I am a very lucky person.
I have been blessed over the years to be able to do two things I love: teach and research at an amazing institution of higher learning and be involved in community theatre with some of the most amazing, smart and talented people one could ever wish to meet. When the two worlds collide, it always changes the way I see the world.
My role as juror number 11 in 12 Angry Jurors has given me much to think about in light of the legislation tabled in the House of Commons considering amendments to the Criminal Code of Canada regarding, among many things, the composition of juries. Bill C-75 is a large and complicated bill that includes the clause to: "abolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice..."
Many readers will likely be familiar with 12 Angry Jurors under a different name. 12 Angry Men was originally a television play produced in 1954.
Later it was made into a film starring Henry Fonda whose character is the first hold out to convict a man for murder on the grounds of reasonable doubt. The play was adapted again in the 1980s and this is the script we are using with one interesting change - the jury is now six angry men and six angry women.
Over the many years that this story has been part of American popular culture, the central question of jury selection still remains at issue in 2018. The first measure of diversity, to add women to the jury, does not solve the underlying issue of the lack of a much broader diversity missing from the jury selection process.
Over the last few years, a number of high-profile cases have raised the issue of diversity and equality on the juries both in Canada and in the United States.
A recent case involved Saskatchewan farmer Gerald Stanley who went on trial on a charge of second-degree murder in the shooting death of Colten Boushie, a young Indigenous man. There were no Indigenous jurors.
Stanley was acquitted and the fallout from the decision led to a serious discussion about jury composition and particularly the peremptory challenge that allows lawyers to summarily dismiss potential jurors without any reason.
The contention is that the peremptory challenges allow for possible discrimination and the denial of a juror to participate in the deliberations based on race or ethnicity. The new legislation, at least in part, tries to deal with this issue.
Yet, while the peremptory challenge has made the headlines, other aspects of the selection process that are problematic have been less well publicized. A review of the academic literature led me to an interesting paper by Anthony and Longman (2017) entitled Blinded by the white: a comparative analysis of jury challenges on racial grounds, published in the International Journal for Crime, Justice and Social Democracy. The paper is a comparative study of the process of jury selection and composition in Australia, the U.S. and Canada.
The authors highlight an important case in Canadian jurisprudence that was decided by the Supreme Court in 2015 in which the issue of jury selection was considered. The issue at hand in the case of R v Kokopenace was the practice of jury notification and the court ruled that "'jury representativeness" was assured through the process of compiling the jury list and "not its ultimate composition."
In other words, it was deemed that the jury selection process was fair because the state had sent out notices to a representative number of people from a jury list. Whether or not the notices ever reached the people in question or whether there are systematic barriers that prevent individuals from participating on the jury were not considered to be part of the state's obligation.
One of my lines in the play is "...We have a responsibility here. That is the remarkable thing about democracy. That we are... notified by mail to come down to this place and make a decision on the guilt or innocence of a man; a man we have not known before. We have nothing to gain or to lose by the verdict. This is one of the reasons we are strong...."
I have learned that it takes more than a simple notification to make a jury strong and representative.