TORONTO – First Nations and legal communities will be watching closely on Tuesday when a former Supreme Court of Canada justice delivers a report on whether on-reserve aboriginals have been systematically excluded from Ontario’s juries.
The report by Frank Iacobucci comes more than 18 months after the provincial government asked him to delve into the festering issue that at one point paralyzed jury proceedings — criminal, civil and inquest.
“When our community members interact with the justice system and go through a jury trial, chances are that they won’t see a member of their community being part of the jury,” said Alvin Fiddler, Deputy Grand Chief of the Nishnawbe Aski Nation.
“We’ve known this for a long time now that it’s a real problem and that it needs to be fixed.”
The years-long lack of aboriginals first came to light at coroner’s inquests in northern Ontario into the 2007 deaths of Jacy Pierre, who died in police custody, and teenager Reggie Bushie, who drowned.
In an affidavit in 2008, a court operations supervisor said only 44 natives were being considered for jury selection in the Kenora district, where aboriginals make up a large part of the population. Ottawa had not provided the jury centre with band electoral lists in years.
The inquests and several criminal cases ground to a halt as the legal system began grappling with whether the rights of aboriginals had been trampled.
Ontario’s top court took up the issue last spring.
In court filings, the province argued an accused had no absolute right to a representative jury. It also insisted justice officials had done their best to ensure juries were representative, and blamed First Nations leaders for not co-operating.
For its part, the Nishnawbe Aski Nation, which represents 49 communities spread out over an area covering two-thirds of Ontario, argued good intentions were irrelevant.
In August 2011, the province asked Iacobucci to review the jury roll system and make recommendations to ensure proper representation for those living on reserves.
Fiddler praised the former justice for his efforts.
“He invested a lot of time and a lot of effort travelling to our communities to hear first-hand from our leadership and from our members about the concerns they have,” Fiddler said from Thunder Bay, Ont.
“We have a lot of hope that he will develop some solid recommendations that will work toward fixing the system.”
Among the cases the Appeal Court is still looking at is that of Clare Spiers, an aboriginal with a long record of violent crime convicted of first-degree murder in 2007 in Barrie, Ont., for kidnapping a woman and slitting her throat.
No on-reserve residents were among the 286 people offered up for his jury.
In another case, the Appeal Court upheld a manslaughter conviction against Clifford Kokopenace as reasonable but, in an unusual twist, put the ruling on hold pending the outcome of the constitutional challenge sparked by the jury representation issue.
“Our society has proven to be very efficient at charging First Nations and jailing First Nations,” defence lawyer Julian Falconer said at the time.
“We don’t seem so good at constructively involving First Nations in the justice system.”