BenchPress 39-5: A Jury of Your Peers? - LawNow Magazine

BenchPress 39-5: A Jury of Your Peers?

Bench PressAn Ontario Aboriginal man has had his conviction for manslaughter re-instated by the Supreme Court of Canada.  Clifford Kokopenace was originally convicted in 2008.  However, the Ontario Court of Appeal overturned his conviction because the jury at his trial did not have any Aboriginal members. It ruled that this omission violated his Charter guarantee to a fair trial.  However, the majority of judges on the Supreme Court decided that Mr. Kokopenace’s Charter rights were not affected.  Justice Moldaver wrote: “There is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society. Requiring a jury roll to proportionately represent the different religions, races, cultures, or individual characteristics of eligible jurors would create a number of insurmountable problems.”  The majority noted that, while juries must be representative, this means a representative cross-section of society, honestly and fairly chosen. What is important is the process used to compile a jury, not its ultimate composition.  In this case, the Court found that the province’s efforts to include Aboriginal on-reserve residents in the jury process were reasonable.

Two judges dissented. Justice Cromwell wrote: “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 is in my view an affront to the administration of justice and undermines public confidence in the fairness of the criminal process”

R. v. Kokopenace, 2015 SCC 28 (CanLII)

Authors:

Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the former Editor and Legal Writer for LawNow at the Centre for Public Legal Education Alberta.
 


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