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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON April 10, 2002

The debate over jury representation

While the practice of being "judged" by one's peers or "equals" arose in England in post-Norman times and has evolved into one of the most important institutions of modern government, the debate over jury representation is still very much alive. Although there is no dispute that impartiality and competence are essential qualities of a jury, there is little agreement on what minimum standards should apply regarding jury representation. Who should a jury represent?

In varying degrees, every judicial district is made up of hundreds of different groups based on a multitude of variables such as gender, race, class, religion occupation, income, profession and education. Must every group be represented on every jury in order to obtain a just verdict? If not, which groups, if any, should be chosen and on what grounds? Some experts advocate proportional representation of visible minorities on jury trial panels while others suggest that jury panels must always reflect the racial or cultural origins of the accused. Canadian courts have consistently held that there is no right to a trial panel composed based on the particular characteristics of race, age, class etc., of the accused, victim or place of trial.

Importance of random selection process

This is not to say that the Canadian jury system makes no effort to ensure that juries represent a fair cross section of the judicial district where the crime was committed and consequently where the accused must stand trial. On the contrary, by tying in the random selection of jury panels to provincial election lists, the potential for widespread representation is at least initially present .As I mentioned in a previous column, insofar as the jury panel is concerned, the random selection process is invoked not once but on two separate occasions.

The third random selection is provided for by the Criminal Code and takes place in open court when the name of each candidate juror on the panel is written on a card and placed in a box .The clerk of the court then draws at random one card at a time and calls out the name of the juror on the card. "Emergency " selection

One final "emergency" random selection is available when a jury panel is exhausted and a full jury has not been selected. The judge can order the sheriff to go out on the streets and summon by word of mouth as many persons as he directs for the purpose of providing a full jury.

Does the random selection process guarantee that the accused's jurors will represent a cross section of the judicial district? No, and not only because there are only 12 jurors. For example, juries rarely reflect the actual community where many of the accused reside especially when they are crime ridden or impoverished or both. The same is true each time an accused resides outside of the judicial district where a crime was committed.

Why individuals and occupations are exempted

The reasons why governments must determine the criteria for qualification and exemption for jury service go far beyond just setting down minimum standards for jury competence. For various reasons certain individuals and occupations must be excluded from any representation on a jury. In some cases it has to do with preventing individuals from exercising undue influence on other jurors due to their occupations, position or knowledge, such as with judges and lawyers. Others, including police officers, convicted criminals or other accused awaiting trial, are excluded because they would appear to have an occupational bias towards the guilt or innocence of an accused. Finally there are those who are excluded because they are employed in various essential services such as doctors, coroners and firefighters.

Large segment of the community is excluded

The Quebec Jurors Act is no exception .Not surprisingly, it eliminates an entire segment of the community by disqualifying all those who are less than 18, who are not Canadian citizens and who are not included on the permanent electoral list. The age factor is based on the legal age of majority. The citizenship requirement is grounded on the principle that Canadians feel more of a commitment to their community and are more familiar with the required standards of conduct.

The Quebec Elections Act indirectly removes another slice by requiring that every elector must be domiciled in Quebec for at least six months, not under curatorship and not deprived of his or her elections rights, such as penitentiary inmates.

By declaring a whole series of occupations exempt from jury service it necessarily follows that community representation on any jury is reduced accordingly. No one can argue with the logic of exempting persons afflicted with a mental disability or mental illness and persons who are not sufficiently fluent in French or English.

Another segment of any judicial district is exempt from jury service but only if their members submit a request. Included in this category are public servants involved in the administration of justice and their spouses, persons 65 years old or over, persons whose spouse is 65 years old or over, people suffering from a physical or sensorial handicap or whose health or domestic obligations are incompatible with serving on a jury. By the time all of the jury eligibility conditions are factored in together with the number of individuals and categories that are exempted, we are left with jury panels that can no longer mirror every community group.

Impact of peremptory challenges

However, even if jury panels could be assembled so as to represent every major segment of society, no jury could match the same broad profile. One reason is that both attorneys are entitled to exercise up to 20 peremptory challenges, depending on the gravity of the criminal charges. They are designed to allow both attorneys to exclude jury candidates without ever having to give a reason. Depending on how the challenges are applied, the attorneys have the power to reduce, modify or practically eliminate any resemblance of community representation on their jury. Furthermore, there is no way of even knowing whether a peremptory challenge is being used to exclude persons on the basis of their race, color, descent or national or ethnic origin So where does this leave our jury system? With the recognition that even though its greatest strength is that ordinary citizens are as good if not better fact-finders than judges, community representation on our juries is indeed limited.