Civil jurors come from Ottawa's richer, whiter neighbourhoods: study
Justice Giovanna Toscano Roccamo studied civil jury composition in Ottawa and Belleville
The people chosen for civil juries in Ottawa and Belleville, Ont., are predominantly white, older and more well-off, according to a report presented to the Canadian Judicial Council.
Solomon Friedman, an Ottawa criminal defence lawyer, said the report shows the urgent need to change how jurors are selected in civil and criminal trials.
"To have it put in black and white so clearly that our juries are not representative of the people who are before the courts, I think this must be a call to action," he said.
"If you're poor, if you rent a home, if you're a visible minority, if you are Indigenous, you are far less likely to be chosen for jury duty than if you are upper-middle class and a non-visible minority homeowner.
"That's a problem. We don't want juries picked that way."
Home ownership major factor
The report, written by sitting Justice Giovanna Toscano Roccano while she was on leave, examined civil jury panels from June 2016 to July 2017 and found they were predominantly white and earning high incomes.
The report matched jurors to their neighbourhoods to create their profiles, and it found that people from areas with a higher proportion of homeowners, such as Orléans and Barrhaven, were more likely to be called for jury duty.
Meanwhile, people from Heron Gate, Britannia Village or Ledbury were nearly 10 times less likely to be on a jury, according to the report.
For example, a census tract in Barrhaven with a population of more than 5,000 had 48 jurors, while a tract with a similar population in Carlington had just 10.
Friedman said it's time to change how jurors in Ottawa are chosen, which starts with moving away from the list of municipal property tax rolls.
"[Using the rolls] guarantees that property owners are the ones listed. There are better ways to pick juries," he said. "One of the ways to pick a jury that other jurisdictions use is health card data, so you don't need to be a property owner."
The report also shows a disconnect between the people who sit on juries and people who are accused, Friedman said.
"You have individuals who are being judged by others, who are in life circumstances that are so far removed from the people who come before the courts," Friedman said.
That may lead to challenges on whether assembling juries this way violates the constitutional rights of the accused, he said.
"These juries are not being fairly assembled," he said. "We're now seeing counsel using this data, bringing challenges to the constitutionality of the way the juries are assembled in Ottawa."
Solution not just lists, prof says
Jennifer Quaid, a criminal law professor at the University of Ottawa, said she supports the idea to stop using property tax rolls, but warns that wouldn't solve the problem by itself.
For example, the report said no jurors came from the Tyendinaga Mohawk Territory near Bellevile, Ont., during the period studied.
"We need to have people from all communities in Canada. Especially, I think, the [Indigenous] communities," she said. "We need to make efforts to give them reasons to want to participate."
The federal government promised to look at ways of getting more Indigenous representation on juries after the controversial Gerald Stanley not guilty verdict in the death of Colten Boushie in Saskatchewan earlier this year.
Quaid said giving judges some leeway during jury selection along with education about the issue could improve representation.
"You may not be able to have a purely legislative solution to jury composition and jury representation issues. You may also need to have judges that are aware of what is going on," she said.
Quaid also cautions that civil juries may not be a perfect comparison for criminal juries, since fewer jurors are selected per case and counsel cannot disqualify potential jurors as easily.
Jury selection may lead to lawyers pursuing different arguments in civil cases, such as lawsuits over medical malpractice, but it's not easy to draw a line between jury composition and trial outcomes, she said.