Wednesday, 16 September 2015

Trial by a jury of your peers                          

What constitutes a jury of your peers?

It is the right of all criminal defendants in  which   the word, “peer” means equal. This means that available jurors chosen to serve on a jury includes a broad spectrum of the population, particularly of race, national origin and gender. Jury  selection  cannot exclude those of a particular race or intentionally narrows the spectrum of possible jurors. It also doesn’t mean that trials of woman are tried only by a jury of women and trials of blacks are only tried by a jury of blacks etc.                     

However, a criminal defendant who is on trial and is to be tried by a jury of his peers cannot be tried by a jury of criminals. In fact, anyone with a criminal record cannot sit on a jury.

This article is about a criminal defendant who wasn’t tried by a jury of his peers.   

An Aboriginal man whose name is Kokopenace (hereinafter referred to as (K) is from a First Nation reserve. K was charged with second degree murder and convicted of manslaughter after a trial by judge and jury. Prior to him being sentenced, K’s counsel learned that there may have been problems with respect to the fact that there was an omission of Aboriginal on‑reserve residents on the jury roll for the District of Kenora, which raised questions about the representativeness of the jury in K case. The trial judge refused to adjourn the proceedings to hear a mistrial application, as he considered himself to be functus officio. (means that he has fulfilled his job as conducting the trial to determine guilt)  He then proceeded to sentence the defendant.

The representativeness issue was therefore raised for the first time on appeal, where fresh evidence was introduced regarding the procedures by the province in preparing the jury rolls for the district. The Ontario Court of Appeal was satisfied that the accused received a fair trial and that his jury was not tainted by a reasonable apprehension of bias or partiality. However, the majority of the appeal court (two out of three members chosen to hear the appeal) held that the accused’s subsection. 11(d) and 11(f) Canadian Charter rights had been violated. All three judges rejected the accused’s section 15 Charter claims.  Subsequently, they ordered a new trial.
Section 11 (d) Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

Section 11 (f)  except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.

Section 15. 1:  Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 15. 2:  Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.       

The Crown (Ministry of the Attorney General of Ontario) appealed the decision of the Court of Appeal and the matter ended up in the Supreme Court of Canada.

The issue before the court was that to determine if the state has met its representativeness obligation with respect to K’s trial therefore the question was whether the state provided a fair opportunity for a broad cross‑section of society to participate in the jury process.

A fair opportunity will be provided when the state makes reasonable efforts to: (1) compile the jury roll using random selection from lists that draw from a broad cross‑section of society, and (2) deliver jury notices to those who have been randomly selected. When this process is followed, the jury roll will be representative and an accused’s Charter right to a representative jury will be respected. This process aims to ensure that there is an opportunity for individuals with varied perspectives to be included on the jury, and it seeks to preclude systemic exclusion of segments of the population. What had happened in K’s trial was that the jury didn’t have Aboriginals sitting on his jury because they hadn’t been on the jury roll in the first place.

The narrow way in which representativeness is defined in Canadian jurisprudence means that impartiality is guaranteed through the process used to compile the jury roll, not through the ultimate composition of the jury roll or the criminal trial jury itself. A jury roll containing only a few individuals of the accused’s race or religion is not in itself indicative of bias. The complete omission of including members of the population by their race or religion is evidence of bias.

The majority of the members of the Supreme Court were in agreement that the role of representativeness in section 11(f) is broader: it not only promotes impartiality, it also legitimizes the jury’s role as the “conscience of the community” and promotes public trust in the criminal justice system. This broader role creates an important point of distinction: while a problem with representativeness will not necessarily violate section 11(d), its absence will automatically undermine the section 11(f) right to a trial by jury.

If the state deliberately excludes a particular part of the population that is eligible for jury service, it will violate an accused’s 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 an accused’s right to a representative jury has been respected. If the state makes reasonable efforts but part of the population is excluded because it declines to participate or some other valid reason, the state will nonetheless have met its constitutional obligation. In contrast, if the state does not make reasonable efforts, the size of the population that has been inadvertently excluded will be relevant. When only a small segment of the population is affected, there will still have been a fair opportunity for participation by a broad cross‑section of society.

Representativeness is not about targeting particular groups for inclusion on the jury roll. The province was therefore not required to address systemic problems contributing to the reluctance of Aboriginal on‑reserve residents to participate in the jury process. Efforts to address historical and systemic wrongs against Aboriginal peoples are by definition genuine attempts towards a particular group for inclusion on the jury roll. An accused’s representativeness right is not necessarily the appropriate mechanism for repairing the damaged relationship between particular societal groups and Canada’s criminal justice system more generally.

 There is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society. Requiring a jury roll to proportionately represent the different religions, races, cultures, or individual characteristics of eligible jurors would create a number of insurmountable problems. There are an infinite number of characteristics that one might consider should be represented, and even if a perfect source list were used, it would be impossible to create a jury roll that fully represents them.

A proportionate representation requirement would also do away with well‑established principles, such as juror privacy and random selection. In their place, we would be left with an inquisition into prospective jurors’ backgrounds and a requirement that the state target particular groups for inclusion on the jury roll. Such an approach would be unworkable and would spell the end of our jury system as we presently know it.     

The province of Ontario met its representativeness obligation in this case. The Court of Appeal raised potential issues with three parts of the process such as the lists, the delivery, and the low response rates. Assessed in light of what was known at the time and against the proper standard, the province’s efforts to include Aboriginal on‑reserve residents in the jury process were reasonable. Accordingly, there was no violation of ss. 11(d) or 11(f) of the Charter.

Although the problem of the underrepresentation of Aboriginal on‑reserve residents in the jury system is a serious policy concern that merits attention,  the accused’s  ss. 11(d) and his  11(f) Charter rights were not the appropriate vehicle to address this concern in the Supreme Court hearing the appeal of the government in K’s case. It must be dealt with solely by the Province of Ontario and its legislators.

The Supreme Court ruled as follows;

“Determining what is an appropriate remedy following the state’s failure to provide a representative jury roll requires examination of all the circumstances, including the nature of the breach of the accused’s rights and its effect on public confidence in the administration of justice. The point in the proceedings at which the issue is raised is also a relevant consideration. Where, as here, the issue is raised for the first time after the verdict is given, a declaration that the accused’s rights were violated may be the appropriate remedy absent the accused establishing that, in light of all the circumstances, a new trial is the only way to restore public confidence in the administration of justice. In this case, the Court of Appeal did not make any reversible error in exercising its remedial discretion to order a new trial. The failure to provide a representative jury roll undermines public confidence in the administration of justice.”  unquote

I would be amiss if I didn’t mention that in my opinion, K’s lawyer screwed up. He should have expressed his concern about the lack of Aboriginals being on his client’s jury before the trail began. 

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