On 2 June 2021, the West End Phoenix published an article by Eternity Martis entitled “Black in the Jury Box: Systemic Barriers,” part of 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.”
The article quotes Michael A. Johnston about his efforts to amend Ontario’s jury eligibility laws and the barriers that people with criminal records continue to face:
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 This number is even higher in Ontario and Toronto, given the high number of withdrawn charges and non-convictions (charges that are dropped and don’t result in a conviction but stay on your record), and a large population of racialized people.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.’”
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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.”