Systemic exclusion with an explanation

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TORONTO – When an accused Cree or Ojibwe person goes to trial in Ontario’s District of Kenora, which stretches from the Manitoba border to the James Bay coast, it’s rare that he or she will look at the jury and see a person of the same ancestry.

“It’s almost unheard of,” said Alvin Fiddler, deputy grand chief of the Nishnawbe Aski Nation, a coalition of 49 First Nations. That’s even though the 2006 census shows that more than a third of the district’s population is aboriginal.

Now, there’s an explanation that points to a systemic exclusion for almost a decade of aboriginals from jury service in the north, and perhaps elsewhere in the province.

Information submitted to a pre-inquest hearing reveals that the federal government stopped providing the provincial jury center in London, Ontario, with band electoral lists in 2000. The lists are used so questionnaires can be sent to randomly selected names to determine juror eligibility. Off-reserve, the names come from the Municipal Property Assessment Corp.

Kenora District court officials tried to get new band electoral lists in 2006 by faxing letters to 42 First Nations chiefs. They received four in reply. In 2007, officials visited 14 communities and obtained another eight lists.

Meanwhile, the rate of eligible returns of juror questionnaires mailed to reserves was 7.8 percent in 2007, compared to 56 percent of those sent to municipal populations.

The result: Out of the district’s aboriginal population of 12,111, just 44 First Nations residents are on the current jury roll.

“This is one of the most egregious, en masse human rights violations that I have seen in a long time,” said lawyer Julian Falconer, who represents NAN and Aboriginal Legal Services of Toronto and wrote to Attorney General Chris Bentley Sept. 10 asking for a formal inquiry be ordered into what happened and how it can be addressed.

The matter came to light Sept. 9 during preliminary motions for an inquest into the 2006 deaths of Ricardo Wesley and Jamie Goodwin, both 20, in a fire at the Kashechewan First Nation police jail.

Wesley’s family, represented by Falconer, wants a First Nations member to be on the five-person coroner’s jury.

That, it turned out, wasn’t possible.

No one from the reserve was on the jury roll. And, an affidavit submitted to Coroner David Eden stated, Kashechewan was not one of the communities that provincial officials contacted by fax or visited.

“At stake,” Falconer noted in his letter to Bentley, “is the right to a trial by a jury of one’s peers along with the right of First Nations to participate in the justice system. ...

“The sad irony is that while First Nations are undoubtedly overrepresented before our courts and in our jails, it is now apparent that they go unrepresented as triers in the justice system of the north.”

(According to the 2006 census, aboriginal people represent 4 percent of Canada’s adult population, yet they account for 24 percent of admissions to provincial/territorial custody, 19 percent of admissions to remand and 18 percent of admissions to federal custody.)

Indian and Northern Affairs spokespeople told reporters that the federal government, in response to privacy concerns expressed by aboriginal leaders, decided it would be more appropriate for First Nations to decide whether to share their electoral lists with other levels of government.

The inference of the provincial and federal statements was that aboriginal people were the authors of their own misfortune.

It’s a description of the situation that Falconer and Fiddler reject. “Like you and I, my clients are perfectly entitled to have legitimate privacy concerns,” Falconer said. They were never advised “that they would be excluded systematically as a race from jury lists.”

Trying to blame the victim is “embarrassing,” he said, adding that the bottom line is that the province has contravened the Juries Act, which requires it to treat reserve and municipal residents equally.

If that is found to be the case, it could affect verdicts in countless cases involving First Nations defendants.

Fiddler said he was not aware that the privacy concerns would lead to exclusion from jury lists and the matter should have been properly communicated by the province.

“There’s always ways of addressing these privacy issues. That shouldn’t disengage the First Nations members from the justice process.”

Fiddler said it’s not realistic to expect a good rate of return on the jury questionnaires sent to individual reserve residents, and that the province has to reach out to aboriginal communities to address a historic distrust of the justice system.

Bentley did not respond to requests for an interview.

Meanwhile, a former attorney general said there’s nothing new about the underrepresentation of aboriginals on juries. Howard Hampton, leader of the Ontario New Democratic Party and member of provincial parliament for Kenora-Rainy River, said he raised the issue of jury rolls with ministry officials when his party was in government in the early 1990s.

Hampton said his concern was that the databases used for jury selection were skewed against low-income people, including aboriginals. Since then, the situation has been aggravated by the termination of door-to-door enumeration by elections officials.

“The result is that the justice system that is supposed to be about a jury of your peers – all of your peers, not a selected group – has a big hole in it.”