Supreme Court rules there’s no duty to fix native ‘reluctance’ to serve on juries
In upholding the manslaughter conviction against a native man Thursday, the Supreme Court of Canada ruled that the government of Ontario wasn’t required to tackle systemic problems contributing to the “reluctance” of aboriginals living on reserves to participate in the jury process.
Clifford Kokopenace, an aboriginal man from the Grassy Narrows reserve, was convicted of manslaughter in the 2007 death of Taylor Assin. Before sentencing, his lawyers learned the roll from which jurors were selected consisted of 699 potential jurors, of whom only 29 were First Nation on-reserve residents — about 4.1 per cent.
But in that district, on-reserve residents made up 32 per cent of the adult population. Kokopenace’s lawyers argued his Charter rights to a fair and impartial jury were violated. Ontario’s Court of Appeal agreed.
In a 5-2 decision written by Justice Michael Moldaver, the Supreme Court ruled an accused’s right to a representative jury is “not the appropriate mechanism for repairing the damaged relationship between particular societal groups and our criminal justice system.”
The court said there is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canada. The court found that when Kenora’s 2008 jury roll was formed, Ontario’s efforts to include aboriginal on-reserve residents in the process were “reasonable.”
Alvin Fiddler, deputy grand chief of the Nishnawbe Aski Nation, said the high court ruling “represents a serious setback for the relationship between aboriginal people and the Canadian justice system” and “sends the inevitable message that First Nations choose not to be part of the justice system, when nothing could be further from the truth.”
Ontario Premier Kathleen Wynne said, “We know that there needs to be changes in terms of . . . aboriginal representation on juries.”
The lack of First Nations members on juries was the subject of a major report by former Supreme Court justice Frank Iacobucci. His probe looked into a problem so acute it derailed an inquest into the deaths of seven young aboriginals who left their reserves in northern Ontario to go to high school in Thunder Bay.
Cheryl Milne, executive director of the David Asper Centre for Constitutional Rights fears the Supreme Court decision will be a “setback” in terms of work being done to act on Iacoucci’s recommendations for improving the numbers of natives on juries.