Two high-profile killings in Manitoba three decades ago propelled the provincial government to launch an inquiry into the barriers Indigenous people face in the justice system.
Now, in the wake of the recent acquittal of white Saskatchewan farmer Gerald Stanley in the fatal shooting of Red Pheasant First Nation member Colten Boushie, calls for judicial reform echo many of the recommendations of the Aboriginal Justice Inquiry of Manitoba.
Much of the criticism of the Stanley verdict has focused on the use of peremptory challenges by the defence to eliminate all visibly Indigenous people from the jury (CBC has no way to verify if any of the jurors were Indigenous).
During jury selection a peremptory challenge allows the prosecution or defence to eliminate people from the juror pool without stating a reason.
On Monday Senator Murray Sinclair — a former provincial court judge who served as commissioner with the inquiry, which was created in 1988 and issued its final report in 1991 — said "the definition of a jury is, these are the voices of a community. These are the people of a community. And when you have a jury at the end of the day that is not representative of a community, then you have an unfair jury."
The Aboriginal Justice Inquiry was called in response to two specific cases — the trial of two men in 1987 for the killing of Helen Betty Osborne in The Pas in 1971 and the killing of Island Lake Tribal Council executive director J.J. Harper by a Winnipeg police officer in 1988.
During the jury selection process in the Osborne case, defence counsel used its peremptory challenges to eliminate the six Indigenous people called from the jury panel, the AJI report said.
Although four non-Indigenous people were present at the time of Osborne's killing, only one was convicted of a crime.
"None of the people on the jury were Indigenous and yet at that time 70 per cent of the people in northern Manitoba were Indigenous," Sinclair said.
The Aboriginal Justice Inquiry recommended abolishing the use of peremptory challenges.
"While the practice of challenging people without having to give a reason is sanctioned by the Criminal Code, we question the logic and fairness of allowing the practice to continue when its application can prevent Aboriginal people from sitting on a jury solely because they are Aboriginal," the inquiry report said.
Although peremptory challenges can be used to block Indigenous people at the final stage of jury selection, the AJI also highlighted obstacles beginning at the earliest stages of the process.
Indigenous people excluded from juries
Until 1952 Indigenous people were excluded from juries because jurors were typically drawn from voters lists, and Indigenous people were barred from voting until that year. For two decades after that Indigenous people were effectively excluded because reserve officials weren't required to submit names of potential jurors, unlike mayors and reeves of municipalities.
It wasn't until 1983 when the province started using records of the Manitoba Health Services Commission that Indigenous people started to be properly represented on the lists of potential jurors.
"For a century the legal system made it clear that it did not want or need Aboriginal jurors. It is a message Aboriginal people have not forgotten," the report said.
The report says that jury summonses are typically mailed out to all prospective jurors, with instructions to reply by telephone. Although everyone is obligated to respond to a summons, sheriff's compile their jury panels based on who replies first, and don't typically follow up if someone doesn't respond, as long as the jury panel is sufficiently large.
The report said because many Indigenous people in remote areas have limited access to mail and telephones, and Indigenous people living in urban areas change residences more frequently than non-Indigenous people, delays in responding to summonses can effectively exclude Indigenous participation.
Once a person receives their summons, getting to the courthouse for jury selection can prove to be another barrier. Travel expenses are only reimbursed after the fact, which could cause a person who lives far away from the courthouse to disregard or ask be excused from a summons.
"There is a social responsibility to ensure that their right to be on the jury is assisted by the state. Because we have the right to lock them up if they don't show up, but they might not show up because they don't have the resources to get here," Sinclair said.
"There's no sense in calling someone from Shamattawa to come to a jury trial in Winnipeg if you're not going to assist them to travel," Sinclair said.
The AJI recommended that when a sheriff grants an exemption, that the person is replaced by someone from the same community. It also recommended that all jury summonses be enforced, even when a sufficient number jurors have responded.
People who can't speak either English or French are excluded from juries. The AJI report recommended reforms similar to those implemented in Northwest Territories, which allows anyone "who speaks and understands an Aboriginal language as defined in the Official Languages Act" to serve on juries.
It also recommended that jurors be drawn from within 40 kilometres of where the trial is held. If there is a need to find jurors elsewhere, they should be drawn from areas demographically and culturally similar to the community.
Now, 27 years since the AJI report, Sinclair plans to travel to Ottawa this week to push for reforms recommended in his nearly three-decade-old report.
"Now I believe that others will see the importance of it. And to take advantage of that by putting forward some remedies that will be acceptable now."
On Monday the Liberal government announced they are reviewing jury selection in the wake of the Stanley verdict.