What is the test for a jury composition based on cultural diversity?

It is noteworthy that in Regina v. A.F., supra, an aboriginal accused submitted that culture, language and geography negatively impacted his ability to have a fair trial unless he was tried by a jury of his cultural peers in his community. The court considered the degree of breadth or narrowness that should be assigned to the definition of “community” and stated at para. 72-73: 72 . . . If the position of the applicant were to prevail, the definition of community would be narrowed unduly and the gathering of the array is bound to occur substantially along cultural and racial lines. 73 To this point, judicial authority in Canada has strongly disapproved of efforts to deliberately set the ultimate composition of juries. The overwhelming weight of authority considers the representativeness of the jury as one of the inherently significant aspects of the jury system; and when it described, ‘representativeness’ is cast broadly through the use of descriptions such as “wider community”, “diversity”, “cross-section”, “society” and the “public”.

It is also clear that the law has never held that the jury must be representative. In Regina v. Biddle, 1995 CanLII 134 (SCC) at paras. 52-58, Mr. Justice Gonthier stated it was to be sought after but was not essential. In the same decision, Justice McLachlin, as she then was, stated that while representativeness may be generally a good thing the law has never suggested that a jury must be representative.

Again, in Regina v. A.F., at paras. 156 to 157, the court confirmed that for a jury pool to be representative, it need not have any particular racial, ethnic or gender composition; rather it is sufficient if the jury is randomly selected from the community pursuant to the provisions of the provincial Jury Act. Racial profiling is neither required nor is it the norm.