Lawyer speaking before jury members. Stock photo from iStock/Getty Images
Every year the Ontario Ministry of the Attorney General sends out jury eligibility surveys to individuals across the province. This year, the surveys mistakenly included three convictions on the list of criminal convictions that are okay for potential jurors to have.
The Ontario Juries Act requires eligibility surveys to go out before the end of October each year. More than 560,000 surveys went out to Ontarians in September this year. The surveys indicated convictions for impersonating a police officer, committing an indecent act, and making indecent or repeated phone calls will not automatically exclude an individual from serving jury duty. This is wrong. These convictions make individuals ineligible to sit on juries.
In Ontario, individuals with minor summary convictions are allowed to sit on juries. For instance if an individual has a conviction for engaging in a prize fight, being nude in a public place, or practicing witchcraft, he or she is still eligible for jury duty. These types of convictions come with a maximum penalty of $5,000 in fines and/or jail time for up to six months.
See: No horses or bears, but witches okay
Impersonating a police officer, however, can be prosecuted as a summary or an indictable offence under s. 130 of the Criminal Code. Indictable offences are more serious in nature. Therefore, if an individual was convicted of impersonating a police officer as an indictable offence (punishable by up to five years in prison), he/she would be ineligible for jury duty. The reason for excluding Ontarians with serious convictions is to ensure jury panels remain impartial: free of bias for or against criminal behaviour and the justice system.
The same is true of the offence of performing an indecent act, found under s.173 of the code. It can be an indictable offence punishable by up to two years in jail.
Making indecent or repeated phone calls with an intent to alarm, harm, or harass a person is also an offence under s. 372 of the code. It can be treated as an indictable offence that is punishable by up to two years in jail.
The ministry of the attorney general says it’s too late to fix the surveys, but the possibility of someone with these convictions ending up on a jury panel is small because of the relatively low number of convictions in these areas.
Additionally, the ministry has expressed jury eligibility and qualification issues can’t be used to overturn a verdict after a trial because both the code and the Juries Act foresee such issues. For example, s.670 of the code reads: judgments shall not be stayed or reversed after verdict on an indictment (a) by a reason of any irregularity in the summoning or empanelling a jury…”
Some defence lawyers have raised concerns about the inaccurate surveys. For instance, if an individual convicted of “impersonating a police officer” ends up sitting on a trial involving the same charge, there is perceived bias and it’s not clear whether any verdict of “guilty” or “not guilty” will be subject to review. Generally speaking, jury verdicts can only be appealed if the jury applied the wrong law.
All of this could have been prevented if someone from the ministry had properly reviewed the eligibility surveys before sending them out. This is a cautionary tale for all provinces. This type of oversight brings the credibility of our justice system into question.