Jury rolls just one part of issue with justice system
Despite estimates that Aboriginal people make up 20 per cent of Thunder Bay, lawyers observe they rarely see First Nations people on juries.
In 1977, David Kairys authored a study on the underrepresentation of African-Americans on juries across the United States.
The study examined why, nearly two decades after the start of the civil rights movement in America, African-Americans were still proportionately far less likely to serve on juries than their white peers.
When Kairys was shown the recent Iacobucci report on underrepresentation of First Nations people on Ontario’s jury rolls, released Feb. 26, he noted that the parallels to the work he and others had done in America were striking.
“It sounds very much like the situation we have,” Kairys said, on the phone from his office at Temple University in Philadelphia where he works as a professor of law. “It applies to African Americans, also Latinos, and in a more general sense, poor people as well.”
The African-American experience with juries and the courts is well documented in history and in popular culture. Famous books such as To Kill a Mockingbird or Hollywood movies such as A Time to Kill explored the issue of what constitutes a jury of peers when it comes to racial divides.
In reality, the issue of how to represent all of society on a jury of 12 people is extremely complex. But one truth seems to hold – minority populations across North America remain vastly underrepresented when it comes to sitting on juries.
Kairys noted that the problem of underrepresentation on juries is generally related to two factors: potential jurors not being included on the jury rolls; and even when minority candidates get on the list, systematic race-based exclusion within the jury selection process in the court.
He said legal systems have a choice to make when it comes to jury representation: is the mandate to get equal representation of society on jury rolls, or does it go further to ensure that actual juries are representative of the entire society?
The answer to that question goes a long way in determining how much trust the public puts in the system, he said.
“If an African-American person is convicted by an all-white jury, it casts doubt on the whole system,” Kairys said. “It causes the public to doubt the whole process.”
First Nations jury rolls report highlights needs
The Iacobucci report that found the majority of northern First Nations are not included on jury rolls brought up some well-received recommendations on how to improve the jury roll record.
The question remains, however, of whether more accurate jury rolls will actually result in more accurate representation on juries.
In the eyes of a number of lawyers who work on Aboriginal legal cases, the two issues are clearly separated. And the distinction becomes very clear when examining whether First Nations people living in Canadian cities find their way onto juries.
Wendy Whitecloud, from Sioux Valley in southern Manitoba, is a professor of law at the University of Manitoba. In 1999, Whitecloud was named a commissioner on the Aboriginal Justice Inquiry Implementation Commission, tasked with implementing some of the recommendations of a report done on the issue in Manitoba in 1991.
Whitecloud said it remains rare to see a First Nations person on a jury in Winnipeg, despite the city’s Aboriginal population, estimated at over 23 per cent in the 2006 census.
She said the problem often relates to the veto that prosecutors and defense lawyers have when it comes to selecting jury members.
“The old stereotypes tend to kick in,” Whitecloud said. “Lawyers seem to assume that because you’re Aboriginal, somehow you’re not going to be objective.”
Besides the juries, Whitecloud said the lack of Aboriginal lawyers, judges and police officers in the courts is another aspect of the problem.
“The systematic stuff, its still really strong,” Whitecloud said. “Go to the court today – how many people would you see who are First Nations working as lawyers, judges, police officers? Not very many.”
A number of lawyers in Thunder Bay said that Whitecloud’s observations about Winnipeg apply equally to Thunder Bay. It is rare to see First Nations people on juries, they said, despite the city’s growing percentage of Aboriginal people that some organizations estimate at 20 per cent of Thunder Bay’s total population.
Like Whitecloud, Evelyn Baxter of Marten Falls, who in 1991 became the first Nishnawbe Aski person to become a lawyer in Ontario, pointed to the veto power that lawyers have to strike people from juries as one of the major barriers to First Nations participation on juries.
But Baxter noted that it is extremely difficult to prove the lawyers are making race-based decisions on potential jurors, since they do not have to give reasons why a person has been struck from the list.
Restorative justice may offer solution
NAN Legal’s CEO Celina Reitberger believes the conversation around First Nations representation in the legal system has to involve ways of giving control back to First Nations.
NAN Legal is pushing for a re-introduction and expansion of the restorative justice program, which was discontinued due to government funding cuts.
“The mainstream justice system is not working for Aboriginal people,” Reitberger said. “We need more money to be diverted into the restorative justice program, as part of an overall comprehensive plan to fix the justice system and make it more culturally appropriate.”
Restorative justice involves bringing offenders before their own community to discuss consequences, sentencing and how the community can help a person change.
Reitberger said the restorative justice approach also works for people coming out of jail, as a way of helping them reintegrate back into their community.
The Iacobucci report also recommended a reintroduction of the restorative justice model, citing the program’s positive effect on justice as a whole.
“First Nations leaders were unequivocal that re-introducing restorative justice programs would have multiple benefits at the community level,” Iacobucci wrote. “Such benefits include the delivery of justice in a culturally relevant manner, greater understanding of justice at the community level, increased community involvement in the implementation of justice and, finally, an opportunity to educate people about the justice system and their responsibility to become engaged on the juries when called upon to do so.”
Societal changes also necessary
A 2012 study of juries in the USA state of Illinois found that, for the first time since the study was started in the 1960s, juries in the state contained a proportionate number of African Americans.
The Illinois context does not represent the entire country, as Kairys was quick to point out, and does not reflect the challenges that other minority groups are facing when it comes to getting adequate representation on juries. But it does show that in a specific case, after decades of efforts, the situation has changed for the better.
Kairys said that in places where the most progress has been made, governments, social organizations and grassroots groups have put a lot of effort into targeted efforts at getting jury rolls to accurately reflect populations of cities and districts.
He said those efforts have been helped by a number of legal challenges aimed at the composition of juries in criminal cases – usually led by defendants who felt they did not receive a fair trial because the jury did not reflect the makeup of society as a whole.
Kairys also emphasized that the problems with underrepresentation on juries and in the legal system in general still exist across America. But, he noted, in the places that have seen progress, the result on juries has been profound.
“There’s no question it affects the results of the legal cases,” Kairys said. “Just the presence of minority people on a jury, it changes the tenor of the discussion. If you have no First Nations person (on a jury), it is much more likely that the jury does not understand the context, and the history, and it is much easier for the negative stereotypes to creep in.”
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