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. 15Charter claims.
Held: The 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.
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(f) Charter rights are not the appropriate vehicle to address this concern.
The accused's claims based on s. 15 of the Chartermust 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.