Her Majesty the Queen v. Clifford Kokopenace, 2015 SCC 28 (Charter of Rights — Right to a fair hearing — Right to trial by jury — Jury representativeness)

On appeal from the judgment of the Court of Appeal for Ontario, 2013 ONCA 389, dated June 14, 2013, setting aside the accused’s conviction for manslaughter and ordering a new trial.

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(fCharter rights had been violated and ordered a new trial. All three judges rejected the accused’s s. 15 Charter claims.

Held (5:2): The appeal should be allowed. The order for a new trial is set aside and the conviction is reinstated(McLachlin C.J. and Cromwell J. dissenting).

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’sCharter 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(fCharter 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. 11Charter 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 theCharter 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 Charterenshrines 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 theCharter, the claimant must therefore show not only that there has been a limitation of his or her guaranteed rights but that the limitation can be attributed to state action. The question is whether there is a sufficient connection between the conduct of the state and the limitation of the right such that the limitation can fairly be attributed to the state. While the threshold of sufficient connection has been considered mainly in the context of s. 7 of the Charter, a similar causal threshold has been used in respect of other provisions of the Charterand under 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 is attributable to state action, namely whether there is a sufficient connection between the limitation of the right and the action — or inaction — of the state. In order to determine whether the state has complied with its Charter obligations, the state conduct must be assessed in light of its contribution to the problem and its capacity to address it. With respect to matters giving rise to the limitation of the right that are wholly or substantially within the state’s capacity to address, the connection is evident between the state action or inaction and 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 has no ability to address. With respect to matters falling somewhere between those two types of situations, the answer to the question of whether there is a sufficient connection between the limitation of the right and state action will depend on the capacity of the state to address 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 substantial departure 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 within its power. The other two — the poor return rate of notices and Aboriginal disengagement from the criminal justice system — were matters which the state had some capacity to address, but it failed to make reasonable efforts to do so. Therefore, there is a sufficient connection between state action and inaction and the lack of a representative jury roll to find that there was a breach by the state of the accused’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 requires examination of all the circumstances, including the nature of the breach of the accused’s rights and its effect on public confidence in the administration of justice. The point in the proceedings at which the issue is raised is also a relevant consideration. Where, as here, the issue is raised for the first time after verdict, a declaration that the accused’s rights were violated may be the appropriate remedy absent the accused establishing that, in light of all the circumstances, a new trial is the only way to restore public confidence in the administration of justice. In this case, the Court of Appeal did not make any reversible error in exercising its remedial discretion to order a new trial. The failure to provide a representative jury roll undermined public confidence in the administration of justice.

Reasons for decision of the majority by Moldaver J. Separate concurring reasons by Karakatsanis J. Dissenting reasons of McLachlin CJ. and Cromwell J. written by Cromwell J.

Neutral Citation: 2015 SCC 28. Court File No. 35475

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