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Political response must focus on systemic issues, not verdicts

The outrage by politicians that followed the acquittal of a Saskatchewan farmer for the 2016 death of an aboriginal teen should be directed toward the root causes of injustice instead of the verdict, Toronto criminal lawyers Annamaria Enenajor and Clayton Ruby write in The Lawyer’s Daily.

“We require action on the part of our political leaders, not abstract rhetoric on how we can and must do better,” they say. 

Enenajor and Ruby, partners with Ruby Shiller & Enenajor, Barristers, say there is no question that racism permeates the Canadian justice system at every stage, from street checks and the practice of carding to the denial of bail and the surging rates of incarceration among indigenous and other minority communities in Canada — despite a declining crime rate. 

They point to a 2016 Department of Public Safety annual report that indicated that in federal penitentiaries, the indigenous population increased by 16.6 per cent over the past five years and almost 40 per cent since 2006.

“Canada’s indigenous people are not only over-represented in our penal institutions; they are also disproportionately represented as victims of crime,” they write. 

“The under-representation of members of First Nations communities on Canadian juries is also a widely recognized problem. At all potential points of contact with our justice system — whether as an accused person, prospective juror or as a victim — indigenous peoples face harsher treatment and more disappointing outcomes than all other Canadians. This is the definition of systemic racism.”

Enenajor and Ruby say this well-documented and persistent reality is the result of historical factors such the residential school system, the dislocation and dispossession of Canada’s indigenous peoples and their experience with state institutions like the child welfare system. 

“This history has translated over time to lower incomes, higher rates of poverty, higher rates of substance abuse and intergenerational trauma,” they say, “In the face of this historical reality, successive Canadian governments have elected to over-prosecute street crimes and crimes of addiction and poverty while under-prosecuting crimes of wealth, such as tax fraud, price fixing and environmental crimes.”

With respect to the under-representation of indigenous people on juries, these historical factors translate into practical barriers to participation, Enenajor and Ruby write.

“Transportation from reserve communities to urban centres to participate in juries is often cost-prohibitive and compensation, accommodation and meal allowances are inadequate,” they say. “In Ontario, for example, serving jurors receive payment only after they have been sitting for 11 days, and even then, the fee is $40 per day. This is hardly sufficient to compensate for the loss of income for those who wish to serve on a jury but are precariously employed and rely on their entire paycheque to make ends meet.”

The government has been running the jury side of the criminal justice system “on the cheap,” Enenajor and Ruby note.

“It is now discovering the truth that you can’t have a representative jury without spending the money and creating the structures that make it possible for indigenous people and other minorities to actually take part,” they write. 

It is misleading to suggest that getting rid of institutions like peremptory challenges to prospective jurors will have the effect of ending injustices in the legal system that are due to chronic and systemic racism, Enenajor and Ruby say.

“It is right to fix problems in our jury selection process: judges in Canada should have the power to step in and prevent the use of peremptory challenges in ways that appear discriminatory,” they write. “This is only a small part of the problem.

"We need structural changes by our politicians which make it possible for indigenous people and other minority groups to participate meaningfully as jurors.”

Enenajor and Ruby highlight Justice Frank Iacobucci’s 2013 report, “First Nations Representation on Ontario Juries,” in which he identified the ways in which factors such as a distrust of the justice system, cultural barriers and systemic discrimination contribute to the under-representation of indigenous people on juries.

In a 2015 decision, the Supreme Court of Canada directly examined the issue of jury representation. 

“In that case, the majority of the court held that while the under-representation of aboriginal on-reserve residents in the jury system is a serious policy concern that merits attention, an accused’s s. 11(d) and s. 11(f) Charter rights are not the appropriate vehicle to address this concern,” Enenajor and Ruby say.

“What the court communicated to the Canadian public and to the legislative branch of government through this case was that the issue of systemic racism is not going to be solved by litigation; it is a policy issue that must be solved by legislation.”

In that judgment, Justice Michael Moldaver stated, “The right of an accused to a fair trial by jury is not the appropriate mechanism to indirectly address the historic and current grievances of First Nations.” 

If it is not, then what is, ask Enenajor and Ruby.

“Starting at the end of the process — jury selection — is utterly inadequate,” they assert. 

“Instead, we must start at the beginning. We need to diversify our police forces. We need to appoint more indigenous judges and employ more indigenous prosecutors.

"And to get to that point, we need to commit more resources to alleviating poverty, improving education, treating drug and alcohol addiction and ameliorating health outcomes. We should be debating the root causes of indigenous under-representation on juries rather than the outcome of a single case.”

The comments made by public officials in relation to the acquittal in the recent Saskatchewan case are “dangerous in that they threaten the independence of our courts and raise the spectre of political interference in judicial outcomes,” Enenajor and Ruby say.

“It is vital that a jury who acquits is not attacked by agents of the same state that it failed to meet the criminal burden of proof in a case," they write. nm

"This would have a chilling effect on juries who are contemplating acquittal. Such interference is fatal to a healthy democracy. Public confidence in the integrity of the justice system requires that the independence of the decision of both judge and jury be fiercely guarded."

Where there is reason to believe that one or more of the actors in a jury trial acted improperly, the avenue to raise that error is an appeal, Enenajor and Ruby note.

“However, where a trial raises systemic issues, politicians should respond with legislative change. Anything less is an empty and dangerous gesture,” they say.

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