Ontario’s top court ordered a new trial Friday for a man convicted of killing his friend after concluding that his rights had been violated because the province failed to ensure adequate aboriginal representation when it assembled its list of potential jurors — a problem that was “known and worsening” for years.
One legal expert said the ruling has the potential to influence court decisions in other areas in Canada with large aboriginal populations, and furthers the argument that aboriginal defendants — particularly in serious cases — deserve to be judged by juries with “distinct aboriginal perspectives.”
“Perhaps the inclusion of a multiplicity of personalities and perspectives can act as a safeguard against innocent conviction,” said David Milward, a law professor at the University of Manitoba.
“Other courts could pick up on (the decision) and build on that.”
In 2008, a non-aboriginal jury in Kenora, Ont., convicted Clifford Kokopenace of manslaughter in the stabbing death of his friend on the Grassy Narrows reserve in northwestern Ontario.
As part of an appeal, his lawyers argued that the jury that convicted him was drawn from a larger list of potential jurors that failed to include adequate representation from aboriginal on-reserve residents, violating Kokopenace’s charter rights.
The District of Kenora has a large number of First Nation reserves and First Nation residents comprise about 33 per cent of the population. Yet, of the 699 potential jurors on the 2008 jury roll, only 29 were on-reserve residents — about 4.1 per cent.
In a 2-1 decision Friday, the Ontario Court of Appeal agreed that Kokopenace’s charter rights had been violated and set aside his manslaughter conviction.
Even though the province had developed an “Aboriginal Justice Strategy,” which committed to, among other things, increasing aboriginal participation in the administration of justice, the policy was “virtually ignored” when it came to forming juries, wrote Justice Harry LaForme for the majority.
In the District of Kenora, the state left the job of compiling the jury roll — and ensuring adequate inclusion of on-reserve residents on that roll — essentially to a single junior worker.
“The state was obliged to do more than to rely on the efforts of a sole individual in a local court office,” he said.
LaForme noted that the worker relied at times on outdated band lists in reaching out to on-reserve residents for inclusion in the jury roll process. And those who did receive jury service notices often would not respond to them, posing further challenges. Yet, the province’s effort to address these problems was “sorely lacking.”
“The integrity of the process was fundamentally compromised by the inattention paid by the state to a known and worsening problem, year after year.”
LaForme also wrote that the problem of under-representation in the jury roll must be viewed in the context of over-representation of aboriginals in the justice system, noting that over 20 per cent of inmates in federal penitentiaries are aboriginal.
A spokesman for the Ontario government says the province is working to implement some of the recommendations made by former Supreme Court justice Frank Iacobucci (shown), who released a report in February that said action is “desperately needed” to address under-representation of aboriginals on juries.
In a dissenting opinion, Justice Paul Rouleau said the government faced a complex problem and made “reasonable” efforts to try to address the lack of aboriginal representation on jury rolls.
In a statement Friday, Brendan Crawley, a spokesman for Ontario’s Ministry of the Attorney General, said the decision was under review.
“I can tell you that the ministry remains committed to working collaboratively with all First Nations to develop initiatives that will improve First Nations jury participation,” he said.
Crawley added that the province is working to implement some of the recommendations made by former Supreme Court justice Frank Iacobucci, who released a report in February saying action is “desperately needed” to address under-representation of aboriginals on juries.
“We are actively working on Mr. Iacobucci’s two threshold recommendations — to create an implementation committee to address the report’s recommendations and an advisory group to provide the attorney general with advice on justice issues affecting First Nations,” Crawley said.
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