This case concerned the systematic exclusion of Indigenous on-reserve residents from the list of people eligible to be on juries in Ontario. 

LEAF, in partnership with the David Asper Centre for Constitutional Rights, intervened before the Supreme Court of Canada. 

Facts 

Clifford Kokopenace, an Indigenous man from the Grassy Narrows First Nation reserve, was charged with second degree murder for stabbing his friend to death during a fight. After a trial by judge and jury, he was acquitted of murder but convicted of the lesser included offence of manslaughter.  

Prior to sentencing, Mr. Kokopenace’s trial counsel learned that there were potential problems with the inclusion of Indigenous on-reserve residents on the jury roll, meaning the list of people eligible to be jury members. This raised questions about the representativeness of the jury. The trial judge refused to adjourn the proceedings to hear a mistrial application, as he did not think he had the legal authority to do so.  

Before the Ontario Court of Appeal, Mr. Kokopenace argued that his jury was chosen from a jury roll that did not adequately ensure the inclusion of Indigenous on-reserve residents. As a result, his rights under ss. 11(d), 11(f), and 15 of the Charter had been violated. The Court of Appeal held that Mr.Kokopenace’s rights had been violated and ordered a new trial on that basis. The Crown appealed to the Supreme Court of Canada. 

Arguments 

LEAF and the Asper Centre argued that fundamental criminal law principles needed to always be interpreted and applied in a manner consistent with substantive equality, so they did not worsen or cause systemic disadvantage. Section 15 of the Charter needed to continue to play an essential role in the Court’s analysis of criminal law issues. Criminal justice practices and procedures could violate individual and group equality rights, as occurred in this case, without proper attention to this analysis. 

LEAF and the Asper Centre urged the Supreme Court to find that the exclusion of Indigenous personswho were resident on-reserve from the jury rolls violated the s. 15 rights of both accused persons andpotential jurors. Further, the Crown’s discriminatory failure to take reasonable steps to include on-reserve residents in the jury roll continues the historic disadvantage of Indigenous accused persons andpotential on-reserve jurors. The larger context of systemic and persistent discrimination against these populations could not be ignored. 

Outcome 

A majority of the Supreme Court held that the government had satisfied Mr. Kokopenace’s right to a representative jury, as it had provided a fair opportunity for a broad cross-section of society to participate in the jury process.  

LEAF is grateful to Cheryl Milne and Kim Stanton, counsel in this case, as well as Martha Healey, Ottawa agent for LEAF.

Download the factum here.  

Read the Supreme Court of Canada’s decision here. 

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].