The R v Chouhan Series, Part II: Bill C-75, Jury Diversity, and the Supreme Court Jurisprudence on Jury Selection
Jack Olson, 2L, Volume 80 Senior Forum Editor
The passing of Bill C-75 in September 2019 marked a significant change in the jury selection process in Canada. Bill C-75 abolished peremptory challenges, empowered trial judges to adjudicate challenges for cause, and allowed trial judges to stand aside jurors to “[maintain] public confidence in the administration of justice.” Part I in this two-part series on R v Chouhan, 2021 SCC 26 (CanLII) (Chouhan) explored whether the abolition of peremptory challenges is likely to have its desired effect of reducing discrimination in the jury selection process. This post will examine Chouhan alongside R v Kokopenace, 2015 SCC 28 (CanLII) (Kokopenace), the Supreme Court’s leading decision on jury representativeness. As will be shown, Chouhan and Kokopenace illustrate a growing divide within the Supreme Court regarding whether diversity-enhancing mechanisms in the jury selection process are desirable and practical. This post will argue that in spite of the objections of some members of the Court, more diversity-enhancing measures may be needed in the aftermath of Bill C-75.
Chouhan and Kokopenace: Jury Representativeness
The dispute in Chouhan surrounding jury diversity arose in the context of the enhanced stand aside power. Section 633 of the Criminal Code allows trial judges to order a prospective juror to return to the jury panel (or be “stood aside”) for reasons of personal hardship, any “reasonable cause,” and now, since Bill C-75, to maintain public confidence in the administration of justice. The jury panel is the body of prospective jurors from which the trial jury is derived. During the in-court jury selection process, members of the jury panel are randomly selected and sworn in as jurors. A person who is selected from the panel but stood aside will only serve on the trial jury if the panel becomes exhausted and a full jury has not been selected.
Writing in dissent, Justice Abella opined that this enhanced stand aside power could be used by trial judges to “actively promote jury diversity on a case by case basis” (Chouhan at para 164). While Justice Abella did not explain how this proposed use of the stand aside power would work in practice, her observation that all-white juries tend to erode confidence in the administration of justice suggests that, in her view, the stand aside power could be used to include racialized persons where doing so would enhance the credibility of the justice system (Chouhan at para 163). In other words, if a racially homogenous jury had been randomly selected, a trial judge could use the stand aside power to return one of the jurors to the panel in order to make room for a juror with a more diverse background.
Justices Moldaver and Brown, joined by Chief Justice Wagner, opposed Justice Abella’s recommended use of the stand aside power. They asserted that judge-made efforts to diversify the jury would introduce far-reaching problems into the jury selection procedure. Would only visible characteristics need to be represented in the jury, such as ethnicity and sex? Or would invisible characteristics need to be represented too, like religion and sexual orientation? If the latter, then successfully crafting a diverse jury would require inquiries into private aspects of the jurors’ lives, something the Canadian legal system has traditionally opposed (Chouhan at para 78). Moreover, any attempt to promote jury diversity would entail interfering with the random selection of jurors from the jury panel. This is undesirable given the special status that random selection holds in Canadian law as a guarantor of juror impartiality (Chouhan at para 21). The substance of Justices Moldaver and Brown’s argument then, was that judge-made efforts to enhance jury diversity would ultimately undermine fundamental principles on which the Canadian jury selection system is based.
Interestingly, this “slippery-slope” argument against Justice Abella’s proposed use of the stand aside power has been articulated by the Court before, albeit in a slightly different context. In Kokopenace, the Court was required for the first time to determine what “representativeness” means for the purposes of the jury roll (the jury roll is the body of persons who have been randomly selected from “source lists” prepared by the provinces. After a jury roll is compiled, names are then randomly selected from the jury roll to form the smaller jury panel. The jury panel, as stated above, is the body of persons from which the trial jury is derived). Mr. Kokopenace, an Indigenous man from Ontario, appealed his manslaughter conviction after learning that only 4.1% of persons on the jury roll were Indigenous, despite the on-reserve Indigenous population of his judicial district being close to 30% of the area’s total population (Kokopenace at paras 197-198).
Justice Moldaver, writing for the majority, held that representativeness does not have to do with the actual composition of the jury roll; it instead concerns the process used to compile the jury roll (Kokopenace at para 59). So long as reasonable efforts are made to randomly select members of the jury roll using source lists that draw from a broad cross-section of the population, a roll is said to be representative (Kokopenace at para 61). The majority were satisfied that the process used to compile the jury roll was adequate in Mr. Kokopenace’s case. While the source lists used to compile the jury roll featured little Indigenous representation, the majority found that Ontario had taken reasonable efforts to improve those lists and include Indigenous persons in the jury selection process (Kokopenace at paras 107, 125). This was deemed sufficient to satisfy Mr. Kokopenace’s right to a representative jury roll.
In dissent, Justice Cromwell held that a representative jury roll is one that is “substantially similar” to a random selection of all eligible jurors in the relevant judicial district; in effect, Justice Cromwell would require that a jury roll be proportionately representative of the body of eligible jurors (Kokopenace at paras 246-247; see also para 69). The majority objected to this “results-based” approach to representativeness (Kokopenace at para 69), advancing many of the same arguments that would later resurface in Chouhan. Justice Moldaver stated that proportionate representation on the jury roll would require the government to undertake the difficult task of determining which identities need to be represented on a roll, and what degree of representation is enough to satisfy an accused’s constitutional right to representativeness (Kokopenace at paras 70, 73). Crafting proportionately representative jury rolls would also violate the principle of random selection, insofar as the government would have to target specific groups for inclusion on the rolls (Kokopenace at para 86). Finally, Justice Cromwell’s proposal would necessitate inquiring into prospective jurors’ identities and beliefs early in the selection process. Justice Moldaver concluded that adopting Justice Cromwell’s proposal would “spell the end of the jury system as we presently know it” (Kokopenace at para 70).
Kokopenace provides the necessary context for understanding Justices Moldaver and Brown’s opposition to Justice Abella’s recommended use of the stand aside power in Chouhan. To Justices Moldaver and Brown, using the enhanced stand aside power to increase jury diversity would have the same kind of destructive effect on the Canadian jury selection system that Justice Cromwell’s requirement of proportionately representative jury rolls would have. Together, Kokopenace and Chouhan present a picture of what some members of the Supreme Court take to be essential in securing a fair, constitutionally compliant jury selection procedure. Efforts to actively enhance jury diversity, while perhaps laudable, must not run afoul of the well-established jury selection principles of random selection and respect for juror privacy.
Moving Away from Kokopenace?
Though Justices Moldaver and Brown affirmed the Kokopenace perspective on jury representativeness, other members of the Court took a more critical view of the case. Justice Côté noted that the Court’s failure in Kokopenace to require proportionate representation on the jury roll has resulted in rolls that are under-representative of racialized persons (Chouhan at para 272). Even Justice Martin, who agreed with Justices Moldaver and Brown that the abolition of peremptory challenges was constitutionally valid, cautioned against placing “undue weight” on the principle of random selection (Chouhan at para 113). Like Justice Côté, Justice Martin noted that random selection can yield under-representation of racialized persons throughout the jury selection process, including on the trial jury itself (Chouhan at para 114). As for concerns about juror privacy, Justice Martin asserted that “privacy is just one interest to be weighed against others” (Chouhan at para 120).
It is Justice Abella’s judgement, however, that most clearly breaks with the Kokopenace approach to jury representativeness. Whereas the majority in Kokopenace eschewed any conception of representativeness that focused on the actual composition of the jury or jury roll, Justice Abella explicitly stated that a trial by a jury of one’s peers means a trial by a “jury that looks more like Canada” (Chouhan at para 200). When examining the content of an accused’s right to a jury, Justice Abella was therefore specifically concerned with the composition of the jury. Justice Abella’s recommendation that the stand aside power be used to enhance jury diversity is further evidence of the importance she attaches to jury composition.
Enhancing Jury Diversity and the Value of Peremptory Challenges
In spite of Justices Moldaver and Brown’s admonition that the Court must not “sacrifice the vital principle of randomness on the altar of diversity” (Chouhan at para 81), there is a strong case that more diversity-enhancing measures in the jury selection process are appropriate. As Justices Côté, Abella, and Martin each separately observed in Chouhan, random selection of prospective jurors from source lists that draw from a broad cross-section of the population does not always lead to representative juries. There are many reasons for this.
First, these source lists may feature little Indigenous and racial representation to begin with, leading to under-representation on the jury roll (see Hon. F. Iacobucci, First Nations Representation on Ontario Juries at paras 159, 167). Second, the Criminal Code, via the challenge for cause procedure, can prevent non-citizens and persons convicted of certain criminal offences from serving on juries (see s. 638(1)(c-d)). Permanent residents and persons with criminal records tend to disproportionately belong to racialized groups (Chouhan at para 272). At the same time, however, notice should be taken of s. 638(1)(b), which permits challenges for cause on the grounds a juror is not impartial. This provision has been used by racialized accused to weed out biased jurors from the jury pool, and has, in contrast to s. 638(1)(c-d), enhanced the fairness of the jury selection process. A third factor contributing to racialized under-representation on juries is the location of trials. Trials tend to be held in larger cities, making jury service for Indigenous persons in remote areas difficult. The meagre compensation packages offered to jurors in Ontario does little to make an extended time away from one’s family, community, and job a viable possibility [1].
These are only some of the factors that contribute to the under-representation of Indigenous and racialized persons on juries. A straightforward strategy for improving jury diversity would be to simply remove some of the restrictions in the Criminal Code relating to who can serve on juries, improve compensation packages for jurors, hold trials closer to Indigenous communities, and use more representative source lists from which to compile the jury roll. But until such measures are taken, in-court diversity-enhancing jury selection measures may be critical to securing juries that, as Justice Abella says, “[look] more like Canada.”
However, the worries articulated by the majority in Kokopenace and by Justices Moldaver and Brown in Chouhan should not be understated. Actively promoting jury diversity invites challenging questions regarding what a diverse jury ought to look like. Chouhan itself illustrates this concern. While Justice Abella spoke about having trial juries reflect Canada’s diversity, many intervenors spoke of jury diversity in terms of the jurors sharing some characteristics with the accused or the victim (Chouhan at para 76). What does a diverse jury mean then? Is it one that proportionately represents the population of Canada or a particular judicial district, or one that contains some jurors who have the same characteristics of the accused or the victim? And what should those characteristics be? In the aftermath of the Gerald Stanley trial, many commentators have expressed concern about the racial composition of juries in Canada. But cases may arise where the gender, religion, or sexual orientation of the jurors is a matter of concern to the accused or the Crown. Must there be jurors of a particular gender, sexual orientation, or religious affiliation in such cases? These are some of the many problems identified in the Supreme Court jurisprudence that can complicate jury selection measures designed to enhance jury diversity.
Incidentally, these very problems may illustrate the value of peremptory challenges. Peremptory challenges offered an accused a limited way to alter the composition of the jury to their liking. Crucially, peremptory challenges were a jury selection mechanism that avoided the thorny issues discussed above. Parliament was not required to make any difficult decisions regarding which identities need to be represented on a given jury, because the accused could, in a limited fashion, craft a jury with the characteristics most important to them. The issue of what a diverse jury ought to look like did not therefore need to be answered: diversifying the jury was left to the accused, not to Parliament or the courts.
Of course, peremptory challenges could be used by accused persons to craft less diverse juries, which is in large part why Parliament abolished them. But if the enhanced stand aside power will not be used to diversify juries (as Justices Moldaver and Brown have advised), then the elimination of peremptory challenges may leave a critical gap in the jury selection process. Should the under-representation of Indigenous and racialized persons on juries persist, Parliament may need to implement more robust measures to enhance jury diversity later in the jury selection process. If Kokopenace and Chouhan are any indication though, such measures will be the subject of intense scrutiny by the Supreme Court.
[1] See Vanessa MacDonnell, "The Right to a Representative Jury: Beyond Kokopenace" (2017) 64:3-4 Crim LQ 334 at 349-350.