EDMONTON—Connie Oakes was in for what she called a fight for her life.

But when she walked into a Medicine Hat courtroom and didn’t see a single Indigenous juror on the panel, she felt as if her fate had already been sealed.

“I was given a life sentence,” said Oakes, who was convicted in November 2015 of second-degree murder in connection to the 2011 death of Casey Armstrong based on shaky testimony from a questionable witness.

The Court of Appeal heard how the witness who implicated Oakes, Wendy Scott, later recanted her statements to police — which she gave over the course of a series of police interviews where she first identified other suspects — and was found to have a very low IQ and cognitive difficulties that impaired her ability to understand and recall complex matters.

Oakes’ murder conviction was overturned, but not before she was locked up in a federal prison for nearly two and a half years.

While she was incarcerated, Oakes’ son died of cancer. She never got to attend his funeral.

“I wasn’t guilty,” said Oakes, who has filed a million-dollar lawsuit against members of the Medicine Hat police and the Crown prosecutor involved in her conviction.

Oakes, a member of the Nekaneet First Nation and a residential school survivor, said she was concerned from the outset that there were no Indigenous jurors at her trial and believes that the trial’s outcome could have been different if there had been even one Indigenous person on the panel.

“My voice would have been heard,” said Oakes. “Whether it be just one strong Aboriginal male or female, one would have been good enough.”

Her voice joins calls from across Canada for the government to look at systemic issues that are limiting the participation of Indigenous people on juries, calls that became louder after the high-profile acquittal of Gerald Stanley in the killing of Colten Boushie.

Read more:

Saskatchewan farmer found not guilty in death of Colten Boushie

Opinion | Shree Paradkar: Our reaction to injustice for Colten Boushie is a reflection of our soul as individuals and Canadians

‘We’re going to fight back’ — Colten Boushie’s mother delivers emotional message

After an all-white jury acquitted Stanley, a white Saskatchewan farmer, of second-degree murder in February in the shooting death of Boushie, a 22-year-old from the Red Pheasant Cree Nation, Indigenous legal advocates decried the use of peremptory challenges that they argue allowed Stanley’s lawyers to reject potential Indigenous jurors without cause.

“The law in Canada is colonization,” said Sharon Venne an Indigenous rights attorney, during a panel discussion at MacEwan University days after Stanley was acquitted. “It’s the same thing, because they use the system to oppress our people.”

Fellow panellist Janice Makokis, an Indigenous scholar and activist, said the process of decolonization of Indigenous people in Canada includes changing “laws and legal structures” that she says currently serve to “dispossess, to depress and keep us where we are.”

“We want to have a jury that is representative of the community, and it’s a problem if there are members of groups in our society who face very significant barriers in having the opportunity to serve,” said Steven Penney, professor in the faculty of law at the University of Alberta.

Penney said the issue of peremptory challenges, whereby lawyers can disqualify potential jurors without having to give a reason, was highlighted as an area of contention in Stanley’s trial.

“The argument has been that these challenges can be used in ways that effectively discriminate against Indigenous people or other minority groups and make it less likely that they end up in the jury,” Penney said.

Edmonton lawyer Simon Renouf brought forward a constitutional challenge in 2015 prior to the trial of Jeremy Lyle Newborn — an Indigenous man who was eventually found guilty of second-degree murder and sentenced to life in prison — arguing a complete lack of Aboriginal jurors in the pool called for selection at Newborn’s trial was indicative of a systemic problem.

In an expert report presented as part of Renouf’s challenge, sociologist Jacqueline Quinless estimated that if all were truly equal, based on the population of Indigenous persons in the Edmonton catchment area there should be approximately eight or nine Indigenous persons in a pool of 178 potential jurors.

“To have zero tells you you have a systemic problem,” Renouf said, in an interview with StarMetro Edmonton.

There are numerous barriers standing in the way of Indigenous people participating on juries, Renouf said, and the problem starts long before the selection begins.

“(Lawyers) don’t have a problem with people using peremptory challenges to get Aboriginal people off the jury, we can’t find a way of getting Aboriginal people on the jury,” Renouf said.

Read more:

Loading... Loading... Loading... Loading... Loading... Loading...

Opinion | Jim Coyle: Colten Boushie case a reminder that justice system’s biases go beyond race

Ottawa’s justice reforms will change how juries are selected, bail is set and trials are held

Indigenous youth say justice-system reforms are necessary to achieve reconciliation

Part of the problem, Renouf said, is that jurors are selected using the Alberta Motor Vehicles System.

“Indigenous people are statistically less likely to be on that database,” said Renouf.

At the same time, the Jury Act excludes anyone who is currently charged or has been convicted of a criminal offence.

While there is no data measuring the rate of criminal convictions, studies have repeatedly shown Indigenous people experience disproportionate rates of crime and victimization and higher rates of incarceration than non-Indigenous Canadians.

“I am disappointed that the jury act in Alberta has this sweeping prohibition against people with criminal records, it’s very easy to fix,” said Renouf, suggesting it could be as simple as changing the rules to create a limited period of exclusion following a criminal conviction.

Quinless’ report identified other factors that amount to Indigenous peoples’ systematic exclusion from juries: Indigenous people are more likely to move than their non-Indigenous counterparts — meaning their information on databases is more likely to be out of date —the upfront cost of attending a lengthy jury trial can be prohibitive, and documented issues with getting mail delivered to people living on-reserve making it difficult to receive a summons even if they are selected.

Having even one Indigenous person on a jury can help dispel subtle cultural misunderstandings and negative stereotypes that could otherwise sully a fair trial, said Renouf.

“Even having one or two members on the jury who are Aboriginal can help to dispel those stereotypes,” Renouf said.

The risk of not having Indigenous persons serving on juries in a system where Indigenous people are disproportionately represented as both victims and those punished for crimes is grave, Renouf said, and contrary to the ideal of an unbiased judicial system.

“We risk getting wrong decisions from juries, that’s the ultimate problem,” he said.

“Sometimes these are very fine lines between guilty and not guilty in a jury trial, so we have to do everything we can to ensure that we have a fair, representative process for selecting a jury,” he continued.

Penney said making reforms to break down systematic barriers is critical for restoring faith among Indigenous persons in a justice system that many feel has not served them well.

“It sends a message of equality and it also sends a message of fairness to those who are charged in the criminal justice system and those who are allegedly victimized by crime that the system is representative of the entire society that we live in,” Penney said.

Read more about: