The Justice System and Aboriginal People

The Aboriginal Justice Implementation Commission

   

Chapter 9

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JURIES

Introduction
The Exclusion of Aboriginal People from Juries

Historic Exclusion
Contemporary Exclusion

How Juries Are Selected

The Jurors’ Roll
The Jury Panel
The Jury

How Aboriginal People Are Excluded from Juries

Problems with Selection
Challenges and Stand - Asides

Local Jury Trials
Conclusion

 

Juries TOP

Introduction

The jury system has long been considered one of the most sacred institutions of the Anglo-Canadian legal system. It is the protection which people have against unjust laws and arbitrary decisions of government, the police, lawyers or judges, and it guarantees community scrutiny of the criminal justice system.

The jury is asked to listen to the evidence that is presented at a trial and to decide what happened. The jury members are then to take the judge’s direction as to the law, to apply the law that fits with their findings of fact and to deliver a verdict.

In a criminal case the verdict will usually be one of guilty or not guilty. If there is more than one charge, or included and lesser counts, the jury will decide the particular offence of which the accused is guilty. In the case of murder, for example, a jury may find an accused guilty of murder, or of the lesser and included offence of manslaughter.

While the jury is instructed not to apply any personal knowledge of any fact related to the offence, it is expected that it will apply its general knowledge of the community, its understanding of human nature and its common sense.

In its 1982 Report on the Jury, the Law Reform Commission of Canada found that the jury system serves a number of vital functions in our criminal justice system:

First, because the jury is composed of a number of people with a wide diversity of experience and because it reaches a collective decision only after deliberating seriously and often robustly about the evidence, the jury is likely to be an excellent fact finder. Second, because it represents a cross-section of the community, the jury is able to act as the conscience of the community, ensuring that individual criminal cases are justly resolved. Third, the jury can act as the citizen’s ultimate protection against oppressive laws and the oppressive enforcement of the law. When a properly instructed jury acting judicially acquits an accused, no judge or state official can reverse its decision. Fourth, because the jury involves the public in the central task of the criminal justice system, it provides a means whereby the public can learn about, and critically examine, the functioning of the criminal justice system. For the public, it acts as a window on the criminal justice system. Finally, by involving the public in judicial decision-making, the jury undoubtedly increases the public’s trust in the system.1

These are very lofty and fine expressions of confidence in the jury system. Unfortunately, many of these principles do not apply to Aboriginal people who are excluded, in large measure, from participating in the system. TOP

 

The Exclusion of Aboriginal People from Juries TOP

Historical Exclusion

We believe that the jury system in Manitoba is a glaring example of systemic discrimination against Aboriginal people. Studies conducted for our Inquiry confirm that Aboriginal people are significantly under-represented on juries in northern Manitoba and are almost completely absent from juries in the city of Winnipeg.

Of all the ways that Aboriginal people are under-represented in the justice system, this is one of the most disturbing. Jurors, after all, require no special training or skills.

Juries represent the direct involvement of the lay public in the justice system. If a significant portion of that public is not properly represented on juries, it would not be surprising to discover that a portion of the public never comes to view the justice system as anything other than a foreign and imposed system.

The reasons for the under-representation of Aboriginal people on juries are numerous, but it is important to bear several facts in mind from the outset. From its inception, the legal system in Manitoba has systematically excluded Aboriginal people from juries. This discrimination has taken many forms. Jurors have traditionally been drawn from lists of voters. Since Indians or persons of Indian blood were denied the vote in Manitoba from 1886 until 1952, they were effectively denied the right to sit on juries. The situation did not significantly improve in 1952. For the following two decades, most Aboriginal people in Manitoba were effectively excluded from sitting on juries because reserve officials, unlike the mayors and reeves of municipalities, were not required to submit the names of potential jurors to the chief County Court judge. This policy was changed in 1971 and reserves were obliged to submit names drawn from their electoral lists. As was the case with lists from non-Aboriginal communities, these lists suffered from a lack of attention and were not regularly updated. It was only in 1983, when the Province began using the computerized records of the Manitoba Health Services Commission, that Aboriginal people began to be properly represented on the lists of potential jurors. For a century the legal system made it clear that it did not want or need Aboriginal jurors. It is a message Aboriginal people have not forgotten.

While serving on juries can be seen to be a cornerstone of the Anglo-Canadian legal system, to an Aboriginal person it might well appear to be culturally irrelevant. As we have noted in earlier chapters, the determination of guilt, the primary function of a jury, does not play a large role in the traditional Aboriginal concepts of justice. The Aboriginal approach was to take the measures necessary to restore the community to a state of peaceful coexistence.

The legacy of past exclusions must be kept in mind as efforts are undertaken to make the jury system more truly representative. These efforts will only succeed by taking steps which bring local communities into close contact with the court and which involve more Aboriginal people in the jury system.TOP

 

Contemporary Exclusion TOP

Section 2 of the Jury Act of Manitoba, C.C.S.M. c. J30, states, "Every person has the right and duty to serve as a juror unless disqualified or exempted under the Act." This means that every citizen of the province has the right, and the obligation, to assist in the administration of the law when called upon to do so.

Our studies clearly show that Aboriginal people are not properly represented on juries, even on juries trying an Aboriginal person accused of committing an offence against another Aboriginal person in an Aboriginal community.

An illustration of the lack of Aboriginal involvement on juries was seen at the opening of the assizes in Winnipeg on September 28, 1988. Approximately 120 people appeared on the jury panel, from which juries for several cases were to be selected. Of these 120, only one appeared to be an Aboriginal person. A similar study was undertaken on January 30, 1989 at the Thompson assizes. Aboriginal people accounted for 36% of the jury panel members present, which means they were representative of the number of Aboriginal people in the Thompson Judicial Centre, but the three juries constituted from this panel contained only two Aboriginal persons each. This means Aboriginal people accounted for only 17% of each jury.

One of the reasons we have juries is to involve people from the community in the administration of justice. If one group is excluded from that jury service, that group is deprived of the opportunity to apply its scrutiny to cases and is deprived of the opportunity to improve its understanding of how the legal system operates. The fact that juries rarely include Aboriginal people means that the testimony of Aboriginal witnesses and accused are not understood by the jury, from the Aboriginal perspective. Also, it can be intimidating for Aboriginal people to testify before all-white judges and juries.

Aboriginal people are excluded from juries at the stage when people are summoned to form part of a jury panel. If they do appear on a panel, more are eliminated by stand-asides and challenges advanced by lawyers. It is the system that permits this to happen to which we direct our attention.TOP

 

How Juries Are Selected TOP

The Jurors’ Roll

Jurors in Manitoba are selected according to the Manitoba Jury Act. Section 6(1) of the Act says a list of potential jurors, known as a jurors’ roll, is to be prepared by random selection from "appropriate lists." These lists may be electors’ rolls or other records of any department of government selected for the purpose. In Manitoba the jurors’ roll is drawn from the list of Manitobans registered with the Manitoba Health Services Commission. Studies conducted by our Inquiry indicated jurors’ rolls drawn from the lists provided from MHSC contain a properly representative number of Aboriginal people. The exception to this appears to be in the city of Winnipeg. Here, our study determined that Aboriginal people were under-represented on the Winnipeg Judicial Centre jurors’ roll.TOP

 

The Jury Panel TOP

Prior to each assize sitting, the sheriff for each of Manitoba’s six judicial centres creates a jury panel. Five weeks before any jury is to be selected, the sheriff sends out summonses by registered mail to those named on the jurors’ roll. The summonses are accompanied by literature in French and English explaining the recipient’s obligations. Upon receipt of a summons, people are obliged to contact the sheriff and are requested to do this by telephone. Those individuals who eventually respond to the summons and attend at court comprise the jury panel. The panel is the group of people required to be present at the beginning of a trial from which the 12-person jury is selected. The number of people to be summoned to form the panel is determined by the chief justice in consultation with the sheriff. The number required will depend upon the number of cases and the number of accused in each case to be heard at that assize (jury) sitting. More people than necessary are called, as some will be granted exemptions, some will fail to respond and many will be challenged. TOP

 

The Jury TOP

When a jury trial is to be held, all those who have been summoned must attend at the courthouse for jury duty. The names of all those on the panel are placed in a box and drawn at random. Those whose names are drawn are called forward in the courtroom. The judge asks those who have a specific knowledge of the accused or of the alleged crime, or who may, for any other reason, not be effective fact-finders in a specific case, to identify themselves. They may be excused by the judge. The Crown and defence lawyers then have the opportunity to accept or challenge other prospective jurors. There are three types of challenges to a juror, only two of which are available to the defence. These are: stand-asides, peremptory challenges and challenge for cause.

Stand-Asides

Without providing any reason, the Crown may ask a prospective juror who is called forward from the panel to be stood aside. The juror who has been stood aside returns to a seat with the rest of the panel. A person who has been stood aside cannot be called forward again until all others on the panel have been called. The Crown attorney is allowed to ask 48 jurors to stand aside.

The effect of this practice is to allow the Crown to reserve its decision as to whether to challenge a person. It also allows it to see the types of challenges advanced by the defence. If there are not too many defence challenges, the result is that those who were stood aside never sit on the jury. In practice, more than 48 persons are seldom called. The practice gives the Crown a considerable advantage in the choice of those who eventually make up the jury. If Aboriginal people are stood aside, they will not likely sit on the jury.

Peremptory Challenges

These challenges are made without cause or reasons having to be provided. A person who has been challenged peremptorily is automatically excluded from the jury. In first degree murder trials, the defence is allowed 20 peremptory challenges for each accused. In cases where the maximum penalty is greater than five years, the defence is allowed 12 peremptory challenges. In all other cases, the defence is allowed four peremptory challenges. The Crown is allowed four peremptory challenges in all cases.

As counsel do not have to give a reason for these challenges, there is no limitation on those who may be removed from consideration as jurors by this means. If either counsel decides it would be preferable not to have an Aboriginal person on the jury, that person can be eliminated by this means. The same would apply to women or to people of a particular occupation. No reason is given and none is demanded.

Challenge for Cause

Jurors can be objected to by either the Crown or the defence on the basis that the juror is not impartial. Both defence and Crown are allowed an unlimited number of these challenges. Challenges have to have some basis, and to determine whether there is any, both Crown and defence counsel are entitled, with the court’s permission, to question prospective jurors. The judge may require that these questions be put in writing. In Manitoba the practice is to limit the extent of the questioning. If no particular facts are known that may show some relationship to a party or a witness, or some unusual knowledge of the case, the question is usually limited to whether the person believes that he or she can independently consider the evidence and give a verdict based on the evidence. Some "fishing" is permitted to test the juror’s belief in his or her ability to render a just verdict in certain sensitive or emotionally charged situations. The validity of these challenges is ruled upon by two people who have been selected to sit on the jury, or, where none is yet selected, two other members of the jury panel, referred to as "triers."

If the triers decide the juror who has been challenged for cause is impartial, that person takes a seat on the jury unless one counsel or the other applies a peremptory challenge. If the triers decide the person will not be impartial, he or she may not sit on that jury. A jury is fully constituted once 12 people have been selected without challenge. TOP

 

How Aboriginal People Are Excluded from Juries TOP

On the face of it, the current system, which starts with a list that contains a representative number of Aboriginal people, should produce representative juries. But this is clearly not the case. For a variety of reasons, at a number of different points in the jury selection process, Aboriginal people either are excluded or are able to exclude themselves from the jury system.

Of particular concern to us is that:

• In many communities Aboriginal people are under-represented on jury panels.

• When Aboriginal people are present on jury panels, we believe that both prosecutors and defence attorneys have used their peremptory challenges and stand-asides to screen Aboriginal people out of the jury system.

We will examine these problems in turn. TOP

 

Problems with Selection TOP

Our studies indicate that while Aboriginal people are proportionately represented on the lists from which jurors’ panels are summoned, they are often significantly under-represented on the panels themselves. We have concluded that the main reasons Aboriginal people are not properly represented on jury panels are that the manner in which they are summoned works against them, and the fact that the sheriff does not follow up on the summons. The summoning procedure works against Aboriginal people in a number of ways.

It may not appear that there is anything discriminatory about mailing summonses, or asking potential jurors to make a telephone call to indicate whether they are prepared to serve on a jury, but there are unique problems for Aboriginal people with both these practices. Non-Aboriginal communities are likely to have better mail service and better telephone service than Aboriginal communities. Aboriginal people in remote communities are far less able to check their mail every day. Because they are more likely to be renters, Aboriginal people in urban areas change addresses more frequently than non-Aboriginal people, as well. This means that Aboriginal people in both remote and urban centres are more difficult to reach by mail. In addition, there are many Aboriginal communities that do not have full telephone service. For that reason, and because of economic conditions, many Aboriginal families do not have personal telephone service. Aboriginal people, therefore, are less likely to receive their jury summonses and less able to respond to them quickly.

A person may be excused from jury duty by the sheriff for a number of reasons. Section 25 of the Act permits the sheriff to exempt a person on grounds of religion, serious hardship or, upon application, where a person has served on a jury during the previous two years or is over 75 years of age. In addition, a person can be excused for failing to meet the qualifications of a juror. Section 4 of the Act provides that where the language in which a trial is primarily to be conducted is one that a person is unable to understand, speak or read, that person is disqualified from serving as a juror in that trial. Thus, an Aboriginal person who tells the sheriff that he or she does not understand the English or the French language well enough to serve on a jury, or whom the sheriff believes cannot understand one of those languages well enough to serve on a jury, may be excused.

Finally, as noted above, the practice of sheriffs throughout the province is to send out more summonses to prospective jurors than the number of jurors actually needed. Once the number set for the panel has been reached, the sheriff stops pressing those who have failed to respond by that time and may also tell any further people who do respond by telephone that they are not needed.

Since sheriffs compile the jury panel from those who call in first, it is apparent that those people who get their mail first and call in first are going to be the first ones represented in such panels. The fact that the sheriff does not take any further names once his or her needs are met causes latecomers, often Aboriginal, to be excluded from jury panels.

While Aboriginal people are no longer legally barred from serving on juries, the law does not allow people who speak only Aboriginal languages to sit on juries. This requirement can regularly eliminate many of those Aboriginal people or allow them to eliminate themselves. Given that fact, Aboriginal people may well ask why they should make an effort to participate in a process which appears designed to eliminate them from participation.

Jury service not only may appear irrelevant, it can be quite costly. The travel costs associated with serving on juries are not paid in advance, but reimbursed after the fact. This is another factor which we believe causes many Aboriginal people to choose to disregard a summons or to ask the sheriff to be excused from service.

We appreciate that court sheriffs, like other officials in the judicial system, are struggling with high workloads and limited resources. To them, it is matter of simple expediency to summon considerably more people than they will need for an assize, and let many people simply ignore the summons. It is much easier to wait for travel claims than to make advance travel arrangements at government expense. Unfortunately, this concern for efficiency inadvertently serves to exclude Aboriginal people from juries.

We recommend that:

 When a sheriff grants an exemption from jury duty, the person who is exempted be replaced with someone from the same community.

 Every person called for jury duty, who is not granted an exemption, be required to attend, and summonses be enforced even when sufficient jurors have responded. TOP

 

Discriminatory Effect of Peremptory Challenges and Stand-Asides TOP

The purpose of the jury is to bring together 12 fair-minded representatives of the community to make a determination on the facts of a case. Counsel, however, see their role during jury selection as requiring them to try to select jurors likely to be supportive of their position. This attitude can distort the jury selection process. The ability, which both Crown and defence counsel have, to dismiss jurors without stating any reason makes this distortion of the process almost inevitable. We believe that any 12 people not otherwise disqualified by the Act, who direct their minds to the evidence and apply the law given to them by the judge, and have heard the arguments and submissions of the lawyers, will bring in a reasonable verdict.

We have concerns about the manner in which peremptory challenges and stand-asides are used. While some defence lawyers and Crown attorneys make no distinction on the basis of race, we believe it is common practice for some Crown attorneys and defence counsel to exclude Aboriginal jurors through the use of stand-asides and peremptory challenges.

One example of such exclusion is the Helen Betty Osborne case in The Pas. There, the jury had no Aboriginal members. The six Aboriginal people who were called forward were peremptorily challenged by counsel for the defence. The lack of Aboriginal people on a jury in a case of that kind, in an area of the province where Aboriginal people make up at least 50% of the population, raises valid concerns about the manner in which our jury selection process operates.

On one day of the Thompson assizes in January 1989, 35 of the 41 Aboriginal people who were called to serve on three juries were rejected. In one case, the Crown rejected 16 Aboriginal jurors; in another, the defence rejected two and the Crown rejected 10; in the third and final case, the defence accepted all the proposed Aboriginal jurors, while the Crown rejected nine. Two jurors were rejected twice.

A survey of lawyers’ attitudes on a variety of topics was conducted for our Inquiry. Respondents were asked if they perceived discrimination in the system of jury selection. Eighty-three per cent of Legal Aid staff lawyers and 77% of private counsel thought the Crown challenged or stood aside Aboriginal persons more often than non-Aboriginal people. Only 17% of Crown attorneys thought so. By contrast, only 5% of Legal Aid staff lawyers and 12% of private counsel felt that defence lawyers challenged Aboriginal jurors more often than non-Aboriginal jurors, compared to 27% of Crown attorneys.

We are critical of a system that permits Aboriginal people to be so often and so easily excluded from sitting on a jury. Both the Crown and defence counsel have too many opportunities, through the use of peremptory challenges and stand-asides, to make decisions on the basis of racist or sexist stereotypes.

In its 1982 Report on the Jury, the Law Reform Commission of Canada recommended that the use of stand-asides be abolished and replaced by the same number of peremptory challenges available to the defence. While this would be an improvement over the current system, it does not go far enough, since the use of peremptory challenges by counsel for accused persons has also been abused.

While the practice of challenging people without having to give a reason is sanctioned by the Criminal Code, we question the logic and fairness of allowing the practice to continue when its application can prevent Aboriginal people from sitting on a jury solely because they are Aboriginal. We believe strongly that the use of stand-asides and peremptory challenges in such a manner must be brought to a halt.

The Charter of Rights and Freedoms and the Manitoba Human Rights Code prohibit discrimination on the basis of sex and race. Section 626 of the Criminal Code explicitly states that "no person may be disqualified, exempted or excused from serving as a juror in criminal proceedings on the grounds of his or her sex." The Manitoba Jury Act states that every person not "disqualified or exempted" has a "right" to serve on a jury. It would appear to us that peremptory challenges and stand-asides, which allow people to be deprived of their right to serve on juries without any reason, flies in the face of these guarantees. We believe no one should be deprived of his or her right to sit on a jury without reason being provided and without a judge making a ruling on the exemption.

Because we believe that both the prosecution and the defence should have the same right to exclude people for good reason, we do not wish to see challenges removed entirely. However, we do believe that only challenges for cause should be allowed.

We recommend that:

 The Criminal Code of Canada be amended so that the only challenges to prospective jurors be challenges for cause, and that both stand-asides and peremptory challenges be eliminated.

Initial information should be supplied by each member of the panel, after being told what the particular case is about and who is on trial, indicating whether the juror knows any of the people likely to testify, or if he or she has any personal knowledge about the occurrence itself. Armed with this information, counsel should then be permitted to question potential jurors to test their independence. The judge should be entitled to question the person and to determine if he or she will be able to listen to the evidence and to arrive at a verdict independently, based on the evidence he or she hears and on the law the judge will later describe.

Counsel should be able to make representations as to whether a certain person should become a juror, but the final decision should be made by the judge. We suggest that a judge is in a better position to make that determination than the triers, who are unfamiliar with the law applicable to the issue.

The judge should also have the authority to excuse jurors if it appears fair and just to do so, without going through the challenge procedure. Information may emerge that would warrant that action without having the person subjected to questioning. It should also be open to counsel to make a joint request that a certain person be excused, providing the reason in writing to the judge.

We recommend that:

 The Criminal Code be amended so that rulings on challenges for cause be made by the presiding judge. TOP

 

Local Jury Trials TOP

We believe it is necessary to provide local communities with greater input into the legal system. Currently, the Manitoba Court of Queen’s Bench is the only court in Manitoba with the authority to hold jury trials. That court only holds jury trials in six communities—none of which is Aboriginal. In our chapter on court reform, we recommend that jury trials be held in the community where the offence was alleged to have been committed. Recent changes in the Northwest Territories could serve as a model for what we are proposing.

The Jury Act of the Northwest Territories provides that no person who resides more than 20 miles from the place fixed for the sitting of the court shall be included in the jury list. The Act was amended in 1986 to add the following section:

5.2. An Aboriginal person who does not speak and understand either the French language or the English language, but who speaks and understands an Aboriginal language as defined in the Official Languages Act and is otherwise qualified under this Act, may serve as a juror in any action or proceeding that may be tried by a jury in the Territories.2

This has made it possible for an Aboriginal person to be tried by an all-Aboriginal jury and for all Aboriginal people to serve on juries. We are impressed by the Northwest Territories’ method of limiting the area from which a jury is drawn. It has a number of advantages, the most important of which is that it involves the community in the trial of one of its members.

This sort of solution is attractive to us, since it seeks to return to the community involved a direct sense of involvement in, and control and understanding of, the justice system. Many of the problems we identify earlier, dealing with the problems of the mails, telephones and travel, would cease to be exclusionary factors if this sort of recommendation were put in place. It would be suited to an Aboriginal court system, but would also be important as long as the present system continues.

If there are not sufficient jurors able to sit on the case from the same community, the jury could include people from a similar community. In Aboriginal areas, those people would still be able to understand the nuances that might apply to the relationship between victim and accused, or local factors that might escape the attention of non-Aboriginal people.

These proposals could also be successfully adapted for use in urban communities, as well as in remote and rural communities. When jury panels are being created, it would be relatively easy to program a computer to use postal codes to draw potential jurors from the sections of the city where both the accused and the victim are resident. Given the fact that a large number of Aboriginal people brought before the courts are tried in Winnipeg, and the fact that Aboriginal people almost never serve on urban juries, we believe a measure of this sort is necessary. If a case arose in Thompson, for example, it should not be necessary to bring jurors all the way from Churchill. If the case arose in Steinbach, it should not be necessary to bring in people from St. Boniface.

We recommend that:

 Jurors be drawn from within 40 kilometres of the community in which a trial is to be held.

 In the event that there is a need to look elsewhere for jurors, the jury be selected from a community as similar as possible demographically and culturally to the community where the offence took place.

 In urban areas, juries be drawn from specific neighbourhoods of the town or city in which victims and accused reside.

 The Manitoba Jury Act be amended to permit an Aboriginal person who does not speak and understand either French or English, but who speaks and understands an Aboriginal language, and is otherwise qualified, to serve as a juror in any action or proceeding that may be tried by a jury, and that, in such cases, translation services be provided. TOP

 

Conclusion TOP

It is apparent that in Manitoba even the jury system—a cornerstone of our justice system—is failing Aboriginal people. We do not doubt for a moment that its doing so arises as much through inadvertence as through wilfulness, but to Aboriginal people that difference is of no import. As well, there is an element of inertia at play, in that many of the concepts behind the jury process have their roots in the days of the Magna Carta and have seemingly developed a sanctity of their own. The American courts have recognized that a jury selection process that results in the systemic exclusion of blacks can amount to an infringement of their constitutional rights to due process. Some of the same considerations cause us to conclude that, despite the strengths of the jury system, changes to it are necessary in the interests of fairness and justice to Aboriginal people. TOP

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