Assessment Act, R.S.O. 1990, c. A.31, owners of properties with seven or more residential units are required to provide MPAC with the names of people who have become, or ceased to be, tenants over the previous 12 month period ending July 1 of each year. This began in 1998. The difficulty is that owners need not provide information about the age and citizenship of the tenants, which is needed for MPAC to determine whether someone is eligible for jury service. In addition, MPAC’s experience is that owners typically provide only one tenant name, rather than all occupants of each unit.
• Information collected during municipal elections is used to update the MPAC database. Following the 2014 elections, MPAC received 1.2 million revisions to municipal voters’ lists;
• MPAC operates a website called Voterlookup.ca, which is a self-serve tool that allows voters to review personal information and confirm or correct it for municipal election purposes. MPAC can also use the information it collects on this website for non-electoral purposes such as jury lists. Voterlookup.ca was introduced during the 2014 municipal election cycle and was de-activated after the Preliminary List of Electors was delivered to the municipalities for that election. It was re-activated for the 2018 municipal elections and is now permanently available. For the 2018 elections enhancements and improvements were made. The website was more actively promoted by the municipalities in a variety of manners about which Mr. Howes testified, all driven by MPAC. These included having a communications strategy, having information about voterlookup.ca distributed in MPAC notices, a social media campaign, webinars and more active partnering with Elections Canada and Elections Ontario. The result was much higher use of the website in 2018 than in 2014. For instance, in 2014, there were 121,000 searches done on the website. By August 12, 2018, well before the Ontario municipal elections, there had already been 190,000 searches conducted. MPAC does not know the number of people added to its database as a result of use of this website.
• MPAC uses information it receives about school support to update its database. Whenever an individual completes a “Direction for School Support” form, on which the person is asked to provide the name of any spouse, tenant and boarder residing at the address, that form is forwarded to MPAC. There is no requirement, however, for anyone to update school support information.
• MPAC also has a system of data sharing with the National Register of Electors (NROE) database that is maintained by Elections Canada. MPAC receives a quarterly extract from Elections Canada. While MPAC cannot use the names on the NREO for non-electoral purposes, such as juror identification, it can use this information to verify and correct data attributes on names that it already has in its database, and then to use the names with the updated attributes for non-electoral purposes, including for juries. MPAC has been using the NREO database for data-matching since 2000 and for updating date of birth and citizenship information since 2006. In 2014, over 53,000 names were updated in MPAC’s database with date of birth information from the NREO and more than 257,000 names were updated in MPAC’s database with citizenship information from the NREO.
• While previously, information collected under the Vital Statistics Act, including births, deaths and names changes was provided to MPAC, this was dis-continued in 1990. More recently, MPAC has entered into an agreement with the Ministry of Government Services permitting MPAC to access information about deceased individuals.
• MPAC also has recently been permitted to have shared with it data from the Permanent Register of Electors (PREO), maintained by Elections Ontario. Mr. Howes testified that this is a very recent change for Elections Ontario. In fact, it was as a result of the amendment to s. 17.2 of the Elections Act, R.S.O. 1990, c. E.6, made in October 2017. So far, Mr. Howes said that MPAC is only permitted to use this data for electoral purposes, though it is in negotiations for a long term agreement. He said that MPAC got one file from Elections Ontario in 2018;
• MPAC carefully plans for how voters’ lists are revised for each municipal election and assesses its progress. Mr. Howes testified about the key learnings of 2014.
• Ms. Howes testified that he understood that Elections Ontario was working with OHIP for a data sharing agreement and for legislative change and that discussions of that nature had been ongoing for more than a year or two;

[37] Mr. Howes was asked about whether MPAC kept statistics as to the number of renters it captured each year. They do not and so he could not give evidence as to the percentage of renters that are included in the jury source lists generally, or for the source lists in Peel more specifically.

[38] As I have indicated, Ontario has very recently introduced legislation that will, if and when it is proclaimed, fundamentally change how jury source lists are prepared in Ontario. Once the new source lists are used, the concerns raised by the applicant will be eliminated. The legislation does not, of course, affect the way in which the 2019 jury source list was prepared and the roll that will be used for his May, 2019 trial remains that prepared by MPAC in December, 2018.

Peel source lists are representative in that they draw on a broad cross-section of society

[39] In my view, the evidence adduced on the application demonstrates that MPAC is acutely aware of the under-inclusion problems that can flow from using its property assessment database as the main source for jury source lists and has taken reasonable steps to ensure that the source lists are representative.

[40] This is not a case in which there has been any deliberate or absolute exclusion of any group from jury source lists. At most, on the applicant’s argument, there has been some under-inclusion of non-owners. Setting aside whether the statistical evidence even bears that position out, and assuming for the moment that it does, in my view, the applicant has not demonstrated that the state’s efforts in compiling the jury source lists is so deficient as to create an appearance of partiality. To the contrary, I see Ontario’s efforts as demonstrating an ongoing effort to create source lists that draw on a broad cross-section of society. In these circumstances, I cannot see how there could be a violation of s. 11(d) of the Charter.

[41] In my view, the applicant’s argument is better considered under the broader protection of representativeness that is captured in s. 11(f) of the Charter. The applicant’s position is that there has been a problem of under-inclusion of tenants in Ontario for some considerable time and that Ontario’s process has not changed as it should have, from over-reliance on the property assessment database and under-inclusion of tenants, and thus black people in Peel. He says that despite the prospective changes as a result of the new legislation, the source list for the jury roll from which his jury panel and petit jury will be selected was not representative because the process continues to be deeply flawed.

[42] The evidence on the application is that the property assessment database is only the starting point for the names database, which is the database from which the source lists are drawn. In his evidence, Mr. Howes testified about the many additional steps that MPAC takes to augment the information it obtains from the property assessment database for inclusion in the names database. I have already summarized these evolving and varied steps.

[43] It was Mr. Howes’ further evidence that information in the MPAC names list is most accurate in the year of a municipal election because in the year before, there are so many increased methods of updating information. This means, he said, that because there was a fall 2018 municipal election, the most comprehensive and accurate jury source lists are those created in 2018 and 2019. The source list that is at issue in this case was created at the end of December 2018, following both a municipal and provincial election. I conclude, therefore, that the source list that was used for the jury roll from which the panel for the applicant’s trial will be selected is as up to date and accurate as is possible for MPAC, using all of its tools for augmenting the property database.

[44] It is clear to me that Mr. Howes was of the view that MPAC is not the ideal entity to prepare jury rolls. His position was that MPAC does well what it does, but that if does not have all of the necessary information. He seemed to accept that the system used falls well short of ensuring that all tenants are included on the jury source list.

[45] There was other evidence adduced on the application suggesting that MPAC is not be the ideal body to prepare jury source lists because its process leads to an under-inclusive result. A letter, dated February 23, 2017, from the Chair of the MPAC Board of Directors to then Minister of Finance Charles Sousa, asked to begin a discussion about MPAC’s statutory role in the creation of jury lists and specifically raised concerns about the accuracy of jury lists because of an inability to secure information about tenants.

[46] I accept the applicant’s position that there have been concerns raised for some time about whether the MPAC system, with the modifications it makes to its property assessment database and the way in which it creates the names database that is used for jury source lists, is actually best suited to fulfil that function. Many have, not unreasonably in my view, expressed concerns that the current system is not ideal, and that a better system could be created. The applicant says that the new legislation introduced that fundamentally alters how jury source lists will be compiled in Ontario is an acknowledgement on the part of the Province that the existing process is fundamentally flawed and not representative. I agree that the change reflects an acceptance by Ontario that there is a better way to compile jury source lists than the process now in place.

[47] But, significantly, the question of whether the preparation of jury source lists is a function best fulfilled by MPAC, or whether there is a better way to create jury source lists, is not the issue to be decided on this application.

[48] The question before me is whether the process that was used for the 2019 jury source lists, imperfect as it may have been, drew from a broad cross-section of society and created a representative jury source list. Or, in the alternative, did the process fail to draw on a broad cross-section of society, and so create a source list that was not representative, as that issue is properly understood.

[49] It must be recognized that while criticisms of the existing system seem to have been made for some time, there has also been wide spread acceptance that the process of changing the system for creating source lists is a complex and challenging one. This was acknowledged in such reports as the Iacabucci Report of February 2013 and the Debwewin Jury Review Implementation Committee Final Report of April 2018.

[50] Indeed, faced with a very similar argument to that advanced in this case in R. v. Borozan, dated July 25, 2018, McLean J. reviewed the history of the various issues that have been raised in Ontario about the fact that jury source lists are under-inclusive and some of the proposals that have been suggested for change and improvements. He then concluded at para. 71, that:

…the system is and must be a complicated one. It would be, by implication, that an instant or immediate change to the system would not be feasible nor perhaps desirable as a system created in such a way might be less representative as opposed to more representative”.

[51] I agree that changes cannot be made without considerable thought and care.

[52] I also accept the submission of the respondent that in the wake of Kokopenace, when the issue of what it means to have a jury that is representative became particularly acute in Ontario, it was reasonable for Ontario to focus its efforts on ensuring that jury source lists were representative on issues respecting inclusion of First Nations. To that end, in 2017, s. 6(8) of the Juries Act was amended in an attempt to address First Nations issues.

[53] There was an Ontario provincial election on June 7, 2018. Very little could, practically be accomplished by the previous government in the last weeks or months leading up to that election. The election led to a change in government and, in my view, a reasonable period was needed for the new government to consider what could or should be done to make jury source lists even more inclusive.

[54] The decision of McLean J. in Borozan was only weeks after the election of the new government. When he considered, in July 2018, this very issue respecting under-inclusion of tenants, McLean J. concluded that Ontario had been making reasonable efforts to improve the system used by MPAC and thus that the system used to create jury source lists did not lead to a violation of the accused’s ss. 11(d) or 11(f) rights because of under-inclusion of tenants.

[55] The applicant says that reasonable efforts have not been made, given the history of this issue. I disagree. In my view, Ontario has taken reasonable steps to create a system that will be increasingly inclusive and capture the names of not only property owners, but also those who do not own property. The evidence that is now before me about the proposed legislative changes to the Juries Act, coming less than a year after the election of the new government, reflects that there must have been significant discussion and consultation done over the past months to try to find an appropriate solution to the sorts of concerns raised in Borozan and on this application. Indeed, Mr. Howes’ evidence was that he understood that there had been discussions for more than a year.

[56] I agree with McLean J. that the state’s efforts, up to the time that the 2019 source list for Peel was certified in December 2018 for the 2019 jury rolls, were reasonable in that there were significant efforts made to ensure that the jury source list would cast a wide net and provide an opportunity for a broad cross-section of society to participate in the jury system. On this basis, alone, the application ought to be dismissed.

Statistical Evidence Respecting the 2019 Peel Jury Roll

[57] My conclusion that the process engaged used in Ontario draws on a broad cross-section of society in Peel, is representative, and does not violate the applicant’s ss. 11(d) of 11(f) Charter rights means that the application must be dismissed.

[58] Representativeness is, fundamentally, about process and not results. However, statistics can be an important manner in which to assess the adequacy of source lists, provided that those statistics are capable of being understood and interpreted. I observe that in Kokopenace, it was accepted that the on-reserve aboriginal adult population in the relevant district was between 21.5 and 31.9 percent in 2008 and only 4.1 percent of those on the jury roll were aboriginal people living on reserve. It is significant that notwithstanding these statistics, the majority of the court found no violations of ss. 11(d) of 11(f) of the Charter.

[59] In this case, I must comment upon the statistical evidence that was relied upon by the applicant in support of his position that MPAC did not use a representative jury source list to create the 2019 jury roll in Peel.

[60] Evidence was provided from Statistics Canada respecting the population in Peel. That evidence is not from 2018, which would be the relevant date for consideration, given that the source lists were created in 2018. But, the applicant submits that all that Statistics Canada was able to provide was information from the 2016, which has been certified as accurate and put into chart form as an exhibit to one of the affidavits filed by the defence. The Crown has extracted the relevant parts of that data in Exhibit 4.

[61] Assuming, for the sake of argument, that the 2016 census data is appropriate to consider when assessing the 2019 jury source list (which is based on information collected in 2018), the parties agree that the evidence is that the population in Peel in 2016 was 1,372,640. This is, I understand it, the entire Peel population, and includes those who are statutorily ineligible for jury service, such as those under the age of 18 and non-citizens. There is no evidence from Statistics Canada about what the number of people eligible to serve on juries was in either 2016 or in 2018.

[62] According to the Statistics Canada numbers, of that total population in Peel in 2016, 38 percent were Caucasian and 62 percent were visible minorities. Of the total population, 9.5 percent was black.

[63] The evidence from Statistics Canada is that of the total population in Peel, 1,101,340 (or 80 percent of the total population of Peel) were property owners and 271,300 (or 20 percent of the total population of Peel) were renters. These terms are defined by Statistics Canada such that owner households refer to a household where some member of the household owns the dwelling and renter households refers to private households where no member of the household owns their dwelling. Again, these numbers include those who are ineligible for jury service such as those under the age of 18 and non-citizens.

[64] Of the owners, the Statistics Canada data suggests that 38 percent were Caucasian and 62 percent were visible minorities. Of the owners, 7.8 percent were black. These statistics suggest to me that the percentages of owners who were Caucasian and visible minorities were almost identical to the percentages of Caucasians and visible minorities in the total population. In other words, racial background appears not to affect property ownership in Peel. The percentage of owners who were black was 7.8 percent, and thus very slightly below the percentage of blacks in the population of 9.5 percent.

[65] Similarly, the data suggests that of the renters, 35 percent were Caucasian and 65 percent were visible minorities. Of the renters, 16.6 percent were black. This suggests to me that the percentage of renters who were Caucasians (35 percent) was only slightly below the percentage of Caucasians in the total population (38 percent), and the percentage of renters who were visible minorities (65 percent) was only slightly higher than the percentage of visible minorities in the population (62 percent). The percentage of renters who were black was 16.6 percent, higher than the percentage of blacks in the total population of 9.5 percent.

[66] As I have already indicated, there was no expert evidence on the application. There is no evidence about the margin of error on any of these statistics. Nor is there any evidence about how to compare the Statistics Canada data, which includes those under 18 and non-citizens, with data respecting those who would be eligible for jury service.

[67] Mr. Howe provided additional information and statistics from MPAC.

[68] Mr. Howe was cross-examined on Exhibit 1 and, in particular on the chart set out at page 31 of that Exhibit in which sets out the numbers of individuals on the Preliminary List of Electors in Ontario from 2014. That document indicates that before revisions, there were 5,648,170 names on the list who were property owners, representing 60 percent of the total number of names. There were 3,802,181 names on the list who are described as non-owners (tenants/borders), representing 40 percent of the total names. This document, of course, represents the entire province and is not specific to Peel.

[69] During his evidence, Mr. Howes produced a document that provided the breakdown that MPAC did for the two juror lists that were prepared for Peel in 2018 and delivered on July 4 and October 7, 2018. These are set out in Exhibit 3. It should be noted at the outset that these statistics do not correspond to the 2019 source list that is at issue in this application as they are from the 2018 roll, which would have been prepared in December 2017.

[70] The numbers in the last column, which are as of the hearing of the application, also do not reflect the 2019 roll. That said, Mr. Howe’s evidence was that the percentages for the 2019 roll were within a percentage or two of those in Exhibit 3. Mr. Howes indicated that, as set out in Exhibit 3, the current source list in Peel has 724,321 names, with those under 18, non-Canadian or otherwise non-eligible excised. This document breaks down those on the list. It indicates that of these, 434,885 people, or 60.04 percent are owners, 192,138 people, or 26.53 percent, are borders, 28,106 people, or 3.88 percent are spouses and 69,192 people, or 9.55 percent, are tenants.

[71] One of the challenging aspects of this application is that MPAC does not use the same categories as Statistics Canada. Statistics Canada breaks down its numbers by owners and renter households. MPAC appears to group renters and boarders under a “Rent” heading in Exhibit 1, but then to separate them in Exhibit 3.

[72] Mr. Howes provided some evidence on this. He said that in its property assessment database, every property has an owner and that in addition, MPAC collects information about non-owners, spouses, tenants and borders. Owners, tenants and spouses are all defined terms in the Assessment Act, R.S.O. 1990, c. A.31. Border, he said is a construct that catches people like children in the household, or Canadian armed forces personnel living in barracks. He also said that in Exhibit 3, borders did not include children because all those under 18 were excluded from it. There was little to no evidence to explain who these 192,138 borders are.

[73] Under cross-examination, Mr. Howes appeared to agree that the breakdown that MPAC had for owners versus non-owners for the entire province, based on page 31 of Exhibit 31, was 60 percent owners and 40 percent renters. He also agreed that the percentage of owners and renters on the jury roll in Peel was about the same, as it reflected about 60 percent owners and 40 percent renters. As he is not a statistician, he was not able to provide any evidence about the margin of error of any of these statistics.

[74] In addition to the fact that there is no expert evidence to assist the court with the meaning of the statistics, they appear to me, on their face, to be contradictory and confusing. For example, the Statistics Canada data suggests that 80 percent of people in Peel are owners and only 20 percent are renters or tenants. Exhibit 3, which has the MPAC data, suggests that of those on the jury roll in Peel, only 60 percent are owners. Those statistics from MPAC also suggest that 9.55 percent are renters. Both of these MPAC percentages are way lower percentages than the Statistics Canada data for percentage of owners and renters in Peel.

[75] Complicating matters are the fact that, firstly, MPAC has a spouse category and the evidence is that this includes spouses of both owners and tenants. Secondly, MPAC has a tenant category, which accounts for more than a quarter of those on the Peel jury roll. I have no evidence as to whether some or all of those in the “border” category ought to be added to the tenant numbers, or how that is determined. As a whole, the statistical evidence is confusing, as Statistics Canada and MPAC statistics are virtually impossible to cross-reference.

[76] The applicant says that 34 percent of black people in Peel do not own property. He says that the MPAC information provided in Exhibit 3 suggests that of those on the rolls for Peel, only 9.55 percent are tenants. In addition, he invites me to consider that MPAC’s efforts in Peel have resulted in only 69,192 renters being on the jury roll, whereas the Statistics Canada data suggests that there are 271,300 renters in Peel. Thus, he says that only 25 percent or renters in Peel are included on the jury rolls as a result of MPAC’s process.

[77] Even in the absence of any assistance from an expert, I see some clear and obvious difficulties with the applicant’s position.

[78] First, the applicant seems to just disregard the 26.53 percent of the jury roll in Exhibit 3 who are classified as borders. They are, on MPAC’s assessment, not owners. While they may, or may not all be tenants, I do not think they can reasonably be disregarded.

[79] Second, it is just not a fair assessment of the evidence to suggest that only 25 percent of the renters are included on the jury roll for Peel if the basis for that is the Statistics Canada data. That Statistics Canada census data, of course, includes many who are ineligible for jury duty such as all those under the age of 18 and non-citizens. The applicant’s assertion that 75 percent of renters in Peel are excluded from the jury roll, for which he relies on the Statistics Canada data, which includes those under 18 and non-citizens, as his population source, demonstrates how problematic and malleable the statistics are, and how difficult it is to interpret them fairly without the assistance of an expert.

[80] The inability of comparing the MPAC statistics and the data collected by Statistics Canada comes into sharp focus when one considers that MPAC can say with confidence that it captures all owners on its lists. Yet, its statistics show 434,885 owners on the 2018 jury roll. By comparison, the Statistics Canada data suggests that there were 1,101,340 individuals in owner households in Peel in 2016. In other words, it appears that MPAC includes less than half of those in the Statistics Canada data. The difference, presumably, is that the Statistics Canada data includes those who are excluded from jury duty. But, in my view, these statistics show that there are fundamental and significant challenges when one tries to use the different statistics, with the different categories and descriptors, as a basis from which to draw conclusions. This is exacerbated by the absence of any expert evidence to help understand the meaning of the statistics.

[81] Moreover, even applying a basic common sense approach, it appears to me that the statistics do not support the most important aspects of the applicant’s position at all. His position rests on the proposition that MPAC’s methods are not able to enumerate tenants well because its database is really derived from land ownership and tenants are missed. Yet, if the Statistics Canada data is accepted, there is 80 percent property ownership and 20 percent renters in Peel. The MPAC data indicates that its rolls for Peel are comprised of only 60 percent owners and 40 percent renters. These statistics alone suggest to me a compelling argument that owners are under-represented and non-owners are over-represented in the jury rolls prepared by MPAC for Peel. This completely undermines the applicant’s position and leads me to conclude that the statistical evidence does not support the applicant’s position that there is under-inclusion of renters in the Peel jury roll for 2019.

[82] There are a couple of other important points to make about the statistical evidence.

[83] First, if renters are now, as the evidence suggests, under-included in jury source lists, then the applicant’s argument that black people are systemically under-represented also fails because his argument about under-inclusion of blacks flowed directly from the argument about under-inclusion of renters.

[84] I find that the applicant’s argument is very similar to that advanced and rejected by the Court of Appeal in the Laws decision. In that case it was argued that the absolute exclusion of non-residents decreased the probability of black people being on the jury because blacks were more likely to be non-citizens than non-black. In rejecting that argument, Rosenberg J.A. concluded that including non-citizens would not materially increase the probability of blacks ending up on the jury. In my view, the same can be said here. There was an absence of evidence supporting the applicant’s position that inclusion of renters would materially increase the probability of blacks being on the jury.

[85] Second, and perhaps more importantly, I think that the applicant’s focus on black people in particular, results from a flawed understanding of the meaning of representativeness. The jurisprudence makes very clear that no accused person has the right to a jury composed proportionately of a particular number or percentage of people of a particular race, religion, ethnicity, gender or any other characteristic. Representativeness focuses on ensuring a broad cross-section of society participating in the process. Thus, I think the far better gauge of this issue is to consider the broader category of the proportion of Caucasians and visible minorities, rather than the more specific category of the inclusion of black people. These statistics, as I have indicated already, reveal that 62.25 percent of the population in Peel are visible minorities and 62 percent of the owners of properties are visible minorities. This suggests to me that, even were renters under-included in the jury lists, the lists would include individuals who are from various minorities in the same percentage that they are reflected in the overall population in Peel. This further supports a conclusion that the source lists are representative.

Conclusion

[86] Having considered the jurisprudence and the evidence on the application, it is my view there is no basis upon which to conclude that the state’s efforts in compiling the jury roll is so deficient as to either create an appearance of partiality or to lead to the creation of source lists are not representative.

[87] It cannot be said that Ontario deliberately excludes any particular group from jury source lists in such a way that would cast doubt on the integrity of the process. Indeed, the significant efforts made by MPAC to augment its property database, and to create a more inclusive names database, reveal a process that, while imperfect, casts the very sort of wide net that is required to ensure representativeness. On the basis of these findings, there can be no violation of ss. 11(d) or 11(f) of the Charter.

[88] At its highest, the applicant’s position is that there is an under-inclusion of black people on the jury source lists because of an alleged deficiency in the source lists from MPAC and under-inclusion of renters. As troubling and confusing as the statistical evidence filed on the application is, the statistics seem to me to suggest the opposite of what the applicant says, and support a finding that it is owners who are under-represented and renters who are over-represented in the Peel source lists.

[89] But, even if I am wrong about over-inclusion of renters, in terms of the applicant’s argument that blacks are under-represented in the source lists, as I have indicated, I find that the proper question to ask is about whether the process engages a broad cross-section of society, rather than to focus on the inclusion of one particular racial group. The problem with focusing on distinctive perspectives, derived from specific racial characteristics such as being “black”, is that this wrongly leads to a focus on what characteristics require representation, rather than on the process used. The applicant does not have a right to the inclusion of any set percentage of people on the jury source list who share his particular characteristics.

[90] If statistics are useful at all in assessing the effectiveness of the process used in including a broad cross-section of Peel society, the statistical evidence before me supports a finding that the process used to prepare jury source lists in Peel does not under-include non-Caucasians. To the contrary, the source lists include the same percentage of non-Caucasians as are found in the population. This cannot ground a finding that the source list was not representative.

[91] For these reasons, the application is dismissed.

Woollcombe J. Released: April 25, 2019

Footnote:

[1] There is a separate process for First Nations members living on-reserve to be sent questionnaires. In Peel, there are no First Nations reserves so the MPAC records are the source of names for all individuals who receive jury questionnaires.