An indigenous man's constitutional argument that his right to a representative jury was violated has been dismissed, by an Alberta Court of Queen's Bench judge. 

In a written decision dated Jan. 7, Justice Brian Burrows rejected an application by Jeremy Newborn, who is charged with second-degree murder in the December 2012 death of a man on the Edmonton LRT. 

Newborn has pleaded not guilty to the charge. 

His jury trial was originally scheduled for October 2014, but it didn't go ahead because the defence asked for an adjournment to challenge Alberta's jury selection process.

Newborn's lawyer made the request after his mother walked around the area where 178 people who were summoned to be members of the jury were gathered.

She didn't see anyone who appeared to be of aboriginal descent.

At a hearing at Court of Queen's Bench in Edmonton in December, Jeremy Newborn's legal team called an expert in statistics and sociology to give evidence.

Jacqueline Quinless testified that given the population of Edmonton and the portion of people of indigenous descent, she would expect to see nine aboriginal people in a group of 178.

Quinless outlined a number of reasons why the jury array did not include any aboriginal people, including the effects of colonialism, racism and stereotyping, as well as the legacy of residential schools and higher rates of incarceration and involvement with police.

Excluding people with criminal records 'reasonable'

As a result, Newborn's lawyers argued indigenous people face additional barriers to serving on juries.

One of their key arguments focused on the part of the Alberta jury act which excludes people from jury duty if they're charged with a criminal offence or have been convicted of a crime and not received a pardon.

Newborn's lawyers said that part of the law disproportionately affects indigenous people, who the judge notes in his decision, make up two per cent of Canada's population, but comprise 20 per cent of the country's prison population.

At the December hearing, Crown lawyer David Kamal, a constitutional expert, argued permitting people with criminal records to sit on juries could potentially undermine public confidence in the justice system.

After considering the arguments Judge Burrows ruled the exclusion of people who have committed crimes is "reasonable and acceptable".

In his decision, he said people who have been convicted of a crime or are currently charged are likely not to be impartial, adding the fact that part of the act excludes a greater number of one ethnic origin doesn't affect the reasonableness of such an exclusion.

Judge Burrows said the disproportionate effect of this exclusion in the case of indigenous people "points to a shameful feature of modern Canadian society."

He concludes that exclusion doesn't mean the jury is unrepresentative, but instead promotes impartiality on the jury.

Jeremy Newborn's trial is scheduled for four weeks beginning in April 2016.

gareth.hampshire@cbc.ca

@cbcgareth