Week 9: Juries

Question 1

Where do the roots of the jury come from?

Answer 1

Judgment by jury of peers can be traced back to Welsh King Morgan of Glamorgan in A.D. 725

Jurors from “Jurour” – “person who takes an oath”

Question 2

When is a jury required in a criminal trial and when can it be waived?

Answer 2

Offences punishable by 5+ years in prison

The jury can be waived if both accused and AG consent

Question 3

When is a jury required in a civil trial and when can it be waived?

Answer 3

Trials concerning:
Slander
Libel
Malicious arrest or prosecution
False imprisonment

Require a jury but can be waived with the consent of plaintiff and respondent

Question 4

what are the two main functions of the jury?

Answer 4

1. An institution designed to ensure the accuracy of fact finding in the adjudication of disputes (application of the law)
2. An institution with the right to construe or ignore a rule in cases where its application would contradict prevailing notions of fairness and justice in the community (conscience in the community)

Question 5

In Canada, we assume that all jurors are impartial. Although, what are key differences between men and women regarding sexual assault trials?

Answer 5

Men are more likely to understand offender

Women are more likely to be sympathetic to victim

Question 6

what are the eligibility requirements to serve on a jury in Canada?

Answer 6

Canadian citizens 18-65/69 years of age

No criminal record

Free of any disability that could impair your ability to sit for long periods of time

Question 7

What are the exclusions for serving on a jury in Canada?

Answer 7

Members of the Privy Council, provincial cabinets, the Senate, House of Commons and provincial legislatures

Lawyers, law students, judges, law enforcement officers, clergy, doctors, coroners, dentists, veterinarians and some essential services, such as firefighters and nurses

Question 8

What is the empaneling process as described in ss. 629 - 699 of the Criminal Code?

Answer 8

Most jurisdictions draw from municipal voter lists or provincial lists of healthcare beneficiaries

Usually empanel a number of juries at a time

Ontario: OHIP records & “mandatory Jury Eligibility Form” (Gets sent one once a year to 800,000 people)

Question 9

before 2019, there were two categories of challenges for jurors. What were they?

Answer 9

Peremptory challenges

Challenges for cause (s.638 CC)

Question 10

before 2019, there were two categories of challenges for jurors. Describe the first one, ‘peremptory challenges’

Answer 10

Permitted Crown or defense to eliminate a prospective juror without providing a reason

Question 11

the number of peremptory challenges is determined by the nature of offence being tried, what are two examples of this?

Answer 11

high treason or murder <20 peremptory challenges

Offences punishable by less than 5 years imprisonment <4

Question 12

In 2019, amendments to the Criminal Code eliminated Peremptory Challenges due to Gerald Stanley Trial. Describe the events of the case and the impact it had

Answer 12

August 2016 Gerald Stanley shot and killed Coulten Boushie

Stanley was charged with second degree murder and was tried by a jury comprised entirely of white people

Defence used their peremptory challenges to exclude all jurors who ‘appeared’ Indigenous, resulting in an entirely white jury

In the wake of this case, Parliament introduced Bill C- 75 which became active in 2019 and eliminated peremptory challenges in Canadian jury selection

Question 13

what is the ‘challenges for cause’ as described in s.638 of the Criminal Code?

Answer 13

Challenge for cause is the selection procedure whereby jurors, who are otherwise presumed impartial, may be challenged for impartiality or other causes

Consistent with s.640(1) of the Criminal Code, if a challenge is made on a ground mentioned in s.638, the judge shall determine whether the alleged ground is true or not and, if the judge is satisfied that it is true, the juror shall not be sworn

Question 14

When thinking about whether the empanelling process is fair, a key example of this is the case R v. Kokopenace. Describe the events of this case

Answer 14

Clifford Kokopenace charged with second-degree murder of his friend, Taylor Assin, on the Grassy Narrows Reserve in Kenora

Although on-reserve Indigenous people comprises 30% of the population of Kenora, they made up less than 5% of the jury roll

Kokopenace was convicted at trial by an all-white jury; he appealed that conviction on grounds that his Charter rights to an impartial trial (s.11d) and trial by jury (s.11f) were violated at trial

Question 15

At the Supreme Court, Kokopenace’s appeal was dismissed, what reasoning did the Supreme Court give for this outcome?

Answer 15

‘Representativeness is about process, not outcome’

Key consideration is whether the province made a reasonable effort to:
1. Compile the jury roll using random selection from lists that draw from a broad cross-section of society, and

2. That they deliver notices to those who have been randomly selected

As long as the process for creating the jury list is compiled reasonably, it does not matter if the result is actually representative of the accused’s community

Question 16

Describe the case R v. Williams

Answer 16

Williams charged with robbing a pizza restaurant
Defence was one of mistaken identity (due to being indigenous)

As an Indigenous defendant, Williams sought to challenge for cause prospective jurors on grounds that they were prejudiced against Aboriginal people and thus ‘not impartial between the Crown and Accused’

Question 17

in the case R v. Williams there were challenges for cause; meaning that Williams sought to ask 2 questions of prospective jurors. What were they?

Answer 17

1. Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the person charged is an Indian?
2. Would your ability to judge the evidence in the case without bias, prejudice, or partiality be affected by the fact that the person charged is an Indian and the complainant is white?

Question 18

In challenges for cause there are four classes of prejudice, what are they?

Answer 18

Interest - juror has direct interest in outcome of trial

Specific - attitudes about the case that remove impartiality

Generic – arise from stereotypical attitudes about the defendant, victim, witnesses or the crime itself

Conformity – juror impartiality undermined by perceptions of community sentiments about the case or a preferred outcome to it

Question 19

does jury composition matter?

Answer 19

yes

Jurors tend to demonstrate bias towards accused belonging to racial minorities

Research with mock juries demonstrated juries were more likely to render a guilty verdict if the defendant was Indigenous rather than white

Question 20

a jury compromised of 5 or more white people sentences a black defendant to death what % of the time?

Answer 20

63%

Question 21

in the absence of any black juror, what % of the time were defendants sentenced to death?

Answer 21

72%

Question 22

The inclusion of a single black juror reduced the liklehood of the death penalty in what % of cases?

Answer 22

43%

Question 23

Describe what happened in the Gayle case, as described by Emily Morton

Answer 23

Marked the first time a Canadian appellate court considered the use of peremptory challenges to impede the selection of racial minorities for jury services

At trial however, this issue was not raised

Question 24

When considering the Gayle case, on appeal Gayle challenged the Crown’s use of peremptory challenges on three separate grounds. What were they?

Answer 24

1. The elimination of prospective black jurors eliminated Gayle’s right to a representative jury
2. The jury selection process infringed on his s. 15 equality rights
3. The s. 15 rights of the eliminated jurors were also infringed

Question 25

what is the transformative effect?

Answer 25

A racially diverse group can confront and stem racial biases and prejudices more effectively than a homogenous one

Question 26

When considering the case R v. Kokopenace on reserve residents accounted for more than 1/3 of the population in Kenora, yet what % of the jury did they make up?

Answer 26

not even 5%

Question 27

The Juries Act of Ontario specifies the process for creating a jury. What three specifications does it list?

Answer 27

It states that provincial officials are responsible for creating an annual jury roll for each county/district in Ontario To qualify for juror, one must be a Canadian citizen, eighteen, and never been convicted of a serious (indictable) criminal offense Individuals are then selected from the jury roll and served jury notices and summoned to the court to create jury panels

Question 28

what % of people held in provincial and federal custody are Indigenous?

Answer 28

25%

Question 29

what % of the population in Indigenous?

Answer 29

4%

Question 30

what kind of predjedice was at issue in the case R v. Williams?

Answer 30

generic (stereotypical attitudes about Indigenous defendants)