ONTARIO’S WHITER SHADE OF JUSTICE
To be tried by a jury of peers is one of the pillars of our justice system. A two-year Toronto Star/Ryerson School of Journalism investigation reveals flaws in that process — a broken approach to jury selection that is skewed toward property owners and fa
A-two-year Toronto Star/Ryerson School of Journalism investigation documenting the racial makeup of jurors in 52 criminal trials since 2016 in Toronto and Brampton reveals flaws in the jury selection process that skews towards property owners, fails to reflect the GTA’s growing diversity and excludes potentially millions of Ontarians from serving their civic duty.
The jury selection list is based on the province’s property assessment rolls, excluding many renters, boarders, students, seniors, spouses who are not named on property titles, transient and low-income people, Indigenous people and those unable to afford property in a red-hot real estate market.
What remains is a prospective juror list disproportionately composed of white Ontarians able to afford the significant costs of serving in a system that often pays jurors less than minimum wage and does not cover expenses such as travel, parking, meals and child care. It is a particular hardship for hourly workers — Ontario has no law compelling companies to compensate employees for jury duty — the self-employed or those in temporary or contract jobs.
Seventy-one per cent of the 632 documented jurors were white in cities where more than half the population identifies as non-white (in Toronto, 51.4 per cent of residents identify as visible minorities; in Brampton, the figure is 73.3 per cent).
People who identify as Indigenous are not counted as visible minorities by Statistics Canada.
“There’s obviously a problem here. Trial by jury is a cold comfort when you’re told that you will be tried by a jury of your peers and no one on that jury looks like a peer.” MICHAEL J. SPRATT OTTAWA DEFENCE LAWYER “Justice has to appear to be fair and equal. If persons who are in the system don’t see themselves reflected in the system they aren’t going to have much faith in the system.” STEVEN HINKSON TORONTO LAWYER
The finding of innocence or guilt by a jury of our peers is a pillar of Canada’s justice system that has been shaken by the recent verdict — delivered by an all-white jury — acquitting white Saskatchewan farmer George Stanley in the second-degree murder of a slain Cree man named Colten Boushie.
Following Stanley’s acquittal, Prime Minister Justin Trudeau said, “as a country we can and must do better,” and justice minister Jody Wilson-Raybould said the government is looking at peremptory challenges, which are used by the defence and prosecution to reject potential jurors without stating a reason. Reports say Stanley’s defence rejected five potential jurors who appeared to be Indigenous.
The Star/Ryerson investigation reporters did not watch jury selection in all 52 trials. The data in this story is based on sitting juries after the selection process, including peremptory challenges.
Beginning in February 2016, reporters attended GTA trials to document juries’ racial composition.
Because the Ministry of the Attorney General does not keep this data, and observers are denied contact with individual jurors, reporters decided upon a visual survey as the most complete possible method to gauge the racial makeup of juries.
Reporters noted jurors’ race based on their physical appearance, using the same categories as police: white, Black, Indigenous and brown, which includes South Asian people. Reporters added the categories Asian and other, which included Latin American, Middle Eastern or mixedrace jurors.
Of the juries documented, only three were composed of 50 per cent visible minority and 50 per cent white jurors. In most cases, white jurors represented the majority with as many as 11 of the 12 positions.
Of the 632 jurors surveyed by reporters, 451 (71 per cent) were white; 45 (7 per cent) were Black; 42 (7 per cent) were brown; 89 (14 per cent) were Asian; and 5 (less than 1 per cent) were listed as other. Reporters were unable to identify a single Indigenous juror.
Across the aisle, the visible ethnicity of the accused presented a very different picture: Of the 59 documented accused (some trials had more than one), 27 (46 per cent) were Black; 13 (22 per cent) were white; 11 (19 per cent) were brown; five (8 per cent) were Asian and three were counted as other.
Over the past decade, as the province’s cities grew increasingly diverse, the Ministry of the Attorney General has fielded many complaints and concerns about the Ontario jury system.
In 2013, Former Supreme Court judge Frank Iacobucci, who authored a report on the lack of Indigenous representation on jury rolls on First Nations reserves, recommended that the Ministry of the Attorney General “undertake a prompt and urgent review” of “using the OHIP database.”
That database, which better reflects Ontario’s population, is still not being used.
“There’s obviously a problem here,” says Ottawa defence lawyer Michael J. Spratt. “Trial by jury is a cold comfort when you’re told that you will be tried by a jury of your peers and no one on that jury looks like a peer. We’re unable to drag our courts into the 21st century and perhaps that explains why our jury system is still stuck in the 19th century.”
The first step in jury selection begins with a notice to Canadian citizens 18 years old and over from a database that generates property ownership and enumeration lists. It is managed by the Municipal Property Assessment Corporation (MPAC) and contains 9.5 million names of both property owners and non-owners.
The database is incomplete. But it has been used as the source for the jury pool for decades.
In a written statement, the Ministry of the Attorney General acknowledged the database used for jury selection, “does not capture everyone in the province” and that it is “committed to improving the provincial jury process.”
MPAC officials also concede shortcomings in the database including large groups of Ontarians who don’t own property.
Creating lists of prospective jurors is “not our core business,” said Syd Howes, manager of information services at MPAC. “This is a property assessment database, this is not a people database.”
Among the blind spots: “We don’t have very many resident students in our database,” says Howes. “And you have fairly large populations in nursing homes and retirement homes and again, we wouldn’t have a lot of those names in our system.”
MPAC doesn’t attempt to assess properties on First Nations reserves, since they are not subject to taxation. The Ministry of the Attorney General says those living on First Nations are entered into the pool from “other lists, like Band lists.”
It is unclear how those who don’t own property, such as renters, are captured. MPAC has mailed occupancy questionnaires to residential properties asking for information for non-owners but only about 20 per cent of the forms are returned, says Howes.
“We have no means of identifying when people move. People aren’t required to tell us . . . We don’t have access to good tenant information.”
The existing data on non-owners can be plagued with errors. After the 2014 election, MPAC reported 1.2 million revisions to the voter’s list, including changes to 20 per cent of its tenant list, according to a 2015 review obtained by the Star.
The faces that do make it into jury boxes across Toronto and Brampton often have one thing in common: they’re white.
In February 2016, reporters recorded a jury of 11 white people and one brown man hearing the case of a 25-year-old Black male. In March 2016, 10 white jurors, one brown and one Asian heard the case of a 40year-old brown female. In January 2018, 10 white people and two Asians heard evidence in the trial of a 30year-old Black male.
Harpreet Saini, a criminal lawyer who has been practising in the GTA for more than a decade, is not surprised.
“There is still a disparity between the communities that we serve and the different types of people who are represented in the criminal justice system.”
For Saini, a jury of peers is one that reflects “the place where you live.” That does not mean a jury must be “exactly like you,” but reflects “the diverse interest of your community.”
Anthony Morgan, a Toronto lawyer with Falconers LLP, says it’s time for the government to name the problem and take action.
“We’re never going to get to a place where we can fix this until we outwardly say, yes, there is an underrepresentation of Black people on juries but there is a dramatic overrepresentation of Black folks who stand charged of crimes,” he says.
In a Toronto jury selection pool of 119 people on Wednesday, reporters counted only three Black prospective jurors. The accused is a Black man in his 20s.
In 2016, Toronto lawyer Steven Hinkson represented a 36-year-old Black man charged with drug and weapons offences. Eleven of the 12 jurors were white.
His client had a question: How come there aren’t any Black people on the jury?
“I tried to explain to him, that’s all we had to choose from,” says Hinkson. “Justice has to appear to be fair and equal. If persons who are in the system don’t see themselves reflected in the system, they aren’t going to have much faith in the system.”
Hinkson, who rarely sees more than one or two non-whites on a jury, says that jurors, who are not “culturally sensitive to a racialized person’s experience,” are likely to look upon defence witnesses with “undue scrutiny.”
Jurors unfamiliar with a dialect or accent, for example, “may not look upon the testimony as being equal to somebody who doesn’t have an accent or have a negative perception of them as a consequence.”
The trial of Hinkson’s Black client ended in a hung jury.
Hinkson suspects the majority of the jury was aligned against his client with the exception of the lone nonwhite member who he says was of East or West Indian descent.
“I think the person of colour was the one that saved us. I think that’s because he could relate more to what the defence was saying. The jury was coming back saying there was one member of the jury that was problematic. And you can see dynamics, the body language. It’s clear to my observation that he was the problem in this jury because his views were not what they wanted.”
In the second trial, his client entered into a deal to reduce the charges in exchange for a guilty plea on lesser charges.
Vanessa MacDonnell, a University of Ottawa law professor, says lawyers have a “professional responsibility, and I would say a constitutional obligation, to ensure that they don’t discriminate against people as part of jury selection process.”
She supports a switch to the more comprehensive OHIP database which could be done “without too much difficulty because these are lists (the government) compiled anyway.”
Former Ontario chief justice Patrick Lesage, retired after serving for nearly three decades on the bench, agrees property ownership is an inappropriate starting point for jury selection.
“If that is the case, it should not be the case,” he said. “It should be (representative of ) a cross section of the community at large.”
Provincial health cards, he says, “may be the most universal list that exists. I can’t think of anything that each of us is more certain to have than a health card.”
Ottawa defence lawyer Michael Spratt sees the same jury faces all the time — white, middle class and older.
“I don’t care who makes (the juror list) as long as it is complete and as long as it is a full and accurate representation of the community, and that all individuals — whether you are poor, rich, white, Black, homeless or a homeowner — have an equal probability of forming that list,” he says.
Toronto lawyer Brian Eberdt, who is with Lockyer Campbell Posner, predicts 90 per cent of those involved with the criminal justice system would agree jury selection is a problem.
“I think it’s something that all members of the justice system — from defence, Crown, the court, the judges, and the ministry — I think it’s incumbent on all of us to make sure that the impact of race in distorting a jury’s deliberations is kept to a minimum . . . We’ve got a long way to go.”
Eberdt points to a jury selection in Brampton last year for a trial involving allegations against his Black client.
“In the entire room of several hundred jurors, I think I saw maybe half a dozen Black people. I know for sure that’s not entirely representative of the cultural mix of Brampton. There’s an unfairness to my client in that.”
“I think it’s incumbent on all of us to make sure that the impact of race in distorting a jury’s deliberations is kept to a minimum. We’ve got a long way to go.” BRIAN EBERDT TORONTO LAWYER