MOCK JURY SELECTION - OJEN

Ontario Justice Education Network

MOCK JURY SELECTION

MOCK JURY SELECTION

STUDENT HANDOUT

This mock jury selection exercise is designed to help you understand the process of establishing an impartial jury. While many of us understand the process of how jurors collaborate and deliberate on a case, the selection process is not often discussed or well understood. Many movies and television shows demonstrate how lawyers persuade jurors when presenting an argument; however, few media sources show the process of forming jury panels and selecting jury members for individual trials.

This simulation will assess jury selection in hypothetical scenarios. When incorporated into a lesson, this task will simulate the entire process of jury selection. The re-enactment of this task requires students to play the role of lawyers, a judge, a registrar, prospective jurors, and the accused.

INTRODUCTION TO JURY DUTY

Jury duty is one of many responsibilities that Canadian citizens are required to carry out. A jury is a group of individuals that makes a decision about a court hearing in an impartial manner. By being impartial, jurors are required to reach a decision based on the evidence presented in court, and reach a decision without any biases. In order to ensure that jurors are not biased, a series of steps occurs in the jury selection process to ensure that qualified and impartial jurors are selected to participate on juries.

The jury selection process is a critical process for the parties involved in a legal matter because the jury will ultimately decide the outcome of the trial. Therefore, it is important for both sides to have an impartial jury.

THE JURIES ACT

The legislation governing the rules and regulations related to juries in Ontario is called the Juries Act. 1 It outlines the laws related to the eligibility of jurors, the preparation of jury rolls, the preparation of jury panels, the drawing of juries during a trial, and bringing challenges against potential jurors on the grounds that they might be biased or otherwise unsuitable to act as a juror.

ELIGIBILITY OF JURORS

According to s. 2 of the Juries Act, in order to be eligible to act as a juror in Ontario, one must:

(1) reside in Ontario,

(2) be a Canadian citizen,

(3) be at least 18 years of age at the beginning of the year in which the jury is selected, and

(4) be able to speak, read, and understand English or French.

A person may be ineligible to serve as a juror depending on their occupation, their connection with the court matter that they are a potential juror for, the recency of their previous jury service, or any personal circumstances that may prevent them from carrying out their jury duty.

1 Juries Act, RS O 1990, c J3.

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Ineligibility due to Occupation

Individuals who work in certain occupations are not eligible to be a juror. These include:

? Every member of the Privy Council of Canada or the Executive Council of Ontario

? Every member of the Senate, House of Commons of Canada or the Assembly

? Judges ? Every judge and justice of the peace ? Every lawyer and law school student ? Every legally qualified medical practitioner

and veterinary surgeon who is actively engaged in practice

? Every coroner ? Every person engaged in law enforcement,

including sheriffs, wardens, police officers, firefighters, and officers of a court of justice

Ineligibility due to Connection with the Court Action

Any individual who has been summoned as a witness or is likely to be called as a witness in a criminal or civil proceeding, or has an interest in an action, is not eligible to serve as a juror.

Ineligibility due to Previous Jury Service

Individuals who have been selected to serve as a juror or attended a coroner's inquest within the past 3 years are ineligible to participate as a potential juror.

Ineligibility due to Personal Reasons

Personal circumstances also shape the eligibility of serving as a potential juror. Individuals who have a physical or mental disability that impairs their ability to take on the duties and responsibilities of a juror are ineligible to serve as a juror. Courts will, however,

take steps to accommodate jurors with disabilities by providing services such as sign language interpreters, assistive devices, or other supports that may be needed.

In addition, individuals who have been convicted of an offence that may be prosecuted by indictment, unless granted a record suspension or pardon, are not eligible to participate as a juror.

TYPES OF MATTERS INVOLVING A JURY

Criminal Cases

Juries are used for some, but not all, criminal cases. Cases that are classified as summary conviction offenses, which are more minor offences in the Criminal Code (usually consisting of a fine up to $5000 or six months jail, or both) are tried before a judge alone. For more serious cases where the accused could spend five years or more in prison, there is a constitutional right to trial by jury which is protected under section 11(f ) of the Charter of Rights and Freedoms. For indictable offenses, which are more serious offences with greater consequences than a summary conviction offence, the accused can opt to be tried before a judge or a judge and a jury. In cases involving very serious offenses such as murder or treason, both a judge and jury are mandatory.

Twelve people sit on a jury in a criminal trial. In more complex or lengthy cases, a judge may order that one or two alternate jurors also be appointed. In criminal proceedings, the burden of proof is "beyond a reasonable doubt" meaning that in order to secure a conviction, the Crown must prove to the jury based on the evidence presented at trial that the accused committed the crime beyond a reasonable doubt. In criminal trials, all final decisions from the jury must be unanimous.

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Civil Cases

Like criminal cases, juries are only used in some civil matters, but there are none where a jury is mandatory. In many civil law matters, juries are prohibited. This includes family law cases, small claims court matters, cases brought against government bodies and municipalities, and many types of property disputes. Apart from these, either party in a civil law dispute (i.e. the plaintiff or defendant) can request a jury trial by filing a Jury Notice with the court before the close of pleadings in their matter.

Six people sit on a jury in civil cases. The burden of proof in civil matters is "on a balance of probabilities" meaning that the jury must decide based on the information presented at trial that it is more likely to have happened one way instead of another. This is a lower standard of proof than the criminal standard of "beyond a reasonable doubt". In civil cases, a decision does not have to be unanimous. Instead, only 5 jurors have to agree on the verdict.

Coroner's Inquests

A Coroner's Inquest is a public hearing presided over by a coroner, a specially-trained physician, to investigate suspicious or unexpected deaths. The verdict of this investigation is delivered by a jury. The rules and requirements that govern Coroner's Inquests in Ontario are outlined in the Coroners Act.? A Coroner's Inquest seeks to answer five questions, which are outlined in section 31(1)(a)-(e) in the Coroners Act:

(a) Who was the deceased?;

(b) How did the deceased come to their death?;

(c) When did the death(s) occur?;

(b) Where did the death(s) occur?; and

(c) By what means did the death(s) occur?

Findings generated from Coroner's Inquests are used to develop recommendations for public safety measures designed to prevent similar deaths in the future.

Five people sit on a jury at a Coroner's Inquest. To reach a verdict, there only needs to be a majority, and not unanimity like in criminal trials.

JURY SOURCE LIST

Names for potential jurors are compiled into a jury source list on or before June 1 each year through data obtained from the Minister of Health and Long-term Care.3 The names of potential jurors are gathered from the Ontario Health Insurance Plan (OHIP) database based on the eligibility criteria for jurors in Ontario. The information is disclosed to the Jury Sheriff at the Provincial Jury Centre and is used for the purposes of creating the jury roll each year.

Prior to 2019, the jury source list was filled by Ontarians drawn primarily from the Municipal Property Assessment Corporation, the province's property ownership database.4 This method had come under widespread criticism for failing to include a diverse and representative sample of Ontarians, including renters, boarders, students, seniors, spouses not named on property titles, transient and low income people, Indigenous people, and those unable to afford property in increasingly unaffordable real estate markets.5

2 R.S.O. 1990, c. C. 37. 3 Juries Act, supra, s. 4.1(1) 4 Information and Privacy Commissioner of Ontario, Criminal Jury System in Ontario (Ontario), online: . 5 See for example, Ebyan Abdigi et al, `How a broken jury list makes Ontario justice whiter, richer and less like your community', Toronto Star (2018), online: < >; Robert Cribb and Jim Rankin, `Ontario abandons property ownership as source of jurors', Toronto Star (2019), online: < >; Omar Ha-Redeye, `Amendments to the Juries Act in Ontario', Slaw (2019), online: >.

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A two-year study conducted by the Toronto Star and Ryerson University looked at the racial makeup of jurors in 52 criminal trials in Toronto and Brampton.6 The investigation, published in 2018, showed that 71% of the 632 jurors, were white even though in Toronto, more than 50% of residents identify as visible minorities; in Brampton, the figure is more than 73%. The racial identity of the accused persons presented a very different picture: of the 59 documented accused (some trials had more than one), 27 (46%) were Black; 13 (22 %) were white; 11 (19 %) were brown; five (8 %) were Asian and three were counted as other. The investigation raised concerns that the former jury source list, drawn from the provincial property ownership database, failed to reflect the GTA's diversity and excluded potentially millions of Ontarians from serving their civic duty.

In 2013, former Supreme Court of Canada Justice Frank Iacobucci conducted an independent review of and authored a report on the lack of Indigenous representation on jury rolls on First Nations reserves in Ontario.7 In discussing the importance of having representative juries, he stated:

Impartial and representative juries play an important function in maintaining public confidence in the legal system. The public is more likely to perceive trials, and by extension the legal system as a whole, as being fair if prospective jurors are representative of the wider community from which they are drawn. Conversely, the wholesale exclusion of particular groups from the jury pool risks undermining public acceptance of the fairness of the

criminal justice system. A jury cannot act as the conscience of the community unless it is viewed favorably by the society that it serves.8

Justice Iacobucci stated that the principle of representativeness requires that jurors be randomly selected from a jury pool whose composition is representative of Canadian society as whole and from which no group has been systematically excluded.9 To that end, one of the key recommendations in his report was that the Ministry of the Attorney General undertake a prompt and urgent review of the feasibility of using the OHIP database for the purposes of compiling the jury roll.10 The report also recommended that, in an effort to increase Indigenous representation on juries, the Ministry consider all other potential sources for generating a comprehensive and representative database, including band residency information, Ministry of Transportation information and other records as appropriate.11

Accordingly, the switch from the property ownership database to Ontario's healthcare database is a positive step towards increasing the representativeness of the jury roll in the province.

JURY SELECTION PROCESS

Jury selection is the process whereby individuals are selected from a larger population to serve as a collective decision maker on a court case.12

6 See Ebyan Abdigi et al, `How a broken jury list makes Ontario whiter, richer and less like your community', Toronto Star (2018), online: . 7 Report of the Independent Review Conducted by The Honourable Frank Iacobucci, First Nations Representation on Ontario Juries (February 2013), online: < >. Ibid at para. 116. 9 Ibid at para. 130. 10 Ibid at para. 376. 11 Ibid. 12 See also Ministry of the Attorney General, `Jury Duty Information', online: < >; Ministry of the Attorney General, `Jury Duty and You' (Video), online:

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TIMELINE

Jury selection in Ontario is a year-round process. The following chart provides an overview of the approximate timeline in Ontario for the various steps involved in the jury selection process.13 Further details on the key steps are provided below the chart.

Approximate Annual Time

March

June - September

December

January ? December of the following year (year round)

January ? December of the following year (year round)

January ? December of the following year (year round)

Step in Jury Selection Process

Required number of jurors is calculated

The required number of jurors is calculated by each Superior Court of Justice for the upcoming year based on the previous year and the anticipated number of trials. The estimate is sent to the Provincial Jury Centre.

Questionnaires sent to potential jurors

Jury Questionnaires are mailed to randomly selected potential jurors across the province to determine whether they meet the qualifications for jury service. People who receive a questionnaire are required to complete the form and return it to the Provincial Jury Centre within 30 calendar days of receipt.

Jury roll created and certified

The completed Jury Questionnaires are sorted for eligibility for jury duty. Jurors must reside in Ontario, be Canadian citizens, be at least 18 years old, and speak, read, and write English or French. Some people are ineligible pursuant to the Juries Act. People who are eligible to serve are put on a list of potential jurors called the jury roll. The jury roll is created and certified. Jury panels for the next year are randomly selected from the jury rolls for each judicial district.

Jury panels are established

Each court estimates the number of jurors they need for upcoming trials and sends the request to the Provincial Jury Centre. The Provincial Jury Centre uses a computer program to randomly select jury panels from the jury roll. Potential jurors receive a Summons in the mail to attend a specific courthouse in the province and jury panels are established of 50 to 300 people.

Juries selected

Potential jurors attend the courthouse location on the date noted on their Summons. A Court Services Officer divides potential jurors into groups called "panels" for each trial that day. Panel members are given ballot cards with an assigned number. They are called into a courtroom so that the lawyers, judge, and parties can see the prospective jurors. Court staff randomly select ballot cards and call out numbers of panel numbers to appear as potential jurors. Panel members are given an opportunity to notify the judge of any reason they may not be able to attend for jury duty. Prospective jurors who are not selected may be assigned to another panel on the same day or asked to return the following day.

Trial

If selected to serve as a juror, jurors attend at the court location on the time and date specified by the judge. Most trials begin on the same day as the jury selection.

13 Information from chart is largely obtained from Ministry of the Attorney General, `The Annual Jury Selection Process', online: < >.

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