Every jury over last three years in Ontario from tainted pool

Mistakes leading to motions of tainted trials

Everyone sitting on every jury at trials in Ontario during the past three years was drawn from incorrectly assembled pools of eligible jurors that wrongly selected some and excluded others, especially people who recently turned 18 years old.

Mistakes in creating the province's jury pools went unnoticed since 2019 and are now leading to motions complaining of tainted trials.

Further, it cannot be fixed for trials throughout the remainder of this year, court heard.

One solution is to wait until 2023 to hold trials under a proper jury roll. A judge rejected that idea.

One of the jury selection errors inadvertently removed approximately 140,000 eligible 18-year-olds from possible jury duty each year in 2020, 2021 and 2022.

The problem wasn't noticed until May and Ontario's Ministry of the Attorney General notified legal associations in July.

Since then, at least two people facing jury trials have complained to the court about the impact of tainted juries.

The Criminal Lawyers' Association, representing Ontario's defence lawyers, said these mistakes are “inexcusable” and calls for an investigation of how they happened.

Juries are supposed to be a randomly selected group of people from the community who hear evidence at a trial and then have secret deliberations to decide a defendant's innocence or guilt.

Juries are a crucial part of Canada's justice system.

“It is the civic duty of all Canadian citizens 18 years of age and older to serve as a juror if selected,” the Ontario government says in its public information on jury duty.

A huge pool of potential jurors — more than 10 million are on the current list — is assembled each year, from which jurors are randomly drawn throughout the following year to serve at each trial requiring a jury.

Errors in recent jury pools stem from changes to ensure more diverse juries.

In 2019, the Ontario government switched where its list of potential jurors comes from. Instead of property tax rolls — which precludes a significant segment of society — the Ministry of Health's Ontario Health Insurance Plan records were used.

The new source list for juries provided 9,839,071 names in 2020, 10,047,611 in 2021, and 10,186,137 in 2022.

About eight per cent of those names are randomly drawn each year to form jury pools in courthouses across the province from which juries, usually of 12 people, are selected.

In mid-may, someone noticed a lack of 18-year-olds on the jury roll, according to court records.

An investigation found that since the change to OHIP records, people who were not 18 when the lists were prepared — but turned 18 before the start of the year the lists were used — were not included but should have been.

The probe discovered other mistakes.

The questionnaire sent to potential jurors on the 2022 list had not been updated. It asked people if they had previously served on a jury in 2018, 2019, or 2020. If they answered yes, they were excluded.

Those were the wrong years to ask about. The question is supposed to filter out anyone who was on a jury within the previous three years. It should have asked about 2019, 2020, or 2021. That means potential jurors who served on a jury in 2018 were wrongfully excluded and those who had served in 2021 were wrongfully included.

Court could not determine how many people that was, Judge Leonard Ricchetti said in a recent ruling on the jury pool problems.

In one defence motion seeking a new jury, the defendant's lawyer accepted the problems were mistakes and not purposeful but relied on breaches of the Juries Act in their challenge.

In another motion of complaint, the defence alleged a “failure of due diligence” could amount to “wilful misconduct” or an appearance of partiality.

Crown prosecutors opposed the motions calling it minor, technical mistakes.

Jamie Lee, the province's jury sheriff, told court the mistakes were “missed” despite a “significant” and “rigorous” review process.

Lee said the jury source list will now include those turning 18 by Dec. 31 of the year the roll is prepared for use the next year.

Court heard it can't be fixed until next year's jury list is prepared. Lee said the Juries Act doesn't permit changes after the list is certified and even if it was allowed, there isn't time.

“It takes months to complete,” she told court.

Ricchetti denied both defence motions.

“The impact of this error did not affect the availability of a broad cross section of the general public from being available as prospective jurors for this trial,” he said in one ruling, issued Thursday.

He found “no evidence of any deliberate misconduct” and no Charter right breach.

Daniel Brown, president of the Criminal Lawyers' Association, said the government's mistakes are troubling.

“It is essential that an accused person receives a fair trial by an impartial jury,” Brown said in an interview.

“While it is troubling that eligible jurors were improperly excluded from participating in recent jury trials, at present, there remains insufficient evidence establishing that this was done deliberately or that it unfairly impacted the composition or partiality of the jury.

“Regardless of intent, these types of errors are inexcusable, and an immediate investigation should be undertaken within the Ministry of the Attorney General to identify the source of the mistake and to guard against similar occurrences in the future.

“Our justice system demands better,” said Brown.

Maher Abdurahman, a spokesman for the Ministry of the Attorney General, said officials “identified issues that have affected the composition of recent jury rolls in Ontario and has taken steps to notify impacted parties in the justice system.

“It would not be appropriate to comment on any specific matters. Any position to be taken by the Crown on affected cases will be made in court at the appropriate time. The Ministry of the Attorney General is taking all necessary action to address these errors and ensure that the jury roll is accurate, secure and in compliance with Ontario's legal obligations,” said Abdurahman.