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Supreme Court limits government’s duty to ensure juries are representative

May 21, 2015

Supreme Court overturns Court of Appeal’s finding that jury roll did not adequately ensure inclusion of Aboriginal persons

The Supreme Court of Canada has reinstated a manslaughter conviction in a case that raised questions about the government’s obligation to ensure that Aboriginal persons are included on the jury roll.


Clifford Kokopenace, an Aboriginal man who lived on a First Nation reserve in the district of Kenora, was convicted of manslaughter after a trial by judge and jury.

A majority of the Ontario Court of Appeal ordered a new trial. It found that Mr. Kokopenace’s rights under sections 11(d) and 11(f) of the Canadian Charter of Rights and Freedoms had been violated because the jury roll from which his jury was selected was not sufficiently representative. While the on-reserve adult population in Kenora District accounted for approximately one third of the adult population, on-reserve residents made up only 4% of the jury roll in 2008 (the year in question). The Court held that his jury was derived from a jury roll that did not adequately ensure the inclusion of Aboriginal on-reserve residents.

The Supreme Court of Canada reverses the decision

However, a majority of the Supreme Court of Canada has allowed the Crown’s appeal, set aside the order for a new trial and reinstated Mr. Kokopenace’s manslaughter conviction.

The majority held that the Charter concept of “representativeness” focuses on the process used to compile the jury roll, and not its ultimate composition. The question to be asked, according to the majority, was whether “the state provided a fair opportunity for a broad cross-section of society to participate in the jury process.” To comply with its Charter obligations, the state must make “reasonable efforts”, by (1) compiling the jury roll using random selection from lists that draw from a broad cross-section of society, and (2) delivering jury notices to those who have been randomly selected.

In the words of the majority, “if the state makes reasonable efforts but part of the population is excluded because it declines to participate, the state will nonetheless have met its constitutional obligation.” Moreover, it held, the state has no constitutional responsibility to direct its efforts towards particular groups that are known to be underrepresented. The state has no obligation to address any of the systemic barriers that may limit jury participation by certain segments of society. It is solely the adequacy of the process used, rather than the adequacy of the results achieved by that process, that counts.

In a strongly worded dissent, Justices Cromwell and McLachlin found that the government’s efforts were not sufficient to meet its constitutional obligation. For the minority, the starting point was not the state’s efforts to comply with this obligation, but whether the jury roll it produced was, in fact, representative of the population of the district. In short, did the jury roll resemble the group that would have been selected through a process of random selection? The minority decried the majority’s formalistic approach to the problem of under-representative juries. According to the minority, while the accused must demonstrate a substantial connection between state (in)action and the under-representativeness of on-reserve Aboriginal people on juries, the results of those efforts cannot be overlooked, particularly when the results show a “significant departure” from a properly-conducted process.

The majority did acknowledge the stark discrepancy between the number of on-reserve residents in Kenora and the proportion reflected on the jury roll. Yet it concluded that subsections 11(d) and 11(f) of the Charter are not the mechanisms by which to address systemic discrimination and the exclusion of Aboriginal peoples from juries. The majority warned that a results-based approach to sections 11(d) and 11(f) of the Charter would transform the jury selection process into “a public inquiry into the historical and cultural wrongs and damaged relationships between particular societal groups and our criminal justice system and the failings of the state to take adequate steps to address them.” In so doing, they did not engage with the fact that the “particular societal group” under-represented on the jury roll in this case was Aboriginal people living on reserve, an undeniably disadvantaged and vulnerable group, in relation to whom the state has a special relationship and obligations.

In this sense, the majority’s conclusions diverge from the guiding principles set down in early Supreme Court equality jurisprudence under the Charter: that it is the effect of state action that matters most.

For instance, in Andrews v. Law Society of British Columbia, decided under s. 15 of the Charter, the Supreme Court rejected the notion of “formal” equality, which ignored the systemic disadvantages facing certain groups and instead sought to simply treat like alike, opting instead for “substantive” equality, that is, equality in effect.

While s. 15 of the Charter was not addressed due to limitations in the record in Kokopenace, this effects-based rather than formalistic approach to Charter rights, well-established in the Supreme Court’s own jurisprudence, ought to have been considered.

See this case comment published by Canadian Bar Association’s National Magazine.


Jessica Orkin

Practice Areas

Aboriginal Law, Appeals & Judicial Review, Constitutional Law, Criminal Law