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Lawyers want improvements in aboriginal jury representation

August 10, 2017

Jessica Orkin tells the Law Times that the treatment of Aboriginal Peoples is one of the more shameful parts of our justice system

The Law Times reports on the progress of the Debwewin Committee, which was formed in 2013 to examine how participation of indigenous people in the jury process can be improved. The Committee has not yet issued a report.

Criminal defence lawyers are acutely aware of the need to improve representation of indigenous people on juries. The Law Times spoke to Jessica Orkin, who was counsel in R. v. Kokopenace, a case dealing with the representation of Aboriginal persons on jury rolls and the right to a fair trial.

“The treatment of Aboriginal Peoples is one of the more shameful parts of our justice system,” says Jessica Orkin, a partner at Goldblatt Partners LLP in Toronto, who was council for Clifford Kokopenace at the Supreme Court.

Orkin, who is not involved in the current process around Debwewin, notes that the criminal justice system needs juries with indigenous representation, especially in the most serious of cases.

Orkin says that while the issue of jury representation seemed to be gaining traction “for a short moment” after the Court of Appeal decision [in Kokopenace], it now appears to be losing attention.

“That shift between the Court of Appeal decision and the flurry of activity that followed it and the Supreme Court decision — I think that there was effort put in in that time and some degree of panic of how this problem was going to be managed and what work could be done to actually address it,” says Orkin.

“It’s not something that could be managed easily, and it’s a legacy of neglect.”

Orkin says she has observed that, after the SCC decision in Kokopenace and after the trial-level motions stopped being raised after that ruling, it appears the sense of urgency in the Ontario justice minister’s office dissipated.

“Jury trials are not being delayed anymore, and the crisis has passed,” Orkin says.

“Not the crisis of the criminal justice system, but the crisis of being able to prosecute the most serious crimes in the far-flung parts of our province.”

Jessica also commented on a pilot project in which indigenous people were asked to volunteer to serve as jurors at coroner’s inquests in Thunder Bay and Kenora:

Orkin says that while this is encouraging news, these voluntary processes very likely wouldn’t meet the other standards that apply to jury selection, such as random selection and the fact that people have not put themselves forward.

“My understanding is that part of what was persuasive in getting volunteers for the inquests was making it clear that this was a restorative process; it was one leading to recommendations not punishment,” says Orkin.

“The idea of participating in a jury that will lead to potentially sending away a community member is also part of what causes people not to volunteer for jury service.”

Orkin says that education and making participation as easy as possible are part of the solution; so, too, is thinking about the structure of the criminal justice system in thinking of other ways of handling offences that, while not suited to murder charges, would address some of the other areas of alienation of indigenous communities to the justice system.

“Those are more challenging,” Orkin says.

“It requires resources and it requires a real rethink.”


Jessica Orkin

Practice Areas

Aboriginal Law, Constitutional Law, Criminal Law