Ontario is making a fundamental change to the province’s justice system by vastly expanding the pool of potential jurors to better reflect economic and racial diversity following a 2018 Toronto Star/Ryerson School of Journalism investigation into racially imbalanced juries.
Jury boxes, which have always been filled by Ontarians drawn primarily from the province’s property ownership database, will soon include a wider range of voices drawn from a far more comprehensive list provided each year by the Ministry of Health and Long-Term Care, according to changes to the Juries Act detailed in the provincial budget.
“The proposed change would allow Ontario to use the Ontario Health Insurance Plan (OHIP) database as its source list for creating juries for the 2020 jury roll. It would streamline the existing process, reduce administrative burden and duplication, and facilitate more diverse juries reflective of all of Ontario’s communities, including First Nations,” said a spokesperson for the Ministry of Attorney General.
The switch from property ownership to Ontario’s healthcare database will have a transformational impact on how justice is done in Ontario by giving the accused an opportunity to be judged by a true jury of peers, say legal experts.
“This is a big step forward that will help increase the representativeness of our juries,” said Ottawa defence lawyer Michael J. Spratt. “It’s astounding that it took so long…I certainly think that the work advocates and journalists have put into this issue has probably motivated action. Sunshine is the best disinfectant and credit is due for holding this up to scrutiny.”
The key reason behind the ethnic disparity in jury boxes is a dated and dramatically incomplete jury list that skewed toward middle- to upper-middle-class property owners, legal experts agreed.
“The comprehensiveness of the list at the beginning has a huge impact on who ends up on juries,” says Vanessa MacDonnell, a University of Ottawa law professor. “If you start with a flawed list, you can only end up with a flawed jury. If you start with an unrepresentative list, you’ll end up with unrepresentative juries.”
The province’s property ownership database — managed by the Municipal Property Assessment Corporation (MPAC) — excludes potentially millions of Ontarians from serving their civic duty, including many renters, boarders, students, seniors, spouses who are not named on property titles, transient and low-income people, Indigenous people and those unable to afford property in a red-hot real estate market.
“When housing prices in Toronto and many of the surrounding jurisdictions are completely unaffordable for the majority of the people who are living in those jurisdiction, it’s obviously a method that is way out of touch with our current time,” says Toronto lawyer Brian Eberdt.
“The unfortunate aspect of this is how long it has taken. You can’t help but have some concerns and some sadness for the injustices that might have been caused by an unrepresentative jury panel. There’s no way to count. We all know it’s been many. But what is there to be done about it?”
Potential jurors will still have to be Canadian citizens living in Ontario and be at least 18 years of age.
At the time of the Star/Ryerson investigation last year, MPAC officials conceded their database was ill-equipped as a source for the province’s juror list, with one official stating: “This is a property assessment database, this is not a people database.”
The agency’s database’s blind spots included Ontarians living in nursing and retirement homes, those living on First Nations reserves and many renters, the agency admitted.
On Thursday, MPAC issued a statement to Star saying the agency “supports the recommendation that Ontario move to the use of a single, consolidated database to identify potential jurors.”
The limitations of a property ownership database for jurors revealed themselves in the faces of jurors surveyed by reporters in the 52 trials in Toronto and Brampton.
Of those, only three were composed of 50 per cent visible minority and 50 per cent white jurors. In most cases, white jurors represented the majority with as many as 11 of the 12 positions.
Of the 632 jurors surveyed by reporters, 451 (71 per cent) were white; 45 (7 per cent) were Black; 42 (7 per cent) were brown; 89 (14 per cent) were Asian; and 5 (less than 1 per cent) were listed as other. Reporters were unable to identify a single Indigenous juror.
Across the aisle, the visible ethnicity of the accused presented a very different picture: Of the 59 documented accused (some trials had more than one), 27 (46 per cent) were Black; 13 (22 per cent) were white; 11 (19 per cent) were brown; five (8 per cent) were Asian and three were counted as other.
The new amendments do not address another jury system shortcoming raised in the Star/Ryerson investigation: Ontario’s paltry remuneration for jurors which can limit the ability of many low-income and vulnerable citizens from taking part.
Ontarians summoned and selected for jury duty receive no compensation for the first 10 days of service. From days 11 to 49, jurors are paid $ 40 each day rising to $ 100 a day from the 50th day onwards. There’s no compensation for parking, meals, transit or child care.
And while companies are required to grant leave for jury duty, they are not required to pay. For those who work for themselves or for smaller companies that don’t pay employees for jury duty, the prospect of fulfilling their civic duty comes with significant repercussions.
The Star/Ryerson investigation found other provinces pay far more.
Quebec jurors receive $ 103 from the first day, rising to $ 160 from the 57th day forward while expenses for parking, transportation, meals and child care are covered. Alberta jurors are paid $ 50 per day, are reimbursed for travel and child care and provided with parking. Nova Scotia jurors earn $ 40 a day along with mileage reimbursement and parking.
In Newfoundland, employers are required to pay jurors the same wages and benefits as if they were working. Child care costs are also reimbursed.
“Serving on a jury effectively means giving up income in a large number of cases,” says lawyer Spratt. “That barrier still exists. Hopefully this (change) indicates the government is open to making other changes that will help our juries better reflect our communities that they sit in judgement of.”
Files from Ebyan Abdigir, Kvesche Bijons-Ebacher and Palak Mangat (Ryerson School of Journalism)
Robert Cribb is a Toronto-based investigative reporter. Reach him via email: firstname.lastname@example.org