Court File and Parties

COURT FILE NO.: 18-117

DATE: 20191125

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHELDON CAMPBELL

Defendant

COUNSEL:

Amber Meiners for the Crown

Kevin Kaczmara for Mr. Campbell

HEARD: October 21, 2019

ruling on the use of jury stand-asides

boswell j.

INTRODUCTION

[1] Sheldon Campbell was charged with possession of crack cocaine for the purpose of trafficking in it. His trial commenced with jury selection in Barrie on October 21, 2019.

[2] Mr. Campbell is black.

[3] A panel of 120 prospective jurors was summonsed for the trial. Some panel members were excused or deferred prior to the date jury selection proceeded. Eighty-four attended. None of them were black.

[4] Mr. Campbell’s counsel submitted that the panel should be struck in favour of a new and more diverse panel. I denied his request.

[5] During jury selection, four of the first five jurors sworn in were female. Mr. Campbell’s counsel urged me to use my authority to stand aside prospective jurors until the jury reflected a more equal mix of both genders. I denied this request as well.

[6] Finally, counsel asked that I stand aside a juror who is a nurse, on the basis of alleged partiality. Again, I denied the request.

[7] I undertook to provide written reasons for my rulings. These are the reasons. I will address each issue raised by counsel in turn.

ISSUE ONE: THE HOMOGENOUS PANEL

[8] The optics of an all-white jury panel summonsed to hear the case of a black man charged with drug trafficking are perhaps not ideal. Three factors informed my decision, however, to deny the defence request to scratch the attending panel and summon another.

[9] First, a predominantly white jury panel is not particularly surprising in Barrie. Simcoe County is much less racially diverse than say, York Region or the Greater Toronto Area. That fact is of no comfort, of course, to an accused person who looks out into the sea of prospective jurors and sees no one who looks like he or she does. But the reality is that panels drawn from this community are not going to be very culturally or racially diverse. In other words, I could have no reasonable expectation that any alternate panel selected would be anything more than marginally more diverse than the excused panel.

[10] Second, the Supreme Court has conclusively dealt with the issue of the representativeness of jury rolls, jury panels and petit juries in R. v. Kokopenace, 2015 SCC 28. In Kokopenace, Moldaver J., writing for the majority, made a number of significant observations about representativeness including:

(a) Representativeness is an important feature of the jury (para. 39);

(b) Representativeness means a representative cross-section of society, honestly and fairly chosen (para. 39);

(c) Representativeness does not mean “proportionate representativeness” (para. 53). An accused is not entitled to a particular number of individuals of his or her race on either the jury roll or the petit jury (para. 39);

(d) Proportionate representativeness is not a constitutional imperative and would be impossible to achieve in practice (para. 71);

(e) Representativeness is about the process used to assemble the jury roll and not the ultimate composition of the petit jury (para. 40). An accused person’s Charter right to a trial by a fair and impartial tribunal (s. 11(d)), is satisfied by “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” (para. 39); and,

(f) Representativeness is achieved by ensuring that a broad cross-section of society is given a fair opportunity to participate in the jury process. A jury roll compiled through a process of random selection achieves that goal (para. 61). Randomness essentially becomes a proxy for representativeness.

[11] In light of Kokopenace, there is no justification for granting the relief sought by defence counsel.

[12] Third, jury selection in this case included a Parks challenge for cause. Each prospective juror whose card was pulled from the drum was asked by defence counsel whether his or her ability to judge the case fairly and impartially would be affected by the fact that the accused is black. I determined whether each prospective juror was acceptable or not-acceptable to act as a juror in this case based on his or her answer to the question. An acceptable juror was one whom I was satisfied would likely approach jury duty with an open mind and decide the case based solely on the evidence heard at trial and my legal instructions given at the end of the trial.

ISSUE TWO: THE USE OF STAND-ASIDES TO MAINTAIN PUBLIC CONFIDENCE

[13] When selection was completed, the jury was composed of 7 females and 5 males.

[14] Of the first five jurors selected, however, only one was male. Defence counsel asked at that time that I exercise my discretion under the recently amended s. 633 of the Criminal Code, to stand female prospective jurors aside until gender balance had been achieved. I declined.

[15] The discrete issue raised in this case was gender balance. But asking to stand aside prospective jurors of a certain gender to give prospective jurors of another gender a greater chance of being selected, raises broader questions about how and when the stand-aside power should be used.

[16] As I will explain, my view is that the discretion to stand aside prospective jurors for the purpose of favouring others with particular characteristics is fraught with problems and ought to be exercised only in rare cases. This is not such a case.

The Amended s. 633

[17] Section 633, as amended, provides the jurisdiction to stand aside jurors for the purpose of maintaining public confidence in the administration of justice. This case represents a first opportunity to examine the court’s enhanced discretion to stand aside jurors during the selection process.

[18] Bill C-75, An Act to amend the Criminal Code and the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts received Royal Assent on June 21, 2019. It introduced a number of fundamental changes to the process of selecting juries in criminal cases.

[19] The summary to Bill C-75 indicates that the Bill was enacted to, amongst other things, “abolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice.”

[20] Prior to Bill C-75 coming into effect, s. 633 of the Criminal Code read as follows:

The judge may direct a juror who has been called pursuant to subsection 631(3) or (3.1) to stand by for reasons of personal hardship or any other reasonable cause.

[21] It now provides:

The judge may direct a juror who has been called pursuant to subsection 631(3) or (3.1) to stand by for reasons of personal hardship, maintaining public confidence in the administration of justice or for any other reasonable cause.

[22] The amendment arguably broadens the court’s discretion to stand aside prospective jurors during the selection process. I say “arguably broadens” because one might reasonably view maintaining public confidence in the administration of justice to have been captured by the phrase “any other reasonable cause”. At any rate, assuring continued public confidence in the institution is now expressly enumerated as a justification for standing aside prospective jurors.

[23] Two questions spring immediately to mind. First, what does “maintaining public confidence” entail? Second, what factors might reasonably justify standing aside a prospective juror in order to maintain such confidence?

Maintaining Public Confidence

[24] The issue of “public confidence” has previously been addressed by the Supreme Court, but in the context of the law of bail. In Canada, there are three grounds for lawful, continued pre-trial detention of a person charged with a criminal offence. They are set out in s. 515(1) of the Criminal Code. Sub-section (c), generally referred to as the “tertiary” ground, provides that continued detention is warranted where “necessary to maintain confidence in the administration of justice”.

[25] The tertiary ground was considered by the Supreme Court in R. v. St. Cloud, 2015 SCC 27. Justice Wagner, now Chief Justice Wagner, interpreted the phrase “maintain confidence” as the equivalent of “maintaining public confidence”, which he noted is the wording used in the French language version of the provision. He went on to hold that the need to maintain public confidence requires judges to be “guided by the perspective of the public” when considering the tertiary ground. (St. Cloud, para. 72).

[26] In my view, the Chief Justice’s comments should apply equally to the exercise of the discretion to stand aside prospective jurors under s. 633 of the Code. In other words, when considering whether to exercise the discretion to stand aside a prospective juror to maintain public confidence in the administration of justice, the trial judge must be “guided by the perspective of the public”.

[27] The “public” in question means reasonable members of the community who are properly informed about ‘the philosophy of the legislative provisions, Charter values and the actual circumstances of the case.’” (St. Cloud, para. 74, citing R. v. Hall, 2002 SCC 64 at para. 41).

[28] Having regard to the perspective of the public will therefore require the trial judge to consider the type of factors that one might expect would affect the confidence of a reasonable member of the public, properly informed, in the administration of justice. Parliament did not specify what particular factors they had in mind, but they are not hard to ascertain.

Standing Aside Jurors to Maintain the Public’s Confidence – Relevant Factors

[29] It makes sense, when interpreting new legislation, to do one’s best to ascertain the intent of Parliament, wherever possible. The so-called “modern principle of statutory interpretation”, directs that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” See Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, as quoted in Rooney v. ArcelorMittal S.A., 2016 ONCA 630 at para. 11; and Rizzo & Rizzo Shoes Ltd., Re 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.

[30] In this instance, Parliament’s object and intent are relatively easy to glean. Less so, how the use of the stand-aside discretion might reasonably meet Parliament’s object and intent.

[31] On the occasion of the second reading of Bill C-75, the then Minister of Justice, the Honourable Jody Wilson-Raybould, described the intent behind the changes to the jury selection process as follows:

Discrimination in the selection of juries has been well documented for many years. Concerns about discrimination in peremptory challenges and its impact on indigenous peoples being represented on juries was raised back in 1991 by Senator Murray Sinclair, then a judge, in the Manitoba aboriginal justice inquiry report. That report, now over 25 years old, explicitly called for the repeal of peremptory challenges. More recently, retired Supreme Court Justice Frank Iacobucci addressed these issues in his 2013 report on first nations representation on Ontario juries.

Reforms in this area are long overdue. Peremptory challenges give the accused and the crown the ability to exclude jurors without providing a reason. In practice, this can and has led to their use in a discriminatory manner to ensure a jury of a particular composition. This bill proposes that Canada join countries like England, Scotland, and Northern Ireland in abolishing them.

To bring more fairness and transparency to the process, the legislation would also empower a judge to decide whether to exclude jurors challenged for cause by either the defence or prosecution. The legislation will strengthen the power of judges to stand aside some jurors in order to make room for a more diverse jury that will in turn promote confidence in the administration of justice. Courts are already familiar with the concept of exercising their powers for this purpose.

I am confident that the reforms will make the jury selection process more transparent, promote fairness and impartiality, improve the overall efficiency of our jury trials, and foster public confidence in the criminal justice system.

Parliament of Canada, Official Report of Debates (Hansard), 42nd Parl., 1st Sess., No. 300, (24 May 2018)

[32] Later, just before the third reading of the Bill, the Parliamentary Secretary to the Minister of Justice, Mr. Arif Varani, repeated some of the same comments the Minister had made earlier, saying:

The under-representation of indigenous peoples and visible minorities on juries is a major concern. This problem has been well-documented for years. We believe that eliminating peremptory challenges will significantly improve the diversity of juries.

Peremptory challenges give both the accused and the Crown the power to exclude potential jurors without having to provide a reason. They have no place in our courtrooms, given the potential for abuse. Once this bill has passed, Canada will join countries like England, Scotland and Northern Ireland, which abolished peremptory challenges in 1988.

Parliament of Canada, Official Report of Debates (Hansard), 42nd Parl., 1st Sess., No. 360, (28 November 2018)

[33] Immediately after Bill C-75 received Royal Assent, the Department of Justice published a commentary about the Bill on its website under the heading, “Reducing Delays and Modernizing the Criminal Justice System”. See https://www.justice.gc.ca/eng/cj-jp/redu/index.html. They identified the promotion of fairness and impartiality in the selection of jurors as the driving factors behind the significant amendments the Bill made to the jury selection process, saying in part:

Juries that are viewed as not being representative of Canadian society may lead to a lack of confidence in the justice system. This new law changes the Criminal Code to improve the jury selection process by abolishing peremptory challenges, which allow Crown and defence counsel to exclude a potential juror without giving a reason. The law will also empower judges to decide whether to exclude jurors that have been challenged by either the defence or prosecution (e.g., because they may be biased in favour of one side), and allow a judge to “stand aside” (or “stand by”) a potential juror while other jurors are selected in order to provide for an impartial, representative jury. These changes will promote fairness and impartiality in the selection of jurors and in the criminal justice process. (Emphasis mine).

[34] Based on the comments of the Minister of Justice and her Parliamentary Secretary, as well as the content of the statement published by the Department of Justice, the explicit concerns driving the amendment to s. 633 were impartiality, fairness, transparency and representativeness. To these I would add a factor I think to be implicit: competence. This is to say that, from Parliament’s point of view, judges should utilize the discretion to stand aside potential jurors where doing so will enhance the fairness or transparency of the procedure, or the impartiality, representativeness or competence of the jury.

[35] For the reasons that follow, however, I have concluded that:

(a) The use of stand-asides is not an appropriate means of enhancing impartiality on a jury;

(b) The use of stand-asides will not generally make the jury selection process more fair;

(c) With the elimination of peremptory challenges, the selection process is transparent. The use of stand-asides will not enhance that transparency;

(d) The use of stand-asides to enhance representativeness is largely unworkable; but,

(e) The use of stand-asides may be appropriate when issues of juror competence arise.

[36] I will consider each factor in turn.

[37] I note, before moving on, that I use the terms “representativeness” and “diversity” as interchangeable in these reasons, although I recognize that arguments may be made that they are not equivalents. An optimally diverse jury, for instance, would include 12 jurors who each bring widely varying characteristics to the table. Such a jury will not, however, likely be representative – at least not proportionately representative – of the community it was drawn from.

[38] I do not, however, believe that Parliament expects that trial judges will have available to them up-to-date census data detailing the composition of any particular community along any number of different dimensions. Instead, I am proceeding on the basis that Parliament recognizes that Canadian society is a diverse society and that it is desirable that juries reflect such diversity insofar as is reasonably possible. In other words, I am proceeding on the basis that Parliament means “diversity” when it uses the term “representativeness”.

[39] With those comments in mind, I turn to the first factor arguably justifying the use of the stand-aside discretion.

1. Impartiality

[40] An impartial decision-maker is unquestionably central to the maintenance of public confidence in the criminal justice system.

[41] I confess to having some difficulty appreciating how any of the amendments introduced by Bill C-75 will in fact enhance impartiality. The principal changes to the jury selection process are the elimination of peremptory challenges, the substitution of the trial judge for the “triers” in the challenge for cause process, and the enhanced power to stand aside potential jurors.

[42] I am unable to see any rational connection between the elimination of peremptory challenges and enhanced impartiality. Arguably, the reverse is true. Peremptory challenges have been described by our Court of Appeal as providing a means by which a party may remove prospective jurors whom they subjectively believe to be partial, without requiring an objectively reasonable justification. See R. v. Yumnu, 2010 ONCA 637 at paras. 123-4, affirmed 2012 SCC 73. That ability to remove prospective jurors for subjective concerns about partiality is now gone.

[43] Similarly, having the trial judge determine the validity of a challenge for cause likely improves efficiency, but not impartiality.

[44] I am furthermore of the opinion that stand-asides are not a rational means to enhance impartiality. In my view, a prospective juror who is not impartial should be excused, not stood aside. Impartiality is the bedrock of the judicial system. Each and every juror must be impartial as between Her Majesty and the accused. There is no point in standing aside of group of biased jurors. They are not going to be tapped into once the pool of impartial jurors has been exhausted.

[45] Trial judges have a wide discretion, under s. 632 of the Code, to excuse jurors for reasons of impartiality based on such factors as a personal interest in the proceedings, a relationship with any of the participants, personal hardship, or any other reasonable cause. Moreover, under s. 638, counsel have an ability to challenge a jury panel for cause, including, as was done here, on the basis of partiality.

[46] In my view, impartiality is not a proper consideration under s. 633 of the Code. Partiality is a valid reason to excuse a juror. It is not a valid reason to stand one aside.

2. Fairness

[47] The amendment to s. 633 is curiously vague. Exactly how and when the use of stand-asides should be used to make jury selection fairer, or juries more representative, is not at all clear.

[48] In my view, standing aside one or more prospective jurors to give other prospective jurors a greater chance of being selected will not generally enhance the fairness of the process and, indeed, it may make the process appear unfair.

[49] There are a number of constituents who will have an interest in a fairly constituted jury, including, without limitation: accused persons; complainants; the broader community; and the state.

[50] A fair selection process must, I would think, be one that:

(a) Ensures that a broad cross-section of society is given a fair opportunity to participate: Kokopenace, para. 61;

(b) Permits a representative cross-section of society to be chosen;

(c) Ensures, to the extent possible, that the jury chosen is impartial; and,

(d) Is applied in a consistent and equal manner.

[51] In my view, the core features of the selection procedure, as presently constituted, already assure fairness.

[52] The Supreme Court concluded, in Kokopenace, that the process utilized in Ontario to compile jury rolls provides a fair opportunity for a broad cross-section of society to participate. The government was found to have met its constitutional obligations by ensuring that:

(a) reasonable efforts were made to compile jury rolls using random selection from lists that draw from a broad cross-section of society; and,

(b) notices are delivered to those persons randomly selected.

[53] The abolition of peremptory challenges further enhances participation because it eliminates the ability of one side or the other to effectively shut out any particular segment of the jury panel through the use of challenges in a discriminatory fashion.

[54] Representativeness, a matter I will address in some detail in a moment, is again achieved through the randomized process of assembling jury rolls.

[55] Impartiality is assured through the means I have already described.

[56] Finally, equality is achieved when the selection process operates in a fundamentally similar way across jurisdictions and across cases.

[57] The selective use of stand-asides to tinker with the selection process tends, in my view, to undermine, rather than enhance, randomness and equality and, therefore, fairness.

The Special Case of Indigenous Jurors

[58] It is widely recognized that Indigenous people are over-represented in the Canadian prison population and under-represented on Canadian juries.

[59] In 2011 the province appointed The Honourable Frank Iacobucci to conduct an independent review to study the issue of the under-representation of Indigenous people on Ontario juries. His report, First Nations Representation in Ontario Juries, (Toronto: Ministry of the Attorney General, 2013) was released in February 2013. It was part of the record before the Supreme Court in Kokopenace and was referenced in that court’s decision.

[60] He concluded, amongst other things, that there are unique, deep and systemic problems behind the under-representation of Indigenous people on jury rolls. Those problems include cultural barriers (specifically, conflicts in approaches to criminal justice); systemic discrimination; problems with obtaining accurate and up-to-date information about the identity of residents on reserves designated under the Indian Act; education (including a lack of knowledge and awareness of the jury system); language issues; and other practical barriers.

[61] In Kokopenace, Moldaver J. observed that the response rate for the on-reserve adult population in the District of Kenora (where the case originated) was a dismal 10% in 2008 (the year the case arose). That figure compared to a response rate of between 60 and 70% for off-reserve adults.

[62] But the majority in Kokopenace also held, at para. 64, that the state is not obligated, through the vehicle of jury representativeness, to “address the distressing history of estrangement and discrimination suffered by Aboriginal peoples.” More specifically,

Efforts to address historical and systemic wrongs against Aboriginal peoples - although socially laudable - are by definition an attempt to target a particular group for inclusion on the jury roll. Requiring the state to target a particular group for inclusion would be a radical departure from the way the Canadian jury selection process has always been understood.

[63] It must be remembered that Kokopenace was a constitutional case. The accused appealed his conviction, alleging that his right to trial by jury as guaranteed by s. 11(f) of the Charter was impaired because the jury roll was not representative. In other words, the focus was on the constitutional rights of the accused. The amendments to s. 633 are not focused on the rights of accused persons, but rather the reputation of, and confidence in, the jury system on a whole. And I think it fair to recognize that Parliament is suggesting that a departure from business as usual is appropriate, at least insofar as Indigenous representativeness is concerned.

[64] At least some of the recommendations contained in the Iacobucci Report have been implemented by the province. Notably, jury rolls used to be assembled from a random list of the names of residents within each county and district, as compiled by the Municipal Property Assessment Corporation (MPAC). MPAC records did not include individuals living in First Nations communities, so additional – and variable – steps had to be taken to acquire their names. Those steps produced inconsistent results.

[65] Recently, the Juries Act was amended to provide that jury rolls will be compiled from a jury source list created annually by the Minister of Health and Long-Term Care. In other words, the most recent OHIP records will be the database from which jury rolls are compiled from and after the year 2020. As yet there is no empirical evidence regarding the success of this change, in terms of increasing the number of Indigenous individuals or other visible minorities on jury rolls, but it is certainly expected to have a positive impact in terms of representativeness generally. That said, the database change will not, on its own, resolve all of the myriad reasons why Indigenous people tend to be under-represented on jury rolls.

[66] I am, in summary, of the view that the expanded, stand-aside discretion provided for in s. 633 of the Code generally does not need to be utilized to improve the fairness of the jury selection process. Indeed, its use arguably impairs fairness by interfering with randomness and equality. The one possible exception to this conclusion involves cases where the interests of Indigenous persons are engaged. It will obviously be up to the presiding trial judge to determine whether it is appropriate to utilize the stand-aside discretion to enhance the opportunity of Indigenous jurors to participate in such cases. I do not propose to offer any suggestions as to what particular factors trial judges in such cases ought to consider. Doing so is beyond the scope of these reasons, given that the case at bar does not directly involve an Indigenous dimension.

3. Transparency

[67] One of the problems identified by Parliament, at the time Bill C-75 was introduced, was that the exercise of a peremptory challenge did not require any objectively justifiable basis. It could, in the result, be used for discriminatory purposes.

[68] The abolishment of peremptory challenges removes a non-transparent element from the process. The use of stand-asides will not, in my view, enhance transparency further. In fact, if adequate reasons are not given for each juror asked to stand aside, one might argue that transparency will be reduced.

4. Representativeness

[69] Having considered the genesis of the amendments to the jury selection process, the object and intent of Parliament in effecting those amendments, and existing appellate authorities on the issue of representativeness, I have reached the following conclusions:

(a) The elimination of peremptory challenges and the expanded jurisdiction to stand aside prospective jurors during the selection process really have to do with participation and the appearance of diversity;

(b) The use of stand asides to enhance participation is not necessary for the reasons I set out above in my comments about fairness, subject to my observations with respect to Indigenous jurors;

(c) The use of stand asides to manipulate the composition of the jury (in the service of diversity) is not in step with appellate authority;

(d) The use of stand asides to enhance diversity is generally unworkable and may very well give rise to concerns about equality; and,

(e) Though the discretion to utilize stand asides in an effort to enhance diversity is now clearly established, it should be exercised sparingly.

[70] I will briefly explain how I came to each of the foregoing conclusions.

(i) Appearances

[71] The amendments to the jury selection process ushered in through Bill C-75 were, in large part, a reaction to the Saskatchewan case of R. v. Stanley. Mr. Stanley was charged with murder in the shooting death of a young Indigenous man named Colten Boushie, who was a resident of the Cree Red Pheasant First Nation. Defence counsel was able to utilize peremptory challenges to excuse Indigenous members of the jury panel whose cards were pulled from the drum. The result was an all-white jury who acquitted Mr. Stanley.

[72] The Stanley verdict led to a significant public outcry. Some constituents thought the verdict an injustice. Others were critical of what they saw to be a prejudice-based use of peremptory challenges. The Federal Minister of Justice of the day tweeted, in part, “As a country we can and must do better.” The Stanley verdict proved to be the death knell of peremptory challenges in this country. I am not suggesting that the amendments to the jury selection procedures are solely the result of the verdict in the case of Gerald Stanley. But it was a significant triggering event.

[73] There is no doubt that the elimination of any prospective juror who was Indigenous left a poor impression. It effectively prevented Indigenous jurors from participating in a case of great concern to their community. And it offered support for the inference that peremptory challenges could be utilized for discriminatory purposes. One can readily appreciate why Parliament was concerned not only about public perception or appearances, but about fairness, diversity and equality.

[74] I do not, however, take the comments of the Minister of Justice, or the subsequent introduction of Bill C-75, to be an indication that members of Parliament thought the Stanley jury was unfair or biased. I think, instead, that the concerns for Parliament were, and are, about appearances and about ensuring fair and representative participation. It may very well strike reasonable and informed members of the public as unfair when the jury selection process can be utilized to shape a jury that is not representative of the community in which the offence allegedly occurred, or which excludes a significant segment of that community. Enhancing jury diversity tends to promote participation and appearances simultaneously.

[75] The language used by the government to describe and comment on Bill C-75, make it clear that the legislative intent was to improve diversity on petit juries in order to maintain public confidence in the jury system. The means to achieve that end are twofold: (1) they have done away with a tool that enabled counsel to impact the diversity of a jury without having to provide a rational justification for doing so; and (2) they have provided judges with a discretion to effectively manipulate jury selection to enhance diversity.

[76] Using stand asides to increase the diversity of a petit jury is not necessary, of course, to meet the constitutional rights of accused persons. The right of an accused person to a fair and representative jury has been conclusively determined by the Supreme Court to be met by the randomized process of assembling jury rolls and panels. Moreover, I think it fair to say that if an accused person is not entitled to proportionate representation on the petit jury, then neither is any other interested party to the litigation.

[77] Nevertheless, it is clear that Parliament has now expressly endorsed the intervention by trial judges in the jury selection process to stand aside some jurors in order to get to other jurors who will increase the diversity of the jury.

[78] Juries are the conscience of the community. It is important that the jury be a cross-section of the community to ensure that a range of perspectives, life experience and wisdom are brought to the table. Having said that, the randomized process used to assemble jury rolls in Ontario already ensures that panels will be a randomized cross-section of the community.

[79] There is no empirical evidence, to my knowledge, that supports the conclusion that a more diverse jury is a more impartial jury. If enhancing the diversity of juries does not enhance impartiality, and if it is not about the constitutional rights of the litigants, and if it is generally not needed to ensure fair participation, then what is left as a justification for using stand-asides to increase diversity on petit juries is the issue of appearances.

[80] Appearances do matter. But in my view, appearances are a less compelling justification for the use of the stand-aside discretion than impartiality, fairness or constitutional compliance would be. In a moment I will identify a number of fundamental problems associated with attempts to target any particular identifiable group for inclusion on a petit jury. Given these problems, it will be a rare case that justifies the use of the stand-aside discretion to enhance diversity for the sake of appearances.

(ii) Appellate Authority

[81] Diversity on petit juries is a laudable aspiration. But the manipulation of the jury selection process to promote diversity is fraught with difficulties.

[82] For one thing, it does not fit well with the Supreme Court’s decision in Kokopenace. As Justice Moldaver observed, at para. 39 of Kokopenace,

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 panel.

[83] For another thing, utilizing stand asides to manage jury representativeness does not fit well with the Court of Appeal’s ruling in R. v. Brown, 2006 CanLII 42683 (ON CA), [2006] O.J. No. 5077.

[84] In 1994, three black men committed an armed robbery of the customers of a little café in downtown Toronto called Just Desserts. In the course of the robbery they shot and killed a young woman who was there having coffee with her boyfriend. The crime was brazen and shocking and attracted an immense amount of media attention. Mr. Brown was alleged to have been the shooter. He was convicted of first degree murder at trial.

[85] On appeal, Mr. Brown complained principally about the manner in which the trial judge had manipulated jury selection. There were 1200 people summonsed as prospective jurors; 1000 showed up over four days. Each day the trial judge had the registrar randomly draw each of the 250 or so juror cards from the drum. The jurors were placed into groups of 25 and assigned dates and times to return to complete jury selection. Groups that included black people or people from other identifiable groups (other than whites) were assigned a return date that was sooner than other groups. The obvious intent was to increase the odds of a black person being selected.

[86] On appeal, Justice Rosenberg referred to the system utilized by the trial judge as a “come forward” process. He found that it had no impact on the ultimate composition of the jury, which was overwhelmingly white. He concluded that the trial judge had attempted to foster racial diversity “to promote the goals of the jury serving as the conscience of the community and societal trust in the system as a whole.” (Emphasis mine). The jury was otherwise honestly and fairly chosen.

[87] Despite his conclusion that the process utilized by the trial judge to foster racial diversity did not unfairly advantage the Crown, Justice Rosenberg instructed that it was not an advisable procedure to follow in future cases. As he put it,

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. (Brown, para. 22).

[88] Justice Rosenberg went on to characterize the representative nature of the jury as the basis upon which it may legitimately act as the conscience of the community. He observed that involvement of the public in the criminal justice system increases societal trust in the system as a whole. (Brown, paras. 23-24).

[89] But like Justice Moldaver held years later in Kokopenace, Justice Rosenberg identified randomization as the means by which jury representativeness is achieved.

[90] Parliament, by virtue of the amendment to s. 633 of the Code, appears now to be inviting trial judges to engage in the sort of manipulation of representativeness that Justice Rosenberg warned against in Brown.

(iii) Increasing Diversity Through Stand-Asides is Unworkable

[91] Manipulating representativeness on the basis of what a trial judge might perceive to be in accordance with the expectations of a reasonable and informed public is a slippery concept.

[92] It is one thing to abolish the means by which counsel could eliminate or substantially reduce the participation rate of a particular segment of society from service on a jury. It is another thing altogether to utilize a stand-aside discretion to give a particular segment of society an enhanced opportunity to participate in service on a jury. Manipulating the randomness of the selection process to target a particular group or groups of individuals for selection would mark a paradigm shift in the way in which the selection of petit juries has typically proceeded. It has to date been rejected by Canadian appellate courts.

[93] The public is a very diverse group. Diversity means variety. It reflects the concept that, as individuals, we may be different in many ways. The Canadian public reflects an enormous range of differences, along many dimensions: race, colour, culture, religion, political affiliation, gender, age, sexual orientation, intelligence, education, occupation, athleticism, ability, disability, attractiveness, height, weight, wealth, and countless others. Determining which of these differences, and in what proportions, will best maintain public confidence in the administration of justice is an impossible task.

[94] Former Chief Justice McLachlin put it this way in R. v. Biddle, 1995 CanLII 134 (SCC), [1995] 1 S.C.R. 761 at para. 58 (cited approvingly by Moldaver J. at para. 70 of Kokopenace):

To say that a jury must be representative is to set a standard impossible of achievement. The community can be divided into a hundred different groups on the basis of variants such as gender, race, class and education. Must every group be represented on every jury? If not, which groups are to be chosen and on what grounds? If so, how much representation is enough? Do we demand parity based on regional population figures? Or will something less suffice? I see no need to start down this problematic path of the representative jury, provided the impartiality and competence of the jury are assured. Representativeness may be a means to achieving this end. But it should not be elevated to the status of an absolute requirement.

[95] The recent change to the use of health records as the base from which jury rolls are compiled is a welcome advancement. There are sound reasons to expect that a broader cross-section of the adult population will be included in jury rolls compiled from OHIP records than were compiled from MPAC records, which is a database focused on property ownership. The change in databases was, I expect, an effective means of enhancing the broad representativeness of jury rolls and panels.

[96] On the other hand, the use of the stand-aside discretion will not, by its nature, enhance broad representativeness. Realistically, its use will involve the targeting of a particular group for inclusion in the petit jury. Attempts to manipulate the selection process at the petit jury level will, in my view, quickly prove unworkable and may well give rise to significant equality issues. Why, for instance, should one identifiable group be entitled to greater representation on a jury than any other? Which group(s) best enhance the collective wisdom of the jury? Who might be best to represent the conscience of the community?

[97] The obvious concern is that once trial judges begin to manipulate jury selection to increase the representation of one identifiable group on a given jury, there will be many other identifiable groups who will want or expect to be afforded similar treatment. If every identifiable group of consequence is to be accommodated, there will be a whole lot of manipulating going on. If not, then issues of equality will arise. Unequal treatment of identifiable groups may, in fact, simply provide a different means to undermine public confidence in the administration of justice.

(iv) The Stand-Aside Discretion Should be Used Sparingly

[98] In light of the decision in Kokopenace, standing aside jurors for the purpose of representativeness, is not a constitutional imperative. Moreover, it is generally unnecessary to use stand-asides to enhance participation or for fairness concerns, particularly in light of the elimination of peremptory challenges. Subject to my foregoing comments about the participation rates of Indigenous jurors, the randomized system used to assemble jury rolls already ensures a fair opportunity for all to participate.

[99] Having said all of that, while the use of stand asides to manipulate participation and representativeness may not be a constitutional imperative, their use may still be appropriate in the context of a given case. I have already noted that it may be an appropriate practice in cases with an Indigenous dimension. There may be other cases that warrant, from the perspective of the public, the use of the discretion to stand aside prospective jurors in order to give other jurors – having particular characteristics – a greater chance of being selected. In my view, however, based on the concerns I have expressed, these cases will be rare.

5. Competence

[100] Every now and then, a prospective juror appears who is clearly not well-suited to jury service. Lawyers and judges alike, through their life experience, are able to readily identify them. Peremptory challenges were a useful means of eliminating them from the jury panel.

[101] Competent juries are necessary to maintain public confidence in the administration of justice. Where a trial judge has concerns about the competency of a prospective juror, it is appropriate to exercise the discretion to stand that juror aside.

Application to this case

[102] In the context of this particular case, I saw no basis to interfere with jury selection in an attempt to achieve gender balance.

[103] For the reasons expressed, it was not necessary to stand aside female jurors, even temporarily, to ensure that an impartial jury was selected. Nor is a gender-balanced jury necessary for fairness or transparency issues.

[104] In terms of representativeness, I do not believe that gender is a dimension of diversity that is sufficiently compelling so as to justify a trial judge interfering with the randomness of jury selection. This is particularly so in light of all of the problems I have identified as associated with attempts to manipulate the selection process for the sake of the appearance of diversity.

[105] In my view, the reasonable and informed public has no less confidence in female jurors than they do in male jurors. The randomized process currently used to compile jury rolls is already “gender blind”. A gender-balanced petit jury is neither a constitutional imperative, nor required to maintain public confidence in the administration of justice. This is not, in other words, one of the rare cases that might justify the use of stand-asides to enhance the diversity, fairness or competence of the jury.

ISSUE THREE: THE NURSE

[106] This third issue was the easiest of the three to resolve.

[107] While a trial judge clearly has a discretion to excuse jurors who are not impartial, I was simply not persuaded that a prospective juror’s occupation as a nurse in any way impaired her ability to approach the case with an open mind and decide it solely on the basis of the evidence tendered at trial and my legal instructions at the end of the case.

[108] Defence counsel’s concern was that a nurse may have greater familiarity than the average person with the harmful effects that hard drugs like crack cocaine have on the people who use them. A nurse may therefore be more inclined to want to punish a person alleged to be in possession of crack cocaine for the purpose of trafficking in it.

[109] There is no objective evidence that I am aware of to support counsel’s submission.

[110] Peremptory challenges once provided counsel with the opportunity to challenge prospective jurors whom they subjectively believed to be partial, without requiring an objectively reasonable justification. They can no longer do so. In this instance, defence counsel had a subjective belief in the potential partiality of a person who was a nurse by occupation. Without any objective foundation upon which a finding of partiality might be based, however, counsel was essentially asking the court to peremptorily challenge the prospective juror. Stand asides are not a substitute for erstwhile peremptory challenges.

Boswell J.

Released: November 25, 2019