Report on Improving First Nations’ Representation on Ontario Juries

The past week former Supreme Court Justice the Hon. Frank Iacobucci released the Issues Report on Improving First Nations’ Representation on Ontario Juries. Iacobucci was appointed by Hon. Chris Bentley, Attorney General of Ontario, on Aug. 11, 2011 to review the jury process for First Nations living on reserves. The report concludes that Ontario's justice system is in a state of crisis, as First Nations are overrepresented in the prison population and significantly underrepresented on jury lists and those who work in the administration of justice,

If we continue the status quo we will aggravate what is already a serious situation, and any hope of true reconciliation between First Nations and Ontarians generally will vanish. Put more directly, the time for talk is over, what is desperately needed is action.

In areas like Kenora and Thunder Bay, less than 10 per cent of potential jurors are First Nations on reserves, despite making up to 35 per cent of the population. Governmental officials in these areas have struggled to obtain reliable records needed to create representative jury rolls. One suggestion has been use of Ontario Health Insurance Plan (OHIP) lists used through information-sharing agreements, as well as educational efforts through Jury Forums and the use of video conferencing technology for jury selection to reduce the burden on First Nations Communities.

Suggestions by the Ministry of the Attorney General include sending a summons or questionnaire to unresponsive or undelivered residents, a practice implemented in the U.S., and a procedure where First Nations on reserves can volunteer for jury service to supplement lists. The 17 recommendations also include areas of legislative and procedural reform:

• amendments to the Juries Act to exclude less individuals convicted of certain offices
• provide advice and support for pardons of criminal records, making more individuals eligible for jury duty
• creating eligibility for people convicted of certain offences after a certain time period elapses
• amendments to the Criminal Code to prevent use of peremptory challenges which discriminate against First Nations

The report is adamant that any solutions be developed in consultation and cooperation with First Nations communities through an Implementation Committee. However, there is no timeline provided for any of these changes, and the recommendations are not binding on the government.

Iacobucci acknowledges that systemic racism towards First Nations does exist in our justice system, and First Nations view the justice system as alien and foreign to their values, which is a significant factor for their reluctance to participate in the system to begin with. He does note,

…on the positive side, I heard or read some commentary to the effect that if positive changes are made to the justice system then the reticence of First Nations individuals to participate on juries will lessen.

The Toronto Star is conducting a series, Unequal Justice, examining the disparities between race and punishment in Ontario jails. UofT doctoral student, Akwasi Owusu-Bempah, states as part of this series:

As the situation in many American states has made apparent, using incarceration as a means of controlling populations that are viewed as problematic in an effort to reduce crime is a costly endeavour that further intensifies the problems facing these communities rather than making them better. A smarter approach would be to deal with the causes of crime rather than the consequences. This is particularly true in the face of Prime Minister Stephen Harper’s tough-on-crime agenda.

Some of my students in the court support services program are shocked and resistant to the differential and flexible treatment of First Nations when first learning of the Gladue factors for sentencing. But the Iacobucci report confirms that the problems facing First Nations are much larger than crime and law enforcement, and require systemic change and widespread societal support to address the root causes of poverty in these communities and complete transformation of how our justice system works for First Nations offenders.