From his independent review ”First Nations Representation on Ontario Juries”. February 2013
There is not only the problem of a lack of representation of First Nations peoples on juries that is of serious proportions, but it is also regrettably the fact that the justice system generally as applied to First Nations peoples, particularly in the North, is quite frankly in a crisis. If we continue the status quo we will aggravate what is already a serious situation, and any hope of true reconciliation between First Nations and Ontarians generally will vanish. Put more directly, the time for talk is over, what is desperately needed is action.
Overrepresented in the prison population, First Nations peoples are significantly underrepresented, not just on juries, but among all those who work in the administration of justice in this province, whether as court officials, prosecutors, defence counsel, or judges. This issue is made more acute by the fact that Aboriginal peoples constitute the fastest-growing group within our population, with a median age that is significantly lower than the median age of the rest of the population.
The problem that is the specific focus of this Report — the underrepresentation of individuals living on reserves on Ontario’s jury roll — is a symptom of this crisis… But an examination of that problem leads inexorably to a set of broader and systemic issues that are at the heart of the current dysfunctional relationship between Ontario’s justice system and Aboriginal peoples in this province. It is these broad problems that must be tackled if we are to make any significant progress in dealing with the underrepresentation of First Nations individuals on juries.
Aside from the issues regarding the most effective manner to obtain names of First Nations reserve residents for the purposes of the jury roll, the fact is that many First Nations people are plainly reluctant to participate in the jury system.
First, First Nations leaders and people spoke about the conflict that exists between First Nations’ cultural values, laws, and ideologies regarding traditional approaches to conflict resolution, and the values and laws that underpin the Canadian justice system. The objective of the traditional First Nations’ approach to justice is to re-attain harmony, balance, and healing with respect to a particular offence, rather than seeking retribution and punishment. First Nations people observe the Canadian justice system as devoid of any reflection of their core principles or values, and view it as a foreign system that has been imposed upon them without their consent.
Second, First Nations people often spoke of the systemic discrimination that either they or their families have experienced within the justice system in relation to criminal justice or child welfare. These experiences with the criminal justice system, along with historic limitations on the rights of First Nations people, have created negative perspectives and an intergenerational mistrust of the criminal justice system. First Nations people generally view the criminal justice system as working against them, rather than for them. It is an affront to them to participate in the delivery of this system of justice.
Third, First Nations people lack knowledge and awareness of the justice system generally, and the jury system in particular. It was understandably expressed that most First Nations individuals will refrain from participating in a process they know nothing about.
Fourth, First Nations leaders resoundingly and assertively expressed the desire to assume more control of community justice matters as an element of what they strongly believe is their inherent right to self-government, and at the very least be involved in developing solutions to the jury representation issue. Having been introduced to community-based restorative justice initiatives in previous years, First Nations experienced the benefits to their communities that came from the development of a culturally-appropriate approach to justice. However, these programs were discontinued owing to funding cuts and will require financial resources and capacity to be resumed. First Nations leaders were unequivocal that re-introducing restorative justice programs would have multiple benefits at the community level. Such benefits include the delivery of justice in a culturally relevant manner, greater understanding of justice at the community level, increased community involvement in the implementation of justice and, finally, an opportunity to educate people about the justice system and their responsibility to become engaged on the juries when called upon to do so.
Fifth, it became very clear that inadequate police services and associated funding contribute to negative perceptions of the criminal justice system. Many First Nations were very concerned about the limited and under-resourced police services and the lack of sufficient training for them. Some First Nations leaders expressed frustration regarding the lack of enforcement of First Nation by-laws…
Because much of the numerous past reports relating to Aboriginal people have gathered dust on the shelf, I am acutely aware that this Report will be greeted cynically by the First Nations community and result in little or no meaningful changes if there are not early and concrete steps taken by the Government to implement my recommendations.
It is virtually impossible for me to calculate or estimate the financial costs of the recommendations. I realize that many of my recommendations will involve costs, but I would like to say that as much as I can, I have taken financial considerations into account in making the recommendations. With that said, when principles of justice and fairness for thousands of people are involved, the financial aspects of the matter should not trump those fundamental principles in any material way.
Moreover, the costs of doing nothing will likely be more than the costs of implementing these recommendations, when one considers the expenses involved by the present approach. This is apart from the greater potential for loss of liberty and increased distress for First Nations peoples and a further deterioration in the relations between the Ministry and First Nations.
In my experience dealing with Aboriginal issues as a lawyer (in both public and private practice) and judge, too often I have seen evidence or examples of mistrust and disrespect between Aboriginal and non-Aboriginal Canadians, whether the latter are government or private institutions or individuals. Although the evils of racism and discrimination have diminished over time, much more is needed to foster a relationship of harmony and enlightened co-existence between Aboriginals and non-Aboriginals.
Without building a foundation of mutual respect and mutual trust for each other, the recommendations below will achieve nothing. And that respect and trust has to be earned not proclaimed. Concrete proposals and mutual effort are required.
To my mind, the model relationship between the two groups should be partners rather than what history reveals as adversaries. First Nations do have governments, and this Independent Review has reinforced my belief in the importance of emphasizing a government-to-government relationship that incorporates an underlying respect for cultural, traditional, and historical values that are different.
Hon. Frank Iacobucci, Retired Justice of the Supreme Court of Canada.