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In R. v. Kokopenace, 2015 SCC 28, the Supreme Court of Canada (“SCC”) was called on for the first time to determine what efforts Provinces must make to ensure that a jury is actually “representative.” This raised the related questions of how representativeness should be defined and what role it should play in the rights guaranteed by ss. 11 (d) and 11 (f) of the Charter. In answering these questions, the SCC split 5-2 in its decision.

The majority concluded that Ontario made reasonable efforts to compile the jury roll, drawing from a broad cross-section of society, and that the jury was representative. In a dissenting opinion, Chief Justice McLachlin and Justice Cromwell shifted the focus away from the Province’s “reasonable efforts” to looking at how the Province may have contributed to the problem of under-representativeness of Aboriginal peoples on juries and what, if anything, it had done to address it.

Facts

In 2008, Clifford Kokopenace, a member of the Grassy Narrows First Nation was charged with second-degree murder. He was tried by a jury and convicted of manslaughter. His jury was selected from the jury roll for the Kenora District, which consisted of only 4% First Nation on-reserve residents, even though 25% of the adult population of Kenora District at that time were First Nations people living on reserve. The jury ultimately selected for this trial did not include any First Nations on-reserve residents.

Prior to sentencing, Mr. Kokopenace’s lawyers learned about the irregularities in the composition of the Kenora jury roll. It came to light that the provincial officials responsible for compiling the jury roll used outdated sources that excluded four First Nations reserves in the district. Also, there was evidence showing that provincial officials had serious problems delivering jury notices to on-reserve residents, and those who received them were much less likely to respond than were other prospective jurors. The sentencing judge declined to adjourn the proceedings to hear a mistrial application.

The Ontario Court of Appeal’s Decision

On appeal, the representativeness issue was raised for the first time, and fresh evidence was introduced regarding how jury rolls are compiled. In particular, Mr. Kokopenace argued the process used to prepare the jury roll had failed to ensure representative inclusion of Aboriginal on-reserve residents. This, he argued, violated his Charter rights to a fair trial by an impartial jury (ss. 11 (d) and 11 (f)).

To assess whether the Province had met its representativeness obligations, the Court of Appeal considered whether the Province had made “reasonable efforts” to provide a “fair opportunity” for groups with distinctive perspectives to be included in the jury roll. The Court emphasized that the Province’s efforts under the Juries Act must be guided by the honour of the Crown and by the principles in R v Gladue.

The Ontario Court of Appeal concluded that the Province had failed to make reasonable efforts to provide a fair opportunity for the inclusion of Aboriginal on-reserve residents, and that Mr. Kokopenace’s s. 11 Charter rights had been violated.

The Supreme Court of Canada’s Decision

The majority of the SCC allowed the appeal and reinstated Mr. Kokopenace’s conviction.

Justice Moldaver, writing for the majority, noted that representativeness is an important feature of our jury system, but its meaning is restricted. It only requires that Provinces provide a jury that is a “representative cross-section of society, honestly and fairly chosen.” Representativeness focuses on the process used to compile the jury roll, not the jury’s ultimate composition. In this case, where the Province was found to have made reasonable efforts to compile the jury roll using random selection from lists that draw from a broad cross-section of society, and to deliver jury notices to those who have been randomly selected, the jury was representative. In other words, it is the act of casting a wide net that ensures representativeness. Representativeness is not about targeting particular groups for inclusion on the jury roll.

Unless the process used to compile the jury roll raises an appearance of bias at the systemic level, either through the deliberate exclusion of a particular group, or if efforts to compile the jury roll are so deficient as to create an appearance of partiality, it will not violate an accused’s right to a representative jury, regardless of the size of the group affected. In this case, the SCC determined a jury roll containing few individuals of the accused’s race or religion was not, in itself, indicative of bias. As long as the Province made reasonable efforts to be inclusive in compiling the jury roll, it met its constitutional obligation. The Province could not be blamed because certain parts of the population declined to participate in the jury system.

The SCC reasoned that s. 11 of the Charter was not the proper vehicle to address concerns about the problem of the underrepresentation of Aboriginal on-reserve residents in the jury system:

Efforts to address historical and systemic wrongs against Aboriginal peoples — although socially laudable — are by definition an attempt to target a particular group for inclusion on the jury roll. Requiring the Province to target a particular group for inclusion would be a radical departure from the way the Canadian jury selection process has always been understood.

The SCC concluded that there were no Charter violations, and that Mr. Kokopenace had received a fair trial by an impartial and representative jury.

In their dissenting opinion, Justices Cromwell and Chief Justice McLachlin viewed the issue a different way. The dissenting opinion focused on the role of the jury: acting as the conscience of the community, providing a bulwark against oppressive laws, serving as an educational tool about the criminal justice system, and assisting in increasing societal trust in the system as a whole. In order to fulfill these important functions, a jury must be ─ and be perceived to be ─ representative of the community, competent in relation to its tasks, impartial and independent. This ultimately depends on who is selected for jury duty. Thus compiling the jury roll is fundamentally important to the fairness, and perceived fairness, of the trial: “selection of a proper jury is the foundation of everything that follows at trial.”

Justices Cromwell and McLachlin reasoned:

[T]he starting point is not the state’s efforts to comply, but whether the jury roll was representative in the sense that I have described. If the jury roll was not representative, the question then becomes whether that failure is attributable to state action; in other words, is there a sufficient connection between the limitation of the right and the action — or inaction — of the state?

Thus, according to the dissenting Justices, in order to determine whether the Province had complied with its ss. 11 (d) and 11 (f) Charter obligations, the Province’s conduct must be assessed in light of its contribution of the problem and its capacity to address it. The dissenting Justices concluded there was a sufficient connection between the Province’s conduct and the lack of representativeness of the jury roll as guaranteed by the Charter.

Conclusion

The differences between the majority and dissenting opinions underscore the ongoing debate about the role of the courts as opposed to the role of governments in addressing systemic problems. In its majority decision, the SCC concluded that the Charter is not the proper instrument to “repair the damaged relationship” between Indigenous peoples and the criminal justice system, particularly as it relates to Indigenous peoples’ participation on juries.

This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.