R v Kokopenace, 2013 ONCA 389 (14 June 2013) (Ontario Court of Appeal)
The Ontario Court of Appeal has held that the government of Ontario's failure to take adequate steps to promote the inclusion of Aboriginal on-reserve residents in a pool of potential jurors amounted to a violation of the right to a representative jury owed to a defendant in a criminal trial, a right protected by the Canadian Charter of Rights and Freedoms.
In 2008, the appellant, Kokopenace, was convicted of manslaughter in the Superior Court in the District of Kenora, Ontario. He appealed this conviction to the Court of Appeal on the ground that the petit jury that had convicted him was improperly constituted because it had been derived from a jury roll that, because of the process used to prepare it, did not adequately allow for the inclusion of Aboriginal on-reserve residents. The appellant alleged that this was a violation of his constitutional rights under sections 11(d) and (f) of the Charter, as well as contrary to the Juries Act R.S.O 1990. c. J.3 (the Act).
Section 11 of the Charter provides that any person charged with an offence has the right to:
(d) be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal;
(f) … the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.
These rights, particularly section 11(f), have previously been interpreted by the Supreme Court of Canada as creating a "representativeness" right for jury trials (see R v Sherratt  1 SCR 509). The present case concerns the scope of that right.
In Ontario, the selection of a petit jury is the culmination of a three-step process (the first two of which are governed by the Act):
- A jury roll for each judicial district (in this case Kenora) is prepared each year by sending notices to individuals randomly selected from the district's adult population. From the eligible responses received, the jury roll for that year is formed.
- Names are selected from the jury roll to make up the jury panels for particular court sittings.
- A petit jury for a particular criminal jury trial is selected from the jury panel.
The appellant argued that the process governing the first stage was defective, as it did not allow for adequate representation of Aboriginal on-reserve residents on the 2008 jury roll. This in turn meant that the jury that had convicted him was unrepresentative.
In the years leading up to the making of the 2008 jury roll, the state was aware that it had a continuing and worsening problem with ensuring representation of Aboriginal on-reserve residents on jury rolls; indeed, as early as 1994 it was apparent that this was an issue. The main cause of this was a very low on-reserve return rate for jury notices (10 percent in 2008 compared to more than 55 percent for off-reserve notices). However, the state did little to rectify this, with the Court finding that no genuine attempts had been made to engage with Aboriginal leaders in order to determine the cause(s) of the poor response rates or the steps that could be taken to encourage on-reserve representation.
By 2008, this unresolved problem meant that although on-reserve residents comprised almost a third of the District of Kenora's population, they formed only 4.1% of the jury roll.
Three separate opinions were delivered in this case, with Justice Laforme delivering the leading judgment (Justice Goudge concurring in a separate opinion) and Justice Rouleau dissenting.
Justice Laforme began by determining the nature of the representativeness right created by the Charter (an analysis with which Justices Goudge and Rouleau wholly agreed). In Justice Laforme's opinion, this right was derived not only from section 11(f) (as previously held by the Supreme Court) but also from section 11(d): the right to an impartial tribunal included the right to an impartial jury, and representativeness was an important means of ensuring a jury's impartiality.
Critically, Justice Laforme found that this right "must inform the entire process of jury selection. Only if the process begins with a properly representative jury roll, can the petit jury randomly derived from it have the required element of representativeness." Furthermore, the essential quality of the representativeness right, as highlighted in previous cases, is that it seeks to avoid the systematic exclusion of persons with distinct perspectives from the jury process. Justice Laforme found that there was no doubt that Aboriginal on-reserve residents brought a distinct perspective to the jury process, and therefore their inclusion on the jury roll was important for ensuring representativeness.
However, as explained by Justice Laforme, the scope of this right is inherently qualified. All of the judges agreed that the fact that the 2008 jury roll did not adequately represent on-reserve residents was not itself a Charter violation. Rather, the ultimate issue for the Court to determine, as framed by Justice Laforme, was whether the state's process for preparing the jury roll had involved "reasonable efforts to seek to provide a fair opportunity for the distinctive perspectives of Aboriginal on-reserve residents to be included" (emphasis added). This formulation of the representativeness right was echoed by Justice Rouleau.
While the judges thus agreed upon the legal test to be applied, they disagreed as to whether the state had taken adequate steps to discharge its constitutional obligation. The majority found that not enough had been done by the state to address the problems with on-reserve residents in order to promote representativeness. Despite what the state knew and ought to have known about the significance of the problem, "the causes were never investigated so that different modalities of engagement could be undertaken … [t]he integrity of the process was fundamentally compromised by the inattention paid by the state to a known and worsening problem, year after year."
Justice Rouleau, by contrast, found that given what was known at the time and the sheer complexity of the problem – and also taking into account the deference due to the governmental process – the state had taken reasonable steps to address the problems of which they reasonably could have been aware, and had thus discharged its obligation.
Section 24 of the Victorian Charter is similar to section 11(d) of the Canadian Charter, as both provide for the right to a fair hearing before an impartial tribunal.
The Ontario Court of Appeal found that in the context of a jury trial, the right to impartiality contained in section 11(d) gave rise to a right to a representative jury, and that it is not the final outcome (ie whether the jury is in fact representative) that will determine whether there has been a violation of this right, but rather the process that is used to form a jury.
Were a Victorian court to interpret section 24 in the context of a criminal jury trial, it is possible that the same conclusion would be reached, in respect of both the right to a representative jury being found in section 24, as well as the scope of that right being limited to the requirement that the state take reasonable efforts to guard that right. It should be noted, however, that in Kokopenace, the Court found that the efforts of the state to address the issue with on-reserve representation needed to be evaluated in the context of the state's "special relationship" with the Aboriginal population, as mandated by the common law of Canada. Therefore, what was considered "reasonable" in the particular circumstances of Kokopenace may not be considered reasonable in other cases.
This decision is available online at: http://www.canlii.org/en/on/onca/doc/2013/2013onca389/2013onca389.html
Chris Gordon is a Law Graduate at Allens Linklaters.