Aboriginal Representation on Juries


The Liberals just cannot help themselves.

There is saying attributed to Jesus that you had better get the beam out of your own eye before you try to extract the mote in someone else’s.

As the federal Liberals threaten to tamper with jury selection, and overthrow centuries of common law to make theft by Indians of property more easily achieved by the disabling the rights of landowners to self-protection, here is something you need to consider. The federal government has stopped making jury lists of Canadian aboriginals, so that finding aboriginals to sit on juries has been made much more difficult. The reasons are given below.

The Department of Indian Affairs stopped compiling jury lists because of privacy concerns. So says the website Lawnow.

Until 2000, Indian and Northern Affairs Canada (INAC) compiled lists of First Nations persons for jury rolls. These lists were used in the situation where band electoral lists were not available. In 2001, INAC stopped providing band lists because of privacy concerns.  The key issue in the Kokopenace case was the Ontario government’s efforts to address problems that had arisen since the INAC band lists were not available, as this had an impact on the right to a representative jury.

The Ontario courts relied on a report prepared by Justice F. Iacobucci, First Nations Representation on Ontario Juries (2013) for data on why Aboriginal on-reserve residents were reluctant to participate in the jury selection process. Reasons included:

  • their views about conflict resolution;
  • systemic discrimination experienced by First Nations people within the justice system;
  • a lack of knowledge about the justice system and the jury system;
  • the desire by First Nations leaders to assume greater control of justice matters in their communities; and
  • concerns for the protection of privacy rights.

Additional concerns included some aspects of the content of the questionnaire itself (e.g. penalty for non-response) and the requirement to declare citizenship. The Iocabucci Report concluded that the ad hoc system for identifying jurors was ineffective, and thus, results in a jury roll that is unrepresentative of all First Nations peoples on reserve. While the report focused on the situation in Ontario, Justice Iocabucci noted that the problem with underrepresentation of First Nations peoples on juries exists in a number of Canadian provinces, as well as in New Zealand, Australia and the United States.

“Privacy concerns”?!

Here we see in action the confusion of legal objectives: “privacy concerns”, which are of distinctly secondary importance, are used to trump the availability of jury lists that could be used to increase the number of Indians on juries, which is, to Liberals, of greater importance.

The decisions cited in the Lawnow article make it clear that a jury is not required to be a random selection of all people, and that failure to achieve statistical representation of the entire community is not a bar to effective justice.


The Ontario Court of Appeal emphasized that the right to a representative jury roll is qualified. For example, “it does not require a jury roll in which each group is represented in numbers equivalent to its proportion of the population of the jury as a whole” This would be practically impossible and any attempt to achieve this type of representation would not work with random selection process that is used to choose people to receive jury service notices.

The Ontario Court of Appeal focused on the steps taken by the state to prepare a jury roll that provides a group of people, from which to select a competent and impartial jury. The test arrived at was:

In my view, [wrote the court] to meet its representativeness obligation, the state must make reasonable efforts at each step of creating the jury roll. That includes the state’s actions in compiling the lists, but also in sending the notices, facilitating their delivery and receipt and encouraging the responses to them.  The objective of the state’s actions must be to seek to provide the platform necessary to select an impartial petit jury and to maintain public confidence in the criminal justice system by providing groups that bring distinctive perspectives to the jury process with their fair opportunity to be included in the jury roll.

The Supreme Court upheld the decision of the Ontario Court of Appeal 5-2.

The Liberals just cannot help themselves. 


In the avalanche of hyperbole and invective broadcast by media on the Gerald Stanley trial, this account by Brian Zinchuk is well worth a read. Is he completely objective? I don’t know, but he was closer to the actual court room then just about anyone spouting off, including the Justice Minister and need it be said the PM.
This is what he reported on the jury:
“But the calling of 750 potential jurors of a jury pool is extraordinary. That was a deliberate attempt by the court to provide as wide a jury pool as possible, and certainly larger than anything I encountered”
As to the impartiality of the court:
“the chief justice of Saskatchewan’s Court of Queens Bench chose to assign himself as the judge for this case. That’s right from the top. If anyone should be expected to ensure a fair trial, one would think it would be the chief justice of province”

These facts were not emphasized in the CBC and TO media accounts, I only read of it his reporting.
The whole link is here:

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