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.

Ottawa— The Canadian Press

The preliminary statistics from Justice Canada lend support to critics who warn that Bill C-25, the so-called Truth in Sentencing Act, unfairly targets the poor, the illiterate and Canada’s aboriginal community.

The bill, which became law in February, ended the widespread practice of giving convicted criminals double credit for time spent in custody awaiting trial.

Judges handing out sentences are restricted under the new law to giving one-for-one credit – that is, they can reduce a sentence by one year for every year spent in pre-sentencing custody. Only in special circumstances can they bump that ratio up to 1.5-to-one, and only if they provide a written rationale.

Justice Canada carried out an internal study into the issue of credit for pretrial custody – also known as remand – by collecting court data over three months in 2008 in six cities: Vancouver, Whitehorse, Winnipeg, Toronto, Ottawa and Halifax.

And a preliminary July, 2009, report drawing on 582 cases found that people awaiting trial in Winnipeg and Whitehorse spent far longer in remand than their counterparts in Toronto and Vancouver.

In Winnipeg, for example, the average was 120 days compared with 17 days in Toronto. In Whitehorse, the average was 54 days.

“The cities were … quite different in terms of remand practices,” the report concludes.

“For example, in Winnipeg defendants were spending much more time in remand than the other cities. This could, in turn, have an effect on pre-sentencing custody credits. …

“The courts might be more likely to award credits in Winnipeg, where the time spent in remand was more substantial than in Toronto, where defendants were not spending very much time in pre-sentencing custody.”

The study, conducted before the tougher sentencing rules were imposed, also showed that judges in Winnipeg gave two-for-one credits about 80 per cent of the time — something now forbidden.

The internal study was cited in a secret memorandum to cabinet about Bill C-25, but was not made public as the House of Commons and Senate debated the proposed legislation.

The Canadian Press obtained a copy under the Access to Information Act, as well as sections of two cabinet documents that refer to the study.

A vocal critic of Bill C-25, Craig Jones of the John Howard Society of Canada, said many of those in remand in Winnipeg are likely aboriginals.

The city is home to about 70,000 aboriginals, or about 10 per cent of the local population, the highest level of Canada’s major cities.

“They’re poorer, economically, socially, and for various reasons they are less able to advocate for themselves,” Mr. Jones said in an interview, adding that many cannot afford to pay bail money.

“So they end up spending more time in remand.”

Mr. Jones warned parliamentarians last year that the proposed sentencing law would especially hurt aboriginals.

Eric Gottardi, a spokesman for the Canadian Bar Association – another group critical of C-25 – cautioned that the Justice study was preliminary, based on an incomplete survey. Data for Ottawa and Halifax, for example, were not included.

But he said it’s clear the new rules will affect aboriginals, and those in remote communities, to a much greater degree than other Canadians.

“The impact on that particular community (aboriginals), whether it’s in the North or in the urban centres, is going to be disproportionate because they’re not going to be getting credit for what will, on average, be longer, more frequent terms in the remand centres,” he said from Vancouver.

A spokeswoman for the Justice Department declined to say why the study was ordered, when it would be complete, its cost or why the preliminary version was not made public as Parliament was reviewing C-25.

Carole Saindon also said the department has not launched any study on the impact of the new sentencing law, noting it applies only to individuals charged after it came into force on Feb. 22 this year.

“Consequently, it would be premature to initiate research on the legislation’s impact,” she said in an e-mail.

Canada’s remand population has been generally rising over the last decade, and persons charged are spending longer in pretrial custody as the courts become clogged.

Judges have generally given two-for-one sentencing credits to recognize over-crowded conditions in many remand centres, which often have few or no social services or rehabilitation programs.

The move to restrict pre-sentence custody credits followed meetings of the federal, provincial and territorial justice ministers in 2006-2007; they agreed the two-for-one system was too generous and undermined public confidence.

The Conservatives’ “Truth in Sentencing” legislation has also come under scrutiny by Canada’s parliamentary budget officer, Kevin Page, who forecast it will rapidly increase the prison population – and the cost to taxpayers.

Mr. Page said the bill for prison construction and other costs will range between $7-billion and $10-billion over the next five years — far higher than the $90-million over two years that the government initially claimed.