Aboriginal Underrepresentation in Jury Roll Construction: Her Majesty the Queen v Kokopenace

The Supreme Court of Canada’s (“SCC”) upcoming decision in Her Majesty the Queen v Kokopenace [Kokopenace] will clarify what steps provinces need to take in order to ensure that Aboriginal persons facing criminal charges are afforded the chance to have their cases tried by a representative jury.

Background

Clifford Kokopenace was convicted of manslaughter in 2008 in a trial by jury in the Superior Court of Kenora, Ontario. Kokopenace and the co-accused both argued that their jury was derived from a jury roll that did not adequately ensure the representative inclusion of on-reserve Aboriginal residents.

Since the co-accused’s appeal was allowed on separate grounds, the Ontario Court of Appeal only considered Kokopenace’s appeal.

Sections 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms (“Charter”) constitutionally guarantees a defendant’s right to a representative jury.

The jury selection process is governed by both federal and provincial legislation, the Criminal Code of Canada, RSC 1985, c C-46 (the “Code”), and the Juries Act, RSO 1990 cJ3 , respectively. In Ontario, there are three steps to this process: (1) a jury roll is prepared of individuals selected in the community who are able to serve as jurors; (2) names are selected from the jury roll in order to make up the panels for court sittings; and (3) jurors are selected from the jury panel for a particular criminal jury trial, the “petit jury”.

The central issue in Kokopenace has to do with the initial preparation of the jury roll.

Pursuant to the Juries Act, a jury roll has to be prepared for each county and district in Ontario every year by officials. The municipal enumeration process does not, however, include those who reside on reserves. The Juries Act, therefore, provides that the sheriff of a county can use “any available list of on-reserve residents from which to randomly select the names to receive jury service notices” (R v Kokopenace, 2013 ONCA 389 at para 8).

The Court of Appeal Decision

At the Ontario Court of Appeal, Kokopenace argued that the Ontario Government’s method of preparing the jury roll did not adequately ensure that his right to a representative jury was met. While on-reserve Aboriginal Peoples made up approximately one third of the Kenora district of Ontario at the time of Kokopenace’s trial, Aboriginal Peoples only accounted for 4.1 percent of that year’s jury roll.

The majority in the Ontario Court of Appeal agreed with Kokopenace’s assertion and concluded that his section 11(d) and 11(f) Charter rights had been violated as a result of Ontario’s failure to ensure that the jury role was reflective of Kenora’s on-reserve Aboriginal population.

With respect to the scope of the accused’s right to a representative jury roll, the Court stated that whether a person’s right to a representative jury is met is dependent on the process that is used to create the jury roll. There is no guarantee, however, that the final jury roll be made up of a specific number of different groups of people. What is relevant is whether reasonable steps were taken to ensure that Aboriginal Peoples had the opportunity to be fairly represented.

The Court of Appeal concluded that the Ontario Government had failed to meet this requirement. This failure was attributed to the government officials’ reliance on outdated band numbers. The band lists that were used for the 2008 jury roll were from the year 2000 and, as a result, the jury roll failed to take into account deaths that had taken place in between those years, births, and the number of persons that had reached voting age.

The Court characterized the steps Ontario had taken to address the known issue of Aboriginal Peoples being underrepresented in jury rolls as “sorely lacking”. This finding was based on the facts that getting the band lists updated were delegated almost solely to a relatively junior employee and that the government’s actions failed to take into account Aboriginal Peoples’ historical alienation from the justice system.

While Kokopenace’s argument that his section 15 Charter right was violated was not successful, the Court found that Kokopenace’s section 11(d) and 11(f) Charter rights had been infringed. Justice LaForme did not engage with the question of whether the Ontario Government acted partially, fraudulently, or with wilful misconduct contrary to section 629(1) of the Code since it was already ruled that Kokopenace’s Charter rights were violated. The Ontario Court of Appeal thus reversed the accused’s manslaughter conviction and sent the matter back for a retrial.

The Dissent and the Upcoming Supreme Court Decision

Justice Rouleau’s dissent provides a likely indication of what the SCC will have to consider in coming to its decision. While he agreed that there were issues present with respect to the lack of Aboriginal representation, he was of the opinion that the Ontario Government’s efforts to address this issue were reasonable given the circumstances, noting that the standard is reasonableness, not perfection.

He also commented that the historic alienation of Aboriginal Peoples from the justice system is a complex problem that requires systemic change that is more appropriate for the legislature to address than the courts.

In addition to expressing what conduct is required of a government in order to make sure jury rolls afford Aboriginal persons the opportunity to be tried by a representative jury, the Kokopenace decision is illustrative of the issues brought up by former Supreme Court Justice Frank Iacobucci in his report, “First Nations Representation on Ontario Juries”.

In that report, Iacobucci pointed to several factors that contribute to the under-representation of Aboriginal Peoples in Ontario juries, and advocated for a coordinated effort between the Ontario Government and Aboriginal leaders to address this problem. In light of these findings by the former Supreme Court Justice, it will be interesting to see how the SCC articulates what obligations the Ontario Government owes to Aboriginal Peoples with respect to how jury rolls are put together.