Supreme Court of Canada addresses jury composition and Aboriginal Equality.

• Author: McKay-Panos, Linda

A few months ago, this human rights column was about the Ontario Court of Appeal's decision in R v Kokopenace, 2013 ONCA. The major issues in Kokopenace were the scope of the right to representativeness on the jury roll (a list of persons who are eligible to serve on a jury) under sections 11(d), 11(f) and/or 15 of the Canadian Charter of Rights and Freedoms (Charter), and whether Ontario violated that right.

The applicable sections of the Charter read as follows:

11. Any person charged with an offence has the right...

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;...

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

15.(1)Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Ontario Court of Appeal Decision

The majority of the Ontario Court of Appeal held that the quality of the effort of the provincial government to prepare a representative jury roll (where the race of eligible jury members properly represents First Nations peoples) was sorely lacking. For example, it had relied on the "sole efforts of an individual in a local court office". The majority of the Ontario Court of Appeal held that both sections 11(d) and (f) of the Charter were violated, so it did not have to deal with the Charter section 15(1) issue, but the Court went on to determine that section 15 was not violated. The remedies granted included granting Kokopenace a new trial.

In dissent, Justice Rouleau agreed that, while there were issues present with regard to lack of Aboriginal representation, he believed that the Ontario government's efforts to address the issues were reasonable under the circumstances. He also noted that the historical alienation of Aboriginal peoples in the justice system is a complex problem requiring systemic change that should be addressed by legislatures and not by courts.

Supreme Court Decision

The majority of the Supreme Court of Canada (SCC) recently overturned the majority of the Ontario Court of Appeal, and agreed with the dissenting justice. (R...