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Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury |

By: Amy Matychuk

PDF Version: Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

Case Commented On: R v New child, 2019 ABCA 123 (CanLII)

In R v New child, Justices Frans Slatter, Ritu Khullar, and Barbara Lea Veldhuis of the Alberta Courtroom of Attraction (ABCA) dismissed an argument from the appellant (the accused) that “the array from which his jury was selected was constitutionally flawed because it disproportionately excluded [A]boriginal citizens” (New child ABCA, at para 1). It additionally dismissed his argument that inadmissible skilled evidence was allowed at the trial. Nevertheless, this publish will give attention to the right to a representative jury as defined in the Supreme Courtroom’s determination in R v Kokopenace, 2015 SCC 28 (CanLII), R v Newborn’s software of Kokopenace, and the applicable scope of the state’s obligations underneath Charter s 11.


The accused in R v New child was charged with homicide. He conceded manslaughter, however argued the Crown could not show the intent mandatory for homicide because of his limited intellectual capacity. He had an IQ of 59, delicate to average cognitive impairment, and had been measured as falling under the first percentile of the population (Newborn ABCA, at para 2). Earlier than trial, he unsuccessfully challenged the jury choice course of on the foundation that none of the members of the jury array (the pool of individuals from which the trial jury was chosen) appeared to be Indigenous. He argued that because persons convicted of crimes can’t serve on juries (per s 4(h) of the Jury Act, RSA 2000, c J-3) and Indigenous individuals are disproportionately more possible to have felony data than Canadians usually, s four(h) of the Jury Act violated his proper to a consultant jury beneath ss 7, 11(d) and 11(f) of the Charter. Justice Burrows for the Alberta Courtroom of Queen’s Bench (ABQB) dismissed Mr. New child’s Charter software in R v New child, 2016 ABQB 13 (CanLII)(Newborn ABQB). Erin Sheley discussed that decision in The Rigidity Between Process and End result in Creating Representative Juries.

The Right to a Representative Jury as Outlined in Kokopenace

In R v Kokopenace, the Supreme Courtroom of Canada (SCC) rigorously circumscribed the right to a representative jury protected by s 11(f) of the Charter. Kokopenace concerned a jury selection concern arising from a trial of an Indigenous man in Kenora, Ontario. Due to issues the authorities of Ontario encountered obtaining info from individuals dwelling in remote communities, Aboriginal on-reserve residents “formed 4.1 percent of the jury roll while representing about 30 percent of the adult population of the judicial district” (Cromwell J, dissenting, in Kokopenace at para 305). Unsurprisingly, given these numbers, solely eight of the 175 individuals summoned to the jury panel for Mr. Kokopenace’s trial have been on-reserve residents. Of those, 4 have been excused and two didn’t reply to the summons (at para 305). The Ontario Courtroom of Attraction (ONCA) dominated that Mr. Kokopenace’s rights had been violated and ordered a new trial. The majority of the SCC overturned the ONCA and restored Mr. Kokopenace’s conviction for manslaughter, holding, “Mr. Kokopenace received a fair trial by an impartial and representative jury” (at para 129).

Justice Michael Moldaver for the majority in Kokopenace held not only that there isn’t a right to a jury roll of a specific composition, however additional, “there is no right to proportionate representation” on juries (Kokopenace at paras 39, 66). As Erin Sheley discusses in her publish, the state is required underneath Kokopenace to meet certain procedural obligations related to the compilation of the jury roll and the delivery of jury notices, but beyond that, it is “not required to address systemic problems contributing to the reluctance of Aboriginal on-reserve residents to participate in the jury process” or “the distressing history of estrangement and discrimination suffered by Aboriginal peoples” (Moldaver J in Kokopenace at paras 95, 64). All that is required beneath s 11(f) of the Charter is a “fair opportunity for a broad cross-section of society to participate” and “reasonable efforts to include Aboriginal on-reserve residents in the jury process” (Moldaver J in Kokopenace at paras 2, 125). The state can’t intentionally exclude specific groups (at para 66), however it also has no specific obligation to deliberately embrace them.

Justice Andromache Karakatsanis, concurring, criticized this “reasonable efforts” strategy. She commented, “A Charter breach is not defined by the state’s efforts, but by the adequacy of the process actually used” (at para 134), noting that the question is black and white: “the process used is either constitutionally acceptable or it is not” (at para 160). Nevertheless, Justice Karakatsanis concluded that the state had met its obligations in Mr. Kokopenace’s state of affairs and that remedying systemic elements leading to a lack of Aboriginal participation in the jury course of was past the scope of s 11 of the Charter.

Justices Thomas Cromwell and Beverley McLachlin, nevertheless, felt that the state’s constitutional obligations beneath s 11 prolong much additional than the “fair opportunity” and “reasonable efforts” standards articulated by Justice Moldaver. Justice Cromwell wrote for the dissent,

[T]he proper to a representative jury roll is the proper of the accused, not of those who ought to have been included on the roll. Furthermore, this “fair opportunity” formulation additionally takes the focus off the state’s constitutional obligation to present a representative jury. We don’t converse of a “fair opportunity” to have a truthful trial or issuing an “invitation” to be free of unreasonable searches and seizures. Respectfully, it seems to me to be inconsistent with primary rules of Charter rights to converse in terms of a “fair opportunity” to have a consultant jury. I do not see any “fair opportunity” normal in ss. 11(d) or 11(f) of the Charter. (at para 249)

Additional, he commented:

The “reasonable efforts” commonplace makes it straightforward to lose sight of the undeniable fact that it’s the state’s duty to comply with the Charter and that it is the right of an accused individual to be tried by a jury chosen in accordance with the Charter. It’s the state’s constitutional obligation not to breach individuals’s Charter rights, not simply to make “reasonable efforts” not to achieve this. Moreover, the “reasonable efforts” normal glosses over the question of whether the limitation of the proper is the end result of state action. (at para 250)

Justice Cromwell went on to articulate the right to a representative jury in phrases of whether or not a non-representative jury roll has a causal connection to state motion: “in order to determine whether the state has complied with its Charter obligations, the state conduct must be assessed in light of its contribution to the problem and its capacity to address it” (at para 255). He rejected the concept that the state’s only duty is to keep away from improper exclusion of Indigenous individuals from juries fairly than actively work towards their inclusion (at paras 257-258). Most importantly, he wrote, “Having played a substantial role in creating [systemic problems contributing to the estrangement of Aboriginal peoples from the criminal justice system], the state should have some obligation to address them” (at para 281). For larger clarity, he defined “systemic problems” as “a euphemism for, among other things, racial discrimination and Aboriginal alienation from the justice system” (at para 282). He also famous, “To ignore racial discrimination against Aboriginal people in the context of assembling a jury roll would be in marked contrast to the approach that this Court has taken to racial discrimination against Aboriginal people in relation to sentencing Aboriginal offenders” in the Gladue context (at para 284).

Justice Cromwell concluded,

[I]n my respectful view, the assembly of representative jury rolls — a constitutional obligation — is an applicable forum to tackle racial discrimination towards Aboriginal individuals and Aboriginal alienation from the justice system. While there are, as in the case of Aboriginal overrepresentation in correctional institutions, many deeply seated causes which contribute to Aboriginal under-representation on jury rolls, the Charter supplies a basis for action, not an excuse for turning a blind eye. (at para 285)

Software of Kokopenace in R v New child

The ABCA’s judgment in R v Newborn, like Kokopenace, includes a discussion of the scope of the state’s Charter obligations relating to jury illustration. The ABCA focuses on the idea of deliberateness—whether or not the state meant or didn’t intend to exclude a specific group from jury eligibility by enacting the impugned legislation (which, in Newborn, was the section of the Jury Act excluding those with felony data). Respectfully, this strategy, whereas aligning with the majority in Kokopenace and subsequently not legally in error, is unjust as a result of it focuses on the intent of the Legislature somewhat than the impact of the impugned legislation. As Justice Cromwell articulated in his dissent, the incontrovertible position the Canadian state plays in marginalizing Indigenous peoples ought to give rise to an obligation to take constructive steps to remedy that marginalization wherever attainable. “Fair opportunities” and “reasonable efforts” are, at this level, wildly insufficient.

The ABCA characterized Mr. New child’s argument as follows: “he argues that [s 4(h) of the Jury Act] is unconstitutional because a disproportionate number of [A]boriginal citizens have criminal records, and therefore the section disproportionately excludes potential [A]boriginal jurors” (at para 7). It rejected this argument largely on the basis that the disproportionate exclusion of Indigenous jurors have to be weighed towards “the theoretical prospect of persons with serious criminal records sitting on juries” (at para 14). In essence, the ABCA found that extending jury eligibility to these with felony data is just not guaranteed to remedy the drawback of Indigenous underrepresentation and presents administrative issues (those issues, which principally contain potential jurors unclear on the substance of their felony data, are mentioned at para 20). The Legislature solved those administrative problems by enacting a blanket exclusion towards all people with legal data, and Mr. Newborn did not reveal that the exclusion violates a constitutional right.

The majority of the SCC in Kokopenace and the ABCA in Newborn use considerably comparable reasoning here. In Kokopenace, the state encountered difficulties sustaining accurate data of those that reside on remote reserves, making certain their mail is delivered, and inspiring their participation in the justice system. Given these difficulties, its efforts to ensure representative juries have been adequate. In New child, the ABCA contemplated the difficulties that may arise if the state have been required to embrace those with felony data in an effort to increase Indigenous jury representation. Given these difficulties, the state’s blanket exclusion of those with legal data didn’t breach any constitutional rights. In each selections, the courts declined to impose a constructive obligation on the state to ensure Indigenous illustration on juries. In each selections, the courts targeted not on whether state action led to an unjust or racist outcome, however on whether or not a state actor meant an unjust or racist outcome.

Nevertheless, as many students have acknowledged, including those at the UCalgary School of Regulation’s own Alberta Civil Liberties Analysis Centre, racism takes each individual and systemic varieties. Whereas particular person racism typically includes a component of intent, systemic racism “includes the policies and practices entrenched in established institutions, which result in the exclusion or promotion of designated groups.” No intent is important for systemic racism: it “derives from individuals carrying out the dictates of others who are prejudiced or of a prejudiced society.” Each the majority in Kokopenace and the ABCA in New child failed to appropriately recognize that the systemic elements giving rise to Indigenous underrepresentation on juries (racial discrimination and Aboriginal alienation from the justice system) are the outcome of a prejudiced society moderately than particular person ailing will. Accordingly, proof of legislative intent to discriminate should not be required when assessing the risk that legislation has a discriminatory impact. As Justice Cromwell noted in his dissent in Kokopenace, the Charter shouldn’t operate as an excuse to continue turning a blind eye to racial injustice.

A more simply analysis in New child would have concerned a broadening of the state’s potential obligations beneath s 11 of the Charter, as articulated in Justice Cromwell’s dissent. To the extent that state conduct contributed to the drawback of Indigenous jury underrepresentation, the state must be required to take constructive motion to remedy that underrepresentation. The ABCA might have been right in concluding that none of the cures Mr. Newborn sought introduced a sensible approach to remedy the injustice he identified. Nevertheless, it’s inappropriate for courts to proceed to require proof of dangerous intent by the legislature, and for courts and legislatures to gesture toward administrative difficulties as a means of avoiding their obligations to Indigenous peoples.

This submit could also be cited as: Amy Matychuk, “Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury” (Might 3, 2019), online: ABlawg, http://ablawg.ca/wp-content/uploads/2019/05/Blog_AM_Newborn_May2.docx.pdf

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