NAN applauds Appeal Court decision on juries

Nishnawbe Aski Nation is applauding a recent Ontario Court of Appeal decision that overturned a First Nations man’s manslaughter conviction over unfair jury representation.
“Today, the Ontario Court of Appeal delivered a clear message to the Ontario government,” said Julian Falconer, counsel for NAN on the appeal. “It called the government’s efforts to meet its constitutional obligation to include First Nations people on Ontario juries ‘sorely lacking.’”
Falconer said that the court found the provincial government’s efforts to create representative juries relied almost exclusively on a “junior bureaucrat,” who was given neither training nor supervision. He added that the government ignored a “known and worsening problem, year after year.”
“The Ontario government has run out of excuses,” Falconer said. “It needs to take immediate and urgent steps to repair its relationships with First Nations’ governments to address head-on the problem of Aboriginal estrangement from the justice system.”
The 2-1 R. v. Kokopenace decision by Justices H.S. LaForme and S.T. Goudge, with Justice Paul Rouleau dissenting, called for the introduction of fresh evidence and a new trial for Clifford Kokopenace, who was convicted of the 2008 stabbing death of a friend in Grassy Narrows.
“The violation is the state’s failure to provide Aboriginal on-reserve residents with a fair opportunity to be included in the jury roll,” LaForme said in his June 14 decision. “A disproportionately low number of Aboriginal on-reserve residents on a jury panel is not, in itself, necessarily evidence that there were significant deficiencies in the process by which the roll was created. It is the detailed record assembled for the first time that demonstrates the state’s failure.”
LaForme considered the First Nations Representation on Ontario Juries report by former Supreme Court justice Frank Iacobucci as fresh evidence for his analysis. Delivered this past February in Thunder Bay, the report included 17 recommendations to ensure enhanced representation on the jury roll.
“NAN has been pursuing the issue of the exclusion of our people from the Ontario jury for many years,” said Deputy Grand Chief Alvin Fiddler. “We were stonewalled by the government and had to take this to the courts. The Ontario Court of Appeal has now delivered two judgments declaring that the exclusion of First Nations people is a wrong that must be righted.”
Fiddler said the Iacobucci Report provides a roadmap on how to resolve the jury roll issue.
“It will require respectful Nation-to-Nation negotiations,” Fiddler said. “We are hopeful that the Ontario government will now see that this is the way forward.”
NAN began its efforts to secure a review of the jury roll issue following revelations during the Kashechewan Inquest in 2008 that the Kenora Judicial District jury roll only contained names from 14 of NAN’s 49 communities.
In March 2011, NAN and two First Nation families won a landmark Court of Appeal judgment recognizing that Coroner’s juries were required to be representative of First Nations People. The court also ordered the coroner to conduct an inquiry into the validity of the jury roll for the Thunder Bay Judicial District.