R. v. Kokopenace (C.), 2013 ONCA 389

• Judge: Goudge, LaForme and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 14, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 389;(2013), 306 O.A.C. 47 (CA)

R. v. Kokopenace (C.) (2013), 306 O.A.C. 47 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JN.018

Her Majesty the Queen (respondent) v. Clifford Kokopenace (C49961) (appellant) and Clare Spiers (C48160) (appellant) and Nishnawbe Aski Nation, Bushie Family and Pierre Family, and David Asper Centre for Constitutional Rights (interveners)

(C49961; C48160; 2013 ONCA 389)

Indexed As: R. v. Kokopenace (C.)

Ontario Court of Appeal

Goudge, LaForme and Rouleau, JJ.A.

June 14, 2013.

Summary:

The accused, Kokopenace, was convicted of manslaughter. The accused appealed, arguing that the petit jury that found him guilty was derived from a jury roll that, because of the process used to prepare it, inadequately ensured representative inclusion of Aboriginal on-reserve residents thereby violating his rights under ss. 11(d), 11(f) and 15 of the Charter and the Juries Act (Ont.).

The Ontario Court of Appeal, Rouleau, J.A., dissenting, allowed the appeal, quashed the conviction and ordered a new trial. The accused established a breach of his right to representativeness of the jury roll contrary to ss. 11(d) and 11(f) of the Charter and a breach of s. 6(8) of the Juries Act.

Civil Rights - Topic 1125

Discrimination - Criminal and quasi-criminal law - Jury selection - The accused appealed his manslaughter conviction, arguing that the petit jury that found him guilty was derived from a jury roll that, because of the process used to prepare it, inadequately ensured representative inclusion of Aboriginal on-reserve residents thereby violating his equality rights (Charter, s. 15) - The Ontario Court of Appeal held that the accused failed to make out a violation of his equality rights - See paragraphs 215 to 223 and 234.

Civil Rights - Topic 3138

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to jury and jury selection (Charter s. 11(f)) - [See all Civil Rights - Topic 3146 ].

Civil Rights - Topic 3146

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Jury selection (Charter s. 7 or 11(d)) - The accused appealed his manslaughter conviction, arguing that the jury was derived from a jury roll that, because of the process used to prepare it, inadequately ensured representative inclusion of Aboriginal on-reserve residents thereby violating his right to representativeness of the jury roll (Charter, ss. 11(d) and 11(f) and Juries Act, s. 6(8)) - The Ontario Court of Appeal examined the situation with respect to inclusion of Aboriginal persons on the jury roll in the Kenora District and held that the Crown failed to make reasonable efforts to meet its constitutional obligations, thereby breaching the accused's rights under ss. 11(d) and 11(f) of the Charter and s. 6(8) of the Juries Act - See paragraphs 159 to 213 and 233 and 234.

Civil Rights - Topic 3146

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Jury selection (Charter s. 7 or 11(d)) - The Ontario Court of Appeal discussed the right to a representative jury roll (Charter, ss. 11(d) and 11(f)) - The court stated that only if the process began with a properly representative jury roll, could a petit jury randomly derived from it have the required element of representativeness - The court stated that to meet its representativeness obligation, the state had to make reasonable efforts at each step of creating the jury roll - That included the state's actions in compiling the lists, but also in sending the notices, facilitating their delivery and receipt and encouraging the responses to them - The objective of the state's actions had to be to seek to provide the platform necessary to select an impartial petit jury and to maintain public confidence in the criminal justice system by providing groups that brought distinctive perspectives to the jury process with their fair opportunity to be included in the jury roll - See paragraphs 14 to 51, 233, 234 and 278.

Civil Rights - Topic 3146

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Jury selection (Charter s. 7 or 11(d)) - At issue was whether the Province of Ontario breached its constitutional obligations (Charter, ss. 11(d) and 11(f)) by insufficiently including Aboriginal on-reserve residents in the jury roll process - The Ontario Court of Appeal held that the analysis of the state's efforts in respect of jury roll preparation had to be a contextual one - The Crown's efforts had to be evaluated in light of the honour of the Crown and the duty to consult - Further, the problem of under representation on the jury roll had to be viewed in light of the over representation of Aboriginal persons in Canadian prisons and the problem of Aboriginal estrangement from the criminal justice system - See paragraphs 121 to 151.

Civil Rights - Topic 3146

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Jury selection (Charter s. 7 or 11(d)) - The Ontario Court of Appeal stated that "To be Charter-compliant, the state's process for preparing the jury roll must bring the possibility that the distinctive perspectives of Aboriginal on-reserve residents will be included in the petit jury. Under the test established herein, the state must have made reasonable efforts, considering all the circumstances known to it, to fulfill its obligation such that Aboriginal on-reserve residents were given a fair opportunity to have their distinctive perspectives included in the jury roll." - See paragraph 205.

Criminal Law - Topic 4311

Procedure - Jury - General - Challenging the array - [See all Civil Rights - Topic 3146 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - In Ontario, the jury roll was randomly selected from the names listed on the most recent municipal enumeration - Because the municipal enumeration process did not capture those who resided on Indian reserves, to ensure representativeness, s. 6(8) of the Juries Act permitted the sheriff to randomly select names from a list of on-reserve residents to receive jury notices - The Ontario Court of Appeal stated that "... Ontario has chosen to implement this constitutional obligation through a statutory scheme - s. 6(8) of the Juries Act - that explicitly treats Aboriginals (specifically, those living on reserve) separately and differently from the remainder of the population. In such circumstances, the principle of the honour of the Crown is engaged to the extent that this historical context must be kept in mind when assessing Ontario's conduct for constitutional sufficiency. To be clear, the honour of the Crown attaches not because the appellant is Aboriginal, but because the means through which Ontario has chosen to fulfill the appellant's constitutional right to a representative jury requires the government to interact with Aboriginal people differently than with all other people. It is the manner of that interaction to which the honour of the Crown applies." - See paragraphs 127 to 129.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - [See all Civil Rights - Topic 3146 ].

Cases Noticed:

R. v. Spiers (C.A.) (2012), 299 O.A.C. 47; 113 O.R.(3d) 1; 2012 ONCA 798, refd to. [para. 3].

Nishnawbe Aski Nation et al. v. Eden (2011), 281 O.A.C. 102; 104 O.R. (3d) 321; 2011 ONCA 187, refd to. [paras. 13, 310].

Pierre v. McRae, Coroner - see Nishnawbe Aski Nation et al. v. Eden.

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161, refd to. [para. 25].

R. v. Church of Scientology of Toronto et al. (1997), 99 O.A.C. 321; 33 O.R.(3d) 65 (C.A.), leave to appeal refused (1998), 227 N.R. 291; 112 O.A.C. 397 (S.C.C.), refd to. [para. 26].

R. v. Roach (K.) (2009), 246 O.A.C. 96; 2009 ONCA 156, refd to. [para. 55].

R. v. A.F. (1994), 30 C.R.(4th) 333 (Ont. Gen. Div.), refd to. [paras. 67, 248].

Nishnawbe Aski Nation v. Eden (2009), 259 O.A.C. 1 (Div. Ct.), refd to. [para. 76].

Manitoba Métis Federation Inc. v. Canada (Attorney General) (2013), 441 N.R. 209; 291 Man.R(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [para. 123].

Little Salmon/Carmacks First Nation et al. v. Beckman et al., [2010] 3 S.C.R. 103; 408 N.R. 281; 295 B.C.A.C. 1; 501 W.A.C. 1; 2010 SCC 53, refd to. [para. 123].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 124].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 125].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, refd to. [para. 138].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 139].

R. v. Kakekagamick (M.R.) (2006), 214 O.A.C. 127; 81 O.R.(3d) 664 (C.A.), refd to. [para. 140].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 141].

Canada (Attorney General) v. Leonard (2012), 296 O.A.C. 258; 112 O.R.(3d) 496; 2012 ONCA 622, refd to. [para. 142].

United States of America v. Leonard - see Canada (Attorney General) v. Leonard.

Frontenac Ventures Corp. v. Ardoch Algonquin First Nation et al. (2008), 239 O.A.C. 257; 91 O.R.(3d) 1; 2008 ONCA 534, refd to. [para. 142].

R. v. Sim (D.R.) (2005), 203 O.A.C. 128; 78 O.R.(3d) 183 (C.A.), refd to. [para. 142].

R. v. Nahdee (1993), 26 C.R.(4th) 109 (Ont. C.J. (Gen. Div.), refd to. [paras. 160, 303].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [paras. 179, 300].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1, refd to. [para. 183].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 331].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(d), sect. 11(f) [para. 24].

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

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007) (Looseleaf), para. 38.4 [para. 79].

Iacobucci, Frank, First Nations Representation on Ontario Juries (Toronto: February 2013), Appendix A, pp. 53, 56 [para. 150]; 95 [para. 58].

Israel, Mark, The Underrepresentation of Indigenous People on Canadian Jury Panels (2003) 25(1) Law and Policy 37, pp. 39, 40 [para. 149].

New Zealand, Ministry of Justice, Guide for Consultation with Mäori (1998), p. 31 [para. 133].

Counsel:

Jessica Orkin, Paul Burstein and Delmar Doucette, for Clifford Kokopenace;

Jessica Orkin and Anthony Moustacalis, for Clare Spiers;

Michal Fairburn, Scott Latimer, Gillian Roberts and Deborah Calderwood, for the respondent;

Jonathan Rudin and Christa Big Canoe, for the Bushie and Pierre families;

Cheryl Milne and Kent Roach, for the David Asper Centre for Constitutional Rights;

Julian N. Falconer and Sunil S. Mathai, for the Nishnawbe Aski Nation.

This appeal was heard on April 30 and May 2 to 4, 2012, before Goudge, LaForme and Rouleau, JJ.A., of the Ontario Court of Appeal. The following decision was delivered on June 14, 2013, including the following opinions:

LaForme, J.A. - see paragraphs 1 to 232;

Goudge, J.A. (concurring) - see paragraphs 233 to 277;

Rouleau, J.A., dissenting - see paragraphs 278 to 336.