Law Times

Page 4 August 7, 2017 • LAw times www.lawtimesnews.com NEWS NEWS NEWS Improve aboriginal jury representation: lawyers BY DALE SMITH For Law Times L awyers say the issue of ensuring adequate indig- enous representation on juries remains important, while the public waits on results from a provincial committee charged with looking for solu- tions to the issue. The Debwewin Committee was formed in 2013, but it has yet to report back on its findings on how to improve the participa- tion of indigenous people in the jury process. The issue reached the Su- preme Court of Canada in 2015 with R. v. Kokopenace (2015 SCC 28), where a man facing a second-degree murder charge and convicted of manslaughter challenged the lack of his on- reserve peers in the jury. The SCC set aside the 2013 ruling of the Ontario Court of Appeal that ordered a retrial with a more representative jury roll that included on-reserve in- digenous people. However, two dissenting jus- tices argued that there was a suf- ficient connection between state action and inaction and the lack of a representative jury roll and that resulted in a breach by the state of the accused's right to a representative jury roll as guar- anteed by the Charter. Lawyers say the issue of inad- equate representation continues to demand attention. "The treatment of Aborigi- nal Peoples is one of the more shameful parts of our justice sys- tem," says Jessica Orkin, a part- ner at Goldblatt Partners LLP in Toronto, who was council for Clifford Kokopenace at the Su- preme Court. Orkin, who is not involved in the current process around Debwewin, notes that the crimi- nal justice system needs juries with indigenous representation, especially in the most serious of cases. The roots of the Debwewin Committee trace back to the report commissioned in 2011 by the Ontario government, where former Supreme Court of Canada justice Frank Iacobucci looked at the issue of indigenous representation on juries. Iacobucci made 17 recom- mendations in his final report in February of 2013, including striking a committee to deal with those recommendations. The Debwewin Committee was formed later that year, head- ed by Irwin Glasberg, assistant deputy attorney general, and Al- vin Fiddler, deputy grand chief of the Nishnawbe Aski Nation. The committee was given three years to complete its work, but that deadline has since passed. An interim report was tabled in March 2015, but in the time since, the committee's website has been shut down. A provincial spokeswoman says a final report is on its way and will be publicly available on the min- istry's website. "Debwewin held its final meeting and is now preparing its final report to present to the deputy attorney general," said Emilie Smith, spokeswoman for Ontario Attorney General Yasir Naqvi, in an emailed response. Frank Addario, principal with Addario Law Group LLP in Toronto, says change cannot come soon enough. He says it's frustrating how slowly change comes for indig- enous people in Canada and that almost every positive change needs to be negotiated or litigat- ed over a period of years. In R. v. Kokopenace (2013 ONCA 389), the majority of the Ontario Court of Appeal ruled that in the state's failure to make reasonable efforts to deliver questionnaires to indigenous on-reserve residents and en- courage their response, Ontario failed to meet its constitutional obligations and ordered a new trial. But at the Supreme Court of Canada, in a 5-2 ruling, the ma- jority ruled that when it comes to the jury roll, representative- ness focuses on the process used to compile it and not its ultimate composition. Court records from Koko- penace demonstrated the dif- ficulty in finding indigenous members to fill the jury rolls, given that those who reside on reserves aren't captured by the Municipal Property Assess- ment Corporation's enumera- tion every three years, and it was further complicated by the fact that, after 2001, the Department of Indigenous and Northern Af- fairs stopped providing band lists to Ontario under the ru- bric of privacy concerns. From that point on, staff in the Court Services Division were expected to obtain lists directly from the reserves, which was made more difficult by the fact that many of those communities are f ly-in only and have only general de- livery community post offices for contacting people. Addario, who did not act in the case, says the SCC's judg- ment in Kokopenace was a "huge disappointment" for in- digenous communities and the desire for fair representation on juries. "No doubt the fact that the Su- preme Court ruled the way it did in Kokopenace meant that the pressure was off the government to act swiftly," says Addario. "They've been given the luxu- ry of a period of years to remedy the problem they created." Orkin says that while the issue of jury representation seemed to be gaining traction "for a short moment" after the Court of Appeal decision, it now appears to be losing attention. "That shift between the Court of Appeal decision and the f lur- ry of activity that followed it and the Supreme Court decision — I think that there was effort put in in that time and some degree of panic of how this problem was going to be managed and what work could be done to actually address it," says Orkin. "It's not something that could be managed easily, and it's a leg- acy of neglect." Orkin says she has observed that, after the SCC decision in Kokopenace and after the trial- level motions stopped being raised after that ruling, it ap- pears the sense of urgency in the Ontario justice minister's office dissipated. "Jury trials are not being de- layed anymore, and the crisis has passed," Orkin says. "Not the crisis of the criminal justice system, but the crisis of being able to prosecute the most serious crimes in the far-f lung parts of our province." However, the minister's spokeswoman said one of the early successes of the work of Debwewin has been the creation of a pilot project where on-reserve volunteers were sought to serve as jurors at coroner's inquests in the judicial districts of Thunder Bay and Kenora. "The pilot surpassed its origi- nal goal and over 450 volunteers have come forward," said Smith. "The volunteer list has been used in at least seven inquests to date, including the First Nations Youth Inquest into the deaths of seven indigenous youth in Thunder Bay." Orkin says that while this is encouraging news, these vol- untary processes very likely wouldn't meet the other stan- dards that apply to jury selec- tion, such as random selection and the fact that people have not put themselves forward. "My understanding is that part of what was persuasive in getting volunteers for the inquests was making it clear that this was a restorative process; it was one leading to recommendations not punishment," says Orkin. "The idea of participating in a jury that will lead to poten- tially sending away a commu- nity member is also part of what causes people not to volunteer for jury service." Orkin says that education and making participation as easy as possible are part of the solution; so, too, is thinking about the structure of the crimi- nal justice system in thinking of other ways of handling offences that, while not suited to murder charges, would address some of the other areas of alienation of indigenous communities to the justice system. "Those are more challeng- ing," Orkin says. "It requires resources and it requires a real rethink." LT Jessica Orkin says the 'treatment of Aboriginal Peoples is one of the more shameful parts of our justice system.' Presented by Lexpert, the prestigious Rising Stars Awards Gala honours winners from across Canada and welcomes law firm and in-house leaders and distinguished guests to celebrate and network with others who are at the top of the legal profession. GALA DINNER AND AWARDS PRESENTATION Honouring Canada's Leading Lawyers Under 40 – from law firms and in–house – this event will pay tribute to the rising stars of the legal community EMCEE Jean Cumming, Editor-in-Chief, Lexpert THE FAIRMONT ROYAL YORK HOTEL, TORONTO Thursday, November 16, 2017 5:30 - 7:00 p.m. Cocktail Reception 7:00 p.m. Gala Dinner and Awards Presentation 9:30 p.m. After Party Dress: Business attire LEXPERT.CA/RISING-STARS To purchase tickets or to sponsor the event, contact: MediaSolutions.Sales@thomsonreuters.com Founding Partner Bronze Sponsor Hosted in Partnership with Untitled-5 1 2017-07-27 2:44 PM In-class and online programs recognized by Law Societies Executive Education to Navigate the Canadian Legal Landscape Visit Lexpert.ca to find out more The pilot surpassed its original goal and over 450 volunteers have come forward. Emilie Smith © JR Bernstein

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