Murder ... Is Murder   Justice ... Is Justice

"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]."
"[If the state] deliberately excludes a particular subset of the population [then rights are violated]."
Justice Michael Moldaver, Supreme Court, Kokopenace decision

"These exclusions [for jury selection: criminal convicted, sitting federal, provincial and municipal politicians, current and former judges and lawyers, medical examiners, police officers all excluded] 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."
"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."
Judge Brian Burrows, Alberta Court of Appeal

Inset: victim of deadly beating, John Hollar on Edmonton LRT, 2012

When an Indigenous man from the Grassy Narrows reserve in Ontario was convicted in 2008 of manslaughter, there were no Aboriginals on the jury, leading the Ontario Court of Appeal to order a new trial. The Supreme Court of Canada overturned the appeal, and reinstated Clifford Kokopenace's manslaughter conviction. This week the Court of Appeal of Alberta referred to that decision when it turned down the appeal of an Indigenous man's murder conviction that he had been denied a fair trial by a representative jury of his peers.

Jeremy Newborn, who mercilessly beat a fellow passenger on the Edmonton LRT in 2012, leading to victim John Hollar's death two days later, appealed his conviction, his lawyer, Simon Renouf, claiming that Mr. Newborn's constitutional rights had been abridged. That being so because anyone with a criminal record is prohibited from sitting on a jury. And that being the case, Aboriginals are disproportionately excluded owing to the simple enough fact that they are disproportionately represented in Canadian prisons.

Aboriginals, making up 3.8 percent of the Canadian population, represent 23.2 percent of the federal inmate population. The jury composition system, insisted lawyer Renouf, is unfair to Aboriginals at trial for criminal offences since the disproportionate number of Indigenous Canadians have criminal records. Back in 2012, 29-year-old John Hollar was a passenger on a transit bus in Edmonton. He was suddenly attacked by Jeremy Newborn, then 32. The attack was viciously unrelenting and led to Mr. Hollar's death.
Jeremy Newborn File

And while Jeremy Newborn pleaded guilty to manslaughter, he pleaded not guilty to second-degree murder, which the Crown refused to accept, and proceeded with criminal charges to trial. Newborn was born with fetal alcohol syndrome resulting in an intellectual disability and he had drug and alcohol addictions, a band member of the Alexander First Nation. His case went to trial in 2014; the jury pool consisted of about 180 people. None among them was Aboriginal.

Newborn's lawyer, Mr. Renouf, objected to the jury makeup, calling a statistician as an expert witness in 2015 following an adjournment permitted to appeal the disparity in the makeup of the jury. Given the population of the city of Edmonton and its Indigenous component, it would be expected that of a group of 178 randomly selected people, approximately nine would be Indigenous, according to the statistician. The trial was re-scheduled as soon as Justice Burrows denied the motion for objection.

The trial proceeded and Newborn was convicted in 2017, given a life sentence without possibility of parole for 15 years. An appeal to the Court of Appeal of Alberta followed, argued on two grounds, one of which focused again on the jury exclusion. The provincial appeal court depended on the Kokopenace decision to reach their own, with the three-judge panel deeming it "an unfortunate consequence" referring to the exclusion of convicted Aboriginals sitting on a jury.

"Even if there is such an indirect effect (on Indigenous people), there is no basis to say it is deliberate", the decision rationalized in its judgment.

A screen shot from an Edmonton Transit System video that was played for the jury at the second-degree murder trial of Jeremy Newborn, 32, and showed the accused repeatedly punching victim John Hollar, 29, as shocked passengers looked on and moved away. Supplied