Jury is out for Aboriginal inclusion to jury duty

It is a well-known and well-documented fact that Aboriginals have been mistreated within the confines of the Canadian system. Canadian history can present a plethora of unfortunate tales regarding the plight of Canada's First Nations. Even within the justice system, dark facts of exclusion are now making their way to the forefront.
On Sept. 10th, an affidavit was filed in connection with a coroner's inquest that stated only 44 natives were being considered for jury duty, in an area that is population heavy with First Nations.
Nishnawbe Aski Nation (NAN) is an Aboriginal political organization representing 49 First Nation communities within James Bay Treaty 9 territory and the Ontario portions of Treaty 5. NAN territory covers two-thirds of the province of Ontario.
"This is about a failure of our system to take First Nations into account," stated Julian Falconer, of Falconer Charney LLP. "They were either working with no list, or lists dated some five to ten years," Falconer explained, noting that it occurred in areas where there had been significant population changes, and the legal system was aware that there was a problem with the numbers.
NAN, and the Aboriginal Legal Services of Toronto (ALST) have formed a coalition, and have retained the legal services of Falconer. Falconer, who is considered in many circles a human rights champion, believes that this infringes upon those very rights.
"The sad irony is that while First Nations are represented before the courts and in jails, they are terribly underrepresented when it comes to participating in the justice system, and the result is a very significant population wide human rights violation," Falconer expressed, adding that the right to a trial by a jury of one's peers is a constitutional right. "This is clearly being denied to First Nations."
"I think it just conforms everything we've been saying all along," said Alvin Fiddler, deputy Grand Chief of the NAN. "I've said that before, that the justice system is failing our communities, it's failing our people. We see this by the representation of our people in the corrections system, the jails, and the court system. And now, with the exclusion of the jury role, it just adds to our point."
"We know that there has been a consistent alienation of First Nations from the justice system, and this represents simply one more example. The sad reality is it's one more example of a longstanding problem that they haven't taken effective steps to fix," explained Falconer, who also believes that this leads to the growing coalition.
"Initially it started off with Nishnawbe Aki First Nation in northern Ontario, but since then, Treaty 3 has joined the coalition," said Fiddler, who added that there are more groups in Ontario who are being made aware and considering joining the coalition.
Falconer believes it is important to look back on Canada's history to reveal how the justice system has been unkind to Aboriginals; noting the Aboriginal Justice Report in Manitoba and the Marshall Report in Nova Scotia.
The Marshall Report is a reference to a Royal Commission of Inquiry of the 1971 wrongful murder conviction of Donald Marshall Jr. It shed light on preconceived prejudices on behalf of the police, the jury, and the judge. It culminated with an acquittal and an official apology from the Nova Scotia government
The Aboriginal Justice Report is a reference to an inquiry ordered by the Manitoba government to investigate, report and make recommendations to the Minister of Justice on the relationship between the administration of justice and Aboriginal peoples of Manitoba. (www.ajic.mb.ca/index.html)
"This isn't some isolated incident, this has historical context. It's been a problem that the authorities have simply failed to move on," said Falconer.
Based on the findings of the inquiry, the ramifications could be very serious as lawyers are already looking at past cases.
"What we're noticing now, over the past few days, is defense lawyers pointing to the fact that there's a history to this, and that this has been a concern of some longstanding," explained Falconer. "They have noticed that the juries in this area very rarely have First Nations representation on them, and that for the most part ended up being First Nations accused of being tried by white juries."
Fiddler also noticed the new trend in the courtroom.
"That's what we're hearing now. This issue not only affects the juries for inquest, it will also impact civil cases, as well as criminal cases," Fiddler said, adding that the AFN executive council has discussed that this may be an issue in other parts of Canada, as well.
"Since this came into light, it's growing and creating pressure on the province, on the government to have an official inquiry, and to work with First Nations on fixing the problem," said Fiddler.
With the looming inquiry, the growing coalition, the involvement of the AFN, and the potential that this could be a national problem, Fiddler suggested that those interested should stay tuned the NAN Web site. "Who knows how far this will go?"