“Stand By” for Confusion
Steve Coughlan
SSRN: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=%201867974
In June 2019, the Criminal Code jury selection procedures were dramatically changed by Bill C-75. The elimination of peremptory challenges and changes to challenges for cause will have the most obvious impact, but this post will explore a different issue: the trial judge’s ability to have a juror “stand by”. Until now, this power has largely been a complement to the judge’s power to excuse a juror: if a juror asked to be excused for reasons of personal hardship, a judge could instead postpone that juror to the end of the list. As a result, a full jury might be selected before that juror was re-called.
As originally drafted, the exemption section was limited to standing jurors by based on personal hardship or other reasonable cause. Bill C-75 now allows a judge to have a juror stand by to “maintain[] public confidence in the administration of justice”. This change seems to be founded on an understanding of “representativeness” that is not only different from that which has been adopted until now, but is the very understanding rejected until now. As a result, it raises a host of questions.
The genesis of this change was the trial of Gerald Stanley, a white accused found not guilty of killing an Indigenous man: much media attention focused on the fact that all the jury members were white, although Indigenous people had been among the pool from which the jury was selected. The natural inference is that that was the “problem” this change was meant to solve: that judges should use this new ability for things like influencing the racial makeup of a jury. For example, if no visible minority jurors have been randomly selected from the jury pool, the judge could stand by the white jurors whose names are called until a visible minority juror’s name is called, so that the jury will be more representative. In isolation, that is an understandable position.
However, the change does not occur in isolation: it is being incorporated into a system which has resolutely rejected that view of representativeness: “[c]ourts have consistently rejected the idea that an accused is entitled to a particular number of individuals of his or her race on either the jury roll or petit jury,” (at para 39) the Supreme Court has stated, as well as that “representativeness is not about targeting particular groups for inclusion on the jury roll.” (at para 61) An accused cannot insist that the jury or jury array contain members of the accused’s race. It has similarly been held that “public confidence in the administration of justice would be seriously undermined if Crown counsel were permitted to exercise the power of peremptory challenge on racial or ethnic grounds.” (at para 66)
The attitude which has been strongly reflected in the law until now is that, despite differences, any person is presumptively capable of being a juror for any other person. (at para 52) As a result, representativeness has been equated with randomness, and therefore the latter has been protected. Indeed, in some cases attempts merely to increase the likelihood that jurors of a particular race would be available for selection have been found to be a basis for ordering a new trial. That is not to say that the opposing approach cannot be taken, but the struggle for judges will be that, although the new section 633 seems to adopt the view that judges should tinker with the jury composition to achieve “representativeness”, the notion that they should not do so is still present everywhere else in the system.
The closest thing we have to guidance on this issue are cases where the Crown used its powers to produce all-female juries in sexual assault cases. In R v Pizzacalla the Ontario Court of Appeal ordered a retrial in a case where the Crown used its stand-aside power to produce an all-female jury in a sexual assault case. Biddle presented another case in which the Crown used its power to create an all-female jury for a sexual assault case. Justice Gonthier criticized the Crown’s behaviour as an effort to fashion a jury that might seem favourable to it, even if it was, in fact, impartial. In contrast, McLachlin J (as she then was) argued that an all-female jury would be seen by a reasonable observer to be impartial.
Would standing jurors by in order to increase the likelihood of producing a jury with more of any identifiable group be based on the logic that expectations about a person can properly be based on their group membership? In Pizzacalla, the prosecutor thought that female jurors were more likely to disapprove of sexual harassment in the workplace, which is not an obviously irrational opinion. However, in other contexts the belief that expectations about a person can legitimately be based on that person’s race or sex is exactly the reasoning the judicial system is trying to eliminate.
The principle that powers should not be used to produce a jury that does not appear impartial is not in dispute. The source of dispute will be what sort of judicial steps to influence the make-up of the jury violate that principle. The deliberate exclusion of one race or one sex from a jury violates that principle. (at para 50) However, the deliberate inclusion of one group is, functionally, in part the exclusion of others, which makes this principle challenging in practice. At the stage of assembling the jury array, for example, attempts to consciously decrease or increase the number of Indigenous people summoned have both been found objectionable.
The only thing that can be said with confidence about the new exclusion ground in section 633 is that it will create challenging issues for courts to wrestle with as they begin to apply it.