Impartiality and representativeness of juries

Pierre v. McRae, 2011 ONCA 187, released today on-line, deals with a jury pool in North West Ontario that was manifestly unrepresentative as lacking Canadians of First Nations heritage. The Court of Appeal found the failings were so significant as to require rehearings. Although not arising in the criminal context, quaere does the decision refelct on the jury vetting cases?

The Court held:

[28] To function properly, a jury must have two key characteristics: representativeness and impartiality. A representative jury is one that corresponds, as much as possible, to a cross-section of the larger community. And a representative jury enhances the impartiality of a jury. In R. v. Gayle (2001), 54 O.R. (3d) 36 (C.A.) at para. 56, Sharpe J.A. discussed the importance of a representative jury:

Canadian law recognizes the importance of a representative jury. The importance of representativeness, along with impartiality, was discussed in R. v. Sherratt, at p. 525 S.C.R., p. 204 C.C.C. per L'Heureux-Dubé J.: "[W]ithout the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place." Representativeness was described at p. 525 S.C.R., p. 204 C.C.C. as a "crucial characteristic of juries" to which "little if any objection can be made". Representativeness was also accepted as an important characteristic of the jury in R. v. Bain, [1992] 1 S.C.R. 91, 69 C.C.C. (3d) 481 at pp. 159-60 S.C.R., p. 530 C.C.C., per Stevenson J. Gonthier J., dissenting in the result but not on this point, stated at p. 115 S.C.R., p. 494 C.C.C. that "[t]he well-informed observer certainly knows that a jury should be impartial, representative and competent." In Williams at p. 500 C.C.C., McLachlin J. described a "representative jury pool" as one of the safeguards included in the s. 11(d) right to a fair trial and impartial jury. Securing a representative jury enhances impartiality and, as this Court stated in R. v. Church of Scientology of Toronto (1997), 33 O.R. (3d) 65, 116 C.C.C. (3d) 1 at p. 119 O.R., p. 61 C.C.C. "[t]he representative character of the jury also furthers important societal or community interests by instilling confidence in the criminal justice system and acting as a check against oppression."

[29] Of course, a party with standing at an inquest has no right to insist on a juror that is "representative" of a particular racial, ethnic or linguistic group. Nonetheless, representativeness in the preparation of a jury roll is important, not only for ensuring a properly constituted jury, but also for maintaining the public's confidence in a coroner's inquest and preserving its integrity. A coroner's power to inquire into the impartiality of an individual juror – a power the coroner undoubtedly possesses – cannot remedy the unrepresentativeness of a roll from which the jurors are chosen. The representativeness of a jury roll depends on compliance with the Juries Act, and in the present case, on compliance with s. 6(8) of that Act.