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For the Defence_34-3_Layout 1 13-08-16 10:40 AM Page 10 AN EMBARRASSING LEGACY OF UNDER-REPRESENTATION ON JURIES Aboriginal persons resident on-reserve were ... underrepresented on the Kenora jury roll by between 17.4 and 27.7 percentage points. ple in the off-reserve municipal population of the district, as well as to 600 on-reserve residents. The response rate for on-reserve questionnaires was 10% (60 questionnaires); 27.7% were returned by the post office as undeliverable, and there was no response received for 62.3%. The 2008 Kenora jury roll consisted of 699 potential jurors, of which 29 were on-reserve residents, yielding an on-reserve representation rate of 4.1%. Estimates of the proportion of the adult population of Kenora District that resides on-reserve range from 21.5% to 31.8%. Aboriginal persons resident onreserve were thus underrepresented on the Kenora jury roll by between 17.4 and 27.7 percentage points. The State’s Belated and Reluctant Response to Public Scrutiny Mr. Kokopenace’s trial proceeded in 2008, and the jury rendered a verdict of guilty on the lesser included offence of manslaughter in mid-June 2008. Sentencing submissions were scheduled for late September 2008. In mid-September 2008, Mr. Kokopenace’s trial counsel learned for the first time of irregularities in the composition of the Kenora jury roll, relating to the underrepresentation of on-reserve residents. This information had become publicly available as a result of efforts by counsel for the Nishnawbe Aski Nation (NAN) to ensure an appropriately representative jury in the context of an inquest into two deaths that had occurred at Kashechewan First Nation. In response, the coroner’s counsel produced an affidavit sworn by Rolanda Peacock, the Acting Supervisor of Court Operations for Kenora District, which attested to the process by which the Kenora roll was assembled, including the use of INAC lists from 2000 for many First Nations. This information had not previously been publicly available, and differed substantially from the evidence that had emerged in the 1993 challenge in Fiddler. When he became aware of this new information, Mr. Kokopenace’s trial counsel arranged for an in-chambers conference, in which he advised of his intention to seek a mistrial as a result of non-compliance with the Juries Act. Crown counsel took the position that the trial judge was functus officio, as the jury had dispersed. 12 Justice Stach agreed, and declined to adjourn the sentencing to hear the mistrial application. Mr. Kokopenace’s trial counsel did not pursue the mistrial application, as he was satisfied that the proper forum for the determination of the jury composition issues was the Court of Appeal. Public concerns about the adequacy of the state’s efforts to ensure jury representativeness in the north continued to be raised, including in the context of two coroners’ inquests scheduled to commence in late 2008 in Thunder Bay. Neither the coroner’s counsel nor MAG were willing to provide any information about whether the problems mentioned in the Peacock affidavit had also affected the composition of the Thunder Bay jury roll. NAN sought summonses to compel the CSD Director of Court Operations for the Northwest Region to testify about the preparation of the roll. At the urging of MAG, both coroners refused this request. Applications for judicial review of the coroners’ refusals to issue the requested summonses were dismissed by the Divisional Court. 13 The Court of Appeal granted leave to appeal, and argument was heard in September 2010. Meanwhile, Mr. Kokopenace’s appeal proceeded. Disclosure was requested in respect of the jury composition issue, but was initially denied by the Crown, on the bases that the requested records were in the possession of an alleged third party (the CSD) and that they were irrelevant, as the decision in Roach 14 precluded the jury composition issue from being raised on appeal. The appeal was therefore bifurcated, to permit the non-jury grounds, the Roach application and the disclosure application to be heard first. 15 In March 2011, prior to the hearing of the first part of the Kokopenace appeal, the Court of Appeal rendered its decision concerning the Thunder Bay coroners’ inquests. Justice Laskin on behalf of the Court concluded in Pierre v. McRae that the Peacock affidavit was sufficient to raise serious questions about the representativeness of the Thunder Bay jury roll, and noted that “[m]y concern about the representativeness of the jury roll in the District of Thunder Bay is fuelled by the unwillingness of either the coroners or Mr. Gordon [CSD Director of Court Operations for the Northwest Region] to be forthcoming about how the roll was established.” 16 The Court ordered new inquests, with hearings to be held “about the establishment of the jury roll in the District of Thunder Bay, and especially about the efforts to comply with s. 6(8) of the Juries Act and the results of those efforts.” 17 Following the release of Pierre v. McRae, the Crown reconsidered its position in the Kokopenace appeal, and agreed to make disclosure concerning the jury composition issue. Voluminous fresh evidence, a small portion of which is summarized above, was assembled through affidavits and cross-examinations in the latter part of 2011 and early 2012. During the same period, the coroners’ hearings arising from the Court of Appeal’s decision in 10 FOR THE DEFENCE • VOL. 34 • NO. 3
For the Defence_34-3_Layout 1 13-08-16 10:40 AM Page 11 AN EMBARRASSING LEGACY OF UNDER-REPRESENTATION ON JURIES While the purpose and value of jury representativeness has been articulated in a solid body of Canadian appellate caselaw, Kokopenace is the first case to consider the content of the right and of the state’s corresponding obligation. Pierre v. McRae proceeded in Thunder Bay. 18 In addition, in August 2011, the Attorney General named the Honourable Frank Iacobucci to conduct a systemic review and report on relevant legislation and processes for including First Nations persons living on reserve on jury rolls. 19 The Iacobucci Report was released in February 2013, 20 while the Kokopenace appeal was under reserve, and was received as additional fresh evidence in the appeal. The fresh evidence assembled on the Kokopenace appeal thus covered the period leading up to the creation of the 2008 roll from which Mr. Kokopenace’s jury was selected, as well as subsequent years when the issue of jury representativeness attracted significantly more attention. The parties’ positions regarding the conclusions to be drawn from this fresh evidence were diametrically opposed. Mr. Kokopenace argued that the state had failed to satisfy the standard of reasonable diligence required under s. 6(8) and the Charter, as the record demonstrated a pattern of persistent inattention at provincial levels, as well as significant errors in terms of local practice and provincial policy. For its part, the Crown argued that although some “understandable human error” occurred along the way, the state had met its obligations to ensure representativeness in relation to the 2008 jury roll. In its submissions to the Court of Appeal, the Crown also urged the Court to take into account the results of its more recent efforts, subsequent to 2008. These efforts, the Crown argued, demonstrated that achieving better inclusion of on-reserve residents was a complex and sensitive task, and that the causes of the problem were still unknown or had only recently been uncovered. In this regard, it was noted that the results from the most recent s. 6(8) efforts indicated that onreserve response rates did not improve when newer lists were used. If better practices and more consistent attention would not in fact have yielded a different result in terms of the jury roll, the argument continued, why should Mr. Kokopenace get a new trial? The New Standard for the Right to a Representative Jury While the purpose and value of jury representativeness has been articulated in a solid body of Canadian appellate caselaw, Kokopenace is the first case to consider the content of the right and of the state’s corresponding obligation. Goudge, LaForme, and Rouleau JJ.A. each wrote separate, lengthy judgments, but Justice LaForme’s analysis with respect to the applicable legal test drew agreement from all members of the Court. 21 The parties in Kokopenace had proposed two very different tests. Mr. Kokopenace advanced a three-element test, based upon the approach developed in US jurisprudence. 22 First, the group alleged to be excluded must be distinctive in a sense relevant to the representative nature of the jury, having regard to the purposes of the representativeness guarantee. Second, the representation of the group in question on the jury roll must be shown not to be fair and reasonable in comparison to the group’s representation in the community. Third, this under-representation must be attributable to the jury selection process, in that the exclusion is due to or exacerbated by factors or circumstances for which the jury selection system properly bears responsibility. It was argued that the test should respond to the degree of substantive non-representativeness that is experienced in practice: when systemic underrepresentation of a distinctive group has been or ought to have been identified, greater efforts by the state should be required, and less tolerance should be extended to official actions or inactions that compound the non-representative nature of the roll. The Crown’s proposed test was far simpler. The Crown argued that the state’s constitutional obligation in relation to the creation of the jury roll was satisfied if reasonable efforts were made to access and use a broad based list of potential jurors from the across the community. Under the Crown’s approach, the constitutional right was coextensive with the sheriff’s statutory obligation under s. 6(8), 23 and the outcome of the jury roll creation process in terms of the actual representativeness of the roll was irrelevant. The Court ultimately articulated its own test. The Appellant’s proposed test was rejected on the basis that it focussed too heavily on the make-up of the jury roll that results from the state’s process, while the Crown’s test was rejected because it confined the state’s obligations to the list stage, and failed to recognize the state’s role in sending jury notices and in facilitating delivery and receipt of the notices and the responses to them. 24 Justice LaForme summarized the state’s constitutional obligation as follows: [T]he question posed is whether in the process of compiling the jury roll, Ontario made reasonable efforts to seek to provide a fair opportunity for the distinctive perspectives of Aboriginal onreserve residents to be included, having regard to all the circumstances and keeping in mind the objective served by the representativeness requirement. FOR THE DEFENCE • VOL. 34 • NO. 3 11
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