Aboriginal people not deliberately excluded from juries, Crown says

The Crown emphatically denied Tuesday that indigenous people are being deliberately excluded from Alberta juries in court in Edmonton.

Defence provided no evidence that Jury Act deliberately excludes indigenous people, Crown says

Jeremy Newborn listens to testimony at a pre-trial hearing in Edmonton. (Jennifer Poburan)

The Crown emphatically denied Tuesday that indigenous people are being deliberately excluded from Alberta juries in court in Edmonton.

The government was responding to a constitutional challenge brought by lawyers for Jeremy Newborn.

Newborn, an aboriginal man, is on trial for the murder of John Hollar, 29, on an LRT train three years ago. He has pleaded not guilty to second-degree murder.

Newborn's legal team is arguing that a lack of aboriginal people on juries indicates a systemic problem.

They're asking the judge to strike down subsection 4(h) of the Alberta Jury Act, which they say limits the opportunity of indigenous people to be tried by a representative jury.

The section excludes from jury duty anyone currently facing a criminal charge or has been convicted of a criminal offence for which a pardon has not been granted.

Newborn's lawyers say that part of the law disproportionately affects indigenous people who make up 3.8 per cent of Canada's population, but comprise 23.3 per cent of the country's incarceration population.

In arguments before Edmonton Court of Queen's Bench Tuesday, Newborn's lawyer said juries have to act as the conscience of a community and to do that must be representative of the community.

But Crown lawyer David Kamal said the defence failed to produce the necessary evidence to prove the Alberta Jury Act excludes aboriginal people.

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

The Crown told the court other groups too are excluded from jury duty, such as judges and lawyers and others who work in the justice system.

The exclusions are meant to prevent the perception of bias and are not a violation of the charter, it said.

Alberta is one of nine Canadian jurisdictions with such a policy, meaning it's well in line with the rest of the country, Kamal said.

The vast majority of people who show up for jury selection ask to be excused anyway, he explained.

During the initial jury selection round for the Newborn trial, out of 800 summons sent out, 510 people responded and 314 of those were excused, with another 18 being excluded.

There aren't any more specific details about why those 18 were excluded.

While Kamal acknowledges there are socio-economic issues at play resulting in lower responses to court summons from the aboriginal community, it stresses eliminating the subsection will not fix the broken relationship.

Newborn's trial is scheduled to start next April and Queen's Bench Justice Brian Burrows is promising to hand down a decision on the constitutional arguments by February.