A judge has dismissed a lawyer's argument that Edmonton jury trials routinely violate the rights of aboriginal people by leaving reserves out of the pool of possible jurors.
Justice Patrick Sullivan ruled Friday in the Court of Queen's Bench that the jury selection process is fair and that aboriginals have not been systematically excluded.
"I am satisfied the pool from which the sheriff randomly selects the names for the jury array does properly represent the proportion of persons of aboriginal identity living in the community," Sullivan said in his written ruling.
The judge also found that the sheriff does not improperly exclude potential jurors from the nearby Enoch Cree First Nation in the selection process.
Lawyer Tom Engel had argued otherwise and also contended provincial legislation that bars people charged with or convicted of criminal offences from serving on a jury adds to the problem.
Federal law prohibits those who have served long prison sentences from jury duty. Alberta's Jury Act goes further, barring from juries anyone currently facing charges under the Criminal Code.
Engel said he was not surprised by Sullivan's ruling.
"It's what I expected." he said. "Of course, we're disappointed, but we expected it would be a tough battle."
'The judge is wrong'
McCarthy's case will now proceed. Engel said if his client is convicted, he will appeal the case all the way to the federal Supreme Court if necessary.
"I'm suggesting the judge is wrong, that it has been proven that there's racism in the system, that it has been proven that there is systemic exclusion of aboriginal people and poor people and that the judge was wrong not to find that was the case," Engel said outside court.
Engel launched his case after he attended jury selection for an aboriginal client, Rene McCarthy, in October 2008, and noticed none of the prospective jurors were aboriginal. McCarthy is charged with committing various offences against a police officer who was trying to arrest him.
'I looked around the room ... and I didn't see any native faces.' — Rene McCarthy, aboriginal defendant
"I looked around the room ... and I didn't see any native faces," McCarthy said of the jury selection. "Something needs to be done."
The case was adjourned so Engel could find out why no aboriginal jurors were present.
During his investigation, Engel said he learned that only people living within a 20-kilometre radius of Edmonton's courts are ever called to jury duty in the city. Although the Enoch reserve falls within that boundary, no one from the reserve is ever summoned for jury duty, Engel said during the four-day hearing.
Crown prosecutor Jason Russell argued during the hearing that Edmonton's jury system isn't flawed. The 20-kilometre radius includes an accurate representation of all Edmontonians, Russell told the court.
McCarthy's case will now proceed. Engel said if his client is convicted, he will appeal the case all the way to the Supreme Court of Canada, if necessary.