Court case highlights concerns about Indigenous representation on juries

When Derek Grose saw the jury summons, he had some concerns. If he was selected to serve, how much time would he spend away from the office? And could he even afford to do so?

But Mr. Grose, who works at a Yukon First Nation, says his colleagues assured him he had nothing to worry about – as an Indigenous person, he would not be chosen for the jury.

He ultimately wasn't, and the exclusion of Mr. Grose and three others would yield an allegation that the Crown had deliberately used its peremptory challenges – which do not have to be explained or justified – to block jurors who appeared Indigenous.

The case highlights concerns about the lack of First Nations representation on juries – and the belief by some that the exclusion has not always been accidental. It also demonstrates the difficulties that can come with challenging a process left to the discretion of the lawyers involved in a case.

The recent case of Gerald Stanley, a white Saskatchewan man acquitted in the shooting death of Colten Boushie, who was Indigenous, has called attention to the use of peremptory challenges by the defence. In Mr. Stanley's case, the approach yielded a jury which did not appear to have any Indigenous members.

In the case for which Mr. Grose was summoned, that of Christopher Cornell, the accused was Indigenous and Mr. Cornell's lawyer would argue the Crown acted improperly.

The Public Prosecution Service denied the charge and in a written statement said it has never purposely blocked Indigenous people from serving. An appeal court overseeing the case ruled in the Crown's favour last August.

David Tarnow, Mr. Cornell's lawyer, said in an interview that he plans to seek leave to appeal to the Supreme Court of Canada.

"It's a matter of national importance, especially at this very moment," he said.

Grand Chief Alvin Fiddler of the Nishnawbe Aski Nation – who co-chaired a committee reviewing First Nations representation on Ontario juries after a 2013 report by former Supreme Court Justice Frank Iacobucci found the situation facing Indigenous people represented a crisis in the provincial justice system – said it is not unusual for Indigenous people to believe they will be blocked.

"Unfortunately, I think that's the reality for many in our community right across the country," he said in an interview. "Any time there's a jury trial of any kind, you hardly ever see a First Nations or Indigenous person on the jury."

Mr. Cornell was convicted on all eight counts he faced in connection with the September, 2011, robbery of a Yukon general store and the subsequent firing of a gun at a police officer. The officer was not directly struck by a bullet fired through his windshield but was injured by flying glass and metal and missed three months of work. Mr. Cornell was sentenced to more than 11 years in prison.

It was during the jury selection process – held in September, 2013, inside a Whitehorse arena – that Mr. Cornell's counsel first raised concerns about the Crown's conduct. Mr. Tarnow asked to speak with the judge after the Crown's fourth peremptory challenge.

In an affidavit later filed with Yukon's Court of Appeal, Mr. Tarnow said it had been his intention to select a few Indigenous people to the jury, given his client's background. Mr. Cornell is a member of the Kwanlin Dun First Nation. The lawyer told court the Crown made "an obvious attempt to keep First Nations people off the jury."

In the affidavit, Mr. Tarnow said the judge did not admonish the Crown and only one of the 14 people selected to the jury appeared Indigenous. That one individual would be an alternate. Mr. Tarnow said his client was ultimately tried by 12 people who were not Indigenous.

Keith Parkkari, the senior Crown prosecutor for the case, in his affidavit disputed Mr. Tarnow's version of events.

"As with any jury I have ever been involved with selecting, the racial origin or background of potential jurors was not a factor I took into account in deciding whether to exercise a peremptory challenge," he said.

Mr. Parkkari said it is not always possible to form an opinion on someone's ancestry from their appearance. He said his goal had been to select jury members who had life experience and were typical members of Yukon society. He said he believed at least three of the 14 people initially selected to the jury were Indigenous.

Coral Brown, the Crown's witness co-ordinator, who is Indigenous, also told the court multiple jury members appeared Indigenous.

However, Christiana Lavidas, the Crown's junior prosecutor on the case, disagreed. Ms. Lavidas in her affidavit said she did not recall any First Nations individuals on the jury, aside from the alternate.

The Court of Appeal of Yukon in its August decision said unless the ethnicity of the jury panel is known "it is impossible to establish that the jury was unfairly constituted as to race." It said Mr. Tarnow offered impressions and suppositions without any concrete facts and "failed to produce any cogent evidence of improper prosecutorial conduct."

The appeal court noted a pretrial application by Mr. Tarnow that 25 per cent of the jury panel be Indigenous to reflect the community was rejected. The judge hearing the application ruled Yukon's system of selecting potential jurors from the medical insurance list was adequate and Mr. Cornell was not entitled to a jury panel whose composition mirrored Whitehorse or Yukon.

Kent Roach, a law professor at the University of Toronto, said Mr. Cornell's case – as well as a 2001 Ontario appeal that also questioned the Crown's use of peremptory challenges and failed – demonstrates that "while there is a potential to challenge discriminatory uses of peremptories by the Crown, it will be very difficult to do so.

Prof. Roach said the abolishing of peremptory challenges, as recommended by the Aboriginal Justice Inquiry in Manitoba in 1991, is urgently needed. The federal government has said it will examine the way juries are chosen, following Mr. Stanley's case.

Mr. Parkkari had in his affidavit said he could not tell if Mr. Grose was Indigenous.

When contacted by The Globe, Mr. Grose confirmed he was Indigenous and recalled the jury selection process. "I remember getting a letter in the mail. I read it and thought, 'Oh, great, jury duty, I don't know if I have time for that.' But as a Canadian citizen, I went," Mr. Grose said in an interview.

A court transcript shows Mr. Tarnow asked Mr. Grose's occupation. After Mr. Grose said he worked for the Carcross/Tagish First Nation, Mr. Parkkari used his challenge. Mr. Grose was excused.

"In some ways, I was a bit relieved," Mr. Grose said, referencing his concerns about work and money. "But in other ways, as I was walking out, I thought, 'Hmm, that's interesting.' It happened exactly how people in my community thought it would go."

Mr. Grose questioned why Indigenous jurors would ever be viewed as biased and other groups of people would not.

Grand Chief Fiddler said progress has been slow across the country when it comes to tackling First Nations representation on juries.

"I hear over and over again that First Nations people are excluded from the justice system, and yet we're the ones that are filling up on the corrections side, the jails. We just find that governments, generally, whether they're provincial governments or the federal government, they're not making that effort to try to begin to reverse what's been happening for many, many years," he said.