Amendments to the Juries Act in Ontario

The current jury system has long been criticized in Ontario, in particular in regards to its diversity and representation. Hints in Ontario’s recent budget suggest some changes are forthcoming.

A big part of the reason for Ontario’s problems is that it is jury rolls remain an anomaly in Canada, and are based on specific provisions under the Juries Act. Although the Director of Assessments prepares jury questionnaires based on the provisions in s. 6, based on the inhabitants of the county under s. 15 of the Assessment Act who are Canadian citizens and who will be 18 at the age of selection, this director is still appointed by the Municipal Property Assessment Corporation (MPAC) to carry out these functions. This effectively excludes any individuals who do not own property, including many renters, students, seniors, spousses, or anyone else who is not explicitly listed on a property title.

Quebec’s Jurors Act creates a permanent list of electors in various municipalities, with specific provisions for a jury list to include names from a Band List in accordance with the Indian Act or the population register of the Ministry of Health and Social Services. This approach allows for a much broader section of the population to be eligible for jury duty. Other provinces have just as much variability.

The Jury Act in Manitoba and Nova Scotia’s Juries Act both allow for court officials to prepare juror rolls through random selection of names from the proscribed list. Depending on where this information is obtained, those lists may not contain a true representation of the population. Alberta’s Jury Act uses a list of electors, assessment rolls or other public papers under the actual custody and control of the property officer. The regulation to this act provides further discretion to use telephone directories, Henderson’s Directories (a listing similar to the White Pages), or any other source that the sheriff considers appropriate.

Similarly, British Columbia’s Jury Act also allows a sheriff wide discretion in selection of source lists. Although it is assumed that provincial electoral lists are typically used for these purposes, there have been some concerns about implicit and systemic bias in these selections.

The Supreme Court of British Columbia in 2005  dealt with a criminally accused of Indigenous heritage who was charged with 1st degree murder in R. v. Fowler, and challenged the constitutionality of the jury selection process under ss. 711 or 15 of the Charter. The court dealt with a number of reports on Indigenous representation on juries, including Racial Discrimination in Canada, the 1999 Report of the Aboriginal Justice Inquiry of Manitoba, and the Final report from the Commission on First Nations and Métis Peoples and Justice Reform. The court did not give much weight to these reports, stating,

[70] I have taken judicial notice of some aspects of the troubled history of aboriginal peoples in our society, and I have also considered the commission reports and the Israel article which identified those systemic factors that may interfere with proportionate representation of aboriginal people on jury panels. However, I find that those legislative facts are insufficient to establish that such factors played a role in the under-representation of aboriginal people on the panel returned in this case. Evidence demonstrating systemic discrimination against aboriginal people on this panel is clearly critical to the issues in this case, and should go beyond reports from other provinces or academic articles that deal with the issues on a global and more abstract basis.

The arguments the court heard included critiques of the Court Services Branch Sheriff’s Policy Manual, which would inadvertently exclude Indigenous peoples. Many Indigenous people may not register to vote, may have language difficulties or economic hardships, experience transportation difficulties that are unique to their communities, or experience alienation from the system generally. However, there was no evidence before the court on these issues, and the court did not find the arguments persuasive,

[72] It may well be that further studies or other action could be taken to identify and alleviate factors that may prevent aboriginal participation in juries in British Columbia. However, in my view, that is a political matter and the failure to take such steps cannot be the foundation for a finding that the aboriginal population is underrepresented on this panel.

The court also rejected a rather novel argument that would guarantee or provide a disproportionately higher number of Indigenous people on the jury pool, as this would undermine the jury process. The system in Alberta was challenged on similar grounds in R. v. Nepoose, and was also unsuccessful.

Notwithstanding these decisions, the B.C. Civil Liberties Association wrote a letter in 2011 to the Minister of the Attorney General indicating that their investigations into the B.C. jury system suggested a widespread systemic problem with Indigenous underrepresentation. Using a freedom of information request to obtain the sheriff’s policies for compiling jury rolls, they obtained the Policy Manual that limited inquiries to Indigenous communities within 100km of any Sheriff’s office. This would necessarily exclude many reserves and many Indigenous peoples. They also stated,

Further, it is our understanding that many aboriginal people do not self-identify as “Canadian” or fear that registering to vote could compromise their treaty rights, and therefore do not register to vote and would not be on the enumerated voter list. Finally, given the marginalization and poverty of many aboriginal reserves, we were surprised that the policy did not contemplate special accommodation to ensure participation by people from reserves, including arranging for transportation and liaison with local band councils beyond a single written letter.

They contacted a number of First Nations bands, all of whom confirmed they had never been contacted or even heard of anyone in the bad being contacted by the Sheriff’s Office to request information for jury rolls, including a band that was within the 100km radius of one of the Sheriff’s offices.

This is not the only system for creating jury rolls. Although the Alberta Health Care Insurance Act has long prohibited the release of any information obtained for the purposes of jury lists, other provinces do not have this barrier.

The Law Reform Commission of Saskatchewan’s Proposals for the Reform of the Jury Act suggested using the Saskatchewan Medical Care Insurance Act register for the source list of juries, and The Jury Act has used this method for several decades. Likewise, following the Law Reform Commission of Nova Scotia’s 1994 Final Report on Juries in Nova Scotia, where the authors struggled on whether jury pools should continue to be random or should instead use more aggressive measure for adequate representation, the regulations to Nova Scotia’s Juries Act was amended so that the Department of Health and Wellness’ Health Insurance list was added as the proscribed list available for the purposes of preparing a jury list. The Nova Scotia report noted that if jury decisions do not reflect the full range of values in society, it “can lead to a lack of faith in the credibility of the justice system as a whole.”

Despite these changes, several reports still suggest there is underrepresentation of Indigenous jurors in pools, even in these jurisdictions.

Ontario’s proposed changes would also use the Ontario Health Insurance Plan (OHIP) database as its source for jurors. But Ontario is not immune from the problems observed across Canada, and may still want to consider the recommendations found in the 2013 Iacobucci Report, which suggested using OHIP specifically for the purposes of boosting inclusion of First Nations individuals living on reserve for the jury roll. The report recognizes that this may not be enough, and goes further, stating,

Recommendation 9: in connection with this review, the Ministry of Attorney General and First Nations, in consultation with the Implementation Committee, consider all other potential sources for generating this database, including band residency information, Ministry of Transportation information and other records, and steps that might be taken to secure these records, such as a renewed memorandum of understanding between Ontario and the Federal government respecting band residency information or memorandums of understanding between Ontario and PTOs or First Nations, as appropriate.

Other important recommendations from the Iacobucci Report include that an American practice of substituting an undeliverable or unreturned jury summons or questionnaire to the same postal code, to ensure representativeness, as well as allowing a process for First Nations individuals to volunteer to be on a jury roll.

Ontario’s recent intention to create reforms is a good one, which will make our jury system more equitable and representative. It is not a final destination though, and more work will need to be undertaken in the years to come.

Comments

  1. I have been following Omar on twitter and have gained respect for him as a professor and legal academic. What makes me uncomfortable here though, is the use of what is suppose to be confidential medical information via OHIP as a means to source (but possibly cull?) jurors. Does that not open a pandora’s box?

  2. Elizabeth,
    I’m not sure that the actual contents of an OHIP file would be available for a jury pool. It would be simply the individuals who are registered with the province’s plan.

    Even with these expansive lists, I expect there would be many people who would be disqualified for selection on multiple grounds, but there is a greater likelihood of having more diverse pools.

    I would not be in support of anyone in the legal system having medical information about potential jurors provided to them, especially without the explicit consent of the patient involved. You’re entirely right that we need to be constantly vigilant about ensuring that this does not occur, even inadvertently.

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