Court headnote

R. v. Kokopenace
Collection
Supreme Court Judgments
Date
2015-05-21
Neutral citation
2015 SCC 28
Report
[2015] 2 SCR 398
Case number
35475
Judges
McLachlin, Beverley; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 35475
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398
Date: 20150521
Docket: 35475
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

Court headnote

R. v. Kokopenace Collection Supreme Court Judgments Date 2015-05-21 Neutral citation 2015 SCC 28 Report [2015] 2 SCR 398 Case number 35475 Judges McLachlin, Beverley; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément On appeal from Ontario Subjects Constitutional law Notes SCC Case Information: 35475 Decision Content SUPREME COURT OF CANADA Citation: R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398 Date: 20150521 Docket: 35475 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

R. v. Kokopenace

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R. v. Kokopenace

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