Legal and Social Affairs Division
On 21 May 2015, the Supreme Court of Canada released its decision in R. v. Kokopenace, which examined the constitutionally protected right of an Aboriginal accused person to be tried by a representative jury.
The right to a representative jury is captured by two provisions of the Canadian Charter of Rights and Freedoms: the right to a fair trial by an impartial tribunal under section 11(d ) and the right to a trial by jury for certain offences under section 11(f ).
In a 5–2 split decision (one of the five judges partially concurred), the Court found that the manner in which the jury roll was created in this case did not violate the right of the accused to a representative jury under either Charter provision.
While the decision focused on the process of selecting juries within provincial jurisdiction, it may also bear on those aspects of jury selection governed by the Criminal Code.
In addition, the decision may have implications for other legal and policy measures to address Aboriginal under-representation on juries and related issues of chronic over-representation in the criminal justice system.
Background: Manslaughter conviction appealed
Clifford Kokopenace, an Aboriginal man from the Grassy Narrows First Nation reserve, was convicted of manslaughter in 2008 in the Superior Court of Kenora, Ontario. He appealed his conviction, in part, on grounds that his jury was derived from a jury roll that did not adequately ensure the representation of Aboriginal on-reserve residents.
Section 6(8) of Ontario’s Juries Act provides that provincial authorities may select on-reserve residents eligible for the jury roll from “any record available.” The decisions related to the Kokopenace case noted that, in practice, provincial authorities obtained First Nations band lists and sent jury notices to on-reserve residents randomly selected from these lists.
However, the Aboriginal population’s representation on the jury roll remained disproportionately low. While Aboriginal on-reserve residents represented about 30% of the adult population in the judicial district, they accounted for only 4% of the jury roll.
The majority in the Ontario Court of Appeal decision found several limitations in the province’s approach to compiling the jury roll, including outdated source lists and a low response rate to the jury notice. They held that Ontario had not adequately provided for including Aboriginal on‑reserve residents on the jury roll, and that consequently, Mr. Kokopenace’s right to a representative jury had been violated.
Supreme Court: Majority ruled province made “reasonable efforts”
At issue in Kokopenace was the nature of state action required to ensure that a jury is “representative” of the community. This, in turn, raised the question of how to define representativeness and what role it should play in the rights guaranteed by sections 11(d ) and 11(f ) of the Charter.
The majority of Supreme Court justices held that representativeness has a narrow meaning under section 11. They stated that the province would meet its constitutional obligation by providing a fair opportunity for a broad cross-section of society to participate in the jury process, irrespective of the ultimate composition of the jury roll. A fair opportunity will have been provided when the state makes reasonable efforts to compile the jury roll using random selection from lists that draw from a broad cross‑section of society, and deliver jury notices to those who have been randomly selected.
The majority ruled that it is beyond the scope of section 11 to require that the state encourage the participation of Aboriginal peoples on juries, or address systemic issues related to their disengagement from the justice system.
They held that the state will only violate the right to an impartial tribunal that is set out in section 11(d ) if it deliberately excludes a particular group, or if its efforts are “so deficient that they create an appearance of partiality.” On the other hand, the guarantee in section 11(f ) of a trial by jury will automatically be undermined by a problem with representativeness, they said.
The two dissenting judges defined a representative jury roll as one that substantially resembles the group that would be assembled through a process of random selection. They stated that the jury roll will comply with section 11 as long as the state takes appropriate steps to ensure that random selection will result in a group that is broadly representative of the community from which it is drawn.
If the jury roll is not representative in this sense, the question for the dissenting judges then becomes whether and to what degree that failure is attributable to state action or inaction. They stated that, in order to determine whether the state has complied with its Charter obligations, the state conduct must be assessed in light of its contribution to the problem and its capacity to address it.
Wider legal and policy implications
Because the Kokopenace decision requires a lower threshold of state action to achieve representativeness under the Charter , other legal and policy measures will likely take on added significance in addressing the under-representation of Aboriginal peoples on juries.
Both the majority and dissenting judgments cited the 2013 report of former Supreme Court Justice Frank Iacobucci, which deals with systemic and other factors contributing to the under-representation of First Nations peoples on Ontario juries.
Ontario has begun to act on the report’s recommendations, in part by establishing an implementation committee, as well as an Aboriginal Justice Advisory Group, on broader justice issues affecting Aboriginal communities.
The Iacobucci report also recommends action in areas of the jury selection process within federal jurisdiction, including the compiling of band list information and the use of peremptory challenges (i.e., discretionary challenges or challenges without cause) under the Criminal Code.
Broader systemic issues that have impeded Aboriginal peoples from participating in the justice system were not within the report’s mandate. However, the report emphasizes that meaningful improvements in jury representation cannot be made without addressing these issues.
As the report outlines, the issues include conflict between First Nations and Euro-Canadian approaches to criminal justice and systemic racism present in all aspects of the justice system.
Annual and recent special reports of the Correctional Investigator of Canada have also addressed systemic issues affecting Aboriginal over-representation within the federal corrections system. These reports have made recommendations for further action, including repeated calls for a Deputy Commissioner of Aboriginal corrections.
Office of the Correctional Investigator. Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections, 2009.
Office of the Correctional Investigator. Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act. Final Report, 22 October 2012.
Ontario, Ministry of the Attorney General. Government Response to the Honourable Frank Iacobucci’s Report, “First Nations Representation on Ontario Juries.”