Friday, June 12, 2015

Supreme Court Denies Aboriginal Accused's Right to Representative Jury

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:


  1. compile the jury roll using random selection from lists that draw from a broad cross-section of society; and
  2. 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. 




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