Thursday, May 21, 2015 - R. v. Kokopenace, 2015 SCC 28
In 2015, the Supreme Court of Canada, guided by a defence lawyer, dealt with a case that specifically addressed the representativeness of a jury.
In a split decision – with five justices believing that the jury was representative and two dissenting – the SCC found that, in terms of the process used to compile a jury, Ontario does ensure that juries are representative. However, the dissenting justices, as highlighted by the defence lawyer, asserted that not enough is done to address the lack of Indigenous people on juries and how the province may have exacerbated that deficiency.
About The Case
The case itself focused on an Indigenous man who lived on a reserve; he was charged with second-degree murder and was found guilty of manslaughter in a trial by jury. The issue of representation, pivotal in this context, was brought up for the first time on appeal by an appeal lawyer, but the accused’s lawyer was made aware of it before sentencing. The Ontario Court of Appeal dismissed the appeal, holding that the accused did undergo a fair trial; however, the majority of the court did think some Charter rights – namely ss. 11 (d) and (f) – were violated and ordered a new trial.
The Appeal
The Supreme Court of Canada found that though an appeal should be allowed, the new trial should be set aside and the accused’s conviction reinstated. They also found that the Charter is not the tool by which to argue for representation on the jury or even to attempt to rebuild or repair relations between the Indigenous and the justice system. The majority also found that the process of jury selection is what ensures representation, in that the jury is meant to represent a cross-section of society. Further, the courts also found – in examining fresh evidence on jury selection processes – that delivering notices of jury selection to those on reserves was very difficult, and they did not guarantee a response either.
Today debates about representation extend beyond government and their obligations to ensure that it exists; the SCC is not immune from debates on ongoing issues such as these, and what their split decisions serve to show is that the law is still negotiating its role in these conversations.
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