SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen
Appellant
and
Clifford
Kokopenace
Respondent
- and -
Advocates’
Society, Nishnawbe Aski Nation,
David
Asper Centre for Constitutional Rights,
Women’s
Legal Education and Action Fund, Inc. (LEAF),
Native
Women’s Association of Canada,
Canadian
Association of Elizabeth Fry Societies and
Aboriginal
Legal Services of Toronto Inc.
Interveners
Coram: McLachlin C.J. and Rothstein, Cromwell, Moldaver,
Karakatsanis, Wagner and Gascon JJ.
Reasons
for Judgment:
(paras. 1 to 130)
Partially
Concurring Reasons:
(paras. 131 to 189)
Dissenting
Reasons:
(paras. 190 to 307)
|
Moldaver J. (Rothstein, Wagner and Gascon
JJ. concurring)
Karakatsanis J.
Cromwell J. (McLachlin C.J. concurring)
|
R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398
Her Majesty The Queen Appellant
v.
Clifford Kokopenace Respondent
and
Advocates’ Society, Nishnawbe Aski
Nation,
David Asper Centre for Constitutional
Rights,
Women’s Legal Education and Action Fund,
Inc. (LEAF),
Native Women’s Association of Canada,
Canadian Association of Elizabeth Fry
Societies and
Aboriginal Legal Services of
Toronto Inc. Interveners
Indexed as: R. v.
Kokopenace
2015 SCC 28
File No.: 35475.
2014: October 6; 2015: May 21.
Present: McLachlin C.J. and Rothstein, Cromwell, Moldaver,
Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for ontario
Constitutional
law — Charter of Rights — Right to a fair hearing — Right to trial by jury — Jury
representativeness — Definition — Aboriginal accused from First Nation reserve
convicted of manslaughter — Aboriginal on-reserve residents underrepresented on
jury roll from which jury selected for accused’s trial — What is the
appropriate legal test for representativeness — Whether state met its
representativeness obligation — Canadian Charter of Rights and Freedoms, s.
11 (d), (f).
Constitutional
law — Charter of Rights — Right to equality — Aboriginal on-reserve residents —
Aboriginal accused from First Nation reserve convicted of manslaughter — Aboriginal
on-reserve residents underrepresented on jury roll from which jury selected for
accused’s trial — Whether state violated right to equality of accused or of
Aboriginal on-reserve residents who were potential jurors — Canadian Charter of
Rights and Freedoms, s. 15 .
The
accused, an Aboriginal man from a First Nation reserve, was charged with second
degree murder and convicted of manslaughter after a trial by judge and jury.
Prior to sentencing, the accused’s counsel learned that there may have been
problems with the inclusion of Aboriginal on-reserve residents on the jury roll
for the District of Kenora, which raised questions about the representativeness
of the jury in the accused’s case. The trial judge refused to adjourn the
proceedings to hear a mistrial application, as he considered himself to be functus
officio. The representativeness issue was therefore raised for the first
time on appeal, where fresh evidence was introduced regarding the efforts made
by the province in preparing the jury rolls for the district. The Court of
Appeal was satisfied that the accused received a fair trial and that his jury
was not tainted by a reasonable apprehension of bias or partiality. However,
the majority held that the accused’s ss. 11 (d) and 11 (f) Charter
rights had been violated and ordered a new trial. All three judges rejected the
accused’s s. 15 Charter claims.
Held (McLachlin C.J.
and Cromwell J. dissenting): The appeal should be allowed. The
order for a new trial is set aside and the conviction is reinstated.
Per
Rothstein, Moldaver, Wagner and Gascon JJ.: Representativeness is an important
feature of our jury system, but its meaning is circumscribed. What is required
is a representative cross-section of society, honestly and fairly chosen. With
respect to the jury roll, representativeness focuses on the process used to
compile it, not its ultimate composition.
To
determine if the state has met its representativeness obligation, the question
is whether the state provided a fair opportunity for a broad cross-section of
society to participate in the jury process. A fair opportunity will be provided
when the state makes reasonable efforts to: (1) compile the jury roll using
random selection from lists that draw from a broad cross-section of society, and
(2) deliver jury notices to those who have been randomly selected. When this
process is followed, the jury roll will be representative and an accused’s Charter
right to a representative jury will be respected. This process aims to ensure
that there is an opportunity for individuals with varied perspectives to be
included on the jury, and it seeks to preclude systemic exclusion of segments
of the population.
Jury
representativeness is captured by both ss. 11 (d) and 11 (f) of the
Charter , but it plays a different role in these two guarantees.
The
role of representativeness under s. 11 (d) is limited to its effect on
independence and impartiality. A problem with representativeness that does not
undermine these concepts will not violate s. 11 (d).
The
parties in this case focused on the impartiality aspect of s. 11 (d).
Even if the petit jury does not appear to be biased, s. 11 (d) will be
violated if the process used to compile the jury roll raises an appearance of
bias at the systemic level. This may occur in two ways: the deliberate
exclusion of a particular group, or efforts in compiling the jury roll that are
so deficient as to create an appearance of partiality. However, where neither
form of conduct exists, a problem with representativeness will not violate s. 11 (d).
The
narrow way in which representativeness is defined in Canadian jurisprudence
means that impartiality is guaranteed through the process used to compile the
jury roll, not through the ultimate composition of the jury roll or petit jury
itself. A jury roll containing few individuals of the accused’s race or
religion is not in itself indicative of bias.
The
role of representativeness in s. 11 (f) is broader: it not only promotes
impartiality, it also legitimizes the jury’s role as the “conscience of the
community” and promotes public trust in the criminal justice system. This
broader role creates an important point of distinction: while a problem with
representativeness will not necessarily violate s. 11 (d), its absence
will automatically undermine the s. 11 (f) right to a trial by jury.
If
the state deliberately excludes a particular subset of the population that is
eligible for jury service, it will violate an accused’s right to a
representative jury, regardless of the size of the group affected. However, if
it is a question of unintentional exclusion, it is the quality of the state’s
efforts in compiling the jury roll that will determine whether an accused’s
right to a representative jury has been respected. If the state makes reasonable
efforts but part of the population is excluded because it declines to
participate, the state will nonetheless have met its constitutional obligation.
In contrast, if the state does not make reasonable efforts, the size of the
population that has been inadvertently excluded will be relevant. When only a
small segment of the population is affected, there will still have been a fair
opportunity for participation by a broad cross-section of society.
Representativeness
is not about targeting particular groups for inclusion on the jury roll. The
province was therefore not required to address systemic problems contributing
to the reluctance of Aboriginal on-reserve residents to participate in the jury
process. 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. An accused’s
representativeness right is not the appropriate mechanism for repairing the
damaged relationship between particular societal groups and our criminal
justice system more generally.
There
is no right to a jury roll of a particular composition, nor to one that
proportionately represents all the diverse groups in Canadian society.
Requiring a jury roll to proportionately represent the different religions,
races, cultures, or individual characteristics of eligible jurors would create
a number of insurmountable problems. There are an infinite number of
characteristics that one might consider should be represented, and even if a
perfect source list were used, it would be impossible to create a jury roll
that fully represents them. A proportionate representation requirement would
also do away with well-established principles, such as juror privacy and random
selection. In their place, we would be left with an inquisition into
prospective jurors’ backgrounds and a requirement that the state target
particular groups for inclusion on the jury roll. Such an approach would be
unworkable and would spell the end of our jury system as we presently know it.
The
province met its representativeness obligation in this case. The Court of
Appeal raised potential issues with three parts of the process — the lists, the
delivery, and the low response rates. Assessed in light of what was known at
the time and against the proper standard, the province’s efforts to include
Aboriginal on-reserve residents in the jury process were reasonable. Accordingly,
there was no violation of ss. 11 (d) or 11 (f) of the Charter .
Although the problem of the underrepresentation of Aboriginal on-reserve
residents in the jury system is a serious policy concern that merits attention,
the accused’s ss. 11 (d) and 11 (f) Charter rights are not
the appropriate vehicle to address this concern.
The accused’s
claims based on s. 15 of the Charter must also be dismissed. With
respect to his personal s. 15 claim, the accused has not clearly articulated a
disadvantage. With respect to his request for public interest standing to
advance a s. 15 claim on behalf of Aboriginal on-reserve residents who were
potential jurors, it cannot be granted because the accused may have different,
potentially conflicting interests from those of potential jurors.
Per
Karakatsanis J.: Fair trial rights under s. 11 of the Charter entitle an
accused person to an independent and impartial jury, drawn from a jury roll
that was created through a fair and neutral process of random selection from
broad-based source lists without deliberate or substantial exclusion. That
threshold was met in this case.
Representativeness
does not require a jury roll to mirror what a random sample from the community
would look like. Adopting such an identity-based approach would mark a
significant departure from both Canadian jurisprudence and experience. Jury
representativeness is aimed at ensuring that the jury can fulfill its important
roles as finder of fact and as the link connecting the judicial process to the
broader community. This right has a limited meaning in Canadian law. It does
not mean that the jury must reflect a cross-section of the community or its
different characteristics or perspectives. It instead describes the functioning
of the jury as an institution, in which laypersons are asked to contribute to
the criminal justice process and to provide the crucial link between that
system and the larger community. A jury acts on behalf of, and thus represents,
society. It is not rendered legitimate because its members reflect the
demographics of that community.
The
representative function of the jury is assured by the use of a fair and random
selection process, based on broadly inclusive source lists, that does not
deliberately or substantially exclude a subset of the community.
Representativeness requires more than reasonable efforts to use such a process.
It is the adequacy of the process used, rather than the quality of the state’s
efforts, which determines whether or not an accused’s Charter rights
were violated.
Ensuring
that source lists are drawn broadly from the community is critical, but
perfection is not required. Provinces must be given leeway to use a selection
process that is practical given the nature of the source lists generally
available. The state must also ensure that the mechanism used to contact
selected potential jurors does not undermine the broad-based and random quality
of the jury roll.
Unintentional
exclusion of some segments of the community from the jury roll does not amount
to a constitutional defect. Even the best source lists will still exclude some,
and that inadvertent exclusion may disproportionately apply to certain groups
of people. This alone is insufficient to establish a s. 11 Charter
violation. Because there are no perfect source lists, the state must be
accorded flexibility in choosing a source list. Such flexibility also
recognizes the substantial leeway that governments must be given to define the
boundaries of judicial districts, which are established for administrative and
practical purposes and are not required to ensure the representation of any particular
community or group.
However,
the state could, in exceptional circumstances, violate an accused’s Charter
rights by unintentionally but substantially excluding a segment of the
population. It may be that such substantial exclusion rises to a level that could
leave the jury unable to fulfill its representative function, thereby depriving
it of legitimacy in the eyes of society, and undermining its independence and
impartiality. Where the jury roll is so deficient that society would no longer
accept that a jury chosen from it could legitimately act on its behalf, an
accused’s rights protected by both ss. 11 (d) and 11 (f) of the Charter
will be violated.
Intentional
exclusion of certain segments of the population from the jury roll would render
it unconstitutional. A jury roll tainted by such deliberate exclusion cannot be
considered to be drawn fairly and randomly from the broader community, nor
could it be said to be independent and impartial. An accused will accordingly
succeed in her challenge if she establishes deliberate exclusion for the
purpose of restricting the representation of certain groups in the jury
process.
An
accused person’s fair trial rights do not require the state to encourage jury
participation among those who are unwilling to participate. Section 11 of the Charter
is not the source of any duty on the state to encourage participation, or to
repair damaged relationships that may cause some to disengage from the justice
system. It is simply beyond the scope of s. 11 to require that the state
address the reasons for this disaffection in order to uphold an accused
individual’s right to an impartial, independent and representative jury.
In
this case, the accused has not established that the jury roll from which his
jury was drawn was created in a manner that violated his rights under s. 11 of
the Charter . With respect to the s. 15 Charter claims, this is
not a proper case to determine whether the equality rights of Aboriginal
peoples are implicated as a result of their alienation from the justice system
and their underrepresentation on jury rolls.
Per
McLachlin C.J. and Cromwell J. (dissenting): Selecting a properly
constituted jury lays the foundation required for a fair trial and public
confidence in the administration of justice. Fundamental to our conception of a
properly selected jury is that it be drawn from a random sample of eligible
people in the district who, by virtue of that random selection, are
representative of its population. In Canada, there is no stand-alone Charter -protected
right to a representative jury. But representativeness, in the sense that the
jury roll is randomly selected from an appropriate pool of prospective jurors,
is a component of the Charter rights to a jury trial and to be tried by
an independent and impartial tribunal found at s. 11 (f) and (d).
Section 11 (f) of the Charter enshrines in our Constitution the
institution of the jury as a fundamental component of the Canadian criminal
justice system. Representativeness is an integral part of that component, and
is one of the fundamental characteristics of a properly constituted jury.
Representativeness, along with impartiality, is essential in order for the
institution of the jury to perform its function as the conscience of the
community and in order for s. 11 (f) to be meaningful and effective.
Representativeness is also one of the components which ensure that the jury is
an independent and impartial tribunal under s. 11 (d) of the Charter .
Thus, defects in the formation of the jury that affect its representative
character will be taken into account in order to determine whether there is a
breach of s. 11 (d). As it is guaranteed under s. 11 (d) and (f),
the right to representativeness of the jury roll is the right of persons
charged with an offence, not of particular groups or the community at large.
There is no corresponding right, under these provisions, of the community at
large or of any particular group to be included on a jury roll, jury array or
petit jury.
The
focus of representativeness is on whether the jury roll, from which jurors will
ultimately be selected, is as broadly representative of the community as would
a group of people selected at random within that community. Thus, random
selection is a proxy for representativeness. A representative jury roll is one
that substantially resembles the group of persons that would be assembled
through a process of random selection of all eligible jurors in the relevant
community. But random selection is only a good proxy for representativeness if
the pool of persons to whom a process of random selection is applied to
assemble the jury roll is itself broadly based within the relevant community.
In
order to achieve a representative jury roll, two things are necessary. First,
the lists from which random selection will be made must be substantially
representative of the district. The jury roll can only properly be
representative of the population of the district if the list of people to whom
notices may be sent is as complete and accurate as possible and is substantially
similar to a random selection among all potentially eligible jurors in the
district. Second, the group of eligible persons who return the questionnaires
must be substantially similar to a random sample of the list. This requires the
state to look at elements such as the proportion of notices and questionnaires
that are in fact received and factors which could affect the return rate. If
the group who in fact returns questionnaires does not substantially resemble a
random sample of the persons on the list, then the whole foundation of
representativeness is at risk because randomness can no longer serve as an
appropriate proxy for representativeness.
Allowing
random selection to be a proxy for representativeness is supported by both
practical and policy reasons. If representativeness in this context were given
a broader meaning, there could be endless debates about who and what needs to
be represented on the jury. Defining all of the relevant senses in which a jury
should be representative, let alone going about assembling a jury roll that was
representative in all those ways, would pose insurmountable practical problems
and would lead to serious intrusions into the privacy of prospective jurors.
These policy and practical considerations mean that we must not enlarge the
Crown’s disclosure obligations or expose potential jurors to intrusions into
their privacy. The practical effect of protecting jurors’ privacy is that an
accused will rarely be in a position to establish the under-representation of a
particular group other than by pointing to an inadequate list or some other
significant departure from the random selection principle.
A
flawed random selection may be demonstrated by showing faults in the process,
such as the omission of large numbers of eligible jurors from the roll. But
that is not the only way a departure from proper random selection may be shown.
The fact that the focus is on the random selection process does not mean that
the results of the process employed to compile the jury roll are irrelevant to
whether there has been an acceptable process of random selection. Results that
plainly show a significant departure from a properly conducted random selection
process should not be ignored.
The Charter
protects against interference by the state with guaranteed rights. In order to
establish a breach of the Charter , the claimant must therefore show not
only that there has been a limitation of his or her guaranteed rights but that
the limitation can be attributed to state action. The question is whether there
is a sufficient connection between the conduct of the state and the limitation
of the right such that the limitation can fairly be attributed to the state.
While the threshold of sufficient connection has been considered mainly in the
context of s. 7 of the Charter , a similar causal threshold has been used
in respect of other provisions of the Charter and under provincial human
rights legislation, and applies in the context of this case. The starting point
is not the state’s efforts to comply, but whether the jury roll was
representative. If the jury roll was not representative, the question then
becomes whether that failure is attributable to state action, namely whether
there is a sufficient connection between the limitation of the right and the
action — or inaction — of the state. 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. With respect to matters giving rise to the limitation of the right
that are wholly or substantially within the state’s capacity to address, the
connection is evident between the state action or inaction and the limitation
of the right in question. In such cases, a “reasonable efforts” test does not
reflect the nature of the state’s obligation: compliance with constitutional
rights is not optional or (subject to justified limitations) dependent on the
degree of effort required. Conversely, the state cannot be held responsible for
matters which have the effect of limiting guaranteed rights, but which the
state has no ability to address. With respect to matters falling somewhere
between those two types of situations, the answer to the question of whether
there is a sufficient connection between the limitation of the right and state
action will depend on the capacity of the state to address the matters giving
rise to the limitation and whether it has made reasonable efforts to do so.
This
case concerns a situation in which the jury roll was not representative because
its composition was a substantial departure from what random selection among
all potentially eligible jurors in the district would produce, in view of the
under-representation of Aboriginal on-reserve residents on the jury roll. Of
the four factors that contributed to the unrepresentative jury roll, two — the
lists and the delivery of jury notices — were the responsibility of the state
and complying with that responsibility was within its power. The other two — the
poor return rate of notices and Aboriginal disengagement from the criminal
justice system — were matters which the state had some capacity to address, but
it failed to make reasonable efforts to do so. Therefore, there is a sufficient
connection between state action and inaction and the lack of a representative
jury roll to find that there was a breach by the state of the accused’s right
to a representative jury roll as guaranteed under s. 11 (d) and (f)
of the Charter .
Determining
what is an appropriate remedy following the state’s failure to provide a
representative jury roll requires examination of all the circumstances,
including the nature of the breach of the accused’s rights and its effect on
public confidence in the administration of justice. The point in the
proceedings at which the issue is raised is also a relevant consideration.
Where, as here, the issue is raised for the first time after verdict, a
declaration that the accused’s rights were violated may be the appropriate
remedy absent the accused establishing that, in light of all the circumstances,
a new trial is the only way to restore public confidence in the administration
of justice. In this case, the Court of Appeal did not make any reversible error
in exercising its remedial discretion to order a new trial. The failure to
provide a representative jury roll undermined public confidence in the
administration of justice.
Cases Cited
By Moldaver J.
Referred
to: R. v. Fiddler, [1994] 4 C.N.L.R. 99; R. v. Gladue, [1999]
1 S.C.R. 688; R. v. Sherratt, [1991] 1 S.C.R. 509; R. v. Church of
Scientology (1997), 33 O.R. (3d) 65; R. v. Laws (1998), 41 O.R. (3d)
499; R. v. Kent (1986), 27 C.C.C. (3d) 405; R. v. Bradley (No. 2)
(1973), 23 C.R.N.S. 39; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R.
v. Brown (2006), 215 C.C.C. (3d) 330; Valente v. The Queen, [1985] 2
S.C.R. 673; R. v. Bain, [1992] 1 S.C.R. 91; R. v. Lippé, [1991] 2
S.C.R. 114; R. v. Williams, [1998] 1 S.C.R. 1128; R. v. Nahdee,
[1994] 2 C.N.L.R. 158; R. v. Kokopenace, 2011 ONCA 536, 107 O.R. (3d)
189; R. v. Butler (1984), 63 C.C.C. (3d) 243; R. v. Biddle,
[1995] 1 S.C.R. 761; Manitoba Metis Federation Inc. v. Canada (Attorney
General), 2013 SCC 14, [2013] 1 S.C.R. 623; Pierre v. McRae, Coroner,
2011 ONCA 187, 104 O.R.
(3d) 321.
By Karakatsanis J.
Referred
to: R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; R. v. Sherratt,
[1991] 1 S.C.R. 509; R. v. Biddle, [1995] 1 S.C.R. 761; R. v. Church
of Scientology (1997), 33 O.R. (3d) 65; Corbiere v. Canada (Minister of
Indian and Northern Affairs), [1999] 2 S.C.R. 203.
By Cromwell J. (dissenting)
R.
v. Barrow, [1987] 2 S.C.R. 694; R. v. Turpin, [1989] 1 S.C.R. 1296; R.
v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; R. v. Sherratt, [1991] 1
S.C.R. 509; R. v. Born with a Tooth (1993), 81 C.C.C. (3d) 393; R. v.
Williams, [1998] 1 S.C.R. 1128; R. v. Yumnu, 2012 SCC 73, [2012] 3
S.C.R. 777; R. v. Church of Scientology (1997), 33 O.R. (3d) 65; R.
v. Biddle, [1995] 1 S.C.R. 761; R. v. Kent (1986), 27 C.C.C. (3d)
405; R. v. Buckingham, 2007 NLTD 107, 221 C.C.C. (3d) 568; R. v.
Butler (1984), 63 C.C.C. (3d) 243; R. v. Parks (1993), 15 O.R. (3d)
324; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Find,
2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Yooya, [1995] 1 C.N.L.R. 166; R.
v. Teerhuis-Moar, 2010 MBCA 102, 222 C.R.R. (2d) 207; R. v. Pan,
2001 SCC 42, [2001] 2 S.C.R. 344; R. v. Nahdee, [1994] 2 C.N.L.R. 158; Pierre
v. McRae, Coroner, 2011
ONCA 187, 104 O.R. (3d) 321; Canada (Attorney
General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Kazemi Estate v.
Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; Symes v.
Canada, [1993] 4 S.C.R. 695; Quebec (Attorney General) v. A, 2013
SCC 5, [2013] 1 S.C.R. 61; R. v. Askov, [1990] 2 S.C.R. 1199; R. v.
Morin, [1992] 1 S.C.R. 771; Moore v. British Columbia (Education),
2012 SCC 61, [2012] 3 S.C.R. 360; R. v. W.E.B., 2014 SCC 2, [2014] 1
S.C.R. 34; R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6; Housen v.
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. O’Connor, [1995]
4 S.C.R. 411; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Ipeelee,
2012 SCC 13, [2012] 1 S.C.R. 433; Doucet-Boudreau v. Nova Scotia (Minister
of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Canada (Prime Minister)
v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; R. v. Regan, 2002 SCC 12,
[2002] 1 S.C.R. 297; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; Canada
(Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R.
v. Carosella, [1997] 1 S.C.R. 80; Morin v. The Queen (1890), 18
S.C.R. 407; McLean v. The King, [1933] S.C.R. 688; R. v. Bird,
[1984] 1 C.N.L.R. 122; R. v. Snow (2004), 73 O.R. (3d) 40; R. v.
Cameron (1991), 2 O.R. (3d) 633; R. v. Fiddler, [1994] 4 C.N.L.R.
99; Rojas v. Berllaque, [2003] UKPC 76, [2004] 1 W.L.R. 201; R. v. Ellis,
[2011] NZCA 90, [2011] 4 L.R.C. 515.
Statutes and Regulations Cited
Assessment Act, R.S.O. 1990, c. A.31, s.
15.
Canadian Charter of Rights and Freedoms,
ss. 1 , 7 , 11 , 15 , 24(1) , 32 .
Coroners Act, R.S.O. 1990, c. C.37.
Criminal
Code, R.S.C. 1985, c. C-46, ss. 629 , 630 , 631 , 632 , 633 , 634 to 638 , 639 to
642 , 644 .
Juries Act, R.S.O. 1990, c. J.3, ss. 2
to 4, 5, 6(1), (2), (5), (8), 8, 9, 12, 15 to 18.1, 19, 38(3).
Authors Cited
Black’s Law Dictionary, 10th ed. by
Bryan A. Garner, ed. St. Paul, Minn.: Thomson Reuters, 2014, “jury”.
Blackstone, William. Commentaries on the Laws of England,
Book III. Oxford: Clarendon Press, 1768.
Blackstone, William. Commentaries on the Laws of England, Book
IV. Oxford: Clarendon Press, 1769.
Brown, R. Blake. A Trying Question: The Jury in Nineteenth-Century
Canada. Toronto: University of Toronto Press, 2009.
Canada. Law Reform Commission. Working Paper 27. The Jury in
Criminal Trials. Ottawa: The Commission, 1980.
Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, vol.
2, 2nd ed. Aurora, Ont.: Canada Law Book, 1987 (loose-leaf updated December
2014, release 114).
Granger, Christopher. The Criminal Jury Trial in Canada, 2nd
ed. Scarborough, Ont.: Carswell, 1996.
Iacobucci, Frank. First Nations Representation on Ontario Juries:
Report of the Independent Review Conducted by The Honourable Frank Iacobucci.
Toronto: Ontario Ministry of the Attorney General, 2013.
Manitoba. Public Inquiry into the Administration of Justice and
Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba,
vol. 1, The Justice System and Aboriginal People. Winnipeg: The Inquiry,
1991.
APPEAL
from a judgment of the Ontario Court of Appeal (Goudge, LaForme and Rouleau JJ.A.),
2013 ONCA 389, 115 O.R. (3d) 481, 306 O.A.C. 47, 285 C.R.R. (2d) 77, 4 C.R.
(7th) 67, 299 C.C.C. (3d) 48, [2013] 4 C.N.L.R. 273, [2013] O.J. No. 2752 (QL),
2013 CarswellOnt 7938 (WL Can.), setting aside the accused’s conviction for
manslaughter and ordering a new trial. Appeal allowed, McLachlin C.J. and Cromwell
J. dissenting.
Gillian E.
Roberts, Deborah Calderwood and Michael Fawcett, for the appellant.
Jessica Orkin, Delmar Doucette, Andrew
Furgiuele
and Angela Ruffo, for the respondent.
Brian H.
Greenspan, Katherine Hensel and Promise Holmes Skinner, for the intervener the
Advocates’ Society.
Julian N.
Falconer, Julian Roy and Marc E. Gibson, for the intervener the Nishnawbe
Aski Nation.
Cheryl Milne and Kim Stanton, for the interveners the David
Asper Centre for Constitutional Rights and the Women’s Legal Education and
Action Fund, Inc. (LEAF).
Mary Eberts, for the interveners the Native
Women’s Association of Canada and the Canadian Association of Elizabeth Fry
Societies.
Christa Big Canoe and Jonathan Rudin, for the intervener the Aboriginal
Legal Services of Toronto Inc.
The judgment of Rothstein,
Moldaver, Wagner and Gascon JJ. was delivered by
Moldaver J. —
I.
Introduction
[1]
The right to be tried by a jury of one’s peers
is one of the cornerstones of our criminal justice system. It is enshrined in
two provisions of the Canadian Charter of Rights and Freedoms — the s.
11 (d) right to a fair trial by an impartial tribunal and the s. 11 (f)
right to a trial by jury. Yet despite the importance of this right, this is the
first time the Court has been called upon to determine what efforts the state
must make to ensure that a jury is “representative” of the community. In turn,
this raises 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, it must be
remembered 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 more generally
— and it should not be tasked with that responsibility.
[2]
In my view, representativeness focuses on the
process used to compile the jury roll, not its ultimate composition.
Consequently, the state satisfies an accused’s right to a representative jury
by providing a fair opportunity for a broad cross-section of society to
participate in the jury process. A fair opportunity will be provided when the
state makes reasonable efforts to: (1) compile the jury roll using random
selection from lists that draw from a broad cross-section of society, and (2)
deliver jury notices to those who have been randomly selected. When this
process is followed, the jury roll will be representative and the accused’s Charter
right to a representative jury will be respected.
[3]
I am satisfied that there were no Charter violations
in this case. I would accordingly allow the appeal.
II.
Background
[4]
Clifford Kokopenace is an Aboriginal man from
the Grassy Narrows First Nation reserve in the District of Kenora. He was
charged with second degree murder for stabbing his friend to death during a
fight. After a trial by judge and jury in 2008, he was acquitted of murder but
convicted of the lesser included offence of manslaughter. Prior to sentencing,
his trial counsel learned that there may have been problems with the inclusion
of Aboriginal on-reserve residents on the jury roll for the District of Kenora,
which raised questions about the representativeness of the jury in Mr.
Kokopenace’s case. The trial judge, Stach J., refused to adjourn the
proceedings to hear a mistrial application, as he considered himself to be functus
officio. The representativeness issue was therefore raised for the first
time on appeal to the Ontario Court of Appeal.
[5]
Before the Court of Appeal, Mr. Kokopenace
alleged that his jury was derived from a jury roll that did not adequately
ensure the inclusion of Aboriginal on-reserve residents.
Because of the allegedly inadequate process used to prepare the jury roll, he
argued that his rights under ss. 11 (d), 11 (f), and 15 of the Charter
were violated. Voluminous fresh evidence was introduced regarding the
efforts Ontario had made, over a period of several years, in preparing the jury
rolls for the District of Kenora.
[6]
The Court of Appeal issued three sets of
reasons. Two of the judges — LaForme and Goudge JJ.A. — held that Mr.
Kokopenace’s ss. 11 (d) and 11 (f) rights had been violated and ordered
a new trial on that basis. In dissent, Rouleau J.A. held that Ontario had made
reasonable efforts to include Aboriginal on-reserve residents in the jury roll.
He therefore would have dismissed the appeal. All three judges rejected Mr.
Kokopenace’s s. 15 claims.
[7]
The Crown now appeals to this Court, and Mr.
Kokopenace renews his s. 15 claims.
III.
The Jury Selection Process in the District of
Kenora
A.
Overview of the Jury Selection Process in
Ontario
[8]
To be eligible to serve as a juror in Ontario,
individuals must be at least 18 years of age and must be Canadian citizens who
reside in Ontario. There are several additional limitations on eligibility,
including exemptions related to an individual’s profession or prior criminal
record: Juries Act, R.S.O. 1990, c. J.3, ss. 2 to 4. Drawing from the
pool of eligible individuals, jury selection takes place in three stages:
1. The preparation of the jury roll,
composed of individuals who are randomly selected from the community in each
judicial district throughout Ontario.
2. The selection of names from the
jury roll to make up the jury panels (also known as arrays) for court sittings.
Jury panels act as the pools from which trial juries are selected.
3. The selection, from the jury
panel, of the trial jury (also known as the petit jury) that will serve on a
particular criminal trial.
[9]
In Ontario, the first two stages are governed by
the Juries Act and the third stage is governed by the Criminal Code,
R.S.C. 1985, c. C-46 . The respondent’s challenge is to the first stage of the
process — the preparation of the jury roll.
[10]
The Juries Act requires that a jury roll
be prepared by provincial officials each year for every judicial district in
Ontario. The same roll is used for all trials in a district in a given calendar
year. Under s. 6(2) of the Juries Act, Ontario compiles its jury rolls
based on municipal assessment lists obtained from the Municipal Property
Assessment Corporation (“MPAC”). Enumeration by MPAC occurs once every three
years, and the MPAC lists are not updated between enumerations.
[11]
MPAC data does not capture individuals who
reside on First Nations reserves. For that reason, s. 6(8) of the Juries Act
provides a separate process for including on-reserve residents in the jury
rolls. Section 6(8) directs:
In the selecting
of persons for entry in the jury roll in a county or district in which an
Indian reserve is situate, the sheriff shall select names of eligible persons
inhabiting the reserve in the same manner as if the reserve were a municipality
and, for the purpose, the sheriff may obtain the names of inhabitants of the
reserve from any record available.
[12]
The aim of both ss. 6(2) and 6(8) is that each
municipality or reserve be sent the number of notices that is approximately
proportionate to that municipality or reserve’s percentage of the total
population in the judicial district.
[13]
In practice, the sheriff’s duties under s. 6(8)
are carried out by various provincial and local employees in each judicial
district. Staff in the Court Services Division (“CSD”) are responsible
for virtually the entire process of selecting on-reserve individuals for the
jury roll. They obtain lists of on-reserve residents for use in the jury
selection process, calculate the number of jury notices (also known as
questionnaires) that are required, randomly select the on-reserve individuals
who will receive notices, prepare the notices, and mail them to the selected
recipients. The Provincial Jury Centre (“PJC”) is responsible for providing
each CSD office with the number of questionnaires that is required for the
mailouts to the on-reserve population. The PJC receives the completed
questionnaires from the selected on-reserve individuals and then enters the
eligible names into the jury selection system, used to develop the jury roll.
B.
PDB #563 and the Lists Used for Section 6(8)
Purposes
[14]
PDB #563 was the policy directive from the
Ontario Ministry of the Attorney General that provided guidance to CSD staff on
the s. 6(8) process at the relevant time. It indicated that CSD staff should
•
ascertain, check, and confirm the reserves
located in their county or district;
•
attempt to obtain band electoral lists, or any
other accurate lists of residents, by writing letters, telephoning, or visiting
the reserves in the district;
•
calculate the number of questionnaires to be
sent to on-reserve residents;
•
randomly select the required number of
individuals to whom questionnaires were to be sent from the best possible list;
and
•
provide interim and final reports to the PJC at
certain points in the process.
[15]
PDB #563 encouraged staff to attempt to obtain
the best lists of on-reserve residents available. To this end, it directed
staff to seek band electoral lists “or any other accurate list of residents”.
[16]
PDB #563 also indicated that lists provided by
the federal government department known at the time as Indian and Northern
Affairs Canada (“INAC”) were not the best possible lists because they included
the names of band members who did not reside on the reserve. However, if CSD
staff were unsuccessful in their attempts to obtain a better list from the
band, the general practice was to use the INAC lists. Until 2001, INAC
regularly provided its lists to Ontario for the purposes of s. 6(8). However,
in 2001, INAC stopped providing the CSD with band lists, ostensibly because of
privacy concerns. From that point on, CSD employees’ attempts to obtain lists
directly from the First Nations reserves became increasingly important, as the
INAC lists grew more outdated with each passing year.
C.
The Compilation of Jury Rolls in the District of
Kenora
[17]
The District of Kenora contains a large number
of reserves, which are associated with approximately 46 different First
Nations. The on-reserve adult population makes up between 21 to 32 percent of
the adult population of the district.
[18]
There has been a significant decline in the
rates of response to jury notices from on-reserve residents in the District of
Kenora over the years. In 1993, the return rate for completed jury
questionnaires in the district was approximately 33 percent for on-reserve
residents and 60 to 70 percent for off-reserve communities: R. v. Fiddler,
[1994] 4 C.N.L.R. 99 (Ont. Ct. (Gen. Div.)), at p. 114. Around that time, the
Kenora CSD office began including an additional letter with the jury notices
sent to on-reserve residents to help recipients understand the jury process.
Although the letter was written in English, a translation in Ojibway and
Oji-Cree syllabics was also enclosed. Despite the provision of this letter, the
response rate from on-reserve residents did not increase. By 2002, it had
dropped to 15.8 percent, and by 2008 (the year at issue in this appeal), it had
declined to 10 percent.
(1)
The Delivery of Jury Notices to On-Reserve
Residents in the District of Kenora
[19]
Many of the First Nations communities in the
District of Kenora are remote and are accessible only by air. In these
communities, individuals typically do not have mailboxes at their place of
residence. Some have a community mailbox or an individual box in the post
office. For other individuals, mail is held at the post office and they must
retrieve it from the postal clerk.
[20]
When jury notices are sent to on-reserve
residents, they are sent “General Delivery”. Mail delivered in this manner is
sent to the community post office, but not to individual or community postal
boxes. Post office employees then carry out a practice known as a “knowledge
sort”, in which they attempt to deliver the notices to the community mailbox or
post office boxes of the recipients. Postal clerks tend to be familiar with the
residents in these small communities and, if they know the recipient, they will
put the letter in the recipient’s community mailbox or post office box instead
of returning it to the sender. Where there is no listed postal box or the
postal clerks do not know the recipient, postal clerks put the mail aside and
cross-reference the name against the customer list in an attempt to determine
the correct postal box. Mail that is not claimed within 30 days and has not
been delivered to a community mailbox or post office box is typically returned
to the sender by the post office.
(2)
The Implementation of Section 6(8) in the
District of Kenora
[21]
During the time period relevant to this appeal,
the sheriff’s s. 6(8) duties in the District of Kenora were carried out by Ms.
Laura Loohuizen, the group leader in the local CSD office. Ms. Loohuizen became
involved in s. 6(8) work in 2001, at which time she was given the lists of
on-reserve residents used by her predecessor. She was provided with INAC lists
for 42 of the 43 reserves that she believed fell within the district. There was
no list for the 43rd reserve, Neskantaga/Lansdowne House.
[22]
Ms. Loohuizen was not provided with training
about the boundaries of the district or about how to carry out s. 6(8) work.
However, she made inquiries to the PJC about the process for obtaining updated
lists. In carrying out her work, she relied on the directions in PDB #563,
instructions from her supervisors in the CSD office, directives given by the
PJC, and advice provided by Stach J., a respected and long-serving judge of the
Ontario Superior Court of Justice in the District of Kenora. Although Ms.
Loohuizen relied on PDB #563, the interim and final reports it envisioned were
sometimes not completed — or if completed, failed to contain all the required
information. Fully completed reports would have detailed the steps taken to
obtain updated lists, the success of those efforts, and the number of
questionnaires sent to the reserves.
[23]
Ms. Loohuizen made repeated and escalating
efforts over the years to obtain updated lists from the reserves. However, she
had great difficulty securing cooperation from many of them and often had to
carry out her s. 6(8) work based on inaccurate or outdated lists.
D.
Efforts in 2007 for the Preparation of the 2008
Jury Roll
[24]
In 2007, for the first time, the PJC informed
Ms. Loohuizen of statistics showing the low rate of response for on-reserve
residents. The numbers indicated that in response to the 2006 mailouts (for the
2007 jury roll), the rate of return for on-reserve residents was 10.72 percent
compared to an off-reserve response rate of 56 percent. Of the questionnaires
that had been sent to on-reserve residents, 72 percent were not returned and 17
percent were returned by the post office as undeliverable — statistics that
were markedly worse than those for the off-reserve population.
[25]
Ms. Loohuizen communicated these results to
Stach J., who had provided advice on the s. 6(8) process from time to time, and
it was decided that the number of questionnaires to be sent to on-reserve
residents should be increased by almost 50 percent. Her superiors in the Kenora
CSD office also decided that Ms. Loohuizen would travel to several reserves in
the district to meet with band leadership to discuss jury representativeness
issues.
[26]
Also in 2007, Ms. Loohuizen inquired about the
boundaries of the District of Kenora. Her inquiry was apparently prompted by
questions that arose in relation to an upcoming coroner’s inquest. After making
these inquiries, she discovered that she had inadvertently been excluding two
reserves from her s. 6(8) efforts because she had not known that they fell
within the district. She also discovered that another reserve on her list,
Sandy Lake, had split in two, creating two separate communities. Consequently,
there were 46 reserves — not 43 — that should have been included in her s. 6(8)
work. She became aware of these errors too late to obtain lists for use in the
preparation of the 2008 jury roll. As she still had not succeeded in obtaining
a list for Neskantaga/Lansdowne House, that reserve was also excluded from the
jury roll process for 2008.
[27]
As a result of Ms. Loohuizen’s efforts, the 2007
mailouts for the 2008 jury roll were based on the following lists:
•
Band lists from 2006 for two First Nations
•
Band lists from 2007 for eight First Nations
•
INAC lists from 2000 for 32 First Nations
•
No lists for four First Nations
[28]
Ultimately, only 10 percent of the
questionnaires sent to on-reserve residents were returned, and only 5.7 percent
of on-reserve residents who returned the questionnaires were eligible to serve
as jurors. Mr. Kokopenace’s jury was selected from a jury panel of 175 jurors,
8 of whom were on-reserve residents. No on-reserve residents were selected for
Mr. Kokopenace’s petit jury.
E.
The Iacobucci Report and Efforts Made After 2008
[29]
Since 2008, Ontario has expanded its efforts to
include on-reserve residents in the jury selection process. The province has
updated its policies, provided formal training on s. 6(8) work, increased the
number of questionnaires sent to on-reserve residents, and started tracking
statistics about response and delivery rates for those questionnaires.
Significantly, in 2011, Ontario appointed the Honourable Frank Iacobucci as an
independent reviewer to study the issue of the underrepresentation of
Aboriginal on-reserve residents on juries and to make recommendations for
resolving the problem. The report detailing his findings was released in 2013,
while Mr. Kokopenace’s appeal was under reserve at the Court of Appeal: First
Nations Representation on Ontario Juries: Report of the Independent Review
Conducted by The Honourable Frank Iacobucci (2013) (“Iacobucci Report”).
The Iacobucci Report reveals that the problem with the underrepresentation of
on-reserve residents is deep-rooted and multi-faceted, and that it extends well
beyond the difficulty of obtaining accurate source lists. It explains that the
problem is linked to the long history of Aboriginal estrangement from the
justice system and the mistrust of that system that has resulted. Since the
report’s release, Ontario has begun implementing some of its recommendations.
IV.
The Decision of the Ontario Court of Appeal,
2013 ONCA 389, 115 O.R. (3d) 481
[30]
The Court of Appeal delivered three sets of
reasons. Both LaForme and Goudge JJ.A. concluded that Mr. Kokopenace’s ss. 11 (d)
and 11 (f) rights were violated; in contrast, Rouleau J.A. held that there
was no Charter violation. The court unanimously rejected Mr.
Kokopenace’s s. 15 claims.
[31]
All three judges accepted that the test to
determine whether Ontario had met its representativeness obligations was
whether it had made reasonable efforts to provide a fair opportunity for groups
with distinctive perspectives to be included in the jury roll. They held that
reasonable efforts must be made at each step of the process, including
compiling the lists, sending the notices, facilitating their delivery and receipt,
and encouraging responses.
[32]
The majority emphasized that the analysis of
Ontario’s efforts under s. 6(8) of the Juries Act must be guided by both
the honour of the Crown and the principles in R. v. Gladue, [1999] 1
S.C.R. 688. In its view, Ontario was required to consider the estrangement of
Aboriginal peoples from the justice system and to work with First Nations
governments to fashion a solution to the problem. According to the majority, it
was unreasonable for Ontario to delegate its s. 6(8) responsibilities to Ms.
Loohuizen, a junior public servant. Senior government officials were required
to engage with First Nations in a government-to-government process.
[33]
The majority also concluded that Ontario
improperly focused all of its attention on efforts to obtain updated lists. It
found that the low response rates required Ontario to investigate the causes of
the problem and to actively encourage responses from on-reserve residents.
Ontario’s failure to do so led the majority to conclude that Ontario had
ignored the problem and had failed to make reasonable efforts to provide a fair
opportunity for the inclusion of Aboriginal on-reserve residents. It followed
that Mr. Kokopenace’s rights under ss. 11 (d) and 11 (f) were
violated.
[34]
In terms of remedy, the majority was satisfied
that Mr. Kokopenace received a fair trial and that his jury was not tainted by
a reasonable apprehension of partiality or bias. However, the majority found
that the violations of ss. 11 (d) and 11 (f) “necessarily
undermine[d] public confidence in the integrity of the justice system and the
administration of justice” (para. 227). Consequently, it concluded that the
only effective remedy was a new trial.
[35]
In dissent, Rouleau J.A. found that Ontario’s
efforts were reasonable in light of what was known at the time. He emphasized
that at the time relevant to this appeal, everyone was under the impression
that the low response rates were caused by the outdated lists — indeed, the
problems with the lists were the main focus of Mr. Kokopenace’s arguments
before the Court of Appeal. It was only after the Iacobucci Report was released
that the complexity of the problem became clear. In his view, the majority’s
criticisms were misplaced because they were based on information that was
unknown to Ontario at the time.
[36]
Rouleau J.A. also concluded that the low
response rates did not mean that on-reserve residents had a reduced opportunity
to participate. In his view, the fact that on-reserve residents had declined
the invitation to participate did not lead to the conclusion that Ontario had
not provided an opportunity for their inclusion. Ontario’s constitutional
obligation did not require it to make all efforts or to make fruitless efforts:
it was only required to make reasonable efforts to extend an invitation to
participate. In his view, Ontario did so. He therefore found that there were no
violations of ss. 11 (d) or 11 (f).
[37]
With respect to the s. 15 claims, there were two
arguments before the court. First, Mr. Kokopenace sought public interest
standing to raise an equality argument on behalf of prospective jurors who were
on-reserve residents. Second, he claimed that his personal s. 15 rights had
been violated. The Court of Appeal unanimously rejected both claims. The court
held that it was not an appropriate case in which to grant public interest
standing and, with respect to Mr. Kokopenace’s personal s. 15 claim, that he
had provided no evidence that he suffered a disadvantage because of Ontario’s
actions. Consequently, neither claim could succeed.
V.
Issues
[38]
There are four issues before this Court:
1. How is representativeness defined
and how does it factor into ss. 11 (d) and 11 (f) of the Charter ?
2. Did Ontario meet its
representativeness obligation in this case?
3. Did Ontario violate the s. 15 rights
of Mr. Kokopenace or of Aboriginal on-reserve residents who were potential
jurors?
4. If Mr. Kokopenace’s Charter rights
were violated, what is the appropriate remedy?
VI.
Analysis
A.
How Is Representativeness Defined and How Does
It Factor Into Sections 11(d) and 11(f) of the Charter ?
(1)
Defining Representativeness
[39]
Representativeness is an important feature of
the jury; however, its meaning is circumscribed. What is required is a
“representative cross-section of society, honestly and fairly chosen”: R. v.
Sherratt, [1991] 1 S.C.R. 509, at p. 524. There is no right to a jury roll
of a particular composition, nor to one that proportionately represents all the
diverse groups in Canadian society. Courts have consistently rejected the idea
that an accused is entitled to a particular number of individuals of his or her
race on either the jury roll or petit jury: R. v. Church of Scientology
(1997), 33 O.R. (3d) 65 (C.A.), at pp. 120-21; R. v. Laws (1998), 41
O.R. (3d) 499 (C.A.), at pp. 517-18; R. v. Kent (1986), 27 C.C.C. (3d)
405 (Man. C.A.), at pp. 421-22; R. v. Bradley (No. 2) (1973), 23
C.R.N.S. 39 (Ont. S.C.), at pp. 40-41. As Rosenberg J.A. observed in Church
of Scientology, at p. 121, “[w]hat is required is a process that provides a
platform for the selection of a competent and impartial petit jury, ensures
confidence in the jury’s verdict, and contributes to the community’s support
for the criminal justice system.”
[40]
As this statement indicates, representativeness
is about the process used to compile the jury roll, not its ultimate
composition. To date, the jurisprudence has discussed two key features of the
jury roll process that ensure representativeness: the use of source lists that
draw from a broad cross-section of society, and random selection from those
sources (R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 20; Sherratt,
at p. 525; Church of Scientology, at p. 121). I would add a third
feature to this list, namely, the delivery of notices to those who have been
randomly selected. A jury roll is representative when these three features are
present, provided that the state has not deliberately excluded members of a
particular group. This process aims to ensure that there is an opportunity for
individuals with varied perspectives to be included on the jury: Church of
Scientology, at p. 122. It also seeks to preclude systemic exclusion of
segments of the population: ibid., at pp. 122-24.
[41]
The first feature — the use of source lists that
draw from a broad cross-section of society — aims to capture as many eligible jurors
in each district as possible. A perfect source list would capture all eligible
jurors and would therefore proportionately represent all eligible groups in the
district. However, the Charter does not mandate a proportionately
representative list, nor would such a requirement be feasible. Indeed, it would
be virtually impossible to find a source list that meets this requirement.
[42]
The second feature — random selection — focuses
on the manner in which individuals are selected from the source lists for inclusion
on the jury roll.
It ensures that everyone captured on the source lists has an equal chance of
being selected for the jury roll. Consequently, representativeness cannot
require a jury roll of a particular composition. This would necessitate a selection
process that inquired into prospective jurors’ backgrounds — a concept that is
incompatible with random selection. Indeed, no province requires that its jury
rolls proportionately represent the cultures, races, religions, or other
individual characteristics of its inhabitants. Requiring that a jury roll
proportionately represent the different religions, races, cultures, or
individual characteristics of eligible jurors would create a number of
insurmountable problems. As the Ontario Court of Appeal held in R. v. Brown
(2006), 215 C.C.C. (3d) 330, at para. 22:
There are an almost infinite number of
characteristics that one might consider should be represented in the petit
jury: age, occupation, wealth, residency, country of origin, colour, sex,
sexual orientation, marital status, ability, disability and so on. It would be
impossible to ensure this degree of representation in any particular jury.
[43]
Although these comments were made in the context
of a challenge to the composition of a petit jury, they are equally applicable
to the composition of the jury roll. Even if a perfect source list were used,
it would be impossible to create a jury roll that fully represents the
innumerable characteristics existing within our diverse and multicultural
society.
[44]
This conclusion is reinforced by the many
restrictions we accept on the representativeness of our jury rolls. First, a
jury roll is compiled for every judicial district, each of which is itself an
artificially drawn region. The population of a given district may not be at all
representative of Canada’s broader population or of the particular community
within that district where the offence was committed: Church of Scientology,
at p. 121. Second, limitations on juror eligibility result in the exclusion of non-citizens,
those convicted of criminal offences, and individuals practising certain
professions. Finally, in most provinces, the sheriff has the power to exempt
individuals from jury service if it poses a hardship. This typically results in
the exclusion of the self-employed, those living in remote areas, and
low-income individuals. All of these limits have long been accepted despite
their impact on representativeness.
[45]
The third feature — delivery — is
self-explanatory. In short, before the jury roll can be compiled, the state
must deliver notices to those who have been randomly selected in order to allow
them to respond. The adequacy of delivery must be assessed on the facts of each
case, bearing in mind the particular challenges that this undertaking presents.
[46]
Consequently, in defining representativeness as
it pertains to the jury roll, the focus is on the process, not the result. If
the state has used an adequate process, the jury roll will necessarily be
representative even if particular subsets of the population have few
individuals on the jury roll.
(2)
The Role of Representativeness Within Sections
11(d) and 11(f) of the Charter
[47]
Sections 11 (d) and 11 (f) of the Charter
provide:
11.
Any person charged with an offence has the right
. . .
(d)
to be presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal;
. . .
(f)
except in the case of an offence under military law tried before a military
tribunal, to the benefit of trial by jury where the maximum punishment for the
offence is imprisonment for five years or a more severe punishment;
Although
representativeness is captured by both ss. 11 (d) and 11 (f), it
plays a different role in these two guarantees, as I will discuss.
(a)
Section 11 (d)
[48]
Since s. 11(d) focuses on the
independence and impartiality of the tribunal, the role of representativeness
under this guarantee is necessarily limited to its effect on these concepts. A
problem with representativeness that does not undermine independence or
impartiality will not violate s. 11(d). The parties in this case focused
on the impartiality aspect of s. 11(d). Accordingly, I will limit my
comments to this concept.
[49]
To determine whether a tribunal is impartial,
the question is whether a reasonable person, fully informed of the
circumstances, would have a reasonable apprehension of bias: Valente v. The
Queen, [1985] 2 S.C.R. 673, at pp. 684-91; R. v. Bain, [1992] 1
S.C.R. 91, at pp. 101, 111-12 and 147-48. A tribunal must be impartial at both
the institutional and individual levels. Even if the petit jury does not appear
to be biased, s. 11(d) will be violated if the process used to compile
the jury roll raises an appearance of bias at the systemic level: R. v.
Lippé, [1991] 2 S.C.R. 114, at p. 140.
[50]
Representativeness is an important guarantor of
impartiality: R. v. Williams, [1998] 1 S.C.R. 1128, at para. 46. There
are two potential problems with representativeness that may impact on
impartiality. First, the deliberate exclusion of a particular group would cast
doubt on the integrity of the process and violate s. 11(d) by creating
an appearance of partiality: Church of Scientology, at p. 118. Second,
even when the state has not deliberately excluded individuals, the state’s
efforts in compiling the jury roll may be so deficient that they create an
appearance of partiality: see, e.g., R. v. Nahdee, [1994] 2 C.N.L.R. 158
(Ont. Ct. (Gen. Div.)). However, where neither form of conduct exists, a
problem with representativeness will not violate s. 11(d).
[51]
One important clarification about the
relationship between representativeness and impartiality is in order. The
narrow way in which representativeness is defined in Canadian jurisprudence
means that impartiality is guaranteed through the process used to compile the
jury roll, not through the ultimate composition of the jury roll or petit jury
itself. A jury roll containing few individuals of the accused’s race or
religion is not in itself indicative of bias.
[52]
My colleague Cromwell J. implies at para. 238 that
a petit jury drawn from a jury roll that does not include persons who share the
same characteristics as the accused — here, Aboriginal on-reserve residency —
will be less likely to detect and avoid the “often unconscious effects of
racism”. However, there is no empirical data to support the proposition that
jurors of the same race as the accused are necessary to evaluate the evidence
in a fair and impartial manner: Laws, at p. 516. The case at hand
attests to this. There has been no allegation of actual bias or partiality in
this case, and the Court of Appeal found that there was “no support in
the circumstances of this case” for a reasonable apprehension of bias or
partiality (para. 226). Moreover, there has already been a judicial finding
that Mr. Kokopenace received a fair trial: R. v. Kokopenace, 2011 ONCA 536, 107 O.R. (3d) 189.
[53]
Our criminal justice system has a strong
presumption of juror impartiality — and the jury selection process contains
numerous safeguards that are designed to weed out potentially biased
individuals and ensure that the jurors who are selected for the petit jury will
judge the case impartially: Find, at paras. 26 and 41-42; Williams,
at para. 47. Contrary to Cromwell J.’s assertion, these protections have never
hinged on the existence of a jury roll that proportionately represents the
various groups in our society. Although Canadian courts have held that the jury
roll must be representative, they have never held that it must be proportionately
representative, as my colleague suggests.
[54]
Several principles emerge from this discussion.
First, the link between representativeness and s. 11(d) is restricted to
the effect of representativeness on the impartiality of the tribunal. Second,
and by extension, a problem with representativeness does not automatically
translate into a s. 11(d) violation: one must always look at whether the
state’s conduct created an appearance of bias. Finally, representativeness
promotes impartiality through the process used to compile the jury roll, not
through its ultimate composition.
(b)
Section 11(f)
[55]
In contrast to its limited role in s. 11(d),
the role of representativeness in s. 11(f) is broader.
Representativeness not only promotes impartiality, it also legitimizes the
jury’s role as the “conscience of the community” and promotes public trust in
the criminal justice system: Sherratt, at pp. 523-25; Church of
Scientology, at pp. 118-20. Representativeness is thus a necessary
component of an accused’s s. 11(f) right to a jury trial.
[56]
To be able to act as the “conscience of the
community” as required by s. 11(f), the jury must be representative. For
the purposes of s. 11(f), the meaning of representativeness is the same
as it is under s. 11(d): it protects the accused’s right to an adequate
jury selection process.
[57]
Although both provisions incorporate the same
definition of representativeness, the broader role it plays in s. 11(f)
creates an important point of distinction: while a problem with
representativeness will not necessarily violate s. 11(d), the same
cannot be said about s. 11(f). Because representativeness is a key
characteristic of the jury, its absence will automatically undermine the s. 11(f)
right to a trial by jury. As this Court held in Sherratt, at p. 525:
The
perceived importance of the jury and the [s. 11(f)] Charter right
to a jury trial is meaningless without some guarantee that it will perform its
duties impartially and represent, as far as is possible and appropriate in the
circumstances, the larger community. Indeed, without the two characteristics
of impartiality and representativeness, a jury would be unable to perform properly
many of the functions that make its existence desirable in the first place.
[Emphasis added.]
[58]
For these reasons, a problem with
representativeness will violate s. 11(f) even if it is not so serious as
to undermine impartiality. That said, if a problem with representativeness does
undermine impartiality, it will violate both ss. 11(d) and 11(f).
(3)
The Legal Test for Representativeness
(a)
The Appropriate Test Focuses on the Process Used
to Compile the Jury Roll
[59]
Representativeness focuses on the adequacy of
the jury selection process. It does not require the state to ensure that any
particular perspective is represented on the jury roll, nor does it require the
state to ensure that its source lists proportionately represent all groups that
are eligible for jury duty. It follows that the test to determine whether the
state has complied with its representativeness obligation focuses on the
process used throughout jury selection as opposed to the ultimate composition
of the jury roll.
[60]
The Court of Appeal concluded that the test is
whether the state made reasonable efforts to provide a fair opportunity for
groups with distinctive perspectives to participate in the jury process. With
respect, I would frame the test differently. Shining the spotlight on “distinctive
perspectives” is problematic and, in my view, improperly focuses on who is
being included instead of the process for their inclusion. Moreover, it
raises thorny questions about what qualifies as a “distinctive perspective” and
what characteristics require representation — questions that are not helpful
when examining if the process was adequate.
[61]
As a result, I would reframe the test as
follows. To determine if the state has met its representativeness obligation,
the question is whether the state provided a fair opportunity for a broad
cross-section of society to participate in the jury process. A fair opportunity
will have been provided when the state makes reasonable efforts to: (1) compile
the jury roll using random selection from lists that draw from a broad
cross-section of society, and (2) deliver jury notices to those who have been
randomly selected. 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.
[62]
Before elaborating on the details of this
constitutional requirement, I pause to address my colleague Cromwell J.’s
critique of this standard. I should not be misunderstood. There is no question
that an accused is entitled, under the Charter , to a
representative jury. I take that as a given. In defining the state’s obligation
as I have, I am not proposing, as Cromwell J. suggests at para. 249, that an
accused is entitled to merely “a ‘fair opportunity’ to have a representative
jury”. Nor am I implying that the province need only “make ‘reasonable efforts’
not to [breach an accused’s Charter rights]” (para. 250). With respect,
Cromwell J.’s criticism is based on our differing views of what
representativeness means in Canadian law. Because I would focus on the process
used to compile the jury roll, the state’s efforts are necessarily important.
The reason Cromwell J. concludes that they are not is because he would define
representativeness in terms of the jury roll’s ultimate composition.
[63]
As for my colleague Karakatsanis J., I agree
with her conclusion that it is the process that determines whether an accused’s
right to a representative jury has been respected. However, I do not accept her
suggestion that the process can be measured against a standard of objective
adequacy. Rather, it is the quality of the state’s efforts that will determine
if the process is adequate. As the record shows, the compilation of jury rolls
is a complex exercise, and many of the factors bearing on the process are not
within the state’s control. For example, as I will discuss, Ontario was
entirely dependent on cooperation from the First Nations in order to obtain
adequate lists of their on-reserve residents. According to Karakatsanis J., if
the province fails to obtain adequate lists — even if that failure is due to
factors outside its control — there will be a violation of representativeness.
I cannot accept a test that would find a violation even when the province has
taken reasonable steps to compile the jury roll using random selection from
broad-based lists and to deliver the notices to those who have been randomly
selected.
[64]
Similarly, I cannot accept Cromwell J.’s
suggestion that the state must actively encourage responses or that, to this
end, the state is obliged to address the distressing history of estrangement
and discrimination suffered by Aboriginal peoples. There are good reasons why
the state’s representativeness obligation does not rise to this level and only
requires a fair opportunity for participation. 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 state to target a particular group for inclusion would
be a radical departure from the way the Canadian jury selection process has
always been understood.
[65]
In coming to this conclusion, I am in no way
suggesting that the state should not take action on this pressing social
problem. However, an accused’s representativeness right is not the appropriate
vehicle for this task. This right is held by the accused, not by societal
groups. And, because the focus of representativeness is on the process, not the
results, the state’s constitutional obligation is satisfied by providing a fair
opportunity to participate — even if part of the population declines to do so.
[66]
That said, if the state deliberately excludes a
particular subset of the population that is eligible for jury service, it will
violate the accused’s right to a representative jury, regardless of the size of
the group affected. It is self-evident that the state will not have made
reasonable efforts if it deliberately excludes part of the population.
Deliberate exclusion undermines the integrity of the justice system and cannot
be tolerated. However, if it is a question of unintentional exclusion, it is
the quality of the state’s efforts in compiling the jury roll that will
determine whether the accused’s right to a representative jury has been
respected. If the state makes reasonable efforts but part of the population is
excluded because it declines to participate, the state will nonetheless have
met its constitutional obligation. In contrast, if the state does not make
reasonable efforts, the size of the population that has been inadvertently
excluded will be relevant. A failure to make reasonable efforts in respect of a
small segment of the population will not undermine the overall
representativeness of the jury roll because there is no right to proportionate
representation. When only a small segment of the population is affected, there
will still have been a fair opportunity for participation by a broad
cross-section of society.
(b)
The Process for Raising a Challenge to the
Representativeness of the Jury Roll
[67]
In my view, if an accused intends to challenge
the representativeness of the jury roll, the appropriate time to do so is at
the outset of the trial. It is a waste of judicial time and resources to
conduct an entire trial only to have representativeness challenged after the
fact. Although not an exact parallel, I note that this accords with the typical
process for raising a challenge to a jury panel (also known as the array) under
s. 629 of the Criminal Code . In raising a challenge to the jury roll,
the accused should provide an evidentiary basis to show that the province has
not met its constitutional obligation. Nevertheless, I recognize that new
evidence pointing to serious concerns about the integrity of the jury roll
process may on occasion arise in the course of or after the trial. In such
cases, I do not foreclose the possibility that a challenge may still be raised:
see R. v. Butler (1984), 63 C.C.C. (3d) 243 (B.C.C.A.).
[68]
The intervener Advocates’ Society submits that,
in all cases, the Crown should be required to provide pre-trial disclosure
about the province’s efforts to meet its representativeness obligation. With
respect, I disagree. There will only be a basis to order such disclosure if the
trial judge is satisfied that there is an evidentiary foundation for the
concern. Absent such foundation, a request for disclosure on this issue amounts
to little more than a fishing expedition.
(c)
A Results-Based Test Must Be Rejected
[69]
With respect, I am unable to agree with the
results-based test proposed by my colleague, Cromwell J. He would require that
the group of individuals on the jury roll be “substantially similar” to a
random selection of eligible jurors (paras. 246-47). In other words, he would
afford an accused the right to a jury roll that is more or less proportionately
representative of the population of eligible jurors in the relevant judicial
district. In his view, the representativeness right is not concerned with
either the process or with the state’s efforts: he indicates that such factors
only become relevant when determining whether a breach of that right is
attributable to the state.
[70]
I cannot accept that an accused’s right to a
representative jury entails an entitlement to proportionate representation at
any stage of the jury selection process, including the preparation of the jury
roll. Indeed, the recognition of such a right would be unprecedented in Canada.
As I have explained, an accused has never been entitled to a jury roll of any
particular composition, much less one that proportionately represents the
broader population — and with good reason. Put simply, it would be unworkable
and would spell the end of the jury system as we presently know it. More than a
decade after the Charter was enacted, McLachlin J. (as she then was)
described the problems that would flow from a requirement of proportionate
representation. In her concurring reasons in R. v. Biddle, [1995] 1
S.C.R. 761, at paras. 56-58, she stated:
Gonthier
J., at p. 787, suggests that a jury must be “impartial, representative and
competent”. I agree that a jury must be impartial and competent. But, with
respect, the law has never suggested that a jury must be representative. For
hundreds of years, juries in this country were composed entirely of men. Are we
to say that all these juries were for that reason partial and incompetent?
To
say that a jury must be representative is to confuse the means with the end. I
agree that representativeness may provide extra assurance of impartiality and
competence. I would even go so far as to say that it is generally a good thing.
But I cannot accept that it is essential in every case, nor that its absence
automatically entitles an accused person to a new trial.
To
say that a jury must be representative is to set a standard impossible of
achievement. The community can be divided into a hundred different groups on
the basis of variants such as gender, race, class and education. Must every
group be represented on every jury? If not, which groups are to be chosen and
on what grounds? If so, how much representation is enough? Do we demand parity
based on regional population figures? Or will something less suffice? I see no
need to start down this problematic path of the representative jury, provided
the impartiality and competence of the jury are assured. Representativeness may
be a means to achieving this end. But it should not be elevated to the status
of an absolute requirement.
[71]
I understand the Chief Justice to be saying that
proportionate representation is not a constitutional imperative and
would be impossible to achieve in practice. These comments are as valid today
as they were 20 years ago. I see no reason for departing from them. My
colleague attempts to distinguish Biddle on the basis that it dealt with
the petit jury stage of jury selection. With respect, this distinction is
irrelevant. As I have repeatedly pointed out, there is not a single case in
which proportionate representation has been held to be a constitutional
requirement at any stage of the jury selection process. The practical
difficulties the Chief Justice exposed in Biddle apply with equal force
to both the petit jury and the jury roll.
[72]
Justice Cromwell recognizes the problem with
defining representativeness broadly. At para. 227, he states:
. . . there could be endless
debates about who and what needs to be represented on the jury . . . .
Defining all of the relevant senses in which a jury should be representative,
let alone going about assembling a jury roll that was representative in all of
those ways, would pose insurmountable practical problems.
[73]
And yet, my colleague’s approach gives rise to
the very problems that he himself characterizes as insurmountable. The only way
to determine if either the source lists or the ultimate jury roll is
“substantially similar” to the broader population is to inquire into the
personal characteristics and backgrounds of the individuals on both the source
lists and the jury roll, and then compare them to the makeup of the larger
population. My colleague recognizes that this would require the province to
determine “who and what needs to be represented on the jury”. But what would
the focus be? Would it be race? Ethnicity? Religion? Age? Economic status?
Sexual identity? How closely must the jury roll resemble the makeup of the
population in a particular judicial district before it will be considered
“substantially similar”? With respect, my colleague provides no answer to these
questions.
[74]
Inquiring into prospective jurors’ identities
would be a radical departure from the way jury selection has always been
understood in Canada. Source lists typically do not reveal individuals’
backgrounds. Nor do jury questionnaires ask individuals to reveal personal
characteristics such as race, ethnicity, or religion. To the contrary, the jury
selection process has long been based on the respect for juror privacy.
Examining potential jurors’ backgrounds at the jury roll stage would
impermissibly undermine this principle.
[75]
Furthermore, granting an accused the right
to a proportionately representative jury roll, as my colleague does, would have
a drastic impact on the conduct of criminal trials. Because representativeness
is not concerned with securing individuals who share the accused’s
characteristics, it is irrelevant whether the accused is of the same background
as the under-responsive group. If, as Cromwell J. suggests, the accused is
entitled to a proportionately representative jury roll, defence counsel would
presumably be permitted to access the source lists and the jury roll at the
outset of every trial. He or she could then argue that the roll is
unrepresentative if any group’s rate of inclusion does not approximate
its percentage of the broader population — assuming we could somehow solve the
impenetrable problem of what groups we are talking about.
[76]
The effect of this is two-fold. First, it would
create a procedural quagmire at the outset of jury trials. Second, if a jury
roll is found to be unrepresentative, it cannot be used for any trial — and
each judicial district has only a single jury roll for a calendar year.
Respectfully, adopting Cromwell J.’s expanded view of representativeness risks
compromising, if not crippling, the ability to proceed with jury trials
throughout the country.
[77]
My colleague seeks to allay these concerns. He
maintains that his results-based test will not turn the jury selection process
on its head because the problem caused by s. 6(8) of the Juries Act is
unique to Ontario. Section 6(8) makes the problem with the underrepresentation
of on-reserve residents visible in Ontario; he would therefore place heightened
obligations on that province.
[78]
With respect, it is artificial to suggest that
the impact of my colleague’s test can be confined to the problem that the s.
6(8) process has revealed. There is likely underrepresentation of on-reserve
residents in other provinces, although the problem may be less visible. One
need only consider the Iacobucci Report to realize this. Either
representativeness means actual proportionate representation of the community
or it does not. It cannot be the case that the Charter protects an
accused’s right to a jury that proportionately represents groups whose numbers
on the jury roll are readily identifiable from available data, but provides
little or no assurance of proportionality for groups whose numbers on the jury
roll are not so apparent. I cannot agree with my colleague’s assertion that his
test can be confined to situations involving s. 6(8). In my view, it has much broader
implications.
[79]
My colleague takes a similar approach to the
concern that his test will open the floodgates and give rise to regular and
persistent challenges to the jury roll on the basis that it is not
proportionately representative. He purports to overcome this concern by
offering a simple solution. At paras. 228-29, he states:
These
policy and practical considerations mean that we must not enlarge the Crown’s
disclosure obligations or expose potential jurors to intrusions into their
privacy. . . .
The
practical effect of protecting individual jurors’ privacy is that an accused
will rarely be in a position to establish the under-representation of a
particular group other than by pointing to an inadequate list or some other
significant departure from the random selection principle.
[80]
I have two comments about this.
[81]
First, my colleague’s solution is problematic.
An accused who does not know that his constitutional right to a representative
jury is being breached, and who has no meaningful way of finding out, is left
in the unsatisfactory position of having a right without a remedy.
[82]
With respect, I find it incongruous to tell an
accused in one breath that he has an important constitutional right and, in the
next, render it virtually impossible for him to establish that the right has
been infringed. My colleague’s approach to jury representativeness rises and
falls with the actual makeup of the jury roll: the characteristics of the
individuals on the jury roll would determine whether the accused’s right has
been respected. And yet, the data that bears on this crucial question is
information that the state cannot legitimately seek out without obliterating
our long-held commitment to juror privacy — a principle that my colleague
agrees should be maintained. Any test that contains such an inherent
contradiction is one that should be rejected.
[83]
Second, if my colleague’s test were to prevail,
I believe that trial judges would set a low bar for an accused to challenge the
representativeness of a jury roll — and it would be far less difficult to meet
the required threshold than my colleague suggests. And before long, the jury
selection process would become a public inquiry into the historical and
cultural wrongs and damaged relationships between particular societal groups
and our criminal justice system and the failings of the state to take adequate
steps to address them. In turn, this would make it virtually impossible to have
a jury trial anywhere in this country — and the administration of criminal
justice would suffer a devastating blow.
[84]
My colleague responds to this concern by noting
that in Williams, this Court rejected “slippery slope” arguments that
were advanced to oppose efforts to “guard against racism in jury selection” —
and yet “the sky has not fallen” (para. 239). He contends that his proposal
will have a similarly minor effect on jury trials. With respect, the comparison
to Williams is flawed.
[85]
Unlike my colleague’s proposed test, Williams
did not involve a significant change to the law governing the jury
selection process. The issue in Williams was whether an accused should
be permitted to challenge prospective jurors for cause based on widespread
racial bias against Aboriginal people amongst members of the community. The
challenge for cause process is a long-standing feature of the Canadian jury
selection process. Williams simply decided that a particular type of
challenge was permissible within the existing challenge for cause framework.
Thus, the issue in Williams was a narrow one, with limited potential to
destabilize our jury system. It must be remembered that a challenge for cause
typically involves asking prospective jurors a single question, to which a
“yes” or “no” response is required. It does not entail an invasion of privacy
or a departure from random selection, nor does it have a significant impact on
the jury selection process.
[86]
The same cannot be said of my colleague’s
approach. To require a proportionately representative jury roll, as he does,
would be unprecedented. As I have discussed at length, proportionate
representation has never been a feature of our jury selection process. Adopting
his suggestion would do away with other well-established principles, such as
juror privacy and random selection. In their place, we would have an
inquisition into prospective jurors’ backgrounds and a requirement that the
state target particular groups for inclusion on the jury roll. This would
entail a complete overhaul of our jury selection process. In short, he proposes
a sea change in the law — one with far-reaching effects.
[87]
Finally, I wish to address my colleague’s assertion
that in expressing concerns about his proposed test, I am “oppos[ing] efforts
to adapt the jury selection process to guard against racism in jury selection”
(para. 239). Nothing could be further from the truth. I firmly believe that the
state should do as much as it can to overcome the systemic issues that have led
Aboriginal peoples to mistrust and decline to participate in our justice
system. Hopefully that process of healing and reconciliation will occur in the
foreseeable future.
[88]
In the meantime, what are we to do about jury
trials? Are we to force Aboriginal people to participate under threat of
imprisonment? Are we to carve out special rules allowing Aboriginal people to
volunteer for jury duty, and thereby destroy the concept of randomness that is
vital to our jury selection process in criminal trials? Are we to say that an
Aboriginal on-reserve resident from the District of Kenora facing charges in
Toronto or a similar district with no Aboriginal on-reserve population should
be entitled to a change of venue? Are we to say that such an individual cannot
get a fair trial in Toronto? Are we to say that other marginalized groups that
have similarly strong grievances with our justice system can only get a fair
trial if the jury roll proportionately reflects their numbers in a given
community? These concerns are real, and my colleague provides no answer to
them. He states that there are “many obvious concrete and practical steps that
could be taken” to address the problem of low response rates from Aboriginal
on-reserve residents (para. 240). However, none of these suggestions address
the concerns about his proportionate representation requirement that have been
raised by myself and many others — including the current Chief Justice in her
reasons in Biddle. With respect, the criticism that my colleague levels
against me — that I am using “slippery slope” arguments as a means of opposing
efforts to confront racism in the jury selection process — is both unfair and
unwarranted.
(d)
A “Functional Approach” Must Be Rejected
[89]
My colleague Karakatsanis J. concludes that
representativeness describes “the functioning of the jury as an institution”
(para. 151) and that an accused’s right to a representative jury will be
violated only when “society would no longer accept that a jury chosen from [the
jury roll] could legitimately act on its behalf” (para. 161). She explains that
this will occur where an accused can establish the “[i]ntentional exclusion of
certain segments of the population from the jury roll” (para. 173).
Alternatively, she states that “[s]ubstantial but unintentional exclusion could
conceivably be so extensive that the jury roll would no longer be accepted as
acting on behalf of, and representing, society” (ibid.).
[90]
With respect, I have two concerns with this
approach.
[91]
First, the test my colleague proposes is
amorphous and will prove difficult, if not impossible, to apply. It uses vague
language, and provides little or no guidance to trial judges. Absent guidance,
we are left to ask: When will society no longer accept that a jury chosen from
a particular roll could legitimately act on its behalf?
[92]
Second, under the guise of broadening the test
for representativeness and the state’s attendant constitutional obligations, my
colleague proposes a test that would hold the state accountable for factors
outside of its control. Under her test, the state will not have met its
constitutional obligation if a group comprising a significant portion of a
judicial district’s population refuses to participate in the jury process —
even if the state has made reasonable efforts to provide that group with a fair
opportunity to do so. With respect, I cannot accept such a test.
B.
Did Ontario Meet Its Representativeness
Obligation in This Case?
[93]
In my respectful view, the majority of the Court
of Appeal erred in three respects in concluding that Ontario failed to make
reasonable efforts. I will discuss each in turn. These three errors of law were
central to the majority’s reasoning process and undermine their conclusions.
Properly analyzed, while not perfect, Ontario’s efforts were reasonable.
(1)
The Legal Errors in the Majority’s Reasons
(a)
The Legal Test
[94]
The principal error in the majority’s approach
was its reliance on a test that imposed too high a standard. Both LaForme and
Goudge JJ.A. required Ontario to go beyond making reasonable efforts to: (1)
compile the jury roll using random selection from lists that draw from a broad
cross-section of the population, and (2) deliver jury notices to those who have
been randomly selected. Rather, they applied a standard that obliged Ontario to
actively encourage responses from Aboriginal on-reserve residents by
investigating and addressing other causes of the low response rates.
[95]
The high standard applied by the majority flowed
from their incorrect definition of representativeness. Both judges defined
representativeness in relation to the ultimate makeup of the jury roll as
opposed to the process used to compile it. Because they defined
representativeness in relation to the makeup of the jury roll, the majority
concluded that increased efforts were required in the face of low response
rates and found that, without such efforts, the jury roll would be
unrepresentative. This conclusion does not necessarily follow. To the extent
the low rate of return was caused by problems with the source lists or
delivery, Ontario was obliged to make reasonable efforts to address the
problem. Such problems are part of the process, and are therefore part of
Ontario’s obligation to provide a fair opportunity. However, Ontario was not
required to address any and all causes of the low response rates. It was not
required to address systemic problems contributing to the reluctance of
Aboriginal on-reserve residents to participate in the jury process. With
respect, the majority erred in concluding that Ontario was required to do so.
[96]
Moreover, the majority improperly held that
Ontario had an obligation to actively encourage responses in order to overcome
the low response rates. Ontario’s failure to do so was one of the crucial
factors underpinning the majority’s conclusion that Ontario “ignored” the
problem and failed to make reasonable efforts. However, Ontario was not obliged
to encourage responses. Its constitutional obligation was satisfied by
providing a fair opportunity to participate.
(b)
The Honour of the Crown and Gladue Principles
[97]
The majority also erred by holding that the
analysis of Ontario’s efforts must be informed by both the estrangement of
Aboriginal peoples from the criminal justice system, as discussed in Gladue,
and the honour of the Crown. There are two reasons why these considerations
should not have been taken into account.
[98]
First, the honour of the Crown and Gladue principles
should not have been considered because neither is relevant to the state’s
obligation to make 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.
[99]
Second, the majority incorrectly held that the
honour of the Crown was engaged simply because s. 6(8) of the Juries Act calls
on the government to treat Aboriginal on-reserve residents differently for the
purposes of jury selection. While it is true that s. 6(8) deals specifically
with Aboriginal on-reserve residents, at bottom, it is an administrative
provision. The typical process for compiling jury rolls under s. 6(2) of the Juries
Act relies on lists that do not capture on-reserve residents. Section 6(8)
therefore provides a mechanism for including individuals residing on reserves.
It does not create a particular obligation to Aboriginal peoples, nor does it
create a need for consultation between the Crown and Aboriginal groups. In
these circumstances, the honour of the Crown is not engaged. As this Court
emphasized in Manitoba Metis Federation Inc. v. Canada (Attorney General),
2013 SCC 14, [2013] 1 S.C.R. 623, at para. 72, not all interactions between the
Crown and Aboriginal peoples engage the honour of the Crown:
. . .
the obligation must be explicitly owed to an Aboriginal group. The honour of
the Crown will not be engaged by a constitutional obligation in which
Aboriginal peoples simply have a strong interest. Nor will it be engaged by a
constitutional obligation owed to a group partially composed of Aboriginal
peoples. Aboriginal peoples are part of Canada, and they do not have special
status with respect to constitutional obligations owed to Canadians as a whole.
But a constitutional obligation explicitly directed at an Aboriginal group
invokes its “special relationship” with the Crown . . . . [Citation omitted.]
[100]
Given that s. 6(8) is an administrative
provision governing the creation of the jury roll, it does not meet this
criterion. While s. 6(8) is one of the vehicles through which the state fulfils
its constitutional obligations under s. 11 of the Charter , it is not
itself a constitutional obligation. Moreover, s. 11 rights are held by
everyone, not merely by Aboriginal peoples. Section 6(8) therefore does not
engage the honour of the Crown, and the majority erred by using this doctrine
to inform its analysis.
[101]
By relying on the honour of the Crown and Gladue
principles, the majority transformed the accused’s s. 11 Charter rights
into a vehicle for repairing the long-standing rupture between Aboriginal
groups and Canada’s justice system. In doing so, it raised the bar Ontario was
obliged to meet to satisfy its representativeness obligation.
[102]
This higher standard led the majority to
conclude that Ontario was required to engage with First Nations on a
government-to-government basis to address the low response rates. It therefore
held that Ontario failed to live up to its obligation because it delegated its
s. 6(8) duties in the District of Kenora to Ms. Loohuizen. This finding was
incorrect. Given that the honour of the Crown was not applicable, there was
nothing inappropriate about delegating these duties. In fact, the Juries Act
explicitly contemplates a local “sheriff” carrying them out.
(c)
The Iacobucci Report
[103]
The majority’s third error was its use of
hindsight reasoning based on the Iacobucci Report. At the relevant time, it was
widely believed that the low response rates were caused by difficulties
obtaining accurate lists. This belief endured long after the 2008 jury roll was
compiled: see, e.g., Pierre v. McRae, Coroner, 2011 ONCA 187, 104 O.R. (3d) 321, at paras.
68-69. As Rouleau J.A. noted, the parties’ arguments
before the Court of Appeal indicated that they also viewed the lists as the
principal cause of the low response rates.
[104]
The Iacobucci Report was released while the
Court of Appeal had this appeal under reserve. Only after the report was
released did it become apparent that the cause of the low response rates was
highly complex:
. . . an examination of that problem
[the underrepresentation of individuals living on reserves on Ontario’s jury
rolls] leads inexorably to a set of broader and systemic issues that are at the
heart of the current dysfunctional relationship between Ontario’s justice
system and Aboriginal peoples in this province. It is these broad problems that
must be tackled if we are to make any significant progress in dealing with the
underrepresentation of First Nations individuals on juries. [para. 15]
[105]
The majority relied on these findings to inform
its analysis. This was problematic for two reasons. First, in doing so, it did
not analyze Ontario’s actions in light of what was understood at the time.
Second, even if the conclusions of the Iacobucci Report had been known at the
time, Ontario’s representativeness obligation would not have required it to
address the systemic issues revealed by the report.
(2)
Ontario’s Efforts Were Reasonable
[106]
Assessed in light of what was known at the time
and against the proper standard, Ontario’s efforts were reasonable. The Court
of Appeal raised potential issues with three parts of the process — the lists,
the delivery, and the low response rates. I will assess Ontario’s efforts
against these three markers.
(a)
The Lists
[107]
Two of the judges at the Court of Appeal —
Goudge and Rouleau JJ.A. — concluded that Ontario’s efforts to address the
outdated lists were reasonable. I agree. Although the lists were imperfect,
Ontario made reasonable efforts to use updated lists of on-reserve residents.
Ms. Loohuizen’s attempts to obtain updated lists were persistent and
demonstrated a sincere effort to include on-reserve residents.
[108]
In 2001, Ms. Loohuizen assumed responsibility
for the entire cycle of jury selection and requested updated lists from the 42
reserves for which she had INAC lists from the year 2000. In addition to
contacting the chiefs, she also contacted the director of Nishnawbe-Aski Legal
Services and, on two occasions, attempted to enlist the help of the Deputy
Grand Chief of the Nishnawbe Aski Nation. Thus, even at this early stage, she
was exploring various avenues for obtaining lists. However, these efforts were
unsuccessful and no new lists were obtained.
[109]
Although she did not send another request for
lists until 2006, this in itself is not objectionable. It must be remembered
that the MPAC lists used for off-reserve residents are only updated every three
years. Significantly, in the intervening period, Ms. Loohuizen’s efforts to
address the problem did not stop. In 2004, she conducted a brainstorming
session with Stach J., Justice of the Peace Morrison (an Aboriginal Elder), and
two of her superiors in the CSD. The session explored, among other things, ways
to obtain better lists. After the meeting, Ms. Loohuizen reached out to Justice
of the Peace Morrison to ask for his assistance in contacting the Treaty 3 and
Treaty 9 communities in the District of Kenora, but received no response.
[110]
When she attempted to obtain updated lists in
2006, Ms. Loohuizen contacted the reserves by fax. If she had difficulty
reaching reserves in this manner, she attempted to contact the reserves by
letter instead. She obtained four updated lists in response to these attempts.
As well, the number of questionnaires sent to on-reserve residents was
increased 42 percent beyond their proportionate share in an attempt to offset
the problems with the lists. These efforts show a meaningful attempt to obtain
updated lists and to provide a fair opportunity for the participation of
Aboriginal on-reserve residents.
[111]
In 2007 (during preparations for the 2008 jury
roll), the PJC calculated the Aboriginal on-reserve response rate for the first
time since 1993. The 1993 response rate had been 33 percent; the new statistics
showed that the response rate had fallen to 10.7 percent. When Ms. Loohuizen
was informed of the results, she raised the problem with both Stach J. and her
superiors in the CSD, and she increased her efforts to obtain updated lists. In
addition to contacting the 43 reserves to which she had sent requests in the
previous year, she visited 15 remote reserves to meet with band leadership to
discuss the jury process, the province’s desire to include more Aboriginal
people on jury rolls, and the difficulties obtaining updated band lists. She
received eight new band lists in response to these efforts. Despite follow-up
letters and phone calls to the other seven reserves, no lists were obtained
from those communities.
[112]
Ms. Loohuizen also attempted to arrange meetings
with the chiefs of four reserves that were close to the city of Kenora, and
successfully met with two of them. In addition, she tried to arrange in-person
meetings or phone calls with 10 other reserves to discuss the jury issue. These
efforts did not result in any updated lists. Again, she followed up with these
reserves by sending letters and making phone calls to attempt to secure updated
lists. With respect to one reserve alone, she made five follow-up phone calls.
This can hardly be described as a situation like Nahdee, in which the
state simply accepted non-response from the reserves. Rather, Ms. Loohuizen’s
efforts were both diligent and persistent. Furthermore, to compensate for the
problems with the outdated lists, the number of questionnaires sent to
on-reserve residents was increased by almost 50 percent.
[113]
Taken together, these efforts were a reasonable
approach to the problems with the lists. Yet despite these steps, the
respondent argues that the flaws with the lists rendered Ontario’s efforts
unsatisfactory. With respect, I do not accept this argument.
[114]
First and most importantly, Ontario’s
constitutional obligation does not depend on obtaining perfect lists. The focus
is on the efforts to provide an opportunity for participation. As the evidence
shows, Ms. Loohuizen’s efforts showed a real awareness of the problem. She did
the best she could with the lists she received and made ongoing and escalating
efforts over the years to obtain better source lists.
[115]
In addition, the respondent overstates the
significance of the confusion about the boundaries of the judicial district.
Ms. Loohuizen had no lists for four reserves because she was unaware that they
fell within the District of Kenora. This was evidently a problem. Ontario
should have provided better training so that the reserves in the district could
be properly identified. However, this oversight affected a relatively small
proportion of the reserves. Meaningful efforts were made to include 42 of the
46 reserves. I cannot say that the absence of lists for four reserves was
serious enough to create a breach of Ontario’s representativeness obligations.
[116]
Finally, I take issue with Cromwell J.’s
suggestion that the province is constitutionally required to succeed — as
opposed to make reasonable efforts — in obtaining accurate source lists. I do
not accept his conclusion that compiling the source lists is “quintessentially
a state function” and that reasonable efforts by the province therefore cannot
save any deficiencies (para. 266). Respectfully, this suggestion rests on a
misunderstanding of what the province can and cannot control.
[117]
As the record indicates, although Ontario had a
great deal of responsibility for the lists, it could only obtain lists of
on-reserve residents from the reserves themselves. It had no independent access
to this information. Regardless of Ontario’s efforts, if the reserves refused
to provide source lists for s. 6(8) purposes, the province had no other way of
obtaining them. Laying any and all deficiencies at the province’s feet paints
an inaccurate picture. As I have explained, the compilation of source lists is not
something over which Ontario had complete control. For that reason, I am of the
view that the appropriate test must focus on the state’s efforts, not on
whether it succeeded in obtaining updated lists.
[118]
In sum, Ontario’s efforts to obtain updated
lists were reasonable. I am therefore satisfied that Ontario met its
representativeness obligation in this regard. This accords with the findings of
both Goudge and Rouleau JJ.A.
(b)
The Delivery
[119]
At the Court of Appeal, only Goudge J.A. treated
delivery as a separate consideration from the lists. In my view, the evidence
renders it virtually impossible to do so. The evidence about mail delivery on
reserves indicates that the likelihood of notices reaching the intended
recipients was directly linked to the accuracy of the lists. The outdated lists
increased the likelihood that notices would be sent to individuals who were no
longer residing on a reserve. In these cases, the postal clerks would not be
able to deliver them and they would be returned as undeliverable by the post
office. The comparatively high number of undeliverable questionnaires must
therefore be seen as a symptom of the outdated lists. As I have concluded that
the efforts to address the lists were reasonable, I need not address this point
further.
[120]
As with the lists, Cromwell J. concludes that
delivery is “quintessentially a state responsibility” (para. 269). Even if that
were so, delivery cannot be disassociated from the lists. Moreover, the post
office is not within the province’s control, and the province cannot force
individuals to pick up their mail. Like the lists, delivery is not entirely
within the province’s control and a reasonable efforts test is all that is
required.
[121]
In this regard, I note that the province did not
simply throw up its hands upon learning of the problems with delivery. Rather,
it took an aggressive approach. After consulting with Stach J., it increased
the number of notices sent to on-reserve residents by nearly 50 percent. In my
view, this was a reasonable response to the delivery problems. To the extent
the majority of the Court of Appeal concluded otherwise, as I have said, their
factual findings were based on a legal test that imposed too high a standard on
Ontario. Accordingly, those findings are not entitled to deference.
(c)
The Low Response Rates
[122]
Ontario’s approach to addressing the low
response rates was the factor that drew the most serious criticism from the
majority at the Court of Appeal. However, to meet its constitutional mandate,
Ontario was only required to address the ways in which the problems with the
source lists and delivery contributed to the low response rates. As I have
described, it made reasonable efforts to do so. It was not obliged to address
the systemic factors that the Iacobucci Report indicates are at the heart of
this problem.
[123]
The respondent argues that Ontario should have
investigated the cause of the low response rates earlier. According to the
respondent, Ontario’s failure to do so renders its efforts to address the low
response rates inadequate. I do not accept this argument.
[124]
The respondent submits that if the interim and
final reports required under PDB #563 had been filed and if the PJC had
analyzed the data it was collecting about the rate of response from on-reserve
residents earlier, Ontario could have taken action sooner. While it is true
that Ontario could have enforced the reporting requirements and run the data
earlier, I fail to see how this would have been of assistance. Both of these
measures would simply have confirmed what was already known — that on-reserve
residents were responding in markedly lower numbers. Neither of these steps
would have shed light on the causes of the low response rates. At the time,
everyone believed the problem was attributable to the flawed lists. Efforts
were being directed to rectifying that problem. Had Ontario known of the
precise data about the low response rates, I fail to see how it would have
changed the approach. Moreover, even if the province had known about the
systemic problems sooner, its constitutional obligations would not have
required it to address them.
(3)
Conclusion on the Sufficiency of Ontario’s
Efforts
[125]
Ontario made reasonable efforts to include
Aboriginal on-reserve residents in the jury process. I therefore conclude that
there was no violation of ss. 11 (d) or 11 (f) of the Charter .
[126]
As we now know, the problem runs much deeper
than flawed lists. The Iacobucci Report concludes, at para. 209, that “the most
significant systemic barrier to the participation of First Nations peoples in
the jury system in Ontario is the negative role the criminal justice system has
played in their lives, culture, values, and laws throughout history”. This is a
serious policy concern that merits attention. But the accused’s ss. 11 (d)
and 11 (f) Charter rights are not the appropriate vehicle to
redress this concern. The accused’s right to be tried by a jury of his peers is
a right aimed at securing a fair adjudicative process. It cannot be used to
dictate to the government how it should — let alone must — resolve
important policy questions of this nature. For the purposes of ss. 11 (d)
and 11 (f), the state’s constitutional obligation stops when it has
provided a fair opportunity for a broad cross-section of society to participate
in the jury process. It has done so.
[127]
In coming to this conclusion, I wish to
emphasize that nothing in these reasons should be taken as suggesting that it
would be appropriate for Ontario to stall its efforts to address the problem of
the underrepresentation of Aboriginal on-reserve residents in the jury system.
As this Court has noted on many occasions, the estrangement of Aboriginal
peoples from the justice system is a pressing matter. If reconciliation is ever
to be achieved, the state’s efforts must not only continue; they must increase.
But this Court is not a commission of inquiry, and its role is not to dictate
to the government how to resolve this issue. The question facing us is whether
the accused’s ss. 11 (d) and 11 (f) Charter rights were
violated. Viewed through that narrow lens, the state’s efforts were sufficient.
C.
Did Ontario Violate the Section 15 Rights of Mr.
Kokopenace or of Aboriginal On-Reserve Residents Who Were Potential Jurors?
[128]
For the reasons given by the Court of Appeal, I
would dismiss Mr. Kokopenace’s s. 15 claims. With respect to his personal s. 15
claim, he has not clearly articulated a disadvantage. This is fatal to his
claim. With respect to his request for public interest standing to advance a s.
15 claim on behalf of Aboriginal on-reserve residents who were potential
jurors, I would not accede to this request. As an accused person, Mr.
Kokopenace may have different, potentially conflicting interests from those of
potential jurors. If a challenge is to be raised on their behalf, there must be
an opportunity for their views to be represented. Like the Court of Appeal, I
would therefore decline to grant public interest standing and dismiss his claim
on behalf of potential jurors.
D.
If Mr. Kokopenace’s Charter Rights Were
Violated, What Is the Appropriate Remedy?
[129]
As I have concluded, there were no Charter violations.
Mr. Kokopenace received a fair trial by an impartial and representative jury.
Accordingly, it is not necessary to address the question of remedy.
VII. Disposition
[130]
For these reasons, I would allow the appeal, set
aside the order for a new trial, and reinstate Mr. Kokopenace’s conviction.
The following are the reasons
delivered by
[131]
Karakatsanis J. — Aboriginal people are dramatically overrepresented in our justice
system as offenders and victims, but participate at much lower rates than
non-Aboriginal people as jurors. Canadian society is deprived and diminished
by this reality, the causes of which are deeply rooted and complex. This
appeal requires this Court to determine whether the low presence of Aboriginal
on-reserve residents on the 2008 jury roll for the District of Kenora violated
Mr. Kokopenace’s fair trial rights, as protected by s. 11 of the Canadian Charter
of Rights and Freedoms .
[132]
In answering this question, the Court must
decide the scope of the Charter right to a trial by jury and whether s.
11 is the appropriate constitutional tool for addressing the damaged
relationship between Aboriginal peoples and the justice system in Canada.
[133]
I conclude that, despite the difficulties I will
discuss with its compilation, the 2008 Kenora jury roll met the constitutional
standards imposed by s. 11 of the Charter . In so deciding, I
respectfully disagree with the approaches to representativeness adopted by each
of my colleagues. Unlike Cromwell J., I cannot accept that representativeness
requires a jury roll to substantially resemble a random selection of eligible
jurors drawn from the community. I view representativeness as primarily
concerned with the jury’s function rather than the degree to which a jury roll
reflects the particular make-up of the community. Understood in light of the
jury’s history and purpose, a jury represents society in the sense that it acts
on its behalf.
[134]
Nor can I agree with Moldaver J.’s view that
representativeness only requires the state to make reasonable efforts to
compile the jury roll through a fair process, without regard for the outcome of
those efforts. A Charter breach is not defined by the state’s efforts,
but by the adequacy of the process actually used. Furthermore, unlike my
colleague, I leave open the possibility that, even where an appropriate process
is used, unintentional but substantial exclusion could undermine the
legitimacy, independence and impartiality of a jury roll, thereby rendering it
unrepresentative. Thus, I conclude that s. 11 requires the state to compile
the jury roll through a random process that draws broadly from the community,
without deliberate or substantial exclusion. That threshold was met in this
case.
I.
Background
[135]
In 2008, Clifford Kokopenace was tried before
judge and jury in the Ontario Superior Court of Justice in Kenora, where he was
acquitted of second degree murder but found guilty of the lesser included
offence of manslaughter. His challenge to the representativeness of the jury
roll was raised after conviction but before sentencing. It was argued for the
first time on appeal.
[136]
Before the Ontario Court of Appeal, Mr. Kokopenace
argued that the jury that found him guilty was derived from a jury roll that
inadequately ensured representation of Aboriginal on-reserve residents. He
argued that this violated his rights under ss. 11 (d), 11 (f), and
15 of the Charter . Fresh evidence was admitted on this issue, including
First Nations Representation on Ontario Juries: Report of the Independent
Review Conducted by The Honourable Frank Iacobucci (2013) (Iacobucci
Report), released on February 26, 2013, while the Court of Appeal’s decision
was under reserve.
[137]
The Court of Appeal issued three sets of reasons, and
divided on both the findings of facts and the ultimate disposition of the
appeal. LaForme and Goudge JJ.A., writing separate reasons for the
majority, found that the accused’s rights under s. 11 (d) and (f)
were breached. They reached this conclusion on the basis that the state did
not make reasonable efforts to provide a fair opportunity for the distinctive
perspectives of Aboriginal people residing on reserves to be included in the
jury roll from which jurors were chosen. Rouleau J.A., dissenting, adopted the
majority’s test of representativeness but found that despite imperfections in
compiling the jury roll, the state’s efforts were reasonable in the
circumstances. All three judges dismissed Mr. Kokopenace’s s. 15 claims for
want of evidence and lack of standing: 2013 ONCA 389, 115 O.R. (3d) 481.
II.
Analysis
[138]
This appeal highlights a stark reality in
Ontario: the low participation rate of Aboriginal people in the province’s jury
rolls. The evidence in this case is that this problem is serious and
worsening: in 2008, only 4.1 percent of those on the District of Kenora jury
roll were Aboriginal people residing on reserves, though the on-reserve adult
population comprises between 21.5 percent to 31.8 percent of the district’s
total adult population. This situation is tragic, both in its causes and its
effects. The Iacobucci Report found that the negative impact of the criminal
justice system on Aboriginal peoples’ communities, cultures, laws and lives has
left many feeling alienated from this system, and the underrepresentation of
Aboriginal peoples on jury rolls is only one manifestation of this much larger
problem (para. 209). Unfortunately, lack of participation in the criminal
justice system only deepens the divide.
[139]
There is no doubt that the long-standing
grievances underlying this disengagement should be addressed. The alienation
of Aboriginal peoples from the justice system is a problem that runs deep in
Canadian society, and is one that may very well have constitutional
implications. However, I agree with the Court of Appeal, for the reasons given
by my colleague Moldaver J., that this is not a proper case to determine
whether the equality rights of Aboriginal people under s. 15 of the Charter
are implicated as a result of this alienation and underrepresentation.
[140]
Moreover, in my view, the right of an accused to
a fair trial by jury is not the appropriate mechanism to indirectly address the
historic and current grievances of First Nations. A challenge to
representativeness of a jury roll asks a much narrower question, viewed from
the perspective of an accused’s fair trial rights: whether a segment of
society’s low participation on the jury roll undermines a trial by an otherwise
independent, impartial, competent jury.
[141]
Sections 11 (d) and 11 (f) of the Charter
provide:
11. Any person charged with an offence has the right
. . .
(d)
to be presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal;
. . .
(f)
except in the case of an offence under military law tried before a military
tribunal, to the benefit of trial by jury where the maximum punishment for the
offence is imprisonment for five years or a more severe punishment;
[142]
The issue in this case is whether the accused’s
right to a trial by jury was breached. In my view, this right does not entitle
an accused to a jury or a jury roll that proportionately reflects all of the
various perspectives and characteristics in society. Rather, it requires a
jury that can act on behalf of society. In order for the jury to function as a
representative of society in the criminal justice system, the jury roll must be
compiled through a neutral process in which random selection is applied to
source lists that draw broadly from the community, without deliberate or
substantial exclusion. Such a process provides a platform for the selection of
an impartial and independent jury. That requirement was met in this case.
Moreover, there is no real dispute that Mr. Kokopenace received a verdict from
a jury that was independent and impartial: C.A. reasons, at para. 226. I am
satisfied that his fair trial rights protected by s. 11 (d) were not
breached. As I will explain, I am also satisfied that his right to trial by
jury under s. 11 (f) was not infringed.
A.
The Essential Features of Trial by Jury
[143]
While the Charter protects the right to
trial by jury, it does not define what exactly this right entails. Thus, it is
helpful to return to the historical roots of trial by jury, and to its
functions and purposes.
[144]
The jury system forms part of the bedrock of the
Canadian legal system. It was introduced to Canada as part of the common law of
England. The 18th century jurist William Blackstone extolled the virtues of
the jury, writing that “the founders of the English laws have with excellent
forecraft contrived . . . that the truth of every accusation . . .
should afterwards be confirmed by the unanimous suffrage of twelve of his
equals and neighbours, indifferently chosen, and superior to all suspicion”: Commentaries
on the Laws of England (1769), Book IV, at p. 343.
[145]
Blackstone’s reference to “equals and neighbours”
must be understood in a very limited sense. When Blackstone wrote in the
1760s, this referred to propertied men, or lords where a lord stood accused: Commentaries
on the Laws of England (1768), Book III, at p. 349. When the jury system
was brought to Canada as part of the English common law, the requirements of
gender and property persisted: R. B. Brown, A Trying Question: The Jury in
Nineteenth-Century Canada (2009), at pp. 45 and 135.
[146]
Restrictions on gender persisted until the
1970s, when the last Canadian provinces amended their legislation to permit
women to serve as jurors. For much of Canadian history, Aboriginal people were
systemically excluded from serving on juries due to the combined effects of
racism, denial of the franchise to Aboriginal people, and exclusion of reserves
from source lists: see, for example, Report of the Aboriginal Justice
Inquiry of Manitoba, vol. 1, The Justice System and Aboriginal People (1991),
at pp. 378-79.
[147]
These exclusions reflect prejudices that have no
place in the administration of justice, and that would not be countenanced in
the modern jury system. Indeed, they would today be seen as deliberate
exclusions that violate an accused’s rights under s. 11 (d) and (f)
of the Charter . As this difficult history illustrates, society has
moved away from an identity-based conception of the jury. There are compelling
reasons for so doing. Individuals can have multiple, intersecting identities
or characteristics that are not susceptible to simple categorization. The very
notion of identity itself is constantly in flux. Thus, selecting prospective
jurors on the basis of their identity or characteristics is not a feature of
the modern jury. This is not to say that there is not value in Blackstone’s
vision of a jury composed of “equals and neighbours”. It is rather that,
properly understood, “equals and neighbours” must refer to society as a whole.
[148]
Trial by jury is a trial by lay members of the
community, whose job it is to find the facts and return a verdict. Black’s
Law Dictionary (10th ed. 2014) defines a “jury” as “[a] group of persons
selected according to law and given the power to decide questions of fact and
return a verdict” (p. 986). This definition focuses exclusively on its
fact-finding function, rather than its representative qualities. What are the
essential features of a jury that permit it to carry out this function of
collective decision-making?
[149]
A jury must be independent and impartial, as
provided in s. 11 (d) of the Charter : R. v. Davey, 2012 SCC
75, [2012] 3 S.C.R. 828, at para. 30. Above all else, these twin requirements
are fundamental, explaining in part why trial by jury is part of an accused
person’s right to a fair trial. Of course, a jury must also be competent, and
the process permits the judicial exclusion of those who are unable to carry out
their responsibilities: Criminal Code, R.S.C. 1985, c. C-46, ss. 632
and 644 .
[150]
This Court has identified other features of a
jury, anchored in s. 11 (f) of the Charter . A jury roll must be
drawn by means of a neutral, broadly inclusive process favouring neither the
prosecution nor the accused. This process supports the independence and
impartiality of the jury that will ultimately be selected. As this Court held
in R. v. Sherratt, [1991] 1 S.C.R. 509, at p. 524:
The modern
jury was not meant to be a tool in the hands of either the Crown or the accused
and indoctrinated as such through the challenge procedure, but rather was
envisioned as a representative cross-section of society, honestly and fairly
chosen.
[151]
The vision of a representative cross-section of
society has been the source of some confusion. As I will explain,
representativeness is not about the inclusion or reflection of all groups and
perspectives in society. It instead describes the functioning of the jury as
an institution, in which laypersons are asked to contribute to the criminal
justice process and to provide the crucial link between that system and the
larger community. A jury thus serves as a representative of society. A jury
is not rendered legitimate because its members reflect the demographics of that
community. Nor are jurors expected to represent particular perspectives in the
course of their deliberations. Rather, the jury acts on behalf of society.
The representative function is assured by the use of a selection process in
which random sampling is applied to broad-based source lists, without
deliberate or substantial exclusion.
[152]
In adopting this functional understanding of
representativeness, I depart from my colleague Cromwell J. In his view, a jury
roll must mirror what a random sample from the community would look like
― in effect, it must proportionately represent the community from which
it is drawn. Nor can I agree with the Court of Appeal’s view that representativeness
requires the state to make reasonable efforts to include the distinctive
perspectives of members of all First Nations reserve communities in the jury
roll.
[153]
In my view, adopting such an identity-based
approach, focused on ensuring that certain perspectives are reflected on the
jury roll, would mark a significant departure from both Canadian experience and
jurisprudence. It is undisputed that the Canadian jury system has never
required that the ultimate jury panel selected for a trial proportionately
represent the perspectives and identities within a particular community. As
McLachlin J. (as she then was) wrote in R. v. Biddle, [1995] 1 S.C.R.
761, at paras. 56-57:
I agree that a jury must be
impartial and competent. But, with respect, the law has never suggested that a
jury must be representative. For hundreds of years, juries in this country
were composed entirely of men. Are we to say that all these juries were for
that reason partial and incompetent?
To
say that a jury must be representative is to confuse the means with the end. I
agree that representativeness may provide extra assurance of impartiality and
competence. I would even go so far as to say that it is generally a good
thing. But I cannot accept that it is essential in every case, nor that its
absence automatically entitles an accused person to a new trial.
[154]
Accepting that exclusions based in prejudice
have no place in the modern jury system does not require that the jury be
chosen from a roll that proportionately reflects the different perspectives and
characteristics in society. In my view, the same practical and principled
concerns weighing against requiring a proportionately representative jury apply
with equal force to the jury roll.
[155]
First, society has long accepted that, in principle,
governments may exclude many from eligibility for jury service, for example on
the basis of their professions, education, criminal history or immigration
status: see, for example, the Juries Act, R.S.O. 1990, c. J.3, ss. 2 to
4; R. v. Church of Scientology (1997), 33 O.R. (3d) 65 (C.A.).
Requiring proportionality among jurors would completely undermine these
long-standing restrictions.
[156]
But the problems with this approach run much
deeper than mere practicality. Exactly what characteristics would have to be
“represented”? Race, gender, ethnicity, religion, language, education,
socio-economic status, urban or rural residency? Rosenberg J.A. of the Ontario
Court of Appeal illustrated the conceptual problems with viewing
representativeness as a positive right, rather than a prohibition on improper
exclusions, in Church of Scientology, at p. 121:
To require the
sheriff to assemble a fully representative roll or panel would run counter to
the random selection process. The sheriff would need to add potential jurors
to the roll or the panel based upon perceived characteristics required for
representativeness. The selection process would become much more intrusive
since the sheriff in order to carry out the task of selecting a representative
roll would require information from potential jurors as to their race,
religion, country of origin and other characteristics considered essential to
achieve representativeness. . . . [T]he right to a
representative panel or roll is an inherently qualified one. There cannot be
an absolute right to a representative panel or roll.
McLachlin J. discussed
the same problems with requiring a representative jury in Biddle, and I
agree with her conclusion that there is “no need to start down this problematic
path of the representative jury, provided the impartiality and competence of
the jury are assured. Representativeness may be a means to achieving this
end. But it should not be elevated to the status of an absolute requirement”
(para. 58).
[157]
The respondent points to the important role of
the jury as conscience of the community, arguing that this role demands a more
robust right to representativeness. It is true that by forging a connection
between the broader community and the administration of justice, and by entrusting
such a crucial decision-making role to lay community members, the jury serves
as a bridge between the public and the justice system, and promotes confidence
in both the outcome of individual cases and the functioning of the system more
broadly: Davey, at para. 30. The jury’s role in educating the public,
reinforcing the legitimacy of the justice system and acting as conscience of
the community are clearly positive outcomes of our system of trial by jury:
see Sherratt, at pp. 523-24.
[158]
However, it is important not to confuse these
important roles or impacts of a jury system with the essential characteristics
that permit it to serve these functions. These characteristics flow from the
qualities that are constitutionally protected: independence, impartiality, and
competence. They are assured by random selection from a broad-based jury roll
— drawn from the broader community — without any deliberate exclusion of
otherwise qualified jurors, and, at a later stage, by the ability to challenge
for cause. In this sense, the jury is representative of society.
[159]
Thus, although representativeness, understood
very generally as representing society, is an essential feature of a jury, it
must be understood by reference to the purpose for which it is protected.
Instead of guaranteeing particular communities or perspectives a role in the
process, jury representativeness ensures the institution’s independence,
impartiality and legitimacy by random selection from the broader community.
The right to trial by jury does not guarantee that a particular group will be
represented, only that the jury roll must be compiled through random selection
from broad-based lists, without deliberately or substantially excluding a
segment of the population. This accords with this Court’s general statement in
Sherratt that representativeness is guaranteed by random selection from
broadly inclusive source lists (p. 525).
[160]
My colleague Moldaver J. says that it is
sufficient if the state makes reasonable efforts to use a fair and broadly
inclusive process. In my view, however, the process used is either
constitutionally acceptable or it is not. The state’s reasonable efforts in
meeting its Charter obligations would no doubt be relevant at the remedy
stage. However, it is the adequacy of the process used, rather than the
quality of the state’s efforts, which determines whether or not an accused’s Charter
rights were violated.
[161]
Unlike Moldaver J., whose test focuses on the
state’s reasonable efforts, I leave open the possibility that the state could,
in exceptional circumstances, violate an accused’s Charter rights by
unintentionally but substantially excluding a segment of the population. It
may be that such substantial exclusion rises to a level that could leave the
jury unable to fulfill its representative function, thereby depriving it of
legitimacy in the eyes of society, and undermining its independence and
impartiality. Where the jury roll is so deficient that society would no longer
accept that a jury chosen from it could legitimately act on its behalf, an
accused’s rights protected by both ss. 11 (d) and 11 (f) of the Charter
will be violated.
[162]
This additional aspect of the representativeness
test permits a claimant to establish a Charter breach in circumstances
where, despite an adequate process and the absence of deliberate exclusion, the
resulting jury roll is nonetheless fundamentally flawed. This recognizes that
although representativeness is primarily achieved through the process by which
the jury roll is compiled, the effect of that process on the jury’s ability to
serve its functions cannot be ignored. Thus, this additional enquiry reflects
the importance of representativeness and, in fact, broadens the state’s
constitutional obligation. However, as I will explain, such substantial
exclusion does not arise in this case, and in my view the precise location of
the threshold is best left for a future case.
[163]
In summary, Canadian law has never defined
juries as representative of all the particular characteristics or perspectives
in society. The right to a jury in s. 11 (f) of the Charter has
never entitled an accused to a jury or jury roll of a particular composition.
There are practical and principled reasons why it would be problematic to
define any characteristics that ought to be reflected in a jury roll. Indeed,
many perspectives are not represented, as individuals are in fact excluded from
the jury roll by eligibility criteria and from the jury by being excused where
participation would impose hardship. Judges regularly excuse potential jurors
who are self-employed or who would not be paid during their absence from
employment, are students, or have child-care or other family responsibilities.
I conclude that a representative jury guaranteed under s. 11 (d) and (f)
of the Charter is not defined by whether the jury roll reflects the
perspectives and identities that make up a community. I see the
representativeness of a jury as primarily functional, not descriptive. It acts
on behalf of, and thus represents, society.
B.
What Does Representativeness Require?
(1)
Source Lists
[164]
A representative jury roll is one that is
created through a fair and random process, based on broadly inclusive source
lists, that does not deliberately or substantially exclude a subset of the
community. Such lists lay the foundation for each step that follows in the
jury process. Ensuring that these lists are drawn broadly from the community
is thus critical.
[165]
However, perfection is not required, for many
reasons. First, provinces must be given leeway to use a selection process that
is practical given the nature of the source lists generally available.
Provinces in Canada have chosen different mechanisms to access the broader
community. Some use health records; others use electoral and assessment rolls,
municipal directories, motor vehicle registration records, or a combination of
multiple sources: Iacobucci Report, at paras. 150-74. Indeed, the use of
these alternatives means that in many provinces it is impossible to determine
the extent to which Aboriginal people are included in source lists. In
Ontario, the statistics relating to the participation of Aboriginal people
residing on reserves are only known because the Juries Act provides a
separate process for individuals living on reserves. Those living outside of reserves
are captured by municipal assessment lists, which do not include information
about an individual’s Aboriginal status.
[166]
Second, unintentional exclusion of
some segments of the community does not amount to a constitutional defect.
Even the best source lists will still exclude some, and that inadvertent
exclusion may disproportionately apply to certain groups of people. This alone
is insufficient to establish a s. 11 violation. Because there are no perfect
source lists, it follows that the state must be accorded flexibility in
choosing a source list, recognizing that no list will be perfectly
comprehensive, and that each has its own advantages and drawbacks. Such
flexibility also recognizes the substantial leeway that governments must be
given to define the boundaries of judicial districts, which are established for
administrative and practical purposes and are not required to ensure the
representation of any particular community or group. Such leeway is restricted
only by the requirement that exclusion not rise to such a substantial level
that the jury could not fulfill its representative function.
[167]
While unintentional exclusion is likely to occur
as a result of the practical realities of jury roll compilation, the same
cannot be said of intentionally and improperly shutting out certain groups from
participating. A jury roll tainted by such deliberate exclusion could hardly
be considered to be drawn fairly and randomly from the broader community, nor
could it be said to be independent and impartial. An accused will accordingly
succeed in her challenge if she establishes deliberate exclusion for the
purpose of restricting the representation of certain groups in the jury
process.
(2)
Delivery of Jury Notices
[168]
The state must also ensure that the mechanism
used to contact selected potential jurors does not undermine the broad-based
and random quality of the jury roll. This does not mean that the state must
devise a perfect model for the delivery of jury notices. The state will
generally be able to establish that it used an adequate process where it uses
the same system by which the individuals or communities in question would
normally receive their mail.
(3)
Representativeness Does Not Require Addressing
Low Response Rates
[169]
The accused’s s. 11 (d) and (f)
rights require a neutral process for identifying and contacting prospective
jurors. Those who receive a jury questionnaire are required by law to
respond. If they choose not to, the accused’s fair trial rights do not impose
a constitutional obligation on the state to assist or encourage individuals to
participate, provided that the jury roll meets the standard of being drawn
broadly from the community.
[170]
Cromwell J. requires that the state must
encourage and facilitate the participation of prospective jurors who choose not
to participate in the jury system. He reaches this conclusion largely on the
basis of the state’s responsibility for the estrangement of Aboriginal peoples
from the justice system, and writes that “[h]aving played a substantial role in
creating these problems, the state should have some obligation to address them”
in order to fulfill its representativeness obligations (para. 281). The Court
of Appeal also concluded that the state must encourage responses to jury
notices.
[171]
There can be no doubt that addressing the
disengagement of Aboriginal peoples from the jury system is an important step
in addressing the larger web of problems ― described at paras. 4 and 14
of the Iacobucci Report as a crisis ― plaguing the justice system as it
is applied to Aboriginal peoples. Nor can there be any doubt that this
disengagement is a complex problem with deep roots and no easy answers. It is
essential that the correct constitutional tool be brought to bear in addressing
this problem. In this case, this Court is asked to decide whether an accused
person’s fair trial rights are tools suited to this task, and if so, how
they should be deployed to remedy Aboriginal peoples’ disengagement from the
jury system.
[172]
In my view, an accused person’s fair trial
rights do not require the state to encourage jury participation among those who
are unwilling to participate. Troubling though such unwillingness may be, it
does not mean the accused is deprived of his right to a trial by an impartial
and independent jury, acting on behalf of society. In my view, finding
otherwise would be inconsistent with the limited scope of representativeness in
Canadian law. It is beyond the scope of an accused’s fair trial rights as
protected by s. 11 (d) and (f) of the Charter to require
the state to address issues that may cause segments of the population to
disengage from the justice system. Thus, an accused’s right to a trial by jury
is not breached, and the verdict is not compromised, because the state does not
actively facilitate the participation of those who will not or cannot
participate. While it may be that such disengagement has implications for
other constitutional rights, that question cannot be decided on the record in
this case.
(4)
Conclusion on Representativeness
[173]
To conclude, jury representativeness has a
limited meaning in Canadian law. It does not mean that the jury must reflect a
cross-section of the community or its different characteristics or
perspectives. A jury acts on behalf of and represents society. What is
required is a neutral process for compiling the jury roll, in which prospective
jurors are randomly selected from lists drawn broadly from the community as it
is defined in the relevant legislation. Intentional exclusion of certain
segments of the population from the jury roll would render it
unconstitutional. Substantial but unintentional exclusion could conceivably be
so extensive that the jury roll would no longer be accepted as acting on behalf of, and representing, society. However, as I shall explain, this does not arise in this case.
III.
Application to the Facts
[174]
Moldaver J.’s reasons at paras. 8-28 outline how
the jury roll was compiled in Ontario and in the District of Kenora.
A.
The Findings of the Court of Appeal
[175]
The Court of Appeal examined three alleged
deficiencies in the compilation of the 2008 jury roll for the District of
Kenora. These deficiencies related to the adequacy of the source lists used to
compile the jury roll, the adequacy of delivery methods by which prospective
jurors were notified of their selection, and the low response rate of
prospective jurors who received their jury notice.
(1)
Adequacy of Source Lists
[176]
Before the Court of Appeal, significant evidence was
adduced regarding the poor and diminishing quality of the source lists by which
Aboriginal people residing on reserves were included in the jury roll in the
District of Kenora. In 2001, Indian and Northern Affairs Canada (INAC, now
Aboriginal Affairs and Northern Development Canada) stopped providing Ontario
with band lists for the purposes of s. 6(8) of the Juries Act, citing
privacy concerns. After 2000, Court Services Division (CSD) staff of the
Ministry of the Attorney General in the District of Kenora sought to obtain
updated lists by contacting the First Nations for which they had received lists
from INAC, as well as senior officials at the Nishnawbe Aski Nation. As part
of these efforts, CSD staff also travelled to 15 fly-in reserves in 2007 to
discuss jury participation with First Nations leadership. The same year, local
CSD staff also learned that they had accidentally excluded three First Nations
from the jury roll, including the 2008 roll. As a result of these efforts,
when questionnaires for the 2008 jury roll were to be mailed out, the Kenora
CSD office had band lists from 2007 for eight First Nations; band lists from
2006 for two First Nations; INAC lists from 2000 for 32 First Nations; and no
list for any of the three missing First Nations, or for an additional First
Nation for which CSD staff appear never to have had a band list.
[177]
LaForme J.A. found that the jury that convicted Mr.
Kokopenace was drawn from lists so out of date that they failed to adequately
represent Aboriginal people living on reserves on the jury roll. In his view,
these deficiencies were compounded by Ontario’s failure to update its policies
in response to this Court’s decision in Corbiere v. Canada (Minister of
Indian and Northern Affairs), [1999] 2 S.C.R. 203, which had the effect of
expanding band electoral lists to include First Nation members residing both on
and off reserves. He found that the failure to respond to these changes
rendered band lists far less useful for the purpose of including Aboriginal
people residing on reserves on the jury roll. He further found that the state
both knew of this problem and did little to rectify it.
[178]
The majority on this issue (Goudge and Rouleau
JJ.A.) disagreed, finding that the effect of the lists on representation
of Aboriginal on-reserve residents was modest. While Goudge J.A. agreed that
the lists were dated and incomplete, he found that they nonetheless had
significant utility for representativeness purposes because they still
permitted the distinctive perspectives of Aboriginal on-reserve residents to be
included in the jury roll. He further found that the efforts by CSD staff to
obtain better lists were adequate in light of the modest impact that the flawed
lists had on representativeness. Rouleau J.A. agreed that the
impact of the inadequacies in the band lists was “quite
modest”, and noted that the Iacobucci Report shows that obtaining complete and
accurate lists will have only a limited impact on the problem of low levels of
Aboriginal participation in the jury system (para. 290).
[179]
I agree with the majority’s findings on this issue. Ontario compensated
for the inadequacies in its lists with efforts to correct them. Although these
efforts had limited success, CSD staff, acting with the advice of an
experienced judge in the district, also sent out a much higher proportion of
jury questionnaires using the band lists they possessed, in order to compensate
for what they appreciated was a low response rate. While it is true that some
on-reserve residents were unintentionally excluded from jury service because of
the inadequacy of the lists, the majority’s finding that this exclusion had
only a modest effect means that it does not depart from the requirement that
the jury roll be drawn broadly from the community.
[180]
For the same reason, the fact that four First
Nations were not included does not render the jury roll unrepresentative. The
requirement that prospective jurors be drawn from broad-based source lists does
not demand perfect inclusion, and the unintentional exclusion of a small
community ― Aboriginal or non-Aboriginal ― does not undermine the
representativeness of the jury roll. Although the source lists did not
include all eligible jurors or all First Nations, a jury selected from this
jury roll could nonetheless find facts, impartially and independently, and
render a verdict on behalf of society. As long as the state
does not intentionally seek to exclude such communities, such modest exclusions
will not amount to a breach of an accused’s rights under s. 11 (d) or (f).
(2)
Adequacy of Delivery Methods
[181]
The Court of Appeal reached differing
conclusions on the adequacy of the systems used by Ontario to deliver jury
notices to individuals residing on reserves. LaForme J.A. did not directly
address this issue in his reasons. Goudge J.A. found serious problems with
delivery, and that Ontario was inattentive and did virtually nothing to
determine the causes of failed delivery or how it might be remedied. In his
view, “inaction by the state in the face of action that it could have taken
cannot meet the reasonable efforts standard” (para. 262). Rouleau J.A.
disagreed, and saw the problems with delivery as linked to the difficulties
with obtaining up-to-date lists of on-reserve residents.
[182]
I agree with Rouleau J.A. that any deficiencies
in this case are intertwined with the problems the state was experiencing with
accuracy of band lists. As discussed above, representativeness requires that
jury notices be delivered to prospective jurors in a manner that does not
deliberately or substantially undermine the broad-based and random quality of
the jury roll. In this case, the state relied on the same system of mail
delivery (general delivery and knowledge sort) that normally serves the reserve
communities in question, and indeed which serves many small, remote communities
in Canada. No substantial or deliberate exclusion of on-reserve Aboriginal
people resulted from any deficiencies in this delivery method. Thus, in my
view, the delivery methods used by the state did not violate Mr. Kokopenace’s
s. 11 (f) right to trial by jury, nor did they violate his fair trial
rights under s. 11 (d) of the Charter .
(3)
The Problem of Low Response Rates
[183]
Significant evidence was marshalled before the
Court of Appeal suggesting that even where the state succeeds in identifying
and selecting Aboriginal people residing on reserves to be included in the jury
roll, many of those individuals do not return the notices sent to them. The
Iacobucci Report explains that this low response rate is not simply a function
of difficulties with the mechanics of compiling the jury roll. Rather, it is
symptomatic of the much more intractable problem of alienation of Aboriginal
peoples from the justice system.
[184]
The reasons identified for not participating in
the jury process are many, and include conflict between First Nations cultural
values and laws and those underpinning the Canadian criminal justice system;
systemic discrimination experienced by Aboriginal people in the criminal
justice and child welfare systems; the need for education about the justice system,
and the jury in particular; negative perceptions of the justice system arising
from problems with policing; the desire to assume greater control over
community justice issues as part of self-government; and the often troubled
relationship between the Ministry of the Attorney General and First Nations in
Ontario: Iacobucci Report, at paras. 209-30 and 248-51.
[185]
These reasons sit alongside more practical
concerns regarding band member privacy, the types of questions asked in juror
questionnaires and the logistical challenges faced by many who live in more
remote communities: Iacobucci Report, at paras. 231-44. The Iacobucci Report
notes that First Nations representatives “uniformly expressed the position
that, until significant and substantive changes are made to the criminal
justice system, the issue of jury participation will not improve” (para. 209).
[186]
At the Court of Appeal, all three judges agreed
that the representativeness requirement under s. 11 requires the state to make
efforts to address the low response rate among Aboriginal people residing on
reserves. LaForme and Goudge JJ.A. found that the state had failed in this
obligation, while Rouleau J.A. found the state’s efforts to be sufficient.
With respect, I cannot agree with these conclusions.
[187]
As I stated at the outset of these reasons,
there can be no dispute that the problems underlying the disengagement of so
many Aboriginal people from the justice system are of fundamental importance.
Indeed, they are among the most difficult and pressing problems facing Canadian
society, and may very well have constitutional implications. This importance
does not, however, mean that they are appropriately dealt with as part of an
accused person’s fair trial rights under s. 11 of the Charter . Nor does
it mean that the legitimacy of jury verdicts in the District of Kenora should
be compromised until such deep-seated problems are resolved.
[188]
These fair trial rights entitle an accused
person to an independent and impartial jury, drawn from a jury roll that was
created through a fair and neutral process of random selection from broad-based
source lists without deliberate or substantial exclusion. Understood this way,
jury representativeness is a narrow right, aimed at ensuring that the jury can
fulfill its important roles as finder of fact and as the link connecting the
judicial process to the broader community. Section 11 is not the source of any
duty on the state to encourage participation, or to repair damaged
relationships that may cause some to disengage from the justice system. It is
simply beyond the scope of s. 11 to require that the state address the reasons
for this disaffection in order to uphold an accused individual’s right to an
impartial, independent and representative jury. Other tools must be brought to
bear to resolve these problems.
IV.
Conclusion
[189]
In my view, the respondent has not established
that the jury roll from which his jury was drawn was created in a manner that
violated his rights under s. 11 of the Charter . I would accordingly
allow the appeal, set aside the order for a new trial and restore his
conviction.
The
reasons of McLachlin C.J. and Cromwell J. were delivered by
Cromwell J. (dissenting) —
I.
Introduction
[190]
Selecting a properly constituted jury lays the
foundation required for a fair trial and public confidence in the
administration of justice: see, e.g., R. v. Barrow, [1987] 2
S.C.R. 694, at pp. 714 and 717. Fundamental to our conception of a properly
selected jury is that it be drawn from a random sample of eligible people in
the district who, by virtue of that random selection, are representative of its
population. Randomness is a proxy for representativeness and every accused
person in Canada who has a jury trial has a constitutional right to a jury that
is representative in this sense: Canadian Charter of Rights and Freedoms,
ss. 11 (d) and 11 (f). This appeal tests whether this guarantee is
real or illusory for Aboriginal people.
[191]
Clifford Kokopenace was tried for second degree
murder by a jury in Kenora and was ultimately convicted of manslaughter. He is
an Aboriginal man from a First Nation reserve. Aboriginal people residing on
reserves were drastically under-represented on the jury roll from which Mr. Kokopenace’s
jury was ultimately selected. The provincial officials responsible for
compiling the jury roll used sources that were substantially out of date and
which included people who ought not to have been included. They entirely
excluded four First Nations reserves in the district. The 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. And underlying all of this is the sad history of racial discrimination
against Aboriginal peoples and their estrangement from the administration of
criminal justice.
[192]
When Mr. Kokopenace became aware of problems
with the jury roll after his conviction, he appealed. A majority of the Court of
Appeal set aside his conviction and ordered a new trial. After considering a
mountain of evidence, the Court of Appeal concluded that the substantial
under-representation of Aboriginal on-reserve residents on the jury roll
undermined the appearance of fairness and public confidence in the
administration of justice.
[193]
In seeking to have this Court set aside that
ruling, the Crown asks us to hold that the right to a representative jury roll
means only that the state is prohibited from making improper exclusions and
that the focus is not on results but on whether the state made reasonable
efforts. As for the broader issues of discrimination against Aboriginal peoples
and their estrangement from the justice system, we are told that jury
representativeness is an inappropriate legal tool with which to address those
issues. The state, we are told, may choose to address these issues as a matter
of social policy, but they have nothing to do with the right to trial by jury.
[194]
Similarly, my colleague Moldaver J. would find no Charter
violation notwithstanding a 30 percent race-based under-representation on the
jury roll. He would conclude that the state, in the context of assembling jury
rolls, is under no constitutional obligation to address, in any manner
whatsoever, the systemic factors that contribute to this. Indeed, his view is
that the state has no obligation beyond providing a “fair opportunity” to those
who — as a result of prolonged racial discrimination — have become alienated
from the system and whose participation would enhance its legitimacy.
[195]
Like the majority of the Court of Appeal, I
would reject these contentions. I do not regard compliance with the
Constitution as either optional or as a matter of social policy. An Aboriginal
man on trial for murder was forced to select a jury from a roll which excluded
a significant part of the community on the basis of race — his race. This in my view is an affront to the administration of
justice and undermines public confidence in the fairness of the criminal
process. I would dismiss the appeal.
[196]
While there are many deeply seated causes which
contribute to Aboriginal under-representation on jury rolls, the Charter in
my view ought to be read as providing an impetus for change, not an excuse for
saying that the remedy lies elsewhere.
II.
Facts, Issues and Judicial History
A.
Facts and Issues in Overview
[197]
The respondent, Clifford Kokopenace, was
convicted of manslaughter on June 17, 2008, by a jury in the Superior Court of
Justice in Kenora, Ontario. Not long after his conviction, he became aware of
some possible problems with the 2008 jury roll from which the jury that
convicted him had been selected. It emerged that only 4.1 percent of the
potential jurors on the roll were Aboriginal on-reserve residents even though
they made up approximately 30 percent of the adult population of the District
of Kenora.
[198]
Mr. Kokopenace appealed the conviction on the
basis, among others, that the jury roll was not representative and therefore
that his rights under the Charter to a jury trial, to a trial before an
impartial tribunal and to equality before the law (ss. 11 (f), 11 (d)
and 15) had been violated. The Court of Appeal, by a majority, agreed that his
rights had been infringed, set aside the conviction and ordered a new trial: 2013
ONCA 389, 115 O.R. (3d) 481.
[199]
On the Crown’s appeal to this Court, there is no
dispute that there is such a concept as jury representativeness. However, the
meaning and content of a right to a representative jury roll, whether it has
been violated and, if so, what remedy should flow from that breach are all
contested.
[200]
I will address three related issues:
(a) What is the content of the right to have a representative
jury roll?
(b) Was there a breach of that right in Mr. Kokopenace’s case?
(c) If so, what is the appropriate remedy?
[201]
I do not find it necessary to address the
equality rights issue (s. 15 of the Charter ) in light of my conclusion
that Mr. Kokopenace’s rights to a jury trial and to a trial before an impartial
tribunal (under ss. 11 (f) and 11 (d)) have been violated and that
he should have a new trial before a properly constituted jury.
B.
The Jury Selection Process in Ontario
[202]
This case concerns how a jury roll is compiled
and the right to have a representative roll. A basic understanding of what a
jury roll is and how a jury is ultimately selected to try a case is therefore a
useful starting point.
[203]
I emphasize that there is no challenge here to
the legislation which governs how to assemble a jury roll or to select a jury
to try a case. Mr. Kokopenace’s complaint is that the effect of the legislation
as it was applied in this case infringed his rights, not that there is any constitutional
defect in the legislation itself.
[204]
There are three phases in the process in Ontario
which leads ultimately to the selection of a 12-person “petit” jury to try a
criminal case. First, a jury roll is prepared by the sheriff: C. Granger, The
Criminal Jury Trial in Canada (2nd ed. 1996), at pp. 114-17. Then, at the
request of a judge, names from that list are selected by the sheriff to
constitute jury panels, sometimes referred to as the jury “array”: Granger, at
pp. 117-21 and 143. Finally, through the “in-court” jury selection stage, a
petit jury is selected from among the members of the jury panel.
[205]
Only the third step of this process is governed
by the Criminal Code, R.S.C. 1985, c. C-46 ; the other two stages are
governed by provincial statutes: E. G. Ewaschuk, Criminal Pleadings &
Practice in Canada (2nd ed. (loose-leaf)), vol. 2, at p. 17-2; Granger, at
p. 143. The constitutional breach alleged in this appeal occurred at the first
stage of the jury selection process and concerns how the jury roll was
assembled.
[206]
In Ontario, the assembly of the jury roll is
governed by the Juries Act, R.S.O. 1990, c. J.3. Under s. 5, each year
the sheriff determines the number of prospective jurors required for the year
and transmits that information to the Director of Assessment. From there, jury
service notices and questionnaires are sent out to randomly selected persons (s.
6(1)). Everyone who receives a jury service notice is required by law to
complete the questionnaire and return it to the sheriff (s. 6(5)); it is an
offence punishable by fine or imprisonment not to do so (s. 38(3)). Once the jury service questionnaires have been returned, the
sheriff prepares a jury roll made of those who returned the questionnaires and
who are eligible for jury service and certifies that it is a proper roll (ss. 8
and 9).
[207]
When a jury panel is required, a precept is
issued to the sheriff by a judge of the Superior Court of Justice in the form
prescribed by regulation: Juries Act, s. 12. The sheriff must then
randomly select the panel from all whose names are on the jury roll (ss. 15 to
18.1). Members of the panel are subsequently summoned by the sheriff and, if
not excused for reason of illness or serious hardship, are required by law to
attend the court’s sitting (s. 19).
[208]
When a petit jury is selected for a trial, the
clerk of the court randomly draws names of members of the jury panel following
the procedure prescribed at s. 631 of the Criminal Code . In turn, the
jurors whose names have been drawn and who have not been either excused by the
judge, challenged peremptorily or successfully challenged for cause are sworn
in until all of the jurors required to try the case (and alternates if any)
have been selected: Criminal Code, ss. 639 to 642 .
[209]
I turn next to the lists from which people are selected at random
to get jury service notices and questionnaires. The process for obtaining lists
of residents differs depending on the territory. There are three categories.
[210]
The first relates to people living in territory
with municipal organization, i.e. those who are included in the enumeration
under the Assessment Act, R.S.O. 1990, c. A.31. Under s. 6(2) of
the Juries Act, the Director of Assessment is required to send
jury service notices to a random selection of persons whose names and addresses
have been obtained at the most recent enumeration of the inhabitants of the
county under s. 15 of the Assessment Act.
[211]
The second category is for people who live
neither in municipally organized territory nor on reserves. Section 8(6) of the
Juries Act provides that the sheriff is to “have recourse to the
latest polling list prepared and certified for such territory, and to any
assessment or collector’s roll prepared for school purposes” and that he “may
obtain names from any other record available”.
[212]
The third category consists of people residing
on reserves. I note that there is no dispute in this case that the overwhelming
majority of on-reserve residents are Aboriginal people. Therefore, like the
Court of Appeal, I do not see any meaningful distinction between “on-reserve
residents” and “Aboriginal on-reserve residents” (para. 11). Aboriginal
reserves are not subject to assessments under the Assessment Act and as
a result the Ontario government does not produce lists of Aboriginal on-reserve
residents. Unlike in the first two categories, the Juries Act does not
refer to any other specific record of Aboriginal on-reserve residents that is
to be used by the sheriff for jury purposes. Instead, s. 6(8) simply permits
the sheriff to “obtain the names of inhabitants of the reserve from any record
available”.
[213]
It should be noted that, even though under the Juries
Act it is the “sheriff” who is responsible for the jury roll process, in
practice these responsibilities are carried out by various provincial and local
employees. Local court staff is responsible for determining the number of jury
service notices to be sent out for both on-reserve and off-reserve residents.
The Municipal Property Assessment Corporation is responsible for randomly
selecting names from municipal enumeration lists while local court staff is
responsible for the random selection and for the mailing of notices to
Aboriginal on-reserve residents. In addition, the Provincial Jury Centre
(“PJC”) is responsible for preparing the jury notices and questionnaires, which
are then provided to local court staff and mailed out. Once the questionnaires
have been returned and the roll is ready, the roll is certified by the Director
for Court Operations for the West Region, who acts as the sheriff for this
purpose. Finally, the PJC is responsible for issuing summons and generating a
jury panel on receipt of a precept, using a computerized jury selection
system.
C.
Proceedings in the Superior Court of Justice and
the Court of Appeal
[214]
Mr. Kokopenace’s concerns with regard to the
process leading to the creation of the 2008 jury roll in the District of Kenora
were brought to the attention of the trial judge, Stach J. Since the jury had
already rendered its verdict, he declined to adjourn the sentencing proceedings
to hear a mistrial application because he considered himself functus officio.
[215]
The challenge to the representativeness of the
jury roll was therefore heard for the first time by a panel of the Ontario
Court of Appeal, which considered extensive fresh evidence with respect to this
issue. The court was unanimous that, in order to satisfy its obligation to
provide a representative jury roll, the test was whether Ontario had made
reasonable efforts to provide a fair opportunity for groups with distinctive
perspectives to be included. The Court of Appeal also unanimously rejected Mr.
Kokopenace’s s. 15 claim. The court divided on the outcome of the appeal,
however.
[216]
LaForme and Goudge JJ.A., in separate reasons,
agreed that Mr. Kokopenace’s ss. 11 (d) and 11 (f) rights had been
breached by the state’s failure to make reasonable efforts to provide
Aboriginal on-reserve residents with a fair opportunity to be included on the
jury roll. The majority of the Court of Appeal found that the state knew or
ought to have known that there was a serious problem of under-representation of
Aboriginal on-reserve residents in the jury roll; that the state’s actions to
address the problem were inadequate and largely unresponsive to the problems
and that additional steps should have been taken to address the
under-representation issue at the material time. A new trial was ordered.
[217]
The two judges of the majority diverged in their
approaches to the specific areas of state action where Ontario failed to meet
its constitutional obligation. According to LaForme J.A., the state was
facing, but failed to meaningfully address, two main problems: obtaining
accurate up-to-date lists of Aboriginal on-reserve residents and addressing the
deteriorating rate of return of the jury questionnaires. Goudge J.A.’s
conclusion that Ontario failed to meet its obligations was based on its
“failure to make reasonable efforts to facilitate delivery of questionnaires to
Aboriginal on-reserve residents and to encourage responses to them” (para. 277).
[218]
Rouleau J.A., dissenting, concluded that the
state’s efforts were sufficient to comply with its Charter obligations
and would have dismissed the appeal. In his view, the state’s efforts should
be assessed by focusing on what was known at the time the jury roll was
prepared. It is only after the compilation of the 2008 jury roll, with the
publication of a report of the Honourable Frank Iacobucci on the issue of First
Nations representation on juries in Ontario, that Ontario was made aware of the
complexity of the issue: First Nations Representation on Ontario Juries:
Report of the Independent Review Conducted by The Honourable Frank Iacobucci
(2013) (“Iacobucci Report”). According to Rouleau J.A., viewed in light of the
information known at the time, the state’s efforts had been reasonable.
III.
Analysis
A.
What Is the Content of the Right to Have a
Representative Jury Roll?
[219]
This appeal raises specific questions about the
representativeness of a jury roll in the District of Kenora. But these issues
have to be viewed in the broader context of the place and purpose of jury
trials in our system of criminal justice and the special meaning of
representativeness in connection with s. 11 Charter rights.
(1) The
Jury Trial in the Criminal Justice System
[220]
In the Anglo-Canadian tradition of criminal
justice, the jury is seen as a “bulwark of individual liberty” of accused
persons and as a “vehicle of public education . . . lending the
weight of community standards to trial verdicts”: R. v. Turpin, [1989] 1
S.C.R. 1296, at pp. 1309-10; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R.
828, at para. 30. The jury functions as a fact-finder, as the conscience of
the community, as the ultimate protection against oppressive laws and
oppressive law enforcement and as an educative institution through which
members of the public directly participate in an important judicial process:
Law Reform Commission of Canada, Working Paper 27, The Jury in Criminal
Trials (1980), at pp. 5-14. The jury system is intended and ought to
enhance the legitimacy of the criminal justice system in the eyes of the
public. It puts real power in the hands of the people, giving members of the
public both authority and responsibility for how the criminal law is applied in
individual cases.
[221]
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. That a jury actually
possesses these qualities ultimately depends on who is selected for jury duty.
Thus, compilation of the jury roll from which a petit jury is ultimately
selected is of fundamental importance to both the fairness in fact and to the
perceived fairness of the trial. Selection of a proper jury is the foundation
of everything that follows at trial.
(2) The
Place of Representativeness Within Section 11 Charter Rights
[222]
In Canada, there is no stand-alone Charter -protected
right to a representative jury. But representativeness, in the sense that the
jury roll is randomly selected from an appropriate pool of prospective jurors,
is a component of the Charter rights to a jury trial and to be tried by
an independent and impartial tribunal. Sections 11 (d) and 11 (f)
of the Charter , which are engaged with respect to persons “charged with
an offence”, provide as follows:
11. Any person
charged with an offence has the right
. . .
(d)
to be presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal;
. . .
(f)
except in the case of an offence under military law tried before a military
tribunal, to the benefit of trial by jury where the maximum punishment for the
offence is imprisonment for five years or a more severe punishment;
[223]
It will be helpful to briefly set out several
points about the contours of the right to a representative jury roll.
(a) Randomness as a Proxy for Representativeness
[224]
Representativeness of the jury, while of
fundamental importance, is nonetheless understood in an “inherently qualified”
sense: C.A. reasons, at para. 31. The focus of representativeness is on whether
the jury roll, from which jurors will ultimately be selected, is as broadly
representative of the community as would a group of people selected at random
from within that community. When I refer to the requirement of
representativeness, I am referring to representativeness in this sense. In the
leading case of R. v. Sherratt, [1991] 1 S.C.R. 509, at p. 525,
L’Heureux-Dubé J. explained that a jury will be sufficiently representative if
the initial array (and I would add, the roll from which it is selected) is
composed of a random selection made from appropriate sources:
Provincial legislation guarantees
representativeness, at least in the initial array. The random selection
process, coupled with the sources from which this selection is made, ensures
the representativeness of Canadian criminal juries.
[225]
O’Leary J. put the same point well in R. v.
Born with a Tooth (1993), 81 C.C.C. (3d) 393 (Alta. Q.B.), at p. 396:
Representativeness is guaranteed,
first, by ensuring that as far as possible and practicable the pool or
population from which jury panels are selected is representative of the whole
community, and, secondly, by selecting jury panels from that pool on a random
basis.
[226]
Thus, random selection is a proxy for
representativeness. A representative jury roll is one that substantially
resembles the group of persons that would be assembled through a process of
random selection of all eligible jurors in the relevant community. A petit jury
is representative if it is properly selected from that roll. But random
selection is only a good proxy for representativeness if the pool of persons to
whom a process of random selection is applied to assemble the jury roll is
itself broadly based within the relevant community.
(b) There Are Strong Reasons Supporting This Limited Understanding
of Representativeness
[227]
Allowing random selection to be a proxy for
representativeness is supported by both practical and policy reasons. If
representativeness in this context were given a broader meaning, there could be
endless debates about who and what needs to be represented on the jury: race,
gender, sexual orientation, marital status, political leanings, age, and
economic status are only a few of the possibilities. Defining all of the
relevant senses in which a jury should be representative, let alone going about
assembling a jury roll that is representative in all of those ways, would pose
insurmountable practical problems. Going down that road would also inevitably
lead to serious — and under our legal traditions, unacceptable — intrusions
into the privacy of prospective jurors, many of whom would not be willing to
reveal the sorts of personal characteristics or opinions included on the brief
list I have set out.
[228]
These policy and practical considerations mean
that we must not enlarge the Crown’s disclosure obligations or expose potential
jurors to intrusions into their privacy. While we attach great importance to
the right to a representative jury roll, this does not imply, let alone
require, that this right must trump all other considerations. We also attach
great importance to the right to an impartial jury, yet we place strict limits
on how that right may be pursued. We do not allow the parties to have
prospective jurors examined by psychologists before trial; indeed, we greatly
restrict the scope of questioning of prospective jurors in court, even in the
context of a demonstrated cause for challenge: see R. v. Williams,
[1998] 1 S.C.R. 1128, at paras. 51-56. Any number of other examples may be
given from the criminal law where we do not pursue one right at the expense of
others. There is nothing unusual, let alone “incongruous”, about holding that
the right to a representative jury roll must be balanced with and defined in
light of other important rights and values, including other safeguards of jury
impartiality. Moreover, protecting juror privacy may be understood as serving,
not undermining, juror impartiality. As Moldaver J. wrote in R. v. Yumnu,
2012 SCC 73, [2012] 3 S.C.R. 777, at para. 42: “Once selected, jurors become
judges of the facts. Their personal lives at that point are no more relevant
than that of the presiding judge.”
[229]
The practical effect of protecting individual
jurors’ privacy is that an accused will rarely be in a position to establish
the under-representation of a particular group other than by pointing to an
inadequate list or some other significant departure from the random selection
principle. But this case is highly unusual. Section 6(8) of the Juries Act
singles out an obviously distinct group: Aboriginal on-reserve residents. What
is even more unusual, the evidence confronts us with the stubborn fact that
there are substantially fewer of them — nearly 30 percent fewer — on the jury
roll than there would be in a random sample of potential jurors in the judicial
district. It does not turn our tradition of jury selection upside down to deal
with this; it is inconsistent with that tradition to ignore it.
[230]
The rationale of the more limited, “randomness”
approach to representativeness was well expressed by Rosenberg J.A. in R. v.
Church of Scientology (1997), 33 O.R. (3d) 65 (C.A.), at pp. 120-21:
The right to a
representative jury roll is not absolute in the sense that the accused is
entitled to a roll representative of all of the many groups that make up
Canadian society. This level of representativeness would be impossible to
obtain. There are a number of practical barriers inherent in the selection
process that make complete representativeness impossible. The roll is selected
from a discrete geographical district which itself may or may not be representative
of the broader Canadian society.
Further, the critical
characteristic of impartiality in the petit jury is ensured, in part, by the
fact that the roll and the panel are produced through a random selection
process. To require the sheriff to assemble a fully representative roll or
panel would run counter to the random selection process. The sheriff would need
to add potential jurors to the roll or the panel based upon perceived
characteristics required for representativeness. The selection process would
become much more intrusive since the sheriff in order to carry out the task of
selecting a representative roll would require information from potential jurors
as to their race, religion, country of origin and other characteristics
considered essential to achieve representativeness. [Emphasis added.]
[231]
The right to a representative jury roll
therefore does not imply any right to be tried by a petit jury which
proportionally represents the population. Nor is there a right to be tried by
a jury whose members belong to the same group, race or gender as does the
accused: R. v. Biddle, [1995] 1 S.C.R. 761, at paras. 55-60, per
McLachlin J.; Church of Scientology, at p. 121; R. v. Kent
(1986), 27 C.C.C. (3d) 405 (Man. C.A.), at pp. 421-22; Born with a Tooth,
at p. 397. (I note that the comments of McLachlin J. (as she then was) in Biddle
relate to the composition of a petit jury; the Court has at least
twice affirmed the requirement that the jury array be representative: Sherratt,
at p. 525, per L’Heureux-Dubé J. for the majority; Williams, at
paras. 45-47, per McLachlin J. (as she then was) for the Court.)
[232]
Representativeness as we understand it is thus
largely dependent on the jury roll from which potential jurors are selected
because a random selection of persons from that roll is deemed to be
sufficiently representative.
[233]
Let me be crystal clear. The focus of this analysis is on the process of
random selection because this is, in our legal tradition, a proxy for
representativeness. A flawed random selection may be demonstrated by showing
faults in the process, such as the omission of large numbers of eligible jurors
from the roll as in R. v. Buckingham, 2007 NLTD 107, 221 C.C.C. (3d) 568. But that is not the
only way a departure from proper random selection may be shown. The fact that
the focus is on the random selection process does not mean that the results
of the process employed to compile the jury roll are irrelevant to whether
there has been an acceptable process of random selection. The process used in
this case produced results that obviously and significantly departed from any
result that could be obtained by a proper process of random selection. Unlike
my colleague Moldaver J., my view is that we should not ignore the results when
they plainly show, as they do here, a significant departure from a properly
conducted random selection process.
(c) Representativeness and Impartiality Are Distinct But Related
Concepts
[234]
Representativeness should not be confused or
equated with impartiality. But representativeness is part of an interlocking
set of protections which, together, help to assure impartiality and contribute
to public confidence. These include instructions from the trial judge,
submissions from counsel, challenges to the jury array, the trial judge’s
authority to screen out partial jurors and the challenge for cause process:
see, e.g., Williams, at para. 47. As L’Heureux-Dubé J. put it in Sherratt:
The perceived importance of the
jury and the Charter right to jury trial is meaningless without some
guarantee that it will perform its duties impartially and represent, as far as
is possible and appropriate in the circumstances, the larger community. Indeed,
without the two characteristics of impartiality and representativeness, a
jury would be unable to perform properly many of the functions that make its
existence desirable . . . . [Emphasis added; p. 525.]
[235]
Under ss. 629 and 630 of the Criminal Code ,
an accused person or the prosecutor may challenge the “array” — i.e. the panel
of jurors summoned for jury selection — on grounds of “partiality, fraud or
wilful misconduct on the part of the sheriff or other officer by whom the panel
was returned”: see also Ewaschuk, at pp. 17-5 and 17-6. This sort of challenge
is made before trial. Such challenges have been made, for example, where there
was evidence that the sheriff had a policy of not including Aboriginal people
in the array and where the array was assembled using long outdated lists which
excluded tens of thousands of eligible jurors: R. v. Butler (1984), 63
C.C.C. (3d) 243 (B.C.C.A.); Buckingham.
[236]
The trial judge has considerable discretion to
excuse jurors whose impartiality is questioned: Criminal Code, ss. 632
and 633 . The parties also have the right to exercise peremptory challenges and
the opportunity to challenge for cause, which are provided for by ss. 634 to
638 of the Criminal Code : see also Williams, at para. 47; R.
v. Parks (1993), 15 O.R. (3d) 324 (C.A.), at p. 334.
[237]
These opportunities to assure impartiality in
fact work with the requirement of representativeness to ensure an impartial
jury whose views and attitudes are anchored in the community in which the trial
takes place. The resulting jury is thus a “representative cross-section of society,
honestly and fairly chosen”: Sherratt, at p. 524.
[238]
All of these protections, including the
requirement of representativeness, are especially important in the context of
potential racial prejudice. As the present Chief Justice wrote in Williams,
racial prejudice is “insidious”. It is “[b]uried deep in the human psyche” and
rests on “preconceptions and unchallenged assumptions that unconsciously shape
the daily behaviour of individuals” (para. 21). A jury roll that is
representative of the community is more likely to result in a petit jury that
can avoid these often unconscious effects of racism. Indeed, our law of
challenge for cause is premised on representativeness in this sense: ibid.,
at para. 42. If that premise is not sound, the interlocking protections of
impartiality as a whole are weakened.
[239]
Williams also
teaches us to be sceptical about “slippery slope” arguments used to oppose
efforts to adapt the jury selection process to guard against racism in jury
selection. It is suggested by my colleague that addressing the race-based
under-representation that confronts in this case will make it “virtually
impossible to have a jury trial anywhere in this country” so that the
“administration of criminal justice would suffer a devastating blow”: Moldaver
J., at para. 83. Similar contentions were advanced in opposition to race-based
challenges for cause in Williams: see paras. 51-56. They were rejected
and the sky has not fallen. They should be rejected here as well.
[240]
There are many obvious concrete and practical
steps that could be taken to address this problem. Some of these, for example,
are outlined in the reasons of Goudge J.A. in the Court of Appeal: see, e.g.,
para. 273. One such obvious step — and one which was not taken — was to make “a
concerted effort to determine from Aboriginal on-reserve leaders why the
response rates were so comparatively low, or what the state might do to help” (para. 265). Goudge J.A. concluded that “there are and were
things the state could do to alleviate the problem, had it investigated” (para.
274). Or as LaForme J.A. summed it up: “. . . the state’s actions
show that it almost entirely failed to inform its approach with an
understanding of its special relationship with Aboriginal people . . . .
There is no evidence that the state took into account the critical estrangement
of Aboriginal persons from the criminal justice system . . . in its
approach to the jury representation problem” (para. 210).
(d) Representativeness
and Sections 11 (f) and 11 (d) of the Charter
[241]
Section 11 (f) — guaranteeing a right to a
jury trial for offences punishable by five years in prison or a more severe
penalty — enshrines in our Constitution the institution of the jury as a
fundamental component of the Canadian criminal justice system. Representativeness
is an integral part of that component. L’Heureux-Dubé J. in Sherratt, at
p. 524, noted that the jury “was envisioned as a representative cross-section
of society, honestly and fairly chosen” and that “[a]ny other vision may run
counter to the very rationales underlying the existence of such a body.” I
touched on these rationales earlier. They include bringing collective wisdom to
the task of fact-finding, acting as the conscience of the community, providing
a bulwark against oppressive laws or their enforcement, serving as a means by
which the public may increase its knowledge of the criminal justice system and
through that knowledge increase societal trust in the system as a whole: Sherratt,
at pp. 523-24.
[242]
Representativeness therefore “brings to the jury
function . . . the possibility of different perspectives from a
diverse group of persons” and “seeks to avoid the risk that persons with these
different perspectives . . . will be systematically excluded from the
jury roll”: Church of Scientology, at p. 122. It follows that
representativeness is one of the fundamental characteristics of a properly
constituted jury: Sherratt, at p. 525. Representativeness, along with
impartiality, is essential in order for the institution of the jury to perform
its function as the “conscience of the community” and in order for s. 11 (f)
to be meaningful and effective: see R. v. Big M Drug Mart Ltd., [1985] 1
S.C.R. 295. It is therefore seen as an element of that right: Sherratt,
at pp. 523-25; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 43,
per McLachlin C.J.; R. v. Yooya, [1995] 1 C.N.L.R. 166 (Sask.
Q.B.); R. v. Teerhuis-Moar, 2010 MBCA 102, 222 C.R.R. (2d) 207, at
paras. 132-43; Church of Scientology, at p. 119.
[243]
In addition to the role that representativeness
plays in actualizing the right to a jury trial under s. 11 (f) of the Charter ,
it is also one of the components which ensure that the jury is “an independent
and impartial tribunal” under s. 11 (d). In Williams, this Court
included a “representative jury pool” as one of the “essential safeguard[s] of
the accused’s s. 11 (d) Charter right to a fair trial and an
impartial jury”: para. 47; see also R. v. Pan, 2001 SCC 42, [2001] 2
S.C.R. 344, at para. 42; Davey, at para. 30; Parks, at p. 336.
Thus, defects in the formation of the jury that affect its representative
character will be taken into account in order to determine whether there is a
breach of s. 11 (d). For example, in R. v. Nahdee, [1994] 2
C.N.L.R. 158 (Ont. Ct. (Gen. Div.)), the court found that the sheriff’s
complete failure to obtain lists of Aboriginal on-reserve residents resulted in
a jury roll that was not representative and, relying on s. 11 (d) of the Charter ,
declared the selection process for the array to be fatally flawed ab initio.
In the context of a coroner’s inquest, the Ontario Court of Appeal also stated
that the effective exclusion of Aboriginal people could be fatal to the jury
roll: Pierre v. McRae, Coroner, 2011 ONCA 187, 104 O.R. (3d) 321.
[244]
As it is guaranteed under ss. 11 (d) and
11 (f), the right to representativeness of the jury roll is the right of
persons “charged with an offence”, not of particular groups or the community at
large. Thus, to the extent that the representativeness is an aspect of the
rights guaranteed by ss. 11 (d) and 11 (f) of the Charter ,
it does not follow that there is a corresponding right, under these provisions,
of the community at large or of any particular group, to be included on a jury
roll, jury array, or petit jury.
(3) When Does a Defect in the Representativeness of the Jury Roll
Constitute a Breach of Sections 11 (f) and 11 (d)?
[245]
Generally, in order to achieve a representative
jury roll that will satisfy the requirement of representativeness under ss. 11 (d)
and 11 (f) of the Charter , two things are necessary.
[246]
First, the lists from which random selection
will be made must be substantially representative of the district. As was said
in Born with a Tooth, “as far as possible and practicable the
pool or population from which jury panels are selected [should be]
representative of the whole community” (p. 396). The jury roll can only
properly be representative of the population of the district if the list of
people to whom notices may be sent is as complete and accurate as possible and
is substantially similar to a random selection among all potentially eligible
jurors in the district.
[247]
Second, the group of eligible persons who return
the questionnaires must be substantially similar to a random sample of the
list. This requires the state to look at elements such as the proportion of
notices and questionnaires that are in fact received and factors which could
affect the return rate. If the group who in fact returns questionnaires does
not substantially resemble a random sample of the persons on the list, then the
whole foundation of representativeness is at risk because randomness can no
longer serve as an appropriate proxy for representativeness.
(4) The
Court of Appeal’s Test
[248]
The Court of Appeal set out a test to determine
whether the state had complied with its constitutional obligations to ensure
that jury trials are conducted before representative juries. The court held
that what is required is “reasonable efforts to seek to provide a fair
opportunity for the distinctive perspectives of Aboriginal on-reserve residents
to be included”: para. 50, per LaForme J.A. I respectfully disagree with two
aspects of this approach.
[249]
First, and unlike my colleague Moldaver J., I
would not express the test in terms of the state providing a “fair opportunity”
for particular perspectives to be included. This approach skews whose right is
at stake and whose obligation it is to comply. Speaking of a “fair opportunity”
to be included takes the focus off the fact that under ss. 11 (d) and 11 (f)
of the Charter , the right to a representative jury roll is the right of
the accused, not of those who ought to have been included on the roll.
Moreover, this “fair opportunity” formulation also takes the focus off the
state’s constitutional obligation to provide a representative jury. We do not
speak of a “fair opportunity” to have a fair trial or issuing an “invitation”
to be free of unreasonable searches and seizures. Respectfully, it seems to me
to be inconsistent with basic principles of Charter rights to speak in
terms of a “fair opportunity” to have a representative jury. I do not see any
“fair opportunity” standard in ss. 11 (d) or 11 (f) of the Charter .
[250]
Second, I would not adopt the “reasonable
efforts” standard for determining whether a limitation of the right has
occurred proposed by the Court of Appeal and adopted by Moldaver J. In my
opinion, this approach is disconnected from a proper analysis of the Charter
right at stake. The “reasonable efforts” standard makes it easy to lose sight
of the fact that it is the state’s responsibility to comply with the Charter
and that it is the right of an accused person to be tried by a jury selected in
accordance with the Charter . It is the state’s constitutional
obligation not to breach people’s Charter rights, not simply to make “reasonable
efforts” not to do so. Moreover, the “reasonable efforts” standard glosses over
the question of whether the limitation of the right is the result of state
action.
(5) Representativeness and State Action
[251]
The Charter protects against interference
by the state with guaranteed rights: s. 32 . In order to establish a
breach of the Charter , the claimant must therefore show not only that
there has been a limitation of his or her guaranteed rights but that the
limitation can be attributed to state action. The question is whether there is
a sufficient connection between the conduct of the state and the limitation of
the right such that the limitation can fairly be attributed to the state: see,
e.g., Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R.
1101, at paras. 73-78; Kazemi Estate v. Islamic Republic of Iran, 2014
SCC 62, [2014] 3 S.C.R. 176, at paras. 126 and 131-34. This does not require
that the state action be “the only or the dominant cause” of the limitation
provided that there is a “real, as opposed to a speculative, link” between the
alleged limitation and the state action: Bedford, at para. 76. While the
threshold of sufficient connection has been considered mainly in the context of
s. 7 of the Charter , a similar causal threshold has also been used in
respect of other provisions of the Charter and under provincial human
rights legislation and, in my view, this threshold applies in the context of
this case.
[252]
For example, in Symes v. Canada, [1993] 4
S.C.R. 695, an equality case under s. 15 of the Charter , Iacobucci J.
explained that claimants must demonstrate that the state either “wholly caused,
or contributed to”, the adverse effects (pp. 764-65). More recently, in Quebec
(Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61, Abella J. took a
similar approach to the causal link, stating that “[i]f the state conduct
widens the gap between the historically disadvantaged group and the rest of
society rather than narrowing it, then it is discriminatory” (para. 332).
Importantly, she also rejected an approach which would internally limit
equality rights by looking at the reasonableness of state action, concluding
that this was a matter best left for the justification analysis under s. 1 of
the Charter (para. 333).
[253]
A similar requirement of sufficient connection
also underlies this Court’s jurisprudence on the s. 11 (b) Charter
right to be tried within a reasonable time. In these cases, any action of the
Crown which contributes to delay, including systemic problems, such as limits
on institutional resources, will be weighed against the Crown: R. v. Askov,
[1990] 2 S.C.R. 1199; R. v. Morin, [1992] 1 S.C.R. 771, at pp. 795-96.
In other words, every delay which has a sufficient connection to state action
will be taken into consideration when deciding whether the state has breached
the accused’s right to be tried within a reasonable time.
[254]
A similar approach is also evident under
provincial human rights legislation. In Moore v. British Columbia
(Education), 2012 SCC 61, [2012] 3 S.C.R. 360, an adverse effects
discrimination case under British Columbia’s Human Rights Code, R.S.B.C.
1996, c. 210, this Court stated that a prima facie breach exists when
state action had the result of denying a student meaningful access to the
mandated objectives of public education based on a protected ground (para. 36).
Whether the claimant has established the necessary link between the state
action and the limitation of a Charter right is essentially a question
of fact.
[255]
As I see it, the 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? In my view, 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.
[256]
With respect to matters giving rise to the
limitation of the right that are wholly or substantially within the state’s
capacity to address, the connection is evident between state action or inaction
and the limitation of the right in question. In such cases, a “reasonable
efforts” test does not reflect the nature of the state’s obligation: compliance
with constitutional rights is not optional or (subject to justified
limitations) dependent on the degree of effort required. Conversely, the state
cannot be held responsible for matters which have the effect of limiting
guaranteed rights, but which the state has no ability to address. With respect
to matters falling somewhere between these two types of situations, the answer
to the question of whether there is a sufficient connection between the
limitation of the right and state action will depend on the capacity of the
state to address the matters giving rise to the limitation and whether it has
made reasonable efforts to do so. As I see it, it is only in this sense that a
“reasonable efforts” notion has a role to play in considering whether a
sufficient connection to state action exists. The basic question is whether
the claimant has established a sufficient connection between state action and
the limitation of the right.
(6) The “Negative Prohibition” and “Unintentional Exclusion” Approaches
Must Be Rejected
[257]
In light of this analysis, I respectfully reject
the Crown’s submission that the right to a representative jury roll simply
means that the state cannot improperly exclude groups from the jury roll.
Similarly, I cannot accept my colleague Karakatsanis J.’s position that “the
unintentional exclusion of a small community . . . does not undermine
the representativeness of the jury roll” (para. 180). The premises underlying
both propositions are inconsistent with basic Charter principles. The
state is not only responsible for its purposeful conduct that limits rights but
also for the unintended and undesired effects of its acts or omissions. Courts
have always looked at the purpose and the effect of state action in
order to determine its constitutionality: “. . . both purpose and
effect are relevant in determining constitutionality; either an
unconstitutional purpose or an unconstitutional effect can invalidate
legislation” (Big M Drug Mart, at p. 331). In my view, accepting the
proposition that a Charter breach occurs only if the state’s conduct is
intentional or otherwise improper would be a significant and unwelcome
departure from this Court’s Charter jurisprudence.
[258]
Moreover, these “negative prohibition” and
“unintentional exclusion” standards would do little to provide the accused with
the jury he or she is entitled to in cases where there are systemic problems
with the inclusion in the jury roll of certain groups in the judicial district
where the accused is tried. It would mean that, as long as the state does not
improperly or intentionally exclude a group such as Aboriginal on-reserve
residents, it has no other obligation to provide a representative jury roll.
This is not, in my view, consistent with the Charter right to a
representative jury roll.
B.
Was There a Breach of That Right in Mr.
Kokopenace’s Case?
(1) Was the
Jury Roll Representative?
[259]
The first question, as I see it, is whether the
jury roll assembled for use in this case met the standard of representativeness
required by the Charter . This case does not require us to pronounce
comprehensively on what constitutes a sufficiently representative jury roll.
This case concerns a situation in which, by anyone’s reckoning, the jury roll
was not representative because its composition was a substantial departure from
what random selection among all potentially eligible jurors in the district
would produce. In the particular and exceptional facts of this case, we know
this because (i) on-reserve residents are overwhelmingly Aboriginal people;
(ii) on-reserve residents constitute about 30 percent of the adult population
of the judicial district; and (iii) on-reserve residents constitute about 4 percent
of the jury roll. Thus we have a substantially different jury roll than would
be produced by a proper process of random selection because of the
under-representation of Aboriginal on-reserve residents on the jury roll. If
that does not constitute a failure to assemble a representative jury roll, I
have difficulty understanding what would.
(2) Is the Lack of Representativeness Attributable to State Action?
[260]
The more challenging question is whether the
lack of representativeness is sufficiently linked to state action or inaction.
What is required is not a strict causal connection but rather a sufficient
connection, as outlined earlier.
[261]
There were four matters that potentially
contributed to the jury roll’s lack of representativeness and I will consider
each in turn.
[262]
We should remember that the Ontario Court of
Appeal was the court of first instance on the issue of representativeness. In
these circumstances, the factual findings of the majority of the Court of
Appeal, like those of a court of first instance, are entitled to deference: R.
v. W.E.B., 2014 SCC 2, [2014] 1 S.C.R. 34, at para. 2; Yumnu, at
para. 17; Davey, at paras. 64-65. It follows that this Court “may not
interfere with the findings of fact made and the factual inferences drawn . . .
unless they are clearly wrong, unsupported by the evidence or otherwise
unreasonable”: R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9;
see also Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at
paras. 10, 19 and 21-25; Bedford, at paras. 48-56.
(a) The Lists of Aboriginal On-Reserve Residents
[263]
There were a number of concerns with the lists
of on-reserve residents from which names were selected at random to receive
jury notices and questionnaires. While Goudge J.A. was of the view that these
problems, on their own, would not sufficiently undermine representativeness, he
shared the view of LaForme J.A. in relation to the nature of the problems.
[264]
The lists, of course, are not required to be
perfect. But they are required to be substantially representative of the
community in the district because these lists are the foundation that allows
randomness to be a proxy for representativeness. The degree of
representativeness is assessed in accordance with the goal of using random
selection as a proxy for representativeness. The lists will be defective if
they are significantly different than a random selection of potentially
eligible jurors in the district.
[265]
In the fall of 2007, there were no lists at all
for four First Nations in the district and out-of-date lists for 32 First
Nations. These out-of-date lists were the 2000 band lists provided by the
federal government for the last time in that year. As LaForme J.A. concluded,
these lists included only persons 18 years of age or over, and therefore became
increasingly inaccurate with the passage of time. This, he noted, was a special
problem for populations residing on reserves, which are generally
disproportionately young. There were more current lists available for the
remaining 10 First Nations, but they too were defective. The lists used for
several of the reserves included off-reserve band members even though the s.
6(8) process is supposed to reach only potential jurors on reserves.
[266]
Compiling these lists is quintessentially a
state function. It is a core state function to know how many inhabitants it
has and where they live. Moreover, under provincial legislation — the Juries
Act — the sheriff has a duty to obtain lists of on-reserve residents
as otherwise they would be completely excluded from the jury roll. I therefore
think that the “reasonable efforts” approach is not relevant here. While the
state does not have to prepare perfect lists, the lists must be broad-based and
substantially representative of the district. The accused does not have to
show that the defective lists, on their own, were the only or even a
substantial cause of the lack of representativeness in this jury roll. Because
it applied the “reasonable efforts” approach, the Court of Appeal did not
address the issue of a sufficient connection between state action and the lack
of representativeness. In my view, the accused here has shown a sufficient
connection because the inadequacy of the lists inevitably contributed in some
degree to the lack of representativeness of the jury.
[267]
The Crown argues, in effect, that the defective
lists had no impact on representativeness in this case. The problems with this
assertion are that (i) it is based on a conception of representativeness that
is restricted to improper exclusion, and (ii) it assumes the lists have to be
the only cause in order to conclude that they are linked to the lack of
representativeness. When applying the proper standard of sufficient
connection, the Crown’s argument fails. The many inaccuracies in the outdated
lists as well as the complete omission of four Aboriginal reserves had more
than a theoretical or speculative connection with jury representativeness.
(b) The Delivery of the Jury Notices and Questionnaires
[268]
My colleague Moldaver J. concludes that the state has a duty to
make reasonable efforts to deliver the jury notices, but concludes that such
efforts — which he characterizes as an “aggressive approach” — were made (para.
121). My colleague’s conclusion, however, is contrary to the factual findings
of the majority of the Court of Appeal which are entitled to deference.
[269]
Goudge J.A. found that the delivery of the jury
notices and questionnaires was a significant problem. LaForme J.A. also noted
that the state’s failure to evaluate the number of notices and questionnaires
returned “undelivered”, along with the response rate, “blinded [the state] to
evidence of what was actually occurring” (para. 89). It seems to me that the
delivery of notices and questionnaires to prospective jurors is also
quintessentially a state responsibility. I cannot think of who else’s
responsibility it would be. And once again, complete success is not required.
What is required is sufficient delivery that ensures that the randomness of the
sample is not undermined by defective delivery. That standard was not met here.
[270]
In 2008, nearly 28 percent of the notices mailed
to on-reserve residents in the District of Kenora were returned by the post
office undelivered. This compares with an overall provincial rate of under 6
percent for the same year. Goudge J.A. found that the delivery rates were
“markedly worse” for Aboriginal on-reserve residents and that notices to those
persons were “significantly less likely to be delivered” (para. 258). He also
found that the government’s response to this challenge was “inattention” and
“inactionˮ and that over the years, including for the 2008 jury roll,
“virtually nothing was done” to determine the causes of this problem or to
formulate potential solutions (paras. 260-62). He concluded that none of the
state’s efforts from 2001 to 2008 addressed the delivery problem. I see no
reason to question Goudge J.A.’s finding that “[t]he delivery problem therefore
presented a challenge that the state had to address” (para. 258
(emphasis added)). To the same effect, LaForme J.A. concluded that
despite the state being well aware of the low response rate (to which, of
course, non-delivery contributes) “[its] causes were never investigated so that
different modalities of engagement could be undertaken” (para. 208).
[271]
I conclude that the state is responsible for
defective delivery and that there is a sufficient connection between defective
delivery and lack of representativeness.
(c) The Return
Rates of Aboriginal On-Reserve Residents
[272]
The third problem related to rates of return of
the jury questionnaires. This problem seems to me to raise a distinct sort of
issue in relation to whether it is sufficiently linked to state action.
[273]
The return of the jury questionnaires requires
the individuals to complete and mail back the forms that they have received.
While the state has some capacity to address this matter, the low rate of
returns cannot be attributed solely to the state. Individuals also have a
responsibility to comply with their legal obligation to respond to the notices.
It follows that in assessing the connection between state action and the lack
of representativeness in relation to the return rate, we must take into account
“the practical limits of the system of justice”: Find, at para. 28,
citing R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 193. As I have
explained above, in this context, the reasonable efforts approach of the Court
of Appeal is useful, not in defining the constitutional standard, but as a
factor in assessing whether there is a sufficient connection between the
limitation of the right and state action or inaction. If the state has taken
all reasonable steps in relation to matters which it has the capacity to
address, judged in light of all of the circumstances, it cannot be held
responsible for the unsuccessful result.
[274]
This does not mean that the state can simply
wash its hands of the problem. As Goudge J.A. put it, the state’s obligation
extends beyond compiling lists and sending out notices; it also includes
encouraging responses to them. The Ministry’s own policy underlines the
importance of monitoring return rates, stating that evaluating this aspect “is
of extreme importance to the management of our jury system”: LaForme J.A., at
para. 88, citing PDB #563, 1996 Ministry of the Attorney General policy
directive.
[275]
It follows that I respectfully disagree with the
contention of the Crown and the views of my colleague Moldaver J. that there is
little responsibility on the state in relation to returns. The Crown argues
that the province’s efforts to address the low return rates were reasonable but
failed to solve the problem because “the factors contributing to the low
response rates are varied, complex, and reach beyond the immediate control of
the state”: A.F., at para. 78. My colleague Moldaver J. agrees and would hold
that the state “was not required to address systemic problems contributing to
the reluctance of Aboriginal on-reserve residents to participate in the jury
process” (para. 95). Therefore, as long as the state has provided a “fair
opportunity for a broad cross-section of society to participateˮ (para.
2), it has fulfilled its constitutional obligation.
[276]
In my respectful opinion, these views do not
give sufficient weight to the accused’s Charter rights. We are
concerned here with the right of an accused to a representative jury roll and
with the state’s obligation to provide one. Even with respect to matters not
fully under the state’s control, state responsibility is engaged when it fails
to take reasonable steps to overcome the factors contributing to the lack of
representativeness. The majority of the Court of Appeal found that those
reasonable steps were not taken.
[277]
The facts in relation to the return rate problem
are canvassed comprehensively in the reasons of LaForme J.A. and I need not
repeat all of the detail that he provides. Those facts abundantly support the
conclusion that, as Goudge J.A. put it, “[b]y 2008, therefore, the
comparatively low rate of return from Aboriginal on-reserve residents had been
well known by the state for a number of years as a significant contributing
cause of the under-representation of Aboriginal on-reserve residents on the
annual jury roll for the Kenora District” (para. 249). Goudge J.A. also found
that “[o]ff-reserve [return] rates were typically four or five times higher
than for on-reserve residents. . . . [T]he state knew of this
discrepancy for a number of years. Its impact on the under-representation of
Aboriginal on-reserve residents on the annual jury roll is obvious” (para. 263).
I cannot improve on the way Goudge J.A. summed up his assessment of the state’s
efforts:
. . . 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 . . . . The challenge of
low response rates was serious. It required more from the state. [paras.
275-76]
[278]
I conclude that the low response rate was attributable
in part to the state’s lack of reasonable efforts to address it and that the
response rate is sufficiently connected to the lack of representativeness.
(d) The Estrangement of Aboriginal Peoples From the Canadian Criminal
Justice System
[279]
Finally we come to broader, systemic factors
that undoubtedly contribute to the under-representation of Aboriginal
on-reserve residents on jury rolls. There is no doubt that underlying all of
the facts and numbers about lists, deliveries and return rates, much broader
factors are in play. These include the dissonance between traditional
Aboriginal approaches to conflict resolution and the approaches of the criminal
justice system, the historic discrimination in that system experienced by
Aboriginal peoples and their lack of understanding of the system: C.A. reasons,
at para. 272, per Goudge J.A.; Iacobucci Report, at paras. 209-30.
[280]
As the Iacobucci Report states, “the most
significant systemic barrier to the participation of First Nations peoples in
the jury system in Ontario is the negative role the criminal justice system has
played in their lives, culture, values, and laws throughout history” (para. 209).
Despite the fact that this is perhaps the most important factor responsible for
the under-representation of Aboriginal on-reserve residents on jury rolls,
until very recently there have been no concerted efforts to engage with
Aboriginal leaders in order to determine the cause of the problem and what the
state could do.
[281]
The Crown would have us ignore these considerations
because the Charter right to a representative jury roll is not an
appropriate tool to address them. My colleague Moldaver J. agrees. Again, my
colleague believes that the state is not required to address systemic problems
contributing to the estrangement of Aboriginal peoples from the criminal
justice system in order to achieve its representativeness obligation. These
views, as I see it, overlook the state’s responsibility for these factors and
thus its responsibility to make reasonable efforts to address them. Having
played a substantial role in creating these problems, the state should have
some obligation to address them in the context of complying with an accused’s
constitutional right to a representative jury roll.
[282]
We must first be clear what the phrase “systemic
problems” in this context refers to. It is a euphemism for, among other things,
racial discrimination and Aboriginal alienation from the justice system. In R.
v. Gladue, [1999] 1 S.C.R. 688, and Williams, this Court recognized
the problem of systemic bias and discrimination against Aboriginal people in
the criminal justice system.
[283]
This Court in Gladue accepted the
findings of the Royal Commission on Aboriginal Peoples and of the Aboriginal
Justice Inquiry of Manitoba to the effect that the criminal justice system in
Canada has failed to take account of the “substantially different cultural
values and experiences of aboriginal people” (paras. 62-63). In Williams,
this Court accepted that there is widespread bias against Aboriginal
people and noted that there is evidence that this widespread racism has
translated into systemic discrimination in the criminal justice system (para. 58).
Moreover, as LaForme J.A. observed, Gladue and Williams
recognized that the overrepresentation of Aboriginal people as accused was
“only the tip of the iceberg in terms of the ways in which the criminal justice
system was failing Aboriginal peoples. The under-representation of Aboriginal
people on the jury roll illustrates another part of the same iceberg, sharing
the same root causes: a relationship marked by tensions originating in the
colonial era” (para. 144).
[284]
To ignore racial discrimination against
Aboriginal people in the context of assembling a jury roll would be in marked
contrast to the approach that this Court has taken to racial discrimination
against Aboriginal people in relation to sentencing Aboriginal offenders. In Gladue,
for example, the overrepresentation of Aboriginal people in correctional
institutions was recognized to be a “sad and pressing social problem” which
sentencing innovation, on its own, could not address: para. 64; see also paras.
58 and 65. The Court nonetheless stressed the importance of following
Parliament’s direction to take the circumstances of Aboriginal offenders into
account. In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the Court
directly addressed the contention that sentencing is not an appropriate means
of addressing overrepresentation (para. 64). The Court flatly rejected this
stance, citing the Aboriginal Justice Inquiry of Manitoba:
Despite the magnitude of
the problems, there is much the justice system can do to assist in reducing the
degree to which Aboriginal people come into conflict with the law. It can
reduce the ways in which it discriminates against Aboriginal people and the
ways in which it adds to Aboriginal alienation. [para. 69]
(Citing
Report of the Aboriginal Justice Inquiry of Manitoba, vol. 1, The
Justice System and Aboriginal People (1991), at p. 111.)
The Court concluded that “[t]he
sentencing process is . . . an appropriate forum for addressing
Aboriginal overrepresentation in Canada’s prisons” (para. 70).
[285]
In the same way, in my respectful view, the
assembly of representative jury rolls — a constitutional duty — is an
appropriate forum to address racial discrimination against Aboriginal people
and Aboriginal alienation from the justice system. While there are, as in the
case of Aboriginal overrepresentation in correctional institutions, many deeply
seated causes which contribute to Aboriginal under-representation on jury
rolls, the Charter provides a basis for action, not an excuse for
turning a blind eye.
[286]
In my view, the state has contributed to these
broadly systemic problems and, failing reasonable efforts to overcome them in
the context of jury under-representation, the state action or inaction is
sufficiently linked to the under-representativeness of the jury roll in respect
of Aboriginal people. There is no doubt that this is the case here. LaForme
J.A. concluded that “[t]here is no evidence that the state took into account
the critical estrangement of Aboriginal persons from the criminal justice system
and the administration of justice . . . in its approach to the jury
representation problem” (para. 210). Similarly, Goudge J.A. concluded that “the
fundamental estrangement of Aboriginal people from the justice system is a
relevant consideration. . . . The need to address this
estrangement simply enhances the importance of the state’s efforts to provide
Aboriginal on-reserve residents with the opportunity to be included in the
annual jury roll” (para. 241). He noted, as well, that “[n]o 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 responsesˮ (para. 275).
(e) Conclusion
on the State’s Responsibility
[287]
To conclude on this point: of the four factors
that contributed to the unrepresentative jury roll, two (the lists and
delivery) were the responsibility of the state and complying with that
responsibility was within its power. The other two (the poor return rate and
Aboriginal disengagement) were matters which the state had some capacity to
address, but it failed to make reasonable efforts to do so. The majority in the
Court of Appeal also found that, prior to 2008, additional steps could and
should have been taken to address the under-representation issue if proper
attention had been paid to the problem and appropriate steps taken to
investigate in a timely way. I see no basis upon which we could interfere with
these findings on appeal.
[288]
For these reasons, I cannot accept the view of
my colleague Moldaver J. that the majority of the Court of Appeal engaged in
“hindsight” reasoning. The reasons of both LaForme and Goudge JJ.A.
meticulously record their assessment of the evidence about what the state knew
or ought to have known at the relevant times. It is not open to us to choose to
read the record differently than they did.
[289]
I am not suggesting that the state will fail in
its representativeness obligation until the day that Aboriginal estrangement
from the criminal justice system has completely disappeared. But the
intractable dimensions and complexity of the problem do not provide an excuse
for the state’s failure to make appropriate efforts in the context of complying
with the constitutional obligation to provide for a representative jury roll.
[290]
I conclude that there is a sufficient connection
between state action and inaction and the lack of a representative jury roll to
find that there was a breach by the state of the accused’s right to a
representative jury roll as guaranteed under ss. 11 (d) and 11 (f)
of the Charter .
C.
What Is the Appropriate Remedy in This Case?
[291]
Section 24(1) of the Charter grants
courts a wide discretion to craft remedies that are “appropriate and just . . .
in the circumstances”: see Doucet-Boudreau v. Nova Scotia (Minister of
Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 55-57; Canada
(Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at paras. 30-33.
In approaching the exercise of the remedial discretion exercised by the majority
of the Court of Appeal, we may only intervene if it misdirected itself on the
law or if the decision is so clearly wrong as to amount to an injustice: R.
v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 117; R. v. Babos,
2014 SCC 16, [2014] 1 S.C.R. 309, at para. 48; Canada (Minister of
Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 87; R.
v. Carosella, [1997] 1 S.C.R. 80, at para. 48.
[292]
Determining what is an appropriate remedy
following the state’s failure to provide a representative jury roll requires
examination of all the circumstances, including the nature of the breach of the
accused’s rights and its effect on public confidence in the administration of
justice. The point in the proceedings at which the issue is raised is also a
relevant consideration. If the breach is raised at the time of jury selection,
an order directing that a new roll be prepared may be the appropriate remedy.
Where, as here, the issue is raised for the first time after verdict, a
declaration may be the appropriate remedy absent the accused establishing that,
in light of all of the circumstances, a new trial is the only way to restore
public confidence in the administration of justice.
[293]
In this case, for three reasons, I conclude that
the Court of Appeal did not make any reversible error in exercising its
remedial discretion to order a new trial. In all of the circumstances here, the
failure to provide a representative jury roll undermined public confidence in
the administration of justice. In my view, courts have traditionally been slow
to excuse serious problems in jury selection as mere technicalities and we
should not do so here; the failure of the state here resulted in a drastic
under-representation on the basis of race; and, finally, the accused person
shares the race of those excluded from appropriate representation on the jury
roll.
(1) A
Properly Constituted Jury Is Not a Technicality
[294]
A properly constituted jury is the foundation of
a fair trial and of a trial that will enhance the respect in the community for
the administration of justice. For this reason, the courts have repeatedly been
very reluctant to dismiss errors in the jury selection process as mere
“technicalities”. For example, in the old case of Morin v. The Queen
(1890), 18 S.C.R. 407, Ritchie C.J. (dissenting in the result but in the
majority with respect to jury selection) said this:
. . . the
objection taken [to the process of jury selection] is not raised on a mere
technicality but is that the jury to whom the prisoner shall be given in charge
shall be legally selected, chosen and sworn . . . .
Believing then as I do,
that the prisoner has not had a legal trial I cannot by my voice send him to
the gallows. [pp. 425-26]
[295]
In McLean v. The King, [1933] S.C.R. 688,
the Court stated: “. . . in the administration of criminal justice nothing
is more important than that the constitution of the jury should be free from
all objection and that the accused should have the full advantage of every
safeguard which the law has provided to enable him to secure this right, which
is of the very essence of a fair trial” (p. 692 (emphasis added)).
[296]
In R. v. Bird, [1984] 1 C.N.L.R. 122, in
a very succinct judgment, the Saskatchewan Court of Appeal expressed a similar
sentiment, holding that “[a] process that systematically excludes, either by
design or unwittingly, an identifiable group from serving on a jury may be a
sufficient ground for vacating a conviction made by a jury selected by that
process” (p. 122). This view was subsequently reiterated by the British
Columbia Court of Appeal in Butler, in the context of allegations that
the sheriff deliberately excluded Aboriginal people from the jury roll. The
court held that such conduct could be illegal and result in an improperly
constituted jury which would then have no jurisdiction. Since the trial judge
had failed to investigate the jury selection issue, a new trial was ordered (pp.
259-60).
[297]
In Barrow, Dickson C.J. once again
emphasized the fundamental importance of jury selection. He explained that
“selection of an impartial jury is crucial to a fair trial”; that the accused,
the Crown and the public all have the right “to be sure that the jury is
impartial and the trial fair” and that on this “depends public confidence in
the administration of justice” (p. 710). He also emphasized another key point:
the importance — the “crucial” importance — of the appearance of justice,
namely “the public perception of the fairness of the proceedings” (p. 715).
[298]
Thus, it is not a full answer to an objection to
how the jury was selected to say that the accused has not shown that the trial
was in fact unfair. To treat this as a full answer ignores the important
consideration of the appearance of fairness. Any significant failure of the
jury selection process has the potential to “reflec[t] on the fairness of the
entire trial”: Barrow, at p. 719.
[299]
Most recently, the Court in Yumnu
confirmed that conduct within and surrounding the jury selection process may
constitute a miscarriage of justice even if the accused has otherwise had a
fair trial. Conduct which constitutes “a serious interference with the
administration of justice” and offends “the community’s sense of fair play and
decency” constitutes a miscarriage of justice and demands that a new trial be
ordered (para. 79). If the breach “is so serious that it destroys the
appearance of justice and fairness of the trial”, it is unnecessary to enquire
into whether the accused suffered an actual prejudice: R. v. Snow
(2004), 73 O.R. (3d) 40 (C.A.), at para. 39; see also R. v. Cameron
(1991), 2 O.R. (3d) 633 (C.A.), at pp. 638-39.
[300]
The Crown submits that the failure of counsel to
raise the issue before trial should be relevant to the appropriateness of the
remedy: defence counsel was aware of the low representation of Aboriginal
on-reserve residents and testified that he was familiar with the decision of
Stach J. in R. v. Fiddler, [1994] 4 C.N.L.R. 99 (Ont. Ct. (Gen.
Div.)), which dealt with the issue of representativeness of Aboriginal
on-reserve residents. The Crown says that there is an inconsistency between
this testimony and the respondent’s submission that counsel was not made aware
of the issue until after conviction.
[301]
I reject this submission for two reasons. First,
responsibility for complying with ss. 11 (d) and 11 (f) of the Charter
belongs to the state, not to defence counsel. It was the state’s duty to
provide a representative jury roll, not the accused’s obligation to catch its
failure to do so. Second, in any case, the Court of Appeal concluded that
defence counsel learned for the first time of the potential problems with the
2008 Kenora jury roll after conviction and the Crown did not oppose this issue
being raised for the first time on appeal. As pointed out by LaForme J.A., it
was not unreasonable for the respondent to assume that the state was complying
with its constitutional obligations. It was only on September 12, 2008 —
almost three months after the jury had rendered its verdict against Mr.
Kokopenace — that counsel learned for the first time that there was evidence of
irregularities in the jury roll process. On that date, he received a letter
with an attachment consisting of an affidavit sworn by Rolanda Peacock, Acting
Supervisor of Court Operations for the territorial district of Kenora, which
summarized the state’s efforts in respect of the 2007 Kenora jury roll. I see
no error on the part of the Court of Appeal, in the unusual circumstances here,
in refusing to deny an otherwise just and appropriate remedy on the basis that
the issue was raised late.
(2) The
Under-Representation Was on the Basis of Race
[302]
A second important consideration, in my opinion,
is that the under-representation in this case was on the basis of race. As
former Justice Iacobucci put it in his report:
The public is more likely to
perceive trials, and by extension the legal system as a whole, as being fair if
prospective jurors are representative of the wider community from which they
are drawn. Conversely, the wholesale exclusion of particular groups from the
jury pool risks undermining public acceptance of the fairness of the criminal
justice system. A jury cannot act as the conscience of the community unless it
is viewed favorably by the society that it serves. [para. 116]
[303]
As the Privy Council stated in Rojas v.
Berllaque, [2003] UKPC 76, [2004] 1 W.L.R. 201, at para. 14, “a
non-discriminatory method of compilation of the jury lists is an essential
ingredient of a fair trial by jury”. This view was also adopted by the New
Zealand Court of Appeal: R. v. Ellis, [2011] NZCA 90, [2011] 4 L.R.C.
515, at paras. 50-60. I recognize that discrimination may occur not only as
the result of intended effects of conduct, but also through the unintended
effects of conduct. That the effect (although certainly not the intention) of
the state conduct led to a substantial under-representation based on a
prohibited ground of discrimination in my opinion considerably exacerbates the
seriousness of the breach and its impact on confidence in the administration of
justice.
(3) The
Accused Is an Aboriginal Man
[304]
Finally, we should not, in my view, be blind to
the fact that the accused in this case is a member of the race that was wrongly
excluded from adequate representation on the jury roll. This Court has
repeatedly referred to the systemic discrimination against Aboriginal people in
the criminal justice system. The unintentional yet substantial
under-representation of members of that race from the jury roll inevitably, in
my view, casts a long shadow over the appearance that justice has been done. It
seems to me that the Court should not, on one hand, direct other courts to take
these social realities into account while, on the other, choosing to ignore
these same realities when they confront us in an awkward context. In my view,
it could not be clearer that, as a result of state action and inaction, persons
of the accused’s race were substantially under-represented on the jury roll.
[305]
The 2008 jury roll for Kenora consisted of 699
potential jurors of whom 29 were Aboriginal on-reserve residents. Thus,
Aboriginal on-reserve residents formed 4.1 percent of the jury roll while
representing about 30 percent of the adult population of the judicial district.
This significant under-representation, not surprisingly, was transmitted to the
jury panel summoned for Mr. Kokopenace’s trial. It consisted of 175 jurors, 8
of whom — 4.6 percent — were on-reserve residents. In the event, four of the
eight were excused and two did not respond to the summons.
(4) Conclusion
Respecting Remedy
[306]
I see no reviewable error in the conclusion of
the majority of the Court of Appeal that the failure to provide a
representative jury roll in the circumstances of this case undermined public
confidence in the integrity of the justice system and the administration of
justice. As a result, I would affirm the Court of Appeal’s decision to order a
new trial.
IV.
Disposition of the Appeal
[307]
I would dismiss the appeal.
Appeal
allowed, McLachlin C.J. and
Cromwell J. dissenting.
Solicitor
for the appellant: Attorney General of Ontario, Toronto.
Solicitors
for the respondent: Sack Goldblatt Mitchell, Toronto; Doucette Boni Santoro
Furgiuele, Toronto.
Solicitors
for the intervener the Advocates’ Society: Greenspan Humphrey Lavine, Toronto; Hensel Barristers, Toronto; University of Toronto, Toronto.
Solicitors
for the intervener the Nishnawbe Aski Nation: Falconers, Toronto.
Solicitors
for the interveners the David Asper Centre for Constitutional Rights and the
Women’s Legal Education and Action Fund, Inc. (LEAF): University of Toronto,
Toronto; Women’s Legal Education and Action Fund, Inc. (LEAF), Toronto.
Solicitors
for the interveners the Native Women’s Association of Canada and the Canadian
Association of Elizabeth Fry Societies: Law Office of Mary Eberts, Toronto.
Solicitors for the
intervener the Aboriginal Legal Services of Toronto Inc.: Aboriginal Legal
Services of Toronto, Toronto.