Disability advocates seek removal of courtroom barriers
Betsy Powell Toronto Star
Dec. 29, 2018
A recent criminal trial at Toronto’s downtown Superior Court featured what may be a first in Ontario: a blind juror.
The fact that is, if not a first, an extremely rare occurrence in Ontario underscores that much more needs to be done to remove the barriers to equal treatment in the criminal justice system, disability advocates say.
“Certainly this applies to ensuring adequate representation of persons with disabilities on juries,” says Luke Reid, a lawyer with ARCH Disability Law Centre in Toronto.
The Criminal Code allows people with vision or hearing disabilities to serve on juries. However, an accused may challenge a juror’s service and the Juries Act deems jurors ineligible if they have “a physical or mental disability that would seriously impair his or her ability to discharge the duties of a juror.”
“However, human rights law would demand that this (or any) requirement not be interpreted in an overbroad way and that persons with disabilities have the right to the necessary accommodations,” Reid wrote in email.
Juror 29743 almost didn’t get picked. While there are likely numerous reasons preventing people with impaired vision from sitting on juries, there is still a “very active debate” around the ability of a “trier of fact” to see a witness’s demeanour in order to assess credibility, Reid noted in an email.
“I think courts tend to err on the side of caution where the right of an accused to a fair trial is potentially at issue.”
This fall, a day before jury selection in an impaired driving causing death trial, prosecutor Marnie Goldenberg told the judge she and defence lawyer Carolyn Kerr had some concerns about a prospective juror, who had shown up at the courthouse with a service dog. Goldenberg told the judge numerous photos would be introduced during the two-week trial.
Ontario Superior Court Justice Rob Goldstein told the lawyers while it was entirely appropriate to raise the issue, he didn’t intend to treat Juror 29743 any differently than other jurors.
“I think it’s something we canvass and we treat her the way we treat any other juror who has a health issue,” Goldstein said. The next day, after Juror 29743 entered the courtroom with her service dog, the judge asked her how she would “deal” with all the photos in the case.
“It would be through description … I cannot see them,” the woman, who works in human resources, told Goldstein.
“OK, all right, so if they are described – you can absorb what’s in them?” the judge asked. She said yes.
The jury selection process continued in the normal course with two already selected jurors, designated as “triers,” deciding whether or not she was an acceptable pick.
Juror 29743 said she had not heard about the case involving a man charged with impaired driving causing death on April 23, 2016, near Jane St. and Humberview Blvd. She also indicated she could consider the evidence without prejudice or bias after being told the accused was a visible minority and Muslim. Nevertheless, the triers immediately rejected her.
Goldstein, however, wasn’t satisfied. He told the triers he was going to reread their instructions and asked them to consult each other again. The test to decide is if a juror would approach jury duty with an open mind and decide the case based solely on the evidence and his legal instructions, the judge told them.
This time, the triers found Juror 29743 acceptable while counsel on both sides said they were “content” with the choice. After a few days of deliberations, the jury returned to court with a guilty verdict. The Star’s attempts to speak to Juror 29743 were unsuccessful.
Lawyer David Lepofsky, a retired Crown attorney who is blind and was not involved in the case, said having a blind juror not only makes the legal system more representative of society, it makes lawyers more effective.
There’s a lot of stuff that goes on in a courtroom that is visual and needs to be explained for the transcript, or audio recording, so having a blind juror will help ensure that happens, “so you get a better record, and it’s better for everybody,” Lepofsky said.
But there are some exceptions where a visually impaired juror might have to be excluded, he added. If, for example, the guilt or innocence of an accused is entirely based on whether a jury believes an accused looks like an assailant captured in a surveillance video.
Lepofsky, now a visiting professor at York University’s Osgoode Hall law school, said traditionally, appeal courts said trial judges were in a superior position to assess the credibility of witnesses, because they, unlike appeal judges, can access demeanour.
That view has evolved, and now appeal courts are increasingly warning “it’s wrong to over emphasize visual demeanour when assessing credibility.” He uses himself as an example to explain how everyone has different ways of doing that.
“Sighted people use eyes. I listen to a voice … and the whole idea of a jury is it’s a bunch of different people … pooling their different ways of assessing credibility and then voting as a group. Well, who’s to say visual is the only way to do it,” he said.
“Those of us who experience the world non visually, have our own experience too.”
While jurors don’t have to be statistically representative of society, there is an expectation that they bring to the courtroom their own life experience, “drawn from different parts of the community, and they pool to form a collective assessment, a very difficult assessment, who to believe about what happened.”