Jury make-up troubling issue
Despite a ruling this week by the Supreme Court that the lack of aboriginal representation on a jury that convicted a First Nations man of manslaughter didn’t violate his constitutional rights, this issue will continue to bedevil Canada’s justice system.
“There’s no question that an accused is entitled, under the Charter, to a representative jury,” Justice Michael Moldaver observed in writing for the majority in the 5-2 decision.
However, he noted as a mitigating factor that the Ontario government had made some effort to compile a representative jury roll of 175 people, of whom eight were on-reserve residents, but none of those eight were selected to try Clifford Kokopenace. The accused isn’t entitled to a jury that includes members of his own race, but only a “fair and honest” process of random jury selection, according to the court.
Yet, it’s the blunt observation by dissenting Justice Thomas Cromwell — with Chief Justice Beverley McLachlin concurring — that underlines the broader issue that remains to be confronted by Canadian jurisdictions, especially in places such as Saskatchewan with its large aboriginal population that’s disproportionately involved with the justice system as victims, accused and convicted.
“I do not regard compliance with the Constitution as either optional or as a matter of social policy,” wrote Justice Cromwell. “An aboriginal man on trial for murder was forced to select a jury from a roll which excluded a significant part of the community on the basis of race — his race. This, in my view, is an affront to the administration of justice and undermines public confidence in the fairness of the criminal process.”
His words echo the sentiments of former high court Justice Frank Iacobucci, who studied Ontario’s jury system and reported in 2013 that, “We are in a crisis situation with our First Nations people, our aboriginal people, in the justice system of Ontario and I would venture to guess that it is comparable in other jurisdictions.
“I’m not an alarmist by my nature or my record, but if this isn’t a wake-up call for us to start doing something, I don’t know what will be.”
Defence lawyers Bob Hrycan, Marianna Jasper and Christopher Hunt also raised the issue of jury composition in a Saskatchewan case that year, saying the under-representation of aboriginal people on jury panels renders the system unfair to accused people of First Nations ancestry.
Their arguments didn’t get too far either, although it’s tough to dispute Mr. Hrycan’s caustic observation at the time to The Star Phoenix that: “I can tell you from my own personal experience (that) an aboriginal person facing trial by 12 white jurors does not believe he’s going to receive a fair trial.”
Even though Saskatchewan’s juror selection process, which picks names randomly from the provincial health rolls that include aboriginal people, differs from Ontario’s system that excludes many indigenous residents, it still doesn’t address such issues as mistrust, personal hardship including lack of child care, and the challenge of travel from reserves to court to serve on juries.
Justice Iacobucci’s recommended fixes need another look across Canada because the high court’s narrow ruling in this case is simply a Band-Aid stuck on a festering wound.