Aboriginal representation on 2015 jury rolls to be challenged

Superior Morning6:27Jury Roll Case

The Supreme Court of Canada will hear arguments today that will determine the fate of a Grassy Narrows man convicted of manslaughter in 2008. The case is also important for the larger issue of Aboriginal representation on jury rolls.Lawyers in a Gore Bay, Ont. court room are expected to argue Monday that four cases cannot proceed because First Nations people living on reserve are not adequately represented on the jury roll.

• 20 cases delayed by Ontario's jury roll problem
• Clifford Kokopenace jury roll case goes to Supreme Court

Those cases could be added to the 20 criminal trials and inquests that have been delayed since 2008, when Clifford Kokopenace challenged the make up of the jury that convicted him of manslaughter. The conviction was overturned by the Ontario Court of Appeal in 2013.

The Supreme Court of Canada is expected to rule on the case this year.

Lawyer Delmar Doucette represents Kokopenace, as well as Shaldon Wabason, whose murder trial in Thunder Bay was stayed for a year in 2014 after Doucette challenged the jury roll.

"This is a problem that has festered for almost two decades now and that the government has done little or nothing to correct," Doucette said. "And the result of that is that we have juries that are not constitutional."

Wabason's case returns to court on June 1, but Doucette is not optimistic that the 2015 jury roll will adequately represent First Nations people living on reserve.

"I do not think that the steps will have been taken that will make the system truly representative," he said.

But lawyers for Ontario argued before the Supreme Court that the law requires a state only to "make reasonable efforts" to ensure representative jury pools, and that the province has done so.

A state is required "to cast a net broadly and avoid the exclusion of any distinct group," said Ontario's factum — a summary of the case which contains details, legal issues and arguments. "Whether this standard has been met will turn on an objective review of all the circumstances, focusing on the efforts made and not the results achieved."

The municipal enumeration list is used to randomly select names of Ontario residents for potential jury duty but no formal process exists for selecting residents of First Nations reserves in the province. In 2007, only 44 of more than 12,000 reserve residents in the district were included in the jury roll, according to documents filed with the Supreme Court.

Ontario's Ministry of Attorney General says the four matters subject to the jury roll challenge in Gore Bay on Jan. 5 are:  R. v. Debassige, R. v. Assinewai, R. v. Madahbee, and R. v. Migwans.

The ministry also anticipates a jury roll challenge in R. v Davidson, a case before the court in Kenora in February.