Our Native Balkanism

No freeman shall be taken or imprisoned, or be disseized of his freehold or liberties or free customs, or be outlawed or exiled, or any otherwise destroyed; nor will we pass upon him or condemn him but by lawful judgment of his peers or by the law of the land.

Magna Carta

A judge has adjourned a murder trial in Thunder Bay after ruling it was impossible to convene a jury representative of the northern Ontario city's aboriginal population.

More than 100 people turned up for jury duty Tuesday, answering the call from the court system. But the judge ruled there weren't enough potential aboriginal jurors.

CBC Mar 16, 2011

So who are your peers? If you were a thirteenth century aristocrat, like the ones that brought King John to heel at Runnymede, a peer was a fellow aristocrat. A jury of your peers meant that your fate would be in the hands of men of the same social class, less easily cowed by the might of the King than a common peasant or town merchant.

Over the centuries the notion of peers was expanded to include all subjects of the Crown. Members of the aristocracy could still be tried by the House of Lord as late as 1948. For ordinary folk a peer was meant to be fellow private citizen - lawyers and some government officials were excluded - and an equal who understood the norms of the community they and the defendant lived in. Historically the meaning of peer was not suppose to be someone identical in background. A female defendant could not expect an all or mostly female jury. 

Are aboriginal and non-aboriginal Canadians peers? We have no formal aristocracy in Canada, so all citizens are equal before the law and therefore peers. Since 1956 all Status Indians have been citizens of Canada, so for legal purposes they are peers of non-aboriginal Canadians. That is until recently. Friend Darcey has noticed a trend:

The first time I read about a scenario involving not enough aboriginals for a jury was the case involving Winnipeg, Manitoba's Sydney Teerhuis in 2006. Sydney Teerhuis was a murderous sexual psychopath who had decapitated, castrated and disemboweled a homosexual lover and was placed on trial for second-degree murder. At the advent of the trial Sydney claimed that the jury selection process was discriminatory because aboriginals are unfairly being precluded from jury duty because of a stipulation prospective jurors can’t have criminal records and his lawyers threatened to launch a charter challenge. You see, Sydney wanted a jury of his aboriginal peers.

As Darcey goes onto ask, does that mean that every ethnic group is now entitled to a trial by members of the same ethnic group? If old Publius is ever charged with murder will I get a trial by other right-wing Portuguese bloggers with a penchant for Rudyard Kipling? The concept of jury by peer was born in a deeply hierarchical time when social class was all important, both in law and daily life. In our more legally egalitarian society jury of your peers means other citizens of Canada i.e. your legal equals.

There is an argument to be made that a peer should be someone who roughly understands your personal circumstances. A doctor would better understand the actions and motivations of a fellow doctor. This logic, however, goes only so far as the crime involves a specialized matter. A doctor being charged with criminal malpractice is something different than a doctor being charged with violently assaulting his wife. The former is a crime where technical knowledge and personal experience can give insight to the alleged conduct of the defendant. There is nothing particularly medical about wife beating. Certainly there is nothing uniquely aboriginal about murder.

Down this road lies legal and cultural balkanization. Before we get there, however, we will lose something very precious to our way of life, the right to trial by jury. India, despite having a common law system based on that of England, abolished jury trials shortly after independence. They increasingly found it difficult to find a jury of peers that would give relatively impartial verdicts.

In trials where members of different religious or ethnic groups were involved, the juries would vote along group lines. Under the mandate, British authorities refused to introduce jury trials to Palestine. The fear was of Arabs Muslims and Jews voting along group lines. Even today Israel, despite its common law background, has no jury system.

In a society as ethnically and racially diverse as Canada, our jury tradition cannot survive if a peer is to be understood as only a member of the same ethnic or racial group. Freedom - and the institutions that support it - cannot long survive in a multicultural society. A government of freedom requires a culture of individualism. 

 

Comments

[TWC]

Once more the joys and blessings of a hyphenated Canada----?

[nomdeblog]

Maybe all our juries should be composed of the “impartial” HRC employees. Two Solitudes didn’t work, let’s try Two Hundred Solitudes.

As far as India goes, Rudyard Kipling no doubt has something insightful to say somewhere. But the sad thing is that Gandhi’s approach to keeping India a village in fact slowed adaptation and integration. Now India theoretically is a democracy but is in fact dominated by one party, the Congress. That Party is kept in power by voting blocs…kinda, sorta like where we were headed with our own “hyphenated Canada” keeping the Natural Governing Party in power.

[copinacus]

So, Publius. Let's say you were charged with voicing as politically incorrect viewpoint and it turns out during the jury selection process that every member of the panel by coincidence happened to be lifelong avid readers of the Toronto Star.
Would you still feel that you were being judged by a panel of your peers?

[John Chittick]

Given that the growth of the Canadian leviathan state seems to be modeled after the Indian Reserve in terms of loss of property rights, targeted dependence, integrated commerce with governance, and paternalism, there should be no problem with any Canadian being a peer for jury purposes.

[Dan Zupansky]

There have been some 7 or 8 cases where a 'jury of your peers' was the challenge and those cases including Teerhuis' challenge were carefully examined and in the end dismissed. It was especially ridiculous given that Teerhuis' victim was aboriginal and lived on a small reserve. The killer while being aboriginal was adopted and raised by a non-aboriginal family. The challenge was just a waste of time and money by the tax-payer paid lawyer Greg Brodsky. Now the Thunder Bay decision will be another money wasting exercise. Peers as the writer so explained only means citizens of similar circumstances. This direction for the courts to go in is offensive, wasteful and ignorant. There are so many other legal issues in Canada worth discussing such as why we do not have consecutive sentencing even for multiple murder. Our courts are elitist and believe that we are too ignorant to fully understand the chicanery that is the Canadian Judicial System.