Equality vs. Fairness: Intention & Discrimination (and juries) (and…)

Ruthann Robson reviews Nina Chernoff‘s  Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards (March 15, 2012).  Hastings Law Journal, Forthcoming (here on SSRN) at Jotwell Equality under the heading Equality vs. Fairness.
Chernoff’s paper is about US Courts wrongly applying US 14th Amendment (Equal Protection) standards to claims under the Sixth Amendment’s guarantee of a jury composed of a fair cross section.  The critical difference is that, famously, the 14th Amendment requires intent to discriminate, but (explains Robson):

[t]he Sixth Amendment… guarantees an “impartial jury.”  In common parlance, this is a “jury one one’s peers.”  In constitutional doctrine, it requires that the jury members be “drawn from a fair cross-section of the community.

Chernoff describes a rash of cases in which claims under the 6th amendment have been denied on the basis of lack of intent to discrimination.  She argues this is simply, doctrinally wrong.

Robson uses Chernoff’s exposé to encourage readers (mainly, probably, Americans) to start questioning the intent requirement itself and the many injustices that are placed beyond the reach of American Equal Protection law because of that requirement.

Section 15 jurisprudence (Canadian Charter equality protection) of course, lacks an intent requirement.  Robson reminds us that the US Supreme Court was concerned about an impact rule, saying:

in Washington v. Davis [426 US 229 (1976)] [it] would raise “serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.”

Well.  Maybe.  Somehow we have avoided all those transformational claims here in Canada, despite clear statistical indications that race and gender salient in this country.

On the other issue, the jury issue, some will be aware that former Supreme Court Justice Frank Iacobucci has been appointed by the government of Ontario (Terms of Reference of his appointment here) to head an Independent Review of the representation of First Nations people on juries in Ontario.

In 2008, it was first revealed during an inquest that the jury roll in the Kenora district in northern Ontario only contained names from 14 of the 49 Nishnawbe Aski First Nations.

A court-operations supervisor said in an affidavit that only 44 natives were being considered for jury selection in the district even though aboriginals make up a large proportion of the population.

The affidavit said Ottawa had not provided the jury centre with band electoral lists in years.

From:  Ont. calls inquiry into aboriginal participation on juries The Canadian Press
Posted: Aug 11, 2011 8:12 PM ET. Here.

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