Her Majesty The Queen Appellant v. Clifford Kokopenace, 2015 SCC 28

SUPREME COURT OF CANADA Citation: R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398 Date: 20150521 Docket: 35475 Between: Her Majesty The Queen Appellant and Clifford Kokopenace Respondent - and - Advocates’ Society, Nishnawbe Aski Nation, David Asper Centre for Constitutional Rights, Women’s Legal Education and Action Fund, Inc. (LEAF), Native Women’s Association of Canada, Canadian Association of Elizabeth Fry Societies and Aboriginal Legal Services of Toronto Inc. Interveners Coram: McLachlin C.J. and Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.

Reasons for Judgment: (paras. 1 to 130) Partially Concurring Reasons: (paras. 131 to 189) Dissenting Reasons: (paras. 190 to 307) Moldaver J. (Rothstein, Wagner and Gascon JJ. concurring) Karakatsanis J. Cromwell J. (McLachlin C.J. concurring)

R. v. Kokopenace , 2015 SCC 28, [2015] 2 S.C.R. 398 Her Majesty The Queen Appellant v. Clifford Kokopenace Respondent and Advocates’ Society, Nishnawbe Aski Nation, David Asper Centre for Constitutional Rights, Women’s Legal Education and Action Fund, Inc. (LEAF), Native Women’s Association of Canada, Canadian Association of Elizabeth Fry Societies and Aboriginal Legal Services of Toronto Inc. Interveners Indexed as: R. v. Kokopenace 2015 SCC 28 File No.: 35475. 2014: October 6; 2015: May 21.

Present: McLachlin C.J. and Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Right to a fair hearing — Right to trial by jury — Jury representativeness — Definition — Aboriginal accused from First Nation reserve convicted of manslaughter — Aboriginal on-reserve residents underrepresented on jury roll from which jury selected for accused’s trial — What is the appropriate legal test for representativeness — Whether state met its representativeness obligation — Canadian Charter of Rights and Freedoms, s. 11(d) , (f).

Constitutional law — Charter of Rights — Right to equality — Aboriginal on-reserve residents — Aboriginal accused from First Nation reserve convicted of manslaughter — Aboriginal on-reserve residents underrepresented on jury roll from which jury selected for accused’s trial — Whether state violated right to equality of accused or of Aboriginal on-reserve residents who were potential jurors — Canadian Charter of Rights and Freedoms, s. 15 . 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. Held (McLachlin C.J. and Cromwell J. dissenting): 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. 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(

f) Charter 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.

Per Karakatsanis J.: Fair trial rights under s. 11 of the Charter entitle an accused person to an independent and impartial jury, drawn from a jury roll that was created through a fair and neutral process of random selection from broad-based source lists without deliberate or substantial exclusion. That threshold was met in this case. Representativeness does not require a jury roll to mirror what a random sample from the community would look like. Adopting such an identity-based approach would mark a significant departure from both Canadian jurisprudence and experience.

Jury representativeness is aimed at ensuring that the jury can fulfill its important roles as finder of fact and as the link connecting the judicial process to the broader community. This right has a limited meaning in Canadian law. It does not mean that the jury must reflect a cross-

section of the community or its different characteristics or perspectives. It instead describes the functioning of the jury as an institution, in which laypersons are asked to contribute to the criminal justice process and to provide the crucial link between that system and the larger community. A jury acts on behalf of, and thus represents, society. It is not rendered legitimate because its members reflect the demographics of that community.

The representative function of the jury is assured by the use of a fair and random selection process, based on broadly inclusive source lists, that does not deliberately or substantially exclude a subset of the community. Representativeness requires more than reasonable efforts to use such a process. It is the adequacy of the process used, rather than the quality of the state’s efforts, which determines whether or not an accused’s Charter rights were violated. Ensuring that source lists are drawn broadly from the community is critical, but perfection is not required.

Provinces must be given leeway to use a selection process that is practical given the nature of the source lists generally available. The state must also ensure that the mechanism used to contact selected potential jurors does not undermine the broad-based and random quality of the jury roll.

Unintentional exclusion of some segments of the community from the jury roll does not amount to a constitutional defect. Even the best source lists will still exclude some, and that inadvertent exclusion may disproportionately apply to certain groups of people. This alone is insufficient to establish a s. 11 Charter violation. Because there are no perfect source lists, the state must be accorded flexibility in choosing a source list.

Such flexibility also recognizes the substantial leeway that governments must be given to define the boundaries of judicial districts, which are established for administrative and practical purposes and are not required to ensure the representation of any particular community or group. However, the state could, in exceptional circumstances, violate an accused’s Charter rights by unintentionally but substantially excluding a segment of the population.

It may be that such substantial exclusion rises to a level that could leave the jury unable to fulfill its representative function, thereby depriving it of legitimacy in the eyes of society, and undermining its independence and impartiality. Where the jury roll is so deficient that society would no longer accept that a jury chosen from it could legitimately act on its behalf, an accused’s rights protected by both ss. 11(

d) and 11(

f) of the Charter will be violated. Intentional exclusion of certain segments of the population from the jury roll would render it unconstitutional. A jury roll tainted by such deliberate exclusion cannot be considered to be drawn fairly and randomly from the broader community, nor could it be said to be independent and impartial. An accused will accordingly succeed in her challenge if she establishes deliberate exclusion for the purpose of restricting the representation of certain groups in the jury process. An accused person’s fair trial rights do not require the state to encourage jury participation among those who are unwilling to participate.

Section 11 of the Charter is not the source of any duty on the state to encourage participation, or to repair damaged relationships that may cause some to disengage from the justice system. It is simply beyond the scope of s. 11 to require that the state address the reasons for this disaffection in order to uphold an accused individual’s right to an impartial, independent and representative jury. In this case, the accused has not established that the jury roll from which his jury was drawn was created in a manner that violated his rights under s. 11 of the Charter .

With respect to the s. 15 Charter claims, this is not a proper case to determine whether the equality rights of Aboriginal peoples are implicated as a result of their alienation from the justice system and their underrepresentation on jury rolls. Per McLachlin C.J. and Cromwell J. (dissenting): Selecting a properly constituted jury lays the foundation required for a fair trial and public confidence in the administration of justice.

Fundamental to our conception of a properly selected jury is that it be drawn from a random sample of eligible people in the district who, by virtue of that random selection, are representative of its population. In Canada, there is no stand-alone Charter -protected right to a representative jury. But representativeness, in the sense that the jury roll is randomly selected from an appropriate pool of prospective jurors, is a component of the Charter rights to a jury trial and to be tried by an independent and impartial tribunal found at s. 11(

f) and ( d ).

Section 11(

f) of the Charter enshrines in our Constitution the institution of the jury as a fundamental component of the Canadian criminal justice system. Representativeness is an integral part of that component, and is one of the fundamental characteristics of a properly constituted jury. Representativeness, along with impartiality, is essential in order for the institution of the jury to perform its function as the conscience of the community and in order for s. 11 (

f) to be meaningful and effective. Representativeness is also one of the components which ensure that the jury is an independent and impartial tribunal under s. 11(

d) of the Charter . Thus, defects in the formation of the jury that affect its representative character will be taken into account in order to determine whether there is a breach of s. 11 ( d ). As it is guaranteed under s. 11 (

d) and ( f ), the right to representativeness of the jury roll is the right of persons charged with an offence, not of particular groups or the community at large. There is no corresponding right, under these provisions, of the community at large or of any particular group to be included on a jury roll, jury array or petit jury. The focus of representativeness is on whether the jury roll, from which jurors will ultimately be selected, is as broadly representative of the community as would a group of people selected at random within that community. Thus, random selection is a proxy for representativeness.

A representative jury roll is one that substantially resembles the group of persons that would be assembled through a process of random selection of all eligible jurors in the relevant community. But random selection is only a good proxy for representativeness if the pool of persons to whom a process of random selection is applied to assemble the jury roll is itself broadly based within the relevant community. In order to achieve a representative jury roll, two things are necessary. First, the lists from which random selection will be made must be substantially representative of the district.

The jury roll can only properly be representative of the population of the district if the list of people to whom notices may be sent is as complete and accurate as possible and is substantially similar to a random selection among all potentially eligible jurors in the district. Second, the group of eligible persons who return the questionnaires must be substantially similar to a random sample of the list. This requires the state to look at elements such as the proportion of notices and questionnaires that are in fact received and factors which could affect the return rate.

If the group who in fact returns questionnaires does not substantially resemble a random sample of the persons on the list, then the whole foundation of representativeness is at risk because randomness can no longer serve as an appropriate proxy for representativeness. Allowing random selection to be a proxy for representativeness is supported by both practical and policy reasons. If representativeness in this context were given a broader meaning, there could be endless debates about who and what needs to be represented on the jury.

Defining all of the relevant senses in which a jury should be representative, let alone going about assembling a jury roll that was representative in all those ways, would pose insurmountable practical problems and would lead to serious intrusions into the privacy of prospective jurors. These policy and practical considerations mean that we must not enlarge the Crown’s disclosure obligations or expose potential jurors to intrusions into their privacy.

The practical effect of protecting jurors’ privacy is that an accused will rarely be in a position to establish the under-representation of a particular group other than by pointing to an inadequate list or some other significant departure from the random selection principle. A flawed random selection may be demonstrated by showing faults in the process, such as the omission of large numbers of eligible jurors from the roll. But that is not the only way a departure from proper random selection may be shown.

The fact that the focus is on the random selection process does not mean that the results of the process employed to compile the jury roll are irrelevant to whether there has been an acceptable process of random selection. Results that plainly show a significant departure from a properly

conducted random selection process should not be ignored. The Charter protects against interference by the state with guaranteed rights. In order to establish a breach of the Charter,the claimant must therefore show not only that there has been a limitation of his or her guaranteed rights but that the limitation can beattributed to state action. The question is whether there is a sufficient connection between the conduct of the state and the limitation ofthe right such that the limitation can fairly be attributed to the state.

While the threshold of sufficient connection has been consideredmainly in the context of s. 7 of the Charter, a similar causal threshold has been used in respect of other provisions of the Charter andunder provincial human rights legislation, and applies in the context of this case. The starting point is not the state’s efforts to comply,but whether the jury roll was representative.

If the jury roll was not representative, the question then becomes whether that failure isattributable to state action, namely whether there is a sufficient connection between the limitation of the right and the action — orinaction — of the state. In order to determine whether the state has complied with its Charter obligations, the state conduct must beassessed in light of its contribution to the problem and its capacity to address it.

With respect to matters giving rise to the limitation of theright that are wholly or substantially within the state’s capacity to address, the connection is evident between the state action or inactionand the limitation of the right in question.

In such cases, a “reasonable efforts” test does not reflect the nature of the state’s obligation:compliance with constitutional rights is not optional or (subject to justified limitations) dependent on the degree of effort required.Conversely, the state cannot be held responsible for matters which have the effect of limiting guaranteed rights, but which the state hasno ability to address.

With respect to matters falling somewhere between those two types of situations, the answer to the question ofwhether there is a sufficient connection between the limitation of the right and state action will depend on the capacity of the state toaddress the matters giving rise to the limitation and whether it has made reasonable efforts to do so.

This case concerns a situation in which the jury roll was not representative because its composition was a substantialdeparture from what random selection among all potentially eligible jurors in the district would produce, in view of the under-representation of Aboriginal on-reserve residents on the jury roll. Of the four factors that contributed to the unrepresentative jury roll,two — the lists and the delivery of jury notices — were the responsibility of the state and complying with that responsibility was withinits power.

The other two — the poor return rate of notices and Aboriginal disengagement from the criminal justice system — werematters which the state had some capacity to address, but it failed to make reasonable efforts to do so. Therefore, there is a sufficientconnection between state action and inaction and the lack of a representative jury roll to find that there was a breach by the state of theaccused’s right to a representative jury roll as guaranteed under s. 11(

d) and (

f) of the Charter. Determining what is an appropriate remedy following the state’s failure to provide a representative jury roll requiresexamination of all the circumstances, including the nature of the breach of the accused’s rights and its effect on public confidence in theadministration of justice. The point in the proceedings at which the issue is raised is also a relevant consideration.

Where, as here, theissue is raised for the first time after verdict, a declaration that the accused’s rights were violated may be the appropriate remedy absentthe accused establishing that, in light of all the circumstances, a new trial is the only way to restore public confidence in theadministration of justice. In this case, the Court of Appeal did not make any reversible error in exercising its remedial discretion to ordera new trial. The failure to provide a representative jury roll undermined public confidence in the administration of justice. Cases Cited By Moldaver J. Referred to: R. v.

Fiddler, (ON SC), [1994] 4 C.N.L.R. 99; R. v. Gladue, (SCC),[1999] 1 S.C.R. 688; R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509; R. v. Church of Scientology (1997), (ON CA), 33 O.R. (3d) 65; R. v. Laws (1998), (ON CA), 41 O.R. (3d) 499; R. v. Kent (1986), (MBCA), 27 C.C.C. (3d) 405; R. v. Bradley (No. 2) (1973), 23 C.R.N.S. 39; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Brown(2006), (ON CA), 215 C.C.C. (3d) 330; Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673; R. v.Bain, (SCC), [1992] 1 S.C.R. 91; R. v. Lippé, (SCC), [1991] 2 S.C.R. 114; R. v. Williams, (SCC), [1998] 1 S.C.R. 1128; R. v.

Nahdee, (ON SC), [1994] 2 C.N.L.R. 158; R. v. Kokopenace, 2011 ONCA536, 107 O.R. (3d) 189; R. v. Butler (1984), (BC SC), 63 C.C.C. (3d) 243; R. v. Biddle, (SCC),[1995] 1 S.C.R. 761; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Pierre v.McRae, Coroner, 2011 ONCA 187, 104 O.R. (3d) 321. By Karakatsanis J. Referred to: R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509; R.v. Biddle, (SCC), [1995] 1 S.C.R. 761; R. v. Church of Scientology (1997), (ON CA), 33 O.R. (3d)65; Corbiere v.

Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203. By Cromwell J. (dissenting) R. v. Barrow, (SCC), [1987] 2 S.C.R. 694; R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296; R. v.Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509; R. v. Born with a Tooth (1993), (AB KB), 81 C.C.C. (3d) 393; R. v. Williams, (SCC), [1998] 1 S.C.R. 1128; R. v. Yumnu, 2012 SCC73, [2012] 3 S.C.R. 777; R. v. Church of Scientology (1997), (ON CA), 33 O.R. (3d) 65; R. v. Biddle, (SCC), [1995] 1 S.C.R. 761; R. v. Kent (1986), (MB CA), 27 C.C.C. (3d) 405; R. v.

Buckingham, 2007 NLTD107, 221 C.C.C. (3d) 568; R. v. Butler (1984), (BC SC), 63 C.C.C. (3d) 243; R. v. Parks (1993), (ON CA), 15 O.R. (3d) 324; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; R. v. Find, 2001 SCC 32, [2001] 1S.C.R. 863; R. v. Yooya, (SK KB), [1995] 1 C.N.L.R. 166; R. v. Teerhuis-Moar, 2010 MBCA 102, 222 C.R.R. (2d)207; R. v. Pan, 2001 SCC 42, [2001] 2 S.C.R. 344; R. v. Nahdee, (ON SC), [1994] 2 C.N.L.R. 158; Pierre v. McRae,Coroner, 2011 ONCA 187, 104 O.R. (3d) 321; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; KazemiEstate v.

Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; Symes v. Canada, (SCC), [1993] 4 S.C.R. 695;Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; R. v. Askov, (SCC), [1990] 2 S.C.R. 1199; R. v.Morin, (SCC), [1992] 1 S.C.R. 771; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360; R. v.

W.E.B., 2014 SCC 2, [2014] 1 S.C.R. 34; R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2S.C.R. 235; R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R.v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R.3; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; R. v. Babos,2014 SCC 16, [2014] 1 S.C.R. 309; Canada (Minister of Citizenship and Immigration) v. Tobiass, (SCC), [1997] 3S.C.R. 391; R. v.

Carosella, (SCC), [1997] 1 S.C.R. 80; Morin v. The Queen (1890), 1890 CanLII 38 (SCC), 18 S.C.R.407; McLean v. The King, (SCC), [1933] S.C.R. 688; R. v. Bird, [1984] 1 C.N.L.R. 122; R. v. Snow (2004), (ON CA), 73 O.R. (3d) 40; R. v. Cameron (1991), (ON CA), 2 O.R. (3d) 633; R. v. Fiddler, (ON SC), [1994] 4 C.N.L.R. 99; Rojas v. Berllaque, [2003] UKPC 76, [2004] 1 W.L.R. 201; R. v. Ellis, [2011] NZCA 90, [2011] 4L.R.C. 515. Statutes and Regulations Cited Assessment Act, R.S.O. 1990, c. A.31, s. 15. Canadian Charter of Rights and Freedoms, ss. 1, 7, 11, 15, 24(1), 32. Coroners Act, R.S.O. 1990, c. C.37.

Criminal Code, R.S.C. 1985, c. C-46, ss. 629, 630, 631, 632, 633, 634 to 638, 639 to 642, 644. Juries Act, R.S.O. 1990, c. J.3, ss. 2 to 4, 5, 6(1), (2), (5), (8), 8, 9, 12, 15 to 18.1, 19, 38(3). Authors Cited Black’s Law Dictionary, 10th ed. by Bryan A. Garner, ed. St. Paul, Minn.: Thomson Reuters, 2014, “jury”. Blackstone, William. Commentaries on the Laws of England, Book III. Oxford: Clarendon Press, 1768. Blackstone, William. Commentaries on the Laws of England, Book IV. Oxford: Clarendon Press, 1769. Brown, R. Blake. A Trying Question: The Jury in Nineteenth-Century Canada.

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Public Inquiry into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba,vol. 1, The Justice System and Aboriginal People. Winnipeg: The Inquiry, 1991. APPEAL from a judgment of the Ontario Court of Appeal (Goudge, LaForme and Rouleau JJ.A.), 2013 ONCA 389, 115O.R. (3d) 481, 306 O.A.C. 47, 285 C.R.R. (2d) 77, 4 C.R. (7th) 67, 299 C.C.C. (3d) 48, [2013] 4 C.N.L.R. 273, [2013] O.J. No. 2752(QL), 2013 CarswellOnt 7938 (WL Can.), setting aside the accused’s conviction for manslaughter and ordering a new trial.

Appealallowed, McLachlin C.J. and Cromwell J. dissenting. Gillian E. Roberts, Deborah Calderwood and Michael Fawcett, for the appellant. Jessica Orkin, Delmar Doucette, Andrew Furgiuele and Angela Ruffo, for the respondent. Brian H. Greenspan, Katherine Hensel and Promise Holmes Skinner, for the intervener the Advocates’ Society. Julian N. Falconer, Julian Roy and Marc E. Gibson, for the intervener the Nishnawbe Aski Nation. Cheryl Milne and Kim Stanton, for the interveners the David Asper Centre for Constitutional Rights and the Women’sLegal Education and Action Fund, Inc. (LEAF).

Mary Eberts, for the interveners the Native Women’s Association of Canada and the Canadian Association of Elizabeth FrySocieties. Christa Big Canoe and Jonathan Rudin, for the intervener the Aboriginal Legal Services of Toronto Inc. The judgment of Rothstein, Moldaver, Wagner and Gascon JJ. was delivered by Moldaver J. — I. Introduction [1] The right to be tried by a jury of one’s peers is one of the cornerstones of our criminal justice system. It is enshrinedin two provisions of the Canadian Charter of Rights and Freedoms — the s. 11(

d) right to a fair trial by an impartial tribunal and the s.

11(

f) right to a trial by jury. Yet despite the importance of this right, this is the first time the Court has been called upon to determine what efforts the state must make to ensure that a jury is “representative” of the community. In turn, this raises the related questions of how representativeness should be defined and what role it should play in the rights guaranteed by ss. 11(

d) and 11(

f) of the Charter . In answering these questions, it must be remembered that the right to a representative jury is an entitlement held by the accused that promotes the fairness of his or her trial, in appearance and in reality. It is not a mechanism for repairing the damaged relationship between particular societal groups and our criminal justice system more generally — and it should not be tasked with that responsibility. [ 2 ] In my view, representativeness focuses on the process used to compile the jury roll, not its ultimate composition.

Consequently, the state satisfies an accused’s right to a representative jury by providing 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 the accused’s Charter right to a representative jury will be respected. [ 3 ] I am satisfied that there were no Charter violations in this case. I would accordingly allow the appeal. II. Background [ 4 ] Clifford Kokopenace is an Aboriginal man from the Grassy Narrows First Nation reserve in the District of Kenora. He was charged with second degree murder for stabbing his friend to death during a fight. After a trial by judge and jury in 2008, he was acquitted of murder but convicted of the lesser included offence of manslaughter.

Prior to sentencing, his trial 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 Mr. Kokopenace’s case. The trial judge, Stach J., 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 to the Ontario Court of Appeal. [ 5 ] Before the Court of Appeal, Mr.

Kokopenace alleged that his jury was derived from a jury roll that did not adequately ensure the inclusion of Aboriginal on-reserve residents. Because of the allegedly inadequate process used to prepare the jury roll, he argued that his rights under ss. 11( d ), 11( f ), and 15 of the Charter were violated. Voluminous fresh evidence was introduced regarding the efforts Ontario had made, over a period of several years, in preparing the jury rolls for the District of Kenora. [ 6 ] The Court of Appeal issued three sets of reasons. Two of the judges — LaForme and Goudge JJ.A. — held that Mr. Kokopenace’s ss. 11 (

d) and 11 (

f) rights had been violated and ordered a new trial on that basis. In dissent, Rouleau J.A. held that Ontario had made reasonable efforts to include Aboriginal on-reserve residents in the jury roll. He therefore would have dismissed the appeal. All three judges rejected Mr. Kokopenace’s s. 15 claims. [ 7 ] The Crown now appeals to this Court, and Mr. Kokopenace renews his s. 15 claims. III. The Jury Selection Process in the District of Kenora A.

Overview of the Jury Selection Process in Ontario [ 8 ] To be eligible to serve as a juror in Ontario, individuals must be at least 18 years of age and must be Canadian citizens who reside in Ontario. There are several additional limitations on eligibility, including exemptions related to an individual’s profession or prior criminal record: Juries Act , R.S.O. 1990, c. J.3, ss. 2 to 4 . Drawing from the pool of eligible individuals, jury selection takes place in three stages: 1.

The preparation of the jury roll, composed of individuals who are randomly selected from the community in each judicial district throughout Ontario. 2. The selection of names from the jury roll to make up the jury panels (also known as arrays) for court sittings. Jury panels act as the pools from which trial juries are selected. 3. The selection, from the jury panel, of the trial jury (also known as the petit jury) that will serve on a particular criminal trial. [ 9 ] In Ontario, the first two stages are governed by the Juries Act and the third stage is governed by the Criminal Code , R.S.C. 1985, c. C-46.

The respondent’s challenge is to the first stage of the process — the preparation of the jury roll. [ 10 ] The Juries Act requires that a jury roll be prepared by provincial officials each year for every judicial district in Ontario. The same roll is used for all trials in a district in a given calendar year. Under s. 6(2) of the Juries Act , Ontario compiles its jury rolls based on municipal assessment lists obtained from the Municipal Property Assessment Corporation (“MPAC”).

Enumeration by MPAC occurs once every three years, and the MPAC lists are not updated between enumerations. [ 11 ] MPAC data does not capture individuals who reside on First Nations reserves. For that reason, s. 6(8) of the Juries Act provides a separate process for including on-reserve residents in the jury rolls.

Section 6(8) directs: In the selecting of persons for entry in the jury roll in a county or district in which an Indian reserve is situate, the sheriff shall select names of eligible persons inhabiting the reserve in the same manner as if the reserve were a municipality and, for the purpose, the sheriff may obtain the names of inhabitants of the reserve from any record available.

[12] The aim of both ss. 6(2) and 6(8) is that each municipality or reserve be sent the number of notices that isapproximately proportionate to that municipality or reserve’s percentage of the total population in the judicial district. [13] In practice, the sheriff’s duties under s. 6(8) are carried out by various provincial and local employees in eachjudicial district. Staff in the Court Services Division (“CSD”) are responsible for virtually the entire process of selecting on-reserveindividuals for the jury roll.

They obtain lists of on-reserve residents for use in the jury selection process, calculate the number of jurynotices (also known as questionnaires) that are required, randomly select the on-reserve individuals who will receive notices, prepare thenotices, and mail them to the selected recipients. The Provincial Jury Centre (“PJC”) is responsible for providing each CSD office withthe number of questionnaires that is required for the mailouts to the on-reserve population.

The PJC receives the completedquestionnaires from the selected on-reserve individuals and then enters the eligible names into the jury selection system, used to developthe jury roll. B. PDB #563 and the Lists Used for Section 6(8) Purposes [14] PDB #563 was the policy directive from the Ontario Ministry of the Attorney General that provided guidance toCSD staff on the s. 6(8) process at the relevant time.

It indicated that CSD staff should • ascertain, check, and confirm the reserves located in their county or district; • attempt to obtain band electoral lists, or any other accurate lists of residents, by writing letters, telephoning, or visiting thereserves in the district; • calculate the number of questionnaires to be sent to on-reserve residents; • randomly select the required number of individuals to whom questionnaires were to be sent from the best possible list; and • provide interim and final reports to the PJC at certain points in the process. [15] PDB #563 encouraged staff to attempt to obtain the best lists of on-reserve residents available.

To this end, itdirected staff to seek band electoral lists “or any other accurate list of residents”. [16] PDB #563 also indicated that lists provided by the federal government department known at the time as Indian andNorthern Affairs Canada (“INAC”) were not the best possible lists because they included the names of band members who did not resideon the reserve. However, if CSD staff were unsuccessful in their attempts to obtain a better list from the band, the general practice was touse the INAC lists. Until 2001, INAC regularly provided its lists to Ontario for the purposes of s. 6(8).

However, in 2001, INAC stoppedproviding the CSD with band lists, ostensibly because of privacy concerns. From that point on, CSD employees’ attempts to obtain listsdirectly from the First Nations reserves became increasingly important, as the INAC lists grew more outdated with each passing year. C. The Compilation of Jury Rolls in the District of Kenora [17] The District of Kenora contains a large number of reserves, which are associated with approximately 46 differentFirst Nations.

The on-reserve adult population makes up between 21 to 32 percent of the adult population of the district. [18] There has been a significant decline in the rates of response to jury notices from on-reserve residents in the District ofKenora over the years. In 1993, the return rate for completed jury questionnaires in the district was approximately 33 percent for on-reserve residents and 60 to 70 percent for off-reserve communities: R. v. Fiddler, (ON SC), [1994] 4 C.N.L.R. 99(Ont. Ct. (Gen. Div.)), at p. 114.

Around that time, the Kenora CSD office began including an additional letter with the jury notices sentto on-reserve residents to help recipients understand the jury process. Although the letter was written in English, a translation in Ojibwayand Oji-Cree syllabics was also enclosed. Despite the provision of this letter, the response rate from on-reserve residents did not increase.By 2002, it had dropped to 15.8 percent, and by 2008 (the year at issue in this appeal), it had declined to 10 percent.

(1) The Delivery of Jury Notices to On-Reserve Residents in the District of Kenora [19] Many of the First Nations communities in the District of Kenora are remote and are accessible only by air. In thesecommunities, individuals typically do not have mailboxes at their place of residence. Some have a community mailbox or an individualbox in the post office. For other individuals, mail is held at the post office and they must retrieve it from the postal clerk. [20] When jury notices are sent to on-reserve residents, they are sent “General Delivery”.

Mail delivered in this manner issent to the community post office, but not to individual or community postal boxes. Post office employees then carry out a practiceknown as a “knowledge sort”, in which they attempt to deliver the notices to the community mailbox or post office boxes of therecipients. Postal clerks tend to be familiar with the residents in these small communities and, if they know the recipient, they will putthe letter in the recipient’s community mailbox or post office box instead of returning it to the sender.

Where there is no listed postal boxor the postal clerks do not know the recipient, postal clerks put the mail aside and cross-reference the name against the customer list in anattempt to determine the correct postal box. Mail that is not claimed within 30 days and has not been delivered to a community mailboxor post office box is typically returned to the sender by the post office.

(2) The Implementation of Section 6(8) in the District of Kenora [21] During the time period relevant to this appeal, the sheriff’s s. 6(8) duties in the District of Kenora were carried out byMs. Laura Loohuizen, the group leader in the local CSD office. Ms. Loohuizen became involved in s. 6(8) work in 2001, at which timeshe was given the lists of on-reserve residents used by her predecessor. She was provided with INAC lists for 42 of the 43 reserves thatshe believed fell within the district. There was no list for the 43rd reserve, Neskantaga/Lansdowne House. [22] Ms. Loohuizen was not provided with training about the boundaries of the district or about how to carry out s. 6(8)

work. However, she made inquiries to the PJC about the process for obtaining updated lists. In carrying out her work, she relied on thedirections in PDB #563, instructions from her supervisors in the CSD office, directives given by the PJC, and advice provided by StachJ., a respected and long-serving judge of the Ontario Superior Court of Justice in the District of Kenora. Although Ms. Loohuizen reliedon PDB #563, the interim and final reports it envisioned were sometimes not completed — or if completed, failed to contain all therequired information.

Fully completed reports would have detailed the steps taken to obtain updated lists, the success of those efforts,and the number of questionnaires sent to the reserves. [23] Ms. Loohuizen made repeated and escalating efforts over the years to obtain updated lists from the reserves.However, she had great difficulty securing cooperation from many of them and often had to carry out her s. 6(8) work based oninaccurate or outdated lists. D. Efforts in 2007 for the Preparation of the 2008 Jury Roll [24] In 2007, for the first time, the PJC informed Ms.

Loohuizen of statistics showing the low rate of response for on-reserve residents. The numbers indicated that in response to the 2006 mailouts (for the 2007 jury roll), the rate of return for on-reserveresidents was 10.72 percent compared to an off-reserve response rate of 56 percent. Of the questionnaires that had been sent to on-reserveresidents, 72 percent were not returned and 17 percent were returned by the post office as undeliverable — statistics that were markedlyworse than those for the off-reserve population. [25] Ms.

Loohuizen communicated these results to Stach J., who had provided advice on the s. 6(8) process from time totime, and it was decided that the number of questionnaires to be sent to on-reserve residents should be increased by almost 50 percent.Her superiors in the Kenora CSD office also decided that Ms. Loohuizen would travel to several reserves in the district to meet with bandleadership to discuss jury representativeness issues. [26] Also in 2007, Ms. Loohuizen inquired about the boundaries of the District of Kenora.

Her inquiry was apparentlyprompted by questions that arose in relation to an upcoming coroner’s inquest. After making these inquiries, she discovered that she hadinadvertently been excluding two reserves from her s. 6(8) efforts because she had not known that they fell within the district. She alsodiscovered that another reserve on her list, Sandy Lake, had split in two, creating two separate communities. Consequently, there were 46reserves — not 43 — that should have been included in her s. 6(8) work. She became aware of these errors too late to obtain lists for usein the preparation of the 2008 jury roll.

As she still had not succeeded in obtaining a list for Neskantaga/Lansdowne House, that reservewas also excluded from the jury roll process for 2008. [27] As a result of Ms.

Loohuizen’s efforts, the 2007 mailouts for the 2008 jury roll were based on the following lists: • Band lists from 2006 for two First Nations • Band lists from 2007 for eight First Nations • INAC lists from 2000 for 32 First Nations • No lists for four First Nations [28] Ultimately, only 10 percent of the questionnaires sent to on-reserve residents were returned, and only 5.7 percent ofon-reserve residents who returned the questionnaires were eligible to serve as jurors. Mr. Kokopenace’s jury was selected from a jurypanel of 175 jurors, 8 of whom were on-reserve residents.

No on-reserve residents were selected for Mr. Kokopenace’s petit jury. E. The Iacobucci Report and Efforts Made After 2008 [29] Since 2008, Ontario has expanded its efforts to include on-reserve residents in the jury selection process. Theprovince has updated its policies, provided formal training on s. 6(8) work, increased the number of questionnaires sent to on-reserveresidents, and started tracking statistics about response and delivery rates for those questionnaires.

Significantly, in 2011, Ontarioappointed the Honourable Frank Iacobucci as an independent reviewer to study the issue of the underrepresentation of Aboriginal on-reserve residents on juries and to make recommendations for resolving the problem. The report detailing his findings was released in2013, while Mr. Kokopenace’s appeal was under reserve at the Court of Appeal: First Nations Representation on Ontario Juries: Reportof the Independent Review Conducted by The Honourable Frank Iacobucci (2013) (“Iacobucci Report”).

The Iacobucci Report revealsthat the problem with the underrepresentation of on-reserve residents is deep-rooted and multi-faceted, and that it extends well beyondthe difficulty of obtaining accurate source lists. It explains that the problem is linked to the long history of Aboriginal estrangement fromthe justice system and the mistrust of that system that has resulted. Since the report’s release, Ontario has begun implementing some ofits recommendations. IV. The Decision of the Ontario Court of Appeal, 2013 ONCA 389, 115 O.R. (3d) 481 [30] The Court of Appeal delivered three sets of reasons.

Both LaForme and Goudge JJ.A. concluded that Mr.Kokopenace’s ss. 11(

d) and 11(

f) rights were violated; in contrast, Rouleau J.A. held that there was no Charter violation. The courtunanimously rejected Mr. Kokopenace’s s. 15 claims. [31] All three judges accepted that the test to determine whether Ontario had met its representativeness obligations waswhether it had made reasonable efforts to provide a fair opportunity for groups with distinctive perspectives to be included in the juryroll.

They held that reasonable efforts must be made at each step of the process, including compiling the lists, sending the notices,facilitating their delivery and receipt, and encouraging responses. [32] The majority emphasized that the analysis of Ontario’s efforts under s. 6(8) of the Juries Act must be guided by boththe honour of the Crown and the principles in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. In its view, Ontario wasrequired to consider the estrangement of Aboriginal peoples from the justice system and to work with First Nations governments to

fashion a solution to the problem. According to the majority, it was unreasonable for Ontario to delegate its s. 6(8) responsibilities to Ms.Loohuizen, a junior public servant. Senior government officials were required to engage with First Nations in a government-to-government process. [33] The majority also concluded that Ontario improperly focused all of its attention on efforts to obtain updated lists. Itfound that the low response rates required Ontario to investigate the causes of the problem and to actively encourage responses from on-reserve residents.

Ontario’s failure to do so led the majority to conclude that Ontario had ignored the problem and had failed to makereasonable efforts to provide a fair opportunity for the inclusion of Aboriginal on-reserve residents. It followed that Mr. Kokopenace’srights under ss. 11(

d) and 11(

f) were violated. [34] In terms of remedy, the majority was satisfied that Mr. Kokopenace received a fair trial and that his jury was nottainted by a reasonable apprehension of partiality or bias. However, the majority found that the violations of ss. 11(

d) and 11(f)“necessarily undermine[d] public confidence in the integrity of the justice system and the administration of justice” (para. 227).Consequently, it concluded that the only effective remedy was a new trial. [35] In dissent, Rouleau J.A. found that Ontario’s efforts were reasonable in light of what was known at the time. Heemphasized that at the time relevant to this appeal, everyone was under the impression that the low response rates were caused by theoutdated lists — indeed, the problems with the lists were the main focus of Mr. Kokopenace’s arguments before the Court of Appeal.

Itwas only after the Iacobucci Report was released that the complexity of the problem became clear. In his view, the majority’s criticismswere misplaced because they were based on information that was unknown to Ontario at the time. [36] Rouleau J.A. also concluded that the low response rates did not mean that on-reserve residents had a reducedopportunity to participate. In his view, the fact that on-reserve residents had declined the invitation to participate did not lead to theconclusion that Ontario had not provided an opportunity for their inclusion.

Ontario’s constitutional obligation did not require it to makeall efforts or to make fruitless efforts: it was only required to make reasonable efforts to extend an invitation to participate. In his view,Ontario did so. He therefore found that there were no violations of ss. 11(

d) or 11(f). [37] With respect to the s. 15 claims, there were two arguments before the court. First, Mr. Kokopenace sought publicinterest standing to raise an equality argument on behalf of prospective jurors who were on-reserve residents. Second, he claimed that hispersonal s. 15 rights had been violated. The Court of Appeal unanimously rejected both claims. The court held that it was not anappropriate case in which to grant public interest standing and, with respect to Mr. Kokopenace’s personal s. 15 claim, that he hadprovided no evidence that he suffered a disadvantage because of Ontario’s actions.

Consequently, neither claim could succeed. V. Issues [38] There are four issues before this Court: 1. How is representativeness defined and how does it factor into ss. 11(

d) and 11(

f) of the Charter? 2. Did Ontario meet its representativeness obligation in this case? 3. Did Ontario violate the s. 15 rights of Mr. Kokopenace or of Aboriginal on-reserve residents who were potential jurors? 4. If Mr. Kokopenace’s Charter rights were violated, what is the appropriate remedy? VI. Analysis A. How Is Representativeness Defined and How Does It Factor Into Sections 11(

d) and 11(

f) of the Charter?

(1) Defining Representativeness [39] Representativeness is an important feature of the jury; however, its meaning is circumscribed. What is required is a“representative cross-section of society, honestly and fairly chosen”: R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509, at p.524. There is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups inCanadian society. Courts have consistently rejected the idea that an accused is entitled to a particular number of individuals of his or herrace on either the jury roll or petit jury: R. v.

Church of Scientology (1997), (ON CA), 33 O.R. (3d) 65 (C.A.), at pp.120-21; R. v. Laws (1998), (ON CA), 41 O.R. (3d) 499 (C.A.), at pp. 517-18; R. v. Kent (1986), (MB CA), 27 C.C.C. (3d) 405 (Man. C.A.), at pp. 421-22; R. v. Bradley (No. 2) (1973), 23 C.R.N.S. 39 (Ont. S.C.), at pp. 40-41.

AsRosenberg J.A. observed in Church of Scientology, at p. 121, “[w]hat is required is a process that provides a platform for the selection ofa competent and impartial petit jury, ensures confidence in the jury’s verdict, and contributes to the community’s support for the criminaljustice system.” [40] As this statement indicates, representativeness is about the process used to compile the jury roll, not its ultimatecomposition.

To date, the jurisprudence has discussed two key features of the jury roll process that ensure representativeness: the use ofsource lists that draw from a broad cross-section of society, and random selection from those sources (R. v. Find, 2001 SCC 32, [2001] 1S.C.R. 863, at para. 20; Sherratt, at p. 525; Church of Scientology, at p. 121). I would add a third feature to this list, namely, the deliveryof notices to those who have been randomly selected. A jury roll is representative when these three features are present, provided that thestate has not deliberately excluded members of a particular group.

This process aims to ensure that there is an opportunity for individuals

with varied perspectives to be included on the jury: Church of Scientology, at p. 122. It also seeks to preclude systemic exclusion ofsegments of the population: ibid., at pp. 122-24. [41] The first feature — the use of source lists that draw from a broad cross-section of society — aims to capture as manyeligible jurors in each district as possible. A perfect source list would capture all eligible jurors and would therefore proportionatelyrepresent all eligible groups in the district. However, the Charter does not mandate a proportionately representative list, nor would sucha requirement be feasible.

Indeed, it would be virtually impossible to find a source list that meets this requirement. [42] The second feature — random selection — focuses on the manner in which individuals are selected from the sourcelists for inclusion on the jury roll.[1] It ensures that everyone captured on the source lists has an equal chance of being selected for thejury roll. Consequently, representativeness cannot require a jury roll of a particular composition. This would necessitate a selectionprocess that inquired into prospective jurors’ backgrounds — a concept that is incompatible with random selection.

Indeed, no provincerequires that its jury rolls proportionately represent the cultures, races, religions, or other individual characteristics of its inhabitants.Requiring that a jury roll proportionately represent the different religions, races, cultures, or individual characteristics of eligible jurorswould create a number of insurmountable problems. As the Ontario Court of Appeal held in R. v.

Brown (2006), (ON CA), 215 C.C.C. (3d) 330, at para. 22: There are an almost infinite number of characteristics that one might consider should be represented in the petit jury: age, occupation,wealth, residency, country of origin, colour, sex, sexual orientation, marital status, ability, disability and so on. It would be impossible toensure this degree of representation in any particular jury. [43] Although these comments were made in the context of a challenge to the composition of a petit jury, they are equallyapplicable to the composition of the jury roll.

Even if a perfect source list were used, it would be impossible to create a jury roll that fullyrepresents the innumerable characteristics existing within our diverse and multicultural society. [44] This conclusion is reinforced by the many restrictions we accept on the representativeness of our jury rolls. First, ajury roll is compiled for every judicial district, each of which is itself an artificially drawn region.

The population of a given district maynot be at all representative of Canada’s broader population or of the particular community within that district where the offence wascommitted: Church of Scientology, at p. 121. Second, limitations on juror eligibility result in the exclusion of non-citizens, thoseconvicted of criminal offences, and individuals practising certain professions. Finally, in most provinces, the sheriff has the power toexempt individuals from jury service if it poses a hardship. This typically results in the exclusion of the self-employed, those living inremote areas, and low-income individuals.

All of these limits have long been accepted despite their impact on representativeness. [45] The third feature — delivery — is self-explanatory. In short, before the jury roll can be compiled, the state mustdeliver notices to those who have been randomly selected in order to allow them to respond.

The adequacy of delivery must be assessedon the facts of each case, bearing in mind the particular challenges that this undertaking presents. [46] Consequently, in defining representativeness as it pertains to the jury roll, the focus is on the process, not the result.If the state has used an adequate process, the jury roll will necessarily be representative even if particular subsets of the population havefew individuals on the jury roll.

(2) The Role of Representativeness Within Sections 11(

d) and 11(

f) of the Charter [47] Sections 11(

d) and 11(

f) of the Charter provide: 11. Any person charged with an offence has the right . . . (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; . . . (

f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximumpunishment for the offence is imprisonment for five years or a more severe punishment; Although representativeness is captured by both ss. 11(

d) and 11(f), it plays a different role in these two guarantees, as I will discuss. (

a) Section 11(d) [48] Since s. 11(

d) focuses on the independence and impartiality of the tribunal, the role of representativeness under thisguarantee is necessarily limited to its effect on these concepts. A problem with representativeness that does not undermine independenceor impartiality will not violate s. 11(d). The parties in this case focused on the impartiality aspect of s. 11(d). Accordingly, I will limit mycomments to this concept. [49] To determine whether a tribunal is impartial, the question is whether a reasonable person, fully informed of thecircumstances, would have a reasonable apprehension of bias: Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673, at pp.

684-91; R. v. Bain, (SCC), [1992] 1 S.C.R. 91, at pp. 101, 111-12 and 147-48. A tribunal must be impartial at both theinstitutional and individual levels. Even if the petit jury does not appear to be biased, s. 11(

d) will be violated if the process used tocompile the jury roll raises an appearance of bias at the systemic level: R. v. Lippé, (SCC), [1991] 2 S.C.R. 114, at p.140. [50] Representativeness is an important guarantor of impartiality: R. v. Williams, (SCC), [1998] 1S.C.R. 1128, at para. 46. There are two potential problems with representativeness that may impact on impartiality. First, the deliberateexclusion of a particular group would cast doubt on the integrity of the process and violate s. 11(

d) by creating an appearance ofpartiality: Church of Scientology, at p. 118. Second, even when the state has not deliberately excluded individuals, the state’s efforts incompiling the jury roll may be so deficient that they create an appearance of partiality: see, e.g., R. v. Nahdee, (ONSC), [1994] 2 C.N.L.R. 158 (Ont. Ct. (Gen. Div.)). However, where neither form of conduct exists, a problem with representativenesswill not violate s. 11(d). [51] One important clarification about the relationship between representativeness and impartiality is in order.

Thenarrow way in which representativeness is defined in Canadian jurisprudence means that impartiality is guaranteed through the processused to compile the jury roll, not through the ultimate composition of the jury roll or petit jury itself.

A jury roll containing fewindividuals of the accused’s race or religion is not in itself indicative of bias. [52] My colleague Cromwell J. implies at para. 238 that a petit jury drawn from a jury roll that does not include personswho share the same characteristics as the accused — here, Aboriginal on-reserve residency — will be less likely to detect and avoid the“often unconscious effects of racism”. However, there is no empirical data to support the proposition that jurors of the same race as theaccused are necessary to evaluate the evidence in a fair and impartial manner: Laws, at p. 516.

The case at hand attests to this. There hasbeen no allegation of actual bias or partiality in this case, and the Court of Appeal found that there was “no support in the circumstancesof this case” for a reasonable apprehension of bias or partiality (para. 226). Moreover, there has already been a judicial finding that Mr.Kokopenace received a fair trial: R. v.

Kokopenace, 2011 ONCA 536, 107 O.R. (3d) 189. [53] Our criminal justice system has a strong presumption of juror impartiality — and the jury selection process containsnumerous safeguards that are designed to weed out potentially biased individuals and ensure that the jurors who are selected for the petitjury will judge the case impartially: Find, at paras. 26 and 41-42; Williams, at para. 47. Contrary to Cromwell J.’s assertion, theseprotections have never hinged on the existence of a jury roll that proportionately represents the various groups in our society.

AlthoughCanadian courts have held that the jury roll must be representative, they have never held that it must be proportionately representative,as my colleague suggests. [54] Several principles emerge from this discussion. First, the link between representativeness and s. 11(

d) is restricted tothe effect of representativeness on the impartiality of the tribunal. Second, and by extension, a problem with representativeness does notautomatically translate into a s. 11(

d) violation: one must always look at whether the state’s conduct created an appearance of bias.Finally, representativeness promotes impartiality through the process used to compile the jury roll, not through its ultimate composition. (

b) Section 11(f) [55] In contrast to its limited role in s. 11(d), the role of representativeness in s. 11(

f) is broader. Representativeness notonly promotes impartiality, it also legitimizes the jury’s role as the “conscience of the community” and promotes public trust in thecriminal justice system: Sherratt, at pp. 523-25; Church of Scientology, at pp. 118-20. Representativeness is thus a necessary componentof an accused’s s. 11(

f) right to a jury trial. [56] To be able to act as the “conscience of the community” as required by s. 11(f), the jury must be representative. Forthe purposes of s. 11(f), the meaning of representativeness is the same as it is under s. 11(d): it protects the accused’s right to an adequatejury selection process. [57] Although both provisions incorporate the same definition of representativeness, the broader role it plays in s. 11(f)creates an important point of distinction: while a problem with representativeness will not necessarily violate s. 11(d), the same cannot besaid about s. 11(f).

Because representativeness is a key characteristic of the jury, its absence will automatically undermine the s. 11(f)right to a trial by jury. As this Court held in Sherratt, at p. 525: The perceived importance of the jury and the [s. 11(f)] Charter right to a jury trial is meaningless without some guarantee that it willperform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community.

Indeed,without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functionsthat make its existence desirable in the first place. [Emphasis added.] [58] For these reasons, a problem with representativeness will violate s. 11(

f) even if it is not so serious as to undermineimpartiality. That said, if a problem with representativeness does undermine impartiality, it will violate both ss. 11(

d) and 11(f).

(3) The Legal Test for Representativeness (

a) The Appropriate Test Focuses on the Process Used to Compile the Jury Roll [59] Representativeness focuses on the adequacy of the jury selection process. It does not require the state to ensure thatany particular perspective is represented on the jury roll, nor does it require the state to ensure that its source lists proportionatelyrepresent all groups that are eligible for jury duty.

It follows that the test to determine whether the state has complied with itsrepresentativeness obligation focuses on the process used throughout jury selection as opposed to the ultimate composition of the juryroll. [60] The Court of Appeal concluded that the test is whether the state made reasonable efforts to provide a fair opportunityfor groups with distinctive perspectives to participate in the jury process. With respect, I would frame the test differently. Shining the

spotlight on “distinctive perspectives” is problematic and, in my view, improperly focuses on who is being included instead of theprocess for their inclusion. Moreover, it raises thorny questions about what qualifies as a “distinctive perspective” and whatcharacteristics require representation — questions that are not helpful when examining if the process was adequate. [61] As a result, I would reframe the test as follows.

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 fairopportunity will have been provided when the state makes reasonable efforts to: (1) compile the jury roll using random selection fromlists that draw from a broad cross-section of society, and (2) deliver jury notices to those who have been randomly selected. In otherwords, it is the act of casting a wide net that ensures representativeness.

Representativeness is not about targeting particular groups forinclusion on the jury roll. [62] Before elaborating on the details of this constitutional requirement, I pause to address my colleague Cromwell J.’scritique of this standard. I should not be misunderstood. There is no question that an accused is entitled, under the Charter, to arepresentative jury. I take that as a given. In defining the state’s obligation as I have, I am not proposing, as Cromwell J. suggests at para.249, that an accused is entitled to merely “a ‘fair opportunity’ to have a representative jury”.

Nor am I implying that the province needonly “make ‘reasonable efforts’ not to [breach an accused’s Charter rights]” (para. 250). With respect, Cromwell J.’s criticism is basedon our differing views of what representativeness means in Canadian law. Because I would focus on the process used to compile the juryroll, the state’s efforts are necessarily important.

The reason Cromwell J. concludes that they are not is because he would definerepresentativeness in terms of the jury roll’s ultimate composition. [63] As for my colleague Karakatsanis J., I agree with her conclusion that it is the process that determines whether anaccused’s right to a representative jury has been respected. However, I do not accept her suggestion that the process can be measuredagainst a standard of objective adequacy. Rather, it is the quality of the state’s efforts that will determine if the process is adequate.

Asthe record shows, the compilation of jury rolls is a complex exercise, and many of the factors bearing on the process are not within thestate’s control. For example, as I will discuss, Ontario was entirely dependent on cooperation from the First Nations in order to obtainadequate lists of their on-reserve residents. According to Karakatsanis J., if the province fails to obtain adequate lists — even if thatfailure is due to factors outside its control — there will be a violation of representativeness.

I cannot accept a test that would find aviolation even when the province has taken reasonable steps to compile the jury roll using random selection from broad-based lists andto deliver the notices to those who have been randomly selected. [64] Similarly, I cannot accept Cromwell J.’s suggestion that the state must actively encourage responses or that, to thisend, the state is obliged to address the distressing history of estrangement and discrimination suffered by Aboriginal peoples.

There aregood reasons why the state’s representativeness obligation does not rise to this level and only requires a fair opportunity for participation.Efforts to address historical and systemic wrongs against Aboriginal peoples — although socially laudable — are by definition anattempt to target a particular group for inclusion on the jury roll.

Requiring the state to target a particular group for inclusion would be aradical departure from the way the Canadian jury selection process has always been understood. [65] In coming to this conclusion, I am in no way suggesting that the state should not take action on this pressing socialproblem. However, an accused’s representativeness right is not the appropriate vehicle for this task. This right is held by the accused, notby societal groups.

And, because the focus of representativeness is on the process, not the results, the state’s constitutional obligation issatisfied by providing a fair opportunity to participate — even if part of the population declines to do so. [66] That said, if the state deliberately excludes a particular subset of the population that is eligible for jury service, it willviolate the accused’s right to a representative jury, regardless of the size of the group affected. It is self-evident that the state will nothave made reasonable efforts if it deliberately excludes part of the population.

Deliberate exclusion undermines the integrity of thejustice system and cannot be tolerated. However, if it is a question of unintentional exclusion, it is the quality of the state’s efforts incompiling the jury roll that will determine whether the accused’s right to a representative jury has been respected. If the state makesreasonable efforts but part of the population is excluded because it declines to participate, the state will nonetheless have met itsconstitutional obligation.

In contrast, if the state does not make reasonable efforts, the size of the population that has been inadvertentlyexcluded will be relevant. A failure to make reasonable efforts in respect of a small segment of the population will not undermine theoverall representativeness of the jury roll because there is no right to proportionate representation. When only a small segment of thepopulation is affected, there will still have been a fair opportunity for participation by a broad cross-section of society. (

b) The Process for Raising a Challenge to the Representativeness of the Jury Roll [67] In my view, if an accused intends to challenge the representativeness of the jury roll, the appropriate time to do so isat the outset of the trial. It is a waste of judicial time and resources to conduct an entire trial only to have representativeness challengedafter the fact. Although not an exact parallel, I note that this accords with the typical process for raising a challenge to a jury panel (alsoknown as the array) under s. 629 of the Criminal Code.

In raising a challenge to the jury roll, the accused should provide an evidentiarybasis to show that the province has not met its constitutional obligation. Nevertheless, I recognize that new evidence pointing to seriousconcerns about the integrity of the jury roll process may on occasion arise in the course of or after the trial. In such cases, I do notforeclose the possibility that a challenge may still be raised: see R. v.

Butler (1984), (BC SC), 63 C.C.C. (3d) 243(B.C.C.A.). [68] The intervener Advocates’ Society submits that, in all cases, the Crown should be required to provide pre-trialdisclosure about the province’s efforts to meet its representativeness obligation. With respect, I disagree. There will only be a basis toorder such disclosure if the trial judge is satisfied that there is an evidentiary foundation for the concern. Absent such foundation, arequest for disclosure on this issue amounts to little more than a fishing expedition. (

c) A Results-Based Test Must Be Rejected [69] With respect, I am unable to agree with the results-based test proposed by my colleague, Cromwell J. He wouldrequire that the group of individuals on the jury roll be “substantially similar” to a random selection of eligible jurors (paras. 246-47). In

other words, he would afford an accused the right to a jury roll that is more or less proportionately representative of the population ofeligible jurors in the relevant judicial district.

In his view, the representativeness right is not concerned with either the process or with thestate’s efforts: he indicates that such factors only become relevant when determining whether a breach of that right is attributable to thestate. [70] I cannot accept that an accused’s right to a representative jury entails an entitlement to proportionate representationat any stage of the jury selection process, including the preparation of the jury roll. Indeed, the recognition of such a right would beunprecedented in Canada.

As I have explained, an accused has never been entitled to a jury roll of any particular composition, much lessone that proportionately represents the broader population — and with good reason. Put simply, it would be unworkable and would spellthe end of the jury system as we presently know it. More than a decade after the Charter was enacted, McLachlin J. (as she then was)described the problems that would flow from a requirement of proportionate representation. In her concurring reasons in R. v.

Biddle, (SCC), [1995] 1 S.C.R. 761, at paras. 56-58, she stated: Gonthier J., at p. 787, suggests that a jury must be “impartial, representative and competent”. I agree that a jury must be impartial andcompetent. But, with respect, the law has never suggested that a jury must be representative. For hundreds of years, juries in this countrywere composed entirely of men. Are we to say that all these juries were for that reason partial and incompetent? To say that a jury must be representative is to confuse the means with the end.

I agree that representativeness may provide extraassurance of impartiality and competence. I would even go so far as to say that it is generally a good thing. But I cannot accept that it isessential in every case, nor that its absence automatically entitles an accused person to a new trial. To say that a jury must be representative is to set a standard impossible of achievement. The community can be divided into a hundreddifferent groups on the basis of variants such as gender, race, class and education. Must every group be represented on every jury? If not,which groups are to be chosen and on what grounds?

If so, how much representation is enough? Do we demand parity based on regionalpopulation figures? Or will something less suffice? I see no need to start down this problematic path of the representative jury, providedthe impartiality and competence of the jury are assured. Representativeness may be a means to achieving this end. But it should not beelevated to the status of an absolute requirement. [71] I understand the Chief Justice to be saying that proportionate representation is not a constitutional imperative andwould be impossible to achieve in practice.

These comments are as valid today as they were 20 years ago. I see no reason for departingfrom them. My colleague attempts to distinguish Biddle on the basis that it dealt with the petit jury stage of jury selection. With respect,this distinction is irrelevant. As I have repeatedly pointed out, there is not a single case in which proportionate representation has beenheld to be a constitutional requirement at any stage of the jury selection process.

The practical difficulties the Chief Justice exposed inBiddle apply with equal force to both the petit jury and the jury roll. [72] Justice Cromwell recognizes the problem with defining representativeness broadly. At para. 227, he states: . . . there could be endless debates about who and what needs to be represented on the jury . . . .

Defining all of the relevant senses inwhich a jury should be representative, let alone going about assembling a jury roll that was representative in all of those ways, wouldpose insurmountable practical problems. [73] And yet, my colleague’s approach gives rise to the very problems that he himself characterizes as insurmountable.The only way to determine if either the source lists or the ultimate jury roll is “substantially similar” to the broader population is toinquire into the personal characteristics and backgrounds of the individuals on

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