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Top court: Opportunity to serve trumps ultimate jury composition

Court splits 5-2 with majority taking restrictive view
By Cristin Schmitz
June 05 2015 issue

Christa Big Canoe, seen above at the office of Aboriginal Legal Services of Toronto, said her group is ‘quite disappointed’ with the Supreme Court of Canada ruling in R. v. Kokopenace, which she believes gives Ontario a pass over failure to create representative juries. [Tim Fraser for The Lawyers Weekly]

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Lawyers say the Supreme Court’s narrow view of the state’s constitutional obligation to compile a representative jury roll could, at worst, constrain Ontario government efforts to improve the representation of First Nations on juries.

On May 21, the top court in R. v. Kokopenace [2015] S.C.J. No. 28 divided 5-2 to allow the appeal of the Ontario Crown against a ruling by the province’s Court of Appeal. A majority of the Court of Appeal held in 2013 that the government’s failure to compile a jury roll that adequately represented Aboriginal on-reserve residents in the northern Ontario district of Kenora undermined public confidence in the integrity of the justice system, and thus violated the Charter ss. 11(d) and 11(f) fair trial and jury trial rights of an Aboriginal man from the Grassy Narrows First Nation reserve who was convicted by a jury of manslaughter in 2008. The evidence indicated that Aboriginals living on reserves at that time made up as much as 32 per cent of the adult population in Kenora, but only four per cent of Kenora’s jury roll.

The Supreme Court’s judgment marks the first time it has decided on the important questions of Charter-protected rights to a representative jury, and the state’s constitutional obligations in that regard.

All seven Supreme Court judges agreed that the under-representation of Aboriginal on-reserve residents in the jury system, and the estrangement of Aboriginal peoples from the justice system, are pressing and serious problems. However, they split over whether an accused’s Charter rights to a representative and impartial jury are the appropriate mechanisms for addressing these problems.

“This court is not a commission of inquiry and its role is not to dictate to the government how to resolve this issue,” Justice Michael Moldaver wrote for the majority that included Justices Marshall Rothstein, Richard Wagner and Clément Gascon. “It must be remembered that the right to a representative jury is an entitlement held by the accused that promotes the fairness of his or her trial, in appearance and in reality. It is not a mechanism for repairing the damaged relationship between particular societal groups and our criminal justice system more generally — and it should not be tasked with that responsibility.”

In a vigorous dissent, Justice Thomas Cromwell, backed by Chief Justice Beverley McLachlin, argued that “having played a substantial role in creating these problems the state should have some obligation to address them in the context of complying with an accused’s constitutional right to a representative jury roll.”

Christa Big Canoe, co-counsel with Jonathan Rudin for the intervener Aboriginal Legal Services of Toronto, said her group is “quite disappointed” with the majority ruling, and “completely agrees” with the dissent. She queried how it can be adjudged fair that 87 per cent of accused who go before juries in Kenora are from First Nations, yet these accused have no entitlement to a jury that represents their community by including on-reserve First Nations people.

The majority simply gave the government a pass on its evident failures in devising the jury roll and delivering the jury notices, she said.

“Part of what I read, when I read the majority decision, is that it’s OK for Ontario to either be ignorant or incompetent, and that just can’t be right,” she said.

Cheryl Milne, co-counsel with Kim Stanton for the David Asper Centre for Constitutional Rights and the Women’s Legal Education and Action Fund, said she sees an underlying approach in some of the court’s majority and unanimous judgments authored by Justice Moldaver, “that says that as long as the government is well-intentioned and does something, that’s good enough,” even when the effects of the government’s actions are “terrible.” She cited as examples the Supreme Court’s dismissal of defence appeals relating to inadequate Crown disclosure and jury vetting by Crowns and police (R. v. Yumnu [2012] S.C.J. No. 73) and the court’s restrictive view of Crown liability for wrongful nondisclosure that results in miscarriages of justice (Henry v. B.C. (Attorney General) [2015] S.C.J. No. 24).

Milne also queried whether possible provincial initiatives to improve the representation of Aboriginals on jury rolls, such as sending out extra questionnaires or creating incentives for Aboriginals to join jury rolls, might be seen as overly aggressive and therefore not representative in light of the majority’s ruling in Kokopenace.

Brendan Crawley, a spokesperson for Ontario’s Ministry of the Attorney General, noted that although the court held that the government met its representativeness obligations, the majority “indicated that Ontario must also continue its efforts to address the under-representation of Aboriginal residents in the jury system.”

“Ontario remains firmly committed to improving the representation of First Nations people on jury rolls,” Crawley said by e-mail. 

He said the province has implemented the recommendation of retired Supreme Court Justice Frank Iacobucci in his 2013 report on First Nations representation on Ontario juries to create a collaborative process between the government and First Nations to find practical solutions, and several have already been rolled out.

As recommended by Iacobucci, a forum was also held in Thunder Bay, Ont., last November which brought First Nations leadership and community organizations, government representatives and more than 100 Aboriginal youth to discuss First Nations issues in the justice system, Crawley said. He also pointed to a pilot summer internship program for Aboriginal law students that ran last year and will run again this year. As well, the Nishnawbe Aski Nation led a pilot project to seek on-reserve volunteers who could potentially serve as jurors at coroner’s inquests in the judicial districts of Thunder Bay and Kenora, Crawley said.

Co-counsel for the intervener Advocates’ Society, Brian Greenspan of Toronto’s Greenspan, Humphrey, Lavine, said the majority decision is “disappointing” from his client’s perspective.

“What we were proposing was a regime where you could have some better confidence in the steps that were taken to ensure the fundamental fairness of the jury array and the fundamental process by which juries were chosen, and we didn’t think what we were proposing was revolutionary, but rather evolutionary,” he said. “What we’ve been told in this judgment is that whatever progress will be made, will be made at the instance of the legislature as opposed to imposing it by either a constitutional or judicial requirement.”

Greenspan said this creates the risk that progress will be slow or nonexistent.

The Supreme Court’s majority set aside the appeal court’s order of a new trial and restored Clifford Kokopenace’s manslaughter conviction.

Justice Moldaver ruled that the jury in his case was representative, even though the jury roll included few Aboriginals, and that his Charter rights were not violated because the province met its obligation under ss. 11(d) and 11(f) to provide “a fair opportunity for a broad cross-section of society to participate in the jury process.”

“In my view, representativeness focuses on the process used to compile the jury roll and not its ultimate composition,” Justice Moldaver said. “Consequently, the state satisfies an accused’s right to a representative jury by providing a fair opportunity for a broad cross-section of society to participate in the jury process.”

He held that the province met this obligation by taking “reasonable steps to compile the jury roll using random selection from broad-based lists” and to deliver the jury notices to those who had been randomly selected.

However, the dissent pointed out that provincial officials who compiled the jury roll used sources substantially out of date, included people who should not have been included, and entirely excluded four First Nations reserves in Kenora District. Officials also had serious problems delivering jury notices to on-reserve residents.

The state should have taken additional steps to address those problems, Justice Cromwell said.

“An Aboriginal man on trial for murder was forced to select a jury from a roll which excluded a significant part of the community on the basis of race — his race. This in my view is an affront to the administration of justice and undermines public confidence in the fairness of the criminal process.”

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