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Jury issues all too familiar

Aboriginal justice crisis in Ontario a Manitoba problem, too: experts

By: Mia Rabson

Posted: 02/27/2013 1:00 AM | Comments: 0

Manitoba Keewatinowi Okimakanak Grand Chief David Harper (WINNIPEG FREE PRESS ARCHIVES) Photo Store

OTTAWA -- The lack of representation of First Nations people on juries -- causing a justice system crisis in Ontario -- is also a problem in Manitoba, local experts say.

Many of the same issues and recommendations made by former Supreme Court justice Frank Iacobucci in a report to the Ontario government Tuesday mirror those raised more than two decades ago during the Aboriginal Justice Inquiry in Manitoba.

Iacobucci was asked by the Ontario government in 2011 to investigate how First Nations were excluded from the jury system after the issue delayed two coroner's inquests and two criminal trials. He concluded there was no question too many juries do not have an appropriate number of First Nations people on them, particularly in northern Ontario.

"As this Report will demonstrate, there is not only the problem of a lack of representation of First Nations peoples on juries that is of serious proportions, but it is also regrettably the fact that the justice system generally as applied to First Nations peoples, particularly in the North, is quite frankly in a crisis," Iacobucci wrote.

His research found in the judicial district of Kenora about one in three residents lives on reserve but just one in 10 people listed on the jury roll is from a reserve.

Iacobucci concluded a number of reasons caused the problem, including language and geographical barriers and higher rates of mobility of First Nations residents on reserve. But there is also a level of racism at play, as well as a significant mistrust of the justice system by First Nations people after years of systemic discrimination at its hands.

Many of his findings and at least two of his recommendations mimic some found in the 1991 report of the Aboriginal Justice Inquiry in Manitoba. That inquiry noted there was not a single aboriginal person on the jury at the 1987 trial of the men accused of murdering Helen Betty Osborne in The Pas in 1971, even though she was killed in a region where aboriginal people made up more than half the population.

Both the AJI and Iacobucci recommended when a potential juror is exempted or a summons goes unanswered, the person be replaced with someone else from the same community. They also both recommended the federal government look at preventing lawyers from using challenges to discriminate against First Nations people.

Manitoba has not implemented either recommendation.

"Twenty-five years later and we're still having the same problem," said Manitoba Keewatinowi Okimakanak Grand Chief David Harper. "The Manitoba government needs to dust off the AJI and get it back on its feet."

He said it isn't just juries, noting today you still go to the courthouse at The Pas and outside many of the faces are aboriginal but inside, "the police, the lawyers, the crown attorneys, the judges, they're not aboriginal. Something is wrong with this picture."

Wendy Whitecloud, a law professor at the University of Manitoba, was a commissioner on the Aboriginal Justice Inquiry Implementation Commission established by the Doer government in 1999. She said Tuesday recommendations made to address the lack of proper representation on juries were not a priority because the commission had limited time and a huge array of things to address.

But Whitecloud said any of the findings in the Ontario report almost surely will be applicable in northern Manitoba.

"This problem has been around for so long and as far as I know there hasn't been much done."

Whitecloud said there is an element of racism at play in that lawyers seem to think an aboriginal juror is more likely to be sympathetic to an aboriginal defendant and therefore challenges their presence.

"I think any government would be well-placed to look at this," said Whitecloud.

In 2007, a Manitoba First Nations man appealed his conviction for murder on the grounds the jury wasn't representative of his peers, however, his conviction was upheld.

mia.rabson@freepress.mb.ca

Republished from the Winnipeg Free Press print edition February 27, 2013 A8

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