BLACK IN THE JURY BOX: SYSTEMIC BARRIERS
FROM APRIL/MAY 2021 ISSUE OF WEST END PHOENIX
Systemic barriers in Ontario guarantee that Black people are vetted out of jury selection from the start
Black in the Jury Box is a four-part investigative series that explores racial disparities during the jury selection process and looks at how they contribute to a court system that is biased against Black defendants. In the first story of the series, journalist Eternity Martis explains who gets chosen for Ontario juries – and why it matters that the answer is rarely Black people. This series is supported by the Joe Burke Fund for Social Justice Reporting, which was created in memory of Joe Burke, the late social justice advocate and lawyer.
As I settled inside the wood witness box of a small, outdated courtroom at 361 University Ave. with matcha green walls, I immediately felt burdened.
Aside from myself, the defendant, a man, was the only other Black person in the courtroom. Everyone was looking at me, closely studying my body language, how I spoke, what I chose to wear, if I made eye contact. He was leaning forward, listening intently as I answered the judge and defence lawyer’s questions. I knew the lawyers weren’t just deciding whether I would make a good juror, but whether my Blackness was a benefit or a detriment. And I knew the defendant wanted someone who looked like him on his jury. I felt everyone’s expectations of me already forming.
I had just spent three days being filtered in and out of waiting rooms, part of a pool of 250 scared and irritable people that shrank with each vetting process. On day four, I sat in a large courtroom as the judge gave us the details of the case. Using a metal cage, a court employee then pulled numbers at random, putting us into groups of 25 – the final people who would go before the court to be selected to become jurors, or get to go home. The first group had no Black people. I was chosen for the second group, and there were two of us. On day five, that person had been excused by the court. Now it was just me.
Before I arrived for jury duty, I had anticipated not seeing many Black people during the selection process. High-profile cases taught me that Black jurors, especially in cases with a Black defendant, were sparse, sometimes because prosecutors had done their best to weed them out. The assumption was that Black jurors would be biased in favour of a Black defendant – a claim never made about white jurors.
While I’ve never been inside the criminal justice system, people around me have seen the inner workings of civil, criminal and family court. I also became an adult in the #BlackLivesMatter era. As a result, I’ve grown up seeing justice not served. Maybe that’s why I’ve found the idea that we’re supposed to find ways to evade jury duty, a common belief further perpetrated by TV and film, quite distasteful. I was here and I was serious about it. That’s why I spent an extra half-hour that morning ironing my newly bought blouse and dress pants, adorning myself in jewellery, shining my heels and trying to keep my unruly hair under control. I was trying to look more “respectable” – a problematic practice undertaken by people of colour to appear more acceptable in white spaces. I naively wanted to be given the same benefit of perceived impartiality as white potential jurors.
As I answered the defence’s questions about whether I could be impartial on a case involving a Black man, I could feel my emotions preparing to boil over at the prospect of getting booted by a “challenge,” a contentious and now-banned legal practice used by the Crown and defence to exclude a potential juror without explanation (only one side needs to “challenge” for a potential juror to be struck).
But that didn’t happen. In fact, both parties seemed at ease with my presence. Within mere minutes, I was sitting in the jury box.
According to the practices that Ontario uses to procure a jury, I should never have made it there.
Black people are underrepresented on Ontario juries
Up until 2019, the year before I was on a jury, Ontario selected jurors based on property assessment rolls created by the Municipal Property Assessment Corporation (MPAC), but I don’t own property. My appearance, clothing and job make it difficult to know my values and political stance – a gamble for the defence and Crown. I was young, which some research indicates made me more likely to be struck from the jury by the Crown. Most of all, I was Black.
Like most institutions in Canada, the courts don’t collect race-based data on jurors, which makes it difficult to understand just who makes up the juries in this province. But according to a 2018 Toronto Star investigation, Black people are severely underrepresented as jurors. Over the course of two years, reporters analyzed 52 juries in Toronto and Brampton, finding that while visible minorities make up the majority of residents in both municipalities, 71 per cent of all jurors were white. In fact, Black people made up just 7 per cent of jury members in all jury trials in the GTA, but 46 per cent of all defendants were Black.
For this series, I spoke to people who were summoned for jury duty or were jurors on cases that involved Black defendants. Only one person recalls a case with more than one Black person in the jury box – and even then, there were only two. Similarly, when I asked seasoned court reporters, court staff and trial lawyers how often they saw Black jurors in the vetting process or in the box, the answer was the same: “rarely.” In my own eight weeks at court, I saw a handful of other Black people during the vetting process, but not one was actually chosen to be a juror. A very small number of selected jurors were South and East Asian, and the rest were white.
“In the years I’ve been doing this job, I could count a handful of Black jurors,” says a court employee at 361 University who is not named to protect her job. She recalls one case from a decade ago that had a jury of six Black people and six white (the defendant was Black). “I’d never seen anything like that. This never happens,” she said. She estimates the white-Black ratio of jurors she’s worked with to be 70-30, though it changes every week. “We sort [potential] jurors into groups. I once remember sorting the first group of 25 – there were no Black people. Then the next group of 25 – again, no Black people. Another group of 25 – just three. So sometimes it’s more 80-20.”
I was the only Black person on the jury, but because we had a group of like-minded, racially diverse and progressive people who were committed to the process and to remaining impartial, I knew I wouldn’t have to carry the burden of the case’s racial dynamics alone. But our jury looked nothing like the overall pool of potential and selected jurors we saw at 361 University, and it was nothing in comparison to the shocking ratio of Black defendants to Black jurors.
Why it matters
These are alarming numbers, especially since Torontonians account for 36.9 per cent of the country’s Black population, who are, as a result of systemic racism, more likely to be targeted by law enforcement. The Ontario Human Rights Commission has condemned the province’s anti-Black racism, especially in Toronto, where Black people are more likely than their white peers to be carded, stopped, harassed and arrested – and 20 times more likely to be shot by police. In its 2012-13 annual report, Canada’s Office of the Correctional Investigator revealed the number of Black inmates in Canada’s federal prisons grew by nearly 90 per cent between 2003 and 2013, while the number of white inmates declined by three per cent. While Black overrepresentation in federal prisons is slowing, Black people still make up more than 8 per cent of federal offenders – nearly 3.5 times their demographic in Canada.
This means that Black people are underrepresented as jurors and overrepresented as defendants – and that their fates are largely decided by white, affluent people. The process of acquiring jurors has been proven ineffective, with eligibility requirements that don’t take into account systemic racism, internal biases that affect lawyers, judges and jurors, and poor compensation for jurors – an outdated system that Ontario still clings to after nearly 30 years of advocates and lawyers demanding change.
Many judges, lawyers and advocates are outspoken about the role that anti-Black racism plays in jury selection and feel discouraged by the province’s lack of action. But following a renewed racial reckoning last summer, the calls are stronger than ever when it comes to examining the role of anti-Black racism in the criminal justice system.
“I knew the lawyers weren’t just deciding whether I would make a good juror, but whether my Blackness was a benefit or a detriment. And I knew the defendant wanted someone who looked like him on his jury. I felt everyone’s expectations of me already forming”
How it happens
The jury in Ontario is supposed to reflect “a broad cross-section of society,” which should reflect the province’s multicultural makeup. But it’s designed in ways that quickly disqualify the Black community and exacerbate the systemic issues they already face, especially in Toronto.
The court employee at 361 University says that sometimes a lot of Black people show up in the morning, but by the time they are vetted, you can count on one hand how many are left. This often has to do with socio-economic barriers. “Sometimes they’re having financial issues, babysitting issues and work-related problems,” she says. And sometimes, regardless of race, people just don’t want to be there.
Though my team struggled with workload, I had the privilege of being able to take time off for the trial, which initially was supposed to last four weeks, but ended up lasting seven. I also lived downtown, which meant I only had a 15-minute commute and already had a transit pass. I had no dependents and a full-time job, and in case I needed therapy after trial, my work benefits would cover the costs.
In Ontario, employers must give you time off to serve on a jury – but they don’t need to pay you. The province itself does provide some compensation, but it pays the lowest amount in the country, and the rate hasn’t changed since 1995. Jurors are unpaid for the first 10 days, then receive $40 from days 11 to 49, and $100 after that. There is no reimbursement or allowance for food, transportation, childcare or other expenses incurred.
By comparison, Newfoundland and Labrador doesn’t pay jurors, but employers are required to, and the court reimburses childcare and some other expenses. In Nunavut jurors get $100 a day for the first five days and $150 after that, with the possibility of some reimbursement for some expenses. In Quebec, jurors get $103 until the 57th day, when it increases to $160. Jurors are reimbursed for nearly all expenses, including a discretionary reimbursement for childcare and therapy.
And money matters: Black people are more likely to be precariously employed and in public-facing positions such as retail or food services – also jobs with low wages and little to no vacation time and benefits, all systemic barriers that make it difficult for Black people to serve. “Black people in our city and in other parts of the country are more likely to experience precarious employment, less likely to have stable jobs and less likely to have the types of jobs that they could just take time off from to serve on a jury,” says Akwasi Owusu-Bempah, an assistant professor in the Sociology department at U of T. “And they don’t have the financial ability to do so because the [remuneration] for sitting on a jury is not necessarily a lot and this limits the ability of Black people to do so.”
In fact, until recently, money played a role in who even gets approached for jury duty. In 2019, Ontario made the decision, after decades of calls by advocates and lawyers, to drop the property assessment rolls in place of the OHIP database in order to make juries more representative of the racial makeup of the province. It was the only province still using this method (the others use voters’ lists, motor vehicle registration and/or provincial health records and health cards). Because the list of potential jurors was gathered based on who owned property, people in the northwest and east ends, where the majority of Black people – who are less likely to be homeowners – reside, had a lower chance of even being on the jury list.
“Who is it in this city who owns property? Largely white populations, certainly a monied population,” says Owusu-Bempah.
He says even pulling from the driver’s licence database or voting registry could present problems. “Marginalized people are less likely to have a car or to need a car to get to work or use a car to get to work. And they are perhaps even less likely to vote. So their chances of even getting into the eligible jury pool are diminished. And that’s before the process of jury selection, which we know can be very biased.”
Eligibility criteria also unfairly exclude Black potential jurors
There are several eligibility requirements for serving on a jury, including being at least 18 years old, a resident of Ontario, a Canadian citizen, a fluent English speaker (which seems to be assessed on a case-by-case basis by judges) and not having a criminal record. Considering nearly half of Toronto’s population are immigrants, those who do not have citizenship would be disqualified from sitting on juries. Currently, Manitoba and the Northwest Territories are the only regions in the country to allow permanent residents to serve on a jury, which helps diversify the pool. Language is another barrier. In the past, Toronto’s Black immigrant population largely came from parts of the English-speaking Caribbean such as Jamaica and Trinidad and Tobago, but today, Black newcomers come from Haiti, Nigeria, Cameroon and the Democratic Republic of the Congo and tend to speak Creole, Somali, Spanish and Niger-Congo languages as their first language.
The criminal records ineligibility presents a major challenge for potential jurors. According to the Canadian Civil Liberties Association and the John Howard Society, one in nine Canadians has a criminal record. This number is even higher in Ontario and Toronto, given the high number of withdrawn charges and non-convictions (charges that are dropped and don’t result in a conviction but stay on your record), and a large population of racialized people. Michael Andrew Johnston, a barrister-at-law who put forward a private member’s bill in 2018 proposing the elimination of Ontario’s discriminatory exclusion of citizens with criminal records from jury duty, says it’s unfair to automatically disqualify. “The unstated assumption is that you got in trouble, so you’re going to be a bad person for the rest of your life,” he says. “So, if an involved citizen with a criminal record for a past offence shows up [for jury summons], you’re essentially telling them, ‘You made one mistake in the past. We don’t care about the nature of that mistake, or what you’ve learned from it – we only care about one thing, and it’s that you tick off the criminal record box. You’re gone.’”
As the OHRC reports, Black Torontonians make up one-third (32 per cent) of all charges. Even though one-fifth of charges are withdrawn, Black people have higher rates of non-convictions, suggesting systemic and unfair charging practices. Black Torontonians are also more likely than white people to be charged with “out of sight” charges such as driving without a licence, and more likely to be charged with cannabis-related offences, despite studies showing Black and white people have a similar level of usage. Black men are three times more likely to be carded in the GTA. While the practice is not a charge, Black Torontonians say they’ve lost job opportunities because the information comes up on a background check.
Where you live may also determine the likelihood of a criminal record. The Toronto police’s “priority neighbourhoods” program was created to support neighbourhoods with high crime rates, namely gun and gang violence, by deploying more police to the areas in an attempt to curb violence. In looking at the map, many of these neighbourhoods fall in the east and northwest sides of the city where there’s a high Black demographic. Residents have said it’s only heightened police intrusion, surveillance, carding and arrest.
If most Black people live in the east and northwest ends, but those are also areas of intense police surveillance, that leaves more Black people either in jail as defendants or ineligible to serve on a jury, creating a never-ending systemic cycle. Meanwhile, those whose neighbourhoods are not heavily monitored by police, and are higher on the neighbourhood index – meaning better income, employment, safety and access to services that allow them to live more equitable lives – will be more likely to serve on a jury. “There’s a vicious cycle of criminalizing Black people, processing them through a racist criminal punishment system and then disproportionately excluding them from even serving on juries by virtue of [systemic barriers], which are inseparable from white supremacy,” says Joshua Sealy-Harrington, a doctoral candidate at Columbia Law School and lawyer at Power Law. He adds that current policing and carceral practices don’t take into account the root causes of crime and its links to racism, socio-economic disadvantage and dispossession.
Over the course of two years, reporters analyzed 52 juries in Toronto and Brampton, finding that while visible minorities make up the majority of residents in both municipalities, 71 per cent of all jurors were white. In fact, Black people made up just 7 per cent of jury members in all jury trials in the GTA, but 46 per cent of all defendants were Black.
Jurors
How do we fix the problem?
There has been movement on jury reformation in Ontario, but it’s been a slow change.
The 1993 case of R. v. Parks is considered to be the most direct acknowledgment of anti-Black racism and jury bias. Parks, a Black drug dealer, was accused of the second-degree murder of a white cocaine user. In a groundbreaking appeal, Justice David Doherty used a number of studies to support the “grim reality” of anti-Black racism in Toronto and Canada, and as a result, Black defendants should have the right to challenge the jury with questions about their own racial biases. However, many judges refused to apply the decision, believing jurors could still be impartial.
A decade later, Justice Frank Iacobucci published a report outlining the overrepresentation of Indigenous people in prisons and their underrepresentation on juries. Following the 2018 trial of Gerald Stanley, a white man who was found not guilty of second-degree murder in the killing of Colten Boushie, a 22-year-old First Nations man in Saskatchewan, Ottawa tabled Bill C-75 to overhaul the criminal justice system, including banning peremptory challenges, a practice used by lawyers to reject a potential juror without a reason. But this was the result of 30 years of reports and studies that address the lack of Indigenous juror representation in the courts. Little scholarship exists for Black communities in Ontario and Toronto, where the largest populations of Black people in the country live.
Today, more lawyers and advocates are pushing for more equitable practices for Black jurors and defendants alike. One notable case is that of Kevin Morris, a 22-year-old Black man who was given a reduced sentence by Justice Shaun Nakatsuru after he considered how systemic factors and anti-Black racism played a role in Morris’s life. The Crown appealed, and the case now has 10 intervenors, including the Black Legal Action Centre and the David Asper Centre for Constitutional Rights, which are arguing for the inclusion of reports that detail systemic factors when sentencing people targeted by oppression.
Still, we do know there are steps that can be taken to increase jury diversity, most of which need to happen before anyone arrives in a courtroom. Sealy-Harrington believes it starts with law enforcement. “I advocate for shrinking the carceral state, because the way we have historically approached and continue to approach criminal punishment is unavoidably and systemically racist,” he says. For jury reform, he suggests making permanent residents eligible, allowing those who speak other languages to serve with an interpreter and permitting volunteer jurors from underrepresented communities to supplement the jury.
Like Sealy-Harrington, Johnston believes the criminal record ineligibility must be removed. The private member’s bill also addressed that the Criminal Code already had provisions for excluding people from jury duty if it can be proven they have been incarcerated for a year or more or if it can be proven they are biased. “We must think the people that got in trouble are going to be biased [as jurors] because they were sent to jail,” Johnston says, “To allow that automatic assumption is unfair, because not everyone with a record is going to be biased.”
As an example, Johnston cites California’s recent Senate Bill 310, or “The Right to a Jury of Your Peers,” which now allows people with former felony convictions to serve on a jury as long as they’re not on parole or probation and are not registered sex offenders.
Another way to allow convicted people to serve on a jury is through pardons or expungements, but Johnston says this can be expensive for applicants (over $700 alone to file the pardon with the parole board) and time-consuming. “You need money to get a pardon. And oftentimes people will pay a paralegal or a lawyer to walk them through it,” he says. “The system is easier to navigate for the affluent than for the impecunious.” He gives the example of Canada’s pilot program aimed to erase Prohibition-era criminal records for cannabis possession. In the 20 months the program has been active, fewer than 400 people have received pardons even though the government estimated 10,000 were eligible. “It seems like one of the issues is the administrative burden,” Johnston says. “It still takes a lot of documents. It’s a lot of time.”
Time is currently not on the side of the courts: With a backlogged system due to COVID-19, a ban on peremptory challenges, and more action needed to address anti-Black racism in sentencing, systemic changes will need to take place within and outside the criminal justice system in Toronto.
For some people, jury duty is either a good time or a drag. For me, it was haunting. Even though we had different lives, I had the fate of someone who looked like me in my hands, who was being tried by a legal system that was historically unjust to Black people. But I swore to render a fair and impartial verdict. Though advocates have been pushing for change for a long time, these are the grey areas that our black-and-white law is only starting to acknowledge, and still rarely takes into account – the systemic factors that keep you off a jury and the legacy of oppression that keeps you a defendant. But I hope this series will shine a light on the grey areas and expose the true colours of the justice system.
Writer Eternity Martis sat on a jury for seven weeks, plus one unpaid week spent waiting to be selected. Here’s what that would run the average Torontonian.
TTC adult pass = $156 x 2 .................................................. $312
(not including GO and other out-of-city transit costs)
Childcare = $1,150 to $1,700/month x 2 ............................ $2,300 (minimum)
Food = $20/day x 40 days .................................................. $800
Miscellaneous expenses = $20/week ................................. $160
(Advil, tips for servers)
Total ..................................................................................... $3,572
Less court compensation ................................................... $1,200(including the waiting week)
Cost to be on a jury ............................................................ $2,372
TTC adult pass = $156 x 2: $312
(not including GO and other out-of-city transit costs)
Childcare = $1,150 to $1,700/month x 2: $2,300 (minimum)
Food = $20/day x 40 days: $800
Miscellaneous expenses = $20/week: $160
(Advil, tips for servers)
Total: $3,572
Less court compensation: $1,200(including the waiting week)
Cost to be on a jury: $2,372
You’ve Been Summoned for Jury Duty. Now What?
While in-court jury trials have been temporarily postponed, here are some tips for when life goes back to normal.
1. Bring something to do
Jury duty entails a lot of waiting around, sometimes for days, before you even have the chance to be selected as a juror. Bring something to keep yourself entertained – a book, papers to mark, your future bestselling novel, a colouring book. You’ll be there a while.
2. Be kind
Nobody likes being involuntarily ripped out of their routine. Still, be kind to other people and to court staff. You never know which of those hundreds of people you’ll end up spending weeks and months deliberating with in a small room, chaperoned by one of those court staff members.
3. Bring your own food
Toronto courthouse food is notoriously unsavory. Bring your own meals to court to avoid eating sour fruit and stale bagels, and if the weather is nice, eat your lunch at a nearby park or bench for a change of scenery. Plus, you’ll save money by bringing your own meals.
4. Be prepared to be on the jury
After being sorted into groups, you’ll eventually be led into a courtroom where you’ll be told the details of the case. After (you guessed it) more waiting, you might find yourself in court before the judge, Crown and defence to determine if you’ll become a juror.
5. Don’t try to cheat the system
You can dream up excuses as to why you can’t serve, but I guarantee most of them won’t work. These are professionals, so save yourself the embarrassment. And not showing up for a summons can result in hefty fines and jail time.
6. Take it seriously
Being on a jury means you get a rare chance to see the inner workings of the justice system and contribute to it in a meaningful way. You determine someone’s fate (in some cases, you get to prevent someone from being wrongfully convicted). That’s a big responsibility and it should be taken seriously.
7. Follow the rules
You legally can’t talk about the case unless you’re in the room with the door closed with the 11 other jurors. Don’t discuss it with your friends and family, don’t Google the case and don’t go in with intentions to “punish” or “free” someone without hearing all the evidence and the way that the evidence must be applied. This can result in fines for you, and a mistrial.
8. Take care of yourself
Serving on a jury can be traumatic and isolating. Even after the case is over, Canadian laws don’t allow jurors to talk about the verdict or deliberations. Take advantage of the free counselling the court offers and make sure you take time to process the trial.
Little Known Facts About Being a Juror
You can be booted within minutes
Though formally banned in Ontario in 2019, it used to be legal for prosecutors and defence attorneys to use peremptory challenges to reject a potential juror without a reason why. While advocates for peremptory challenges believe they increase racial diversity on the jury, critics argue they’ve been used to systemically remove jurors of colour in order to influence a verdict, namely when a defendant is also a person of colour.
If you’re a juror, you can boot out others
Also banned along with the peremptory challenges, it used to be that once the jury had at least two people on it, they were able to challenge and reject potential jurors. Once a juror is selected, it becomes the previous and new juror’s duty and so on until the jury is formed.
You can still be challenged for cause
Depending on the case (often when the defendant is Black or Indigenous), lawyers may ask you questions about your racial bias, and other race-related questions. (A note: Saying you’re racist will not automatically get you excused from serving.)
There are back-ups
The criminal trial jury is often made up of 12 people, but it can be fewer. (Welsh king Morgan of Gla-Morgan, who established jury trials in 725 C.E., chose 12 as a reference to Jesus’s 12 disciples.) Two alternates are chosen to fill in, in case any jurors are no longer able to serve. Sometimes they get excused early, but they are required to spend the same amount of time at court as the other jurors.
You become a number
To protect your privacy, you will be referred to as your juror number in court.
Your notes are top-secret
Jurors are allowed to take notes, but the paper and pens are provided. Your notes cannot be taken with you outside the courtroom.
You’re being watched
Ever see films where the defence hires profilers to look into the characteristics of jurors? Those exist. You might notice the attorneys, or even reporters, watching you. They’re gauging your reaction to facts, evidence and witnesses to get a sense of the direction you’re leaning.