A Tale of Two Countries' Engagement with the Fair Cross Section Right: Aboriginal Underrepresentation on Ontario Juries and the Boston Marathon Bomber's Jury Wheel Challenge

In both Canada and the United States, the constitutional right to a jury trial includes the right to select a jury from a representative cross-section of the jury-eligible population. This article compares and contrasts how this right has been interpreted in the two countries through the lens of recent controversies. In Part I, the article examines how the Supreme Court of Canada and the United States Supreme Court have defined the representative cross-section component of the right to a jury trial in the two respective countries. In Part II, the article focuses on the crisis of Aboriginal underrepresentation on coroner and petit juries in Ontario, Canada. The findings of the Iaocubucci Report exploring the breadth of the problem, the reasons for the chronic underrepresentation of Aboriginals and recommendations for reform are canvassed. The article then moves to a critical examination of the groundbreaking decision of the Ontario Court of Appeal in R. v. Kokopenace where the court extended the doctrine of honour of the Crown to impose heightened obligations on the state to ensure adequate representation of Aboriginals on the jury rolls.\nIn Part III of the article, the Boston Marathon bombing case of Dzhokhar Tsarnaev is used as a lens through which to understand how defendants marshal representative cross-section of the community arguments in the United States. Tsarnaev asserted that his right to a jury trial was infringed by the underrepresentation of African Americans and almost complete absence of citizens aged seventy and older from the venires in both his grand jury and petit jury. It is argued that the biggest challenge within the American jurisprudence is the conundrum of which statistical test to employ in measuring disparity among the represented groups. The lack of judicial direction has created a difficult abyss where it is impossible for litigants or defendants to assess the likelihood of success that a challenge to a jury venire based on failure to meet the fair representation right will have. The article suggests that the coming years will be critical ones. In Canada, it remains to be seen whether the Iacobucci Report and Kokopenace decision mark a watershed moment that will lead to greater representation of Aboriginals on juries and a step toward healing the deep distrust that Aboriginals have for the criminal justice system. And in the United States, the coming years will reveal whether the courts step forward to accept the challenge of establishing principles and setting standards for the measurement of disparity when such guidance is sorely needed.

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