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Experts renew call for challenge changes, jury lists with more Indigenous names

February 11, 2018

The National Post talks to Jessica Orkin about the under-representation of Indigenous jurors

In the wake of Gerald Stanley’s acquittal of the murder of Colton Boushie, legal experts are renewing their calls for changes to the jury system.

In the Stanley trial, several Indigenous jurors were rejected for no apparent reason, other than their race. Some in the legal community are of the view that peremptory challenges, which allow the prosecution and the defence to reject potential jurors without a reason, should be abolished.

Others have raised the issue of the underrepresentation of Indigenous people on juries. Jessica Orkin explained this problem to the Post:

Toronto lawyer Jessica Orkin said problems with Canada’s jury system can’t be solved with one fix.

She represented an Aboriginal man, Clifford Kokopenace, in his battle over jury fairness before the Supreme Court in 2015. Kokopenace was convicted of manslaughter but argued the verdict wasn’t by a jury of his peers.

The Appeal Court ordered a retrial but the Supreme Court ruled the province had done an adequate job of trying to get Indigenous people on the list of potential jurors.

Each province is responsible for sending notices for jury duty. In Ontario, Orkin said, it’s done using names on municipal and property rolls. Other provinces use driver’s licences and health records.

It’s a problem when people don’t own property or drive.

Instead of abolishing peremptory challenges, Orkin suggests change needs to start with getting more Indigenous people on voting lists.

An inquiry report by former Supreme Court justice Frank Iacobucci in 2013 recommended several changes to get more Indigenous people on juries in Ontario. So far, nothing has been implemented, Orkin said.

She hopes that Wilson-Raybould, Canada’s first Indigenous justice minister, may finally be able to bring about some change.

“This is a really challenging issue and unfortunately one that has been left to fester for an extremely long time.”

Jessica discusses the issue of race and jury composition on CBC’s The National:

Jessica discusses the Indigenous underrepresentation and the Kokopenace decision here.

Natai Shelsen discusses the Kokopenace decision here.

You can read the entire National Post article here.


Jessica Orkin

Practice Areas

Aboriginal Law, Criminal Law