A revelation about jury selection in Northern Ontario has raised the possibility that native Canadians have been systematically excluded from the jury roll, a native coalition charged yesterday.
Lawyer Julian Falconer demanded that Ontario's Attorney-General launch a formal inquiry into the jury selection system after an affidavit filed in connection with a coroner's inquest said that only 44 natives are being considered for jury selection in a district where they make up a large portion of the population.
"It's absolutely scandalous that first nations, who are legally entitled to a jury of their own peers and who are legally entitled to participate in the justice system, have been systematically excluded for years," said Mr. Falconer, who is acting on behalf of the Nishnawbe Aski Nation and Aboriginal Legal Services of Toronto.
The affidavit was written by the acting supervisor of court operations in the district of Kenora, an area that includes 45 reserves. It says that since 2000, the federal department of Indian and Northern Affairs has not provided the jury centre with band electoral lists.
In 2006 the court district sent letters to 42 bands requesting those lists, and received only four. In 2007, they travelled to 14 remote communities and received eight current electoral lists. As a result, the 2007 jury roll includes just 44 people from aboriginal communities.
"Counsel have routinely expressed a concern that while first nations are routinely overrepresented before the courts and in our jails, it's the odd occasion in a trial up north where first nations are on a jury. Now we're starting to get a sense of why," Mr. Falconer said.
"Leaving the first nations community en masse out of the jury selection process is a fundamental injustice."
He could not provide details on what level of representation natives should have had because no numbers were actually obtained by the jury centre, he said.
Sheamus Murphy, a spokesman for Ontario Attorney-General Chris Bentley, said he couldn't address the matter directly since it arose out of an ongoing coroner's inquest.
"The ministry is fully confident that our jury panel process complies with the provincial Juries Act," he said.
Frank Addario, president of Canada's Criminal Lawyers Association, said the revelation is significant, and poses a challenge to the fairness of trials conducted in the Kenora district for the past several years.
"The risk is that defendants who went into trials expecting a representative array [of jurors]was being presented were not given the required information to challenge the jury panel. That calls into question the legitimacy of the trial results," Mr. Addario said.
According to the affidavit, the Kenora jury roll was based on 1,200 questionnaires sent to municipalities, and 484 sent to reserves. In 2007 only 7.83 per cent of those questionnaires sent to natives generated eligible returns, compared with 56 per cent of those sent to municipalities. That would indicate, although it's not made clear, that of the roughly 700 jurors on the roll, only 44 were native, when more than 20 per cent of the population of the district is aboriginal.
According to the relevant legal precedent, the jury roll must be selected from a discrete geographical district that may or not be representative of the broader Canadian population.
Alvin Fiddler, deputy Grand Chief of the Nishnawbe Aski-Nation, said unfair jury selection is something many aboriginals have suspected and complained about for years.
"That's why we're asking the Attorney-General to call an inquiry, to look at these questions and to see how big a problem this is," he said. "It may be an issue in other parts of the province."