Common Ground

The Issue of Indigenous Underrepresentation in Canadian Criminal Juries

Issues and impacts surrounding indigenous underrepresentation on juries in the Canadian criminal justice system.

By Logan Ewanation, MA, Evelyn M. Maeder, PhD, and Jane Dickson, PhD

Common Ground, sponsored by the AP-LS Student Committee, is a newsletter series designed to foster collaboration among lawyers, psychologists and students in AP-LS. It seeks to highlight the unique contributions each group can make to the field of law-psychology. Each article is co-authored by a student, a psychologist and a legal professional in order to explore relevant issues from each perspective.

R v. Kokopenace

On the night of April 28, 2007, a physical confrontation between Clifford Kokopenace and Taylor Assin took place in a residence on the Grassy Narrows First Nation Reserves, part of a small northern Ontario community known as Kenora. Assin was stabbed with a knife during the confrontation, and later died from his injuries. As a result, Kokopenace was charged with second-degree murder and was eventually convicted of manslaughter in 2008 (R v. Kokopenace, 2013). Following the trial, Kokopenace's legal counsel learned that although on-reserve residents accounted for more than one-third of the population in Kenora, they made up less than five percent of the jury roll. Unsurprisingly, as a result there were no on-reserve residents included in the final jury selected for the trial.

The Juries Act of Ontario (Juries Act, 1990) specifies the process for creating a jury. According to the act, provincial officials are responsible for creating an annual jury roll for each county and district in Ontario, drawing upon the most recent municipal voters lists. To qualify as a juror, an individual must be a Canadian citizen residing in Ontario who is at least 18 years of age and has never been convicted of a serious (indictable) criminal offence. Officials randomly select individuals from the jury roll, who are then served with jury notices and summoned to the court to create jury panels. A specific petit jury is selected from the jury panel for each particular trial. Because enumeration does not include residents who live on reserves, the “juries act” permits municipal officials to use any available list of on-reserve residents from which to randomly select those who will be served with jury notices.

Kokopenace appealed his conviction to the Ontario Court of Appeals (R v. Kokopenace, 2013), arguing that the jury selection process had yielded a jury that was not representative of the on-reserve indigenous population in Kenora, thus contravening his right to an impartial jury (Section 11 of the Canadian Charter of Rights and Freedoms). Upon hearing evidence about how the jury roll was compiled, the Court of Appeals concluded that Kokopenace's Section 11 rights under the Canadian Charter had been violated and ordered a new trial.

The issue was taken to the Supreme Court of Canada (SCC), where it was ultimately decided that Ontario had made reasonable efforts to create a jury roll that was representative of Kenora District, and thus met its constitutional obligation, regardless of the racial composition of the final petit jury (R v. Kokopenace , 2015). Kokopenace's conviction was thus reinstated. Writing for the majority, Justice Moldaver noted that an accused's right to a representative jury is only violated when the compilation of the jury roll is biased at the systemic level through deliberate exclusion of a particular group. The SCC argued that requiring Ontario to target a specific group for inclusion in the jury would radically depart from the traditional jury selection process in Canada.

Although the Kokopenace trial received a high degree of media coverage, it is by no means the only case in which the issue of indigenous underrepresentation on Canadian juries has been raised (Jochelson, Bertrand, Lindsay, Smith, Ventola, & Kalmet, 2013). In fact, there are many other criminal cases in Ontario that have been delayed due to issues surrounding the validity of the province's jury selection process (Porter, 2015). The underrepresentation of indigenous people on Canadian juries has also been noted in a number of government reports (e.g., Aboriginal Justice Inquiry, 1991; Iacobucci, 2013; Saskatchewan Indian Justice Review Committee, 1992). In a report on indigenous people's experience with the Canadian criminal justice system, The Royal Commission on Aboriginal Peoples (1996) stated that the underrepresentation of indigenous people in Canada is “in stark contrast to their over-representation in the process.”

Overrepresented Everywhere, Except the Jury

Indigenous people in Canada account for 25 percent of the individuals held in provincial and federal custody (Reitano, 2016), yet make up a mere 4 percent of the general population (Statistics Canada, 2013). The gravity of the problem is revealed more starkly in particular areas of Canada such as the prairie region, where several correctional institutions report inmate populations of which a majority are indigenous (Sapers, 2015). Even when controlling for situational factors such as education level and employment status, young adults who are indigenous are much more likely to be incarcerated compared to their non-indigenous counterparts (Perreault, 2009). Unfortunately, these disproportional rates only seem to be growing. Between 2005 and 2015, there was a 50 percent increase in indigenous inmates, while the general incarcerated population increased by only 10 percent (Sapers, 2015).

Defendant Race

Although there are many factors contributing to the overrepresentation of indigenous peoples in Canadian prisons, one potential contributor is racial bias in jury decision-making. The Canadian legal system requires that jurors evaluate relevant evidence presented at trial in an unbiased manner. Unfortunately, empirical research has indicated that jurors' decisions are often affected by irrelevant, extralegal factors such as race (e.g., Devine & Caughlin, 2014; Maeder, Yamamoto, & Saliba, 2015; Maeder & Yamamoto, 2016). Many experimental studies conducted in both Canada and the United States have found that jurors demonstrate bias towards defendants belonging to a racial minority (e.g., Maeder & Burdett, 2013; Pickel, Warner, Miller, & Barnes, 2013; Schuller, Kazoleas, & Kawakami, 2009). Some of this research has specifically examined discrimination against indigenous defendants.

For example, Maeder and Burdett (2013) observed that Canadian mock jurors who read a trial transcript describing a robbery case were more likely to render a guilty verdict if the defendant was indigenous as compared to white. Similarly, Maeder, Yamamoto and McManus (2015) found that mock jurors were more like to convict indigenous or black defendants compared to those who were white in a case involving the theft of an auto vehicle, regardless of whether racial issues were prominent during the trial. In a recent examination of defendant race-crime congruency, Maeder, Yamamoto, McManus and Capaldi (2016) demonstrated that jurors were more likely to render convictions for an indigenous defendant charged with auto theft as compared to fraud.

The literature on jurors' perceptions towards indigenous defendants is not limited to Canadian research. For example, Struckman-Johnson, Miller and Struckman-Johnson (2008) had participants read a trial transcript in which the race of the defendant was manipulated as either Native American or white. Additionally, half of the transcripts described the defendant as having an extremely high blood alcohol level upon arrest. The authors found that participants rated the Native American defendant as more guilty when he was intoxicated compared to sober, yet there was no effect of intoxication for the white defendant.

In comparison to Maeder and Burdett (2013), Maeder et al. (2015) and Struckman-Johnson et al., (2008), Pfeifer and Ogloff (2003) found no difference in verdicts between English Canadian, French Canadian and indigenous Canadian defendants, but did observe that jurors rated indigenous defendants more negatively on subjective guilt measures in the absence of legal instructions. One factor that may explain these contradictory findings regarding the race of the defendant is the race of the juror. If juror race does indeed have an influence on final verdicts, there are clear legal implications relating to the jury's racial composition.

Juror Race

A number of studies have demonstrated that jurors perceive defendants of the same race more positively than other-race defendants, leading to bias in individual verdict decisions as well as in sentencing recommendations (Devine & Caughlin, 2014; Sommers & Ellsworth, 2000; Ugwuegbu, 1979). This effect, known as the similarity-leniency bias, reflects components of social identity theory (SIT). A social identity is the aspect of an individual's self-concept that is related to membership in particular social groups (Tajfel & Turner, 1986). According to SIT, one's self-esteem is influenced not only by personal attributes and characteristics but also by the groups to which one belongs. Because of this, individuals tend to favor and prefer in-groups as a method of promoting their own perceived self-value. This inclination to favor in-groups can lead to the homogeneity out-group effect, a tendency to negatively evaluate people who belong to out-groups (Brown, 2000; Ostrom & Sedikides, 1992). In a jury decision-making context, SIT would predict that as a method of promoting positive self-concept, individuals would be more lenient towards same-race defendants and more punitive towards defendants belonging to a racial out-group. Recent meta-analyses have indeed confirmed the existence of a significant race effect on jury decision-making, such that jurors perceive same-race defendants to be guilty less often than defendants who are of a different race (Devine & Caughlin, 2014; Mitchell, Haw, Pfeifer, & Meissner 2005).

U.S. experiments concerning the relationship between juror and defendant race have also extended beyond individual verdicts to investigate the effects at a group level using simulated deliberations (e.g., Bernard, 1979; Perez, Hosch, Ponder, & Trejo, 1993; Sommers, 2006). There has yet to be an empirical examination of the impact of the jury's racial composition in trials involving indigenous defendants in Canada.

Racial Composition of the Jury

In 1979, Bernard assigned participants to juries of various black/white racial compositions (e.g., 100 percent white; 25 percent black, 75 percent white; etc.), while also manipulating the race of the defendant as either black or white. Of the 10 juries included in the study, the only one to reach a conviction was the all-white jury with a black defendant. Perez and colleagues (1993) observed similar results in their work examining bias directed toward Hispanic defendants. After watching a video depicting a simulated robbery trial with either a Hispanic or white defendant, groups of six participants were asked to deliberate until a unanimous decision was reached. Analyses revealed that white-majority juries were more likely to convict the Hispanic defendant compared to the white defendant, yet there was no effect of defendant ethnicity for Hispanic-majority juries.

The experimental findings using mock juries are mirrored in studies from the United States that have analyzed archival data from actual trials (e.g., Anwar, Bayer, & Hjalmarsson, 2012; Bowers, Steiner, & Sandys, 2001). Bowers and colleagues (2001) demonstrated that in capital cases involving a black defendant and white victim the presence of at least five white men on the jury had a significant impact on the likelihood of a death sentence. Black defendants were sentenced to death 63 percent of the time when there were five or more white male jurors, compared to 23 percent of the time when there were only four white men. Similarly, the presence of a single black male on the jury significantly reduced the likelihood of a death sentence in trials involving a black defendant and white victim. In the absence of a black male juror, defendants were sentenced to death 72 percent of the time. In comparison, when one black man was on the jury, 43 percent of the defendants were given a death sentence.

Sommers (2006; 2007; 2008) has offered a number of reasons to explain why a jury's racial composition may have an effect on its final verdict. The verdict split explanation relates to the finding that a jury's final decision typically matches the majority of individual pre-deliberation verdicts (Devine, Buddenbaum, Houp, Stolle, & Studebaker, 2007; Kalven & Zeisel, 1966). Thus, the influence of racial composition may be tied to the pre-deliberation verdict split that is more likely to occur with a racially heterogeneous jury (Sommers, 2007; 2008). However, it may also be the case that such a jury would demonstrate a more diverse exchange and discussion of information during the deliberation process, as jury members relate a wider range of previous experiences, attitudes and beliefs compared to those from a homogenous jury (Hans & Vidmar, 1982; Marder, 2002; Sommers, 2008). According to the information exchange explanation, the effects of jury racial composition can be primarily attributed to members of the jury who belong to a racial minority. Although we lack similar Canadian research, these US studies suggest that a single indigenous juror in a Canadian trial could and would make different contributions to the deliberation process than would a white jury member.

However, because non-white jurors often report feeling marginalized on white-majority juries (e.g. Bowers et al., 2001), a third explanation for the effect of racial composition involving non-informational social processes has been proposed. It may be the case that the mere presence of a minority member on the jury inhibits white jurors from demonstrating racial bias due to social desirability and a motivation to appear non-prejudiced (Hans & Vidmar, 1982). White members of diverse juries may also evaluate evidence in a more systematic fashion. Sargent and Bradfield (2004) propose that white jurors act as watchdogs against their own bias in situations involving stigmatized group members. Furthermore, expressions of racial prejudice likely elicit different responses in diverse juries compared to those that are all white.

Sommers (2006) directly tested these explanations by coding the deliberation content of simulated juries that were either racially diverse or all white. For every jury, the defendant was black. Interestingly, racial composition had a significant effect on individual verdicts before deliberation even began. White jurors in diverse juries were less likely to render a guilty pre-deliberation verdict than were white jurors on all white juries. Thus, the effect of jury composition cannot be strictly attributed to a more diverse exchange in information.

Furthermore, heterogeneous juries deliberated longer, covered a wider amount of information and discussed more accurate information than juries that were homogeneous (Sommers, 2006). These differences were primarily due to the fact that white jurors discussed more facts about the case when serving on diverse as compared to all white juries. However, black jurors on diverse juries were also more likely to raise issues relating to race as compared to white jurors in homogeneous conditions. As such, there appears to be evidence to support the argument that racially diverse juries engage in a greater exchange of information.

Finally, white jurors in racially diverse juries made fewer inaccurate statements during deliberation than did whites in the homogenous juries, even after considering the amount of information contributed (Sommers, 2006). This suggests that white jurors do indeed process information and evidence in a more thorough manner when they sit on a racially diverse jury. Thus, the results from Sommers' (2006) experiment indicate that there are a number of mechanisms shaping how and why the racial composition of the jury influences its final verdict. Additionally, it seems that these processes are not necessarily mutually exclusive, but instead likely combine to interact with each other in a unique manner depending upon the context of the trial.

Other research has extended beyond the seated jury to investigate whether the racial composition of the jury pool has an impact on trial outcomes. In both Canada and the United States, potential jurors who are initially summoned to the courtroom are known as the jury pool. Examining data from felony trials in Florida, Anwar et al. (2012) found that juries created from all-white jury pools were more likely to convict black defendants (81 percent) compared to those who were white (63 percent). However, there was no difference in conviction rates between black and white defendants if the jury pool included at least one black member (71 percent for black defendants, 73 percent for white defendants). The authors speculate that there are two primary reasons as to why this effect occurs. First, and perhaps most obvious, is that including more black members in the jury pool increases the likelihood of black members on the final seated jury. Second, if the prosecution uses their peremptory challenges to strike black jurors simply due to their race, they lose the opportunity to strike a white juror who has also expressed attitudes that are disagreeable to their side. In essence, another juror with similar beliefs will likely replace the struck black juror.

Taken together, studies investigating the influence of race in the courtroom have convincingly demonstrated that a trial's outcome has the potential to be affected not only by the race of the defendant but also by the racial composition of the jury. As indigenous peoples are systemically underrepresented in Canadian juries (Iacobucci, 2013; Royal Commission on Aboriginal Peoples, 1996; Saskatchewan Indian Justice Review Committee, 1992), these findings from the psychological literature are deeply concerning.

Reasons Contributing to the Underrepresentation

Although indigenous underrepresentation on Canadian juries likely stems from a variety of complex socioeconomic issues that are outside the scope of this paper, there have indeed been a number of attempts to uncover a better understanding of the root causes of this problem. Scholars and legal professionals have identified a number of structural barriers that likely contribute to the underrepresentation. For instance, the Report of the Aboriginal Justice Inquiry of Manitoba (Aboriginal Justice Inquiry, 1991) noted that there were several issues with the summoning processes for potential indigenous jurors. Summonses are typically mailed to prospective jurors who are then asked to telephone the courthouse to confirm they are able to act as a juror. In rural areas, indigenous peoples are less likely to have regular post service or access to a telephone than the general population. Even when a summons is successfully delivered, indigenous jurors in rural areas may not respond simply because they cannot understand or read it, as summonses are written in English and French (Israel, 2003). Government officials may also automatically exempt individuals who are not sufficiently fluent in English or French from the jury (Petersen, 1992). Relatedly, indigenous persons living in urban areas tend to be more mobile and less likely to stay at a permanent residential address compared to non-indigenous Canadians. Therefore, indigenous peoples may be more difficult to each during the summons process, as the addresses given on source lists may be outdated and no longer accurate.

In many northern jurisdictions, trials are held in a few specific courthouses, often located well away from indigenous communities. Thus, the jury panels in these northern jurisdictions typically only reflect the district where the courthouse is located, completely ignoring the populations of the place where the crime was actually committed (Israel, 2003). When government officials do reach outside of the area immediately surrounding the courthouse, traveling from reserve communities to these urban centers can be extremely time-consuming and costly (Iacobucci, 2013). Similarly, accommodations for indigenous jurors who are living away from their communities during the trial are quite lacking; hotels are substandard and the allowances offered for meals do not allow for healthy eating options. However, even if these structural barriers were removed, there are a number of other factors that may still obstruct indigenous peoples in Canada from serving on the jury (Israel, 2003).

In a report written for the Government of Ontario, former Supreme Court Justice Frank Iacobucci (Iacobucci, 2013) observed that one of the biggest issues creating underrepresentation on juries relates to the conflict between the values of the criminal justice system and those of indigenous culture. Because many indigenous cultures do not believe in judging others' actions, indigenous peoples may be unwilling to serve on a jury, as a primary duty is to decide upon the defendant's guilt. A related issue is that many indigenous peoples feel victimized by the Canadian legal system, viewing it as a representation of pain of and injustice. Because of this, to be asked to participate as a juror in Canada would be perceived by many indigenous peoples as “contributing to their own oppression” (Iacobucci, 2013).

Iacobucci (2013) additionally identified systematic issues in which the names and contact information for potential jurors is currently collected. For instance, many chiefs and councilors were concerned about protecting the privacy of their citizens and were uncomfortable sharing this information with the government. Furthermore, many of the lists used by government officials when selecting the jury roll contain the names of all individuals belonging to that specific First Nation, regardless of whether they physically lived on or even near the reserve. At the end of his report, Iacobucci (2013) concluded that Ontario's justice system has failed indigenous peoples in Canada through systematic lack of representation in criminal juries.

Conclusion

In sum, there is a great deal of evidence to indicate that indigenous peoples are severely underrepresented on Canadian criminal juries. Because the psychological literature has demonstrated that the racial composition of a jury can indeed directly impact the outcome of a trial (e.g., Bowers et al., 2001; Perez et al., 1993), this systemic underrepresentation is gravely concerning. There have been a number of identified factors that might contribute to this issue. One thing that is clear, however, is that provincial officials must make additional efforts to ensure representative jury pools inform jury selection in trials involving indigenous defendants. To do otherwise perpetuates yet another source of injustice against indigenous citizens.

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