Exclusions to be grounds for appeal

SARAH ELIZABETH BROWN

The Canadian Press

September 16, 2008 at 4:23 AM EDT

Globe and Mail

THUNDER BAY — Just a week after an affidavit was filed with a coroner's inquest about shortcomings in aboriginal representation on the Kenora district jury list, the situation is popping up in other cases.

Daniel Brodsky, a Toronto lawyer representing a man convicted of murder in Kenora in 2005, said he will use the revelations as another ground for appeal for James Kakegamic.

Mr. Brodsky said he'd had an inkling during that trial's jury selection - no one on the jury list was from a native reserve - that something was amiss, but had no evidence at the time, so his request for action by the judge was dismissed.

"That fills in all the blanks," he said yesterday, adding he will be making an application to enter it as fresh evidence.

Mr. Brodsky, a founding member of the Association in Defence of the Wrongfully Convicted, said he has dealt with an incomplete jury roll in Kenora before.

In the early 1990s while representing a Sandy Lake First Nation man, he asked the trial judge to order a report on the perceived problem that the district's jury pool wasn't representative of the area's population.

The request was refused, Mr. Brodsky said, but the judge asked the sheriff, responsible for assembling the jury pool, to gather representation from all segments of the district.

Mr. Brodsky said his understanding was that as a result of Mr. Justice Erwin Stach's direction to the sheriff, things improved, until he arrived in a Kenora court in 2005.

The sheriff's office in Kenora, said Mr. Brodsky, had since been disbanded.

In the midst of the 2005 trial, Mr. Brodsky contacted the Chiefs of Ontario, who said they were studying the matter.

The provincial government, argued the Mr. Brodsky, has an immediate duty to ensure the jury roll is properly prepared.

"It's what gives legitimacy to the jury trial process," he said.

Nishnawbe Aski Nation deputy grand chief Alvin Fiddler said a problem with aboriginal representation on the Kenora district jury roll was not a total surprise.

"It's something we've suspected all along," said Mr. Fiddler, adding that an aboriginal person sitting on a jury is a "very rare event."

"It's troubling," said Mr. Fiddler, who was in Toronto last week for the pre-inquest motions that gave rise to the jury roll confusion.

NAN and Aboriginal Legal Services of Toronto have jointly asked the province's Attorney-General for a formal inquiry into the matter.

Currently, 44 band members, from among an aboriginal population of 12,000, are on the Kenora jury roll.