Nishnawbe Aski Nation et al. v. Eden, (2011) 281 O.A.C. 102 (CA)

• Judge: Weiler, Laskin and Sharpe, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 21, 2010
• Jurisdiction: Ontario
• Citations: (2011), 281 O.A.C. 102 (CA);2011 ONCA 187

Nishnawbe Aski Nation v. Eden (2011), 281 O.A.C. 102 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. MR.006

Elizabeth Pierre and Marlene Pierre (applicants/appellants) v. Dr. Shelagh McRae, Coroner (respondent/respondent)

Nishnawbe Aski Nation, Rhoda King and Berenson King (applicants/appellants) v. Dr. David Eden, Coroner (respondent/respondent)

(C51589; C51590; 2011 ONCA 187)

Indexed As: Nishnawbe Aski Nation et al. v. Eden

Ontario Court of Appeal

Weiler, Laskin and Sharpe, JJ.A.

March 10, 2011.

Summary:

A coroner's inquest was set up to inquire into the death by drowning of Bushie, a 15 year old First Nation student from Poplar Hill First Nation who was attending high school in Thunder Bay. A coroner's inquest was also set up to inquire into the death, by drug overdose, in a Thunder Bay District Jail cell, of First Nations person Pierre. An issue arose as to whether the inquest juries were representative of First Nations people within the Thunder Bay District, given s. 6(8) of the Juries Act (Ont.). The deceased's families brought motions asking the coroners to issue a summons to an employee of the Ontario Ministry of the Attorney General to give evidence on the selection and composition of the jury roll in the Thunder Bay District. The coroners refused. Two applications for judicial review were brought, one by the Nishnawbe Aski Nation (NAN) and Bushie's family, the other by the Pierre family. The applicants also moved for a stay of the inquests pending determination of their judicial review applications.

The Ontario Divisional Court, per Karakatsanis, J., in a decision reported 254 O.A.C. 224, granted a stay of the Bushie inquiry. Karakatsanis, J., also indicated that there would be no stay of the Pierre inquiry as it had already begun. NAN and the Bushie family appealed.

The Ontario Divisional Court, in a decision reported 259 O.A.C. 1, dismissed the Pierre family's application. The Pierre family appealed. In the meantime, the Pierre inquiry was completed.

The Ontario Court of Appeal allowed the appeals. The court ordered a new inquiry into the Pierre death. The court also ordered that a summons be issued to the Attorney General's employee to testify at both inquiries in respect of the establishment of the jury roll in the Thunder Bay District, and especially about the efforts to comply with s. 6(8) and the results of those efforts.

Coroners - Topic 4003

Inquests and fatality inquiries - General - Functions of coroner - The Ontario Court of Appeal stated that a coroner's inquest had two functions: a narrow investigative function and a broader public interest function - See paragraphs 21 and 22.

Coroners - Topic 4003

Inquests and fatality inquiries - General - Functions of coroner - [See third, fourth and fifth Coroners - Topic 4208 ].

Coroners - Topic 4062

Inquests and fatality inquiries - Judicial review - Ordering a new inquiry - The Ontario Court of Appeal, on appeal, ordered that a second coroner's inquest into the death of a First Nations person be held where the first inquest had been marred by the legitimate but unresolved concern about the representativeness of the jury roll and the consequent withdrawal of the deceased's family - See paragraphs 75 to 77.

Coroners - Topic 4208

Inquests and fatality inquiries - The jury - General - Jury selection - The Ontario Court of Appeal discussed the process for selecting a coroner's jury - See paragraphs 23 to 27.

Coroners - Topic 4208

Inquests and fatality inquiries - The jury - General - Jury selection - The Ontario Court of Appeal discussed the importance of a representative jury at a coroner's inquest - See paragraphs 28 and 29.

Coroners - Topic 4208

Inquests and fatality inquiries - The jury - General - Jury selection - The Ontario Court of Appeal held that coroners had jurisdiction to inquire into the representativeness of a jury roll by necessary implication, in order to fulfil their statutory mandate under the Coroners Act (Ont.) - See paragraphs 30 to 38.

Coroners - Topic 4208

Inquests and fatality inquiries - The jury - General - Jury selection - The Ontario Court of Appeal held that an inquest into the death of a First Nations person that was adjudicated by a jury chosen from a jury roll that excluded First Nations persons on reserves would not be seen as a fair and just inquest or an inquest in which the public would have confidence - It would amount to an abuse of process within s. 50(1) of the Coroners Act (Ont.) - Therefore, in order to fulfill the coroner's statutory mandate to prevent an abuse of process at an inquest, the coroner, by necessary implication, had the jurisdiction to inquire into the representativeness of a jury roll - See paragraphs 39 to 42.

Coroners - Topic 4208

Inquests and fatality inquiries - The jury - General - Jury selection - The Ontario Court of Appeal stated that a coroner appointed under the Coroners' Act (Ont.) had remedial authority to address concerns about an unrepresentative jury roll - See paragraphs 43 to 47.

Coroners - Topic 4208

Inquests and fatality inquiries - The jury - General - Jury selection - In a case that concerned inquests into the death of two First Nations persons in the Thunder Bay District, the Ontario Court of Appeal held that representativeness was a key characteristic of a jury, a characteristic that enhanced the likelihood of the other key characteristic of a jury, its impartiality - It was a substantive and not merely a technical requirement for the proper functioning of a jury - Thus, neither s. 44 of the Juries Act (Ont.), nor s. 36 of the Coroners Act (curative provisions) could "cure" an unrepresentative jury roll - And they certainly could not be used to cure a roll that reflected the systemic exclusion of First Nations persons - See paragraphs 48 to 56.

Coroners - Topic 4208

Inquests and fatality inquiries - The jury - General - Jury selection - The present case concerned inquests into the death of two First Nations persons in the Thunder Bay District - The deceased's families raised the issue of whether the inquest juries were representative of First Nations people within the Thunder Bay District, given s. 6(8) of the Juries Act (Ont.) - They sought an order that the coroner issue summons to an employee of the Ontario Ministry of the Attorney General to give evidence on the selection and composition of the jury roll in the Thunder Bay District - On appeal, after ruling that the Coroner had remedial authority to address concerns about an unrepresentative jury roll, the Ontario Court of Appeal ordered the coroner to issue the summons sought - The families established a nexus between the expected evidence of the employee and the purpose of the inquest - The families also brought sufficient evidence to justify a further inquiry on jury representativeness in the Thunder Bay District - That evidence included the following: (1) the federal Department of Indian and Northern Affairs' (INAC) decision, taken in 2000, to cease providing band electoral lists to the Provincial Jury Centre; (2) the state of the jury roll in the Kenora District in the aftermath of INAC's decision; and (3) the unwillingness of either the Attorney General's employee or the coroners' counsel to be forthcoming about whether First Nations living on reserves were included on the jury roll from which the inquest juries were to be chosen - See paragraphs 43 to 47, and 57 to 74.

Cases Noticed:

People First of Ontario et al. v. Regional Coroner of Niagara et al. (1991), 50 O.A.C. 90; 5 O.R.(3d) 609 (Div. Ct.), revd. (1992), 54 O.A.C. 187; 6 O.R.(3d) 289 (C.A.), consd. [para. 22].

R. v. Gayle (C.) (2001), 145 O.A.C. 115; 54 O.R.(3d) 36 (C.A.), consd. [para. 28].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, consd. [para. 32].

R. v. Cunningham - see Cunningham v. Lillies et al.

Cunningham v. Lilles et al., [2010] 1 S.C.R. 331; 399 N.R. 326; 283 B.C.A.C. 280; 480 W.A.C. 280, consd. [para. 33].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291, consd. [para. 40].

Booth et al. v. Huxter (1994), 69 O.A.C. 1; 16 O.R.(3d) 528 (Div. Ct.), consd. [para. 40].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, consd. [para. 52].

R. v. Butler (1984), 63 C.C.C.(3d) 243 (B.C.C.A.), refd to. [para. 55].

R. v. Varga (1985), 7 O.A.C. 350; 18 C.C.C.(3d) 281 (C.A.), refd to. [para. 55].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 55].

Hrup v. Cipollone et al. (1994), 73 O.A.C. 269; 19 O.R.(3d) 715 (C.A.), refd to. [para. 55].

Reid v. Wigle (1980), 29 O.R.(2d) 633 (Div. Ct.), refd to. [para. 58].

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161; 3 W.A.C. 161, refd to. [para. 61].

Statutes Noticed:

Coroners Act, R.S.O. 1990, c. C-37, sect. 33(2) [para. 27]; sect. 34 [para. 26]; sect. 36 [para. 48]; sect. 40(1) [para. 57].

Juries Act, R.S.O. 1990, c. J-3, sect. 6(8) [para. 25]; sect. 44 [para. 48].

Counsel:

Jonathan Rudin, for the appellants, Elizabeth Pierre, Marlene Pierre, Rhoda King and Berenson King;

Julian N. Falconer and Julian K. Roy, for the appellant, Nishnawbe Aski Nation;

Kim Twohig and Michael E. Burke, for the respondents;

Suzan E. Fraser, for the intervener, Provincial Advocate for Children and Youth.

These appeals were heard on September 21, 2010, by Weiler, Laskin and Sharpe, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Laskin, J.A., and released on March 10, 2011.