The Supreme Court of Canada has recently tackled ( and in my view, wrongly decided) the
issue of representativeness of Aboriginal people on Canadian
juries. In the case of R. v. Kokopenace, 2015 SCC 28, the
appellant, Clifford Kokopenace, was an Aboriginal Canadian from the Grassy
Narrows First Nations Reserve in the District of Kenora, Ontario. He was
charged with second degree murder for stabbing his friend to death in a
fight. He was tried by a judge and jury in 2008, acquitted of murder but
convicted of manslaughter. Prior to his sentencing, Kokopenace’s lawyer
learned that there may have been problems with including Aboriginal on-reserve
residents on the jury roll for the District of Kenora which raised questions
about the representativeness of the jury in his case. The issue was
raised for the first time on appeal to the Ontario Court of Appeal.
Mr. Kokopenace argued at the Court of Appeal that because
his jury was chosen from a jury roll that did not adequately ensure that
Aboriginal on-reserve residents were included, his rights under sections 11(d),
11(f) and 15 of the Charter of Rights and Freedoms (the “Charter”) were
violated.
Section 11(d) of the Charter provides that any person
charged with an offence has the right... to be presumed innocent until
proven guilty according to law in a fair and public hearing by an independent
and impartial tribunal.
Section 11(f) of the Charter provides any person charged
with an offence has the right…except in the case of an offence under
military law tried before a military tribunal, to the benefit of trial by jury
where the maximum punishment for the offence is imprisonment for 5 years or a
more severe punishment.
Section 15 of the Charter is the “equality rights” sections
that provides that at 15(1) every individual is equal before and under the law
and has the right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability.
After reviewing the fresh evidence that was introduced on
the appeal regarding the efforts that Ontario had made in preparing the jury
rolls for the District of Kenora, two out of the three judges of the Ontario
Court of Appeal held that Mr. Kokopenace’s section 11(d) and 11(f) rights had
been violated and ordered a new trial on that basis. The dissenting judge
held that Ontario had made reasonable efforts to include Aboriginal on-reserve
residents on the jury roll and would have dismissed the appeal. All three
judges rejected Mr. Kokopenace’s section 15 claims.
On appeal to the Supreme Court of Canada before a seven
member court, the Crown was successful in having the Supreme Court overturn the
decision of the Ontario Court of Appeal. Below are the somewhat
lengthy and complex reasoning of the court. The majority decision was
written by Justice Moldaver.
Justice Moldaver reviewed in detail the jury selection
process in the District of Kenora. He referred to the Ontario Juries
Act which used municipal assessment lists obtained from Municipal Property
Assessment Corporation (“MPAC”). However, MPAC data does not
capture individuals who reside on First Nations Reserves. For that
reason, the Juries Act provides a separate process for including
on-reserve residents (calling them Indian reserves). The aim of both
sections is that each municipality or reserve be sent the number of jury
notices that is approximately proportionate to that municipality's or reserve’s
percentage of the total population in the judicial district.
Staff in the Court Services Division (“CSD”) are responsible
for virtually the entire process of selecting on-reserve individuals for the
jury roll. Ontario’s Ministry of the Attorney General has provided CSD
staff with guidance on the process to follow in doing so. The guidelines
provided encouraged staff to attempt to obtain the best lists of on-reserve
residents available.
The problem was that the District of Kenora contains a large
number of reserves which are associated with approximately 46 different First
Nations. The on-reserve adult population makes up between 21 – 32 per
cent of the adult population in the district, however, the response rate from
on-reserve residents to jury questionnaires was below 10 per cent.
There had been a significant decline in the rates of
response to jury notices from on-reserve residents in the District of Kenora
over the years. In 1993, the return rate for completed jury
questionnaires was approximately 33 per cent for on-reserve residents (compared
to about 70 per cent for off-reserve communities).
Many of the Aboriginal communities in the District of Kenora
are remote and are accessible only by air. Individuals typically do not
have mailboxes at their place of residence. Some have access to a
community mailbox or have an individual box in the post office. For
others, mail is held at the post office until they retrieve it. When jury
notices are sent to on-reserve residents, they are sent by “general
delivery”. Mail delivered in this manner is sent to the community post
office but not to individual or community postal boxes. The CSD relies on
postal clerks with local knowledge of the residents of the community in order
to ensure that these notices are properly delivered.
There was, not surprisingly, much confusion in the District
of Kenora and in 2007 the rate of return for on-reserve residents was
approximately 10 per cent compared to an off-reserve response rate of 56 per
cent. Many of the jury notices were returned by the post offices as
undeliverable.
Ultimately, only 10 per cent of the questionnaires sent to
on-reserve residents were returned and only 5.7 per cent of on-reserve
residents who returned the questionnaires were eligible to serve as
jurors. Mr. Kokopenace’s jury was selected from a jury panel of 175
jurors, 8 of who were on-reserve residents. No on-reserve residents were
selected for Mr. Kokopenace’s jury.
The Ontario Court of Appeal delivered three sets of
reasons. Justices LaForme and Goudge held in Mr. Kokopenace’s favour.
Justice Rouleau held there was no Charter violation.
Since 2008, Ontario has expanded its efforts to include
on-reserve residents in the jury selection process. In 2011, for example,
Ontario appointed former Supreme Court Justice Frank Iacobucci as an
independent reviewer to study the issue of the under-representation of
Aboriginal on-reserve residents on juries and to make recommendations for
resolving the problem. Justice Iacobucci's report was not released until
2013. The report revealed that the problem is multi-faceted and extends
well beyond the difficulty of obtaining accurate source lists. It
explains that the problem is linked to the long history of Aboriginal
estrangement from the justice system and the mistrust of that system that has
resulted. Ontario has since begun implementing some of the report’s recommendations.
The majority of the Court of Appeal emphasised that the
analysis of Ontario’s efforts to increase Aboriginal on-reserve
representativeness must be guided by both the honour of the Crown and the
principles in the Supreme Court case of R. v. Gladue. Justices LaForme
and Goudge held that Ontario was required to consider the estrangement of
Aboriginal peoples from the justice system and to work with First Nations
governments to create a solution to the problem. It was unreasonable for
Ontario to delegate such responsibilities to a junior public servant in the CSD.
The majority also concluded that Ontario had improperly
focused its attention on obtaining updated lists and was required to
investigate the causes of the problem and to actively encourage responses from
on-reserve residents. Its failure to do so meant that it had not made
reasonable efforts to provide a fair opportunity for the inclusion of
Aboriginal on-reserve residents.
In dissent, Justice Rouleau found that Ontario’s efforts
were reasonable in light of what was known at the time. In other words, at
the time relevant to the appeal (before the Iacobucci report) everyone was
under the impression that the low response rates were caused by outdated
lists.
The Supreme Court of Canada - Justices Rothstein, Moldaver,
Wagner and Gascon, with partially concurring reasons written by Justice
Karakatsanis agreed with the dissenting judge of the Ontario Court of
Appeal. It held that representativeness is an important feature of our
jury system but its meaning is circumscribed. What is required is a
representative cross-section of society, honestly and fairly chosen.
Representativeness focuses on the process used to compile a jury roll, not its
ultimate composition.
The court held that to determine if the state has met its
obligation in that respect, the question was whether it had provided a fair
opportunity for a broad cross-section of society to participate in the jury
process. To do so, the state must make reasonable efforts to:
- compile the jury roll using random selection from lists that draw from a broad cross-section of society; and
- deliver jury notices to those who have been randomly selected.
When this process is followed, the jury roll with be
representative and an accused’s Charter right to a representative jury will be
respected.
As to the alleged Charter violations, the court held that
the role of representativeness under section 11(d) is limited to its effect on
independence and impartiality. Section 11(d) will be violated if the
process used to compile the jury roll raises an appearance of bias at the
systemic level, i.e. deliberate exclusion of a particular group or efforts in
compiling the jury roll that are so deficient as to create an appearance of
impartiality. The court held that that was not the case in respect of Mr.
Kokopenace’s jury.
The role of representativeness in section 11(f) is
broader. It not only promotes impartiality, it legitimizes the jury’s
role as the “conscious of the community” and promotes public trust in the
criminal justice system. If there is a question of unintentional
exclusion, it is the quality of the state’s efforts in compiling the jury roll
that will determine whether an accused’s right to a representative jury has
been respected. If the state makes reasonable efforts, but part of the
population is excluded because it declines to participate (for whatever
reason), the court held that the state will nonetheless have met its
constitutional obligation.
The majority held that representativeness is not about
targeting particular groups for inclusion on the jury roll. The province
was therefore not required to address systemic problems contributing to the
reluctance of Aboriginal on-reserve residents to participate in the jury
process. In other words, the accused’s individual right is not the
appropriate mechanism for repairing the broader relationship between societal
groups and the criminal justice system.
As written by Justice Moldaver, the Supreme Court held that
there was no right to a jury roll of a particular composition nor to one that
proportionately represents all the diverse groups in Canadian society.
The majority held that the province had met its
representativeness obligation in the case and dismissed the appeal.
Regards,
Blair
No comments:
Post a Comment