INTRODUCTION

[1] On October 18, 2021, after an 18-day jury trial, Jermaine Smith was acquitted of second degree murder in connection with the shooting death of Jordan Buchner. Mr. Smith is Black. He was tried by a jury that included racialized men and women, none of whom was Black. These reasons deal with my authority, as a trial judge, to intervene in the jury selection process by using the recently expanded “stand-by” power in s. 633 of the Criminal Code, R.S.C. 1985, c. C-46 to influence the racial composition of the jury.

[2] Formerly, s. 633 provided that a trial judge could direct a prospective juror “to stand by for reasons of personal hardship or any other reasonable cause.” The section was amended effective September 19, 2019 with the enactment of Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts. It now reads 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, maintaining public confidence in the administration of justice or for any other reasonable cause. (emphasis added to highlight the amendment)

[3] After 11 jurors were sworn in this case, Defence counsel requested that I exercise my discretion to stand by qualified (i.e. competent and impartial) prospective jurors to ensure that the final member selected for the jury was Black. The request was made without prior notice and without any supporting application materials. Defence counsel explained that they had not anticipated the need to make the request. Crown counsel opposed the request and took the position that s. 633 did not give me the power to do what was asked.

[4] Given the late stage at which the issue was raised, the proceeding could not be adjourned to give counsel time to research and draft written submissions. In any event, neither counsel requested an adjournment. Both parties were prepared to make oral submissions. After hearing their submissions, I delivered a bottom-line oral ruling, stating simply that I would not grant the Defence request. I indicated that my written reasons would follow.

[5] Given that Mr. Smith was ultimately acquitted, I recognize that I could have issued cursory reasons for my pre-trial ruling. However, I have decided to deliver detailed reasons because the question of whether s. 633 can be used to shape the demographic composition of a jury and if so, when that judicial discretion should be exercised, is a novel issue of significant controversy. There is currently a lack of clarity in the law due to conflicting decisions of this court and an absence of appellate guidance.

HISTORICAL MANIPULATION OF JURY COMPOSITION

[6] The power to stand by prospective jurors was at one time reserved to the exclusive discretion of the Crown. It was, on occasion, used by the prosecution to manipulate the demographic composition of juries. In R. v. Pizzacalla (1991), 1991 CanLII 7070 (ON CA), 5 O.R. (3d) 783, for example, Crown counsel used 20 stand asides to exclude men from a jury for the trial of a man accused of sexually assaulting his female employees. The accused was convicted by an all-female jury. In R. v. Biddle, 1995 CanLII 134 (SCC), [1995] 1 S.C.R. 761, the Crown similarly employed its stand-by discretion to fashion an all-female jury in the trial of a man accused of committing two violent assaults on women.

[7] The Crown also used its former stand-by power to affect the racial composition of juries and, in particular, to exclude First Nations, Métis and Inuit (“Indigenous”) persons from serving on juries: Report of the Aboriginal Justice Inquiry of Manitoba, vol.1, The Justice System and Aboriginal People (1991), cited in R. v. Chouhan, 2021 SCC 26, 459 D.L.R. (4th) 193, at para. 22 (per Moldaver and Brown JJ.).

[8] The stand-by power was eventually removed from the Crown and conferred upon trial judges when Parliament amended the Code following the Supreme Court of Canada decision in R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91. Requests for judges to stand by prospective jurors based on specific identity characteristics did not, however, occur prior to the enactment of the more recent Bill C-75 amendments in September 2019, presumably because the parties had peremptory challenges that were commonly and effectively used to alter the demographic composition of juries.

[9] Peremptory challenges were used both to promote diversification of juries and to promote homogeneity of juries. Under the former jury selection regime, Indigenous, Black and racialized accused often used peremptory challenges to eliminate White prospective jurors in favour of jurors who represented diverse backgrounds. The Supreme Court of Canada recognized this practice in R. v. Chouhan, 2021 SCC 26, 459 D.L.R. (4th) 193, at para. 17 (per Moldaver and Brown JJ.) and paras. 226-228 (per Coté J.). The Supreme Court also recognized that, under the former regime, both Crown counsel and Defence counsel misused peremptory challenges to eliminate Indigenous and Black prospective jurors, particularly in cases involving inter-racial offences where either the victim or the accused was White: Chouhan, at para. 22-24 (per Moldaver and Brown JJ.) and paras. 201-202 (per Abella J.).

[10] In their decision in Chouhan, Moldaver and Brown JJ. remarked, at para.22:

… When the Honourable Frank Iacobucci examined the problem of Indigenous under‑representation on Ontario’s provincial jury rolls, he found that the continued existence of peremptory challenges undermined even the most successful attempts by the province to ensure that Indigenous people are represented on jury rolls (First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by the Honourable Frank Iacobucci (2013), at para. 376). The Iacobucci Report noted particularly stark examples of the use of peremptory challenges to exclude Indigenous jurors:

… In the Helen Betty Osborne case in The Pas, the jury had no Aboriginal members, in spite of the fact that it was in an area of Manitoba where Aboriginal people comprise over 50% of the population. All six Aboriginal people called forward were the subjects of peremptory challenges from the defence. Similarly, on one day of the Thompson assizes, 35 of 41 Aboriginal people called to serve on three juries were rejected through peremptory challenges and stand‑asides. “In one case, the Crown rejected 16 Aboriginal jurors; in another, the defence rejected two and the Crown rejected 10; in the third and final case, the defence accepted all the proposed Aboriginal jurors, while the Crown rejected nine. Two jurors were rejected twice.

[11] Similar abuses occurred in R. v. Lines, [1993] O.J. No. 3284 (Ont. Gen. Div.), where a White accused police officer peremptorily challenged Black jurors in a case alleging police violence against a Black resident of Toronto, and in R. v. Gayle (2001), 2001 CanLII 4447 (ON CA), 54 O.R. (3d) 36 (C.A.), where the Crown used peremptory challenges to eliminate Black prospective jurors in a trial involving a Black accused charged with the murder of a White police officer and the attempted murder of another White police officer.

[12] Perhaps the most notorious example of this type of abuse of peremptory challenges is the 2018 trial of Gerald Stanley, a White man, for the murder of Colten Boushie, a Cree man. Defence counsel in that case peremptorily challenged five Indigenous prospective jurors. Mr. Stanley was acquitted by an all-White jury. The public outcry in the aftermath of the acquittal prompted Parliament to overhaul the jury selection process with the enactment of Bill C-75: Chouhan, at para. 42 (per Moldaver and Brown JJ.) and at para. 201 (per Abella J.). Parliament abolished peremptory challenges by repealing s. 634 of the Code and simultaneously enhanced the judicial stand aside power in s. 633.

JURISPRUDENCE

[13] The first jury selection cases decided after the enactment of Bill C-75 focused on the constitutional validity and temporal application of the repeal of s. 634. The amendment to s. 633 initially attracted minimal attention. After the Supreme Court of Canada released its decision in Chouhan, which rendered the peremptory challenge an artifact of history, parties began to invoke s. 633 as a potential replacement mechanism for influencing the demographic composition of juries. The jurisprudence with respect to the interpretation of the amended s. 633 is still in its infancy. As noted earlier, there are conflicting decisions from this court and there is no binding appellate authority.

The Supreme Court’s Divided Decision in R. v. Chouhan

[14] Neither the constitutional validity of the amended s. 633 nor the scope of its application were at issue in Chouhan. Eight justices of the Supreme Court nevertheless commented, in five separate judgments, on the interpretation of the provision and whether it can be used to shape the demographic composition of a jury. They were evenly divided in their views. I therefore disagree with my colleagues Pomerance J. in R. v. Bhogal, 2021 ONSC 4925, at para. 5 and Code J. in R. v. Stanley, 2021 ONSC 6110, at paras. 28-29, who both found “that a 5-4 majority of the Court decided in Chouhan that the new stand aside power cannot be used to proactively promote diversity on the petit jury.”

[15] I recognize the compelling public policy reasons underlying the principle of judicial comity, which dictates that the decisions of judges of coordinate jurisdiction should be followed in the absence of cogent reasons to depart from them: R. v. Scarlett, 2013 ONSC 562, at para. 43. While I am reticent to diverge from the findings of my esteemed judicial colleagues, I cannot adopt their reading of the Supreme Court’s fractured decision in Chouhan. With all due respect to them, I provide the following reasons for my different reading of the decision, which I trust will satisfy the requirement of cogency.

[16] On my reading of Chouhan, four Justices (Wagner C.J., Moldaver and Brown JJ. at paras. 74-97 and Coté J. at paras. 316) held that s. 633 “cannot be used to promote or enhance the diversity of the petit jury.” Abella J., at paras. 157-164, held that trial judges can use s. 633 “to actively promote jury diversity on a case by case basis.” Martin, Karakatsanis and Kasirer JJ., at paras. 111-118, expressed reluctance to opine on an issue that was unnecessary to decide and on which the Court did not have the benefit of counsel’s submissions, but they nevertheless commented on considerations relevant to the interpretation of s. 633. In so doing, they articulated views that were critical of Moldaver and Brown JJ.’s reasons. They appeared sympathetic to Abella J.’s proposed use of s. 633, although they left the issue to be decided another day. The final Supreme Court justice, Rowe J., did not address the issue in his decision.

[17] Neither Pomerance J. in Bhogal nor Code J. in Stanley refer to a specific passage in Rowe J.’s decision to support their conclusion that he concurred with Moldaver and Brown JJ.’s obiter commentary about the restrictive use of s. 633 stand asides. I am unable to discern from their reasons how they arrived at that conclusion.

[18] The Crown in this case argued that the following paragraph of Rowe J.’s decision adopts Moldaver and Brown JJ.’s views on the restricted scope of s. 633:

[124] I agree with my colleagues Moldaver and Brown JJ. that the abolition of peremptory challenges is constitutionally valid and that the legislative change is purely procedural and has retrospective application. I would adopt their reasons. However, I am compelled to write separately on the risk that constitutionalizing statutory provisions through the jurisprudence poses. I am in agreement with my colleagues on their explanation of the role of courts with respect to policy decisions made by Parliament in the context of an analysis under the Canadian Charter of Rights and Freedoms (Moldaver and Brown JJ.’s reasons, at para. 84). My wish here is to expand on this issue.

[19] In the above paragraph, Rowe J. agrees with the findings of Moldaver and Brown JJ. on the constitutional validity of the repeal of s. 634 of the Code and on the procedural nature of that legislative change. He expressly adopts their reasons for those findings. His adoption of their reasons does not, however, necessarily extend to the obiter comments that they made about the restrictive use of the stand aside mechanism under s. 633. Rowe J.’s decision is silent on that issue. On my reading of Chouhan, therefore, the Supreme Court was evenly divided, in their obiter remarks, on the question of whether and to what extent the stand aside power can be used to enhance jury diversity.

[20] To the best of my knowledge, other appellate courts have not yet ruled on this issue. In Chouhan, the Court of Appeal for Ontario (2020 ONCA 40) did not address it. The only comments made by the Court of Appeal about the scope of s. 633 are the following:

[69] … Under the recently amended s. 633 of the Criminal Code, the presiding judge may stand by potential jurors for personal hardship, maintaining public confidence in the administration of justice, or any other reasonable cause.

[70] … The language of "personal hardship" and "any other reasonable cause" duplicates that in the excusal authority of s. 632(c). But the language "maintaining public confidence in the administration of justice" is new and, as a matter of statutory construction, covers different ground. …

[71] We did not receive any submissions that would permit me to mark out the boundaries of this additional authority. Suffice it to say that its presence is of further assistance in ensuring the constitutional requirement -- an impartial jury.

[21] There is, therefore, no binding appellate jurisprudence to guide me in my analysis.

Appellate Jurisprudence on Jury Representativeness

[22] There is an abundance of settled appellate jurisprudence on the issue of jury representativeness in the context of interpreting rights guaranteed by the Canadian Charter of Rights and Freedoms. Defence counsel in this case did not rely on the Charter to support his request that I take steps to ensure the presence of a Black person on the jury for Mr. Smith’s trial. The jurisprudence developed under ss. 11(d), 11(f) and 15(1) of the Charter is therefore of limited utility to me in this case.

[23] It is nevertheless worth noting that, as a matter of constitutional law, the Supreme Court of Canada has consistently declined to interpret the imperative of jury representativeness, guaranteed by ss. 11(d) and 11(f) of the Charter, as entitling an accused to a minimum number of individuals of his or her race at any stage of the jury selection process: R. v. Church of Scientology, (1997), 1997 CanLII 16226 (ON CA), 33 O.R. (3d) 65 (C.A.), at pp. 120-21; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at paras. 39 and 65; Chouhan, at para. 38. This applies with respect to representation on the jury roll from which jury panels are summoned, on the jury panel (or “array”) of prospective jurors who appear in Court pursuant to their summons, and on the “petit jury” of 12 jurors that is empanelled to hear a specific case.

[24] Appellate courts have also ruled that the equality provisions of s. 15 of the Charter do not require that a jury roll be composed proportionately of persons belonging to the same race as, or sharing other personal characteristics of the accused: R. v. Kent, Sinclair and Gode (1986), 1986 CanLII 4745 (MB CA), 27 C.C.C. (3d) 405 (Man. C.A.), at pp. 421-422; R. v. Laws (1998), 1998 CanLII 7157 (ON CA), 41 O.R. (3d) 499 (C.A.), at para. 63.

[25] Finally, appellate jurisprudence makes it clear that the right to a representative and impartial jury, as guaranteed by ss.11(d) and 11(f) of the Charter, does not entitle an accused to a jury roll, jury panel or petit jury that proportionately represents the diversity of Canadian society: Biddle, at paras. 56‑58 (per McLachlin J., as she then was); Church of Scientology, at para. 62; Kokopenace, at paras. 42-43, 65, 70-71, 75; Chouhan, at para. 38 (per Moldaver and Brown JJ.).

[26] The meaning of “representativeness” has therefore been circumscribed in the Charter jurisprudence: Kokopenace, at para. 39. As a constitutional imperative, representativeness is about the process used to compile the jury roll, not the ultimate composition of either the jury roll or the petit jury: Kokopenace, at paras. 40, 51, 59; Chouhan, at para. 271 (per Coté J.).

[27] The accused in Kokopenace was a First Nations man residing on the Grassy Narrows reserve. On appeal from his conviction for manslaughter, he asserted a violation of his rights under ss. 11(d) and 11(f) of the Charter based on the underrepresentation of on-reserve First Nations persons on the jury roll for the District of Kenora, from which the jury panel for his trial was drawn. His appeal was dismissed.

[28] At para. 66 of the majority judgment in Kokopenace, the Supreme Court held that, if the state deliberately excluded a particular subset of the population who are eligible for jury service, that would violate the accused’s Charter right to a representative jury, regardless of the size of the group affected. However, “if it is a question of unintentional exclusion, it is the quality of the state’s efforts in compiling the jury roll that will determine whether the accused’s right to a representative jury has been respected.” The Supreme Court articulated the following test, at para. 61, to determine whether the state has met its constitutional representativeness obligation under s.11 of the Charter:

[T]he question is whether the state provided a fair opportunity for a broad cross-section of society to participate in the jury process. A fair opportunity will have been 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. In other words, it is the act of casting a wide net that ensures representativeness. Representativeness is not about targeting particular groups for inclusion on the jury roll.

[29] Cromwell J. wrote a dissenting judgment (for himself and on behalf of McLaughlin C.J.) in Kokopenace. He held, at para. 224, that representativeness, in the context of rights guaranteed by s. 11 of the Charter, requires a jury roll “that substantially resembles the group of persons that would be assembled through a process of random selection of all eligible jurors in the relevant community.” He agreed with the majority, however, that a petit jury is representative, regardless of its actual composition, if it is properly selected from that roll.

[30] The reasons why representativeness on the petit jury has been circumscribed in this fashion in the Charter jurisprudence is summarized succinctly by Cromwell J. in his dissenting reasons in Kokopanace, at para. 227:

Allowing random selection to be a proxy for representativeness is supported by both practical and policy reasons. If representativeness in this context were given a broader meaning, there could be endless debates about who and what needs to be represented on the jury: race, gender, sexual orientation, marital status, political leanings, age, and economic status are only a few of the possibilities. Defining all of the relevant senses in which a jury should be representative, let alone going about assembling a jury roll that is representative in all of those ways, would pose insurmountable practical problems. Going down that road would also inevitably lead to serious – and under our legal traditions unacceptable – intrusions into the privacy of prospective jurors, many of whom would not be willing to reveal the sorts of personal characteristics or opinions included on the brief list I have set out.

[31] If proportionate representation on juries were a constitutional imperative guaranteed by the Charter, trial judges would face insurmountable difficulties: Biddle, at para. 58 (per McLaughlin J. as she then was); Kokopanace, at para. 42. As the majority of the Supreme Court remarked in Kokopanace, a constitutional requirement of proportionate representation, even if it applied only to the jury roll, could potentially destabilize our entire jury system:

[75] Furthermore, granting an accused the right to a proportionately representative jury roll … would have a drastic impact on the conduct of criminal trials. … [D]efence counsel would presumably be permitted to access the source lists and the jury roll at the outset of every trial. He or she could then argue that the roll is unrepresentative if any group’s rate of inclusion does not approximate its percentage of the broader population — assuming we could somehow solve the impenetrable problem of what groups we are talking about.

[76] The effect of this is two-fold. First, it would create a procedural quagmire at the outset of jury trials. Second, if a jury roll is found to be unrepresentative, it cannot be used for any trial — and each judicial district has only a single jury roll for a calendar year. … [An] expanded view of representativeness risks compromising, if not crippling, the ability to proceed with jury trials throughout the country.

[32] This case is not, however, about guaranteed Charter rights. It is not about constitutional imperatives. Rather, it is about statutory interpretation of a legislative provision that confers discretion upon trial judges. By definition, a discretionary power is exercised on a case-by-case basis. The above concerns about potential destabilization of the entire jury system therefore do not arise in this case.

Decisions of this Court

[33] Before turning to my analysis of the issue, I will first summarize the jurisprudence that has emerged from this Court since the enactment of the enhanced stand-by power. Five different judges of the Superior Court of Justice for Ontario have commented and ruled on the interpretation of the amended s. 633 in six cases, with different outcomes. I will review each of these decisions in chronological order.

(i) R. v. Muse, [2019 ONSC 6119](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc6119/2019onsc6119.html) (Brown J.)

[34] R. v. Muse is the earliest reported case. In it, Brown J., was not asked to exercise the stand-by mechanism to influence the demographic composition of the jury. Rather, she considered the amendment to s. 633 in the context of deciding a challenge to the constitutional validity of other provisions of Bill C-75, namely those that abolished peremptory challenges and entrusted trial judges with decision-making authority on challenges for cause.

[35] The accused in R. v. Muse asserted a breach of his rights under ss. 7, 11(d) and 11(f) of the Charter. Brown J. upheld the constitutionality of the impugned provisions, in part because she found that other safeguards existed to ensure the impartiality and independence of juries, including the amended s. 633 of the Code. In her judgment, she noted that the constitutionality of the elimination of peremptory challenges had to be considered together with the “enhanced power of the trial judge to stand aside jurors”. She remarked, at para. 51: “The additional, expanded power to stand aside a juror for ‘maintaining public confidence in the administration of justice’, confers a broad discretion on trial judges to apply this provision on a case-by-case basis in accordance with the Charter.” She did not, however, specifically address whether s. 633 could be used to stand aside a juror on racial grounds or based on other identity characteristics.

(ii) R. v. King, [2019 ONSC 6386](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc6386/2019onsc6386.html), 148 O.R. (3d) 618 (Goodman J.)

[36] In R. v. King, Goodman J. was similarly tasked with deciding a challenge to the constitutional validity of the abolition of peremptory challenges and the elimination of lay triers in the challenge for cause procedure. He arrived at the opposite conclusion to Brown J. and held that the impugned amendments to the Code violated rights guaranteed by ss. 7, 11(d) and 11(f) of the Charter.

[37] The accused in King was an Indigenous man charged with murder. Among other things, his Defence counsel argued that the elimination of peremptory challenges infringed his constitutional right to a fair trial by an impartial tribunal because it undermined his ability to ensure that he is tried by a representative jury of his peers. Goodman J. concluded, at para. 98, that, although Parliament intended to improve representativeness on juries by removing peremptory challenges, the effect on the accused was the opposite: “he lost his only certain means of directly participating in the jury selection process to secure the representativeness of the jury that will ultimately decide his fate”.

[38] The Crown in King argued that the revised stand-by provision in s. 633 offered a safeguard because it was geared to making juries more representative. After reviewing Parliamentary discussions that led to its passage, Goodman J., at paras. 101-105, accepted that the rationale for its enactment was to enhance diversity on juries, including the representation of Indigenous persons, but he found that this was an inadequate substitute for peremptory challenges because it did not permit the accused to participate directly in the jury selection process by which representativeness is guaranteed.

[39] Goodman J. was critical of Parliament’s intended purpose and expressed the view, at para. 161, that a trial judge’s enhanced discretion to stand by jurors opened a “proverbial pandora’s box”. At paras. 159-161 of his judgment, Goodman, J. adopted the following passages from Danyliuk J.’s decision in R. v. Dorion, 2019 SKQB 266:

[36] Further, this stand aside process is replete with pitfalls for trial judges. The section itself does not state that this process may be used to ensure a jury is “more representative”, but the discussions leading to its passage use this as a rationale. More representative of what? Of whom? Further, are trial judges now blessed with hitherto unknown abilities to divine the properties of individual jurors by merely looking at them? It would be folly to suggest that this process should be used by trial judges to scan the upcoming lineup of potential jurors to determine, by visual observation alone, their racial, ethnic or other backgrounds. For example, I would not be prepared to scan a line of prospective jurors to determine which bear certain racial heritage. Appearances are often deceiving.

[54] Finally, the shaping of juries into “properly representative” decision‑making bodies through the expanded use of stand asides under the new s. 633 fundamentally alters the landscape of jury selection. A judge can shop for the “right” kind of juror in order to maintain “public confidence in the administration of justice or any other reasonable cause”.

[55] I find this troublesome. The strength of the jury system – indeed, the entire Canadian system of criminal justice – has been its impartiality, its indifference to trends, uninformed opinions, and biased social or political viewpoints. Numerous times in a jury trial, the judge tells the jurors to set aside any fear or bias or sympathy or prejudice, and are told to decide this case only on what they see and hear in this courtroom. Jurors are selected for impartiality. In turn, jurors decide the case based on the evidence presented and nothing else.

[40] Goodman J. expressed concern, at para. 163, that public confidence in the administration of criminal justice might be diminished rather than enhanced “by judges possessing such notionally broad, albeit inexplicit powers”. He lamented the “ambiguity and imprecision” of the language used to amend s. 633 and the lack of explicit direction from Parliament on how to implement the new stand aside power.

(iii) R. v. Campbell, [2019 ONSC 6285](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc6285/2019onsc6285.html) (Boswell J.)

[41] R. v. Campbell was the first reported case in which a judge of this Court was asked to exercise judicial discretion under the newly revised s. 633 to influence the demographic composition of a jury. The accused in that case was a Black man charged with possession of crack cocaine for the purpose of trafficking. There were no Black people in the panel of 84 prospective jurors who responded to their summons. The accused moved to strike the array, but the challenge was denied by the trial judge. The jury selection proceeded, and the first five jurors empanelled were all female. The Defence then requested that subsequent female prospective jurors be stood aside by the trial judge to ensure that a mix of genders was reflected on the jury. That request was also denied.

[42] In his judgment, Boswell J. examined the legislative intent behind the amendment to s. 633 of the Code. Among other things, he quoted the then Minister of Justice, the Honourable Jody Wilson-Raybould, who made the following remarks on the occasion of the second reading of the bill: “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.” After a detailed review of the Parliamentary process, he concluded, at para. 75:

[75] The language used by the government to describe and comment on Bill C-75, makes 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.

[43] Boswell J. opined, at para. 81, that although diversity on juries is a laudable aspiration, the “manipulation of the jury selection process to promote diversity is fraught with difficulties.” Among other challenges, he identified the difficulty of determining which personal characteristics and whose personal characteristics should be reflected on any given jury, given the multitude of stakeholders who have an interest in a fairly constituted and representative jury (including accused persons, complainants, the broader community, and the state).

[44] Boswell J. remarked, at para. 30: “Parliament’s object and intent are relatively easy to glean. Less so, how the use of stand aside discretion might reasonably meet Parliament’s object and intent.” He also remarked, at para. 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.” Finally, he commented, at para. 96:

[T]he 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?

[45] He concluded that, although the use of stand asides to manipulate the representativeness of juries is fraught with difficulties, it may still be appropriate in the context of a given case. Specifically, he opined, at para. 99, that it may be an appropriate practice in cases “with an indigenous dimension”, given the longstanding and well-documented underrepresentation of Indigenous persons on jury rolls. He further commented, at para. 99:

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.

[46] In the context of the case before him, Boswell J. found no basis to intervene in the jury selection to achieve gender balance on the jury:

[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.

(iv) R. v. Josipovic, [2020 ONSC 6300](https://www.canlii.org/en/on/onsc/doc/2020/2020onsc6300/2020onsc6300.html) (Goodman J.)

[47] In R. v. Josipovic, Goodman J. once again considered the scope and application of s. 633, this time in the immediate aftermath of the Supreme Court’s ruling in Chouhan, which made it clear that peremptory challenges were no longer available. The central issue before him was the procedure that should be adopted for jury selection under the new regime.

[48] Defence counsel in Josipovic argued that the amendment to s. 633 operates as a safeguard to take the place of the peremptory challenge. He submitted that s. 633 therefore affords counsel an opportunity to be actively involved in the jury selection process, independently of any challenge for cause. Specifically, he submitted that he should be permitted to make inquiries of a prospective juror and to make submissions on the suitability of a prospective juror before the trial judge decides whether to stand the juror aside.

[49] In determining the appropriate procedure to be followed, Goodman J. considered the grounds upon which a trial judge can stand aside a juror for the purpose of “maintaining public confidence in the administration of justice.” In particular, he considered whether those grounds go beyond partiality, which is the focus of the challenge for cause procedure.

[50] Goodman J. noted, at para. 23, that the phrase, “maintaining public confidence in the administration of justice” is familiar language expressed elsewhere in the Code, namely in the tertiary grounds for interim release under s.515(10)(c). He added,

However, it is new for this part of the Criminal Code and as a matter of statutory construction, covers different ground. While it has been described in several aspects, it seems to me that “maintaining public confidence in the administration of justice” entails that a judge would consider all of the relevant factors and circumstances that would affect the trust or confidence of a reasonable and informed member of the public in the selection of an impartial jury.

[51] Goodman J. ultimately held that the enhanced stand-by power is intended to be used to address more than perceived juror partiality. He found that the discretion in s. 633 can be exercised by trial judges to deal with issues of juror competence, but not juror representativeness.

[52] In reaching these conclusions, Goodman J. agreed, at para. 26, with portions of Boswell J.’s reasons in Campbell. Specifically, he agreed with Boswell J.’s remark that the manner in which stand asides could be used by trial judges to make juries more representative is unclear. He also echoed Boswell J.’s concerns about the practical difficulties of using stand asides to try to target specific identity characteristics in jurors.

[53] However, Goodman, J. parted company with Boswell J. by rejecting the conclusion that the use of stand asides to enhance representativeness on a jury may be appropriate in rare cases, particularly those “with an indigenous dimension”. At para. 65 of his judgment, Goodman J. wrote:

It bears repeating that s. 633, is not a means to ensure that a certain group, gender, occupation or race form the petit jury. Nor is it a means to exclude other identifiable groups or individuals, or for any other improper use.

(v) R. v. Bhogal (Pomerance J.) and R. v. Stanley (Code J.)

[54] In Bhogal and Stanley, the trial judges did not engage in an analysis of the proper interpretation of s. 633. As noted earlier, they assumed that they were bound not to employ the stand-by power to promote diversity among jurors based on their reading of the Supreme Court’s decision in Chouhan, a reading with which I respectfully disagree (for reasons articulated above).

FACTUAL BACKGROUND OF THIS CASE

[55] Having summarized the relevant jurisprudence, I will now turn to the specific facts in the matter before me.

[56] The shooting that was the subject of this trial occurred in the City of Brampton. The trial was conducted in Peel Region, which includes the sizable cities of Mississauga and Brampton. The population of both cities is racially diverse, with a significant proportion of Black residents.

[57] Two panels were summoned for this trial. A total of 101 prospective jurors showed up for the morning panel. There was no challenge to the array under s. 628 of the Code. No concerns were raised about racial diversity or Black representation in the panel. In fact, Defence counsel observed during his submissions that there appeared to be a number of Black people on the jury panel in attendance that morning. He said he was therefore optimistic that the elimination of peremptory challenges -- which were no longer available to him to shape the racial composition of the jury – would not result in an absence of Black persons on the petit jury empanelled to preside over Mr. Smith’s trial.

[58] Jury selection proceeded in the usual fashion, in accordance with the provisions of s. 631 of the Code. I instructed the jury panel about unconscious bias and about the need for an individual inquiry pertaining to potential anti-Black racial bias. As part of the process, I asked each prospective juror race-based “challenge for cause” questions. I have set out my anti-bias instructions and the questions asked in an earlier decision: R. v. Smith, 2021 ONSC 6173.

[59] One prospective juror was stood aside for reasons of personal hardship, pursuant to s. 633 of the Code. No prospective jurors were excused for partiality based on their responses to the challenge for cause questions, but some were excused for reasons of language deficiency and on a variety of other grounds, in accordance with ss. 632(c), 638(1)(b) and 638(1)(f) of the Code.

[60] There was one Black man among those who were excused. When his number was called, he volunteered the fact that his brother had been “murdered” and stated that “the guy brought to justice for it was let off on a technicality”. He said he “might be on one side” if he were selected as a juror because his “family didn’t get justice.” Defence counsel objected to his presence on the jury, given his implied equation of justice with a conviction. The Crown did not oppose excusing him. I concluded that he was not a suitable juror because of a risk of partiality in favour of the Crown. I thanked him for his candour and excused him from serving on the jury.

[61] The issue of racial representation on the jury was not raised until after 11 jurors had been selected and sworn. Those 11 jurors were empanelled from the first 20 prospective jurors whose numbers were randomly called. At that point, there were three members of the jury who were racialized, but none of them was Black. Defence counsel asked me to intervene and take steps to ensure that the last juror was Black. Specifically, he asked me to stand aside the next juror and all subsequent jurors under s. 633 of the Code until a qualified (i.e., impartial and competent) Black juror was selected.

PARTIES’ SUBMISSIONS

Defence Submissions

[62] Defence counsel, Mr. Brown, argued that it was important for there to be at least one member of the jury who was representative of the Black community, given the specific circumstances of the offence with which Mr. Smith was charged. Mr. Brown then outlined for me some of the salient facts of the case that he anticipated would be put before the jury.

[63] He noted that not only was the accused Black, but the deceased and almost all the civilian witnesses in the case were also Black. The shooting occurred in a parking lot outside a small nightclub that was frequented by a predominantly Black clientele. There were approximately 80 people at the club on the night in question, most of whom were Black. Virtually all of them fled the scene. None wanted to cooperate with the police investigation. Some were arrested while fleeing. Several of the witnesses had lengthy criminal records. Some may have been affiliated with street gang activity and/or illicit drugs. The Crown’s two primary witnesses at trial, who were both Black, did not share relevant information with the police at the earliest opportunity. It took 18 months before Mr. Smith was charged with the murder.

[64] Mr. Brown also advised me that, prior to the shooting in the parking lot, there had been a confrontation in the club between two Black men, each of whom had several friends present. The accused, Mr. Smith, was friends with one of the two men, Mr. Roberts. The deceased, Mr. Buchner, was friends with the other man, Mr. Mitchell. The argument between the two men involved Mr. Mitchell publicly accusing Mr. Roberts of telling people in the community that he (Mr. Mitchell) had stolen a friends’ gold chain. The Defence theory was that Mr. Roberts was the shooter and that Mr. Mitchell may have been the intended target. The Defence hypothesized that the motive for the shooting may have been the public accusation that Mr. Roberts was a “snitch”.

[65] Mr. Brown argued that, based on these facts, there was a “cultural layer” to the case that would benefit from the presence of at least one Black person on the jury. He was not suggesting that every Black accused in a criminal trial is entitled to Black representation on their jury. Nor was he arguing that Mr. Smith was entitled to a jury whose composition was favourable to him. Rather, he argued that the Crown, as well as the Defence, would benefit from having a Black person on the jury because a person from the Black community might understand certain cultural aspects of the case, including the reluctance of eye-witnesses to cooperate with the police, the hesitancy of witnesses to testify at trial, and the value placed on not “snitching” about another person’s criminality. These factors informed the witnesses’ lack of cooperation and were also central to the confrontation between Mr. Mitchell and Mr. Roberts that ultimately led to the shooting of Mr. Buchner.

[66] Mr. Brown submitted that it was important, in the specific context of this case, to have “someone from that [Black] community who understands that culture differently and can help the others on the jury understand that culture.” He gave the example that “someone who grew up in a privileged life would think you should cooperate with police and if not, you’ve probably done something wrong”, whereas someone from the Black community might better understand that cooperation with police is not necessarily a community norm. He argued that, in the absence of expert evidence about Black community norms, it would be helpful to both the Crown and Defence to have someone from that community, background and culture represented on the jury.

[67] Mr. Brown took the position that I have the authority, under s. 633 of the Code, to stand aside jurors in order to ensure meaningful racial representation on the jury. He argued that the Supreme Court of Canada decision in Chouhan does not preclude me from doing what he was asking. He submitted that there was no majority view expressed by the Supreme Court justices in Chouhan on this issue. He further submitted that, even if there were a majority view expressed in Chouhan, the issue was not before the Court and did not need to be decided. Consequently, it was not fully argued by counsel and the Court did not have the benefit of either evidence or factums on the issue. Mr. Brown submitted that the obiter comments made by the Supreme Court justices in Chouhan are therefore merely expressions of their views on a peripheral issue and do not constitute a binding precedent.

[68] Mr. Brown submitted that there is no appellate authority on point that post-dates the elimination of peremptory challenges. He argued that the earlier jurisprudence is not binding because it pre-dates the current inability of the parties to use peremptory challenges to influence the racial composition of a jury.

[69] Finally, Mr. Brown argued that the sweeping changes to the jury selection process enacted by Parliament in 2019 were for the very purpose of promoting diversity and racial representativeness on juries, which must inform the interpretation of the scope of judicial discretion in s. 633 of the Code. He also argued that the elimination of peremptory challenges should inform the Court’s interpretation of the concurrent amendment to s. 633.

Crown Submissions

[70] Mr. Sarantis made submissions on behalf of the Crown. He argued that a majority of the Supreme Court expressly stated in Chouhan that s. 633 of the Code cannot be used to enhance the diversity of a petit jury.

[71] Mr. Sarantis highlighted the practical difficulties that would arise if I were to accede to the Defence request to stand aside jurors until a suitable Black juror could be empanelled, including how each prospective juror’s race would be determined.

[72] Mr. Sarantis argued that the Defence submissions rest on a fallacious premise that “all Black looking persons have the same background and understanding”. He noted that there is a diversity of experience in the Black population along the lines of social class, income, education, and so on. He further submitted that a “Black person is no more likely than a White person to understand why someone didn’t cooperate with police.”

[73] Finally, Mr. Sarantis argued, based on Kokopenace, that the process used to select the 12 members of the jury is what is most important, not the ultimate racial composition of the jury. He submitted that the jurisprudence does not support the right of an accused to a jury that contains a minimum number of people of his own race. Rather, it merely requires that a jury be drawn by means of a neutral and broadly inclusive process that provides for the selection of an impartial and competent jury. If the process used is fair, he argued, then the race of individual jurors does not matter.

ANALYSIS

Principles of Statutory Interpretation

[74] My task is to interpret the meaning of the amendment to s. 633 of the Code. I will therefore begin with fundamental principles of statutory interpretation.

[75] First, “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”: Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at para. 23; Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.

[76] Second, the purpose of the statute and the intention of Parliament are to be determined on the basis of intrinsic and admissible extrinsic sources regarding the Act’s legislative history and the context of its enactment: Rizzo, at paras. 20‑23; R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 25.

[77] Third, of equal importance in interpreting federal legislation is s.12 of the Interpretation Act, R.S.C. 1985, c. I-21, which states: “Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”: Gladue, at para. 26.

Context and Parliament’s Intent

[78] Guidance as to the scope and content of the remedial aspect of the revised s. 633 may be derived from the social and historical context surrounding its enactment: Gladue, at para. 49.

[79] The genesis of Bill C-75 was reviewed in detail in Chouhan (at para. 108, per Martin J. and paras. 156 and 162, per Abella J.) and in other decisions of this Court: King, at para. 201; Campbell, at paras. 31-34. Lengthy excerpts from House of Commons debates can be found in those decisions and will not be reproduced in full here.

[80] It is clear from the Parliamentary record that the impetus for the Bill C-75 reforms was a desire by Parliament to combat a longstanding and well-documented history of systemic discrimination against Indigenous and Black people in the criminal justice system, particularly in the jury selection process. That context must inform the interpretation of the words used by Parliament to amend s. 633.

[81] It is incontrovertible, based on the Parliamentary record, that the legislative intent animating the amendment of s. 633 was to enhance the power of judges, in appropriate cases, to stand aside some jurors in order to create a more diverse or representative petit jury. As Abella J. noted in Chouhan, at para. 162, the legislative intent behind the new stand aside power “is based on an understanding of representativeness which looks to the actual composition of the jury, as opposed to the randomness of the selection process.”

[82] When the Supreme Court ruled in Kokopenace that representativeness has a narrow and circumscribed meaning, that decision was made in the context of an accused’s right to a representative jury under s. 11 of the Charter. As mentioned earlier, the issue in that case was the under-representation of on-reserve First Nations people on the jury roll. The Court ruled, at para. 66: “If the state makes reasonable efforts but part of the population is excluded because it declines to participate, the state will nonetheless have met its constitutional obligation.” The Court held that there is no constitutional imperative requiring the state to actively encourage jury participation by Indigenous persons or to take other steps to address their chronic under-representation on juries (para. 64, per Moldaver J. and para. 172, per Karakatsanis J.). However, Moldaver J., writing on behalf of the majority noted, at para. 65: “In coming to this conclusion, I am in no way suggesting that the state should not take action on this pressing social problem.”

[83] The state has since taken action to remove barriers to the participation of Indigenous, Black and racialized persons on criminal juries. For example, the Juries Act, R.S.O. 1990, c. J.3, was amended to change the source list used to create annual jury rolls. Previously, sheriffs were using municipal property assessment lists, supplemented by lists of First Nations on-reserve residents. The municipal lists under-represented Indigenous, Black and racialized persons because they included only property owners. Systemic racial discrimination results in diminished educational and employment opportunities, higher rates of poverty, and therefore lower rates of property ownership among Indigenous, Black and racialized persons.

[84] To remedy this problem, s. 4.1 of the Juries Act now requires sheriffs to compile jury rolls from lists of insured persons supplied by the Ministry of Health and Long-Term Care. As Boswell, J. noted in Campbell, at para. 65,

…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.

[85] Provincial legislatures can only go so far in remedying the problem because they only regulate the out-of-court steps in the jury selection process: Kokopenace, at paras. 204-205 (per Cromwell, J., dissenting but not on this point). The federal legislature has jurisdiction over the in-court procedures, which are governed by the Code. Moreover, as Abella J. noted in Chouhan, at para. 186:

[W]hile out-of-court processes for jury selection contain safeguards that are crucial, extensive research demonstrates that systemic factors disproportionately exclude marginalized prospective jurors at every step of the process, resulting in a system in which Indigenous and racialized persons are overrepresented as accused persons and victims, and underrepresented as jurors. [citations omitted]

[86] With the enactment of Bill C-75, Parliament took steps to reform the in-court jury selection procedures. Parliament specifically targeted both overt discriminatory practices (with the elimination of peremptory challenges) and systemic barriers to the participation of Indigenous, Black and racialized persons (with the expanded judicial stand-by power). The principles of statutory interpretation dictate that the amendment to s. 633 must be given a large and liberal construction that best reflects its remedial nature and ensures the attainment of Parliament’s objective. Regardless of how complex and daunting its implementation may be, the intended purpose of the amendment to s. 633 must be given effect by the courts, provided that it complies with the Charter.

[87] Using the stand-by mechanism to target a particular group or groups of individuals for potential selection interferes with the principle of randomness, which signals a paradigm shift in the way in which jury selection has typically proceeded. But, as the Court of Appeal for Ontario noted in R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 25, “randomness is not a goal in and of itself. It is a means by which impartiality and representativeness are optimized.”

[88] The Charter does not guarantee an accused the right to a randomly selected jury. As Martin J. noted in her decision in Chouhan, at paras. 113-115:

With respect to the stand-aside power, I would caution against placing undue weight on the principle of random selection. Randomness plays a key role in the selection of juries (R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at p. 525) and can be a means to advance jury representativeness and impartiality. However, randomness is neither an end in itself (R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91, at p. 114, per Gonthier J. (dissenting); R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 219 O.A.C. 26, at para. 25) nor a freestanding constitutional imperative. …

Further, in an unequal society, randomness may prevent deliberate exclusion while nonetheless producing discriminatory outcomes. This Court has recognized that “racial prejudice and discrimination are intractable features of our society” (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 1). Many systemic factors distort the composition of the roll, the composition of those who show up for jury duty, and the composition of those ultimately selected for the petit jury, leading to underrepresentation of certain groups at all stages (see, e.g., K. Roach, “Juries, Miscarriages of Justice and the Bill C-75 Reforms” (2020), 98 Can. Bar Rev. 1; F. Iacobucci, First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by The Honourable Frank Iacobucci (2013); see also G. T. Roccamo, Report to the Canadian Judicial Council on Jury Selection in Ontario (June 2018) (online), at p. 11).

It is open to Parliament to legislate to address these problems. Random selection from broad-based lists was established as a constitutional minimum in R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398. However, that case did not address whether Parliament could implement further [in-court] measures for assuring representativeness and impartiality, including measures to deliberately include underrepresented groups. As long as such measures comply with the Constitution, the only question is what Parliament intended.

[89] I recognize that invoking the stand-by power to change the demographic composition of a jury will present practical challenges for judges, but those challenges should not be overstated. Moreover, those challenges cannot be used as a justification to interpret the legislation in a manner that does not give effect to Parliament’s intent.

[90] Parliament could have simply repealed s. 634 of the Code without simultaneously amending s. 633. The repeal of s. 634 put an end to the discriminatory use of peremptory challenges to empanel all-White juries. However, the repeal of s. 634 also deprived the parties of a tool that could be used, and was often used by Indigenous, Black and racialized accused, to enhance racial diversity on juries. Clearly, Parliament wanted to preserve that tool and chose to place it in the hands of trial judges by amending s. 633. As Boswell, J. noted in Campbell, at para. 77, “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.”

[91] Parliament recognized that the discriminatory use of peremptory challenges to empanel all-White juries in cases involving Indigenous and Black accused or victims was not the only problem that needed to be remedied. Public confidence in the justice system was shaken by those practices, but even with the abolition of peremptory challenges, public confidence would continue to be eroded if no steps were taken to counteract other systemic factors that contribute to the chronic under-representation of Indigenous, Black and racialized persons on juries. Even unintentional exclusion from jury service can negatively impact the public’s confidence in the administration of criminal justice, particularly in those communities who are most directly affected by the exclusion.

[92] For example, in the contemporary global pandemic era, barriers to jury participation for Indigenous, Black and racialized persons may arise inadvertently from the courthouse screening of prospective jurors for COVID-19 symptoms and the requirement (by order of the Chief Justice G. Morawetz) for jurors to be double vaccinated. The COVID-19 infection rate among Indigenous, Black and racialized persons may be higher relative to the general population due to factors such as over-representation in occupations that place them at greater risk of exposure to the virus, and lower incomes that necessitate reliance on public transit for transportation. There may also be elevated rates of vaccine hesitancy in some Indigenous and Black communities due to a history of racial discrimination in the health care system and general distrust of Canadian institutions.

[93] I have no evidence before me with respect to these issues and, as I noted earlier, no concerns were raised about the representation of Black prospective jurors on the jury panel in this case. I raise the possibility of COVID-related factors potentially impacting the racial composition of jury panels only to highlight that best efforts by government officials to produce representative jury rolls, combined with random selection of jury panels from those rolls, will not be sufficient to overcome systemic barriers that find their genesis not only in our system of justice but also in our broader society.

[94] Many such barriers have been documented. As Coté J. noted in Chouhan, at para. 272:

[P]ersons convicted of certain offences are prevented from serving on a jury under the various provincial statutes and the Code (s. 638(1)(c)). A disproportionate number of Black and Indigenous persons are in custody or possess criminal records (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 61; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 83; R. v. Zora, 2020 SCC 14, at para. 79; R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at para. 26). …[T]he jury statutes and the Code similarly prevent non-Canadian citizens from serving as jurors (s. 638(1)(d)). Permanent residents are disproportionately members of marginalized groups. …[S]ome marginalized persons may be prevented from serving because they do not speak the official language of the accused (Code, s. 638(1)(f)). Other marginalized persons may fail to respond to jury notices because they view the Canadian justice system with suspicion. Finally, in most provinces, the sheriff has the power to exempt individuals from jury service if it poses a hardship. This typically results in the exclusion of persons living in remote areas and low-income individuals (Kokopenace, at para. 44).

[95] It is these types of systemic barriers that Parliament sought to address with the amendment of the stand-by power in s. 633. It enacted remedial legislation with these specific concerns in mind. Although the legislature did not enumerate a list of criteria for the trial judge to apply in determining when to invoke the stand-by mechanism, the context in which the legislative provision was enacted and the specific words used by Parliament to trigger its implementation provide guidance to interpret the scope and reach of its application.

The Test for Assessing Public Confidence in the Administration of Justice

[96] Parliament did not enact a broad provision that requires judges to routinely exercise the stand-by power to ensure proportionate representation of Canadian diversity (or of local community diversity) in every petit jury. As Martin J. noted in her decision in Chouhan, at para. 171:

It is obvious that Parliament had no intention of requiring judges to guarantee that every jury represents a “national ideal of Canadian diversity . . . irrespective of the particular diversity of the local community” (reasons of Moldaver and Brown JJ., at para. 75). Section 633 does not impose rigid requirements respecting the precise composition of the jury, but rather confers a broad and flexible discretion that can be tailored to the circumstances in which it is exercised.

[97] Parliament explicitly prescribed that the stand-by mechanism can only be employed to diversify the composition of a jury when the trial judge determines that it is necessary for the purpose of “maintaining public confidence in the administration of justice”. I therefore disagree with Danyliuk J.’s comments in Dorion, at para. 31, that this amendment “injects a broadly subjective, judge-mandated element to jury selection” and will result in accused persons being tried by a jury of their peers “as modified by the views of the judge as to what a properly representative jury ought to look like.” Rather, Parliament intentionally adopted language that imports an objective standard into the assessment of whether the expanded stand-by power should be invoked in the circumstances of any given case.

[98] When the then Minister of Justice, Jody Wilson-Reybould moved that Bill C-75 be read for the second time in the House of Commons, she noted that “Courts are already familiar with the concept of exercising their powers for th[e] purpose [of maintaining public confidence in the administration of justice]”: Parliament of Canada, Official Report of Debates (Hansard), 42nd Parl., 1st Sess., No. 300 (24 May 2018), reproduced in full in Campbell, at para. 31. As Moldaver and Brown JJ. noted in Chouhan, at para. 69, when Parliament enacted the amendment to s. 633, it “borrowed language that figures prominently in the jurisprudence on s.11(d) and elsewhere in the criminal law.”

[99] Specifically, as noted by my colleagues Boswell J. in Campbell and Goodman J. in Josipovic, s.515(10)(c) of the Code stipulates that one of the grounds to justify pre-trial detention of an accused person is where it is necessary to maintain public confidence in the administration of justice. The analytical framework developed in the bail jurisprudence should therefore be imported into the new s. 633 to guide the exercise of judicial discretion. Consequently, the trial judge is neither expected nor permitted to apply her or his subjective views of what constitutes a properly representative jury.

[100] Based on the words used by Parliament, when called upon to exercise the stand aside power to influence the composition of a jury, the trial judge must be guided by the perspective of the public. According to well-established bail jurisprudence, the public consists of reasonable and informed members of the community. The objective standard of a “reasonable and informed” person’s perspective is used in many different legal contexts. Such a person is taken to be informed of four things: (i) the philosophy of the legislative provision, (ii) the social reality that forms the background of the particular case, (iii) Charter values, and (iv) the actual circumstances of the case: R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 111 (per Cory J.); R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 41; R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 74; Chouhan, at para. 116 (per Martin J.).

(i) Philosophy of the Legislative Provision

[101] Applying this objective test in the context of jury selection, reasonable and informed members of the public would know that the enhanced stand-by power in s. 633 was enacted to remedy the erosion of public confidence in the administration of justice caused by a long history of all-White juries deciding the fate of Black and Indigenous accused, or deciding the fate of White accused charged with violent crimes against Black and Indigenous victims.

[102] Reasonable and informed members of the public would also be aware of the social reality in which these reforms were enacted. That reality includes the over-representation of Indigenous persons as both victims of crime and as accused persons in the criminal justice system: R. v. C.K., 2021 ONCA 826, at paras. 59 and 86; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 198; Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (Ottawa: Government of Canada, 2019). It also includes the persistent acute problem of disproportionate overincarceration of Indigenous people in this country: Gladue, at paras. 58-65; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 56-57, 62-63. The Supreme Court has acknowledged the pernicious effects of anti-Indigenous racism and of culturally inappropriate practices in the criminal justice system: Gladue, at para. 65; Ipeelee, at paras. 60; Barton, at paras. 198-199. The legacy of colonialism, in all its ugly manifestations, continues to oppress, marginalize and alienate First Nations, Inuit and Métis persons, such that many members of Indigenous communities have a well-founded and reasonable distrust of Canadian institutions, including the criminal justice system. The Court of Appeal for Ontario recently acknowledged, in C.K., at paras. 63-64, that one of the reasons why Indigenous accused tend to plead guilty at materially higher rates than non-Indigenous accused is because they believe they will not receive a fair trial owing to racist attitudes prevalent in the justice system.

[103] A reasonable and well-informed member of the public would also be aware of the pervasiveness of anti-Black racism in Canadian society and of the reality that it infects our social institutions, including the criminal justice system: R. v. Morris, 2021 ONCA 680, at para. 1. The Court of Appeal for Ontario has acknowledged that Black communities in the Greater Toronto Area (which includes the Peel Region) experience a disproportionate share of serious violent crime: Morris, at para. 85. Black people are disproportionately victimized, both directly and indirectly, by the harm caused by gun-related crimes in their communities: Morris, at para. 85. The Supreme Court of Canada has acknowledged that Black people are at higher risk of being shot and killed by police. A study conducted by the Ontario Human Rights Commission found that, between 2013 and 2017, a Black person in Toronto was nearly 20 times more likely than a White person to be involved in a police shooting that resulted in civilian death: OHRC, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Toronto: OHRC, 2018), at p. 19, cited in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 91-93. Aggressive policing of Black communities, including the widespread problematic practice of racial profiling of Black men, has contributed to the over-representation of Black accused in the criminal justice system: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 154-155 (per Binnie J., concurring); Le, at paras. 87, 94-97. Black people are also over-represented in provincial and federal prison populations: Morris, at paras. 40 and 123. These facts are so notorious and irrefutable that trial judges can properly take judicial notice of them. This reality has left many members of Black communities with a reasonable perception that the criminal justice system is racist and unfair: Le, at paras. 90-91, 94, 97; Morris, at paras. 39 and 106.

[104] In exercising judicial discretion under s. 633 of the Code, trial judges must be mindful of the obvious fact that the public includes Black and Indigenous persons, whose reasonable perceptions of and confidence in the administration of justice are impacted by their personal experiences and their communities’ experiences with the criminal justice system. I am not suggesting that s. 633 requires judges to evaluate public confidence in the justice system exclusively from the perspectives of reasonable Indigenous or Black persons, but judges must consciously include and value Indigenous and Black perspectives in any assessment of the general public’s views.

[105] The Supreme Court has recognized, in other contexts, that the legal construct of a “reasonable person” must account for diverse realities: Grant, at para. 169 (per Binnie J., concurring); Le, at para. 73 and 97. To do otherwise privileges White perspectives and contributes to systemic racism in the justice system.

(iii) Charter Values

[106] Informed members of the public know that our justice system rests on core values, including substantive equality, which represents the animating norm of s.15 of the Charter: Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 2; Barton, at para. 202; Chouhan, at para. 116 (per Martin J.). Substantive equality eschews a formalistic approach to analyzing the implications of differential treatment. As the Supreme Court explained in Withler, at para. 39:

Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the claimant group.

[107] This core value of substantive equality is overlooked by those who express the view that the use of stand asides to enhance diversity on juries would give rise to equality concerns unless it were applied uniformly in all cases. For example, Boswell J. in Campbell states, at paras. 93 and 97:

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.

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.

[108] Goodman J. made a similar observation in Josipovic at para. 27. In King, Goodman J. wrote, at para. 37:

Further yet, what if the particular circumstances suggest that “appropriate” jury composition should include jurors with more latent attributes than race? Ethnicity, education, sexual orientation, experience – none of these can be readily picked up by simply looking at a line of jurors standing in the courtroom.

[109] Moldaver and Brown JJ. echoed these concerns in Chouhan, expressing the view, at para. 78, that if a trial judge can use the stand-by power to ensure Black or Indigenous representation on a jury, there would be no principled basis upon which to stop at those visible identity characteristics. They offered the example of a complainant who identifies as LGBTQ or an accused who belongs to a minority faith group, and they remarked that such a person would need to be granted the same right to see themselves represented on the jury. They expressed grave concerns about the potential intrusion into juror privacy that implementing such representation would entail.

[110] I can appreciate these “slippery slope” concerns in the context of an analysis of the constitutional right to a representative jury. If ss. 11(d) and 11(f) of the Charter necessitated that the accused’s personal characteristics be represented among members of the petit jury, it would be difficult to articulate a principled basis upon which to apply that reasoning to some identity characteristics (such as race or indigeneity) but not others (such as sexual orientation or religion). Moreover, if such a constitutional right existed, it would need to be respected and implemented in every criminal jury trial.

[111] However, the stand-by mechanism in s. 633 is not a constitutional imperative. It is a matter of judicial discretion, to be exercised on a case-by-case basis. In the exercise of this discretion, substantive equality provides a principled basis for making distinctions between requests based on race or Indigenous ancestry, and those that are based on other characteristics such as education, intelligence, athleticism or occupation, to borrow a few of Boswell and Goodman JJ.’s examples. An accused teacher, nurse or welder could not seriously argue that public confidence in the administration of justice would be compromised unless the trial judge invoked the stand aside mechanism to secure the presence of jurors who share her or his occupation. Such an accused would not only have no credible basis to ground their request under s. 633, they would also have no basis to claim discrimination when their request was denied.

[112] I will not speculate about the outcomes of potential requests for stand asides to be used to achieve jury representation based on other personal characteristics that are enumerated or analogous grounds in s.15 of the Charter, such as sexual orientation or religion. The test for assessing public confidence in the administration of justice will need to be applied on a case-by-case basis, taking into account the philosophy underlying the amendment to s. 633, the social reality that forms the background of the particular case, Charter values including substantive equality, and the actual circumstances of the case.

[113] Unlike Charter claims based on s.11, which can only be invoked by the accused, the Crown may have a legitimate basis to request the use of judicial stand asides to achieve greater representation of specific characteristics among jurors, in circumstances where such diversification of the jury is needed to maintain public confidence in the administration of justice.

[114] The historical and contemporary realities of Indigenous and Black peoples’ experiences in the criminal justice system provide the necessary context to justify granting some requests for the invocation of stand asides to diversify the racial composition of a jury while denying requests made by members of other groups or based on other grounds. This is not a novel concept in criminal law. The courts have long recognized, for example, that trial judges must undertake the process of sentencing Indigenous offenders differently than non-Indigenous offenders: Gladue, at para. 33. These different sentencing approaches do not give rise to concerns about inequality in the minds of reasonable and informed members of the public.

[115] The concerns articulated in the “slippery slope” argument are misguided because they are premised on the incorrect assumption that reasonable and informed members of the public have a formalistic rather than substantive concept of equality. Reasonable and informed members of the public must be taken to know that differential treatment of marginalized groups does not always result in unequal or discriminatory outcomes.

[116] I am not suggesting that s. 633 could only ever be invoked to influence the composition of a jury on racial grounds. But the principle of substantive equality would, in many instances, justify making a distinction between race-based stand asides and stand asides based on other identity characteristics. I therefore disagree with Boswell J.’s statement in Campbell, at para. 56, that “equality is achieved when the selection process operates in a fundamentally similar way across jurisdictions and across cases.” Uniformity of treatment is a feature of formal equality that does not always coincide with substantive equality. Sometimes, substantive equality is achieved by using different processes in cases involving people who are differently situated.

[117] To be clear, I am not suggesting that the use of stand asides to achieve racially representative juries is a constitutional imperative under s.15 of the Charter. I am simply making the point that, when a judge assesses public confidence in the administration of justice, she or he must be mindful that reasonable and informed members of the public would take into account the core Charter value of substantive equality.

[118] I therefore disagree with Danyliuk J.’s comment, at para. 58, in Dorion that “[t]he potential of these unlimited stand asides to be utilized for the intrusion of political correctness, for the social justice flavour of the week, into jury trials is daunting.” To interpret s. 633 in that manner ignores the social and historical context in which the amendment was enacted and the specific legislative intent. As Martin J. noted in Chouhan, at para. 117, “The mischief targeted by Parliament was the all-too-common incidence of all-white juries in trials involving Indigenous and racialized accused persons or victims in spite of the diversity of the local community.” This social justice problem is longstanding and well-documented in the case law.

[119] I do not mean to suggest that s. 633 could only ever be invoked by a Black or Indigenous accused, or by the Crown in a case involving a Black or Indigenous complainant or victim. Parliament could have explicitly limited the stand-by power in that fashion but did not do so. Each case will therefore need to be assessed based on its specific facts.

[120] Similarly, I am not suggesting that s. 633 should be routinely invoked by trial judges to manipulate the racial composition of juries in every case involving a Black or Indigenous accused or complainant. My ruling in this case should make that clear. There is no basis upon which to conclude that Parliament intended to introduce such a practice, which would create significant delays in criminal trials and thereby undermine public confidence in the administration of justice.

[121] In short, an assessment will need to be undertaken on a case-by-case basis when a request is made to invoke the stand-by mechanism, or when the court deems it appropriate to do so on the trial judge’s initiative. Provided that the stand by mechanism is used when it is necessary to maintain public confidence in the administration of justice, no inequality will result from declining to use it in other cases.

(iv) Relevant Circumstances

[122] A reasonable and informed member of the public is taken to be aware of the circumstances of the case in which the use of stand asides is being proposed to influence the demographic composition of the jury. This is one of the bases upon which the public’s confidence in the administration of justice must be assessed.

[123] Parliament did not enumerate the circumstances that must be taken into consideration, but it is not difficult to imagine the types of factors that would be relevant, and the types of cases in which the stand-by mechanism may therefore be invoked. I will not attempt to catalogue the relevant factors, but I will provide a few examples to dispel the notion that the judicial discretion conferred by Parliament is somehow unworkable because of the lack of specific criteria to guide its implementation.

[124] In Brown, for example, the trial judge was acutely aware of the need to be sensitive to the racial composition of the jury in order to promote public confidence in the legitimacy of the verdict. The accused in that case was a Black man who had immigrated from Jamaica. He was one of three Black men who entered a café in downtown Toronto, herded the staff and customers into a back room, and robbed them. During the robbery, a White woman was shot and killed. The crime attracted intense media attention.

[125] As summarized by the Court of Appeal for Ontario, at paras. 8-9, the trial judge in Brown found that the media coverage was, at times, inflammatory and racist. The incident was described as “urban terrorism” by some news outlets. It sparked public debate about Canada’s immigration policies, which fuelled anti-Black and anti-Jamaican sentiment. The trial judge concluded that the media coverage “tended to reinforce in minority groups the feelings of unfair treatment they experience in this society” and led “some to believe there is a correlation between race and crime.”

[126] The accused in Brown appealed his conviction of murder and of multiple counts of robbery. The Court of Appeal for Ontario reviewed the propriety of the procedure used by the trial judge to select the jury. Twelve hundred prospective jurors had been summoned as a panel for the trial. The court Registrar randomly drew their names from a drum in groups of 25. Each group was then assigned a date and time to return to court to complete the jury selection process. The trial judge deliberately assigned earlier return dates to the groups that included racialized people. This was done to make it more likely that racialized prospective jurors on the jury panel would be reached and considered before the 12 members of the petit jury were sworn. It did not guarantee Black representation on the jury, but if the trial judge had not adopted this procedure, the risk of empanelling an all-White jury would have been much higher.

[127] The Court of Appeal in Brown held, at para. 22, that this procedure was inadvisable and should not be followed in the future because it deviated from the order in which prospective jurors are supposed to be called, as prescribed by s. 631 of the Code. However, the Court of Appeal found no reversible error in what the trial judge had done. Rosenberg J.A. stated, at para. 26:

All that the trial judge did was attempt to foster one element of representativeness, racial diversity, that he felt needed emphasis in this case. In his view, that element required emphasis to promote the goals of the jury serving as the conscience of the community and societal trust in the system as a whole. [emphasis added]

[128] Diversity among jurors is desirable in every case, but there are some cases that require heightened attention to the issue, whether because of inflammatory media coverage (as in Brown) or for other reasons. It is not surprising, for example, that the two reported decisions in which peremptory challenges were used to eliminate Black prospective jurors (i.e., Lines and Gayle) were a case involving allegations of violence by White police officers against a Black man, and a case involving allegations of violence by a Black man against White police officers. In these circumstances, given the history of hostile police relations with Black communities, it is easy to appreciate how an all-White jury, or a jury devoid of any Black jurors, would undermine the perceived legitimacy of the jury verdicts and therefore erode confidence in the justice system in the minds of reasonable and informed members of the public.

[129] Similarly, it is not surprising that seminal “challenge for cause” cases like R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324, leave to appeal refused, [1993] S.C.C.A. No. 481, and R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, involved Black and Indigenous accused and White victims. As the Supreme Court recognized in R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 3, 7, 29, 31, 39, the realistic potential for racism to infect a jury’s deliberations is exacerbated when a Black or Indigenous accused is charged with an offence that “crossed the colour line”. A reasonable and informed member of the public would be aware of this reality. The public’s confidence in the administration of justice might therefore be impacted by the racial composition of juries in such cases. This would be a relevant factor for consideration in the exercise of judicial discretion under s. 633.

[130] To be clear, I am not suggesting that the stand-by mechanism should always be invoked, or should only be invoked, to enhance jury representativeness when there is an interracial dimension to a case. I am simply using this as an example to illustrate that the difficulty in identifying relevant factors should not be overstated. As with any matter that falls within a trial judge’s discretion, some cases will be more difficult than others to decide.

The Case Before Me

[131] The Defence request to invoke s. 633 in the case before me was not particularly difficult to decide. Defence counsel did not submit that public confidence in the administration of justice would be undermined unless at least one member of the jury was Black. Rather, he argued that the presence of a Black juror on the petit jury was needed to ensure that the other (non-Black) jurors could properly evaluate the evidence.

[132] As outlined earlier in these reasons, Defence counsel submitted that a Black juror could help other jurors understand certain cultural norms in Black communities that might be relevant to their deliberations in the case. This is not a proper basis upon which to exercise my judicial discretion to use the stand-by mechanism to influence the racial composition of the jury.

[133] Section 633 of the Code stipulates that jurors may be stood aside for reason of personal hardship, to maintain public confidence in the administration of justice, or for “any other reasonable cause”. The grounds asserted by the Defence in this case do not constitute reasonable cause.

[134] The Defence argument rests on a serious misconception of the role and responsibilities of the jury as an independent and impartial fact finder. The historical practice of selecting jurors based on their personal knowledge of relevant facts was abandoned long ago: R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at para. 28; Chouhan, para. 14 (per Moldaver and Brown JJ.). In our contemporary system of justice, jurors are obligated to decide cases based only on the evidence presented in the courtroom and the instructions of the trial judge. Although jurors will invariably bring their own unique experiences and perspectives to bear on their assessment of the evidence, they are not permitted to inject personal knowledge of outside facts into the jury deliberation process.

[135] Setting aside the questionable assumption that a random Black juror would necessarily have the knowledge imputed to them by Defence counsel in this case, and the equally questionable assumption that they would share that knowledge with other jurors, the Defence’s proposed reliance on a juror to impart relevant information to other members of the jury is inappropriate. If either the Crown or the Defence believed that the jury needed to be informed about specific cultural norms in Black communities in order to appreciate the facts of this case, the proper way to deliver that information to the jurors would be to call evidence.

[136] Since no reasonable cause was advanced for using stand asides to ensure the selection of at least one Black juror in this case, I denied the Defence request. I have provided these reasons in part to ensure that my ruling was not misinterpreted as implicit acceptance of the Crown’s position that a trial judge does not have jurisdiction, under s. 633 of the Code, to use the stand aside provision to diversify a jury in an appropriate case.

Implementation Challenges

[137] I want to comment briefly on the concerns articulated by the Crown about how the Defence request could have been implemented had I decided that this was an appropriate case in which to invoke the stand-by mechanism to influence the racial composition of the jury.

[138] I recognize that not every court district is as diverse as Peel Region. In some centres where the population is more homogenous, even a proportionately representative jury panel will be largely devoid of racial diversity. It may not be feasible, in those centres, for a trial judge to use the stand-by mechanism to ensure that jurors with a particular identity characteristic are selected. I note that reasonable and informed members of the public can be taken to be aware of the lack of diversity in some communities, and of the practical limits that may impose on the exercise of judicial discretion in certain cases.

[139] I also recognize that the enhanced discretion conferred by Parliament in s. 633 of the Code gives rise to many questions about its implementation. The Crown in this case raised the example of whether a person of mixed racial heritage would satisfy the Defence request for a Black member of the jury. Danyliuk J. queried, in his decision in Dorion, at para. 36, whether trial judges are “now blessed with the hitherto unknown abilities to divine the properties of individual jurors by merely looking at them?”

[140] I appreciate these concerns, but I note that the Crown in this case did not challenge the Defence assertion that there were no Black individuals among the first 11 jurors who were sworn. Submissions were made on the basis that everyone in the courtroom could plainly see that none of the jurors selected up to that point was Black.

[141] It is unclear how the trial judge in Brown, who took steps to foster racial diversity on the petit jury, came to identify the race of prospective jurors. It appears that prospective jurors were asked to self-identify on some sort of survey. This would be one option open to a judge who was faced with this issue.

[142] In Chouhan, at para. 76, Moldaver and Brown JJ. raised other issues to highlight the difficult questions with which trial judges may be required to grapple in using stand asides to shape the composition of a jury:

What are trial judges to do in cases involving multiple co‑accused of different races, and racially diverse groups of victims? … [H]ow specific is the imperative of diversity? Does it require, for example, in a case where the victim or accused is Indigenous, that there be at least one Indigenous juror? Or, are more required? And, if more, how many more? And must such jurors be from the same First Nation as the accused or the victim?

[143] I agree that these are complex questions that may arise, but I am not convinced that they present insurmountable hurdles. Trial judges will benefit from the input of counsel. The solution in one case will not necessarily be appropriate or feasible in another. Judges will be required to find creative and practical ways to implement Parliament’s objective, while at the same time respecting juror privacy (R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 35) and protecting the accused’s constitutional right to a fair trial by an independent and impartial jury. As daunting as the task may seem, the court must rise to the challenge lest we become complicit with the systemic racism that Parliament is attempting to address.

Petersen J.

Released: December 22, 2021

COURT FILE NO.: CR-20-0083

DATE: 2021 12 22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and -

JERMAINE SMITH

REASONS FOR RULING ON CHALLENGE FOR CAUSE

Petersen J.

Released: December 22, 2021

R. v. Smith, 2021 ONSC 8405

Case Summary

INTRODUCTION

HISTORICAL MANIPULATION OF JURY COMPOSITION

JURISPRUDENCE

The Supreme Court’s Divided Decision in R. v. Chouhan

Appellate Jurisprudence on Jury Representativeness

Decisions of this Court

(i) R. v. Muse, [2019 ONSC 6119](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc6119/2019onsc6119.html) (Brown J.)

(ii) R. v. King, [2019 ONSC 6386](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc6386/2019onsc6386.html), 148 O.R. (3d) 618 (Goodman J.)

(iii) R. v. Campbell, [2019 ONSC 6285](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc6285/2019onsc6285.html) (Boswell J.)

(iv) R. v. Josipovic, [2020 ONSC 6300](https://www.canlii.org/en/on/onsc/doc/2020/2020onsc6300/2020onsc6300.html) (Goodman J.)

(v) R. v. Bhogal (Pomerance J.) and R. v. Stanley (Code J.)

FACTUAL BACKGROUND OF THIS CASE

PARTIES’ SUBMISSIONS

Defence Submissions

Crown Submissions

ANALYSIS

Principles of Statutory Interpretation

Context and Parliament’s Intent

The Test for Assessing Public Confidence in the Administration of Justice

(i) Philosophy of the Legislative Provision

(iii) Charter Values

(iv) Relevant Circumstances

The Case Before Me

Implementation Challenges

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 4

INTRODUCTION

HISTORICAL MANIPULATION OF JURY COMPOSITION

JURISPRUDENCE

The Supreme Court’s Divided Decision in R. v. Chouhan

Appellate Jurisprudence on Jury Representativeness

Decisions of this Court

(i) R. v. Muse, [2019 ONSC 6119](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc6119/2019onsc6119.html) (Brown J.)

(ii) R. v. King, [2019 ONSC 6386](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc6386/2019onsc6386.html), 148 O.R. (3d) 618 (Goodman J.)

(iii) R. v. Campbell, [2019 ONSC 6285](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc6285/2019onsc6285.html) (Boswell J.)

(iv) R. v. Josipovic, [2020 ONSC 6300](https://www.canlii.org/en/on/onsc/doc/2020/2020onsc6300/2020onsc6300.html) (Goodman J.)

(v) R. v. Bhogal (Pomerance J.) and R. v. Stanley (Code J.)

FACTUAL BACKGROUND OF THIS CASE

PARTIES’ SUBMISSIONS

Defence Submissions

Crown Submissions

ANALYSIS

Principles of Statutory Interpretation

Context and Parliament’s Intent

The Test for Assessing Public Confidence in the Administration of Justice

(i) Philosophy of the Legislative Provision

(ii) Social Reality

(iii) Charter Values

(iv) Relevant Circumstances

The Case Before Me

Implementation Challenges

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 4