Right to a Representative Jury: Difference between revisions

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[[fr:Droit_à_un_jury_représentatif]]
{{Currency2|January|2017}}
{{HeaderJurySelection}}{{LevelZero}}
{{HeaderJurySelection}}{{LevelZero}}
==General Principles==
==General Principles==
{{seealso|Jury Selection}}
{{seealso|Jury Selection}}
The right to a "representative jury" is found within s. 11(d) [''right to fair and public trial''] and 11(f) [''right to trial by jury''] of the Charter.<ref>
The right to a "representative jury" is found within s. 11(d) [''right to fair and public trial''] and 11(f) [''right to trial by jury''] of the Charter.<ref>
''R v Kokopenace'', [2015] 2 SCR 398, [http://canlii.ca/t/gj1qq 2015 SCC 28] (CanLII){{perSCC|Moldaver J}}{{at|47}}<Br>
{{CanLIIRP|Kokopenace|gj1qq|2015 SCC 28 (CanLII)|[2015] 2 SCR 398}}{{perSCC-H|Moldaver J}}{{atL|gj1qq|47}}<Br>
</ref>
</ref>


"Representativeness" relates to the "process used to compile the jury roll" (ie. the list of persons from whom the jury is selected).<ref>
"Representativeness" relates to the "process used to compile the jury roll" (ie. the list of persons from whom the jury is selected).<ref>
{{ibid1|Kokopenace}}{{at|40}}<Br>
{{ibid1|Kokopenace}}{{atL|gj1qq|40}}<Br>
</ref>
</ref>


Juries are to consist of "a representative cross-section of Canadian society". <ref>
Juries are to consist of "a representative cross-section of Canadian society."<ref>
''R v Ironeagle'', [http://canlii.ca/t/fshp8 2012 SKQB 324] (CanLII){{perSKQB|Gerein J}}{{at|5}}<Br>
{{CanLIIRP|Ironeagle|fshp8|2012 SKQB 324 (CanLII)|403 Sask R 90}}{{perSKQB|Gerein J}}{{atL|fshp8|5}}<Br>
{{supra1|Kokopenace}}{{at|39}}<Br>
{{supra1|Kokopenace}}{{atL|gj1qq|39}}<Br>
''R v Sherratt'', [http://canlii.ca/t/1fslt 1991 CanLII 86] (SCC), [1991] 1 SCR 509{{perSCC|L'Heureux‑Dubé J}}, at p. 524<Br>
{{CanLIIRP|Sherratt|1fslt|1991 CanLII 86 (SCC)|[1991] 1 SCR 509}}{{perSCC|L'Heureux‑Dubé J}}{{atp|524}}<Br>
</ref>
</ref>
The must be "honestly and fairly chosen".<ref>
The must be "honestly and fairly chosen."<ref>
{{supra1|Kokopenace}}{{at|39}}<Br>
{{supra1|Kokopenace}}{{atL|gj1qq|39}}<Br>
{{supra1|Sherratt}} at p. 524<Br>
{{supra1|Sherratt}}{{atp|524}}<Br>
</ref>
</ref>
As such, an accused has no right to a jury roll of a "particular composition", including particular number of members of a certain race or ethnicity.<ref>
As such, an accused has no right to a jury roll of a "particular composition", including particular number of members of a certain race or ethnicity.<ref>
{{supra1|Kokopenace}}{{at|39}}<br>
{{supra1|Kokopenace}}{{atL|gj1qq|39}}<br>
''R v Church of Scientology'' (1997), [http://canlii.ca/t/6hxv 1997 CanLII 16226] (ON CA), 33 O.R. (3d) 65 (C.A.){{perONCA|Rosenberg JA}}, at pp. 120-21 ("[w]hat is required is a process that provides a platform for the selection of a competent and impartial petit jury, ensures confidence in the jury’s verdict, and contributes to the community’s support for the criminal justice system")<br>
{{CanLIIRP|Church of Scientology|6hxv|1997 CanLII 16226 (ON CA)|33 OR (3d) 65}}{{perONCA|Rosenberg JA}}{{atps|120-21}} ("[w]hat is required is a process that provides a platform for the selection of a competent and impartial petit jury, ensures confidence in the jury’s verdict, and contributes to the community’s support for the criminal justice system")<br>
''R v Laws'' (1998), [http://canlii.ca/t/6gb2 1998 CanLII 7157] (ON CA), 41 O.R. (3d) 499 (C.A.){{TheCourtONCA}}, at pp. 517-18<br>
{{CanLIIRP|Laws|6gb2|1998 CanLII 7157 (ON CA)|41 OR (3d) 499}}{{TheCourtONCA}}{{atps|517-18}}<br>
''R v Kent'', [http://canlii.ca/t/gc6gc 1986 CanLII 4745] (MB CA), (1986), 40 Man. R. (2d) 160, (1986) 27 CCC (3d) 405 (Man. C.A.){{perMBCA|Twaddle JA and Matas JA}} at p. 421 ("An accused has no right to demand that members of his race be included on the jury. To so interpret the Charter would run counter to Canada's multicultural and multiracial heritage and the right of every person to serve as a juror")<br>
{{CanLIIRP|Kent|gc6gc|1986 CanLII 4745 (MB CA)|27 CCC (3d) 405}}{{perMBCA|Twaddle JA and Matas JA}}{{atp|421}} ("An accused has no right to demand that members of his race be included on the jury. To so interpret the Charter would run counter to Canada's multicultural and multiracial heritage and the right of every person to serve as a juror")<br>
''R v Bradley (No. 2)'' (1973), 23 C.R.N.S. 39 (ONSC){{NOCANLII}}, at pp. 40-41<Br>
{{CanLIIR-N|Bradley (No. 2)| (1973), 23 CRNS 39 (ON SC)}}{{atps|40-41}}<br>
{{supra1|Ironeagle}}{{at|5}}<br><br>
{{supra1|Ironeagle}}{{atL|fshp8|5}}<br><br>
</ref>
</ref>


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==Selection Process==
==Selection Process==
The jury selection process relies on the randomness of selection to achieve a fair sampling of jurors.<ref>
The jury selection process relies on the randomness of selection to achieve a fair sampling of jurors.<ref>
''R v Kokopenace'', [2015] 2 SCR 398, [http://canlii.ca/t/gj1qq 2015 SCC 28] (CanLII){{perSCC|Moldaver J}}{{at|88}}<br>
{{CanLIIRP|Kokopenace|gj1qq|2015 SCC 28 (CanLII)|[2015] 2 SCR 398}}{{perSCC-H|Moldaver J}}{{atL|gj1qq|88}}<br>
''R v Rice'', [http://canlii.ca/t/gts5j 2016 QCCS 4507] (CanLII){{perQCCS|Brunton J}}{{at|13}}<br>
{{CanLIIRx|Rice|gts5j|2016 QCCS 4507 (CanLII)}}{{perQCCS|Brunton J}}{{atL|gts5j|13}}<br>
</ref>
</ref>
Additional efforts to change the make-up of the jury may be considered inappropriate.<ref>
Additional efforts to change the make-up of the jury may be considered inappropriate.<ref>
{{ibid1|Rice}}{{at|13}}<br>
{{ibid1|Rice}}{{atL|gts5j|13}}<br>
</ref>
</ref>


Representativeness is an entitlement that is essential at the "polling" and "panel" level of jury selection, but not so at the final stage of the final selection of the members of the jury.<ref>
Representativeness is an entitlement that is essential at the "polling" and "panel" level of jury selection, but not so at the final stage of the final selection of the members of the jury.<ref>
''R v Pan'', [http://canlii.ca/t/gfm83 2014 ONSC 1393] (CanLII){{perONSC|Boswell J}} at para 34 to 37<Br>
{{CanLIIRx|Pan|gfm83|2014 ONSC 1393 (CanLII)}}{{perONSC|Boswell J}}{{atsL|gfm83|34| to 37}}<Br>
</ref>
</ref>


A representative jury is important as it "contributes to a sense of confidence that the jury will be fair and impartial".<ref>
A representative jury is important as it "contributes to a sense of confidence that the jury will be fair and impartial."<ref>
{{supra1|Pan}}{{at|31}}<Br>
{{supra1|Pan}}{{atL|gfm83|31}}<Br>
{{supra1|Kokopenace}} (ONCA) at para 26  
{{supra1|Kokopenace}} (ONCA){{atL|gj1qq|26}}
</ref>
</ref>
A representative jury has the effect of bringing a diversity of backgrounds and experiences, in addition to cultural sensitivities.<ref>
A representative jury has the effect of bringing a diversity of backgrounds and experiences, in addition to cultural sensitivities.<ref>
{{supra1|Pan}}{{at|31}}<br>
{{supra1|Pan}}{{atL|gfm83|31}}<br>
''R v Church of Scientology of Toronto'',  [http://canlii.ca/t/6hxv 1997 CanLII 16226] (ON CA), [1997] OJ No 1548{{perONCA|Rosenberg JA}} at para. 151<br>
{{CanLIIRP|Church of Scientology of Toronto|6hxv|1997 CanLII 16226 (ON CA)|[1997] OJ No 1548}}{{perONCA|Rosenberg JA}}{{atL|6hxv|151}}<br>
</ref>
</ref>
   
   
Certain characteristics such as the type of employer the person has are immaterial and have no bearing on the right to representativeness.<ref>
Certain characteristics such as the type of employer the person has are immaterial and have no bearing on the right to representativeness.<ref>
{{supra1|Pan}}{{at|54}}<Br>
{{supra1|Pan}}{{atL|gfm83|54}}<Br>
</ref>
</ref>


A representative jury roll is achieved by ensuring that:
A representative jury roll is achieved by ensuring that:
# the "draw[s] from a broad cross-section of society" in order to capture as many eligible persons as possible.<ref>
# the "draw[s] from a broad cross-section of society" in order to capture as many eligible persons as possible.<ref>
{{supra1|Kokopenace}}{{at|41}}<Br>
{{supra1|Kokopenace}}{{atL|gj1qq|41}}<Br>
</ref>
</ref>
# the jurors are selected from the role in a random fashion.<ref>
# the jurors are selected from the role in a random fashion.<ref>
{{supra1|Kokopenace}}{{at|42}}<br>
{{supra1|Kokopenace}}{{atL|gj1qq|42}}<br>
</ref>
</ref>
# the delivery of notices to those who have been randomly selected to attend court to be considered as someone who will sit on the jury.<ref>
# the delivery of notices to those who have been randomly selected to attend court to be considered as someone who will sit on the jury.<ref>
{{supra1|Kokopenace}}{{at|45}}<br>
{{supra1|Kokopenace}}{{atL|gj1qq|45}}<br>
</ref>
</ref>


Latest revision as of 14:40, 14 July 2024

This page was last substantively updated or reviewed January 2017. (Rev. # 95538)

General Principles

See also: Jury Selection

The right to a "representative jury" is found within s. 11(d) [right to fair and public trial] and 11(f) [right to trial by jury] of the Charter.[1]

"Representativeness" relates to the "process used to compile the jury roll" (ie. the list of persons from whom the jury is selected).[2]

Juries are to consist of "a representative cross-section of Canadian society."[3] The must be "honestly and fairly chosen."[4] As such, an accused has no right to a jury roll of a "particular composition", including particular number of members of a certain race or ethnicity.[5]

  1. ↑ R v Kokopenace, 2015 SCC 28 (CanLII), [2015] 2 SCR 398, per Moldaver J, at para 47
  2. ↑ Kokopenace, ibid., at para 40
  3. ↑ R v Ironeagle, 2012 SKQB 324 (CanLII), 403 Sask R 90, per Gerein J, at para 5
    Kokopenace, supra, at para 39
    R v Sherratt, 1991 CanLII 86 (SCC), [1991] 1 SCR 509, per L'Heureux‑Dubé J, at p. 524
  4. ↑ Kokopenace, supra, at para 39
    Sherratt, supra, at p. 524
  5. ↑ Kokopenace, supra, at para 39
    R v Church of Scientology, 1997 CanLII 16226 (ON CA), 33 OR (3d) 65, per Rosenberg JA, at pp. 120-21 ("[w]hat is required is a process that provides a platform for the selection of a competent and impartial petit jury, ensures confidence in the jury’s verdict, and contributes to the community’s support for the criminal justice system")
    R v Laws, 1998 CanLII 7157 (ON CA), 41 OR (3d) 499, per curiam, at pp. 517-18
    R v Kent, 1986 CanLII 4745 (MB CA), 27 CCC (3d) 405, per Twaddle JA and Matas JA, at p. 421 ("An accused has no right to demand that members of his race be included on the jury. To so interpret the Charter would run counter to Canada's multicultural and multiracial heritage and the right of every person to serve as a juror")
    R v Bradley (No. 2) (1973), 23 CRNS 39 (ON SC)(*no CanLII links) , at pp. 40-41
    Ironeagle, supra, at para 5

Selection Process

The jury selection process relies on the randomness of selection to achieve a fair sampling of jurors.[1] Additional efforts to change the make-up of the jury may be considered inappropriate.[2]

Representativeness is an entitlement that is essential at the "polling" and "panel" level of jury selection, but not so at the final stage of the final selection of the members of the jury.[3]

A representative jury is important as it "contributes to a sense of confidence that the jury will be fair and impartial."[4] A representative jury has the effect of bringing a diversity of backgrounds and experiences, in addition to cultural sensitivities.[5]

Certain characteristics such as the type of employer the person has are immaterial and have no bearing on the right to representativeness.[6]

A representative jury roll is achieved by ensuring that:

  1. the "draw[s] from a broad cross-section of society" in order to capture as many eligible persons as possible.[7]
  2. the jurors are selected from the role in a random fashion.[8]
  3. the delivery of notices to those who have been randomly selected to attend court to be considered as someone who will sit on the jury.[9]
  1. ↑ R v Kokopenace, 2015 SCC 28 (CanLII), [2015] 2 SCR 398, per Moldaver J, at para 88
    R v Rice, 2016 QCCS 4507 (CanLII), per Brunton J, at para 13
  2. ↑ Rice, ibid., at para 13
  3. ↑ R v Pan, 2014 ONSC 1393 (CanLII), per Boswell J, at paras 34 to 37
  4. ↑ Pan, supra, at para 31
    Kokopenace, supra (ONCA), at para 26
  5. ↑ Pan, supra, at para 31
    R v Church of Scientology of Toronto, 1997 CanLII 16226 (ON CA), [1997] OJ No 1548, per Rosenberg JA, at para 151
  6. ↑ Pan, supra, at para 54
  7. ↑ Kokopenace, supra, at para 41
  8. ↑ Kokopenace, supra, at para 42
  9. ↑ Kokopenace, supra, at para 45

See Also

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