EDMONTON—The Legal Aid Society of Alberta wants to join in the fight to overturn a rule that bans anyone with a criminal record from serving on an Albertan jury, with critics arguing the practice discriminates against Indigenous people.

Dane Bullerwell made the argument that the Legal Aid Society of Alberta should be granted intervener status on an appeal of a decision made during the trial of Jeremy Lyle Newborn, arguing the part of the Jury Act that prevents anyone with a criminal record who doesn’t get a pardon from serving on a jury disproportionately effects marginalized groups who come into contact with the criminal justice system.

“This is an important question that is going to impact every jury trial in Alberta,” said Bullerwell, presenting his argument to Justice Frans Slatter in Edmonton court on Wednesday.

Bullerwell admits that intervener status is “rare” in Alberta courts — where a third party joins in the litigation because they have a different perspective or special interest in the case being argued — but as the role of the Legal Aid Society is to represent often marginalized people, “who don’t necessarily have a voice in the criminal justice system,” they have a special interest the appeal.

The appeal is being filed by lawyer Simon Renouf on behalf of Newborn, his client.

Newborn admitted to violently assaulting John Hollar, 29, while riding the LRT on Dec. 28, 2012. Hollar was beaten unconscious and died as a result of his injuries two days later.

Newborn’s trial was originally supposed to start in October 2014, however, when Newborn’s mother walked around the room where 178 potential jurors had gathered for selection, she noted not a single one was Indigenous.

Renouf then filed a declaration claiming the rules in the way jurors are selected violated Newborn’s rights under the Canadian Charter of Rights and Freedoms, specifically his right to be “presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

That charter challenge was heard in December 2015 by Justice Brian Burrows.

At that hearing, Renouf introduced a report from sociology and statistics expert Jacqueline Quinless, who calculated that — all things being equal — in a pool of 178 people pulled for jury selection, given the population of Indigenous people in and around Edmonton one could expect about 10 of those people to be Indigenous.

The fact that there were zero, Quinless suggested, is a result of systematic barriers that keep Indigenous people out.

While there are no good statistics measuring the rate Indigenous people are convicted of crimes compared to the general population, Quinless said the fact that Indigenous people make up only 3.8 per cent of the Canadian population but 23.3 per cent of the total inmate population would suggest the number of Indigenous people with a criminal record would be similarly disproportionate.

If there are more Indigenous people with criminal records, then the provision under the Alberta Jury Act that prevents those with unpardoned criminal records from being jurors would, by nature, disproportionately exclude Indigenous people.

While Quinless’ evidence was accepted without question, Burrows said that the exclusion of people with criminal records, or those who are charged with a criminal offence, is necessary to maintain the impartiality of a jury, calling the reasoning “obvious.”

The idea is that a person who has been prosecuted by the criminal justice system may hold a bias against it.

However, arguments presented in a factum filed on behalf of Newborn with the court of appeal rejected the notion that the reasoning was obvious, especially after Quebec Superior Court Justice Yves Alain was arrested for driving while impaired in 2006 and convicted but was still allowed to serve as a judge.

In August 2007, the Canadian Judicial Council held that, despite his criminal conviction, Alain could continue to preside over cases in a fair and objective matter.

“This decision by the Canadian Judicial Council illustrates that not all individuals charged or convicted of a criminal offence need to be excluded from the jury selection process,” reads an excerpt from the factum submitted ahead of Newborn’s appeal.

Those with criminal records weren’t always excluded from juries in Alberta.

Until 1982, people with criminal records could serve as long as they had not been incarcerated for more than 12 months.

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

In 2008, the law changed to create a total exclusion of those who had criminal records from serving as jurors.

In Saskatchewan, jurors are only excluded if they are confined to an institution, and Prince Edward Island only disqualifies potential jurors with criminal records if they are confined in an institution or if they have been convicted within the previous five years of an offence where the punishment would be a fine greater than $3,000 or a sentence of more than a year, unless pardoned.

Justice Slatter reserved his decision Wednesday on whether the Legal Aid Society of Alberta will be allowed to join in the debate during Newborn’s appeal, for which a date has yet to be set.

Read more about: