Library of Parliament Analysis of Aboriginal Representation on Juries

The Library of Parliament today published a post on its HillNotes blog that refers to the recent Supreme Court of Canada decision in R. v. Kokopenace that looked at the right of an Aboriginal accused person to be tried by a representative jury.

The case dealt with  the right to a fair trial by an impartial tribunal under section 11(d ) of the Canadian Charter of Rights  and Freedoms and the right to a trial by jury for certain offences under section 11(f ).

In the original case in 2008 in the Superior Court of Kenora, Ontario, the accused was found guilty of manslaughter by a jury. Aboriginal on-reserve residents represent about 30% of the adult population in the judicial district, but  accounted for only 4% of the jury roll from which the actual jurors were selected.

The accused Clifford Kokopenace is an Aboriginal man from the Grassy Narrows First Nation reserve.

The Court ruled that the manner in which the jury roll was created in this case did not violate the constitutional right of the accused to a representative jury:

"The majority of Supreme Court justices ... stated that the province would meet its constitutional obligation by providing a fair opportunity for a broad cross-section of society to participate in the jury process, irrespective of the ultimate composition of the jury roll. A fair opportunity will have been provided when the state makes reasonable efforts to compile the jury roll using random selection from lists that draw from a broad cross‑section of society, and deliver jury notices to those who have been randomly selected."

"The majority ruled that it is beyond the scope of section 11 to require that the state encourage the participation of Aboriginal peoples on juries, or address systemic issues related to their disengagement from the justice system."

"They held that the state will only violate the right to an impartial tribunal that is set out in section 11(d ) if it deliberately excludes a particular group, or if its efforts are 'so deficient that they create an appearance of partiality'. "

(...)

"The two dissenting judges defined a representative jury roll as one that substantially resembles the group that would be assembled through a process of random selection. They stated that the jury roll will comply with section 11 as long as the state takes appropriate steps to ensure that random selection will result in a group that is broadly representative of the community from which it is drawn."