Fairer justice system will take great effort
Being under-represented on juries is just tip of the iceberg when it comes to problems
Prime Minister Justin Trudeau and Justice Minister Jody Wilson-Raybould don’t have the power to eliminate the effects of colonialism and the residue of racism that remains to pervert the country’s criminal legal system.
They can eliminate peremptory “challenges” to potential jurors because that is part of the criminal code and under their jurisdiction. The Mother of Our Legal System, the U.K., did it in 1988. It’s no big deal.
The “challenge” is not the real issue, and removing it will not necessarily increase First Nations’ participation on juries.
Each province provides its own legal administration, and the dysfunction and systemic problems plaguing First Nations cannot be remedied by federal fiat or decree.
Gerald Stanley’s acquittal last week of second-degree murder in Saskatchewan for the 2016 killing of Colten Boushie, a 22-yearold Indigenous man, is only the latest tragedy.
There is a long history of travesties of justice involving First Nations from coast unto coast unto coast that stretches back from the Missing and Murdered Women and Girls through Donald Marshall Jr., to Louis Riel.
Over the last 30 years, we have seen major inquiries and initiatives by governments and the Supreme Court of Canada to address the inherent racism and overrepresentation of First Nations in the criminal justice system.
Criminal Code amendments at the end of the last century told judges to give greater consideration to the background of Aboriginal offenders and alternatives to prison.
In 1999, the Supreme Court of Canada supported those changes with a ruling that articulated principles to guide judges weighing the fallout of the systemic abuse suffered by Indigenous people.
Judges were also to consider traditions in Indigenous communities of restorative justice and social healing to avoid meting out culturally inappropriate sentences.
In 2012, the Supreme Court reinforced those principles because the situation had worsened. In the mid-1990s when the Criminal Code was amended to help Aboriginal offenders, Indigenous peoples made up 16 per cent of those in custody.
Today, that number is at 25.2 per cent, even though Indigenous peoples constitute only about five per cent of the population.
The number of Aboriginal women in jail is even more disproportionate: 36.1 per cent of the prison population.
Eliminating the peremptory challenge isn’t going to move those numbers because there are so many other factors at play.
First there is history — the legal system was used to strip Aboriginal people of their land, break up their families and imprison them for their cultural practices.
As the inquiry into the composition of juries in Ontario by former Supreme Court of Canada Justice Frank Iacobucci stressed in 2013, the vast majority of First Nations see their cultural values, traditional approaches to conflict resolution and their laws conflicting with European values and law-making.
They view it as foreign, imposed and responsible for the discrimination that has left them paupers in a land they once ruled.
Just listen to the debate that led to the removal of the statue of B.C.’s first chief justice, Matthew Begbie, and imperils remembrances of Canadian icons.
There is inter-generational hatred and mistrust among Aboriginal people of the government and the courts.
The composition of juries reflects that because jury rolls are the biggest impediment to Indigenous participation, not the peremptory challenge.
First Nations are massively under-represented from the start because in many jurisdictions there have long been problems compiling lists of individual reserve residents that equate with voters lists to produce inclusive jury rolls.
Some provinces have turned to using health insurance information.
In part, though, many First Nations haven’t wanted to be enumerated because they fear government-compiled lists will lead to violations of their privacy rights or worse, as such lists were used in the past to seize children to be “educated.”
Then there are the issues around a jury summons and questionnaire that come with printed statements of fines or imprisonment for non-response (within 10 days in B.C.) — if you’re marginalized and alienated that can sure sound intimidating and threatening. And if you are poor, live far from court, and have to give up work?
In northern or rural B.C., where many First Nations live, the barriers include the cost of transportation, inadequate allowances for accommodation and meals, the absence of child and elder care as eligible costs, and lack of income supplements.
And what about the questions you must answer to be a juror? The requirement to declare Canadian citizenship when many First Nations claim sovereignty and are still fighting to win back their land?
Or the language requirement — English or French? Some First Nations still speak their Indigenous language — perhaps that should be accommodated.
The need for a collaborative approach to develop a proper jury roll process for First Nations is viewed as a necessary step forward, more important than the peremptory challenge.
And that is only one hill — there is still a mountain to climb.
It will take much, much more. Mostly, it requires a sea change in Canadian attitudes toward First Nations.
And recognition that until now, even in the 21st century, we have been part of the problem in failing to demand governments provide the resources and programs First Nations need to recover and participate fully.