The Death of Helen Betty Osborne

The Aboriginal Justice Implementation Commission


Chapter 8

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The Composition of the Jury Panel
The Composition of the Jury



The Jury TOP

There were no Aboriginal persons on the jury which tried James Houghton and Dwayne Johnston. All the Aboriginal persons who were called for jury duty were challenged peremptorily by Johnston’s counsel. The systematic exclusion of Aboriginal persons from a jury in an area where Aboriginal persons make up such a large proportion of the population is very troubling.

The Composition of the Jury Panel TOP

Every year a "jurors’ roll" is prepared by the chief sheriff of the province for the various areas of Manitoba in which the Court of Queen’s Bench sits with a jury. The jurors’ roll is prepared by random selection by computer from the Manitoba Health Services Commission records. When an assize is called, the sheriff is told the number of cases on the assize and the number of accused involved. In consultation with the chief justice, the local sheriff determines the number of people who should be summoned to serve as jurors and selects that number from the jurors’ roll provided by the chief sheriff. The names of those summoned to appear for jury duty are termed the "jurors’ list." The local sheriff then sends the selected names to the Office of the Sheriff in Winnipeg where the subpoenas are made up by the chief sheriff and returned to the local sheriff. The local sheriff then serves the subpoenas on the appropriate persons by registered mail.

The subpoenas are accompanied by documentation in English and French, intended to explain the obligations of jury duty to the recipient. The literature instructs the recipient to call the sheriff and provides a telephone number. More than the needed number of people are subpoenaed as experience has shown that not all who are served respond. When the desired number of jurors responds by telephone, no further efforts are made to contact the jurors who were subpoenaed but have not responded. In addition, any who respond after the required number has been reached are advised they are not needed. The names of the jurors who respond to the subpoenas comprise the "jury panel" and they are told when the selection of a jury for the first trial on the assize will take place. On the appointed day, all those on the jury panel assemble in the court room and 12 jurors are selected from the panel.

The panel for the trial of Houghton and Johnston was drawn from the Judicial Centre of The Pas. As well as the town and the reserve community of The Pas, the Judicial Centre includes the city of Flin Flon and the Aboriginal communities of Pukatawagan, Sherridon, Moose Lake, Easterville, Brochet and Grand Rapids. The 1987 jurors’ roll for the Judicial Centre of The Pas consisted of 800 names, of which it is estimated that 224, some 28%, were Aboriginal. It was decided that 100 persons would be required for the panel. Consequently, 247 subpoenas were sent out and 194 persons responded. Eighty-nine were given exemptions by the sheriff and 105 persons were placed on the panel. One of those was removed from the panel before the subpoenas were issued.

Of the 247 who were sent subpoenas, it is estimated that 61 were Aboriginal. It is not possible to determine the actual number with any real certainty because that information is not included in the jury roll. Twenty-two of the Aboriginal persons on the list failed to respond. Another 21 of the Aboriginal persons were excused from duty for various reasons, eight of them on the basis of difficulty with the English language.1 Eighteen Aboriginal people were called and appeared as members of the panel of 105 people.

Of the subpoenas sent to potential jurors, 24% were sent to Aboriginal persons and Aboriginal persons made up 18% of the jury panel. The evidence indicated that the percentage of Aboriginal people in the area from which the jury was drawn is in excess of 30%. Ideally, it is intended that a jury be representative of the area from which it is drawn; that is, of the area where the crime occurred. Since the panel, in this case, was not representative, it is clear that the jury could not be. The fact that similar discrepancies can be found in the jury panels throughout the province reveals a major failing of the justice system in Manitoba–one which indicates the existence of systemic discrimination. We can only conclude that these figures indicate that, in this aspect, the criminal justice system has broken down and does not serve the Aboriginal population properly. Also of concern is the high percentage of Aboriginal persons excused because of difficulty with the English language. TOP



The Composition of the Jury TOP

The names of those who are on the panel are written on cards and placed in a box. When the jury is to be selected, the members of the panel assemble in court and the clerk of the court draws the cards from the box one at a time and calls the person named on it. The person then comes forward. Either the Crown or the defence may challenge the potential juror. The Crown may order the juror to stand aside and go on to the next name. The Criminal Code allows the Crown attorney to challenge peremptorily, that is, without having to state any reason, four of the panel. (s. 634) In addition, the Crown attorney may stand aside any number of persons on the panel without stating any reason. (s. 634) In a first degree murder trial, a defence lawyer is permitted to challenge peremptorily 20 jurors. (s. 633) In addition, both the Crown and the defence can challenge any number of the panel for cause if they have reason to believe that those persons might be prejudiced for or against the accused. (s. 638) Any panel member who is found not to be impartial is excused. If there is no challenge, the member is sworn and becomes part of the jury. When 12 jurors are selected, the rest of the panel is dismissed and the trial proceeds.

According to the information supplied to us by Gerald Wilson, the sheriff who worked on the Osborne jury, 54 persons were called from the panel in the Osborne murder case before the jury was complete. Of these, six were Aboriginal, and all were challenged by Greg Brodsky, Johnston’s lawyer, and did not sit on the jury. Johnston’s lawyer used all his 20 peremptory challenges and Houghton’s lawyer used 19 of his 20. The result was that there were no Aboriginal persons on the jury.

In this case, the victim was Aboriginal and the community in which the crime occurred had a large Aboriginal population. We are not suggesting that the jury in the trial of Houghton and Johnston was not impartial. Nevertheless, it must be stated clearly that the jury was not representative of the community from which it was drawn and in which the crime was committed. As well, we believe that Aboriginal people were excluded because of their race. Unfortunately, the jury selection process designed in our Criminal Code and Jury Act allows such practices to occur. We believe that such practices should no longer be allowed.

The exclusion of Aboriginal people from the jury fuelled public concern that racism might have played some part in the trial, as a result of which, one person went to jail for the murder of Betty Osborne. Certainly, the lack of Aboriginal jurors gives the impression that the trial, from the Aboriginal person’s perspective, was not a fair one. And in a sense, it was not fair–the jury simply was not representative of the local community. We do not believe that this should be allowed to continue. Whether it is the accused or the victim who is Aboriginal, the perception of a fair trial will be enhanced if Aboriginal persons are properly represented on juries. They are, after all, very much affected by the outcome of trials in their communities.

We believe that the exclusion of potential jurors on the basis of their race is an unacceptable and probably unconstitutional practice which should be ended by reform of the method of juror selection. We recommend a considerable overhaul of the jury system in Volume One of our report.


1 The Jury Act, R.S.M. 1987, c. J30 provides a number of grounds for exemption from jury duty. Two were excused for medical reasons. (s. 26(2)) One who was no longer resident in the jury district was excused. (3(b)) One correctional officer and two convicted prisoners were excused. (ss. 3(m), 3(p)) Two were deceased. Eight were excused because of difficulty with the English language. (s. 4) One was excused for "hardship" (s. 25(1)(b)), the exact nature of which was not recorded. Four were excused by the sheriff pursuant to s. 26(4). The nature of the basis for the exemption is not known. Section 26(4) reads: "Where a sheriff is satisfied on the basis of a declaration or other proof furnished to him under this section or of any other inquiry that he has made, that a person summoned as a juror is disqualified from serving as a juror or is entitled to be exempted from serving as a juror, the sheriff shall notify the person that the person is disqualified or exempted, as the case may be, and is not required to answer the summons."

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