The Underrepresentation of Indigenous Peoples on Canadian Jury Panels

Abstract

Under common law, Canadian jury panels, or arrays, are supposed to be broadly representative. In the early 1980s, the Law Reform Commission and, in the early 1990s, the Supreme Court claimed that provincial legislation virtually guaranteed that this was the case. However, evidence presented to various provincial and federal commissions and a series of court cases has pointed to the continuing underrepresentation of Indigenous Canadians resulting from both the content and the administration of provincial laws. In this article, I examine evidence of underrepresentation and review various political and legal attempts to challenge bias in out‐of‐court selection. I suggest that contemporary practices in some jurisdictions have not consistently provided a representative jury pool or panel. As a result, the jury selection process has not always appeared to offer justice to Indigenous people and, in doing so, may not have served the Canadian legal system well.

Determinants and Consequences of Jury Racial Diversity: Empirical Findings, Implications, and Directions for Future Research

“…Furthermore, increased geographic mobility among racial minority individuals means that a higher proportion of jury questionnaires/summonses sent to non‐White Americans are returned to court administrators as undeliverable (Ellis & Diamond, 2003; Vidmar & Hans, 2007). Similar problems have been observed for the effort to summon Aborignal individuals in Australia, the Maori of New Zealand, and Indigenous Canadians (see Israel, 1998; 2003).…”

“…This helps explain some of the egregious problems with source list representativeness described by Abramson (2000), such as a district in North Dakota in which only 17% of eligible Native Americans living on reservations voted in an election, leading to only one such individual being summoned for jury duty that entire year. Similar problems have been identified in other countries: in New Zealand, for example, Maori are underenrolled on voter lists, contributing to their underrepresentation in jury pools (Israel, 1998; for Canadian examples, see Israel, 2003). Further problems with representativeness occur when these source lists are not updated frequently; in such instances, people who move often, such as renters, are often omitted (King, 1993b).…”

“…Though specific procedures vary by jurisdiction, in many states these voter lists are supplemented by other public records, such as those pertaining to driver's licenses, taxes, and public utilities (Boatright, 1998; Kairys, Kadane, & Lehoczky, 1977). The procedure for creating jury source lists varies by country as well: England and New Zealand make use of voter rolls, whereas procedures in Canada differ by province and are often left to the discretion of local jury administrators (see Granger, Charron, & Chumak, 1989; Israel, 1998; 2003; Lloyd‐Bostock & Thomas, 1999; Tanovich, Paciocco, & Skurka, 1997).…”

“…But these data are contemporary and provide at least one persuasive illustration that the jury racial composition problems evident in Talladega County in 1965 have not disappeared in the modern era. Furthermore, cross‐cultural analyses, discussed in more detail below, indicate that such lack of racial representation on juries is by no means an exclusively American problem (e.g., Israel, 1998, 2003).…”

Gender discrimination and juries in the 20th century

“…Most Canadian ‘Indians’ were removed from the electoral roll between 1875 and 1922 and political franchise took place post World War II. See generally Israel (2003: 39–43).…”