OTTAWA – Indigenous people are overrepresented in the jails, but underrepresented on jury rolls, the Supreme Court of Canada heard Monday in a case that could change the way juries are selected across the country.
The Supreme Court is hearing a case involving the Ontario Court of Appeal’s overturning of the manslaughter conviction of Clifford Kokopenace who stabbed his friend to death in Grassy Narrows First Nation. The Court of Appeal found that Ontario violated Kokopenace’s rights because it could not ensure Indigenous people were represented on jury rolls.
Ontario has challenged the Court of Appeal’s ruling and wants Kokopenace’s conviction reinstated.
“We’re so over-represented in the criminal and penal justice system and we’re so underrepresented in juries,” said Christa Big Canoe, with Aboriginal Legal Services of Toronto, and one of the lawyers present during the hearing.
Nishnawbe Aski Nation deputy Grand Chief Alvin Fiddler said the issue has deep historical roots and it’s time the justice system begins to implement changes.
“The problem is in our view a historic one as far back as 1994 and before that there were documented cases where First Nations were concerned about the make up of the jury roll, the fact it wasn’t representative of our communities,” said Fiddler.
This is the first time the Supreme Court will deal directly with the concept of a representative jury and what that entails.
The case stems from 2008 when a non-Indigenous jury in Kenora, Ont., convicted Kokopenace of stabbing a friend to death. The Court of Appeal upheld the verdict in 2011.
However, in an unusual twist, the court put its ruling on hold to deal with a constitutional challenge sparked by the historical under-representation of Indigenous people on juries.
Soon after, in a landmark ruling on the constitutional challenge, the Court of Appeal ordered a new trial for Kokopenace.
In its appeal, Ontario calls on the Supreme Court to restore the conviction, saying Kokopenace had a fair trial despite the lack of Indigenous people on his jury. It also says the province’s top court went too far in trying to solve a real issue:
The issue first rose to prominence during inquests into the deaths of two Indigenous people in northern Ontario in 2007.
The representation issue paralyzed jury proceedings in the region.
In response, the province asked former Supreme Court justice Frank Iacobucci to investigate and make recommendations. He reported last year that the system for recruiting Indigenous jurors was broken.
Source: APTN National News