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For the Defence_34-3_Layout 1 13-08-16 10:40 AM Page 12 AN EMBARRASSING LEGACY OF UNDER-REPRESENTATION ON JURIES The reasonable efforts standard is a continuing one. If, as time passes, further steps that are reasonably available are needed to provide the fair opportunity to be included, they must be taken. 25 The Charter standard for jury representativeness articulated by the Court is not tied to or limited by the statutory requirements of the Juries Act. This is significant, as the fresh evidence adduced in Kokopenace revealed that [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 on-reserve residents to be included, having regard to all the circumstances and keeping in mind the objective served by the representativeness requirement. the bulk of the state’s efforts in response to the underrepresentation of on-reserve residents had since 2008 been directed to ensuring compliance with s. 6(8), by obtaining updated lists from First Nations, sending out a higher number of s. 6(8) jury questionnaires, and ensuring that these efforts were fully documented. Under the Charter standard set by the Court of Appeal, such efforts, while necessary, are by no means sufficient. In order to meet the reasonableness standard set by the majority in Kokopenace, the state will also have to take steps to address the problems relating to delivery of jury questionnaires to on-reserve residents and low response rates from on-reserve residents. “Reasonable Efforts” and “Fair Opportunity” Both Justices LaForme and Goudge rejected the Crown’s argument that the state had made reasonable efforts to ensure the inclusion of on-reserve residents in the Kenora jury roll. Justice LaForme summarized his assessment of the state’s efforts as follows: Given what the state knew and ought to have known about the problem, the validity of its claim to reasonable efforts in the circumstances is undermined. The integrity of the process was fundamentally compromised by the inattention paid by the state to a known and worsening problem, year after year. .. In the end, I have considered such things as what the state did and did not do, what it knew before engaging in efforts, what it learned about the efficacy of those efforts, and any resulting effects. In this case, what the state knew or ought to have known was considerable; what the state did in response was very little. 26 Justice Goudge’s evaluation was equally blunt and unfavourable: [The state’s] constitutional obligation required it to make reasonable efforts to facilitate delivery of the questionnaires. While there may be many reasons that do not involve the state for questionnaires not reaching their intended recipients, there are clearly steps the state could have taken to make successful delivery more likely, beginning with a search for the cause or causes and what the state might do to assist. ... It is sufficient to repeat that the state left the serious challenge of low response rates with a junior employee. Through her, the state response, repeated year after year up to and including the 2008 jury roll can only be described as a failure. No attempts to engage with Aboriginal leaders appear to have been undertaken to determine the causes of prior response rates or what other ameliorative efforts might be undertaken by the state to encourage responses. I do not think that a failed response, coupled with a failure to explore other steps the state might have taken to help, can be said to constitute the reasonable efforts required of the state to address this problem and do what it reasonably could to provide Aboriginal on-reserve residents with a fair opportunity to have their distinctive perspectives included in the 2008 jury roll. The challenge of low response rates was serious. It required more from the state. 27 ... the reasonableness of Ontario’s efforts was to be judged in light of the Crown’s special relationship with Aboriginal peoples. Justice LaForme’s critical analysis of the state’s knowledge and efforts in relation to the problem of Aboriginal jury underrepresentation is rooted in two contextual factors: the Crown’s special relationship with Aboriginal peoples, and the state’s knowledge of the estrangement of Aboriginal people from the justice system. In his concurring reasons, Justice Goudge expressly noted his agreement regarding the relevance of these factors. 28 First, Justice LaForme held that the reasonableness of Ontario’s efforts was to be judged in light of the Crown’s special relationship with Aboriginal peoples. Given that Ontario has chosen to implement the right to a representative jury through a statutory mechanism that treats Aboriginal on-reserve residents differently, the honour of the Crown — the Crown’s over-arching 12 FOR THE DEFENCE • VOL. 34 • NO. 3
For the Defence_34-3_Layout 1 13-08-16 10:40 AM Page 13 AN EMBARRASSING LEGACY OF UNDER-REPRESENTATION ON JURIES ... Ontario’s efforts in relation the problem of underrepresentation in the Kenora jury roll had to be viewed in light of the fundamental estrangement of Aboriginal persons from the criminal justice system. obligation of honourable dealing in relations with Aboriginal peoples 29 — is engaged and informs the assessment of the constitutional sufficiency of Ontario’s conduct. 30 This invocation of the principle of the honour of the Crown in relation to an individual Charter right in the criminal justice context is unprecedented. Second, Justice LaForme observed that Ontario’s efforts in relation the problem of underrepresentation in the Kenora jury roll had to be viewed in light of the fundamental estrangement of Aboriginal persons from the criminal justice system. This estrangement manifests in the overrepresentation of Aboriginal persons in Canadian prisons, and is rooted in an attitude of discrimination that pervades the administration of justice. 31 Gladue and Ipeelee direct the judiciary to take judicial notice of how the history of colonialism continues to affect Aboriginal peoples in their interaction with the criminal justice system; 32 the majority decisions in Kokopenace extend this imperative beyond the individualized sentencing context, applying it to assess MAG’s knowledge and efforts in relation to the systemic issues affecting jury participation by Aboriginal peoples. The specific findings of Justices LaForme and Goudge regarding the state’s efforts are shaped by these important contextual factors. While their assessments differed in many respects, the points upon which they were in agreement provide some important guidance. In particular, both Justice LaForme and Justice Goudge noted that in keeping with the special relationship between the Crown and Aboriginal people, Ontario was required to do more than rely on the efforts of a single, junior member of the public service in a local court office. Both found that the state’s approach — involving general inattention, combined with virtually total delegation of its responsibilities to local CSD workers — could not satisfy the reasonable efforts standard. Rather, Ontario ought to have engaged at a government-to-government level with First Nations governments and political organizations, as a first step in the necessary efforts to determine why response rates were so low and what the state might do to help. Moreover, given what the state knew or ought to have known, such efforts ought to have begun far earlier than they did. 33 The analysis and conclusions of the majority in Kokopenace compel a far more concerted and multi-faceted response than the state has undertaken to date in relation to Aboriginal participation in the jury system, and echo the recommendations arising from the Iacobucci Review. It remains to be seen whether the Crown will seek to appeal the Court of Appeal’s decision in Kokopenace, or whether it will instead begin the real work that is required. Jessica Orkin practices criminal, aboriginal and constitutional law with Sack Goldblatt Mitchell LLP in Toronto. She was counsel to Clifford Kokopenace in the Court of Appeal, along with Delmar Doucette and Paul Burstein. NOTES: 1 R. v. Sherratt, 1991 CarswellMan 282, 1991 CarswellMan 763, 3 C.R. (4th) 129, 63 C.C.C. (3d) 193 at 204 [C.C.C.] (S.C.C.). 2 R. v. Church of Scientology, 1997 CarswellOnt 1565, 7 C.R. (5th) 267, 116 C.C.C. (3d) 1 at 63 [C.C.C] (Ont. C.A.), leave to appeal refused 122 C.C.C. (3d) vi, 51 C.R.R. (2d) 376 (note) (S.C.C.). 3 Juries Act, R.S.O. 1990, c. J.3. For criminal jury trials in Ontario, the requirements of the Juries Act are incorporated by s. 626 of the Criminal Code. 4 Sherratt, supra note 1 at 204. 5 R. v. Kokopenace, 2013 CarswellOnt 7938, 2013 ONCA 389 (Ont. C.A.) (“Kokopenace 2013”). 6 Kokopenace 2013, ibid at para. 207 (per LaForme J.A.), at para. 276 (per Goudge J.A.). 7 The facts set out in this section are drawn from the fresh evidence assembled in the Kokopenace appeal; many of these facts are also reflected in the Court of Appeal’s judgment. 8 INAC is now known as Aboriginal Affairs and Northern Development Canada (AANDC). 9 Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CarswellNat 663, 1999 CarswellNat 664, [1999] 2 S.C.R. 203 (S.C.C.), reconsideration refused 2000 CarswellNat 2393, 2000 CarswellNat 2394 (S.C.C.). 10 Indian Act, R.S.C. 1985, c. I-5, s. 77(1). 11 R. v. Fiddler, 1994 CarswellOnt 81, 30 C.R. (4th) 333, 22 C.R.R. (2d) 82 at 101 (Ont. Gen. Div.). 12 R. v. Burke, 2002 CarswellOnt 1970, 2002 CarswellOnt 1971, 2 C.R. (6th) 1, [2002] 2 S.C.R. 857 (S.C.C.) at para. 68-70, 73-77 [S.C.R.]; R. v. Halcrow, 2008 CarswellAlta 1269, 94 Alta. L.R. (4th) 1, 236 C.C.C. (3d) 363 at para. 24-33 (Alta. C.A.), leave to appeal refused 2009 CarswellAlta 305, 2009 CarswellAlta 306 (S.C.C.); R. v. Henderson, 2004 CarswellOnt 4169, 26 C.R. (6th) 341, 189 C.C.C. (3d) 447 (Ont. C.A.) at para. 29-39 [C.C.C.], leave to appeal refused 2005 CarswellOnt 2733, 2005 CarswellOnt 2734, [2005] G.S.T.C. 122 (S.C.C.), reversed 2002 CarswellOnt 3896, [2003] G.S.T.C. 2 (Ont. S.C.J.); R. v. Hobbs, 2010 CarswellNS 426, 257 C.C.C. (3d) 411 (N.S. C.A.) at para. 11 [C.C.C.], notice of appeal 2010 CarswellNS 623 (S.C.C.), FOR THE DEFENCE • VOL. 34 • NO. 3 13
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