Improve aboriginal jury representation: lawyers

August 10, 2017
Article Source
Law Times

Lawyers say the issue of ensuring adequate indigenous representation on juries remains important, while the public waits on results from a provincial committee charged with looking for solutions 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 participation of indigenous people in the jury process.

The issue reached the Supreme 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 indigenous people.

However, two dissenting justices argued that there was a sufficient 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 guaranteed by the Charter.

Lawyers say the issue of inadequate representation continues to demand attention.

"The treatment of Aboriginal Peoples is one of the more shameful parts of our justice system," says Jessica Orkin, a partner at Goldblatt Partners LLP in Toronto, who was council for Clifford Kokopenace at the Supreme Court.

Orkin, who is not involved in the current process around Debwewin, notes that the criminal 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 recommendations in his final report in February of 2013, including striking a committee to deal with those recommendations. 

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