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Jury form errors raise questions about administration of justice in Ontario

Last Updated Oct 12, 2015 at 11:20 am EDT

The Middlesex Court House in London Ontario, Canada - February 27, 2012. Mark Spowart/THE CANADIAN PRESS.

TORONTO – The standard form sent to prospective jurors in Ontario contains inaccurate instructions that could lead to ineligible people sitting on juries, The Canadian Press has discovered.

Seasoned lawyers, initially unaware of the issue, said the problem raises concerns about whether juries have been properly constituted.

“There’s a real risk that potential jurors are misled and that some who are actually ineligible in good faith don’t claim ineligibility and may not be weeded out in the course of the jury-selection process,” said lawyer Brian Gover, who has also been a prosecutor.

“There’s also the concern about the perception that this could create about the administration of justice.”

In line with other provinces, juror notices in Ontario state that anyone convicted of a criminal offence is, in most cases, barred from serving on a jury. However, instructions accompanying the eligibility questionnaire list more than two dozen offences that do not lead to automatic disqualification.

“If you have been convicted of an offence listed below, you may still be eligible for jury duty,” the instructions for Question 6 state.

The list includes offences from engaging in a prize fight and trespassing at night, to being nude in public place or committing an indecent act.

The Criminal Code recognizes two groups of crimes: indictable offences, and less serious summary offences, which carry lower maximum punishments. In so-called hybrid offences, it is up to the prosecutor to decide whether to go the summary or indictment route.

According to Ontario’s Ministry of the Attorney General, the Juries Act was changed in mid-2010 to exclude people convicted of hybrid offences — in addition to those convicted of indictable offences — from serving as jurors.

The problem is that three of the offences listed on the questionnaire as not affecting jury eligibility became hybrid as long as five years ago. They include impersonating a police officer, committing an indecent act, and making indecent or repeated phone calls.

As a result, legal experts say jury panels created on the basis of the questionnaire could be tainted.

“That list is inaccurate. It’s flat out wrong in at least three instances,” said longtime criminal lawyer Tony Bryant.

“That would mean some jurors, quite inadvertently, may well have filled out that form thinking that they are eligible — but they are in fact not eligible.”

Another veteran lawyer, Enzo Rondinelli noted citizens are required by law to fill out and return the form — failure to do so is a summary offence — and have to rely on the instructions. Any mistakes in those instructions is problematic, he said.

“It does strike right to the core of the legitimacy of it,” Rondinelli said.

In addition, he called it “quite odd” that someone convicted of lying under oath or personating a peace officer could, according to the form, still be a juror.

While it’s unlikely an Appeal Court would overturn convictions solely based on the eligibility-form problem, experts say such a challenge might succeed if a lawyer raised the issue at trial without success.

Either way, Bryant said, the situation needs to be thrashed out.

“The system for creating the panel is flawed,” he said.

Notified about the problem, the Attorney General Ministry said it would be making changes.

“We are taking immediate action to address the discrepancy and are instituting additional processes to screen out any prospective jurors who are ineligible,” spokeswoman Heather Visser told The Canadian Press in an email.