An appeal of an Aboriginal man’s murder conviction — after beating a fellow passenger on the Edmonton LRT in 2012 — argued Alberta’s jury selection is unconstitutional because prohibiting anyone with a criminal record from a jury disproportionately excludes Aboriginals.
Jeremy Newborn was denied a fair trial by a representative jury because of the criminality rules for jury eligibility, his lawyer argued.
After years of argument, disclosure, litigation and appeals, however, a panel of the Court of Appeal of Alberta rejected his complaint this week, leaving Newborn’s conviction in place.
Simon Renouf, representing Newborn, noted that while Aboriginals make up 3.8 per cent of the Canadian population, they represent 23.2 per cent of the inmate population. He argued this means a disproportionate number of Aboriginal Canadians have criminal records, tainting the composition of juries.
The arguments stem from Newborn’s 2012 deadly attack of John Hollar.
Hollar, 29, was the victim of an unprovoked assault on a light rail transit train in Edmonton, captured on video by the train’s security system. Newborn punched, kicked and eventually stomped on Hollar as he lay motionless on the floor of the train as it travelled through two station stops. He died in hospital two days later.
Newborn offered a guilty plea to manslaughter but pleaded not guilty to second-degree murder. The Crown did not accept the plea and proceeded to trial.
Newborn was described as having a significant intellectual disability and drug and alcohol addictions. He is also Aboriginal, an Alexander First Nation band member.
The composition of his jury was an issue from the start.
Just as his 2014 trial was set to begin, his lawyer asked Newborn’s mother to walk around the area where the jury pool was gathering and see how many appeared to be Aboriginal. She reported back that none did.
Renouf alerted the judge that none of the approximately 180 people in the jury pool appeared to be Aboriginal and was granted an adjournment to appeal this disparity.
He demanded disclosure from the government of internal communications regarding Aboriginal representation on juries in Alberta and Judge Brian Burrows ordered its release, except for 90 documents protected by solicitor-client privilege.
Burrows described the undisclosed documents as communications among Crown lawyers in other proceedings “where issues similar” to Newborn’s complaint were litigated, and “legal opinions or legal assistance provided by Crown lawyers in the context of proposed legislative amendments.”
In the midst of this disclosure process, in May 2015, the Supreme Court of Canada issued its decision in R v. Kokopenace, which dealt with a similar issue.
Clifford Kokopenace, an Aboriginal man living on the Grassy Narrows reserve in Ontario was convicted of manslaughter after a trial with no Aboriginals on the jury, in 2008. Ontario’s Court of Appeal ordered a new trial, but the Supreme Court overturned the appeal and reinstated the conviction.
Justice Michael Moldaver, writing for the majority, ruled: “There is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society. Courts have consistently rejected the idea that an accused is entitled to a particular number of individuals of his or her race” on a jury or in a jury pool.
The decision, however, said that if the state “deliberately excludes a particular subset of the population,” then rights are violated.
Renouf pressed ahead with his objection and, in 2015, called a statistician who testified that given Edmonton’s population and its Aboriginal component, about nine indigenous people in a group of 178 randomly selected people would be expected.
Burrows denied Newborn’s motion in 2015 and a trial rescheduled.
Among those ineligible to sit on a jury in Alberta, besides those convicted of a crime, are sitting federal, provincial and municipal politicians, current and former judges and lawyers, medical examiners and police officers.
“These exclusions are acceptable because, in the legislature’s reasonable view, there is a substantial possibility that persons in those categories would not be impartial as between an accused person and the Crown,” Burrows ruled.
“The disproportionate effect of the impugned exclusion in the case of Indigenous Canadians points to a shameful feature of modern Canadian society, but it does not cause a jury selected through the application of that exclusion to be unrepresentative; rather, it serves to promote the impartiality of such a jury.”
Newborn’s trial went ahead and, after conviction in 2017, he was given a life sentence without possibility of parole for 15 years.
Newborn then appealed to the Court of Appeal of Alberta, arguing two grounds, one again focusing on the jury exclusion.
In its decision, released Friday, the provincial appeal court leaned heavily on the Kokopenace decision.
The three-judge panel deemed any impact on the ability of Aboriginals to sit on juries as “an unfortunate consequence.” The ruling suggested police officers are excluded for similar reasons as people with convictions — potential bias.
“Even if there is such an indirect effect (on Aboriginal people), there is no basis to say it is deliberate,” the decision says.
Renouf could not be reached for comment.
Copyright Postmedia Network Inc., 2019