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Bias on the jury.

"The English jury is not what it is because some lawgiver so decreed but because that is the way it has grown up."

--Lord Devlin, Trial By Jury Hamlyn lecture (1956)


The right to trial by jury is a fundamental principle of the English Common Law, became enshrined in the Criminal Code of Canada in 1892, and is protected by the Charter of Rights and Freedoms. In recent years, questions concerning juries and jury selection have been appealed to the Supreme Court of Canada, leading to decisions changing the Canadian jury system. A major development occurred when restrictions were eased in questioning potential jurors about their personal prejudices. An overview of the evolution of the jury system allows a better understanding of the current legal and social pressures.


Nine centuries ago the jury was born. Justice Blair of the Ontario Court of Appeal discussed its development since that time in R. v. Bryant, 1984, noting "Juries were first used by the Norman kings as inquisitorial bodies to obtain information from the community important to the administration of the kingdom." Over the passing centuries jurors became independent of the state and judiciary and were no longer witnesses. Previously a jury was required to bring in the verdict directed by the judge. As Justice Blair wrote "Once the immunity of juries for judicial acts was established, the only way in which the Crown could exert pressure for favourable verdicts was by controlling the selection of jurors."

Modern Procedure

In modern practice, a pool of potential jurors is selected at random and arrives at the designated courtroom for jury selection. The Crown and defence must choose, or more accurately "stand aside", those prospective jurors they do not want on the basis, for example, of age, gender, ethnicity, or occupation, or on an instinctive personal reaction to that person. There are an equal number of such challenges for the State and the accused. However, before the decision of the Supreme Court of Canada in R. v. Bain, 1992, the Crown prosecutor was allowed to dismiss 48 potential jurors while the accused had only 12 such peremptory challenges. Such an imbalance created an impression the State had an ability to influence the outcome of a trial through the jury selection process.

A different problem arises when bias is suspected, and a lawyer wanted to ask a potential juror particular questions relating to a perceived prejudice to ascertain whether there were grounds for a "challenge for cause" and this was recently the subject of a decision of the Supreme Court of Canada in R. v. Williams, 1998.

Challenge for Cause

The Criminal Code gives an accused the right to challenge a prospective juror on the ground he or she ".... is not indifferent between the Queen and the accused," more commonly referred to as a challenge for cause. The central question is whether a juror may be inclined to decide in a certain way because of his or her personal beliefs rather than on the evidence presented at trial. The right to challenge for cause is not automatic, and an accused must show a reasonable basis for the suggested bias or prejudice either by, for example, sociological evidence, or by "judicial notice". The Williams case brought this problem squarely before the Supreme Court of Canada. In Williams, the accused was aboriginal and &fence counsel wanted to question potential jurors on racial bias, in particular:

* 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

* 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?

The Supreme Court held the questions should have been permitted. The Court noted the approach of the United States varies from that of Canada. In the US, counsel may freely question potential juror about bias and prejudice. The Supreme Court was apparently reluctant to import "lengthy trials of jurors" but did expand on what is permissible in Canada. The Court concluded "Although they acknowledged the existence of widespread bias against aboriginal, both Justice Esson and the British Columbia Court of Appeal held that the evidence did not demonstrate a reasonable possibility that prospective jurors would be partial. In my view, there was ample evidence that this widespread prejudice included elements that could have affected the impartiality of jurors. Racism against aboriginals includes stereotypes that relate to credibility, worthiness and criminal propensity. As the Canadian Bar Association stated in Locking up Natives in Canada: A Report of the Committee of the Canadian Bar Association on Imprisonment and Release (1988): "Put at its baldest, there is an equation of being drunk, Indian and in prison. Like many stereotypes, this one has a dark underside. It reflects a view of native people as uncivilized and without a coherent social or moral order. The stereotype prevents us from seeing native people as equals. There is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system: ... Finally, as Justice Esson noted, tensions between aboriginals and non-aboriginals have increased in recent years as a result of developments in such areas as land claims and fishing rights. These tensions increase the potential of racist jurors siding with the Crown as the perceived representative of the majority's interests."

Williams does not give an automatic right of challenge but does make the process somewhat less cumbersome and has been applied in cases where the accused have been Chinese and black. The obvious question is whether the Williams analysis will be extended to recognition of other problems of perception inherent in a multi-cultural society. The question of language rights appears to have been answered in part by R. v. Beaulac, 1999, where the Supreme Court of Canada held an accused has the right to a judge and jury who speak both official languages of Canada. This is unlikely to be further extended to encompass other languages if the words of Justice Bastarache are heeded: "An accused's own language, ... is either official language to which that person has a sufficient connection. It does not have to be the dominant language. If the accused has sufficient knowledge of an official language to instruct counsel, he or she will be able to assert that that language is his or her language, regardless of his or her ability to speak the other official language. The Crown may challenge the assertion made, but it will have the onus of showing that the assertion is unfounded. The court, in such a case, will not inquire into specific criteria to determine a dominant cultural identity, nor into the personal language preferences of the accused. It will only satisfy itself that the accused is able to instruct counsel and follow the proceedings in the chosen language."


Williams illustrates how legal procedure is being adapted to reflect social realities, in particular racial prejudice, and the ability of counsel to challenge potential jurors on that basis. That the composition and procedure surrounding juries will continue to develop is illustrated by our highest court granting leave to appeal on January 27, 2000 to R. v. Pan, which raises questions about common law secrecy rules and juror misconduct. It will be interesting to see whether future developments regarding Canadian juries and jury selection will more closely mirror those of the United States.
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Author:Bryant, Marian
Date:Apr 1, 2000
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