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Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com

We Need Government-to-Government Relations to Address Ontario-First Nations Dysfunction: Inquiry Report #idlenomore

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Report Cover Art Courtesy of Kirk Brant, 2012
WWW.KIRKBRANT.COM

The relationship between Ontario’s justice system and Aboriginal peoples in this province is dysfunctional, according to the Honourable Frank Iacobucci in his report released late last month:  First Nations Representation on Ontario Juries

That problem lies at the heart of the underrepresentation of First Nations people on Ontario juries, the former Supreme Court Justice held.  To address it, we need to establish government-to-government relationships, incorporating an underlying respect for cultural, traditional, and historical values that are different.

Iacobucci was appointed to carry out an independent review by an Order-in-Council dated August 11, 2011.  The Order followed concerns that coroners’ inquests into the deaths of Jacy Pierre and Reggie Bushie, two young First Nations people from Thunder Bay, would not be representative.  The Ontario Court of Appeal allowed a judicial review application concerning those inquests.[1]  It held the concerns were legitimate and justified an inquiry into the representativeness of the jury roll in the District of Thunder Bay. 

Findings

In his report, Justice Iacobucci went far beyond looking at practical barriers to Aboriginal participation on juries.  He addressed those obstacles too, noting that jury compensation, the high cost of transportation, language barriers, and the wording of juror questionnaires all contributed to decreased participation by First Nations in the jury system. 

Primarily, the report emphasized the cultural and historical conditions that impede representation of individuals living on reserves on Ontario’s jury roll.   Through an extensive engagement process, Iacobucci concluded that Ontario’s judicial approach to conflict resolution clashed with First Nations’ cultural values, laws, and ideologies, which strive to attain “harmony, balance, and healing” following a criminal offense, rather than “retribution and punishment.”  This conflict, combined with systemic discrimination experienced by First Nations in relation to criminal justice or child welfare, have caused many Aboriginal people to view it as an affront to participate in this system of justice.

The report also found lack of knowledge and awareness by First Nations people turns them away from participating in the justice system, as do privacy concerns and the use of “coercive” language on the jury questionnaire.

 Mandate

The broad, systemic approach taken by Justice Iacobucci reflects the terms of reference he was mandated to follow.  The Order-in-Council directed him to make recommendations to (i) increase representation of First Nations persons living on reserves on the jury roll, and (ii) strengthen “the understanding, cooperation and relationship between the Ministry of the Attorney General and First Nations on this issue.” 

Iacobuci found he could not realistically address his mandate without considering broader systemic issues.  He stated that underrepresentation is “merely a symptom of the broader disease ailing Ontario’s justice system as it relates to First Nations peoples in Ontario.” He expressed hope that his report would serve as a “wake-up call” to address a crisis which has caused not just underrepresentation of First Nations on juries, but overrepresentation of First Nations in prison populations and the denial of opportunities to work in the administration of justice.  Iacobucci noted many examples of mistreatment, lack of respect, unsound policies and lack of mutual trust between Aboriginal and non-Aboriginal people.  He concluded reconciliation is needed, but that it can only happen by a critically examining a troubled relationship to find a way to move forward as partners.

Recommendations

Many of the report’s 17 recommendations concern education and outreach to foster better understanding between the Ministry of the Attorney General and First Nations.  According to news reports, the Ministry of the Attorney General has said it will immediately adopt Iacobucci’s first two recommendations.  A summary of all 17 recommendations follow.

  1. Establishing an “Implementation Committee”, substantially including First Nations members, to implement the recommendations below.
  2. Establishing an “Advisory Group” to the Attorney General on First Nations and the Justice System.
  3. Cultural training for government officials dealing with First Nations people, including police and court workers.
  4. Studying the adequacy of First Nations legal representation, policing issues, and the Aboriginal Court Worker program.
  5. Creating an Assistant Deputy Attorney General position responsible for Aboriginal issues.
  6. Providing for comprehensive justice education programs for First Nations individuals.
  7. Facilitating a conference of representative youth members from First Nations reserves to focus on youth and justice issues and preparing a report on that conference.
  8. Considering using other sources of information to generate the jury poll database (such as OHIP database).
  9. Considering other sources of information for the database while respecting band residency information
  10. Considering amendment of the juror questionnaire, including making it simpler, removing “threats” of fines, translating it, and allowing individuals to identify as “First Nations” rather than “Canadian Citizens.”
  11. Implementing a practice of re-sending summonses which receive no response to other prospective jurors in the same postal code.
  12. Considering permitting First Nations people to volunteer for jury duty.
  13. Considering providing translation services for First Nations people not fluent in English or French.
  14. Adopting measures to permit First Nations with criminal records for minor offences to participate as jurors.
  15. Adopting measures to prevent the use of peremptory challenges to discriminate against First Nations people serving on juries.
  16. Considering increasing jury member compensation.
  17. Instituting a process to permit First Nations individuals to volunteer to be on the jury for a coroner’s inquest.


[1] Pierre v. McRae, 2011 ONCA 18, at paras. 77-78.

 

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This entry was posted on March 13, 2013 by in Uncategorized and tagged , , , , .

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