Her Majesty the Queen v. Clifford Kokopenace

(Ontario) (Criminal) (By Leave)


Canadian charter (Criminal) - Criminal law.


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Canadian Charter of Rights and Freedoms - Criminal law - Jury selection - Representativeness of jury - Accused appealing manslaughter conviction on basis that right to representative jury violated - Court of Appeal allowing the appeal and ordering a new trial - What is the meaning of jury representativeness, and how is it assessed? - Whether state fulfilled its representativeness obligation in compiling 2008 Kenora jury roll - What is the appropriate approach to remedy if there is a problem with jury representativeness? - Canadian Charter of Rights and Freedoms, ss. 11(d) and (f) - Juries Act, R.S.O. 1990, c. J. 3, s. 6(8).

The respondent Clifford Kokopenace, an Aboriginal person from Grassy Narrows First Nation in the District of Kenora, Ontario, was charged with second-degree murder in the stabbing death of Taylor Assin. His trial before Stach J., sitting with a jury, took place in the Kenora District. The jury that tried the respondent was derived from the 2008 jury roll for that district, which consisted of 699 potential jurors, of whom 29 were First Nation on-reserve residents. This represented 4.1% of the jury roll. At the time, First Nation on-reserve residents represented between 30.2% and 36.8% of the total population of Kenora District, and the on-reserve adult population represented between 21.5% and 31.8% of the total population of that district. The respondent’s jury was selected from a panel list of 175 jurors, eight of whom were on-reserve residents. The respondent’s jury ultimately did not include any on-reserve residents.

After a three-week trial, the jury found the respondent guilty of manslaughter. Prior to sentencing, the respondent’s trial counsel learned of irregularities in the composition of the Kenora jury roll, particularly with respect to representativeness. Stach J. declined to adjourn the sentencing proceedings to hear a mistrial application.

On appeal, Mr. Kokopenace argued that the jury that found him guilty was derived from a jury roll that, because of the process used to prepare it, inadequately ensured representative inclusion of Aboriginal on-reserve residents. He further argued that this violated his rights under ss. 11(d), 11(f) and 15 of the Charter and under the Juries Act, R.S.O. 1990, c. J. 3, that his jury was improperly constituted, and that he was entitled to a new trial. Extensive fresh evidence was filed on that issue. The Court of Appeal allowed the appeal and ordered a new trial. Rouleau J.A., dissenting, would have dismissed the appeal.