Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.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. It held the concerns were legitimate and justified an inquiry into the representativeness of the jury roll in the District of Thunder Bay.
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.
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.
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.
 Pierre v. McRae, 2011 ONCA 18, at paras. 77-78.