Law Times

Law times • OctOber 17, 2011 NEWS PAGE 5 Aboriginal groups not buying privacy excuse Continued from page 1 Bay district jail in 2007. Both deaths were the sub- ject of a coroner's inquest, but the families appealed over concerns the juries didn't have enough aborigi- nal representation. From there, regional coroner Dr. David Eden au- thored a report on aboriginal representation on the Th under Bay jury roll. Eden ordered Th under Bay's court services to redo the roll, a process that's now ongoing within the provincial government. According to the Juries Act, names of potential jurors come from the most recent voters lists that the Ministry of the Attorney General gets from the Mu- nicipal Property Assessment Corp. Yet according to documents obtained by CBC Radio through a free- dom of information request, it was just one com- plaint to Indian and Northern Aff airs Canada citing privacy concerns that caused the federal government to stop providing lists of First Nations band mem- bers to all provinces about 10 years ago. Th at deci- sion created a signifi cant problem for provinces like Ontario that rely on those lists to select aboriginals for jury duty. Aboriginal groups, however, aren't buying the privacy argument. "We represent quite a signifi - cant population in both the Th under Bay and Ke- nora districts but found, particularly in Kenora, that there weren't any First Nation members being fairly represented by the Ontario justice system," says Nishnawbe Aski Nation deputy grand chief Terry Waboose. Waboose notes his organization was unsuccessful in trying to work with the provincial government on the issue in the past. "Th e band list privacy issue was used as a rationale for not providing lists of First Nation band members to Ontario for jury duty," he says. Nevertheless, the Nishnawbe Aski Nation has since agreed to work with former Supreme Court justice Frank Iacobucci on the issue. He's currently conducting a review of aboriginal representation on Ontario juries. "When you are judged by a jury of your peers, wouldn't you think the jury, within a trial or inquest by jury, should be representative of all signifi cant populations for that particular area?" Waboose asks. Ruling 'very rare' Continued from page 1 something that did not actually happen. A fairer way to consider the issue is: what should have happened?" Hubbard notes the evidence during the initial case established that Salter was suff ering from two medical conditions that were diffi cult to diagnose due to their nature and exceeding rarity. To avoid the loss of mobility in Salter's legs, surgery had to take place within a very small window of time. But the trial judge agreed there was no evidence to prove whether or not this would have occurred but for Hirst's actions. "Th is case is also important because it confi rms a number of important principles which govern the determination of causation in negligence cases, most importantly when inferences of causa- tion can and cannot be made," says Hubbard. "Th ere must be a proper evidentiary foundation from which to draw inferences of causation." Hubbard also notes the court can't bridge a gap in the evidence on whether or not a particular outcome was more likely than not to occur through common sense in cases where the inference in- volves medical or scientifi c evidence that's not in the record. "While the robust and pragmatic approach may be taken to evidence of causation in certain circumstances, as the courts have repeatedly confi rmed, it is not a substitute for evidence," says Hubbard. Th e Court of Appeal decision could mean plaintiff s will now fi nd themselves in an uphill battle in trying to prove what would have happened in delayed treatment cases, according to Little. "It's a very rare case because the jury found in favour of the plain- tiff against Dr. Hirst and then the trial judge overruled the jury's verdict," he says. "Th is does not happen very frequently because in Canada we hold the decisions of juries in the highest regard." Th e last time the Court of Appeal heard a case where the trial judge overruled a jury verdict based on Rule 52.08 was in May 2000 in Lang v. McKenna. According to the appeal court's judg- ment, the original jury verdict was correct because it could make inferences from the evidence in the case. 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Visit canadalawbook.ca or call 1.800.387.5164 for a 30-day no-risk evaluation CANADIAN LAW LIST OLPB_EB_1-4-3X L.T.indd 1 10/19/11 3:15 PM 2012 BRITISH COLUMBIA LEGAL TELEPHONE DIRECTORY Get naMeS, MaiLinG addreSSeS, eMaiL addreSSeS and PhOne nuMberS fOr LawyerS and Law OfficeS in britiSh cOLuMbia, nunavut, nOrthweSt territOrieS and the yukOn In one handy volume you'll have a single means of access to every lawyer and law firm in British Columbia, Northwest Territories, Nunavut and the Yukon. Published annually, the current edition includes: • British Columbia Notaries • British Columbia Land Surveyors • Shorthand Reporter's Association • Canadian Association of Para-Legals • Northwest Territories, Nunavut and Yukon listings. This directory has: • Durable spiral-bound format • E-mail addresses (where available) • Federal court listings • Federal government departments • Up-to-date addresses, telephone numbers and fax numbers (with firm listing) Spiralbound • June 2011 • One time purchase $39.00 L88804-530 • On subscription $39.00 L88804-530-26065 Multiple copy discounts available Prices subject to change without notice, to applicable taxes and shipping & handling. Visit canadalawbook.ca or call 1.800.387.5164 for a 30-day no-risk evaluation CANADIAN LAW LIST www.lawtimesnews.com B.C. - 1-4 pg - 5X .indd 1 8/24/11 4:26:09 PM "We're excluded, and there's something wrong there. Th e answer lies with how the province con- ducts work, with how they get lists for jury duty, and that's why we agreed to work with them to improve representation." Th e Dolasinski case follows a 2008 matter in Kenora, Ont., involving Cliff ord Kokopenace, who was convicted of stabbing his friend, Taylor Assin, to death during a 2007 fi ght on the Grassy Narrows reserve. Unusually, the Court of Appeal put the man- slaughter ruling on hold this past July in order to hear arguments about aboriginal representation on juries. Watkins notes the potential for an eventual prov- incewide change on the matter is a possibility, de- pending on the court's ruling. "I believe this is a sig- nifi cant human rights issue," says Watkins. Th e Ministry of the Attorney General will release a report on the matter as early as August 2012. In the meantime, it says it will work with First Nations band members to fi nd ways to increase their repre- sentation on jury rolls.

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