Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A R C H 2 0 1 6 11 T he chair of an Edmonton-based aboriginal advocacy group says it is time to change Alberta's Jury Act, and give aboriginal accuseds a better chance of getting a representative jury. Muriel Stanley Venne, a former mem- ber of the Alberta Human Rights Commis- sion and now head of a private group called the Aboriginal Commission on Human Rights and Justice, says aboriginal people — even if they have criminal records — should be allowed to sit on juries. Under the province's current Jury Act, anyone with a criminal record or facing a criminal charge is prohibited from jury duty. Stanley Venne's proposal is part of the fallout from a crime that shocked and deeply troubled Edmontonians and raised some difficult legal questions. The facts are straightforward, though unsettling. In the middle the afternoon just days after Christmas 2012, two men started fighting on one of the city's transit trains. About a dozen passengers looked on in horror. One of the two men got the better of the other but continued with what Edmonton Police described as "a one-sided attack." Two days later, the beaten man died. Jeremy Newborn, then 29, was charged with second-degree murder. Newborn is native and that fact led to arguments that raised troubling and divisive issues. It also exposed, as Alberta Court of Queen's Bench Justice Brian Burrows wrote in his ruling, "a shameful feature of modern Canadian life." In October 2014, during jury selection for Newborn's trial, his lawyers raised a novel issue. They had asked Newborn's mother to walk around the area where 178 potential jurors were waiting. She reported back that none of the so-called "jury array" appeared to be aboriginal. Newborn's lawyers sought, and were granted, an immediate adjournment by the trial judge. They wanted a chance to challenge the jury selection process, which they argued was contrary to Charter guarantees. Before they could bring their issues before an Alberta court, the Supreme Court of Canada in May 2015 found — in a completely unrelated case, R. v. Kokopenace — that even a jury without aboriginal members could fairly hear a case involving an aboriginal accused, providing there was an effort to make the jury pool representative. As a consequence, Newborn's lawyers were left with only one issue the SCC had not dealt with — one that touches on some of the most troubling aspects of aboriginal life in Canada. They argued that Alberta's Jury Act, by denying those with criminal records or those currently facing criminal charges the right to sit on a jury, unreasonably excludes a disproportionate number of potential aboriginal jurors. They presented evidence that while indigenous Canadians represent about two per cent of the general popula- tion, they accounted for roughly 20 per cent of the prison population. In a seven- page judgment, Burrows found that the existing provision of s. 4(h) of Alberta's Jury Act is not unreasonable, individuals with criminal records or facing charges are less likely to be impartial jury members, and their exclusion doesn't violate an accused's right to a representative jury. When it comes to potential indige- nous jurors, Stanley Venne disagrees with Burrows, though interestingly enough, not totally. She acknowledges that people, aboriginal or not, facing criminal charges would be less likely to be impartial and their exclusion from jury duty is justifi- able. However, she argues excluding aboriginal persons with criminal records needlessly exacerbates the problem of aboriginal under-representation on juries. "When you look at the justice system, it is easy to conclude that it is not a friendly place for indigenous people." She says under her proposed revisions, if the accused is aboriginal, then aboriginal persons with a criminal record would be allowed to be chosen for jury duty. The criminal record prohibition in the Jury Act became law in Alberta in 2009. One man who unsuccessfully fought that change was Edmonton lawyer Brian Hurley. "Some good jurors continue to be overlooked," he says, "because of dated criminal records, and a disproportionate number of those are aboriginals." He says "it would be nice" if the Alberta govern- ment "brought in a sensible law that allows judges and lawyers some discretion when it comes to criminal records." To date, there is no word if the NDP government will consider reviewing the Jury Act. Newborn's jury trial is set to begin next month. — GEOFF ELLWAND writerlaw@gmail.com Can an aboriginal offender get a truly representative jury? \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP basis conducting these files, and he's also sued and involved the remand centre in a lot of litigation over the years . . . . Pretty much, he is the go-to guy in this province and the one who gets all the press in terms of any such involvement with the police." Engel and his firm have filed more complaints about police abuses and mis- treatment of prisoners than any other firm in the province. Police have retaliated by filing dozens of complaints against Engel, none of which has succeeded to date. In recent years, Dawson says Engel has tried to smooth over the animosity by reaching out to Edmonton's police chiefs — both individually and on behalf of ACTLA — and by inviting them once a year for a candid discussion with the association's lawyers. That being said, Dawson acknowl- edges that some resentment may have built up over the years among rank-and-file police officers and their colleagues in the "law enforcement apparatus." Dawson, however, insists that one cor- rectional officer's vulgar alleged remarks should not be used to smear the entire institution. "Tom is well known for being a thorn in their side, but I have spoken to remand centre guards in the past who know him and grudgingly respect what he does." — DAVID DIAS david.dias@tr.com

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