The Right to a Representative Jury and the Kokopenace Appeal: One Step Forward, Two Steps Back
The Right to a Representative Jury and the Kokopenace Appeal: One Step Forward, Two Steps Back, For The Defence: The Criminal Lawyers’
Association Newsletter (October 19, 2015) Vol. 36 No. 2 pp. 10-17
In this article, written for the Criminal Lawyers’ Association newsletter, Jessica Orkin discusses the Supreme Court of Canada’s decision in R. v. Kokopenace. The issue in Kokopenace was the under-representation of Aboriginal people on jury rolls, and the nature and extent of the state’s duty to address that problem.
While the Supreme Court held that the state must provide “a fair opportunity for a broad cross-section of society to participate in the jury process,” the majority held that it has no constitutional responsibility to direct efforts towards particular groups that are known to be underrepresented, or to address address any systemic barriers that may limit jury participation by certain segments of society. In the majority’s view, the only question is the adequacy of the process used by the state; the adequacy of the results achieved by that process are not relevant.
Jessica analyses the different approaches taken in the majority and minority judgments. She concludes that the majority judgment is at odds with the Court’s s. 15 equality jurisprudence, and with its Charter jurisprudence generally.