Editorial: A way forward on jury representativeness

On its face, the recent Ontario Superior Court case of R. v. Kennedy is proof of the seemingly overwhelming difficulty of addressing the First Nations jury issue.
In that case, Justice Andrew Goodman rejected an application to have a sheriff found guilty of fraud, partiality or wilful misconduct over the lack of First Nations members on the jury panel.

The case involved a First Nations member, Gregory Kennedy, charged with sexual interference and sexual assault. While the recent Ontario Court of Appeal decision in R. v. Kokopenace highlighted the government’s duty to make reasonable efforts to include First Nations members on jury rolls, it’s clear officials involved in the Kennedy matter did just that. In the London, Ont., area where the Kennedy matter was taking place, officials sent letters to the band chiefs of the three local reserves. There was no response.

Sheila Bristo, acting director of the corporate planning branch at the Ministry of the Attorney General, eventually had the sheriff contact the chiefs directly so a senior manager could possibly drive out to the reserves to discuss the issue. The letters all came back as undeliverable. In the end, the bands either declined to share their residents’ lists or didn’t respond.

The issue is, of course, a complex one. As former Supreme Court justice Frank Iacobucci noted in his report on the issue this year, First Nations are reluctant to participate on juries for a host of reasons. They include cultural barriers due to the fact “the criminal justice system represents deep-rooted pain and oppression for many First Nations peoples”; the overrepresentation of aboriginals in the corrections system; and the reduction in support over the years for restorative approaches to justice.

In addition, many chiefs, Iacobucci found, believe they can’t share residents’ lists due to their obligation to protect people’s privacy. Many people also oppose the threatening language in jury questionnaires for non-compliance.

“This is about reversing what has been traditional alienation and disenfranchisement between First Nations and the justice system as it’s currently set up,” says Julian Falconer, who was counsel to the Nishnawbe Aski Nation in Kokopenace.

Falconer is right. As Iacobucci noted, there’s lots of work to do in addressing the issue beyond what are the arguably reasonable efforts made by provincial officials in Kennedy. He set out a number of recommendations, which the province has already begun to act on by establishing an implementation committee.
Iacobucci’s suggestions range from the practical (such as toning down the threatening language in jury questionnaires for non-compliance) to more systemic change.

The latter issue, of course, is the most difficult to take action on. The federal government in recent years has been particularly reluctant to acknowledge and address First Nations’ deep disagreements with the system as it stands. Unless that changes, we’ll continue to see the types of unsatisfactory and ridiculous scenarios evident in Kennedy.

For more, see "Changes to jury selection 'long overdue.'"
Glenn Kauth

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