Informed by my experience as a juror, I advocated for changes in the legal system in the Toronto Star
Let Jurors Speak to Combat Prejudice in Court
Max Stern is a former foreperson of a jury and a communications consultant living in Toronto.
“Are you a racist?”
That was the gist of the question I was asked by defence counsel in front of a Superior Court justice I panelled at the convention centre for one of the few jury trials in Ontario through the COVID-19 pandemic.
After gazing into the eyes of the Black defendant, and answering “No,” I became juror No. 4 in their trial for unlawful procession of guns, ammo, drugs and cash.
This interaction, before the trial even began, was the last time anyone discussed culture and race despite it being at the centre of this case. It represents the dated approach by the courts to ensure fairness by superficially screening for bias, instead of equipping jurors to understand nuance, through criminal justice proceedings.
There is, however, another solution that could make a real difference combating prejudice in courts: letting jurors speak. This practice is already in place in jurisdictions like Colorado and should come to Ontario next.
Unlike a trial before a judge alone, a jury in Ontario can only listen and not ask questions. Judges, present in both types of trials, can ask whatever they want from the litigants and witnesses to seek clarifications based on their own knowledge gaps.
Jurors are not afforded this opportunity, despite their responsibility for the verdict. They can submit written questions to the judge, but that is usually after the trial has been completed as part of deliberations and once everyone has gone home. This means the focus is often helping jurors understand if the evidence presented supports conviction, not the substance of it.
My mostly white jury of 12, day-after-day, heard from the involved parties and experts about the events surrounding the alleged crimes. This included the supposed characteristics of a drug dealer, mechanics of a gun and even personal details about the defendant’s compliance paying child support.
What was most curious is we never learned about the underlying cultural dynamics at play, leaving the jury to figure it out ourselves.
Knowing more about these topics could have been important to our assessments, as we were tasked with judging the credibility of witnesses and deciphering evidence.
Providing tools to jurors would also ensure they do not rely on those in their group with similar personal experience to act as translators, shaping understanding based on contexts entirely removed from the facts of the trial — something judges warn against.
What if we could have just asked?
About a month after panelling I read aloud a not-guilty verdict, as the foreperson, in a Toronto courtroom. The Star’s courts reporter Betsy Powell detailed my experience.
Now, as a former juror, I am advocating for reform to get my voice back and make the criminal justice system more equitable to racialized communities.
Advocates have long proposed different models to ensure the makeup of juries reflects our society, like increasing compensation so they do not just include those who can afford to participate. This is important, but just one part of it.
I propose Ontario copy other jurisdictions, and instead of asking if someone is a racist as a superficial screening tool, courts actually help answer jurors’ questions through the trial.
This will make sure to not assume, or reinforce, a juror's level of understanding. Just as judges are allowed.