On November 21, 2014, in R v Kokopenace, the Supreme Court of Canada granted leave to appeal a case from the Ontario Court of Appeal (2013 ONCA 389). The case deals with what duty the Ontario government has to ensure that First People who live on reserve are included on jury rolls (list of potential jurors). A majority of the Ontario Court of Appeal (per Justice LaForme) quashed Kokopenace’s manslaughter conviction, holding that his rights were violated when the Ontario government failed to ensure First Nations peoples were properly represented in jury trials.
Until 2000, Indian and Northern Affairs Canada (INAC) compiled lists of First Nations persons for jury rolls. These lists were used in the situation where band electoral lists were not available. In 2001, INAC stopped providing band lists because of privacy concerns. Justice Iocabucci noted that the problem with underrepresentation of First Nations peoples on juries exists in a number of Canadian provinces, as well as in New Zealand, Australia and the United States. The key issue in the Kokopenace case was the Ontario government’s efforts to address problems that had arisen since the INAC band lists were not available, as this had an impact on the right to a representative jury.
The Ontario courts relied on a report prepared by Justice F. Iacobucci, First Nations Representation on Ontario Juries (2013) for data on why Aboriginal on-reserve residents were reluctant to participate in the jury selection process. Reasons included:
- their views about conflict resolution;
- systemic discrimination experienced by First Nations people within the justice system;
- a lack of knowledge about the justice system and the jury system;
- the desire by First Nations leaders to assume greater control of justice matters in their communities; and
- concerns for the protection of privacy rights.
Additional concerns included some aspects of the content of the questionnaire itself (e.g. penalty for non-response) and the requirement to declare citizenship. The Iocabucci Report concluded that the ad hoc system for identifying jurors was ineffective, and thus, results in a jury roll that is unrepresentative of all First Nations peoples on reserve. While the report focused on the situation in Ontario, Justice Iocabucci noted that the problem with underrepresentation of First Nations peoples on juries exists in a number of Canadian provinces, as well as in New Zealand, Australia and the United States.
The major issues in Kokopenace were the scope of the right to representativeness on the jury roll under sections 11(d) (presumption of innocence), 11(f) (right to a jury trial in some circumstances) and/or 15 (equality under the law) of the Canadian Charter of Rights and Freedoms, and whether Ontario violated that right.
In the Supreme Court of Canada case of R v Sherratt,  1 SCR 509, Justice L’Heureux-Dubé held that the “representativeness right” is an essential component of the right to trial by jury:
The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place.
In Kokopenace, the Ontario Court of Appeal relied on the idea that the representativeness right may also be supported by Charter section 11(d), in that it is an important means of ensuring impartiality (relying on R. v. Church of Scientology of Toronto, 1997 CanLII 16226 (ON CA)). Further, the Court noted that the representativeness right must inform the entire jury selection process. The process must begin with a properly representative jury roll, before the jury selected from it will have the required element of representativeness.
What is the appropriate content of the right of representativeness? Must the jury roll be representative of all groups that make up Canadian society? Justice Rosenberg of the Ontario Court of Appeal in Church of Scientology, above noted that:
The right to a representative jury roll is not absolute in the sense that the accused is entitled to a roll representative of all of the many groups that make up Canadian society. This level of representativeness would be impossible to obtain. …
Further, the critical characteristic of impartiality in the petit jury is ensured, in part, by the fact that the roll and the panel are produced through a random selection process. To require the sheriff to assemble a fully representative roll or panel would run counter to the random selection process. The sheriff would need to add potential jurors to the roll or panel based upon perceived characteristics required for representativeness. The selection process would become much more intrusive since the sheriff in order to carry out the task of selecting a representative roll would require information from potential jurors as to their race, religion, country of origin and other characteristics considered essential to achieve representativeness. The point of this is not to demonstrate that a jury panel or roll cannot or should not be representative, but that the right to a representative panel or roll is an inherently qualified one. There cannot be an absolute right to a representative panel or roll.
What is required is a process that provides a platform for the selection of a competent and impartial petit jury, ensures confidence in the jury’s verdict, and contributes to the community’s support for the criminal justice system.
The Ontario Court of Appeal emphasized that the right to a representative jury roll is qualified. For example, “it does not require a jury roll in which each group is represented in numbers equivalent to its proportion of the population of the jury as a whole” In the Kokopenace case, the Ontario Court of Appeal held that the quality of the effort of the state was sorely lacking. This would be practically impossible and any attempt to achieve this type of representation would not work with random selection process that is used to choose people to receive jury service notices.
The Ontario Court of Appeal focused on the steps taken by the state to prepare a jury roll that provides a group of people, from which to select a competent and impartial jury. The test arrived at was:
In my view, to meet its representativeness obligation, the state must make reasonable efforts at each step of creating the jury roll. That includes the state’s actions in compiling the lists, but also in sending the notices, facilitating their delivery and receipt and encouraging the responses to them. The objective of the state’s actions must be to seek to provide the platform necessary to select an impartial petit jury and to maintain public confidence in the criminal justice system by providing groups that bring distinctive perspectives to the jury process with their fair opportunity to be included in the jury roll.
The Ontario Court of Appeal also held that the government’s knowledge of decreasing questionnaire returns, and the efforts the government had made to address the issue, must be evaluated in the context of the state’s special relationship with Aboriginal people (paras 121-22). The government must demonstrate that it made reasonable efforts with regard to the jury roll in this context. The Court of Appeal noted that (para 205):
To be Charter-compliant… the state must have made reasonable efforts, considering all the circumstances known to it, to fulfill its obligation such that Aboriginal on-reserve residents were given a fair opportunity to have their distinctive perspectives included in the jury roll.
In the Kokopenace case, the Ontario Court of Appeal held that the quality of the effort of the state was sorely lacking. For example, the state had relied on the “sole efforts of an individual in a local court office” (para 206). The majority of the Ontario Court of Appeal held that both sections 11(d) and (f) of the Charter were violated, so it did not have to deal with the Charter section 15 issue, but the Court went on to determine that section 15 was not violated. The remedies granted included granting Kokopenace a new trial.
As indicated, the Ontario government has appealed the ruling to the Supreme Court of Canada. There are a number of parties intervening in the appeal, including the Nishnawbe Aski Nation, the Native Women’s Association of Canada, David Asper Centre for Constitutional Rights, Women’s Legal Education and Action Fund, and the Canadian Association of Elizabeth Fry Societies. The issue of reasonable representation of First Nations persons or juries is important across Canada and this case will be watched by many people.