The Jury Representativeness Guarantee in Canada: The Curious Case of Disability and Justice Making

Abstract

In Canada, juries are selected in order to act as the conscience of the community. To this end, the jury ultimately selected aims to be representative and should correspond to a cross section “the larger community”. When questions of representation are considered in the literature or by the courts, the focus is often limited to race and ethnicity. However, Canadian literature often overlooks the effects of jury representativeness on other marginalized communities. This paper addresses this void by examining the issue of disability and jury representativeness, something rarely considered within a Canadian context or by the Canadian courts. We first discuss some recent examples of case law in the representativeness jurisprudence, including the recent Supreme Court ruling in R. v. Kokopenace and how representativeness relates to sections 11(d) and 11(f) of the Charter. We then provide data from a study we conducted using a student sample to provide some insight into public perception of representation guarantees as they are afforded to disability communities. This study examined respondents’ level of agreement with statements relating to representativeness guarantees and the rights of persons with mental or physical disabilities to be involved in the justice-making process. While there was considerable variation in individual responses, the results of this study ultimately demonstrated discrimination against jurors with both physical and mental disabilities which, when considered alongside recent jurisprudence, may be indicative of future adversity for disabled communities and for their advocates.

Keywords: jury, criminal law, representativeness, mental health, Charter

JEL Classification: K14