Lawyer takes on jury system
If one has a right to be tried by a jury of peers — shouldn’t there be more aboriginal faces on Saskatchewan’s juries when the accused is of aboriginal ancestry?
Regina lawyer Bob Hrycan has launched a unique legal challenge which, if successful, could have farreaching implications for the jury system in this province.
Stony Lee Cyr is a 36-yearold aboriginal man who faces trial on one count of aggravated assault and two counts of assault with a weapon stemming from injuries suffered by a man, also aboriginal, in 2011 on the Pasqua First Nation.
Cyr wants to be tried by a jury.
But his lawyer is seeking to have the charges stayed before they even get to trial — arguing the Saskatchewan government has failed in its constitutional obligations when it comes to juries and aboriginal accused, like Cyr. Even if the trial proceeds, Hrycan says his client has a treaty right to at least a partially aboriginal jury.
“I can tell you from my own personal experience — an aboriginal person facing trial by 12 white jurors does not believe he’s going to receive a fair trial,” the veteran lawyer said in an interview after court.
“No applications like this have ever been made,” he added.
Arguments on the issues are expected to be heard over the next couple days in Regina Court of Queen’s Bench, when government lawyers will also respond to the application.
As part of his submissions, Hyrcan intends to reference a report, prepared by the Justice Ministry in 2004, which explored the issue of under-representation by aboriginal people on juries.
“Our position is the government chose not to act when they were aware of the problem. Now there’s a constitutional dimension to the problem,” said Hrycan, who contends there is “systemic underrepresentation” of aboriginal people throughout the jury selection process.
On Monday, Justice Lian Schwann began to hear evidence on the defence application when Hyrcan called Sheriff John Rhinelander to explain how residents are picked for jury service.
Rhinelander admitted that in his 30 years working with the sheriff ’s office, he has seen only “a handful” of people from First Nation reserves serve on juries in the Regina judicial district. However, he noted that jurors aren’t required to identify ancestry nor is it listed on the jury summons.
He told the court he has heard from some aboriginal people summonsed for jury service that they would not serve because “they don’t trust the system” or didn’t want to be in the position of judging someone. Others living on reserve have raised logistical problems of childcare and travel to come into Regina.
The application follows a report released earlier this year in Ontario. Authored by former Supreme Court justice Frank Iacobucci, he concluded aboriginal people in that province aren’t sufficiently represented on juries — a problem he subsequently suggested likely exists throughout the country. Part of the Ontario problem is that potential jurors are chosen from municipal assessments lists. But because aboriginal people on reserves don’t own land, they don’t appear on those lists.
In Saskatchewan, prospective jurors are chosen at random using computerized lists of those with Saskatchewan health cards within a judicial district.
Earlier this year, an Ontario court ordered a new trial for a convicted killer after finding the province had violated his rights by failing to ensure aboriginal people were properly represented on jury rolls, despite knowing of the longstanding problem.
Hrycan said that decision reworked the legal landscape for constitutional obligations and juries. He said the ruling doesn’t mean an accused has a right to have certain members of his own race on the jury, but rather to ensure members of his race have an equal opportunity to make it onto the list or roll of potential jurors.
The racial makeup of juries became a heated controversy in 2003 after an all-white jury acquitted two Caucasian men of sexually assaulting a 12-year-old aboriginal girl. At that time, the provincial government said it was embarking on a review of the jury selection process to explore ways of ensuring more racial balance.