Lack of First Nations Representation on Ontario Juries Symptomatic of Larger Problems: Iacobucci Report
Every fall, Aboriginal students from Northern Ontario’s remote reserves leave their families and fly to Thunder Bay in order to attend high school, the trip being necessary due to the lack of suitable schools closer to their homes. Since 2000, seven of these students have died in tragic circumstances. After the death of Reggie Bushie in 2007, an inquest was called to investigate the circumstances surrounding his death and to examine the effects of sending First Nations youth to school so far away from their home communities. For those who knew Jethro Anderson, Curran Strang, Paul Panacheese, Robyn Harper, Reggie Bushie, Kyle Morriseau, and Jordan Wabasse, many questions surrounding these young people’s deaths have yet to be answered as a long and convoluted, yet deeply important, legal battle to ensure a representative jury in a coroner’s inquest has moved slowly through Ontario’s justice system.
A (Very) Brief History of Ontario’s Jury and Coroner’s Inquest System
As Sara Hanson pointed out in her recent post on R v Davey,  2 SCR 828, juries are a fundamental aspect of our justice system and the right to be tried by a jury is protected under s. 11(f) of the Charter. In order for a jury to function properly, it must be representative and impartial. The 1991 Supreme Court of Canada decision R v Sherratt,  1 SCR 509 recognized the requirement of a representative jury as a constitutional principle. At paragraph 35 of the decision, L’Heureux-Dube J noted that:
[T]he Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform many of the functions that make its existence desirable in the first place.
The way in which juries are comprised in Ontario is governed by the Juries Act, RSO 1990, c J.3. Through this process, randomly selected Canadian citizens who reside in the province are sent jury service notices and are required to fill them out. From these citizens, a jury roll is prepared each year and those on the jury roll maybe called for jury duty.
In most cases, the people on the jury roll are selected from municipal assessment lists. However, the names of First Nations people living on-reserve are not found on municipal assessment lists. In this situation, s. 6(8) of the Juries Act states that:
In the selecting of persons for entry in the jury roll in a county or district in which an Indian reserve is situate, the sheriff shall select names of eligible persons inhabiting the reserve in the same manner as if the reserve were a municipality and for the purpose, the sheriff may obtain the names of inhabitants of the reserve from any record available.
Historically, the Federal Department of Indian and Northern Affairs (“INAC”) provided the names of First Nations people living on-reserve to the Provincial Jury Centre, which would then send jury questionnaires to all eligible Ontario residents. The federal government stopped this practice in 2000; since then, Ontario’s government has not found a way to accurately add the names of First Nations peoples to the list of citizens who are sent jury questionnaires.
Another instance where juries are used is in coroner’s inquests. Inquests can either be mandatory or discretionary. Mandatory inquests are held in specific situations set out in the Coroners Act, RSO 1990, c C.37, such as when someone dies while in police custody. Discretionary inquests can be called when the coroner feels it is in the public interest to inquire into a death. In these cases, recommendations are made to try and prevent deaths from occurring in similar circumstances. Every coroner’s inquest has a jury of five people assigned to it, and this jury is chosen from a list of jurors taken from the same jury roll as criminal trials.
Coroner’s Inquests and the Need for a Representative Jury: Kashechewan, Pierre v McRae, and Reggie Bushie
During the 2008 inquest into the deaths of Jamie Goodwin and Ricardo Wesley at the Kashechewan First Nation police detachment, it was discovered that the Kenora District jury rolls only contained the names of members from 14 of the 49 First Nations represented by the Nishnawbe Aski Nation (NAN) and no members of the Kashechewan First Nation.
This discovery prompted the families of Reggie Bushie and Jacy Pierre (a First Nations man who died while in police custody) to request that the coroners in charge of the two respective inquests issue a summons to the Director of Court Operations for Ontario’s Northwest Region, Mr. Gordon, so they could ensure that the jury roll in Thunder Bay was representative. In both instances, the coroners refused to do so. The Pierre family and NAN applied for a judicial review of each coroner’s decision and a stay of the inquests pending the hearing of this application. The Divisional Court dismissed the applications for judicial review and the Pierre inquest proceeded without the participation of the Pierre family. The Bushie inquest was stayed.
The judicial review applications were appealed to the Ontario Court of Appeal (ONCA). In Pierre v McRae, 2011 ONCA 187, released on March 10, 2011, Laskin JA overturned the Divisional Court’s decision, ordered a new inquest into the death of Mr. Pierre, and ordered Mr. Gordon to appear at both inquests to give evidence about the establishment of the jury roll in Thunder Bay. Following ONCA’s decision, the coroner in the Bushie inquest determined that Thunder Bay’s jury roll was not representative and therefore the inquest was stayed until a representative jury roll was created. On August 30, 2012, the Reggie Bushie inquest was expanded to include the deaths of Jethro Anderson, Curran Strang, Paul Panacheese, Robyn Harper, Kyle Morriseau, and Jordan Wabasse.
“First Nations Representation on Ontario Juries” or the Lack Thereof: The Problems and the Recommendations
Shortly thereafter, former Supreme Court of Canada Justice Frank Iacobucci was appointed by the Ontario government to carry out an Independent Review to make recommendations regarding First Nations representation on juries. As per Order-In-Council 1388/2011 (August 11, 2011), the Review was set up:
(a) to ensure and enhance the representation of First Nations persons living on reserve communities on the jury roll; and
(b) to strengthen the understanding, cooperation and relationship between the Ministry of the Attorney General and First Nations on this issue.
On February 26, 2013, the report from this Review, entitled “First Nations Representation on Ontario Juries”, was released. The overall message of the report is hardly surprising: First Nations peoples face systemic discrimination in their relations with Canada’s justice system and therefore do not have a positive relationship with legal institutions. Tied in with these realities is the fact that First Nations peoples are notably underrepresented on jury rolls, which calls into question the ideal of a representative jury in Canada.
To be clear, the principle of a representative jury does not mean that there must be First Nations representation on all juries. As Justice Iacobucci notes at paragraph 130 of the Review:
The principle of representativeness requires that jurors be selected at random from a pool whose composition is representative of Canadian society as a whole. In order to be representative, no group of Canadians can be systematically excluded. However…no one has the right to have individuals from a particular group on their jury panel, or to be tried exclusively by members of a group to which they belong.
For years, First Nations people living on-reserve have been excluded from jury rolls as Ontario’s government failed to take steps to obtain accurate contact information in order to have jury questionnaires sent out and completed by people living on-reserve to ensure that the jury rolls could include sufficient numbers of First Nations people to be representative. As is stated in the Review, 30-36% of Kenora’s population lives on reserve, but these residents make up less than 10% of the Kenora jury roll. Similarly, in Thunder Bay, on-reserve residents make up 5% of the population but only 1.3% of the jury roll.
The most poignant aspects of the Review are the sections that explain the reasoning behind First Nations peoples’ reluctance to participate in the jury process. As is noted at paragraph 209,
“the most significant systemic barrier to the participation of First Nations peoples in the jury system in Ontario is the negative role the criminal justice system has played in their lives, culture, values, and laws throughout history.”
Historically, criminal jury trials were used as
“a tool to punish … disloyal behaviour on the part of Aboriginal people, and to persecute the customary practices of First Nations on the grounds that they constituted criminal behaviour” (paragraph 79).
In addition to this factor, Justice Iacobucci also notes that there exists a core conflict between First Nations cultural values, laws, and ideologies with regards to traditional approaches to conflict resolution and the Canadian justice system. Many First Nations groups reported that the objective of their approach to justice is to “re-attain harmony, balance, and healing with respect to a particular offence, rather than seeking retribution and punishment” (paragraph 210). Interestingly, it is also stated that
“[a]nother core traditional First Nations value that often prevents many First Nations people from participating on juries for criminal trials relates to the cultural teaching that a person is not to sit in judgment of the actions of another or to direct a person’s actions” (paragraph 213).
Justice Iacobucci notes that these tensions go beyond the Review’s mandate to make recommendations as to how to ensure a representative jury roll in Ontario. However, many of the recommendations that are made in the Review speak to the larger problem of the disenfranchisement First Nations people feel with Canada’s justice system. The recommendations range from the practical (the suggestion of using the OHIP database to generate a list of First Nations individuals living on reserve for the purposes of compiling the jury roll) to the systemic (cultural training for government workers and more comprehensive justice education programs for First Nations individuals), but one thing is clear: A larger effort must be made to ensure that a representative jury, one of the bedrocks of our justice system, is realized. Only then can the inquest into the deaths of Jethro Anderson, Curran Strang, Paul Panacheese, Robyn Harper, Reggie Bushie, Kyle Morriseau, and Jordan Wabasse be completed and steps be taken to prevent any similar deaths in the future.
To learn more about First Nations youths attending high school far from home in Thunder Bay, the CBC’s Fifth Estate episode “Stories from the River’s Edge” provides a glimpse into the situation.