Alberta lawyer's bid to change jury rules rejected by appeal court
'Exclusion of those with criminal records is not arbitrary,' justice rule
An Edmonton lawyer has failed in his bid to change the way juries are selected in Alberta.
Defence lawyer Simon Renouf filed a notice of appeal in 2018 that challenged the constitutionality of the province's jury act, which outlines the rules used to form jury pools. He argued that excluding from jury duty anyone convicted of a criminal offence was unconstitutional, because it disproportionately excluded Indigenous people.
In his application, Renouf told the Court of Appeal of Alberta that 3.8 per cent of the Canadian population is Indigenous, but almost one-quarter of Canada's inmate population is Indigenous.
The case in question involved Jeremy Newborn, who was charged with murder in connection with the 2012 fatal beating of a fellow passenger on an LRT train.
Newborn was eventually found guilty by a jury in May 2016 of second-degree murder. He is now serving a life sentence.
During Newborn's trial, there were no Indigenous people on the jury, which was chosen from among a pool of 186 people, none of whom appeared to be Indigenous.
- Disturbing video played in court shows fatal attack in LRT car
- Jeremy Newborn convicted of murder in LRT attack
- Convicted Edmonton LRT killer Jeremy Newborn sentenced to life
On Friday, the province's highest court released a 12-page decision that rejected Renouf's argument.
"There is no indication ... of any deliberate exclusion of aboriginal citizens," the decision said. "Those excluded are excluded because of their criminal records, not because of their ethnicity.
"The exclusion of those with criminal records is not arbitrary or open to manipulation. An unfortunate consequence may be that more aboriginal citizens may be excluded, but that must be weighed against the theoretical prospect of persons with serious criminal records sitting on juries."
Renouf tried to make the same argument during the 2016 trial, but was rejected by the Court of Queen's Bench judge.
Challenging Crown's Expert Evidence
The other ground of appeal launched by Renouf argued that the trial judge should not have allowed the Crown to call two forensic psychiatrists as expert witnesses to rebut the evidence called by the defence through neuro-psychologist Valerie Massey.
All three experts gave opinions to the jury about whether Newborn had the mental capacity to form the intent to commit murder. Newborn has an IQ of 59 with mild to moderate cognitive impairment, according to the court of appeal document.
"The jury was capable of deciding the case without it [Crown witnesses]," Renouf argued, "and there was a danger that the jury would overemphasize the expert evidence."
The defence failed to stop the Crown's experts from appearing before the jury.
The court of appeal also rejected that argument, noting Renouf offered "no satisfactory rationale why Dr. Massey's evidence would be admissible and of benefit to the jury but the Crown's rebuttal evidence on the same topic would not.
"The jury in this case was entitled to have competing expert evidence on the critical issue before them."