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On May 21st 2015, the Supreme Court of Canada released its decision in R. v. Kokopenace, which concerned the right of an Aboriginal accused to trial by a representative jury. Mr. Kokopenace was a member of Grassy Narrows First Nation, living on reserve, and was accused of second degree murder in the stabbing death of a friend. He was convicted of the lesser offence of manslaughter. However, just before sentencing, his counsel became aware that there may have been problems with the inclusion of Aboriginal on-reserve residents on the jury roll.

The SCC considered evidence regarding Ontario’s jury selection process. The province had recognized that greater efforts were needed to enhance on-reserve resident participation in the process. As a result, policy changes were made, and the Honourable Frank Iacobucci was appointed to study the underrepresentation of on-reserve residents. The Iacobucci report, issued in February 2013, found that while there were difficulties in getting accurate source lists, the more significant underlying obstacles to on-reserve resident representation in juries arose from – as the court put it – the “history of Aboriginal estrangement from the justice system and the mistrust of that system that has resulted”.

The majority determined that the efforts of Ontario to satisfy its representativeness obligations, while not perfect, were reasonable. There is no obligation on a province to actively solicit and encourage responses to jury questionnaires by Aboriginal on-reserve residents.

What exactly is the province’s obligations when it comes to ensuring a person’s right to trial by an independent and impartial jury? Impartiality is guaranteed through the representativeness of the jury. However, the majority stated that representativeness does not mean that the jury must have a particular composition. Rather, a jury is representative if source lists based on a broad cross-section of society are used and the eligible jurors are randomly selected from those source lists. This process ensures that the jury is impartial, and affirms its role as the “conscience of the community”.

However, the Chief Justice and Justice Cromwell disagreed with this approach. In the dissenting decision, they stated that representativeness should focus on whether the jury roll is as representative of the community as would be a group of individuals selected randomly from that community. This is a results-based approach. Failing to ensure that the jury roll is representative of a community may undermine the representativeness of the process.

With the dissenting decision, the door to challenge the representativeness of a jury may still be open. The majority also appears to concede that if there is evidence that the lack of representativeness resulted in a partial jury, then a claim that the rights of an Aboriginal offender were violated may succeed. However, until that time, First Nations should encourage on-reserve residents to participate in the jury selection process to ensure better representativeness of Aboriginals on juries and a greater consideration of the realities of on-reserve life.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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