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For 27 years, recommendations from the Manitoba Aboriginal Justice Inquiry to make jury selection fairer for Indigenous people gathered dust.
The issue resurfaced four years ago, but gained little traction, when former Supreme Court Justice Frank Iacobucci urged the federal government to amend parts of the Criminal Code that discriminate against Indigenous people when juries are chosen.
But last week’s verdict — and the explosive aftermath — in a racially charged case may finally spark change.
This time, powerful reactions to a Saskatchewan farmer's acquittal reverberated across the country and reached the prime minister and federal justice minister.
"It’s never too late to do the right thing," Sen. Murray Sinclair said this week.
The former co-commissioner of the Aboriginal Justice Inquiry and co-author of its 1991 recommendations for reform was speaking in response to the not-guilty verdict for Gerald Stanley after his bullet killed 22-year-old Colten Boushie in a shooting the farmer argued was an accident. He was acquitted of second-degree murder and manslaughter by a jury that appeared to be entirely white.
The case doesn’t perfectly align with the AJI’s recommendations for juries, which focused on the idea an Indigenous accused, not an Indigenous victim, should be able to see himself or herself reflected in the jury pool.
But it's the case that has restarted a national conversation about criminal-justice reforms within a cultural movement that draws on promises of reconciliation with Indigenous people and demands change.
"If there was ever an opportunity or a time to do it, it is now," said Manitoba NDP justice critic Nahanni Fontaine.
Would require changes to Criminal Code, panel infrastructure
It could all be the "political catapult" that paves the way to prioritize more inclusive jury panels in Manitoba, says a University of Manitoba law professor who has been studying jury representation in the province. But many of the challenges that slowed progress decades ago remain.
Richard Jochelson's research has shown that, according to a sample of Manitobans who participated in his 2015 study and strongly supported the idea, having a jury that is more representative of the population makes sense.
"This is something Canadians are ready for. I don’t think this is a revolutionary idea, that if there’s an Indigenous accused, there should be Indigenous voices on the panel," Jochelson said.
"I don’t think that’s shocking or particularly intimidating as an idea. I think where it starts to get controversial is where people start to think about the taxpayer implications of making this a reality."
The geographical remoteness of many Indigenous communities, particularly in northern Manitoba, is one hurdle that means it's more expensive to send notices, enforce jury-duty summonses and pay for travel costs for people to travel from their home communities to serve on a jury. The large majority of jury trials in Manitoba take place in Winnipeg courtrooms.
"This is something Canadians are ready for... I think where it starts to get controversial is where people start to think about the taxpayer implications of making this a reality." –Richard Jochelson
Altering some parts of the jury selection process would require changes to Canada's Criminal Code — lawyers' ability to "challenge" and automatically dismiss potential jurors without having to give a reason, for example — but provinces control the way jury pools are formed.
"You could develop policies where you overtly aim to increase jury representation for marginalized populations like Indigenous persons, especially from remote communities," Jochelson said. "It would require the infrastructure to transport them, to lodge them, to compensate them and, perhaps most difficultly, to find them and get them to want to serve on juries.
"But in terms of the big challenges — traversing distance, place and time and compensating people to come and be involved, I don’t think anything has really been done. We know what the issues are, but I don’t think I know of any policy decisions or law reform to try to bridge those gaps."
No statistics collected on jurors' ethnicity
Roughly 10 per cent of Manitoba's population and 12 per cent of Winnipeg's urban population is Indigenous, but it's impossible to know how many potential jurors are Indigenous.
Anyone with a Manitoba Health card could be asked to report for jury duty after their names and addresses are randomly selected from the health card data. Manitoba's Justice Department doesn't ask prospective jurors their ethnicity, their sex or any other information beyond their birth date, their occupation and their contact information to find out if there are any conflicts. People over age 75 are exempt from jury duty, as are people working in certain jobs.
None of the jury pool information is collected or amalgamated, so no statistics exist about the demographics of juries in Manitoba.
"That’s a point of procedure that has to change. There’s no real reason for that other than, I imagine, they’re trying to protect whatever privacy interests they imagine are there. But it might be that equality interests supersede privacy interests, and for that particular reason, they should be asking for and storing more information," Jochelson said.
"But people get nervous when you start asking questions about race in these sorts of processes."
Jurors drawn from neighbourhoods of accused, victim
Manitoba has not announced any plans to change its jury-selection process in the days following Stanley's acquittal.
One of the AJI's recommendations was for random jury pools to be drawn from neighbourhoods where the accused and victim live if the jury trial is happening in an urban area.
The provincial government implemented that practice beginning in November 2016, Justice Minister Heather Stefanson told the Free Press in an email Friday.
"Our government has taken steps to ensure that Manitoba juries are fully comprised of individuals from the district where an offence is alleged to have occurred," she said, adding her department uses plain language in its notices to jurors and on its Jury Declaration Form "in order to enhance accessibility and comprehension for jurors."
"We also continue to work toward enhancing educational tools available to the public about the jury selection process and the role of a jury," she said.
'Intrinsic distrust' of justice system
But the "unprecedented" response to the Stanley verdict from Prime Minister Justin Trudeau and federal Justice Minister Jody Wilson-Raybould is a sign the time is right to revisit jury the possibility of including First Nation band registration rolls along with health card data in the jury selection process, said Fontaine, the MLA for St. John's.
"We need to have a more robust system that would capture Indigenous peoples across the province. Not everybody has a health card," she said.
That, along with public education about the role of juries, could go a long way toward encouraging more Indigenous participation, she said.
"For Indigenous people... there is an intrinsic distrust of the Canadian justice system," she said, adding the province needs to do a better job of explaining the role of juries.
"I’m not even sure if we’ve done that at all — explaining those processes and why it would be important to have Indigenous people sit on those jury processes. I would suggest that there are a lot of people who don’t understand that."
Indigenous rejections of a colonial-rooted justice system are understandable, Fontaine said.
"But the fact of the matter is that our people do deserve equitable and fair access to justice, and part of that is a responsibility for all of us to participate in that," she said. "If we don’t participate in it, we just guarantee that the system continues as it has."
'Manitoba can be an international beacon'
A copy of the AJI report was "still encased in its original shrink wrap on the shelf," when Gord Mackintosh walked into his office as Manitoba's new minister of justice and attorney general in 1999, he remembers.
Under then-premier Gary Doer, the province launched the Aboriginal Justice Implementation Commission to look at putting the AJI's recommendations into action. More reports and more recommendations followed until the implementation commission ended in 2001. There was no mention of jury representation in its final report.
"Our people do deserve equitable and fair access to justice, and part of that is a responsibility for all of us to participate in that. If we don’t participate in it, we just guarantee that the system continues as it has." –Nahanni Fontaine
Now, in the midst of the Justice for Colten movement and federal reaction to the Stanley case, Mackintosh says he believes the potential for reform goes beyond jury selection and could make Manitoba a leader in restorative justice if the province takes "concrete action."
"This time, I am heartened by the response in Ottawa," said Mackintosh, who retired from politics after 23 years in 2016 and now teaches at the University of Winnipeg. "This is a change that has to come from the national government and I’m very heartened to hear of their interest and concern. So I have some optimism about change.
"It has to be broader than just looking at jury selection. There are Indigenous approaches to justice that can be far more effective, and I think that Manitoba can be an international beacon for restorative practices, not only for lesser offences but as part of the processes for more serious offences as well."
During a scrum with reporters in Winnipeg earlier this week, Sinclair was questioned about the work he did on jury representation 27 years ago, and whether change can happen now.
"There are laws that can be changed. And the laws that contributed to this need to be reviewed," he said of the Stanley verdict. "And that’s my intention going back to Ottawa this week.
"It’s not to simply come to that realization we need to do something about it. I’ve known that for a while. But now I believe others will see the importance of it. And to take advantage of that, by putting forward some remedies that I think will be acceptable now."
— With files from Alexandra Paul
Katie May reports on courts, crime and justice for the Free Press.