Almost a year before the Ontario Attorney-General grudgingly launched an internal review into how police and Crown attorneys in the province are secretly screening potential jurors for mental illness or criminal records, aboriginal groups asking for a similar investigation were airily dismissed.
After weeks of stinging press revelations about the previously unknown background checks being done and not disclosed to defence lawyers in at least three Ontario cities – Windsor, Barrie and Thunder Bay – Attorney-General Chris Bentley recently asked his chief prosecutor to find out how widespread the practice is and ordered those Crowns doing it to stop.
It was hardly the sort of independent, wide-ranging investigation critics wanted, but it was something.
Yet in the fall of last year, information revealed in legal arguments at a coroner’s inquest into the deaths of two aboriginal men in Northwestern Ontario saw a Ministry of the Attorney-General official admit that aboriginal people were being systematically excluded as jurors, and that although the government had known about the problem for eight years, virtually nothing had been done about it.
“Somehow, excluding non-natives from jury rolls attracts an AG probe, and properly so,” Julian Falconer, lawyer for several aboriginal groups, snapped Monday.
“But a request for the same thing, from the same minister and the same ministry, by those who have been systematically excluded since 2000, is met with dumb silence and a complete cover-up.”
Mr. Falconer represents a coalition of Nishnawbe Aski-Nation, a political organization of 49 native bands in Northern Ontario, and Aboriginal Legal Services of Toronto, as well the family of Ricardo Wesley, one of two native men who died in a tragic fire at the Kashechewan police station on Jan. 6, 2006.
Kashechewan is a long-troubled, impoverished and remote reserve in the district of Kenora in Northwestern Ontario.
Questions about the adequacy of district jury rolls prompted an affidavit last fall in which court operations supervisor Rolanda Peacock disclosed that the federal Indian and Northern Affairs Canada had abruptly stopped providing the Ontario jury centre in London with “band lists” in 2000.
As a result, the affidavit revealed, jury rolls became quickly outdated, and only 44 aboriginal people were on the 2007 roll, even though the young and fast-growing aboriginal population in the district was 12,222.
The affidavit revealed other serious quirks: Indian Affairs had never provided a band list for Kashechewan (meaning, presumably, that band members had never been included in jury rolls), and it took six long years before officials in the AG’s department even tried to contact reserves in the Kenora district (inexplicably, ignoring the hard realities of many such communities, by fax), and even then, Kashechewan wasn’t one of them.
It was only in 2007, Ms. Peacock said in her affidavit, that court officials from Kenora roused themselves to travel to 14 of the remote reserves in the district to meet with native leaders – and even then, Kashechewan wasn’t among them.
As a result of all this, Mr. Falconer wrote Mr. Bentley on Sept. 10 last year, asking for a formal inquiry “on the current legality of the jury rolls in Ontario generally and the Kenora district specifically” and a report on what the ministry had done about it since Indian Affairs stopped providing them with lists of band members.
Five weeks later, Mr. Bentley replied with a lot of blah-blah-blah (“we are committed to working with our aboriginal partners to ensure a fair and accessible justice system,” etc.) and a request for a meeting with Mr. Falconer and his clients. No review was mentioned; no information was forthcoming about what the ministry had done about the exclusion of aboriginal people.
“This is another example of why first nations can so rightly point to a double-standard justice system,” Mr. Falconer said, “with one set of rules for non-first nations, and a completely different set of rules for the aboriginal communities.”
After the revelations in the Wesley case, the family of another native man, Jacy Duncan Pierre, who died in the Thunder Bay jail after obtaining and ingesting powered methadone, raised similar questions early this year about the Thunder Bay jury pool.
After weeks of playing bureaucratic ping-pong with arms of the MAG – with the coroner’s office referring the family to the court operations arm and court operations referring the family back to the coroner – the Pierres finally tried to stop the inquest into his death.
As it was already under way by the time it got to Superior Court Judge Andromache Karakatsanis, she denied the request for a delay.
But earlier this month, with yet another inquest on the horizon involving another aboriginal family of another young dead native man – 15-year-old Reggie Bushie, who died of drowning while attending high school in Thunder Bay – Judge Karakatsanis stopped that inquest pending a decision in Ontario Divisional Court.
She found that “whether the jury is selected from a jury roll that is representative of first nations…is an important aspect of the legitimacy of coroners inquests” and found that public confidence could be “irreparably harmed.”
She said the Peacock affidavit, coupled with the refusal of the MAG “to provide the information [about the jury rolls] requested,” were serious issues.
That application was heard in Divisional Court on June 5, the decision pending.
Astonishingly, all the Bushie family is seeking is an order forcing the AG’s ministry to produce the official who can disclose what they do with the jury rolls in Thunder Bay – the very same sort of information MAG has been hiding for almost a year now.