Two Conceptions of Representativeness in the Canadian Jury Selection Process: A Case Comment on R v. Gayle

Emily Kathleen Morton

ABSTRACT

The Ontario Court of Appeal decision in R. v. Gayle considered, in obiter dicta, some of the grounds on which the prosecution's use of peremptory challenges to eliminate racial minority jurors may be subject to judicial review. In so doing, the court stated that representativeness, long recognized as important characteristic of Canadian juries, must be respected at all stages of the jury selection procedure. This comment examines the extent to which the court's commentary in Gayle departs from the conventional account of the characteristic of representativeness on Canadian juries. On the conventional account, a formal approach to representativeness is taken, and this value is seen as having been respected provided that there was no overt exclusion of an identifiable group from the jury rolls. The conventional account, however, does not support arguments that representativeness must be further preserved after the initial array of jurors has been assembled. The author considers what justifications may be given for promotion of the value of representativeness on trial panels by considering three arguments that link the characteristic of a representative jury to that of jury impartiality. The comment concludes by examining whether, and to what extent, the existent jurisprudence, and in particular, the Gayle decision, provides foundations for articulating a legally viable argument that substantive representativeness on trial panels is a value to be preserved and promoted in the Canadian jury selection process.

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Citation: (2003) 61(1) U.T. Fac. L. Rev. 105.
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