Search for a just jury representation

Over-represented in our prisons. Under-represented on our juries.

No Supreme Court decision was going to change that reality for aboriginal Canadians.

But even if the court, by a 5-2 decision, ruled that the constitutional rights of Clifford Kokopenace were not violated when he was convicted of manslaughter by a jury that included no aboriginal members, the decision again raised the question as to whether governments in this country are really doing enough to get aboriginals on our jury rolls.

Kokopenace, a native, was convicted in Kenora, a district in which on-reserve residents made up 32 per cent of the population. Yet not a single aboriginal sat in judgment of him on the jury.

“A jury roll containing few individuals of the accused’s race or religion is not in itself indicative of bias,” Justice Michael Moldaver wrote for the majority.

In this case, if Ontario made a reasonable effort to compile an inclusive, representative jury roll — but a segment of the population declined to participate — it is not the province’s fault and it had addressed its constitutional obligation, the court ruled.

Government inaction is one problem. But there are other problems with the jury system in this country that touch on aboriginal rights.

Ottawa lawyer Michael A. Johnston, in a paper published last week, argues that up 10 per cent of Canadians are being unfairly barred from jury duty because they have a criminal record.

In Ontario, for example, citizens are ineligible to serve as jurors if they have been convicted of a crime prosecuted by indictment, unless they have been pardoned. Saskatchewan is the only province that does not exclude those with a criminal record from sitting on a jury.

At the federal level, the Criminal Code denies jury duty to anyone convicted of a crime for which they served more than 12 months.

As Johnston points out, a criminal record does not preclude someone from voting, seeking office, practicing law, becoming a judge, paying taxes or being conscripted into fighting in wars.

Surely the value of a juror lies in the present, not what he or she may have done in the past.

But it really places aboriginals in double jeopardy.

Aboriginals, already detached from the legal system when it comes to jury duty, are also disproportionate- ly barred from serving because of criminal records.

Howard Sapers, the outgoing federal correctional investigator, revealed in a 2013 report that approximately 3,400 First Nation, Métis or Inuit prisoners accounted for more than 20 per cent of the present federal Canadian prison population. Aboriginal Canadians make up just 4 per cent of the Canadian population.

Sapers said aboriginal women comprised approximately 32 per cent of all female federal prisoners in 2010-11 — up more than 85 per cent in 10 years — and, based on current demographic trends, he said the rise in aboriginal prisoners will continue to outpace the general population in this country.

“We have miles to go before we’ve even completed the first steps of an appropriate response to the needs of aboriginal offenders,” he said in an interview this month, as he prepared to leave his post.

Johnston believes a disproportionate number of aboriginals are being deprived of having a say in the system that is “consuming their peoples’ liberty at voracious rates.’’

The matter before the court Thursday was the subject of a massive study by former justice Frank Iacobucci.

In 2013, he recommended the use of OHIP databases to compile a list of First Nations individuals living on remote reserves for the purposes of compiling a jury roll. He recommended a new co-operative framework between Ontario and Ottawa to compile band residency information, simplifying the wording on questionnaires sent to prospective jurors in the north, translating the questionnaire into First Nations languages where applicable, removing language threatening fines for non-compliance and giving them more time to return the jury questionnaire.

Some of his work is coming to fruition in northern communities when it comes to inquests, the subject that first brought the issue to wide attention.

But progress on native representation on juries hearing criminal matters is difficult to discern.

Serving on a jury and deciding the fate of a peer is the ultimate in democracy in this country. It is the way citizens can push back against overly aggressive police or prosecutors or help add closure to the victims of crime.

Thursday’s decision was correct in the legal sense. But anything that limits the number of prospective jurors in this country is an affront to democracy. Tim Harper can be reached at tharper@thestar.ca Twitter:@nutgraf1