Turtle Talk

The Canadian Press

EDMONTON — Edmonton jury trials routinely violate the rights of aboriginal people by deliberately leaving reserves out of the pool of possible jurors, says a lawyer who plans to challenge the practice in court Monday.

Tom Engel is also taking constitutional aim at provincial legislation that keeps convicted criminals off juries, saying Alberta’s Jury Act oversteps its authority.

“The big picture is to fix the system, to obtain declarations from the judge that all of these measures are unconstitutional,” Engel said.

Engel is representing Rene McCarthy, an aboriginal man charged with offences against a police officer who was trying to arrest him. His trial was to begin in October 2008 when Engel began to wonder why none of the prospective jurors summoned for the case was aboriginal.

Engel asked the judge to adjourn jury selection and began asking how potential jurors were chosen. He found that only people living within a 20-kilometre radius of Edmonton’s law courts are ever called for jury duty, despite the fact cases from hundreds of kilometres around are routinely tried in the city.

An official from Alberta Justice confirmed that policy to The Canadian Press.

That policy automatically excludes not only anyone from a rural area, but also five reserves within the Edmonton judicial district that are outside the 20-kilometre radius.

As well, a Statistics Canada study commissioned by Engel found no evidence that anyone from a sixth reserve that lies within the radius had ever been called for jury duty.

“The government isn’t even able to explain how it came to be that it’s a 20-kilometre radius,” Engel said.

“There’s nothing written to support that. It’s just the way it is.”

It’s unclear if the problem exists elsewhere. Although reserves in or around cities are common, different jurisdictions choose juries in slightly different ways.

But in Edmonton, Statistics Canada found the radius leads to a distorted jury pool that doesn’t reflect the district’s overall population. Not only aboriginals, but those with unincorporated home businesses — such as farmers — were significantly under-represented.

University graduates and visible minorities were significantly over-represented.

Jury composition makes a difference, Engel said. Different cultures communicate differently, he said — even to the point of different body language.

“In white society, if a person doesn’t look you in the eye, you think that person isn’t being truthful. But for a native person, looking a person in the eye is a mark of disrespect.”

Engel also hopes to overturn Alberta law that automatically rejects anyone with a criminal record from jury duty. Federal law keeps those who have served long sentences off juries, but Alberta’s law includes all Criminal Code offences or even being charged with an offence.

That, too, disadvantages aboriginals, Engel said.

“It’s pretty easy to figure out which segment of society is most likely to have a criminal record.”

Engel hopes a Queen’s Bench judge will order changes to jury selection in Edmonton as well as strike down the targeted section of the Jury Act. He’s also asking for charges against his client to be stayed, arguing that McCarthy has waited too long for a trial because of problems in the system.

Engel may have a good case on both points, said University of Alberta law professor Sanjeev Anand.

The legal system insists that juries be chosen at random from the surrounding community, he said, pointing to a British Columbia decision in a very similar case won by the plaintiff.

“If there’s a policy that specifically excludes reserves, I think there’s a problem,” said Anand. “It suggests the (possible jurors) are not being chosen at random.”

Anand also said there’s little research to justify excluding ex-convicts from the jury pool.

“There’s no real social science evidence to suggest that someone who has been convicted of a particular offence or charged with a particular offence is going to be biased in his or her view,” said Anand. “There seems to be this idea that any contact with the criminal justice system might predispose an individual to be more sympathetic to the accused and I just don’t see that as being realistic.

“To the extent that it makes the process less random and doesn’t seem to serve any criminal justice objective, I would agree with Tom, that kind of requirement is problematic.”

Two weeks of court time have been set aside for arguments over the motion. Engel is expected to call legal experts and Statistics Canada officials.