by Ian Elliot
Northern News Services

NNSL (Dec 15/97) - A sexual assault case was moved out of a small community recently because prosecutors feared Inuit jurors could not judge the case impartially.

The two men facing sexual assault charges in Pelly Bay earlier this month wound up being tried in Cambridge Bay instead, after prosecutors threatened to decimate the jury pool in Pelly Bay with pre-emptory challenges.

Crown prosecutors had filed an application for a change of venue to a larger community early in the trial.

They argued not only that Pelly Bay is too small and people there are too interrelated to form an impartial jury -- a common problem in Northern justice -- but also that traditional Inuit culture holds that sexual matters should be handled within the family.

The two threads made it impossible to get 12 "indifferent" jurors, they said.

When Justice John Vertes rejected their argument and ordered the trial to go ahead in Pelly Bay, prosecutors responded by saying they would use all their pre-emptory challenges on potential jurors.

Pre-emptory challenges allow both prosecutors and defence lawyers to reject jurors without stating a reason, such as a relationship to the accused or an opinion on the case.

In this case, the prosecutors had 24 such challenges and if exercised on the 30-member jury pool, would not have left enough candidates for a jury.

Justice Virginia Schuler had little choice but to move the trial to Cambridge Bay.

Among those unimpressed by the tactic is lawyer Robert Gorin, who represented one of the Pelly Bay accused. He said last week he is worried that such methods, and the continuing shortage of translators for trials, are moving trials out of communities and freezing unilingual aboriginal residents out of the justice process.

"This position (in the Pelly Bay case), and the fact we're unable to get translators due to cuts in funding have an effect, in fact, of disqualifying people who could be on juries," said Gorin.

"It only affects people of a certain culture and a certain language. It certainly runs counter to the process of community empowerment and community justice."

Reluctance on the part of prosecutors to form a jury in some small communities, along with the translator shortage, are becoming too common, he said.

In some cases, judges must reluctantly exclude unilingual people from jury duty, simply because there are not enough Inuktitut translators available, he said.

Two translators are considered necessary because trial work is involved and exhausting, and a tired translator's error could cause a judgment to be overturned, as happened recently when an Igloolik man's 1996 sexual assault acquittal was overturned due to poor translation of the judge's charge to the jury.

Lawyer Tom Boyd, head of the NWT Criminal Lawyer's Association, said he is aware of about a dozen change-of-venue applications in community trials in the last few years. The majority were filed by the Crown and most were unsuccessful. He said the courtroom tactic of getting a venue change by quashing potential jurors sends the wrong message.

"I think it's very disparaging to the people of Pelly Bay, for one thing," he said. "It appears as though the Crown is talking down to them."

He noted that jury trials began in small communities in rural England, where the problems of getting impartial juries was much more enhanced, and worked so well there that they spread to other countries.

Pierre Rousseau, the North's chief prosecutor, said he was away when the trial took place and could not comment on it specifically, but pointed out there are other options for prosecutors worried that an impartial jury cannot be obtained in a small place.

They can adjourn the trial to a later date, or, as happened in Iqaluit last week, use sheriffs to compel people to attend. Still, there have been a number of trials in which there have not been enough unbiased people to put together a jury. A gang-rape trial in Lutselk'e that had to be moved to a larger centre, for example.

Rousseau, however, acknowledged the court's long-standing tradition of community-based justice.

"Over the years the court has developed a jurisprudence or sets of rules stating on principle that a trial should take place where the crime took place. The principle is there."