Media Releases

Supreme Court of Canada to rule in jury representativeness case; David Asper Centre for Constitutional Rights and LEAF available for commentary

May 20, 2015

Toron­to, ON — On Thurs­day, May 21, the Supreme Court of Cana­da will ren­der its deci­sion in Kokope­nace v. HMTQ. The key issue in the case is the scope of the right to a rep­re­sen­ta­tive jury under the Cana­di­an Char­ter of Rights and Free­doms, and whether Ontario’s pro­ce­dure for cre­at­ing jury rolls does enough to include on-reserve Abo­rig­i­nal res­i­dents.

The David Asper Cen­tre for Con­sti­tu­tion­al Rights and the Women’s Legal Edu­ca­tion and Action Fund (LEAF) joint­ly inter­vened in this case, and will be avail­able for com­men­tary. 

Mr. Kokope­nace was con­vict­ed of manslaugh­ter in June of 2008, and seeks a new tri­al on the basis that the jury was improp­er­ly con­sti­tut­ed because it was derived from a jury roll that failed to ade­quate­ly include on-reserve Abo­rig­i­nal res­i­dents. Rough­ly one third of the pop­u­la­tion of the Dis­trict of Keno­ra, where Mr. Kokope­nace was tried, lives on-reserve. In spite of this, only four per­cent (29) of the 699 poten­tial jurors on the jury roll were on-reserve res­i­dents.

In Ontario the jury roll is assem­bled by ran­dom­ly select­ing names from the most recent munic­i­pal enu­mer­a­tion. Because this does not include on-reserve res­i­dents, there is a sup­ple­men­tal process by which any avail­able list of on-reserve res­i­dents can be used to select poten­tial jurors. The norm for this dis­trict was to use a band list obtained direct­ly from the reserve or a list from Indi­an and North­ern Affairs Cana­da (INAC) if one could not be obtained direct­ly. In 2001, INAC stopped pro­vid­ing lists for this pur­pose, mak­ing it dif­fi­cult to obtain up-to-date infor­ma­tion for jury roll prepa­ra­tion. The selec­tion process was still rely­ing on INAC lists from 2000 for well over half of the reserves in the area by 2008. Addi­tion­al­ly, the rate of response to jury ques­tion­naires sent to on-reserve res­i­dents was always low (33% in 1994, com­pared to 60–70% for off-reserve res­i­dents), but it declined steadi­ly, to 15% in 2002 and 10% by 2008.

The Ontario Court of Appeal found that the provin­cial gov­ern­ment failed to meet its respon­si­bil­i­ty to address the under-rep­re­sen­ta­tion of on-reserve peo­ple in the jury pool. The Court held that Ontario did not pro­vide prop­er instruc­tion to employ­ees work­ing on the prob­lem, failed to sig­nif­i­cant­ly update its poli­cies in light of the chang­ing cir­cum­stances, and failed to inves­ti­gate the caus­es of the prob­lem so that it could more effec­tive­ly address them.

As joint inter­venors, the David Asper Cen­tre for Con­sti­tu­tion­al Rights and the Women’s Legal Edu­ca­tion and Action Fund (LEAF) argued that the under-inclu­sion of prospec­tive Abo­rig­i­nal jurors liv­ing on-reserve vio­lat­ed sec­tion 15 of the Char­ter by per­pet­u­at­ing the his­toric dis­ad­van­tage of both Abo­rig­i­nal accused per­sons and the prospec­tive jurors them­selves, since Abo­rig­i­nal peo­ples were his­tor­i­cal­ly exclud­ed from the oppor­tu­ni­ty to par­tic­i­pate in juries, and a rep­re­sen­ta­tive jury is more like­ly to judge an accused impar­tial­ly.

The David Asper Cen­tre and LEAF took the posi­tion that the crim­i­nal jus­tice sys­tem must active­ly pur­sue sub­stan­tive equal­i­ty in order to be tru­ly com­pat­i­ble with sec­tion 15 of the Char­ter. How­ev­er, they argued that the jus­tice sys­tem will nev­er reflect this val­ue unless the Court actu­al­ly under­takes s.15 analy­sis in cas­es where equal­i­ty rights are impli­cat­ed, and address­es equal­i­ty when think­ing about fun­da­men­tal prin­ci­ples of crim­i­nal law. For this rea­son, if the Court is going to deter­mine what qual­i­fies as a fair adju­dica­tive process under s.11(d) and (f) of the Char­ter, the Asper Cen­tre and LEAF argued it must con­sid­er the impact of that adju­dica­tive process on vul­ner­a­ble or his­tor­i­cal­ly dis­ad­van­taged groups.

LEAF and the Asper Cen­tre urged the SCC to find that the exclu­sion of Abo­rig­i­nal peo­ple res­i­dent on-reserve from the jury rolls con­sti­tutes a vio­la­tion of s. 15 for both the Respon­dent and for poten­tial jurors. Fur­ther, the Crown’s dis­crim­i­na­to­ry fail­ure to take rea­son­able steps to include on-reserve res­i­dents in the jury roll per­pet­u­ates the his­toric dis­ad­van­tage of Abo­rig­i­nal accused per­sons and prospec­tive on-reserve jurors. The larg­er con­text of sys­temic, per­sis­tent, per­va­sive dis­crim­i­na­tion against these pop­u­la­tions can­not be ignored, and the Crown’s fail­ure here must not be excused

The David Asper Cen­tre was rep­re­sent­ed by its Exec­u­tive Direc­tor Cheryl Milne, and LEAF was rep­re­sent­ed by Kim Stan­ton, its Legal Direc­tor. Sec­ond-year Uni­ver­si­ty of Toron­to JD stu­dents Ethan Schiff and Sarah Beamish worked on this case through the Asper Cen­tre clin­ic, along with LEAF’s Don­ner Fel­low­ship stu­dent Kather­ine Long.

The Asper Cen­tre and LEAF’s argu­ment in this case is avail­able here and a brief descrip­tion of the joint argu­ment is avail­able here.

What: Supreme Court of Cana­da to ren­der judg­ment in Kokope­nace v. HMTQ

When: May 21 at 9:45am East­ern

Where: Supreme Court of Cana­da (Ottawa, Ontario)

Who: Rep­re­sen­ta­tives of LEAF and David Asper Cen­tre avail­able for com­ment



Cheryl Milne, Exec­u­tive Direc­tor of the David Asper Cen­tre for Con­sti­tu­tion­al Rights: (416) 978‑0092 or

Kim Stan­ton, Legal Direc­tor of Women’s Legal Edu­ca­tion and Action Fund: (416) 595‑7170 or