A few months ago, this human rights column was about the Ontario Court of Appeal’s decision in R v Kokopenace, 2013 ONCA. The major issues in Kokopenace were the scope of the right to representativeness on the jury roll (a list of persons who are eligible to serve on a jury) under sections 11(d), 11(f) and/or 15 of the Canadian Charter of Rights and Freedoms (Charter), and whether Ontario violated that right.
The applicable sections of the Charter read as follows:
11. Any person charged with an offence has the right …
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;…
(f) 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 five years or a more severe punishment;
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.
Ontario Court of Appeal Decision
The majority of the Ontario Court of Appeal held that the quality of the effort of the provincial government to prepare a representative jury roll (where the race of eligible jury members properly represents First Nations peoples) was sorely lacking. For example, it had relied on the “sole efforts of an individual in a local court office”. 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(1) issue, but the Court went on to determine that section 15 was not violated. The remedies granted included granting Kokopenace a new trial.
In dissent, Justice Rouleau agreed that, while there were issues present with regard to lack of Aboriginal representation, he believed that the Ontario government’s efforts to address the issues were reasonable under the circumstances. He also noted that the historical alienation of Aboriginal peoples in the justice system is a complex problem requiring systemic change that should be addressed by legislatures and not by courts.
Supreme Court Decision
The majority of the Supreme Court of Canada (SCC) recently overturned the majority of the Ontario Court of Appeal, and agreed with the dissenting justice. (R v Kokopenace, 2015 SCC 28). The majority of the SCC allowed Ontario’s appeal, set aside the order for a new trial and reinstated Kokopenace’s conviction.
Justices Moldaver, Rothstein, Wagner and Gascon held that while representativeness is an important feature of the jury system, its meaning is circumscribed. Representativeness does not involve targeting particular groups for inclusion on the jury and the state is not required to address historical and systemic wrongs against Aboriginal people by targeting them for inclusion. They held that a jury should be a “representative cross-section of our society, honestly and fairly chosen”, citing R v Sherratt,  1 SCR 509. Representativeness should be involved in the process used to compile the jury roll, but not in its final composition. The reviewing court should ask whether the state provided a fair opportunity for a broad cross-section of society to participate in the jury process. A fair opportunity is provided when the state makes reasonable efforts to:
(1) compile the jury roll using random selection from lists drawn from a broad cross-section of society, and
(2) deliver jury notices to those who have been randomly selected.
If these two steps are followed, the jury roll will be representative and the accused’s Charter right to a representative jury will be respected. The role of representativeness under Charter section 11(d) is limited to its effect on independence and impartiality. Impartiality is guaranteed through the way that the jury roll is compiled. However, the ultimate composition of the jury roll (e.g., it contains few individuals of the accused’s race or religion) is not in itself indicative of bias.
If the state deliberately excludes a particular subset of the population that is eligible for jury service, even if it is a very small group, it will violate the accused’s right to a representative jury under Charter section 11(f). On the other hand, if the state unintentionally excludes a group from the jury roll, then the court will look at the quality of the state’s efforts in compiling the jury roll.
If the state makes reasonable efforts, but part of the population is excluded because it declines to participate, the state will have met its obligation under the Charter. If the state does not make reasonable efforts, the size of the population that has been inadvertently excluded will be relevant. If only a small segment of the population is excluded, there will remain a fair opportunity for participation by a broad cross-section of society.
Representativeness does not involve targeting particular groups for inclusion on the jury and the state is not required to address historical and systemic wrongs against Aboriginal people by targeting them for inclusion. There is no right to a jury roll of a particular composition; nor to one that proportionately represents all the different religions, races, cultures, or individual characteristics of eligible jurors. The approach that would be required to ascertain this information would do away with well-established principles, such as juror privacy and random selection.
In this case, the majority concluded that the province’s efforts to include Aboriginal on-reserve residents in the jury process were reasonable, and thus the province had met its obligation for representativeness.
In dissent, Justices McLachlin and Cromwell noted that representativeness is an integral part of the jury selection process. The focus of representativeness is on whether the jury roll from which jurors are selected is as broadly representative of the community as would be a group selected at random from the community. All justices seemed to agree that the ultimate racial, religious and other personal characteristics that make up the jury itself do not have to reflect demographics in Canada. Thus, random selection is the proxy for representativeness. The dissent agreed with the majority that the only way an accused could establish under-representation would be by looking at an inadequate list or some other significant departure from the random selection process.
The dissent went on to hold that in order to establish a Charter breach, the claimant must show that there has been a limitation of his or her guaranteed rights, and that the limitation can be attributed to state action. If the limitation of the right can be fairly attributed to the state, then the Charter is breached. The starting point is not the efforts of the state to comply, but rather whether the jury roll is representative. The key difference between the majority and dissenting judgments is their emphasis (or lack of emphasis) on the reasonableness of the efforts of the state to ensure a representative jury. In cases where the connection between the state’s action or inaction and the limitation of the right is evident, the “reasonable efforts” test as mentioned by the majority does not reflect the nature of the state’s obligation.
In this case, the jury roll was not representative because its composition was a substantial departure from what random selection from the eligible jurors in the district would produce. Aboriginal on-reserve residents were underrepresented on the jury roll. The lists and the delivery of the jury notices were the responsibility of the state and problems with these two factors contributed to the unrepresentative jury roll. The state had some capacity to address the poor return rate of notices and Aboriginal disengagement from the criminal justice system, but it had failed to make reasonable efforts to do so. The dissent held that there is a sufficient connection between state action and inaction and the lack of a representative jury roll to conclude that the state had breached the accused’s right to a representative jury roll.
All justices seemed to agree that the ultimate racial, religious and other personal characteristics that make up the jury itself do not have to reflect demographics in Canada. The key difference between the majority and dissenting judgments is their emphasis (or lack of emphasis) on the reasonableness of the efforts of the state to ensure a representative jury.