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Jury Rolls? I’ll take two.

Friday August 8, 2014

Wait… you can’t order those at Tim Horton’s?

Comparisons with gooey goodies aside, jury rolls are, indeed, a sticky subject in the Nishnawbe-Aski Nation. They’ve been on the justice system’s menu of problem issues for almost 10 years, when the provincial government was first reminded of the gross inequities in the representation of First Nations people on criminal and coroner’s juries in our region.

Back then, the facts and stats were ghastly: an inquest into the deaths of two young men in Kashechewan had zero Anishinaabe jurors (not to mention that it was held in Toronto), and, in a criminal trial case that is currently on appeal to the Supreme Court of Canada, only 4.1 per cent of all the potential jurors on the list lived on reserve, in a district where about 33 per cent of the population does so.

Small wonder that simply sending out questionnaires based on outdated band lists didn’t meet the government’s obligation to ensure fair juries of one’s peers. So what is being done about it?

Last year, a former Supreme Court judge was hired to investigate the problem, and he determined that “substantive and systemic changes to the criminal justice system are necessary conditions for the participation of First Nation peoples on juries in Ontario”. In other words, we won’t end up with fair juries unless we fix the root causes of what makes this whole apparatus unfair in the first place.

Justice Iacobucci made 17 recommendations in his report, which were received with much governmental head-nodding and promises of action.

These changes, if actually established, will make it easier for Anishinaabe, both on and off-reserve, to be included in the essential job of helping the justice system make its most important decisions.

They include such breakthroughs as using accurate contact information for reserve community residents, and offering slightly more than the, well, zero dollars that is currently extended to most people who devote their time and deliberation as jurors. Interestingly, the report also suggested that First Nations people might be more inclined to participate if invited to volunteer as jurors, instead of being threatened with fines or jail time if they don’t respond to the system’s call for duty.

Part of what makes the problem so complicated, it seems to me, is that the same lists are used for two very different kinds of juries. The one most people know better (at least from television) are criminal court trials, in which 12 people assess every shred of evidence to decide whether the accused is guilty, in law, of a certain crime.

Jury trials happen pretty rarely in the Nishnawbe-Aski Nation, and only in the Superior Court seats of Kenora, Fort Frances, Thunder Bay, Cochrane and Timmins.

There are a huge number of practical and cultural reasons why Anishinaabe, especially living on reserve, may not feel able or willing to leave home, perhaps for weeks, not to help in healing, not to work in restoration, but to sit in stark, black-and-white judgment of someone who is very likely Anishinaabe as well. To take part in a process, essentially, which has rarely made life better for anyone involved in a criminal wrongdoing, and more often makes things worse.

Everyone working in the justice system should know that it will probably never be easy to force, invite, or encourage Anishinaabe to be active participants in trials that are actively working against Anishinaabe ways of doing justice.

The other kind of jury is that which finds facts and makes recommendations after somebody has died (most often if the death happened while the person was in custody). Coroner’s inquests, as these processes are known, involve just five members of the public, who are asked to provide answers and advice about how the death happened, and how to ensure that any similar tragedy does not happen in the future.

Unlike criminal juries, which are all about blame, the collective wisdom of coroner’s juries is harnessed to build stronger, safer relationships between individuals and authorities, moving forward. The absolute best people for a job like this are those who know and care deeply about the community affected by a death being investigated. From my perspective, there is no reason to doubt that if the justice system did a better job of reaching out to Anishinaabe to serve as members of coroner’s juries, that they would not respond to the invitation to participate in and enrich these inquests.

Our desperately outdated and ineffective jury roll system can certainly be improved , with enough nuts-and-bolts tinkering.

But the more difficult task, as Justice Iacobucci recognized, is in creating a justice climate in which Anishinaabe feel belonging, ownership, purpose, even pride. Nothing less, given a century-long history of tension and outright oppression, will make for truly representative, truly fair juries.

Perhaps we either need to create two lists (an answer that may only solve half the problem), or, more radically, we need to figure out how to make criminal trials in the Nishnawbe-Aski Nation more like coroner’s inquests, and less like the finger-pointing rituals that seem so wrong and harmful to Anishinaabe ways.

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