A lack of data on race, gender or age makes it impossible to know whether systemic jury bias plays a role in who ends up behind bars in Canada — and who doesn't.
Experts say the information gap is crucial in the ongoing debate about justice reform given the overrepresentation of Indigenous and Black people in prisons.
Nevertheless, a Canadian Press survey of provinces and territories on the availability of anonymized demographic information about seated jurors found almost zero tracking.
"What do you have to hide?" said Colton Fehr, an assistant criminology professor at Simon Fraser University. "We know there are problems with juries, with jury panels, with jury rolls, with the ultimate composition of juries."
Demographics have been an issue in Canada since an all-white jury condemned Metis leader Louis Riel for treason in Saskatchewan in 1885. His white assistant was acquitted. In 2016, anger erupted over the exclusion of Indigenous people from the panel in Battleford, Sask., that acquitted Gerald Stanley, a white farmer, who killed Colten Boushie, a Cree.
Nader Hasan, a criminal defence lawyer in Toronto who has argued jury selection before Canada's top court, said people want to see themselves reflected in those deciding their fate.
"You need better demographic information, because otherwise how can you tell whether or not your jury is truly representative?" Hasan said.
One lawyer who has done extensive work on behalf of Indigenous people — and their representation on inquest juries — called the need for data a "no-brainer."
"There is not an area in which you can, on the one hand, acknowledge the role of racism or class bias, but also, on the other hand, decline to collect data telling you whether the problem is getting worse or getting better," Julian Falconer said.
Concerns have long been raised about the exclusionary nature of jury rolls from which jurors are selected when, for example, property ownership was a de facto requirement.
Additionally, no or low pay for jurors tends to self-exclude many people — especially for longer trials — leaving mostly retirees, the well off, or those who still get paid while serving as candidates. Accused, by contrast, are frequently young, poor, or racialized.
"The reality is that by the time you get to trial, these juries, even in places like Toronto and Vancouver, are overwhelmingly white," Hasan said. "That matters."
While jurors are supposed to be impartial in assessing evidence, just how jury composition plays out in murder, sexual assault or other serious trials is unknown given the lack of data.
"Demographic information by jury is not tracked," Brian Gray, with Ontario's Ministry of the Attorney General, said in a response typical of those seen from other provinces such as Quebec.
"Race and gender data are not collected," said Aimee Harper, with B.C.'s Ministry of Attorney General.
Some provinces, such as New Brunswick and Saskatchewan, went so far as to say their provincial laws make it illegal to provide such data. Nunavut did give information on gender and postal codes.
In 2018, one veteran Ontario judge worried that juries did not represent the "conscience of the community."
"My anecdotal experience was that the jury-selection process, possibly compounded by the exercise of judicial discretion, habitually excluded from service racial and linguistic minorities, low-income earners, students, and caregivers," then-Superior Court justice Giovanna Toscano Roccamo wrote.
Toscano Roccamo took leave to oversee research that concluded civil juries in Ottawa comprised predominately white, higher income earners and property owners. In Belleville, Ont., not a single juror came from a local First Nations reserve. Now-retired, Toscana Roccamo declined comment.
Research from the U.S. shows jury makeup does have an impact on verdicts. One study in 2012 found all-white juries in Florida convicted Blacks at a rate 16 percentage points higher than they did white accused. Another study in 2014 found older jurors more likely to convict than younger ones.
Former Supreme Court of Canada justice Frank Iacobucci in 2013 described juries as "one of the most venerable institutions in history." Iacobucci, who was called in after serious criminal trials in northern Ontario ground to a halt over a lack of jurors from reserves, found "systemic discrimination" against Indigenous people within the justice system.
The representation issue has become more pressing since Ottawa barred peremptory challenges in September 2019. The challenges allowed prosecution or defence to exclude jurors without giving reasons.
While Indigenous groups said the challenges were used to drum First Nations people out of juries, racialized communities argued the rules could have been used to weed out racist jurors. The Supreme Court of Canada upheld the legislation in October.
Experts say there is now no way to assess the impact of Bill C-75.
"If you just don't have the data, you're basically saying, we don't want to engage in that process," Fehr said. He called the issue frustrating for researchers.
Hasan and others urged federal Justice Minister David Lametti to act on reforms aimed at tackling systemic barriers. A spokesman said Lametti believes juries should be representative of their communities.
"We would be open to further discussions with provincial and territorial colleagues on how to improve data-gathering capabilities, with a focus on race-based data, to better allow us to understand the demographics of justice-system participants," David Taylor said.
A spokeswoman for Richard Wagner, Canada’s chief justice, said he could not comment “as these issues are currently before the court.”
Daniel Brown, vice-president of the Criminal Lawyers Association, said jury composition is one factor that plays into systemic discrimination.
"The idea that justice is blind and that any 12 people from the community can fairly decide a case ignores the realities of daily life," Brown said.
"Representation matters when somebody is standing there with their entire life on the line in a criminal case; we want to make sure that they're getting a fair trial from a jury of their peers and not just from one particular segment of society."
This report by The Canadian Press was first published on March 26, 2021.
Colin Perkel and Hina Alam, The Canadian Press