R. v. Kokopenace, 2011 ONCA 759

Her Majesty the Queen v. Kokopenace Her Majesty the Queen v. Spiers [Indexed as: R. v. Kokopenace] 108 O.R. (3d) 284 2011 ONCA 759 Court of Appeal for Ontario, Goudge, LaForme and Rouleau JJ.A. December 1, 2011 Charter of Rights and Freedoms -- Full answer and defence -- Production -- Appellants intending to argue that there was systemicunderrepresentation of First Nations persons in certain jury rolls -- Appellants entitled to production of band lists used in preparation ofjury rolls -- Appellants demonstrating that those records were likely relevant to issue on appeal.

The appellants intended to argue that there was systemic underrepresentation of First Nations persons in certain jury rolls, as a result ofwhich the appellants' trials were not representative. They sought an order for the disclosure or, alternatively, the production, of band listsused in the preparation of certain jury rolls. The parties agreed that if the court found that the appellants' request met the "likely relevant"test for the disclosure of third party records, that it need not determine if the records came within the Crown's obligations to makedisclosure under Stinchcombe.

Held, the application should be granted. The appellants demonstrated that the records met the O'Connor standard for the production of records in the possession of third parties inthat they were likely relevant to the issue on appeal. The appellants are seeking the very documents from which the impugned jury rollswere created. It was unnecessary to decide whether the records came within the Crown's first party (Stinchcombe) disclosure obligations.

APPLICATION for an order for disclosure or production of records in relation to the appeals from conviction entered by Stach J. of theSuperior Court of Justice, sitting with a jury, on [page285] June 17, 2008 and on appeal from the conviction entered by MacKinnon J. ofthe Superior Court of Justice, sitting with a jury, dated December 3, 2007. Cases referred toR. v. O'Connor, (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1,[1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152, apld Othercases referred to R. v.

McNeil, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3, 2009 SCC 3, 246 O.A.C. 154, 238 C.C.C. (3d) 353, EYB 2009-153175, J.E. 2009-174, 301 D.L.R. (4th) 1, 383 N.R. 1, 62 C.R. (6th) 1; R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326,[1991] S.C.J. No. 83, 130 N.R. 277, [1992] 1 W.W.R. 97, 83 Alta. L.R. (2d) 193, 120 A.R. 161, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277, 18C.R.R. (2d) 210, 14 W.C.B. (2d) 266 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 11(

f) Criminal Code, R.S.C.1985, c. C-46, s. 629 Juries Act, R.S.O. 1990, c. J.3 [as am.] Delmar Doucette and Jessica Orkin, for applicant Clifford Kokopenace. Anthony Moustacalis and Jessica Orkin, for applicant Clare Alexander Spiers. Dennis Brown, Ria Tzimas, Darrell Kloeze, Michal Fairburn and Deborah Calderwood, for respondent. Julian N. Falconer and Sunil S. Mathai, for intervenor Nishnawbe Aski Nation ("NAN"). Jonathan Rudin and Christa Big Canoe, for intervenor Bushie Family and Pierre Family.

BY THE COURT: -- Overview [1] The applicant Kokopenace and the applicant Spiers (collectively, the "applicants") seek disclosure or, in the alternative, production ofcertain records from the Crown or from the Court Services Division of the Ministry of the Attorney General ("CSD"). The applicants'position is that these records are subject to the first party disclosure obligations summarized in R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83 and R. v. McNeil, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3, 2009 SCC 3.

In thealternative, the applicants submit that they are entitled to third party production of these records in accordance with R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98. [2] The records sought are as follows:(

a) With respect to the 2008 jury roll prepared for the Kenora District, the applicant Kokopenace seeks (i) 36 band lists still in the possession of CSD in the Kenora District that were used in preparing the 2008 jury roll; (ii) a band list provided by Kitchenuhmaykoosib Inninuwig ("KI") to CSD in the Kenora District in 2009 (an earlier list provided by KI to CSD used to prepare the 2008 jury roll was destroyed byCSD upon receipt of the 2009 KI list); and (iii) a recreated list of on-reserve First Nations residents in the Kenora District to whom jury questionnaires were sent for the purpose of

preparing the 2008 jury roll. [page286] (

b) With respect to the 2007 jury roll prepared for Simcoe County, the applicant Spiers seeks disclosure of the band lists provided by the two First Nations communities in Simcoe County to CSD from 2000 to 2010. [ 3 ] Notice of the present application was given to all of the First Nations communities to which the records sought pursuant to this application related.

None of these First Nations communities sought to make submissions beyond the submissions made by the intervenors. [ 4 ] At the outset of the hearing, the Crown, speaking for CSD, abandoned its claim of public interest privilege with respect to the records at issue. The parties therefore agreed that the central issue to be resolved by the court was whether the records sought met the "likely relevant" test for third party disclosure as set out in O'Connor or whether the records formed part of the Crown's first party disclosure obligation and met the "relevance" standard under Stinchcombe/McNeil.

All parties agreed that the privacy interests in the records sought to be disclosed or produced were protected by the undertaking filed by the applicants and agreed to by all counsel. [ 5 ] The parties also agreed that it was most expeditious for the court to first consider whether production of the records was required under the O'Connor third party disclosure regime.

If production was required, the parties agreed that it was not necessary to continue and consider whether there was a first party disclosure obligation on the Crown under Stinchcombe/ McNeil. [ 6 ] On the issue of "likely relevant", CSD set out its position as follows: (

a) it took no position on whether the 36 band lists still in the possession of CSD that were used to prepare the 2008 jury roll for Kenora District and the band lists used to prepare the 2007 jury roll for Simcoe County were likely relevant (this issue was left to be determined by the court); (

b) if the court determined that the 36 band lists used in Kenora District met the "likely relevant" test in O'Connor, then CSD agreed that the 2009 KI list was likely relevant to the extent that it could be used to refresh the CSD deponent's memory as to how the destroyed KI list would have been used in preparing the 2008 jury roll; and (

c) the band lists used to prepare the jury rolls in Simcoe County for the years 2000-2005 and 2007-2010 did not meet the "likely relevant" test in O'Connor. [page287] [ 7 ] As discussed above, the parties agreed that the court should first determine whether the "likely relevant" test set out in O'Connor has been met. If the "likely relevant" test has been met, the court need not decide whether there was a first party disclosure obligation on the Crown with respect to the records sought.

As a result, the court should simply determine whether the records should be produced, since it is understood that, by ordering production, the court would not be deciding whether or not a first party disclosure obligation exists. [ 8 ] The applicant Kokopenace withdrew his request for a recreated list of on-reserve First Nations residents to whom jury questionnaires were sent for the purpose of preparing the 2008 Kenora District jury roll. The applicant indicated that if the various band lists being sought were produced, this information could be obtained through the cross-examination of CSD deponents.

Issues [ 9 ] As a result, the two issues to be decided are as follows: (

a) whether the band lists used to prepare the 2008 Kenora District jury roll and the 2007 Simcoe County jury roll are "likely relevant" to an issue on appeal; [and] (

b) whether the 2000-2005 and 2007-2010 band lists used by CSD in Simcoe County to prepare the jury roll in 2001-2006 and 2008-2011 are "likely relevant" to an issue on appeal. Discussion A. Whether the band lists that were used to prepare the 2008 Kenora District jury roll and 2007 Simcoe County jury roll are "likely relevant" to an issue on appeal [ 10 ] There is no dispute as to the legal test to be applied on this application.

As the Supreme Court of Canada explained in O'Connor, at para. 22 , "likely relevant" in the context of production means that there is a "reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify" (emphasis omitted). [ 11 ] The Supreme Court of Canada confirmed this meaning of "likely relevant" in McNeil and further explained, at para. 33, that [a]n "issue at trial" here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also "evidence relating to the credibility of witnesses and to the reliability of other evidence in the case". . . .

At this stage of the proceedings, the [page288] court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial. The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position. (Citation omitted) [ 12 ] The position taken by the applicants in the appeals is that there was systematic underrepresentation of First Nations persons in the 2008 Kenora District and 2007 Simcoe County jury rolls.

As a result, the juries in the trials of the two applicants were not representative and new trials should be ordered. [ 13 ] The applicants argue that there is a reasonable possibility that obtaining the lists used by the CSD officials to prepare the jury rolls may assist them in making their case on appeal. In particular, the applicants argue that the lists can be used to cross-examine CSD deponents with respect to the statements they have made in their affidavits and to better understand the use that CSD deponents made of the lists in preparing the jury rolls.

The lists will also enhance the applicants' understanding of the contents of the lists and their relevance to the preparation of the jury rolls. [ 14 ] In

summary, the lists will permit the applicants to have a better factual foundation for the arguments that (1) the sheriff did not make the reasonable efforts required to prepare a representative jury roll as required by the Juries Act, R.S.O. 1990, c. J.3 ; (2) the sheriff or other officer who returned the jury panels was partial, fraudulent or wilfully misconducted himself and therefore such jury panels can be challenged in accordance with s. 629 of the Criminal Code, R.S.C. 1985, c. C-46 ; (3) the applicants were denied their right to a constitutionally sound jury as required by s. 11(

f) of the Canadian Charter of Rights and Freedoms ; and (4) the various breaches of the applicants' Charter rights are not justified under s. 1 of the Charter. [ 15 ] CSD made no submissions on this issue. [ 16 ] In our view, the applicants have demonstrated that these records are likely relevant. They seek the very lists used to prepare the impugned jury rolls. These records may contain annotations, entries or other information that can be used in testing the statements made by CSD deponents and in better understanding the process used to prepare the jury rolls.

[ 17 ] The applicants need not establish the probative value of the records; they must only show that there is a reasonable possibility that the documents are "logically probative" to the issues raised respecting the representativeness of the jury rolls. [page289] B.

Whether the 2000-2005 and 2007-2010 band lists used by CSD in Simcoe County to prepare the jury roll in 2001-2006 and 2008-2011 are "likely relevant" to an issue on appeal [ 18 ] The applicant Spiers argues that the band lists used to prepare the jury rolls from 2001 through to 2011 are likely relevant to the issues raised in the appeal for three reasons. [ 19 ] First, the applicant Spiers notes that the Crown has made the information relating to the preparation of the jury rolls for 2001 to 2011 relevant by itself filing an affidavit of a CSD deponent on the appeal providing information on the procedure followed to prepare the jury rolls in those very years. [ 20 ] Second, the applicant Spiers argues that the materials filed to date demonstrate that CSD officials did not follow their own policies to ensure the adequate representation of First Nations persons on the 2007 jury roll for Simcoe County.

The information from the other years sought will assist the applicant Spiers to establish the duration of the breach and the increasing impact of the breach over several years.

The duration and severity of the breach is, in the applicant Spiers' submission, clearly relevant with respect to the issue of reasonable efforts under the Juries Act , wilful misconduct under s. 629 of the Criminal Code and the Charter issues raised on the appeal. [ 21 ] Finally, the information will allow the applicant Spiers to probe and question the statements made by the CSD deponent with respect to the preparation of the jury rolls for the years in question. [ 22 ] CSD argues that only the list used to prepare the 2007 jury roll has the possibility of having probative value.

In fact, although the affidavits filed by the Crown contain information on the process followed by CSD with respect to the preparation of the jury roll for years other than 2007, this does not make the band lists for those years relevant. [ 23 ] In our view, the band lists used for the preparation of the jury roll in each of those years meets the O'Connor standard of "likely relevant". We are satisfied that the practice in effect for the preparation of the jury rolls over the years will be the subject of debate, as will, to a certain degree, the practices that are detailed in the CSD deponent's affidavit.

We need not determine that the applicant will show that these practices have probative value, since, at this stage, he need only show that they have a reasonable possibility of being logically probative. [ 24 ] In conclusion, we grant the applicants' application requiring that the requested lists be produced to the applicants, [page290] provided that the undertaking agreed to among the parties is given.

As indicated earlier and in light of our conclusion that production ought to be ordered, we make no finding as to whether the records come within the Crown's first party disclosure obligations pursuant to Stinchcombe/ McNeil. Application granted.