R v Kokopenace: Missed Opportunity for Action

Overrepresented in Jails, Underrepresented in Juries

Since the 1970s, Grassy Narrows First Nation reserve has become synonymous with mercury poisoning and the associated health effects. By any measurement, the residents of the reserve have had a rough deal handed to them. In 2007, Grassy Narrows was also the site of a murder, the details of which are not particularly noteworthy. A trial took place in Kenora in 2008 and Clifford Kokopenace, a resident of Grassy Narrows, was convicted of manslaughter. During the trial, it emerged that, not only were there no on-reserve Aboriginal people on the jury that convicted Mr. Kokopenance, but only 4.1% of the jurors on the jury roll for the district were of Aboriginal descent.

Mr. Kokopenace’s lawyers appealed. The argument was that his s.15 and ss. 11(d) and 11(f) Charter rights were violated as a result of the lack of Aboriginal representation on the jury roll. The Court of Appeal concluded that it was necessary to determine whether or not Ontario had made reasonable efforts to provide a fair opportunity for groups with distinctive perspective to be on the jury (R v Kokopenace, 2013 ONCA 389, para 12). The majority ruled that the Province had failed the test and Kokopenace’s s.11(d) and s.11(f) rights had been infringed. (For a more detailed summary, see Juan De Villa’s case comment here.)

In R v Kokopenace, 2015 SCC 28 [Kokopenace], the Supreme Court of Canada (“SCC”) was asked to outline the efforts that must be made by the Province to ensure the jury is representative. Five of the seven SCC justices found that despite the under-inclusion of individuals living on reserves in the District of Kenora jury rolls, Ontario had met its duty for a representative jury.

For the majority, representativeness is not about targeting a particular group for inclusion. The implication is that Ontario met its Charter obligations if it had made reasonable efforts at inclusion, and it could not be blamed if certain groups refused to answer the questionnaire. As such, Kokepenace sets a very low threshold for the State to demonstrate it made efforts to jury representation in light of issues with Aboriginal participation.

For the dissent, Justice Cromwell and Chief Justice McLachlin, the issue must be assessed in light of the State’s contribution to the problem and its capacity to address it.

Reasonable Efforts: What if Ontario Called and Nobody Came?

The right to be tried by a jury of one’s peers is enshrined in the Charter in two provisions: s. 11(d), right to a fair trial by an impartial tribunal; and s. 11(f), right to a trial by a jury. However, courts have consistently determined that there is no right to a jury of a particular composition, or one that is proportionate to the diverse groups in Canadian society (Kokopenace, para 39). The question before the SCC was defining the conditions to be met by the State in order to ensure representativeness. This is a question of process.

Ontario compiles its jury rolls based on municipal assessment from Municipal Property Assessment Corporation (“MPAC”). This process might work well in urban districts.  However, MPAC does not keep track of on-reserve residents. Information for reserves is obtained from the band/council or the federal government.

Compiling lists in the district of Kenora is exceptionally hard. Many of the First Nation reserves are fly-in communities where families do not even have individual mailboxes. Aboriginal resident responses, willingness to share lists, and faith in the justice system, have been declining for years. In 2011, Ontario appointed the Honorable Frank Iacobucci to study and make recommendations on the underrepresentation of Aboriginal on-reserve residents on juries. Iacobucci’s report, “First Nations Representation on Ontario Juries,” made clear that the problem extends beyond the difficulty of obtaining accurate information into the long history of Aboriginal estrangement and mistrust of the justice system.

The background of the fraught relationship between Aboriginal people and the State cannot be ignored when looking at the process of jury rolls. But this relationship is not reflected in the majority opinion. The justices outlined that the test to determine if the State satisfied an accused’s right to a representative jury must look at whether or not reasonable efforts were made to: (1) compile jury roll lists that draw from a broad cross-section of society; (2) use random selection from those sources; and (3) deliver jury notices to those who have been randomly selected (Kokepenace, para 40). The test places neither a particularly high burden on the State to fulfill its obligations, nor takes into account the special circumstances of Aboriginal people and their history of exclusion.

Reconciliation to a Flawed Jury Selection Process

In his majority opinion, Justice Moldaver points out that “the right to a representative jury is an entitlement held by the accused that promotes the fairness of his or her trial, in appearance and in reality. It is not a mechanism for repairing the damaged relationship between particular societal groups and our criminal justice system” (para 1). In appearance, the lack of Aboriginal jurors in any criminal proceeding, in a district where a substantial percentage of residents are Aboriginal, strikes at the very core of faith in the justice system.

Justice Cromwell in his dissent states that ignoring the State’s obligations at inclusion “is an affront to the administration of justice and undermines public confidence in the fairness of the criminal process” (para 195). This argument is especially important in light of the Crown-Aboriginal relationship.

For the dissent, the process of random selection should not allow the State to ignore significant departures from a properly conducted selection process (para 233). Emphasizing “fair opportunity” takes the focus off the State’s constitutional obligation to provide a representative jury (para 249). It is the State’s constitutional obligation not to breach Charter rights, not to just make “reasonable efforts” not to breach their rights (para 250).  For Justice Cromwell, the State is not only responsible for its purposeful conduct that limits rights but for the unintended effects of its acts (para 257). The dissent shows a much more nuanced understanding of the issue of representation of Aboriginals and the way that this issue can be addressed. The Province’s conduct must be assessed in light of its contribution to the problem of Aboriginal underrepresentation and their capacity to address the issue. This test puts the reality of the Aboriginal-Crown relationship at the forefront and addresses the practical concerns of the relationship.

It is About More Than Optics

Underlying the issue of jury representation is a history of racial discrimination and estrangement of Aboriginal communities from the administration of justice. The State has created the relationship of mistrust and hence should make an effort to mitigate the negative results of this relationship at every level, including jury selection.

In 2014, Ontario’s Chief Coroner made the decision to delay an inquest into the deaths of seven First Nations youth in Thunder Bay. He cited problems with the representation of First Nations people on the 2014 jury roll in the Thunder Bay district as a continued concerns. This situation is particularly tragic due to the fact the inquest is aimed at making recommendations on how to prevent future deaths. Hopefully, despite the low standard set by the SCC, Ontario will do more to increase the number of Aboriginal jurors. Indeed, Ontario has shown a willingness to move in this direction by moving to adopt some of the Iacobucci report recommendations.