Thursday, May 21, 2015


Of the Law Societies of Upper Canada and Nunavut

No Aboriginals on Jury Roll? No Problem!

R. v.Kokopenace, 2015 SCC 28:

                    The accused, an Aboriginal man from a First Nation reserve, was charged with second degree murder and convicted of manslaughter after a trial by judge and jury. Prior to sentencing, the accused's counsel learned that there may have been problems with the inclusion of Aboriginal on‑reserve residents on the jury roll for the District of Kenora, which raised questions about the representativeness of the jury in the accused's case. The trial judge refused to adjourn the proceedings to hear a mistrial application, as he considered himself to be functus officio. The representativeness issue was therefore raised for the first time on appeal, where fresh evidence was introduced regarding the efforts made by the province in preparing the jury rolls for the district. The Court of Appeal was satisfied that the accused received a fair trial and that his jury was not tainted by a reasonable apprehension of bias or partiality. However, the majority held that the accused's ss. 11 (d) and 11 (f) Charter  rights had been violated and ordered a new trial. All three judges rejected the accused's s. 15 Charter  claims.

                    HeldThe appeal should be allowed. The order for a new trial is set aside and the conviction is reinstated.

                    Per Rothstein, Moldaver, Wagner and Gascon JJ.: Representativeness is an important feature of our jury system, but its meaning is circumscribed. What is required is a representative cross‑section of society, honestly and fairly chosen. With respect to the jury roll, representativeness focuses on the process used to compile it, not its ultimate composition. 

                    To determine if the state has met its representativeness obligation, the question is whether the state provided a fair opportunity for a broad cross‑section of society to participate in the jury process. A fair opportunity will be provided when the state makes reasonable efforts to: (1) compile the jury roll using random selection from lists that draw from a broad cross‑section of society, and (2) deliver jury notices to those who have been randomly selected. When this process is followed, the jury roll will be representative and an accused's Charter  right to a representative jury will be respected. This process aims to ensure that there is an opportunity for individuals with varied perspectives to be included on the jury, and it seeks to preclude systemic exclusion of segments of the population.

                    Jury representativeness is captured by both ss. 11 (d) and 11 (f) of the Charter , but it plays a different role in these two guarantees. 

                    The role of representativeness under s. 11 (d) is limited to its effect on independence and impartiality. A problem with representativeness that does not undermine these concepts will not violate s. 11 (d). 

                    The parties in this case focused on the impartiality aspect of s. 11 (d). Even if the petit jury does not appear to be biased, s. 11 (d) will be violated if the process used to compile the jury roll raises an appearance of bias at the systemic level. This may occur in two ways: the deliberate exclusion of a particular group, or efforts in compiling the jury roll that are so deficient as to create an appearance of partiality. However, where neither form of conduct exists, a problem with representativeness will not violate s. 11 (d).

                    The narrow way in which representativeness is defined in Canadian jurisprudence means that impartiality is guaranteed through the process used to compile the jury roll, not through the ultimate composition of the jury roll or petit jury itself. A jury roll containing few individuals of the accused's race or religion is not in itself indicative of bias. 

                    The role of representativeness in s. 11 (f) is broader: it not only promotes impartiality, it also legitimizes the jury's role as the "conscience of the community" and promotes public trust in the criminal justice system. This broader role creates an important point of distinction: while a problem with representativeness will not necessarily violate s. 11 (d), its absence will automatically undermine the s. 11 (f) right to a trial by jury.

                    If the state deliberately excludes a particular subset of the population that is eligible for jury service, it will violate an accused's right to a representative jury, regardless of the size of the group affected. However, if it is a question of unintentional exclusion, it is the quality of the state's efforts in compiling the jury roll that will determine whether an accused's right to a representative jury has been respected. 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. In contrast, if the state does not make reasonable efforts, the size of the population that has been inadvertently excluded will be relevant. When only a small segment of the population is affected, there will still have been a fair opportunity for participation by a broad cross‑section of society.

                    Representativeness is not about targeting particular groups for inclusion on the jury roll. The province was therefore not required to address systemic problems contributing to the reluctance of Aboriginal on‑reserve residents to participate in the jury process. Efforts to address historical and systemic wrongs against Aboriginal peoples — although socially laudable — are by definition an attempt to target a particular group for inclusion on the jury roll. An accused's representativeness right is not the appropriate mechanism for repairing the damaged relationship between particular societal groups and our criminal justice system more generally.

                    There is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society. Requiring a jury roll to proportionately represent the different religions, races, cultures, or individual characteristics of eligible jurors would create a number of insurmountable problems. There are an infinite number of characteristics that one might consider should be represented, and even if a perfect source list were used, it would be impossible to create a jury roll that fully represents them. A proportionate representation requirement would also do away with well‑established principles, such as juror privacy and random selection. In their place, we would be left with an inquisition into prospective jurors' backgrounds and a requirement that the state target particular groups for inclusion on the jury roll. Such an approach would be unworkable and would spell the end of our jury system as we presently know it. 

                    The province met its representativeness obligation in this case. The Court of Appeal raised potential issues with three parts of the process — the lists, the delivery, and the low response rates. Assessed in light of what was known at the time and against the proper standard, the province's efforts to include Aboriginal on‑reserve residents in the jury process were reasonable. Accordingly, there was no violation of ss. 11 (d) or 11 (f) of the Charter . Although the problem of the underrepresentation of Aboriginal on‑reserve residents in the jury system is a serious policy concern that merits attention, the accused's ss. 11 (d) and 11 (fCharter  rights are not the appropriate vehicle to address this concern. 

                    The accused's claims based on s. 15  of the Charter must also be dismissed. With respect to his personal s. 15  claim, the accused has not clearly articulated a disadvantage. With respect to his request for public interest standing to advance a s. 15  claim on behalf of Aboriginal on‑reserve residents who were potential jurors, it cannot be granted because the accused may have different, potentially conflicting interests from those of potential jurors.

Saturday, May 16, 2015

Constructive dismissal

Kucera v Qulliq Energy Corporation, 2015 NUCA 2:

[27]  To find that an employee has been constructively dismissed the court must find unilateral changes in the employee's circumstances that substantially altered the essential terms of the employee's contract of employment. Would a reasonable person in the same situation feel that the terms of their employment had substantially changed (Farber v Royal Trust, 1997 CanLII 387 (SCC)[1997] 1 SCR 846 at para 26, 145 DLR (4th) 1[Farber])?

Friday, May 15, 2015

Bail granted less freely

R. v. St-Cloud, 2015 SCC 27 today rewrote  the law on bail.  Some might say the decision is a move to limit strongly the Charter right to bail. 

First, it significantly expanded the scope and application of the tertiary ground. 

Second, it changed the test for bail reviews. There must be a "change of circumstances" and now have to meet a form of due diligence test. 

Bail now becomes more important as review more difficult. 

Also detention based on the tertiary ground will be more common. 

Friday, May 8, 2015

Extending time to appeal

The Canada Trust Company v. Potomski, 2015 ONCA 324:

[28]       In determining whether to grant leave to extend the time to perfect an appeal, it is useful to consider the test applicable to extending time to file a notice of appeal: Mauldin v. Cassels Brock & Blackwell LLP, 2011 ONCA 67 [In Chambers], at para. 5; Monteith v. Monteith, 2010 ONCA 78 [In Chambers], at para. 11. The relevant factors are:

1)   Whether the appellant had an intention to appeal within the relevant period;

2)   The length of the delay and the explanation for the delay;

3)   Any prejudice to the respondent;

4)   The merits of the appeal; and

5)   Whether the "justice of the case" requires granting an extension.

See Rizzi v. Marvos (2007), 85 O.R. (3d) 401 (C.A. [In Chambers]), at para. 16; Kefeli v. Centennial College of Applied Arts & Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A. [In Chambers]), at para. 14.

Thursday, May 7, 2015

Immigration Consequences of Sentence Proper to Consider

R. v. Nassri, 2015 ONCA 316

[25]       The appellant does not argue that the sentence imposed by the trial judge was unfit. He does submit that when the drastic and unforeseen collateral consequences of the sentence flowing from the change to s. 64(2) of the IRPA are taken into account, the result is grossly out of proportion to the crime he committed. He contends that a sentence of just under six months is within the realm of reasonable sentences for this offence and this offender.

[26]       The determination of this appeal is governed by the principles set out in the Supreme Court of Canada's decision in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739.  The collateral consequences in Pham and this case flow from the same statutory scheme. In Pham, the sentencing judge was not aware that "[u]nder the IRPA [in force at the time], a non-citizen sentenced in Canada to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her" (para. 4).  As in this appeal, the central issue in Pham was "whether a sentence otherwise falling within the range of fit sentences can be varied by an appellate court on the basis that the offender would face collateral consequences ... that were not taken into account by the sentencing judge" (para. 1).  

[27]       The court in Pham answered that question affirmatively. Writing for a unanimous court, Wagner J. found that the principles of individualization and parity, as well as "the sentencing objective of assisting in rehabilitating offenders", make the collateral consequences of a sentence relevant (para. 11). Wagner J. held that "when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offender, the most suitable one may be the one that better contributes to the offender's rehabilitation" (para. 11). Wagner J. added at para. 12 that "the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence". He accepted the proposition that "[b]urdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel".

[28]       Any sentence must, however, be fit having regard to the crime and the offender. Wagner J. cautioned, at para. 15:

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.

Wagner J. explained, at para. 14, a sentencing judge should therefore first determine whether the sentence that avoids the collateral consequences is even a possibility: 

[A] sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[29]       While this was a serious offence for which a period of incarceration was required, I do not agree with the Crown that there is any clearly defined lower limit from the jurisprudence that would require a sentence of six months or more. To the contrary, for the reasons that follow, a custodial sentence of just under six months was within the appropriate range for this offence and offender