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Improve aboriginal jury representation: lawyers

|Written By Dale Smith

Lawyers say the issue of ensuring adequate indigenous representation on juries remains important, while the public waits on results from a provincial committee charged with looking for solutions to the issue.

Jessica Orkin says the ‘treatment of Aboriginal Peoples is one of the more shameful parts of our justice system.’ Photo: J.R. Bernstein
The Debwewin Committee was formed in 2013, but it has yet to report back on its findings on how to improve the participation of indigenous people in the jury process.

The issue reached the Supreme Court of Canada in 2015 with R. v. Kokopenace (2015 SCC 28), where a man facing a second-degree murder charge and convicted of manslaughter challenged the lack of his on-reserve peers in the jury.

The SCC set aside the 2013 ruling of the Ontario Court of Appeal that ordered a retrial with a more representative jury roll that included on-reserve indigenous people.

However, two dissenting justices argued that there was a sufficient connection between state action and inaction and the lack of a representative jury roll and that resulted in a breach by the state of the accused’s right to a representative jury roll as guaranteed by the Charter.

Lawyers say the issue of inadequate representation continues to demand attention.

“The treatment of Aboriginal Peoples is one of the more shameful parts of our justice system,” says Jessica Orkin, a partner at Goldblatt Partners LLP in Toronto, who was council for Clifford Kokopenace at the Supreme Court.

Orkin, who is not involved in the current process around Debwewin, notes that the criminal justice system needs juries with indigenous representation, especially in the most serious of cases.

The roots of the Debwewin Committee trace back to the report commissioned in 2011 by the Ontario government, where former Supreme Court of Canada justice Frank Iacobucci looked at the issue of indigenous representation on juries.

Iacobucci made 17 recommendations in his final report in February of 2013, including striking a committee to deal with those recommendations.

The Debwewin Committee was formed later that year, headed by Irwin Glasberg, assistant deputy attorney general, and Alvin Fiddler, deputy grand chief of the Nishnawbe Aski Nation.

The committee was given three years to complete its work, but that deadline has since passed. An interim report was tabled in March 2015, but in the time since, the committee’s website has been shut down. A provincial spokeswoman says a final report is on its way and will be publicly available on the ministry’s website.

“Debwewin held its final meeting and is now preparing its final report to present to the deputy attorney general,” said Emilie Smith, spokeswoman for Ontario Attorney General Yasir Naqvi, in an emailed response.

Frank Addario, principal with Addario Law Group LLP in Toronto, says change cannot come soon enough.

He says it’s frustrating how slowly change comes for indigenous people in Canada and that almost every positive change needs to be negotiated or litigated over a period of years.

In R. v. Kokopenace (2013 ONCA 389), the majority of the Ontario Court of Appeal ruled that in the state’s failure to make reasonable efforts to deliver questionnaires to indigenous on-reserve residents and encourage their response, Ontario failed to meet its constitutional obligations and ordered a new trial.

But at the Supreme Court of Canada, in a 5-2 ruling, the majority ruled that when it comes to the jury roll, representativeness focuses on the process used to compile it and not its ultimate composition.

Court records from Kokopenace demonstrated the difficulty in finding indigenous members to fill the jury rolls, given that those who reside on reserves aren’t captured by the Municipal Property Assessment Corporation’s enumeration every three years, and it was further complicated by the fact that, after 2001, the Department of Indigenous and Northern Affairs stopped providing band lists to Ontario under the rubric of privacy concerns. From that point on, staff in the Court Services Division were expected to obtain lists directly from the reserves, which was made more difficult by the fact that many of those communities are fly-in only and have only general delivery community post offices for contacting people.

Addario, who did not act in the case, says the SCC’s judgment in Kokopenace was a “huge disappointment” for indigenous communities and the desire for fair representation on juries.
“No doubt the fact that the Supreme Court ruled the way it did in Kokopenace meant that the pressure was off the government to act swiftly,” says Addario.

“They’ve been given the luxury of a period of years to remedy the problem they created.”

Orkin says that while the issue of jury representation seemed to be gaining traction “for a short moment” after the Court of Appeal decision, it now appears to be losing attention.

“That shift between the Court of Appeal decision and the flurry of activity that followed it and the Supreme Court decision — I think that there was effort put in in that time and some degree of panic of how this problem was going to be managed and what work could be done to actually address it,” says Orkin.

“It’s not something that could be managed easily, and it’s a legacy of neglect.”

Orkin says she has observed that, after the SCC decision in Kokopenace and after the trial-level motions stopped being raised after that ruling, it appears the sense of urgency in the Ontario justice minister’s office dissipated.

“Jury trials are not being delayed anymore, and the crisis has passed,” Orkin says.

“Not the crisis of the criminal justice system, but the crisis of being able to prosecute the most serious crimes in the far-flung parts of our province.”

However, the minister’s spokeswoman said one of the early successes of the work of Debwewin has been the creation of a pilot project where on-reserve volunteers were sought to serve as jurors at coroner’s inquests in the judicial districts of Thunder Bay and Kenora.

“The pilot surpassed its original goal and over 450 volunteers have come forward,” said Smith. “The volunteer list has been used in at least seven inquests to date, including the First Nations Youth Inquest into the deaths of seven indigenous youth in Thunder Bay.”

Orkin says that while this is encouraging news, these voluntary processes very likely wouldn’t meet the other standards that apply to jury selection, such as random selection and the fact that people have not put themselves forward.

“My understanding is that part of what was persuasive in getting volunteers for the inquests was making it clear that this was a restorative process; it was one leading to recommendations not punishment,” says Orkin.

“The idea of participating in a jury that will lead to potentially sending away a community member is also part of what causes people not to volunteer for jury service.”

Orkin says that education and making participation as easy as possible are part of the solution; so, too, is thinking about the structure of the criminal justice system in thinking of other ways of handling offences that, while not suited to murder charges, would address some of the other areas of alienation of indigenous communities to the justice system.

“Those are more challenging,” Orkin says.

“It requires resources and it requires a real rethink.”

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