PART I: INTRODUCTION
A. Preface and Acknowledgements
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This
Report deals with one of the most venerable institutions in history, the jury.
More specifically it deals with the lack of representation of First Nations
peoples living in reserve communities on juries in Ontario.
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As
with most issues involving First Nations peoples, it is difficult to deal with
one issue in a discrete manner without dealing with the influences of many
other factors that impact on the specific issue in question. So it is with representation
of First Nations peoples on Ontario juries. What appears at first blush to be a narrow assignment simply on jury
representation as set forth in the Order-in-Council, triggers
considerations and ramifications from numerous other factors that affect the
principal question of my mandate as an Independent Reviewer of the subject. Why
that broader inquiry into these important factors is necessary will be dealt
with in this Report.
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However,
it should be stated at the outset that, although the Independent Review is not
authorized by the Order-in-Council to be a detailed examination of, and
recommendations for the reform of, the justice system of the province or for improvements in social and economic
programs for First Nations, these matters not only lurk in the
background but are also of great relevance. In short, to ignore this background
is to jeopardize the chances of making any
real progress on the issue of representation of First Nations peoples on
juries.
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As
this Report will demonstrate, there is not only the problem of a lack of
representation of First Nations peoples on juries that is of serious
proportions, but it is also regrettably the fact that the justice system
generally as applied to First Nations peoples, particularly in the North, is quite
frankly in a crisis. If we continue the status
quo we will aggravate what is already a serious situation, and any hope of
true reconciliation between First Nations and Ontarians generally will
vanish. Put more directly, the time for talk is over, what is desperately
needed is action.
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Doing nothing will be a profound shame especially when
there has been a greater recognition throughout Canada of the tragic history of
Aboriginal people, with many examples of mistreatment, lack of respect, unsound
policies, and most importantly a lack of mutual trust between Aboriginal and
Non-Aboriginal people. Indeed the setting
up of this Independent Review is an example of the recognition of importance of
that history by the Government of Ontario and I commend them for that.
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But if
this Report and its recommendations together with their implementation are put
on the shelf, we as a society will all be the worse off and the momentum for
progress will likely come to a halt. The consequences of this will be very
serious.
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This
Independent Review and Report were largely made possible through the efforts of
First Nations people, including Chiefs, Councillors, Elders, reserve residents,
provincial territorial organizations and their leaders, and even some First
Nations students. To all of them I express my sincere gratitude and
appreciation for their involvement, sharing their experiences, offering
opinions and suggestions, and for extending hospitality and courtesy to my
colleagues and me. I cannot name you all, but I can say I am indebted to all of
you for your help and commitment in the work of the Review.
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I also
wish to record my gratitude to specific groups and individuals for their
invaluable help. These include Nishnawabe Aski Nation (former Deputy Grand
Chief Terry Waboose and former Grand Chief Bentley
Cheechoo), their counsel Julian Falconer, Julian Roy, Meaghan Daniel, all of
whom played a central role in the launching of the Independent Review
and organizing visits to reserves in the North which were most important in obtaining
the views of First Nations members in different contexts and with different
experiences. Also, I would like to thank the Union of Ontario Indians and their
counsel Austin Acton, the Chiefs of Ontario, Aboriginal Legal Services of
Toronto and their counsel Christa Big Canoe
and Jonathan Rudin. My thanks also go to then Grand Chief Diane Kelly and her
colleagues on the Treaty 3 Council of Chiefs. Thanks are also due to
Irwin Elman, the Provincial Advocate for Children and Youth. I would also like
to thank Marlene Pierre, Sharon Smoke, Chris Moonias and Bruce Moonias, all of
whom are family members of First Nation victims whose deaths were subject to a
coroner’s inquest, for sharing their grief with us and their submissions on
coroners inquests and related matters.
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We
received considerable help and cooperation from officials at the Ministry of
the Attorney General, Ontario Court Services, the Provincial Jury Centre, and
judges of the Superior Court and Ontario Court of Justice and their officials. We have had the benefit of a paper
describing experiences of jury role processes in other jurisdictions,
prepared by former Attorney General Michael J. Bryant, who currently works as a
consultant on Aboriginal issues.
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For
special recognition, I would like to acknowledge the former Attorney General
Chris Bentley and current Attorney General John Gerretsen for their cooperation
and support. I should also wish to thank especially Murray Segal, the former
Deputy Attorney General of Ontario, for his instrumental role in setting up the Independent Review and
collaborative effort to support the Review in every way. Thanks are also
due to Acting Deputy Attorney General Mark Leach for his cooperation and help.
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Finally,
I should like to thank my team: John Terry, Counsel to the Independent Review,
and Candice Metallic, Associate Counsel to the Review. No one could have better
or more talented colleagues with whom to
work than those two. They played an immensely important role in all phases of
the Review and I thank them profoundly. I would also like to thank Nick
Kennedy and Ryan Lax, who greatly helped us in the finalization of the Report.
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Much
time, effort and commitment has gone into the preparation of this Report by all
those I have mentioned. I believe I express
the sentiment of all concerned that improvements to the jury representation
of First Nations peoples will be significantly advanced as a result of our
collective efforts.
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We
also share a dream that the jury representation changes will spawn other needed
improvements to the justice system and to the relationship between Ontario and First Nations peoples.
B. Introduction and Executive Summary
1. Introduction
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This
Report will, I hope, be a wake-up call to all who are concerned with the
administration of justice in Ontario. As I stated in the Preface above, it has
become clear to me in carrying out this Independent Review that the justice
system, as it relates to First Nations peoples, and particularly in Northern Ontario, is in crisis. Overrepresented in the
prison population, First Nations peoples are significantly underrepresented,
not just on juries, but among all those who work in the administration of
justice in this province, whether as court officials, prosecutors, defence
counsel, or judges. This issue is made more acute by the fact that Aboriginal
peoples constitute the fastest-growing group within our population, with a
median age that is significantly lower than the median age of the rest of the
population.
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The
problem that is the specific focus of this Report – the underrepresentation of
individuals living on reserves on Ontario’s jury roll – is a symptom of this
crisis. It is that narrow problem, and the concerns it raises about the
fairness of our jury system, that have rightly prompted the Government of Ontario
to arrange for this Independent Review to
be carried out. But an examination of that problem leads inexorably to a set of broader and systemic issues that are
at the heart of the current dysfunctional relationship between Ontario’s justice system and Aboriginal peoples in this province. It is these broad
problems that must be tackled if we are to make any significant progress in
dealing with the underrepresentation of First Nations individuals on juries.
And it is this systemic approach to the issues which has guided me in the
conduct of my review and the formulation of my recommendations, as discussed
below.
2. My Mandate and Work
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I was appointed to carry out this Independent Review by
Order-In-Council 1388/2011, dated August 11, 2011. The Order-in-Council, a copy of
which is attached as Appendix A to this Report, directed me to make
recommendations:
- to ensure and enhance the
representation of First Nations persons living on reserve
communities on the jury roll; and
- to strengthen the
understanding, cooperation and relationship between the Ministry of the
Attorney General and First Nations on this issue.
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I
commenced my work in Fall 2011 after assembling a small legal team to assist
me. We began the Review by developing a process to gather information from all
of those who have been involved in, or are affected by, the juries system in Ontario as it relates to the representation of First Nations peoples on the jury roll.
After creating a website for the Independent Review, we set out to develop a
process that would allow us to meet and
receive submissions from interested First Nations leaders, communities and
organizations, officials of the
Ministry of Attorney General, Ministry of Health and Long-Term Care, the
Provincial Advocate for Children and Youth, other service organizations
and members of the judiciary who have presided over cases or motions relating
to the issues under review.
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Hearing
from the First Nations leadership, people, and organizations as the first order
of business was the best way, in my view, for me to understand and accurately
define the systemic issues affecting First Nations peoples living in reserve
communities as it relates to jury service. Given the vast diversity of First
Nations and Treaty groups and organizations
in the Province of Ontario, we determined that the engagement process
must begin by introducing the Independent Review to First Nations and inviting
them to participate in a manner they deemed appropriate. Accordingly, in
November 2011, I sent a letter to all First Nations governments and First
Nations and Treaty organizations in Ontario offering to meet with them, receive
written submissions, or accommodate a combination of both. A copy of this
correspondence is attached as Appendix D to this Report.
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Between
November 2011 and May 2012, I met with the leadership and people from 32 First
Nations, mostly within their communities, and four First Nation organizations.
This engagement included meetings with First
Nations that are members of the Nishnawbe Aski Nation, the Union of Ontario
Indians, Grand Council Treaty #3, as well as four First Nations that are
unaffiliated with a tribal council or First Nations organization. The list of First Nations that I visited during
this phase of the Review is attached as Appendix E to my Report. We also
met with representatives of Aboriginal Legal Services of Toronto, who convened
a Families Forum at which my team and I met with some family members of First
Nations victims whose deaths were subject to a coroner’s inquest. Overall, the
cumulative meetings and discussions with every person involved helped shape my
understanding of the systemic and procedural issues impacting the
representation of First Nations peoples on the jury roll in Ontario.
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Following
the First Nations engagement process, I prepared a progress report and a
discussion paper, attached as Appendix F to this Report, that I sent to all
First Nations in Ontario, First Nation and Treaty organizations, and interested
Aboriginal service providers, seeking their further input. The discussion paper
set out the issues identified by First Nations during the engagement process
and posed questions to solicit feedback on ways to address the challenges
associated with the representation of First Nations peoples on juries.
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Once I
became familiar with the issues from the First Nations perspective, we met and
had discussions with officials from the
Ministry of the Attorney General, including the Court Services Division and the
Provincial Jury Centre. We also met with some members of the judiciary
who have presided over many cases involving
First Nations offenders. Considering the large demographic of First Nations
youth in Ontario, we also thought it useful to meet with the Provincial
Advocate of Children and Youth in Ontario.
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We
received many written submissions as a result of the engagement process and the
feedback requested through the discussion paper, including from, among others,
Nishnawbe Aski Nation, the Union of Ontario Indians, the Chiefs of Ontario,
Aboriginal Legal Services of Toronto, the Office of the Provincial Advocate for
Children and Youth in Ontario, and Legal Aid Ontario.
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Following
receipt of written submissions in early July 2012, I prepared my Report based
on all the information received through meetings and written submissions and
further research and analysis carried out by
my team and me. The Report was substantially completed by the end of August
2012 and provided to translators in early September 2012 for translation
into French, Cree, Ojibway, Oji-Cree and Mohawk.
3. Issues Identified During Visits and Meetings
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My
meetings with First Nations leaders, Elders, people, technicians and service
providers from 32 communities during the
engagement process played a crucial role in helping me understand the systemic and
procedural issues affecting the representation of First Nations peoples on the
jury roll in Ontario. During all these meetings, one point was resoundingly
clear: substantive and systemic changes to the criminal justice system are
necessary conditions for the participation of First Nations peoples on juries
in Ontario.
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Aside
from the issues regarding the most effective manner to obtain names of First
Nations reserve residents for the purposes of the jury roll, the fact is that
many First Nations people are plainly reluctant to participate in the jury
system. Many reasons exist for that reticence, and I heard them repeatedly
throughout the engagement process.
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First,
First Nations leaders and people spoke about the conflict that exists between
First Nations’ cultural values, laws, and ideologies regarding traditional
approaches to conflict resolution, and the values and laws that underpin the Canadian justice system. The objective of the
traditional First Nations’ approach to justice is to re-attain harmony,
balance, and healing with respect to a particular offence, rather than seeking
retribution and punishment. First Nations people observe the Canadian justice
system as devoid of any reflection of their core principles or values, and view
it as a foreign system that has been imposed upon them without their consent.
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Second, First Nations people often spoke of the systemic
discrimination that either they or their families have
experienced within the justice system in relation to criminal justice or child
welfare. These experiences with the criminal justice system, along with
historic limitations on the rights of First Nations people, have created
negative perspectives and an inter-generational mistrust of the criminal
justice system. Such perceptions, by implication, extend to participation in
the jury process. First Nations people generally view the criminal justice
system as working against them, rather than for them. It is an affront to them to
participate in the delivery of this system of justice.
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Third,
First Nations people lack knowledge and awareness of the justice system
generally, and the jury system in particular. It was understandably expressed
that most First Nations individuals will refrain from participating in a
process they know nothing about. Many First Nations people were unaware that
the same jury roll was used to select juries for both trials and coroner’s
inquests. Therefore, most leaders identified the need for a focused and
sustained education strategy for First Nations communities with respect to the
role of juries in the justice system and the process by which jury rolls and
jury panels are created, as well as the rights of individuals accused of
offences and the rights of victims.
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Fourth,
First Nations leaders resoundingly and assertively expressed the desire to
assume more control of community justice matters as an element of what they
strongly believe is their inherent right to self-government, and at the very
least be involved in developing solutions to the jury representation issue.
Having been introduced to community-based restorative justice initiatives in
previous years, First Nations experienced
the benefits to their communities that came from the development of a
culturally-appropriate approach to justice. However, these programs were
discontinued owing to funding cuts and will require financial resources and capacity to be resumed. First Nations leaders
were unequivocal that re-introducing restorative justice programs would
have multiple benefits at the community level. Such benefits include the
delivery of justice in a culturally relevant manner, greater understanding of
justice at the community level, increased community involvement in the
implementation of justice and, finally, an opportunity to educate people about
the justice system and their responsibility to become engaged on the juries
when called upon to do so.
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Fifth, the issue of local police services arose in many
discussions throughout the engagement process. It became very clear that inadequate
police services and associated funding contribute to negative perceptions of
the criminal justice system. Many First Nations were very concerned about the
limited and under-resourced police services and the lack of sufficient training
for them. Some First Nations leaders expressed frustration regarding the lack
of enforcement of First Nation by-laws.
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A
common theme expressed by First Nations leaders was concern for the protection
of the privacy rights of their citizens with
respect to the unauthorized disclosure of personal information for the purposes
of compiling the jury roll. Confusion with respect to the obligations of First
Nations governments in this regard appears to be related to different positions
taken by Aboriginal Affairs and Northern Development (formerly Indian and
Northern Affairs Canada) since 2001. The difficulty of creating and maintaining
a single source list of individual residents that includes dates of birth and
addresses on reserve is a real challenge because First Nations governments do
not typically possess such a list. As an alternative, many First Nations
leaders proposed that jury service ought to be voluntary and expressed a
willingness to help facilitate such an approach. First Nations representatives
also stated that the process to collect names for the purposes of the jury roll
must be clear, tangible and consistent throughout all judicial districts in
which First Nations are located.
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First
Nations peoples’ willingness to participate in the jury process is also
negatively affected by the content of the jury questionnaire. There are a
number of features that First Nations people identified as discouraging them from responding. First, the
statement of penalty of a fine or imprisonment for non-response within
five days is viewed as coercive and inappropriately imposing jury duty through
intimidation and threat, and the time frame
of five days for response is thought to be unreasonable. Second, the
requirement to declare Canadian citizenship prompts many to answer in
the negative. However, it was expressed that if there were an option to declare
First Nation citizenship or membership, many more First Nations people would respond positively, thereby increasing the
number of eligible First Nations jurors. Third, the language requirement
for juror eligibility, being English or French, is problematic for First
Nations people whose primary language is
their indigenous language. It was suggested that broadening the number of
languages, along with the provision
of translation services, would enhance First Nations responses to jury
questionnaires and participation. It was suggested that an exemption be
created for First Nations elected leadership, akin to the exemption for
federal, provincial and municipal elected officials. Finally, it was explained
that First Nations’ lack of understanding of the jury selection process and
role of juries served as a barrier to responding to jury questionnaires.
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The engagement process also identified many practical
barriers that exist with respect to the participation of
First Nations peoples on juries, particularly in northern Ontario. These
barriers include: the cost of transportation,
where travel arrangements are not pre-arranged by the Court Services Division;
inadequate allowances for accommodation and meals; the absence of child
and elder care as eligible costs; and lack of income supplements. Further,
community-based supports were viewed as a required service to assist with
process logistics. Finally, the existence of criminal records and lack of
knowledge and access to pardon procedures serves to exclude many potential
First Nations jurors.
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Many First Nations people, specifically those who
unfortunately are, or have been, involved in coroner’s inquests
related to the death of a family member in state care, appreciate the
importance of a coroner’s jury that is representative of First Nations
peoples and were interested in participating in coroner’s inquests. They were
anxious to see the resolution of this issue so the investigations into the
deaths can proceed.
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First
Nations leaders unequivocally asserted that the way forward with respect to
enhancing a relationship with the Ministry of the Attorney General in the
context of the jury system, and all justice matters, is through a
government-to-government relationship and a process that reflects such a
relationship. First Nations seek greater control of the justice system as it
applies to their people and view the re-integration of restorative justice
programs as one measure to achieve this goal. The need for a collaborative
approach to develop a proper jury roll process for First Nations peoples on
reserve is viewed as a necessary step forward in a respectful relationship.
Moreover, partnering with First Nations with respect to educational initiatives
aimed at First Nations and government officials would contribute to improving
the relationship.
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Government
officials with whom I spoke echoed the need for measures to substantially
increase the participation of First Nations reserve residents on juries, in
addition to obtaining reliable records required to prepare a representative
jury roll. Court officials in the Kenora District, and more recently Thunder Bay, have undertaken various efforts to reach out to First Nations to obtain
residence information and have undertaken programs to educate and inform First
Nations communities about the jury system. However, we heard a consensus view
among government officials that significant improvements are necessary. Using
the data held by the Ontario Health Insurance Plan (OHIP) as one source list of
names, addresses and dates of birth of reserve residents, coupled with
information-sharing agreements or memoranda of understanding to protect the
confidentiality of such information, is an approach worthy of further
exploration and discussion with First Nations leadership. Moreover, educational
efforts similar to the initiative undertaken by the Ministry of Attorney
General and the Union of Ontario Indians and the Grand Council of Treaty #3 to
conduct Jury Forums in 15 First Nations could be used as an ongoing measure to
educate First Nations peoples on the subject of juries. Other creative
approaches were suggested to minimize the burden on First Nations, such as the
use of video conferencing technology for the jury selection process and
Superior Court of Justice sittings in select First Nations communities.
4. Written Submissions
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In
addition to certain written submissions I received during the engagement
sessions, I also received helpful and
detailed written submissions at the conclusion of the engagement process from
six organizations: Nishnawbe Aski Nation, Union of Ontario Indians,
Chiefs of Ontario, Aboriginal Legal Services of Toronto, the Office of the
Provincial Advocate for Children and Youth, and Legal Aid Ontario. These
organizations’ submissions were consistent with the views I heard from First
Nations people during the engagement process, emphasizing, among other things,
the need to address jury roll reform in partnership with First Nations. As the Nishnawbe Aski Nation stated in
its submissions, the underrepresentation of First Nations peoples on Ontario juries “is but one symptom of a larger problem of alienation and exclusion of First
Nations people within the justice system.”
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The
submissions offered many recommendations on ways in which the systemic and
procedural issues related to the jury roll
could be addressed. The matters addressed in the recommendations included,
among other things: enhancement of community or restorative justice
programs; improvements to the operation of the justice system in northern
Ontario; uniform coordination and implementation of section 6(8) of the Juries Act; the involvement of First Nations peoples in compiling the jury roll;
increased language supports with respect to juror questionnaires and
translation services; increased juror remuneration and expense allocations; the recruitment of First Nations
liaisons; revising the juror questionnaires; meaningful educational,
outreach and training initiatives, especially for youth; measures to address
inadequate police services in order to increase confidence in the justice
system; and the need to take prompt and assertive steps to improve the
relationship between First Nations and the Attorney General.
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I am
grateful for the thought and effort that these organizations demonstrated in
providing me with these very comprehensive submissions and recommendations.
5. Historical, Legal and Comparative Research
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In
addition to the engagement process and submissions described above, my team and
I carried out research respecting various issues,
including the history of juries and jury selection in Ontario, the requirement
that a jury be representative, and the
history and practice with respect to the representation of First Nations
peoples on Ontario juries. Juries have
served for generations as the cornerstone of our justice system, as well
as a fundamental institution in the administration of justice in civilizations
dating back to ancient times. Unfortunately, however, the jury system as it has
developed and operated in Ontario, like Ontario’s justice system in general,
has not often been a friend to Aboriginal persons in Ontario. Indeed, criminal
jury trials in Canada were used at times as a tool to punish what the British
viewed as disloyal behavior on the part of Aboriginal people, and to persecute
the customary practices of First Nations on the grounds that they constituted
criminal behaviour.
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Our
research focused in particular on the application of, and case law respecting,
the requirement in section 6(8) of the Juries Act for the sherriff “to
obtain the names of inhabitants of the reserve from any record available.”[1] It is clear to me as a result
of this research and in particular the materials filed in conjunction
with recent court cases respecting this matter that the current reliance by
Court Services officials on obtaining the
names from Band List information, though resulting from well-meaning efforts,
is ad hoc and leads in many cases to
out-of-date and otherwise unreliable information being used to compile the jury
roll.
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In
accordance with paragraph 4 of the Order-in-Council, I also considered the law
and practice in other jurisdictions to assess what lessons we can learn from
them. Underrepresentation of Aboriginal peoples on juries is by no means
exclusively an Ontarian or Canadian issue. Rather, this issue exists in various
jurisdictions that rely on juries and that have sizeable Aboriginal
populations, including other Canadian
provinces, New Zealand, Australia and the United States. In reviewing law and
practice in other jurisdictions, I had the benefit of a paper describing
experiences of jury role processes in other jurisdictions prepared by former
Attorney General Michael J. Bryant, who currently works as a consultant on
Aboriginal issues.
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I
found this review of experience in other jurisdictions to be very helpful. It
showed, among other things, that many other Canadian provincial governments
rely on health insurance records as a source for compiling the jury roll. The
review also revealed a number of practices in other jurisdictions that I have recommended be considered or studied for potential
use in Ontario, including allowing individuals to volunteer for jury
service as a supplemental source list (as is allowed in New York State),
holding court hearings in remote communities, and drawing jurors from residents
living reasonably close to where the hearing is held (as is done in the
Northwest Territories and Alaska), and, when a jury summons or questionnaire is
undeliverable or is not returned, sending
another summons or questionnaire to a resident of the same postal code,
thereby ensuring that nonresponsive prospective jurors do not undermine jury
representativeness (an approach adopted in some U.S. states to respond to
underrepresentation of minorities on juries).
6. Recommendations
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As a
result of the engagement process, review of submissions, and research and
analysis as described above, I make the following 17 major recommendations.
Recommendation
1: the Ministry of the Attorney General establish an Implementation Committee
consisting of a substantial First Nations membership along with Government
officials and individuals who could, because of their background or expertise,
contribute significantly to the work of the Implementation Committee. This
Committee would be responsible for the oversight of the implementation of the
below recommendations and related matters. In view of the importance and
urgency of the matter, I recommend that the Committee be established as soon as
practically possible.
Recommendation
2: the Attorney General establish an Advisory Group to the Attorney General on
matters affecting First Nations and the Justice System.
Recommendation
3: after obtaining the input of the Implementation Committee, the Ministry of
the Attorney General provide cultural training for all government officials
working in the justice system who have contact with First Nations peoples,
including police, court workers, Crown prosecutors, prison guards and other
related agencies.
Recommendation
4: the Ministry of the Attorney General carry out the following studies for
eventual input by the Implementation Committee:
- a
study on legal representation that would involve Legal Aid Ontario,
particularly in the north, that would cover a variety of topics, including the adequacy
of existing legal representation, the location and schedule of court sittings,
and related matters.
- a study on First Nations
policing issues, including the recognition of First Nations police forces
through enabling legislation, the establishment of a regulatory body to oversee
the operation of First Nations law enforcement programs, the creation of an
independent review board to adjudicate
policing complaints, and the development of mandatory cultural competency
training for OPP officers; and
- a review of the Aboriginal
Court Worker program and an examination of resources required to improve the
program.
Recommendation
5: the Ministry of the Attorney General create an Assistant Deputy Attorney
General (ADAG) position responsible for Aboriginal issues, including the implementation
of this Report.
Recommendation
6: after obtaining the input of the Implementation Committee, the Ministry of
the Attorney General provide broader and more comprehensive justice education
programs for First Nations individuals, including:
- developing brochures in
First Nations languages with plain wording which provide comprehensive
information on the justice system, including information respecting the role
played by criminal, civil, and coroner’s juries;
- establishing First Nations
liaison officers responsible for consulting with First Nations reserves on
juries and on justice issues;
- commissioning
the creation of video or other educational instruments, particularly in First
Nations
languages, that would be used to educate First Nations individuals as to the
role played by the jury in the justice system and the importance of
participating on the jury; and
- considering the
feasibility of a program that would enlist students from Ontario law schools to
participate in intensive summer education and legal assistance programs for
First Nations representatives, dealing with the justice system generally and
the jury system in particular, in consultation with Chiefs, and Court Services
officials.
Recommendation
7: with respect to First Nations youth, in addition to having a youth member on
the Implementation Committee, the
Implementation Committee should request that the Provincial Advocate for
Children and Youth facilitate a conference of representative youth members from
First Nations reserves to focus on specific issues in the relationship between
youth, juries, and the justice system, addressed in this report. The Provincial
Advocate for Children and Youth should prepare a report on that conference; prior to submitting the report to the
Implementation Committee the Provincial Advocate for Children and Youth
should consult with PTOs and other First Nations associations.
Recommendation
8: the Ministry of the Attorney General, in consultation with the
Implementation Committee, undertake a prompt and urgent review of the
feasibility of, and mechanisms for, using the OHIP database to generate a
database of First Nations individuals living on reserve for the purposes of
compiling the jury roll.
Recommendation
9: in connection with this review, the Ministry of Attorney General and First
Nations, in consultation with the Implementation Committee, consider all other
potential sources for generating this database, including band residency
information, Ministry of Transportation information and other records, and steps
that might be taken to secure these records, such as a renewed memorandum of
understanding between Ontario and the Federal government respecting band
residency information or memorandums of understanding between Ontario and PTOs
or First Nations, as appropriate.
Recommendation
10: the Ministry of the Attorney General, in consultation with the
Implementation Committee, consider amending the questionnaire sent to
prospective jurors to:
- make the language as
simple as possible;
- translate the
questionnaire into First Nations languages as appropriate;
- remove the wording
threatening a fine for non-compliance and replacing it with wording stating
simply that Ontario law requires the recipient to complete and return the form
because of the importance of the jury in ensuring fair trials under Ontario’s
justice system;
- on
the premise that a First Nations member living on reserve in Ontario satisfies
the Canadian
citizenship requirement under s. 2(b) of the Juries Act, add an option
for First Nations individual to identify themselves as First Nations members or
citizens rather than Canadian citizens;
- enable First Nations
elected officials, such as Chiefs and Councillors, as well as Elders, to be
excluded from jury duty; and
- provide, through an
amendment to the Juries Act, for a more realistic period than the
current five days for the return of jury questionnaires.
Recommendation
11: the Ministry of the Attorney General, in consultation with the
Implementation Committee, consider implementing the practice from parts of the
U.S., that when a jury summons or questionnaire is undeliverable or is not
returned, another summons or questionnaire is sent out to a resident of the same postal code, thereby ensuring
that nonresponsive prospective jurors do not undermine jury representativeness.
Recommendation
12: the Ministry of the Attorney General, in consultation with the
Implementation Committee, consider a procedure whereby First Nations people on
reserve could volunteer for jury service as a means of supplementing other jury
source lists.
Recommendation
13: the Ministry of the Attorney General, in consultation with the
Implementation Committee, consider enabling First Nations people not fluent in
English or French to serve on juries by providing translation services and by
amending the jury questionnaire accordingly to reflect this change.
Recommendation
14: the Ministry of the Attorney General, in consultation with the
Implementation Committee, adopt measures to respond to the problem of First
Nations individuals with criminal records for minor offences being
automatically excluded from jury duty by:
- amending the Juries Act
provisions that exclude individuals who have been convicted of certain offences
from inclusion on the jury roll, to make them consistent with the relevant Criminal
Code provisions, which exclude a narrower group of individuals;
- encouraging and providing
advice and support for First Nations individuals to apply
for pardons to remove criminal records; and
- considering whether, after
a certain period of time, an individual previously convicted
of certain offences could become eligible again for jury service.
Recommendation
15: the Ministry of the Attorney General discuss with the Implementation
Committee the advisability of recommending to the Attorney General of Canada an
amendment to the Criminal Code that would prevent the use of peremptory
challenges to discriminate against First Nations people serving on juries.
Recommendation 16: in view of the concerns I have heard
and the fact that current jury compensation is not consistent with cost-of-living increases, I recommend that the Ministry
of the Attorney General refer the issue of jury member compensation to
the Implementation Committee for consideration and recommendation.
Recommendation
17: the Ministry of the Attorney General, in consultation with the
Implementation Committee, institute a process that would allow for First
Nations individuals to volunteer to be on the jury roll for the purposes of
empanelling a jury for a coroner’s inquest.
-
For a
complete explanation of the recommendations, see paragraphs 347 to 386.
7. Acknowledgement
-
The
preparation of this Report would not have been possible without the
participation and assistance of many First Nations people, including Chiefs,
Councillors, Elders, members of reserves, provincial territorial organizations
and their leaders, and even some First Nations students. I also benefitted
greatly from the contributions of the lawyers who acted for various
organizations and from government officials, all of whom were very fair and
candid in their assessments of the shortcomings of current conditions.
-
It
is my sincere hope that the trust that First Nations people have invested in
this Independent Review process will be rewarded with prompt response and
action by the Government of Ontario.
PART II: APPOINTMENT AND WORK OF THE INDEPENDENT
REVIEW
A. Mandate of the Independent Review
-
I was appointed to carry out this Independent Review by
Order-In-Council 1388/2011, dated August 11, 2011. The Order-in-Council, a copy of
which is attached as Appendix A to this Report, directed me to make
recommendations:
- to ensure and enhance the
representation of First Nations persons living on reserve communities on the
jury roll; and
- to strengthen the
understanding, cooperation and relationship between the Ministry of the
Attorney General and First Nations on this issue.
-
The
Order-in-Council responds to the fundamental problem of lack of representation
of members of Ontario’s First Nations communities on Ontario’s jury
roll. As described in this Report, this problem appears not only to have
been longstanding, but to have worsened over the past decade. It was brought to
a head as a result of a series of cases that arose over the last several years,
two of which have made their way to the Court of Appeal for Ontario.
-
The
first of the recent set of cases involved the empanelment of juries in
coroner’s inquests into the deaths of individuals living in First Nations
communities. At the commencement of the inquests into the deaths of Jacy Pierre and Reggie Bushie, the
families of the deceased contacted the Office of the Coroner and the Attorney General to express their concern
about the underrepresentation of First Nations peoples on the jury roll for the District of Thunder Bay.
Their concern was prompted by the discovery made during the 2008 inquest
into the deaths of Jamie Goodwin and Ricardo Wesley (“the Kashechewan Inquest”)
that the Kenora District jury rolls
contained names of members of only 14 of the 49 First Nations represented
by Nishnawbe Aski Nation (NAN) and that not a single member of the Kaschechewan
First Nation was listed on the Kenora jury roll.[2]
-
Each family – and in the Bushie inquest, NAN – asked the
presiding coroner to issue a summons to the Director of Court Operations so they could
find out how the jury roll in the District of Thunder Bay was established. Both
coroners refused to issue a summons. The Pierre family and NAN applied for
judicial review of each coroner’s decision
and a stay of the inquests pending the hearing of their application. The court
granted a stay of the Bushie inquest but refused to stay the Pierre inquest,
which proceeded and was completed without
the participation of the Pierre family. The Divisional Court dismissed the
applications for judicial review. The
Court of Appeal, in a decision reported as Pierre v. McRae (also
referred to as NAN v. Eden), overturned this decision.[3]
The Court of Appeal held that the families of Mr. Bushie and Mr. Pierre had adduced sufficient evidence to justify an
inquiry into the representativeness of the jury rolls. The Court also ordered that the Director of Court Operations
appear before both inquests to testify about the establishment of jury rolls in the Thunder Bay District. Following the
Court of Appeal’s decision, the coroner in the Bushie Inquest determined
that the Thunder Bay District’s jury roll was not representative, and ordered
that the inquest be stayed until a representative jury roll is created.
-
The
second set of proceedings arose out of appeals brought by First Nations
defendants to set aside their criminal convictions on the basis that lack of
representation of First Nations peoples on jury rolls had infringed their right to a representative jury.
The defendant in R. v. Kokopenace learned of the Bushie inquest and
the surrounding legal proceedings, and appealed his conviction on several
grounds, including the unrepresentativeness
of the jury roll for the Thunder Bay District.[4]
The Court of Appeal dismissed all non-jury grounds of appeal, but
adjourned the appeal to hear arguments about the jury composition issue. The
defendant in R v. Spiers appealed her conviction, and also pursued the
jury composition issue.[5]
These appeals were heard together by the Court of Appeal in May 2012, but at
the time of writing the Court had not rendered its decision.
-
NAN is
the political territorial organization representing the political, social and
economic interests of 49 First Nations Reserve communities in Ontario. NAN’s initiatives, aimed at addressing the issue of the underrepresentation of First
Nations peoples on jury rolls, began following the Kaschechewan Inquest. NAN became
involved in the Bushie Inquest on behalf of Mr. Bushie’s family, and brought
the appeals described above to the Divisional Court and the Court of Appeal. NAN also intervened in the Kokopenace and
Spiers appeals. Through its participation in the coroners inquests, the
subsequent legal challenges and political action, NAN has been instrumental in
helping to focus public and judicial scrutiny on the issue of Aboriginal
underrepresentation on Ontario jury rolls and in setting up this Independent
Review.
-
The mandate set out in the Order-in-Council is both
relatively narrow and broad. On the one hand, I have been asked to examine the
specific issue of lack of representation of First Nations peoples on Ontario’s jury roll, and my recommendations are focused on that issue. On the other hand,
there is a recognition in the Order-in-Council of the need to strengthen “the
understanding, cooperation and relationship between the Ministry of
the Attorney General and First Nations” in relation to the jury representation issue. As the
Attorney General stated in his factum filed in the Kokopenace and Spiers
appeals, my mandate is to probe “the
important systemic issues surrounding low participation of Aboriginal people on
juries”.[6]
As described further in this Report, in investigating these systemic issues, it
has become clear to me that the issue of
underrepresentation of First Nations peoples on the jury roll in this province
is merely a symptom of the broader disease ailing Ontario’s justice
system as it relates to First Nations peoples in Ontario. Consequently, while I
appreciate that my mandate is first and foremost to address the issue of the
lack of representation of First Nations community members on the jury roll, I
have found that this issue cannot be realistically addressed without
considering these broader systemic issues.
-
I
should also note that the Order-in-Council expressly directs me not to address
certain matters in carrying out my review, and consequently I have not done so.
For example, paragraph 7 of the Order-in-Council states that I shall not report
“on any individual cases that are, have been, or may be subject to a criminal
investigation or proceeding, inquest or other legal proceeding”. As a result,
although my Report makes reference to the jurisprudence relating to these
matters as part of the background and context for my recommendations, I do not report on or make recommendations with
respect to any of these individual cases. In addition, as required by
paragraph 8 of the Order-in-Council, I have taken care to perform my duties
without making any findings of fact in relation to misconduct, or expressing
any conclusions or recommendations regarding the civil or criminal liability of
any person or organization, and without interfering in any investigation or
criminal or other legal proceeding.
-
The
heart of my mandate is addressed in paragraphs 5 and 6 of the Order-in-Council,
which direct me, in the conduct of my
review, to hold consultations with First Nations communities and to invite and
receive submissions in writing from any First Nation, First Nations
political territorial organization, First Nations organization, and member of a
First Nation as well as from any interested party, including ministries of
government. It is through this consultation process, described in detail in the
next section of the Report, that I have gained the greatest understanding of
the fundamental systemic problems that underlie the issues I have been directed
to review.
B. Work of the Independent Review
-
Shortly
following the passage of Order-in-Council 1288/2011 on August 11, 2011, I began
to assemble the legal team that would support my work for the Independent
Review. John Terry, a partner with Torys LLP, was the first to join the team as
lead counsel. In October, we recruited as associate counsel Candice Metallic,
then a senior associate and now a partner with Maurice Law, Barristers and
Solicitors. Together, my team and I began to develop a plan and engagement
approach for the Independent Review.
-
We
commenced the Independent Review with a process to gather information from all
of those who have been involved in, or are affected by, the juries system in Ontario as it relates to the representation of First Nations peoples on the jury roll.
After creating a website for the Independent Review, we set out to develop a
process that would allow us to meet and receive submissions from interested
First Nations leaders, communities and organizations, officials of the Ministry
of Attorney General, Ministry of Health and Long-Term Care, the Provincial
Advocate for Children and Youth, other service organizations, and members of
the judiciary who have presided over cases or motions relating to the issues
under review.
-
Hearing
from the First Nations leadership, people and organizations as the first order
of business was the best way, in my view, for me to understand and accurately
define the systemic issues affecting First Nations peoples living in reserve
communities as it relates to jury service. Given the vast diversity of First
Nations and Treaty groups and organizations in the Province of Ontario, we determined that the engagement process must begin by introducing the Independent
Review and inviting First Nations to participate in a manner they deemed
appropriate. Accordingly, in November 2011, I sent a letter to all First
Nations governments, and First Nations and Treaty organizations in Ontario, offering to meet with them, receive written submissions or accommodate a
combination of both. A copy of this correspondence is attached as Appendix D to
this Report.
-
Following the First Nations engagement process, described
in more detail in Part IV, I prepared a Progress Report and a discussion paper that
set out the issues identified by First Nations during the engagement process,
and posed questions to solicit feedback on ways to address the challenges
associated with the representation of First Nations peoples on juries. I
prepared a summary progress report that was made available on our website, and
a discussion paper that was sent to all First Nations in Ontario, First Nation and Treaty organizations, and interested
Aboriginal service providers, seeking their further input. It is attached
as Appendix F to this Report. The submissions we received are summarized in
Part IV of this Report.
-
Once I
became familiar with the issues from the First Nations perspective, we began to
meet and have discussions with officials from the Ministry of the Attorney
General, including the Court Services Division and the Provincial Jury Centre.
We also met with some members of the judiciary who have presided over many
cases involving First Nations offenders. Considering the large demographic of
First Nations youth in Ontario, we also thought it useful to meet with the
Provincial Advocate of Children and Youth in Ontario.
1. Nishnawbe Aski Nation
-
As
described at paragraph 53 above, NAN had been intensely involved in legal and
advocacy events leading up to the creation
of the Independent Review. Accordingly, they were the first organization to
submit a proposal for engagement, which we accepted. NAN proposed an
engagement process similar to that adopted by Commissioner Mr. Justice Goudge
in the Inquiry into Pediatric Forensic Pathology in Ontario. This approach
entailed a preparatory meeting in each of the selected First Nations
communities, followed by a meeting between community representatives, my team,
and me. The preparatory team consisted of a
NAN representative, former Grand Chief Bentley Cheechoo, and a translator,
Jerry Sawanas, who provided advice and information required by each
First Nation with which we met. NAN’s legal team of two lawyers from the law
firm Falconer Charney accompanied the NAN representatives to provide legal
advice on the issues. The objectives of the preparatory meetings were to
educate the leadership and community with respect to the jury representation
issue, to address any questions or concerns that may be raised, and to ensure
that the community was sufficiently prepared for my visit. Following the
preparatory meetings, a second visit was arranged whereby my legal team, NAN’s preparatory team, and I attended the First Nations communities to discuss the issues.
-
As an
important backdrop to the Independent Review, I want to acknowledge the seven
young men from NAN First Nations who died while attending the Dennis Franklin Cromarty High School in Thunder Bay. In selecting the First Nations to be
involved in the Independent Review engagement process, NAN respectfully and
appropriately included the home First Nations of the young men who died in Thunder Bay, and also considered factors such as geographic location, size, and Tribal
Council affiliation. Fifteen of NAN’s 49
First Nations were identified by NAN to be visited during the Review. Owing to
unanticipated events, such as inclement weather, deaths in the
community, and other pressing matters that arose in First Nations communities,
I was able to visit ten of the fifteen communities. The list of First Nations
that I visited during this phase of the Review is attached as Appendix E to my
Report. The outcomes of these sessions are summarized in Part IV of my Report.
2. Union of Ontario Indians
-
The Union of Ontario Indians, a political advocate for 39
Anishinabek First Nations in Ontario, submitted an engagement proposal and budget on
behalf of its members, which we accepted. Having recently participated in a
previous initiative funded by the Ministry of the Attorney General to conduct
three discussion forums regarding juries in Anishinabek territory, the Union built upon this previous work and proposed to undertake five tasks for the
Independent Review.
-
First,
the Union assembled a steering committee that designed a process to engage
their constituent First Nations in the
Independent Review. Second, the Union prepared plain language backgrounders
regarding the issue of the representation of First Nations peoples on
juries for the purposes of dissemination in Anishinabek
First Nations and institutions. Third, the Union commissioned external research
reports to harness the knowledge,
opinions, and suggestions of key organizations in the region. The authors of
the independent research papers attended the engagement sessions to
present their research and to contribute to fruitful discussions. These independent research reports are summarized in Part
IV of this Report. Fourth, the Union originally planned to organize
three consultation meetings at which First Nations individuals, leaders, and I
were invited to attend to discuss the issue of the underrepresentation of First
Nations peoples on juries. Of these three sessions, two were convened and one
was cancelled. The summary of these sessions is found in Part IV of this
Report. Finally, the Union prepared a Research Report and Submission that drew upon the outcomes of the Anishinabek engagement
sessions as the basis for the Union’s recommendations to me. The Union’s submission is summarized in Part IV of this Report.
3. Grand Council of Treaty #3
-
The
then Grand Chief of Treaty #3, Diane Kelly, and Chief Simon Fobister of Grassy
Narrows First Nation met with me to discuss the issue of the representation of
First Nations peoples on juries. After this meeting, the Grand Council of
Treaty #3 submitted a proposal for a one-day meeting that was held at Wauzhushk
Onigum First Nation, just outside Kenora.
Eight Chiefs of Treaty #3 attended, along with technical advisors and
Elders. The summary of this meeting appears in Part IV of this Report.
4. Aboriginal Legal Services of Toronto
-
Aboriginal Legal Services of Toronto (ALST) submitted a
two-part proposal, which we accepted. The first part involved the preparation of a
comprehensive paper that addresses the jury representation issue and offers
recommendations and solutions to the current problem of the underrepresentation
of First Nations peoples on Ontario juries. ALST’s comprehensive paper is summarized in Part IV of this Report. The
second part of ALST’s proposal
involved convening a Families Forum at which my team and I met with some family
members of First Nations victims whose deaths were subject to a coroner’s
inquest. The summary of this meeting is included in Part IV of this Report.
5. Independent First Nations
-
Finally,
I received specific meeting requests from four First Nations that are
unaffiliated with a tribal council or First Nation organization, which I gladly
attended.
-
It is
also important to note that we received submissions from various groups and
individuals as outlined in Part IV.
-
I am
most grateful to all of the First Nations and First Nation organizations that
participated in the Independent Review. Their valuable assistance, generous
contributions, and insightful perspectives have been of great benefit to me in
writing my Report and developing the recommendations that, in my view, are
required to enhance First Nations inclusion and participation on juries in Ontario. I am also equally grateful to the many judges, and court and government officials,
who presented information, data, insights, and comments on the subject matter
of the Review.
PART III: THE JURY SYSTEM AND FIRST NATIONS: PAST
AND PRESENT
A. Introduction
-
Juries
have served for generations as the cornerstone of our justice system, as well
as a fundamental institution in the administration of justice in civilizations
dating back to ancient times. Unfortunately, however, as I describe below, it
is clear that the jury system as it has
developed and operated in Ontario, like Ontario’s justice system in
general, has not often been a friend to Aboriginal people in Ontario.
-
In
this part of the Report, I describe a brief history of juries in Ontario, the jury selection system as it currently
operates in Ontario, the requirement that a jury be representative, the
representation of First Nations peoples
on Ontario juries, and the jury selection experience in other jurisdictions
with significant Aboriginal populations.
B. Brief History of Juries in Ontario
1. Role and Functions of the Jury
-
The
jury as an institution has a long and distinguished history. References to
jury-like bodies can be found in the history
and mythology of early civilizations, including those of Egypt, Greece, and Scandinavia.[7] One of the earliest
recorded jury-like bodies was established by the Greek King Solon around the end
of the seventh century B.C.E. King Solon established two courts, which were
presided over by a general assembly of Athenian citizens, called the dikasteria.
Service on the dikasteria was open to any Athenian citizen aged 30 or over “who was not indebted to
the state and whose civil rights had not been forfeited”.[8]
This body held the power of appeal
over civil and criminal matters, and, in performing this function, determined questions of fact and law, and voted in secret.
Its judgments were not subject to appeal. The Athenian jury was
transplanted to Rome around 451 to 450 B.C.E., and there is evidence that Rome brought the jury system to the territories it conquered.[9]
-
The
jury system as we know it in Ontario evolved in Britain. According to
nineteenth century British historian, William Forsyth, trial by jury was
unknown in the British Isles before the Norman Conquest in 1066 C.E.[10]
Following the Norman Conquest, there are several recorded instances of
individuals being gathered to conduct
inquests and make determinations on questions of fact and law. For example, William
the Conqueror summoned juries in each county to make determinations as to the
“value and manner of holdings of all property within the country.”[11]
The jury that we know today emerged gradually under a series of kings following
William, who empanelled juries to resolve disputes between the royal treasury
and religious bodies over land ownership, and to determine guilt or innocence
in criminal and civil matters.[12]
The passage of the Magna Carta in 1215 by King John is credited by some
as guaranteeing the right to trial by jury in Great Britain.[13]
In 1275, trial by jury became mandatory in criminal proceedings in Great Britain.[14]
Many of the characteristics of modern juries emerged in the fifteenth and
sixteenth centuries, including the right of the accused to challenge the
composition of his or her jury panel, the use of juries to decide questions of
fact (and not law), and the ability of juries to reach their own decision on
the facts, rather than the decision demanded by the court.[15]
-
The
last point is particularly relevant given the importance attributed today to
the independence of the jury. Prior to the seventeenth century, jurors could be
punished by the court for reaching the “wrong verdict” (doing so was considered
perjury – lying to the court).[16]
One of the most famous cases putting an end to this practice was the 1670
decision of Bushell’s Case. In Bushell’s Case, four jurors
refused to convict two Quakers (a religious group) of “seditious preaching
before an unlawful assembly.”[17]
At that time, any religious gathering outside of the Church of England was
deemed unlawful, and that law was frequently used to repress the Quakers. The
judge accepted the jurors’ verdict of not guilty, but fined the jurors for
reaching a verdict that was “contrary to the evidence and contrary to his
instructions.”[18]
When the jurors refused to pay, they were imprisoned.[19]
Lord Vaughn, a judge at the Court of Common Pleas, overturned this decision,
and, in so doing, emphasized that “unless the jury can act independently of the
judge, it cannot command public support.”[20]
-
While
we are separated by centuries from these foundational moments in the history of
the jury, the developments in Bushell’s Case and others are still reflected
in the modern rationales for the jury system, which,
as the Supreme Court of Canada has stated, are “as compelling today as they
were centuries ago”.[21] In its comprehensive
1980 examination of the jury system in Canada, the Law Reform Commission of Canada set out five major functions of the jury
in modern criminal proceedings: (1) the jury is a fact-finder; (2) the
jury acts as the conscience of the community in criminal proceedings; (3) the
jury is the ultimate protection against
oppressive laws and the oppressive enforcement of the law; (4) the jury is an
educational institution; and (5) the
jury helps to legitimize the criminal justice system.[22]
These statements were adopted by the
Supreme Court of Canada in R. v. Sherratt,[23]
the Court’s major decision on the importance of a representative jury,
and, in my view, are directly applicable in considering the issues discussed in
this Report.
-
Similar
roles are played by the jury in a coroner’s inquest. As discussed in more
detail at paragraphs 85 to 89, the coroner system in Ontario was received with
the rest of the common law from England in the mid-nineteenth century. Prior to a series of late-nineteenth century
reforms in England, which took place well after the institution of the coroner was received in Ontario, coroner’s
inquests were responsible for indicting people for homicide and
committing accused persons to trial.[24]
After a series of reforms in England, the focus
of the Office of the Coroner shifted to investigating causes of death, rather
than committing accused persons to
trial.[25] Similar changes followed in Ontario through a series of laws enacted during the nineteenth and twentieth
centuries, and the use of coroner’s inquests as a way of securing an indictment
became obsolete.[26]
Despite these changes, the jury remained “an essential component” of the modern
inquest.[27] In performing its
fact-finding role, the jury in a coroner’s inquest, unlike in criminal or civil
proceedings, does not make a finding of guilt or liability.[28]
Rather, it is called upon to decide a series of questions related to the death
and to make recommendations as to how such deaths may be prevented in the
future.
-
Many
of the early rationales for the jury continue to inform our use of the
institution today, while at the same time,
other, more modern, rationales have developed.[29] It is
revealing that this institution, or others like it, has been used across human
history in civilizations with little or no ties to one another, reflecting the
broad appeal of an institution that enables members of the community to play a
central role in the administration of justice.
-
However,
in spite of the importance and longevity of the jury as an institution of
justice, it is important to recall that, from the perspective of Aboriginal
peoples in Canada, it has often been regarded as an instrument of injustice.
Indeed, criminal jury trials in Canada were used at times as a tool to punish,
what the British viewed as, disloyal behavior on the part of Aboriginal people,
and to persecute the customary practices of First Nations on the grounds that
they constituted criminal behaviour.
-
A
notable example occurred in the aftermath of the 1885 Northwest Rebellion – an
act of resistance and protest initiated by Métis and Cree leaders in Western Canada. Once the Rebellion came to an end, and charges were laid against the
Aboriginal participants, juries, comprised of settlers who were incensed with
the Métis and Cree for causing the Rebellion, tried and convicted a number of
prominent leaders and their people of various criminal offences. The Métis
leader, Louis Riel, was charged with high treason and convicted by a jury of
six English and Scottish Protestants after only 30 minutes of deliberations.
Riel was sentenced to death by hanging. Three Cree Chiefs – Chief Poundmaker,
Chief Big Bear, and Chief One Arrow – along
with eight other Cree men were tried for murder and found guilty by a jury of
non-Aboriginal people after only 15 minutes of deliberations. Eight of
the Cree men were sentenced to death by hanging and the three Chiefs were
sentenced to three years in prison. Despite the Native casualties during the
Rebellion, not one non-Native person was tried for the killing of Métis and
Cree warriors. A priest wrote to the Archbishop criticizing the juries, “The
jurymen are all Protestants, enemies of the Métis and the Indians, against whom
they maintain bitter prejudices.”[30]
-
During
the engagement process for the Independent Review, I heard firsthand of the
1907 prosecution of two medicine men from the Sandy Lake First Nation in Northwestern Ontario for a customary act that was fundamentally incongruent with Canadian
societal values of criminality. Jack and Joseph Fiddler were charged with the
murder of a young woman who was possessed with what was known by the
Anishinawbe as a “wendigo” or evil spirit
that would bring harm and danger to the community. The two respected medicine
men were asked by the family to perform this task and accordingly claimed to be
acting in accordance with their customary roles and responsibilities. They were
arrested by the Northwest Mounted Police, charged with murder and brought to
Norway House in Manitoba, the location of a Hudson Bay Trading Post, for trial.
Apparently, this was the first time the Fiddler brothers, who did not speak
English, left their community and were brought into contact with non-Aboriginal
people and the justice system. One brother, Jack Fiddler, took his own life
before trial. Joseph Fiddler faced a completely foreign system without the aid
of legal counsel. He was tried by a judge, who was a Commissioner of the
Northwest Mounted Police involved in the original investigation, a lawyer from Winnipeg assigned to act as Crown Counsel, and a jury of six men from Norway House. Joseph
Fiddler was convicted of the crime and initially sentenced to death, which was
later reduced to life in prison. Being an elderly and sick man, Joseph Fiddler
died soon afterwards in custody.
-
According to historians who have examined this trial, it
was intended to serve as a signal to other First Nations that “wendigo” killings
were not tolerable and such behavior would be punished.[31]
However, in so doing, it forever scarred the First Nations perception of the
criminal justice system, particularly among members of the Sandy Lake First
Nation, and contributes to their aversion to participate in it.
-
The
relationship between the Canadian justice system and Canada’s Aboriginal
peoples continues to be troubled. A glaring example of these problems was
revealed in the Report of the Royal Commission on the Donald Marshall, Jr.,
Prosecution.[32]
Although Donald Marshall, Jr., who was wrongfully convicted of murder and
served 12 years in prison, did not elect to have a trial by jury, the utter
failure of the criminal justice system as
administered by the police, investigators, lawyers, Attorney General, and
courts drew national attention to the issue of systemic discrimination
in the justice system. The Royal Commission found that the miscarriage of
justice in his case was directly attributable to the fact that Donald Marshall
Jr. was a Mi’kmaq person. Given what I have heard while conducting the
Independent Review, I unfortunately expect that a disturbing number of First Nations people in Ontario can relate to the
circumstances endured by Donald Marshall, Jr.
-
I have
mentioned the examples from Riel, Fiddler, and Marshall to illustrate the
stains of mistreatment and injustice that to this day continue to influence the
attitudes of First Nations people towards the Canadian justice system.
2. A Brief History of the Jury System and the Jury
Selection Process in Ontario
-
Juries
have been used in criminal proceedings in Ontario since 1763, in civil
proceedings since 1792, and in coroner’s inquests since at least 1763. Prior to
1763, what is now Canada was, at least from the perspective of non-Aboriginal
settlers and the European powers, a French colony governed by the law of France. During that period, trial by jury in criminal and civil proceedings does not appear
to have been commonplace. Following the
French defeat by the British in the Seven Years’ War, France and Britain signed the Treaty of Paris in 1763, which ceded territory in Canada claimed by France to the British. That same year, King
George III of England signed the Royal Proclamation of 1763.[33] The Royal Proclamation
stipulated that private law in Canada – the law of contracts, family
law, estates and successions, among other things – remained the French civil
law, but English law was adopted for the administration of criminal justice.[34]
As a result, the jury and the Office of the Coroner were introduced into
Canadian criminal law.
-
In
1791, Upper Canada (now Ontario) was divided from Lower Canada (now Quebec) as a result of the Constitutional Act, 1791, and, in that year, Upper Canada received its own constitution.[35]
These changes introduced the English jury
system in its entirety to Upper Canada; juries in criminal proceedings were
already commonplace, and they were introduced in civil proceedings by
the 1792 Act to Establish Trials by Jury.[36]
The language of this Act demonstrates the high regard in which the institution
of the jury was held:
Whereas trial by jury has been long established and approved
in our mother country, and is one of the chief benefits to be attained by a
free constitution, be it therefore enacted by the King’s most excellent
Majesty, by and with the advice and consent of the legislative council and
assembly of the province of Upper Canada, […] all and every issue and issues of
fact, which shall be joined in any action, real, personal, or mixed, and brought
in any of his Majesty’s courts of justice within the province aforesaid, shall
be tried and determined by a unanimous verdict of twelve jurors, duly sworn for
the trial of such issue or issues, which jurors shall be summoned and taken
conformably to the law and custom of England.[37]
-
In
line with these reforms, the Upper Canada Legislature established the Court of
King’s Bench (now the Superior Court) to hear criminal cases and certain civil
cases, and other courts to hear the remainder of the civil cases.[38]
Juries were used in all of these courts.[39] While they
have since fallen out of use in all Canadian provinces, grand juries were also
used to assess evidence adduced to determine whether a criminal indictment was
appropriate.[40]
-
The
Office of the Coroner was transplanted into Canada with the introduction of
English criminal law.[41]
It seems probable that early coroner’s
inquests employed juries, since this practice was common in England.[42] The first formal
legislative enactment governing the Office of the Coroner in Upper Canada was
the 1850 Act to amend the Law respecting
the office of the Coroner.[43] The 1850 Act permitted the
coroner to summon a jury for inquests into deaths by violent or
negligent means and required that a jury be summoned for inquests into the deaths of individuals who died
while in custody (this requirement remains the case today).[44]
The law respecting coroner’s inquests has
since been modernized and the Office of the Coroner enhanced in various ways,[45]
but the role of the jury (now a five-person jury) remains a fundamental part of
every inquest.
-
The
process for selecting jurors for trials was a highly contentious political
issue in pre-Confederation Canada that first served as a catalyst for widespread
reforms to the jury system, and subsequently contributed to the relative
decline in the use of the jury. The Act to Establish Trials by Jury
provided that “jurors shall be summoned and taken conformably to the law and
custom of England”. However, the selection process for comparatively densely populated late eighteenth and early
nineteenth century England did not translate well to sparsely populated Upper Canada. In late eighteenth century England, constables were responsible for
identifying men who met the requisite property requirements for jury service.
Constables would post jurors lists on the
local church door for three weeks, to allow people to identify any errors or
omissions.[46] Subsequently, these
lists were certified by a local justice and the names were transcribed into a
jurors’ book, from which prospective jurors
were drawn. Since this process transferred poorly into Upper Canada, the legislature passed the Act for the
Regulation of Juries in 1794, which provided that every year the clerk
of the peace in each district would compose
a list of prospective jurors (all male householders) and provide it to
the sheriff.[47]
From this list, the sheriff would select 36 to 48 names before a trial, from
which 12 were randomly selected for jury
service. Often, as discussed in the next section of this Report, the sheriff
simply chose people living in the same neighborhood to reduce the costs
associated with summoning jurors.
-
This
system generated considerable controversy, as critics expressed concern that
sheriffs were abusing their position by packing juries to ensure specific
outcomes in trials. Between 1800 and 1850, there
were increasing calls to strip the sheriff of his power to appoint jury panels.[48] In the aftermath of the 1837
Rebellions, for example, there was widespread belief that government officials
had packed juries to ensure the convictions of accused rebels. The drive
towards reform culminated in 1850 with the passage of the Upper Canada Jurors’ Act of 1850.[49]
The 1850 Act introduced significant changes to the jury system, including a complex system for juror selection
that involved a local “committee of selectors” in each township, which
created lists of prospective jurors that were forwarded to the clerk of the
peace, and subsequently to the sheriff for juror selection.[50]
While the 1850 Act was effective in ending claims of packed juries, it
significantly increased the costs of the jury system, which – as will be
discussed in the next part of this section – was a major reason for the jury’s
decline in the nineteenth and twentieth centuries.
-
The
increased costs of the jury system as a result of the 1850 Act, as well as
general citizen dissatisfaction about the inconvenience of serving on juries,
once again spurred reform efforts. A series of failed jury reform bills
following the enactment of the 1850 Act eventually culminated in the passage in
1879 of An Act to Amend the Jurors Act.[51] This Act
simplified juror eligibility by setting the minimum property requirements at
$600 or more for people living in cities, and $400 or more for people living in
towns and villages.[52]
These property requirements were to remain in place until 1972. The proponents
of this Act rejected using the voters’ list as a basis for selecting possible
jurors because, in their view, “there are many on the voters’ list who would be
anything but satisfactory jurymen.”[53]
The 1879 Act also simplified the process for juror selection in order to reduce
costs.
3. Decline in the Use of Juries from the Nineteenth
to the Twentieth Century
-
The late-nineteenth century marked the beginning of a
decline in the use of juries in Ontario. In addition to the reasons already discussed –
high costs and inconvenience – one author attributes the decline to the
entrenchment of responsible government.[54] Juries had
served as a bulwark against oppressive laws and oppressive government. However,
the establishment of democratically elected legislative assemblies in the provinces of Canada helped to assuage fears
of tyrannical government and undermine this rationale for the use of
juries
-
The
decline in the use of juries was especially apparent in civil proceedings.
Prior to the 1860s, in civil proceedings, trial by jury was the only form of
trial recognized by the Courts of common law.[55] In 1868, the presumption that civil trials were to be tried
by a jury was reversed after the Ontario legislature passed the Law
Reform Act of 1868.[56]
Following passage of that Act, civil actions were tried before a jury only when
it was requested by one of the parties. Five years later, the Ontario
legislature passed the 1873 Act for the better administration of Justice in
the Courts of Ontario.[57]
This Act required the permission of a judge
for a jury to be called for all but a select number of civil causes of action,
including libel and malicious prosecution. However, the parties could
still choose to waive the jury for a trial involving one of those causes of
action.[58]
Since then, not only has the use of the jury declined, but there have also been
calls for its abolition in civil proceedings. For instance, in 1968 the Ontario
Royal Commission Inquiry into Civil Rights recommended that civil juries be
abolished altogether except in defamation cases: “the conclusion we have come
to is that the trial of civil cases by a jury is a procedure that has outlived
its usefulness in Ontario.”[59]
However, when the Ontario Law Reform Commission examined this issue in 1994, it
concluded that civil juries are appropriate in certain cases and therefore
should remain available.[60]
-
Currently,
civil juries are available in principle for all but a small range of actions,
including actions for an injunction, equitable relief, or relief against a
municipality.[61]
Before proceeding to trial, the parties to a civil action can elect a trial by
jury under the Ontario Rules of Civil Procedure.[62]
In practice however, civil juries are rarely used outside of a narrow range of
actions, including defamation.
-
The
use of jury trials also declined in criminal proceedings, though not as
precipitously as in civil proceedings. This
decline was largely attributable to a series of laws passed by the Upper Canada
Legislature and, following Confederation, by the Parliament of Canada.
The Upper Canada Legislature enacted a law in 1834 which provided that certain
types of offences, such as minor assaults and some crimes against the property
of another, could be tried by a justice of the peace sitting without a jury.[63]
In 1869, the newly constituted Parliament of Canada passed the Speedy Trials
Act, which broadened the scope of offences that could be tried before a
judge alone if the accused consented.[64]
Parliament passed the first Criminal Code in 1892, which applied in all
parts of the country. Under the Criminal Code, trial before a judge and
jury was necessary for the most serious offences, including treason and murder.[65]
However, certain other types of offences, such as assault or theft below a
certain value, were triable by way of summary trial before a judge sitting
alone if the accused so elected.[66]
Similarly, young offenders could elect to be tried by a jury or a judge sitting
alone.[67]
The 1892 Criminal Code remains the basis for modern criminal law, and,
consequently, many of the provisions it made for trial by jury remain (with
some changes) today. In 1980, the Law Reform Commission of Canada recommended
keeping the criminal jury, since “it performs a number of valuable functions in
the criminal justice system”, as I have discussed above.[68]
-
Currently, the rights of an accused to be tried by a jury
are governed by the Canadian Charter of Rights and Freedoms and the Criminal Code.
Under Charter section 11(f), any person charged with an offence has the
right “except in the case of an offence under military law tried before a
military tribunal, to the benefit of trial by jury where the maximum punishment
for the offence is imprisonment for five years or a more severe punishment”. As
a result, at a minimum, those facing five or more years imprisonment are
guaranteed the right to a trial by jury. The Criminal Code divides
offences intro three types: indictable offences,
summary conviction offences, and hybrid offences.[69]
Indictable offences include “the most serious crimes”, such as murder
and treason.[70]
As a general rule, these offences must be tried by a judge and jury unless both
the accused and the Attorney General consent to a trial before a judge alone.[71]
Summary offences, such as impaired driving, carry maximum penalties of six
months in prison and fines of up to $5000, and are tried before a judge alone.[72]
There is no right to a jury for a summary conviction trial.[73]
Finally, hybrid crimes, such as assault, fraud, and drug offences can be tried
as indictments or summary offences, and the
decision to proceed as one or the other is solely at the discretion of the
Attorney General. If the Attorney
General chooses to proceed by way of indictment, the accused can opt to be
tried by a jury.[74]
-
The jury is still an important part of our criminal
justice system. According to a 2011 Canadian Broadcasting Corporation news story,
of the more than 600,000 criminal charges laid in Ontario between April 1, 2009
and March 31, 2010, 513 criminal indictments were disposed of by a judge and
jury, as opposed to 340 by a judge sitting
alone.[75] However, many of the issues
affecting juries during the nineteenth century that I have briefly considered remain live issues today. For
instance, the burden and inconvenience of serving on juries was recently
highlighted in the same CBC story. In Ontario, jurors are paid nothing for the
first ten days of a trial, $40 for everyday
thereafter up to the fiftieth day of trial, and $100 a day thereafter. This
lack of payment, among other difficulties, is contributing to an
increase in the number of individuals who do not attend at court after being
summoned.
c. The Jury Selection System as it Currently
Operates in Ontario
-
The
machinery of the jury system in Ontario today is governed by the 1990 Juries
Act (attached as Appendix B to the Report), which sets out the process for
establishing jury rolls in the province’s judicial districts.[76]
Under that Act, the sheriff in each county and the Director of Assessment are
responsible for compiling an annual jurors list, though in practice the
sheriff’s responsibilities have been delegated to the Provincial Jury Center
(PJC) in London, Ontario and to local court officials.
-
During the spring of each year, we understand that the
Court Services staff at each local Ontario Superior Court, in consultation with local
judges, provide an estimate to the Provincial Jury Center of the number of
jurors that will be required for all jury trials in the upcoming year. Once the
required number has been determined, the Provincial Jury Centre informs the
Municipal Property Assessment Corporation (MPAC) of the number of jurors that
will be required. MPAC selects names at random from the list of municipal residents
within each county and district, and forwards these names to a third party
which is responsible for sending out jury
questionnaires. As discussed at paragraph 41 of the Report, section 6(8) of the
Juries Act requires the names of individuals living in First
Nations communities to be acquired using any available record, since their
names are not contained in MPAC record.
-
Questionnaires
are sent to all persons identified by MPAC, who after receiving a questionnaire
must complete and return it within five days. The Ministry of Finance, acting
as an agent of the Provincial Jury Centre, compiles the names of eligible
jurors based on the responses in the questionnaires and forwards this
information to the Provincial Jury Centre. Using this information, the Provincial
Jury Centre compiles the jury rolls for the upcoming year for each county or
district in the province.[77]
-
Jury
panels for trials are randomly selected from the jury rolls compiled by the
Provincial Jury Centre for each Superior Court when the need so arises. The
panel is a group of people from which the petit jury, meaning the jury
who sits on a trial, will be selected. Those selected for the jury panel are
issued a summons requiring them to attend at the court where the trial will
take place for jury selection. In criminal proceedings, both the Crown and the
defence are given the opportunity under the Criminal Code to challenge
prospective jurors, meaning that either side can ask that certain jurors be
excused. Either side can challenge an unlimited number
of prospective jurors “for cause”, typically on the basis that the prospective
juror will not be “indifferent between the Queen and the accused”.[78]
Depending on the type of crime being tried, both sides are also given between
four and 20 “peremptory challenges”, meaning that the prospective juror can be
asked to stand aside without providing a reason.[79]
Prospective jurors can also ask to stand aside on the basis of illness or that
service will impose on them an undue hardship. When this process is complete, a
group of 12 jurors will remain to serve on the petit jury. The parties
to a civil proceeding select jurors in a similar manner, except only six jurors
are chosen to serve on the petit jury.[80]
-
Juries
for coroner’s inquests are also selected from the jury roll prepared by the
Provincial Jury Centre. When the coroner begins an inquest, he or she issues a
warrant that requires the Provincial Jury Centre to provide a list of jurors
living in the area where the death occurred. The Coroner’s Constable then selects
the names of people whom he or she believes to be “suitable to serve as jurors
at an inquest” from that list and issues summonses requiring them to attend at
the place of inquest.[81]
As in the case of criminal or civil proceedings, prospective jurors may be
dismissed if serving would cause undue hardship or if there is reason to
believe that, because of bias, they may not be able to reach a verdict based on
the evidence. From the group of prospective jurors, five are chosen to serve on
the inquest.
-
Jury selection for coroner’s inquests does not emphasize
randomness in the same way as jury selection for civil or criminal trials. The
role of a jury in a coroner’s inquest is to make recommendations based on the evidence presented to them, not to make a finding
of guilt or liability. In fact, coroner’s juries are prohibited from
making findings of legal responsibility. As a result, the imperative existing
in criminal trials in particular that emphasizes trial fairness through a
representative jury is not present in a coroner’s inquest. Of course, the jury
roll from which prospective jurors are drawn has to be representative; as I
described in paragraph 51 above, the coroner suspended the Bushie Inquest after
it was determined that the jury roll was not representative. However, often the
members of a coroner’s jury are selected from the area where the death took
place, since people who reside in that area may be better able to make
recommendations tailored to local needs and conditions.
D. Requirement that a Jury be Representative
-
The
requirement that a jury be representative is a bedrock principle governing the
formation of the modern jury. As Madam Justice L’Heureux-Dube, writing for a
majority of the Supreme Court of Canada in
the 1991 R. v. Sherratt case, stated, the modern jury “was envisioned as
a representative cross-section of society, honestly and fairly chosen”.[82]
My mandate as Independent Reviewer is not to determine whether the jury roll as
it applies to First Nations communities is representative as a matter of law;
that issue has been and continues to be dealt with before the courts and other
bodies. But I believe it is important, nevertheless,
for me to outline the background to and some of the case law respecting
representativeness as part of the context for the recommendations in my
Report.
1. History and Evolution of the Principle of a
Representative Jury
-
The
principle that a jury must be representative of a fair cross-section of the
community is a relatively recent one in North America. Historically, jury
service in Ontario was limited to men who owned property. The property
requirement for jury service was rooted in the history of the jury in the United Kingdom, which required, for example, during the
sixteenth century that jurors own a freehold with a certain minimum
value in the county where the crime took place.[83]
The property requirements for jury service in Ontario were strict; only men
owning houses or land with a minimum rateable value were called to serve on
juries, likely resulting in the jury pool being limited to the wealthiest among
an already narrow pool of eligible citizens. The 1877 Jurors Act
provided, for example, that the jury roll would be established by compiling
a list from the property assessment roll “commencing with the name of the
person rated at the highest amount on such roll and proceeding successively
towards the name of the person rated at the lowest amount, until the names of one half of the persons assessed upon such
roll have been copied from the same”.[84]
-
The
already small pool of potential jurors in Ontario was further narrowed by the
selection process. Often, the sheriff selected jurors from a single
neighborhood to minimize the costs associated with summoning prospective jurors. Consequently, jury membership
was decidedly unrepresentative. Juries were frequently composed of
members of the upper class selected from the same neighborhood, who sat in
judgment of those charged with criminal offences.
-
Minimum
property requirements as a condition for jury eligibility remained the rule in Ontario until 1972. Following changes in 1972, eligibility for jury duty was determined by
whether a person was listed on the most recent polling list registered under
the Municipal Elections Act. A year later in 1973 this system for determining eligibility was changed, and all
Canadians citizens aged eighteen to sixty-nine years became eligible to
serve on a jury. That same year, the Juries Act was amended to require
the sheriff to include the names of members of First Nation communities on the
jury roll by obtaining those names “from any record available” – a provision now included in section 6(8) of the Juries
Act, discussed in more detail in subsequent parts of the Report.[85]
-
The
principle of a constitutional right to a representative jury emerged in United States jurisprudence long before it developed in Ontario or anywhere else in Canada. Historically, African-Americans were excluded
from the jury source lists of many states, especially in the South. While in Canada the issue of jury representativeness was not dealt with extensively by the courts
until the enactment of the Charter, the United States Supreme Court
played an important role in that country in developing the safeguards
guaranteeing a representative jury. The Sixth Amendment to the United States
Constitution provides the right to be tried by “an impartial jury of the state
and district wherein the crime shall have been committed”.[86]
This phrase has been interpreted by the Supreme Court as guaranteeing the right
to a representative jury, and the Court has used it to strike down laws and
practices that were aimed at excluding African-Americans from the jury pool.
-
The first Supreme Court decision addressing this issue
was Strauder v. West Virgina (1880).[87]
In Strauder,
the accused, an African-American, was tried and convicted – by an all-white
jury – of murdering his wife. At the time, West Virginia law prohibited African-Americans from serving on juries in the state. In its
decision, the Supreme Court
invalidated the West Virginia law on the basis that it violated the right of
African-American defendants to the equal protection of the law.[88]
The decision in Strauder, as two commentators have noted, “effectively
(if indirectly) recognized the right of African-Americans to serve on juries.”[89]
However, it did not end the matter, and the extent to which African-Americans
were excluded from juries varied across the country. Southern jurisdictions
continued to exclude African-Americans from juries for decades to come;
however, these practices were gradually eliminated through a series of
important Supreme Court decisions, discussed below.
-
In
1935, the Supreme Court released two seminal decisions overturning the
convictions of African-American men by different all-white juries in Alabama, where African-Americans were systematically excluded from jury service. These cases were heard concurrently and involved nine
African-American men who were accused of raping two white women. These
men were commonly referred to as the Scottsboro Boys. The first case, Norris v. Alabama (1935), set
the precedent that excluding African-Americans from the jury source list
violated the constitutional right of an African-American accused of a crime to
the equal protection of the law.[90]
In that case, one of the Scottsboro Boys had been convicted by an all-white
jury. The conviction was appealed and was overturned by the United State
Supreme Court. The Court held that the exclusion of African-Americans from the
jury source list in Alabama implied to the Court that discrimination existed, and this exclusion provided a sufficient basis for
overturning the conviction. The second case was Patterson v.
Alabama (1935), where the Court followed its decision in Norris and set
aside the convictions of two more of the Scottsboro Boys who had also been
convicted by an all-white jury.[91]
-
Since these decisions, the United States Supreme Court
has interpreted the Sixth Amendment in ways that have strengthened the right to a
representative jury.[92]
In Thiel v. Southern Pac Co. (1946) the Court interpreted this
constitutional guarantee as requiring that the jury be “chosen from a
representative cross-section of the community”.[93]
The Court has since developed two standards for testing the representativeness
of juror lists: the equal protection standard
and the fair cross-section standard. The equal protection standard
forbids the exclusion of individuals from jury source lists on the basis of
intentional discrimination, as well as any measures that are “susceptible to
being used to exclude” groups of persons from the jury list.[94]
The fair cross-section standard guarantees all those charged with an offence
the right to a representative jury source
list.[95] Moreover, in 1968 the Supreme
Court decided in Duncan v. Louisiana that the Sixth Amendment, which
the Court has found to protect (among other things) the right to a
representative jury, applies to proceedings in state courts.[96]
Finally, in Batson v. Kentucky (1986) the Supreme Court decided that
peremptory challenges to prospective jurors (meaning challenges that allow the
defence or the prosecution to ask that a prospective juror be excused without
providing a reason) cannot be used to eliminate prospective jurors on the basis
of race.[97]
-
Outright
discrimination against African-Americans and other minorities was not the only
means used to exclude them from jury source lists. In many states, prospective
jurors were selected using a ‘key man’ system. The ‘key man’ was a prominent
member of the community, such as a minister or a local banker, who was responsible for submitting lists of
prospective jurors to the jury commissioner.[98]
The commissioner would then compile a list of prospective jurors based
on the names provided by the ‘key man’.[99] However, the
difficulties of ensuring a representative jury using the key man system are
apparent; the selection of prospective jurors was subject to the beliefs and
biases of the key men, who would often “draw upon their limited circle of
acquaintances” in selecting potential jurors.[100]
-
It was
widely acknowledged and recognized by Congress that the ‘key man’ system
resulted in the underrepresentation of minorities on juries.[101]
In response to the ‘key man’ system, and to create a fairer way to select
people for federal jury source lists, the United States Congress in 1968 enacted
the United States Jury Selection and Service Act (JSSA). The stated
policy of the JSSA is that “all litigants in federal courts entitled to trial
by jury shall have the right to grand and petit juries selected at random from
a fair cross section of the community.”[102] Under the
JSSA, jurors for trials in federal courts are selected from voters lists, though the courts are given the
discretion to supplement this source with others if it is determined that
the voters list is unrepresentative. This legislation was an important step
forward in promoting jury representativeness in the United States,. However,
the JSSA applies only to the composition of jury source lists for federal
courts, not state courts. The ‘key man’ system has not been declared unconstitutional,
and it appears as though it is still used
in some states to select the juries for trials before state courts.[103] Moreover, there is evidence that African-American
underrepresentation on voters lists and the unavailability of residence
lists from predominantly African-American districts means that
African-Americans continue to be underrepresented in federal jury trials.[104]
-
In Canada, as I noted above, the importance of a representative jury was not recognized as a
constitutional principle until after the
enactment of the Charter in 1982. However, in its 1980 working paper
described at paragraph 76 above, the Law Reform Commission of Canada
stated that “the functions assigned to the jury
presuppose that jurors are selected at random from a fair cross-section of the
community.”[105] Consequently, “if a representative jury is to be empanelled, the
categories of people who are disqualified from jury service must be kept at a minimum.”[106]
The Law Reform Commission recommended the following as the only reasonable disqualifications from jury service: not
having Canadian citizenship, not having attained the age 18 years or
over, not an ordinary resident in the judicial district, lack of fluency in the
language of the accused, a mental or physical disability, conviction of a
criminal offence, and certain occupational disqualifications.[107]
-
In its
1991 R. v. Sherratt decision, the Supreme Court of Canada recognized the
requirement of a representative jury as a
constitutional principle. In her reasons for the majority in that case, Madam
Justice L’Heureux-Dube linked the principles of representativeness and
impartiality to the s. 11(f) Charter right to be tried by a jury and the
s. 11(d) Charter right to be presumed innocent until proven guilty
according to law in a fair and public hearing by an independent and impartial
tribunal. As she stated,
[T]he Charter right to jury trial is meaningless without some
guarantee that it will perform its duties impartially and represent, as far as is possible and
appropriate in the circumstances, the
larger community. Indeed, without the two characteristics of impartiality and
representativeness, a jury would be
unable to perform many of the functions that make its existence
desirable in the first place.[108]
-
In
addition to protecting the rights of the accused, the representativeness of
juries has broader implications for
society’s perception of the criminal justice system. Impartial and
representative juries play an important function in maintaining public
confidence in the legal system. The public is more likely to perceive trials,
and by extension the legal system as a whole, as being fair if prospective
jurors are representative of the wider community from which they are drawn.
Conversely, the wholesale exclusion of particular groups from the jury pool
risks undermining public acceptance of the fairness of the criminal justice
system. A jury cannot act as the conscience of the community unless it is
viewed favorably by the society that it serves.
2. Ontario Case Law on Representativeness
-
As I
discussed above in Part II,A, the Independent Review arose in large part from a
series of recent cases – Pierre v. McRae and the Kokopenace and Spiers
appeals – dealing with the representativeness of jury rolls as they relate to members of First Nation communities. In
this section, I briefly discuss some other Ontario cases that deal with
the issue of representativeness. These cases have arisen in two different
contexts: the preparation of jury rolls and the selection of individuals to
serve on the jury.
(a) Preparation of Jury Rolls
-
In R.
v. Church of Scientology et al. (1997), the Ontario Court of Appeal refused
to find that limiting prospective jurors to Canadian citizens results in an
unrepresentative jury.[109]
In that case, the accused, who was a
non-citizen convicted of various offences, sought to have a mistrial declared
on the basis that the exclusion of non-citizens from jury rolls resulted
in a jury that was unrepresentative. The trial judge agreed that the exclusion of non-citizens resulted in an unrepresentative
jury roll, but the Court of Appeal overturned this decision. The Court
acknowledged that a representative jury is important to ensure that certain
viewpoints and beliefs are not systematically excluded from the jury pool.
However, the Court found that non-citizens do not share any common
characteristics that are relevant to the underlying reason for ensuring that
jury rolls are representative.
-
Similarly,
in R v. Laws (1998), the Ontario Court of Appeal found that the
citizenship requirement for inclusion on the jury roll did not result in
unrepresentative juries by precluding large numbers of black permanent
residents who are not citizens from potential jury service.[110]
The accused in this case was black and was charged with illegally smuggling individuals
into Canada and the United States. He argued that a mistrial should be declared
because the citizenship requirement for jury service resulted in large numbers of black permanent residents being excluded,
raising the possibility that the jury roll was unrepresentative. The
Court of Appeal disagreed; it found that the defendant could not establish that
marginally increasing the number of black people on jury rolls by eliminating
the citizenship requirement for jury service would result in a material
increase in the possibility of a black individual being selected to serve on
the jury for
a black person charged with an offence. However, this holding does not preclude
the opposite finding in another case with substantially different demographics.
-
In R.
v. Nahdee (1993), the Ontario Court of Justice declared a mistrial after it
became clear that the sheriff of Lambton County had failed to make sufficient
efforts to ensure that First Nations peoples were represented on jury rolls.[111]
The defendant was charged with attempted murder, but subsequently sought a
mistrial on the basis that the sheriff failed to secure the names of First
Nations individuals for possible inclusion on jury rolls. The sheriff had
contacted band leadership on First Nations reserves in his district in order to
secure the names of the reserve’s inhabitants for jury questionnaire mailing.
However, the band leadership failed to reply
to the sheriff’s request, and the sheriff took no further actions to gather the
names of reserve residents. The
Court found that the sheriff failed in his duty under the Juries Act to
actively seek out the names of First Nations individuals living on
reserves for possible inclusion on the jury rolls. His failure to do so
resulted in an unrepresentative jury roll, which warranted the finding of a
mistrial.
-
In a 1994 follow-up trial involving the defendant from
R. v. Nahdee,[112] the defendant was again
convicted of attempted murder, but sought to have the
conviction set aside on the basis that the jury roll was unrepresentative.
The Ontario Court of Justice found that in 1994, the sheriff had made greater
efforts to place the names of First Nations
individuals in Lambton County on the jury roll by sending out and receiving
responses from a larger number of jury questionnaires.
As a result, the names of First Nations people living on reserves were
inscribed on the jury roll, and there was a possibility that First Nations
individuals would be chosen to serve on jury panels.
-
R.
v. Ransley
(1993) followed on the heels of the defendant’s success in having a mistrial
declared in R. v. Nahdee.[113] In Ransley, the defendant
challenged the jury panel composed for his trial alleging that the jury
roll was unrepresentative because the sheriff did not follow a specified
procedure for adding First Nations individuals to the roll and also sent a
disproportionately large number of questionnaires to the reserves in his
jurisdiction because of the historically low response rates. The Ontario Court
of Justice denied the defendant’s challenge to the composition of the jury
panel. The Court found that the process followed by the sheriff, while
imperfect, represented a good faith attempt to secure the representation of
First Nations peoples on the jury roll.
(b) Selection of the Jury Panel
-
As
already noted, the foundational case elevating the principle of a
representative jury to a constitutional imperative was the Supreme Court’s
decision in Sherratt.[114]
In that case, the accused sought to have all prospective jurors dismissed on
the basis that they were not impartial as between the Crown and the accused.
The accused was charged with murder, and considerable media coverage surrounded
the search for the deceased’s body ten
months before the trial. The trial judge denied the defence’s request. However,
he instructed all prospective jurors that they could not serve on the jury if
they had seen, heard, or read anything that
might render them not impartial as between the Crown and the accused. The
Supreme Court of Canada upheld the trial judge’s decision but, as
referred to in paragraph 115 above, made important statements about the
constitutional requirement for juries to be impartial and representative.
-
In R.
v. Bain (1992), the Supreme Court of Canada found that section 634 of the Criminal
Code was unconstitutional because it allowed the Crown to challenge,
without cause, four times more jurors than the defence, as the Crown’s ability
to stand-aside 48 potential jurors far outstripped the defence’s right to
peremptorily challenge them.[115]
The Court held that this could result in a jury that was perceived by society
as partial towards the Crown, thereby tarring the entire trial with a taint of
unfairness.
-
In R. v. Smoke (1983), the Ontario High Court of
Justice found that the absence from the jury of First Nations individuals living on
reserves in the jurisdiction where the crime took place did not constitute a
violation of the defendant’s Charter rights.[116]
The defendant was charged with various counts of sexual assault, and all of the
alleged offences took place on the reserve where he resided. He argued that he
had a right to be tried on the reserve
where he resided with a jury composed entirely of its residents. The Court
disagreed; it found, that although
there were no residents from reserves on the jury roll, First Nations
individuals living off reserve were
included. The Court found that First Nations individuals were as likely as
non-First Nations individuals to be called to serve on a jury. The Court
acknowledged that the presence of First Nations individuals living off reserve
on the jury roll was different from having individuals who live on reserves on
the jury roll; however, it did not believe that this distinction was serious
enough to warrant providing the defendant with a remedy.
-
In R.
v. Butler (1984), the British Columbia Court of Appeal found that a
sheriff’s policy of intentionally excluding members of First Nations from jury
panels resulted in an unrepresentative jury that warranted granting the
defendant a mistrial.[117]
The Court noted that it is possible for a jury panel to contain no First
Nations individuals. However, the “essential wrong” in this case was a
deliberate policy on the part of the sheriff to exclude First Nations
individuals altogether.[118]
-
In Fiddler
v. the Queen (1994), the defendant was charged with sexual assault and,
before the trial began, argued that he had a constitutional right to be tried
by a jury of his cultural peers to be randomly selection from the district where he resided.[119]
The then Ontario Court of Justice disagreed. While the Court recognized
the importance of having people who share the defendant’s cultural affinity on
the jury rolls,
it decided that the cultural affinity of the accused cannot predominate, since
such a narrow approach ignores the perspective of the complainant and ignores
entirely the interests of the public. Indeed, a jury composed solely of members
of the accused’s community would run counter to the value of maintaining a
representative jury roll.
-
In R.
v. A.F. (1993), the then Ontario Court of Justice found that holding a
trial by jury outside of the defendant’s community did not infringe his Charter
rights.[120]
The defendant, a resident of the Sandy Lake reserve, was accused of various
sexual offences and elected a trial by jury. However, trials by jury were not
available in Sandy Lake, and instead the trial was to be held in Kenora. The
defendant argued that holding the trial in Kenora violated his Charter
rights, since the jury would not be composed of members of his community. The
Court disagreed; it wrote that for the purposes of jury selection, the notion
of ‘community’ must be defined broadly if the jury is to satisfy its role as a
democratic institution. A jury composed entirely of members of the defendant’s
family and kin would run counter to the broader definition of community.
Moreover, the Charter does not provide a right to be tried in a
particular location or to be tried exclusively by the members of a particular
group.
-
Finally,
R. v. Wareham (#2) (2012) is, at the time of writing, the most
recent judicial decision dealing with the issue of Aboriginal
underrepresentation on jury rolls.[121]
The defendant in Wareham was charged with second degree murder. His
trial had originally been set for 2011, but following the Ontario Court of
Appeal’s decision in Pierre v. McRae, he successfully challenged his
jury panel on the basis that it was not representative. In his 2012 trial, he
once again attempted to challenge his jury panel on the basis that it was
unrepresentative. The Superior Court denied his challenge. The Court found
that, while the procedure in place for securing the representation of First
Nations peoples on jury rolls was imperfect, good faith efforts were made to
obtain the names of First Nations individuals living on reserve for inclusion
on the jury roll. These efforts included contacting band chiefs and mailing
jury questionnaires to large numbers of people living on reserve.
-
Certain
general principles emerge from these cases. The principle of representativeness
requires that jurors be selected at random from a pool whose composition is
representative of Canadian society as a whole. In order to be representative,
no group of Canadians can be systematically excluded. However, as I have stated
above, no one has the right to have individuals from a particular group on
their jury panel, or to be tried exclusively by members of a group to which
they belong. Finally, illegality in the process for composing the jury, like
the process for swearing in the jury, suffices to have a trial verdict set
aside.
-
Having
said all this with respect to the case law on representativeness, from a policy
standpoint, I believe Ontario could enact procedures and approaches that go
beyond the minimum legal standards that have been
set by the jurisprudence, so long as what is proposed does not run afoul of the
basic legal ingredients for having an impartial and representative jury.
e. The Representation of First Nations Peoples on
Ontario Juries
1. Introduction
-
As the
cases discussed above make clear, the issue of underrepresentation of members
of First Nations communities on Ontario’s jury roll is a serious and persistent
problem. The statistics that have emerged from the court cases about
underrepresentation of First Nations communities in the large northern judicial
districts of Ontario are particularly troubling.
-
In the
judicial district of Kenora, for example, which makes up about one-third of
Ontario’s land mass, it is estimated that approximately 30 to 36 per cent of
the population live “on reserve” – in communities designated as reserves under
the Indian Act or as “Indian Settlements” (non-reserve Crown land on
which a community of Aboriginal persons resides more or less permanently)[122].
But, as described further below, these on-reserve residents typically make up
less than ten percent of the Kenora jury roll. Similarly, in the judicial
district of Thunder Bay, on-reserve residents in 2011 made up approximately
five percent of the population but accounted for only 1.3 percent of the jury
roll.[123]
-
My
task in this Review is to provide recommendations as to how we can begin to
deal with this problem, which – as I have emphasized – is deep and systemic.
But to provide the proper context to my recommendations, it is important first
to understand the steps that have already been taken by provincial officials to
attempt to create a jury roll that is properly representative of the members of
First Nations communities. I do that in this section by describing the Juries
Act obligation of court officials to include on-reserve residents on Ontario’s jury roll, the record as to the steps court officials have taken to attempt to
fulfill that obligation, and the results of those efforts to date.
2. Juries Act Obligation to Include On-Reserve
Residents on Ontario’s Jury Roll
-
As described at paragraph 99 above, the Juries Act
specifies that the primary source of data for creating Ontario’s jury roll is the most
recent municipal enumeration undertaken pursuant to the Assessment Act.
But municipal enumeration does not capture residents of reserves designated
under the Indian Act. The Juries Act therefore prescribes a
separate process intended to provide for the proportionate inclusion of
on-reserve residents in the jury roll. Section 6(8) of the Juries Act
states:
6(8) In the
selecting of persons for entry in the jury roll in a county or district in
which an Indian reserve is situate, the
sheriff shall select names of eligible persons inhabiting the reserve in
the same manner as if the reserve were a municipality and, for the purpose, the
sheriff may obtain the names of inhabitants of the reserve from any record
available.[124]
-
The
sheriff’s obligation “to obtain the names of inhabitants of the reserve from
any record available” is in fact carried out
by various provincial officials who have either been assigned the powers of the
sheriff or who act on the instruction of the holder of such assigned
powers.[125]
Responsibility for fulfilling the obligations of section 6(8) is currently
divided among:
- local judicial district or
county court staff, who obtain the names of on-reserve inhabitants, select the
individuals to receive questionnaires, and prepare and mail the questionnaires
to on-reserve inhabitants;
- the Provincial Jury
Centre, which receives and reviews the questionnaires returned and enters the
eligible names in the jury roll; and
-
the Director of Court Operations for the
West Region, who carries out the sheriff’s responsibility to certify
each jury roll to be the proper roll prepared as the law directs.[126]
3. Practice of Court Officials Prior to 2001
-
The
requirements currently found in section 6(8) of the Juries Act were
first adopted in 1973, but it is not clear
what records were relied on by Ontario officials at that time to fulfill those
requirements. It appears that from at least the early 1990s on, Ontario officials began to rely substantially on lists maintained by Indian and Northern
Affairs Canada (INAC) of persons with registered Indian status affiliated with
each First Nation in Ontario.[127]
These lists were obtained each year by the Provincial Jury Centre by way of a request to INAC under the federal Access to
Information Act pursuant to a 1983 Ontario-Canada agreement allowing
access to, and the use and disclosure of, personal information under the
control of a federal government institution to Ontario for the purpose of
administering or enforcing any law or carrying out a lawful investigation.[128]
Once obtained, the lists were distributed to local court offices, where they
were used to fulfill the requirements of section 6(8), if the local court staff
were unable to obtain a list directly from a First Nation, which was often the
case.
-
It
appears that in the 1990s, provincial officials received more completed jury
questionnaires from on-reserve residents than is the case today. In his 1994
decision in R. v. Fiddler, for example, Mr. Justice Stach stated that the return rate for on-reserve
residents was approximately 33 percent, far higher than the return rates
in the Kenora judicial district over the last several years, which have been less
than ten percent.[129]
-
From at least the mid-1990s on, the Ministry of the
Attorney General’s Court Services Division circulated to its staff a directive respecting
the performance of the sheriff’s duties under section 6(8).[130]
This directive was distributed annually by the Provincial Jury Centre to local
court staff as part of an annual communications package sent out to prompt the
commencement of the section 6(8) work. The directive instructed local court
staff to:
- ascertain, check, and
confirm the reserves located in the county or district for which they were
responsible;
- attempt to obtain the band
electoral list, or any other accurate list of residents, by writing letters,
telephoning, or visiting the reserves in the area for which they were
responsible;
- calculate the number of
on-reserve questionnaires to be sent, using a prescribed formula;
- perform a random selection
of the required number of names from “the best possible list”, and prepare and
mail the questionnaires to these persons; and
- provide interim and final
reports to the Provincial Jury Centre at various points during this process.
-
That
directive has now been replaced by instructions contained in a Jury Manual
prepared by the Court Services Division, and is available to local court
officials. Chapter 7 of the Jury Manual provides directions to local court
officials as to how to comply with the requirements of section 6(8), restating and
expanding on the instructions that had been provided in the directive.[131]
4. Practice of Court Officials From 2001 On
-
In
2001, INAC advised the Ministry of the Attorney General’s Court Services
Division that it was discontinuing its previous practice of providing lists to
the Ministry. In its correspondence with the Ministry, INAC noted that federal privacy policies and practices regarding the
release of this kind of personal information pursuant to the Privacy
Act had changed since INAC initially began providing the lists.[132]
INAC stated that “[d]ue to the sensitive nature and variability of the
information under INAC’s control, we have determined that this information
cannot be released to you at this time.”[133] INAC also
noted in the letter that Ontario was the only province requesting this
information from INAC for the purpose specified.[134]
-
Following
2001, Ontario officials continued to rely on the 2000 INAC lists, despite the
fact that they began to become out-dated, as well as any other lists they were
able to obtain by writing to or otherwise contacting
individual First Nations communities. In the late 2000s, it appears that local
court officials learned for the first time that the response rates from
questionnaires mailed to the on-reserve population were very low. For example,
the court official responsible for carrying out the sheriff’s duties in the
Kenora judicial district learned in 2007 that the rate of eligible returns
(i.e. the number of returned questionnaires from individuals eligible for the
jury roll) for questionnaires sent to on-reserve residents in 2006 (for the
2007 jury roll) was 7.6 percent compared to a rate of 56 percent for
off-reserve residents.[135]
-
Upon learning about these dismal rates of return, Kenora
district court officials began taking additional steps to increase on-reserve
resident representation. During the summer of 2007, Kenora court officials,
including a court interpreter and Aboriginal liaison official for Ontario’s north west region, travelled to
15 First Nations, meeting with community leaders, discussing issues relating to
Aboriginal participation in the jury system
and requesting updated Band Lists. In addition, Mr. Justice Stach directed that
the number of questionnaires to be sent to the on-reserve population for
the 2008 roll be increased substantially. Kenora court officials also took
additional steps to encourage on-reserve resident participation in juries,
including arranging for advance payment of travel, accommodation, and meals
expenses and calling jury panels to appear on Tuesdays, rather than Monday, to
enable potential jurors to travel to Kenora on Monday, rather than travel on
Friday and stay the entire weekend waiting for the Monday appearance. Although
the data maintained by the Provincial Jury Centre suggests that increasing the
number of mailings to on-reserve communities
has the effect of increasing the number of eligible on-reserve residents on the
jury roll,[136] the response rates
for eligible on-reserve questionnaires have remained very low – 5.7 percent for
the 2008 jury roll,[137]
5.7 percent for 2009, 6.3 percent for 2010 and 6.3 per cent for 2011.[138]
-
There
have been similar issues with underrepresentation of First Nations peoples on
the Thunder Bay judicial district jury
roll. In 2011, there were two separate findings that the jury roll for the Thunder Bay district was unrepresentative – both made following the Court of Appeal’s
ruling in Pierre v. McRae.
-
In the
first case, R. v. Wareham (#1), Madam Justice Pierce determined that the
2011 jury panel selection was not representative. The evidence she heard was
that: court officials would send a fax and letter to each First Nations Chief requesting an updated band electoral list,
followed by a telephone call; after further efforts to obtain the lists,
Court Services Division would then wait to see which First Nations provided the
information; only two of the 15 First
Nations communities in the Thunder Bay judicial district agreed to provide
the information; the lists relied on were generally old, some dating back to
2000; and court officials were not aware of the response rates from on-reserve
individuals, discussed above at paragraph 142.
-
In the second case, a coroner’s inquest into the death of
Reggie Bushie, the Coroner Dr. Eden also held that
the 2011 jury roll was not representative. He noted that residents of First
Nations reserves represented five percent of the population in the
Judicial District of Thunder Bay but accounted for only 1.3 percent of the jury roll – a result he described as a
“serious deficiency”.[139] On the basis of these
results and a number of “deficiencies” he identified in the processes
followed by local court officials, he concluded that the sheriff’s duty of
“diligence”, set out in the Nahdee test, had not been met, and the 2011
jury roll was therefore not representative.[140]
-
In
2012, the R. v. Wareham (#2) case, discussed above at paragraph 129,
came back before the court, and the accused once again challenged the
representativeness of the jury roll – the 2012 roll this time. The court heard
more evidence than had been heard in R. v. Wareham (#1), including
evidence with respect to additional efforts that had been made and procedures
that had been changed to address the problems in the 2011 roll. Mr. Justice
Platana concluded that, as a result of these additional efforts, the sheriff’s office
had satisfied the requirements of section 6(8) of the Juries Act, including
that the sheriff exercise due diligence, resourcefulness, ingenuity and perhaps
persuasion, rather than passively acquiescing to non-response or chronically
ignored requests. As he stated:
I do accept
that, on the facts before me, the 2012 Thunder Bay jury roll was compiled
in a manner that was representative of the community to the extent currently
available. The facts are sufficient to establish that the sheriff did exercise
diligence beyond what was done in the preparation of the 2011 and previous jury
panels. Beyond the changes to the formal procedure, resourcefulness and
ingenuity is demonstrated by the inclusion of a Native Court Worker to assist
in obtaining information. Local elders were contacted for assistance. While Bushie
describes the sheriff’s duty as including “possibly persuasion”,
I also take into account the necessity for cultural sensitivity. When direct
refusals to provide lists have been given
by the band chiefs and councils, the leaders and decision-makers of
their respective communities, and those offers to meet have not been accepted,
I have no evidence before me to determine what other “persuasion” might be
effective. Their attempts at including First Nations peoples living on-reserve
demonstrate a reasonable effort to create a jury roll that is representative of
the community.[141]
-
While these efforts
were sufficient to satisfy Mr. Justice Platana that the sheriff’s office had
satisfied the requirements of section 6(8),
the evidence of court officials in R. v. Waerham (#2) was that the
response rate for eligible on-reserve questionnaires remained very low
at 5.6 per cent.[142]
f. Experience in Other Jurisdictions
-
In
accordance with paragraph 4 of the Order-in-Council, I have as part of my
review considered the law and practice in
other jurisdictions to assess what lessons we can learn from them.
Underrepresentation of Aboriginal peoples on juries is by no means
exclusively an Ontarian or Canadian issue. Rather, this issue exists in various
jurisdictions that rely on juries and that have sizeable Aboriginal
populations, including other Canadian
provinces, New Zealand, Australia, and the United States. In this section, I
discuss the ways individuals are selected for jury rolls in other
Canadian provinces, as well as Australia, New Zealand and some American states,
and how issues of underrepresentation are dealt with in those jurisdictions.
1. Experience in Other Canadian Provinces
-
The
underrepresentation of individuals from First Nations communities on jury rolls
is a serious concern in a number of
provinces across Canada. As described below, the issue was dealt with in Manitoba’s Aboriginal Justice Inquiry, and has also received recent attention from
the British Columbia Government. In this
section, I discuss the experiences of other provinces with respect to the issue
of underrepresentation on jury rolls, as well as measures undertaken to
remedy the problem. I will also briefly explain what source lists are used in
other provinces to collect the names of prospective jurors.
(a) Manitoba
-
Manitoba has had extensive
experience with the issue of the underrepresentation of First Nations peoples
on juries, and appears to be the only other province in Canada to have conducted a major review of this issue.
-
In
April 1988, the Manitoba government created the Public Inquiry into the
Administration of Justice and Aboriginal
People in response to two incidents: a 17-year delay in bringing a 1971 murder
on a First Nation reserve to trial, and the 1988 death of the executive
director of a tribal council at the hands of a police officer, who was exonerated the next day. The Report of the Inquiry did
not mince words; it opened by stating that “the justice system has
failed Manitoba’s Aboriginal people on a massive scale.”[143]
Because the scope of the Inquiry exceeds that of this Independent Review, I
will discuss only those parts of the report that addresses the relationship
between First Nations in the province and juries.
-
Historically, the jury roll in Manitoba was composed
using voting lists. However, members of First Nations and Métis, were denied the vote in Manitoba between 1886 and 1952, and consequently were excluded from potential jury service.
While First Nations individuals were granted the right to vote in 1952, their
participation on juries did not improve significantly since First Nations
officials, unlike mayors, were not required to submit the names of potential
jurors to the County Court Judge. After 1971, First Nations officials were
required to submit names drawn from their electoral lists.
-
In
1983, the province began using computerized records from the Manitoba Health
Services Commission to compose jury lists. The Inquiry found that the use of
provincial health records was a preferable source for choosing jurors, because
it included First Nations individuals. The Inquiry stated that it was only
after 1983 “that Aboriginal people began to be properly represented on the
lists of potential jurors”.[144]
However, the Inquiry identified a number of logistical problems that remained
and contributed to ongoing underrepresentation.
-
The
Inquiry found that First Nations individuals were excluded at two stages of the
jury composition process: the summoning of
prospective jurors and the pre-trial jury-selection process. The Inquiry
concluded that the summoning procedure works against Aboriginal people
in a number of ways: summons are sent by mail, but individuals living on
reserve often do not have access to regular mail service; individuals living on
reserve are less likely to have telephone service at home, and therefore
following up on a summons is difficult; and
First Nations individuals living in urban centres are more likely to be
renters, and therefore accurate records of their current addresses may
not exist. Moreover, exemptions are often granted to First Nations individuals on the basis that the costs of
travelling to the court and serving on the jury exceeds their means, and many First Nations individuals cannot speak
English or French.[145] At the jury selection stage,
the Inquiry found that “it is common practice for some Crown attorneys
and defence counsel to exclude Aboriginal jurors through the use of
stand-asides and peremptory challenges.”[146] The examples
they provide are compelling. In the Helen Betty Osborne case in The Pas, the
jury had no Aboriginal members, in spite of the
fact that it was in an area of Manitoba where Aboriginal people comprise over
50% of the population.[147] All six Aboriginal
people called forward were the subjects of peremptory challenges from the
defence. Similarly, on one day of the Thompson assizes, 35 of 41 Aboriginal
people called to serve on three juries were
rejected through peremptory challenges and stand-asides. “In one case, the
Crown rejected 16 Aboriginal jurors; in another, the defence rejected
two and the Crown rejected 10; in the third and final case, the defence
accepted all the proposed Aboriginal jurors, while the Crown rejected nine. Two
jurors were rejected twice.”[148]
-
The
Law Reform Commission of Canada described the importance of peremptory
challenges in the following manner:
the peremptory
challenge has been attacked and praised. Its importance lies in the fact that
justice must be seen to be done. The peremptory challenge is one tool by which
the accused can feel that he or she has some minimal control over the make up
of the jury and can eliminate persons for whatever reason, no matter how
illogical or irrational, he
or she does not wish to try the case.[149]
However, the
Inquiry found that this power to exclude potential jurors for ‘illogical or
irrational’ reasons has undesirable effects on the racial make-up of jury
panels.[150]
-
To
address the exclusion of First Nations individuals at the summons stage, the
Inquiry recommended that where the sheriff grants an exemption from jury
service (for instance on the basis that the person called cannot speak the
language of the trial), that person must be replaced by someone from the same
community. It also recommended that summonses be enforced, even where enough
people have been found for the jury panel (given the lack of access to regular
mail, First Nations individuals who do respond to a summons have often done so well after others with regular access to
mail). With respect to the exclusion of
First Nations individuals at the jury-selection stage, the Inquiry recommended
that: peremptory challenges and
stand-asides be eliminated altogether; that jurors be drawn from within 40
kilometers of the community where the
trial is to be held; that in the event jurors need to be drawn from elsewhere,
they should be selected from a community
as similar as possible demographically and culturally to the community where
the offence took place; and that the Juries Act should be amended
to provide translation services for First Nations jurors who do not speak
English or French but who are otherwise qualified to serve.[151]
-
It
should be noted that, in response to the Supreme Court’s decision in R v.
Bain, Parliament in 1992 amended section
634 of the Criminal Code to eliminate the practice of stand-asides by
the Crown, thereby remedying the
asymmetry in power between the defence’s right to peremptorily challenge and
the Crown’s right to stand-aside
potential jurors.[152] Parliament replaced
stand-asides with equal endowments of peremptory challenges for the
Crown and the defence.[153]
But this amendment does not change the underlying ability to discriminate in
jury selection processes. Otherwise left unchecked, the amendment merely
equalizes the discriminatory power inherent to peremptory challenges.
(b) British Columbia
-
The British Columbia Jury Act gives the sheriff
broad discretion in creating the jury roll for the province. Section 2 of the Act establishes the principle that “a person has the
right and duty to serve as a juror unless disqualified or exempted under
this Act”, while section 8 states that “[h]aving regard for the principle in
section 2, the sheriff may determine the procedures the sheriff considers
appropriate for the selection of jurors.”[154] In practice,
the sheriff uses provincial voters’ lists to select prospective jurors,[155]
but there are concerns that the list does not properly capture individuals
living in First Nations communities.
-
In
2011, following Ontario judicial decisions such as the Court of Appeal’s
decision in Pierre v. McRae, the British Columbia Civil Liberties
Association (BCCLA) began an investigation of the practices followed by the
sheriff’s office in British Columbia with respect to First Nations. In June
2011, the BCCLA wrote to British Columbia’s Attorney General, stating that, as
a result of its investigation, the BCCLA had become concerned that juries in British Columbia might suffer from similar underrepresentation of First Nations peoples on
jury rolls. In its letter, the BCCLA stated that it did not appear the First
Nations communities were being consistently included on the provincial voters
list or directly contacted by Sheriffs’ Offices.
-
British
Columbia’s
Attorney General responded to the BCCLA letter in July 2011. In his response,
he stated that in order to improve the sheriffs’ database, a senior Court
Services official had written to all Band leaders in the province requesting
their lists of persons residing on reserves. He also stated that the database
that British Columbia sheriffs obtain from Elections BC is significantly
different from the database that Ontario sheriffs obtain from the municipal
assessment rolls in that First Nations persons living on reserves are included
to some degree in the British Columbia database. He acknowledged, however, that
no one knew the extent to which First Nations individuals chose to be
enumerated and the reason the Ministry was taking the extra step to write to
First Nations was to ensure that “they were given an opportunity to be included
in the database.” [156]
(c) Northwest Territories
-
With
its vast size and low population density, the Northwest Territories faces
particular challenges in holding jury
trials. Jury trials became available in the Northwest Territories in 1955.
However, between 1955 and 1968,
Aboriginal individuals served on juries in only 27 of the 66 jury trials held
in the Northwest Territories, despite forming an overwhelming majority
of the Northwest Territories population.[157] Steps were
taken during this period to improve the participation of Aboriginal peoples in
the jury process. For instance, Mr. Justice Sissons, who was appointed to the Northwest Territories Territorial Court in 1955, committed the
court to holding trials in the community where a crime took place and
established a circuit court that travelled throughout the territory to
hear criminal cases.[158]
-
In
1988, the Northwest Territories Jury Act was amended to permit jurors
fluent in only one of the Territories’
official languages to sit as a juror.[159]
There are eleven official languages in the Northwest Territories:
Chipewyan, Cree, South Slavey, North Slavey, Gwich’in, Inuvialukutin,
Inuinnaqtun, Tlicho, Inuktitut, English, and French.[160]
Consequently, under the amended section of the Jury Act, a First Nations
individual living in the Northwest Territories who speaks only one or several
First Nations languages can serve on a jury. To carry these reforms into
effect, the Department of Justice in the Northwest Territories established an
interpreter training program, consisting of an eight week course, with two
weeks spent focusing on jury trials.[161] These
interpreters play a number of roles during trials, including assisting the
sheriff in assembling jury panels by explaining to people why they have been
summoned, and translating evidence, arguments, and closing and opening
statements.[162]
-
The jury roll in the Northwest Territories is composed
by the sheriff, who obtains the names of residents in the Territories from the
Director of Medical Insurance.[163]
However, the regulations passed under the Jury Act permit the sheriff to
use other source lists, including electoral and assessment rolls.[164]
The jury list for each trial is “drawn from within thirty kilometers of the
court,” and consequently prospective jurors are nearly all from the same
community as the accused.[165]
The emphasis on involving the community in the criminal justice system was
praised by the Manitoba Public Inquiry into the Administration of Justice,
which stated:
This solution is
attractive to us, since it seeks to return to the community involved in a
direct sense of involvement in, and control and understanding of, the justice
system. […] In aboriginal areas, those people would be able to understand the
nuances that might apply to the relationship between victim and accused, or
local factors that might escape the attention of non-aboriginal people.[166]
-
While
there are significant differences between the Northwest Territories and Ontario, there are also certain similarities: the size and remoteness of the First Nations
communities in Ontario’s northern judicial districts;
their perspectives on justice issues; and the fact that some First Nations
individuals still speak only Aboriginal languages. As I discuss in my
recommendations below, some of the approaches adopted in the Northwest
Territories merit consideration in the Ontario context.
(d) Alberta
-
The
Alberta Jury Act authorizes the sheriff in that province to obtain names
for jury rolls using information from lists provided by the municipal property
officer, including the list of electors, the assessment rolls, and any other
public papers.[167]
The Jury Act Regulation further specifies that jury selection may be made from any or all of: (a) lists of electors,
assessment rolls and other public papers obtained from municipalities;
(b) telephone directories; (c) Henderson’s Directories for municipalities; and
(d) any other source that the sheriff considers appropriate.[168]
-
There
appear to have been some concerns expressed at various times as to whether the Alberta jury list is representative of First Nations peoples. In 1991, an Alberta task
force examining the criminal justice system and Aboriginal peoples was told
that Aboriginal persons were not being summonsed for jury duty. It recommended
that Aboriginal peoples be included on jury lists.[169]
(e) Other Provinces That Use Health Insurance
Records to Compile the Jury Roll
-
As I
described above in my discussion of the experience of Manitoba, it has, since
1983, relied on computerized records from
the Manitoba Health Services Commission to compose jury lists, a practice that
Manitoba’s Public Inquiry into the Administration of Justice and Aboriginal
People described as a preferable source for compiling the jury roll. Saskatchewan, Quebec, New Brunswick, Nova Scotia , Prince Edward Island, Newfoundland and
Labrador (and the Northwest Territories, as mentioned above) have adopted this
same approach.
-
Saskatchewan. Saskatchewan’s Jury
Act empowers the Inspector of Legal Offices to requisition the register
maintained for the Saskatchewan Medical Care Insurance Act as the source
list for jury rolls in the province.[170] This
practice appears to have been adopted as a result of a proposal initially made
by the Law Reform Commission of Saskatchewan, which recommended in its report Proposals
for the Reform of the Jury Act, after canvassing potential sources for the
jury pool, that the best available source was the list of beneficiaries under
the Saskatchewan Hospitalization Act.[171]
-
Quebec. The Quebec Jurors Act
requires the sheriff to collect the names of prospective jurors from the
electoral roll, but makes special provision for First Nations people living
on-reserve. In particular, the Quebec Act permits the sheriff to gather the
names of First Nations people living on-reserve using municipal valuation
rolls, Band Lists drawn up in accordance with the Indian Act, and the
population register of the Ministère de la Santé et des Services sociaux.[172]
-
New
Brunswick.
The New Brunswick Jury Act empowers the sheriff to collect names from
lists of the following: beneficiaries under the Medical Services Payment Act,
electors under the Elections Act, electors under the Municipal
Elections Act, and registered owners of motor vehicles under the Motor
Vehicle Act.
-
Nova
Scotia.
The Nova Scotia Juries Act empowers the sheriff to collect names for the
jury roll from the province’s Health and Wellness’ Health Insurance list.[173]
The issue of representation of First Nations peoples on juries has been given
some attention in Nova Scotia. In 1994, the Law Reform Commission of Nova
Scotia recommended that educational materials be made available in the Mi’kmaq
language to foster greater interest in the jury system among members of that
community.[174]
The Commission also recommended that the province cease choosing jurors from
the voters list and substitute a more comprehensive computerized list such as
the medical service insurance list,[175]
a recommendation that led to the adoption
of that practice by the government. The Royal Commission on the Donald
Marshall, Jr. Prosecution in 1989 also dealt with this issue,
encouraging further study on the issue of proportional representation of
minorities (including Mi’kmaq) on juries, in light of concerns about
underrepresentation.[176]
-
Prince
Edward Island.
Under the Prince Edward Island Jury Act, the sheriff acquires names for
the jury roll by requisitioning from time to time the names of residents in the
province registered under the Health Services Payment Act.[177]
-
Newfoundland and Labrador. The Newfoundland and Labrador Jury Act allows the sheriff to refer to multiple
source lists to create the jury roll. In particular, the sheriff can refer to
the list of electors under the Elections Act, 1991, motor vehicle
registration records under the Highway Safety Traffic Act, and the list
of beneficiaries under the Medical Care
Insurance Act, 1999.[178] Additionally, the
regulations passed under that Act permit
the sheriff to look to the licensed drivers database, the membership list of a
francophone association, the telephone directory, and any other source
considered appropriate by the sheriff.[179]
2. Experience in Other Countries
(a) Australia
-
Aboriginals
have historically been underrepresented on juries throughout Australia. In a 1983 report on Aboriginal Customary Law, the Australian Law Reform
Commission wrote:
… the
representation of Aborigines on juries has changed little in recent years. In
those parts of Australia where Aborigines represent a sizeable proportion of
the population,
it is still rare for an Aborigine to sit on a jury.[180]
-
More
recent publications and law reform commission reports indicate that, while
efforts have been made to improve Aboriginal representation on juries in Australia, it remains a live issue in all six states across the country.
-
Each
state exercises general legislative powers over matters of criminal law and
procedure, including the process of jury
trial.[181] At a general level, the
process for composing the jury roll is similar in most states: the
sheriff randomly selects names from electoral rolls for inclusion on jury
rolls. However, the minutiae of the selection process differs across states,
resulting in varying degrees of jury representativeness throughout the country.
-
The law reform commissions of three states – New South Wales, Queensland and Western Australia – have conducted extensive and recent
examinations of the jury system. The reports of these commissions have included
discussions respecting the underrepresentation of Aboriginals on jury rolls and
made a number of findings and recommendations, which I mention below.
-
As in Canada, the value of a representative jury is
recognized in Australia. As the Law Reform Commission of Western Australia stated in its
2009 report, “representation is generally considered to be the principal
concept guiding juror selection.”[182]
According to the Commission, it is through its representativeness that the
criminal justice system derives its legitimacy,[183]
and a representative jury is “a body of persons representative of the wider
community”.[184]
But the Commission also made clear that a jury does not have to be proportionately representative of the community at
large; rather, it is enough that “all ethnic and social groups in the
community should have the opportunity to be represented on juries
(emphasis in original).”[185]
-
Unlike in the United States or Canada, voting is mandatory in Australia. Consequently, voting lists in that country
are more likely than those in Canada or the United States to be comprehensive.
There is no evidence that Aboriginals in Australia are registered to
vote in lower proportions than those of the descendants of European settlers,
since the voting registration system does not record race. However, the
Queensland Law Reform Commission, in its 2011 report, suggested that
Aboriginals may be underrepresented on that state’s electoral roll because of
low-levels of education and literacy, health and social conditions, and the general remoteness of indigenous communities and
the transient nature of their inhabitants.[186]
The Commission recommended that people be asked to register as
Aboriginal when they register to vote in order to provide more information on
this point.[187]
The Commission also found that Aboriginals are more likely than non-Aboriginals
to live outside of jury districts.[188]
In addition, Aboriginals are more difficult to summon because they are more
likely to lead transient lifestyles.[189]
-
Even
if a summons is issued, a variety of factors mean that Aboriginals are more
likely to be disqualified or will otherwise not become a part of the jury
panel. For instance, in some states public transport is limited and prospective
Aboriginal jurors may be unable to travel to the court for jury selection.
Similarly, a lack of available accommodation near the court increases the
likelihood that Aboriginals will be unable to serve on a jury. Aboriginals are
also more likely to be disqualified on the basis of prior convictions, because,
like Aboriginal persons in Canada, they are disproportionately overrepresented
in the criminal justice system and in prison.[190]
Moreover, they are also more likely to lack the necessary language skills
to serve on a jury.[191]
-
The
Australian law reform commissions have also identified various cultural factors
that may explain Aboriginal underrepresentation. For example, the Law Reform
Commission of Western Australia noted that Aboriginal jurors had expressed
discomfort about being required to judge people they did not know.[192]
Similarly, the Law Reform Commission of New South Wales notes that in the past
Aboriginals have asked to be excused from jury service on the basis that
sitting in judgment of another may harm their standing with their community.[193]
At the jury panel selection stage, the commentator, Mark Israel, notes that
there is evidence in New South Wales that some prosecutors have challenged the
inclusion of Aboriginal jurors in cases where the defendant was also Aboriginal
.[194]
-
Australian
law reform commissions have proposed various measures to remedy Aboriginal
underrepresentation on jury panels. To
address the issue of underrepresentation as a result of prior convictions
(given that Aboriginals represent a
disproportionate percentage of the prison population in Australia), the Law
Reform Commission of New South Wales recommended reducing the number of
years that offenders are barred from jury service from ten years for all
offences to two to five years, depending on the type of offence.[195]
This recommendation was enacted into law by the New South Wales Jury
Amendment Act 2010, which removed the
uniform ten-year disqualification and replaced it with a graduated scheme for
the exclusion of people on the basis of criminal history.[196]
This proposal was also endorsed by the Queensland Law Reform Commission.[197]
With respect to the issue of Aboriginals living outside of the jury district,
the Queensland Law Reform Commission recommended that local governments review
existing jury districts with a view to
including Aboriginal communities, while the Law Commission of New South Wales
proposed the adoption of a ‘smart
electoral roll’ that would provide a more flexible tool for including
individuals on the local court’s jury
roll.[198] Finally, the Queensland Law
Reform Commission proposed a series of logistical measures aimed at
improving Aboriginal underrepresentation, including: making transport
arrangements to ensure that Aboriginals can
attend court when summoned, making available accommodation near the court for
people who cannot travel to the court each day of a trial, creating
culturally appropriate educational programs to promote the importance of jury
service, conducting more extensive research, and establishing a working group
to ensure that any reforms are successful.[199]
-
However,
the law reform commissions have rejected more radical suggestions for improving
representativeness that have also been rejected by Canadian courts. For
instance, the Law Reform Commission of New South Wales rejected the use of
special panels composed largely (or entirely) of members of the racial or ethnic group of the accused owing to
the practical difficulties associated with their establishment, among
other things.[200]
Similarly, the Law Reform Commission of Western Australia found that allowing a
trial judge to order the inclusion of a person of the same race or ethnic group
of the accused would not be appropriate, since it would interfere with the
principle of random selection.[201]
The Queensland Law Reform Commission rejected a similar proposal.[202]
(b) New Zealand
-
The
New Zealand Law Commission conducted an extensive study of the use of criminal
jury trials in that country in 2001 and found that the Mรคori people in New Zealand, like First Nations in Canada, are underrepresented
on juries and overrepresented as defendants in criminal proceedings.[203] The New Zealand Law
Commission identified ‘representativeness’ as one of four necessary features of
the jury system,[204]
and they provided the following definition: “what is required [for a
representative jury] is that all persons who are eligible to serve on juries,
including those you are younger or older, or from ethnic minorities, do have an equal opportunity to serve
(emphasis in original).”[205] In their report, the New
Zealand Law Commission recommended a number of measures to make juries
generally more representative, including: improving the representativeness of
jury rolls (the source of jury lists) through outreach campaigns that encourage
young people and minorities to become
registered voters; extending judicial district boundaries; considering the question of representativeness in applications
for a change of venue where the demographic composition of the jury roll
in the venue where the crime is to be tried creates a likelihood of prejudice;
and updating guidelines for excusing jurors
to allow jurors to defer their service, rather than be excused from it
altogether.[206]
-
As in Canada, the history of the introduction of a foreign legal system and the exclusion of the
Mรคori people from this system has created a
sense of alienation. In the New Zealand Law Commission’s consultations
with Mรคori people, many of the same concerns raised by members of First Nations
communities in our discussions as part of
this Independent Review were raised. As the Commission stated: “it was
emphasized to us that many Mรคori feel very strongly that juries are not
representative of Mรคori society, and this underrepresentation contributes to a
general feeling of alienation from the criminal justice system.”[207]
-
The
Commission identified the three main reasons for the underrepresentation of
Mรคori on juries lists. First, jury lists in
New Zealand are drawn from voters lists, but Mรคori are far less likely than
those of European ancestry to be registered voters. Second, once
summoned to the court for jury selection, Mรคori are more likely than other
citizens to be excused or disqualified. Third, once chosen for the jury panel
they are more likely to be challenged by the Crown or by the defence.[208]
One study reported that several of the lawyers and judges interviewed believed
that prosecutors “tended to weed out Mรคori jurors because they were Mรคori when
there was a Mรคori defendant”.[209]
Various authors have also suggested that Mรคori have been excluded from juries
because courthouses are predominantly located in the cities, while Mรคori mostly
live in rural areas, and Mรคori are more
mobile than other citizens and are therefore less likely to have a permanent
address where a summons can be sent.[210]
-
The Commission’s study considered two solutions to Mรคori
underrepresentation on juries: using source lists
other than the electoral roll to select potential jurors, and ensuring that the
proportion of Mรคori selected for jury
lists is the same as the proportion in the jury district’s broader population.
Ultimately, the Commission rejected both of these solutions.[211]
Using source lists other than the electoral roll would be unduly cumbersome and
expensive, and instead, greater efforts should be made to encourage more Mรคori
to register to vote. Tailoring the number
of Mรคori selected for jury lists to the number living in the jury district was
similarly unacceptable since it would
run counter to the principle of ensuring a representative jury. The Commission
stated that “once an exception is made for one group there is no reason in
principle why it should not be made for all
other ethnic minorities and any other group.”[212]
In addition, the Commission found that practical difficulties such as
securing adequate childcare during jury service imposed a particular burden on
Mรคori individuals, and that making childcare allowances available would help to
remedy this problem.[213]
(c) United States
-
There are fifty states
in the United States, each with its own court system and jury selection
process, as well as a federal court system with its own jury selection process.
For this Report, I will deal only with two American states: Alaska because of
its sizable Aboriginal population; and New York because of the particular steps
it has taken to deal with the underrepresentation of minorities on its juries.
At the federal court level, the Jury
Selection and Service Act stipulates that names for the jury source list
are to be drawn from voter
registration lists, lists of actual voters, and other available sources where
necessary.[214] Aboriginal
people who retained their tribal membership were formally excluded from federal
juries until 1924, when Congress declared them citizens.[215]
(i) Alaska
-
Alaska’s Aboriginal population
represents approximately 16 per cent of that state’s overall population, but like many jurisdictions in Canada, the Aboriginal population is “overrepresented within Alaska prisons”.[216]
Much of Alaska’s Aboriginal population lives in a series of about 200 small
villages (referred to collectively as ‘the Bush’) outside of Alaska’s main
population centers of Juneau, Anchorage, and Fairbanks.[217]
These cities are also home to the state’s courts. Needless to say, the
conditions and lifestyles in the Bush differ considerably from those in Alaska’s major cities.
-
The
standard practice in the state for holding trials prior to 1971 was to
transport defendants to one of these cities for trial, and to select a jury
from residents living within a fifteen mile radius of the trial site.[218]
However, since the majority of the state’s Aboriginal population lives in rural
areas, this mode of selection often resulted in Aboriginals facing an all-white
jury whose members were utterly unfamiliar with lifestyles and conditions in
rural communities.[219]
-
Recognizing
these and other difficulties that arise where Aboriginals are tried before a
jury composed entirely of non-Aboriginals, the Alaska Supreme Court in Alvarado
v. State declared the practice of drawing jurors from within a fifteen mile
radius of the trial unconstitutional.[220] In
particular, the Court found that this practice violated an accused’s Sixth
Amendment right to be tried by a jury drawn “from a pool representing a fair
cross-section of the community”.[221]
In Alvarado, the defendant was accused of rape in the community of Chignik, Alaska. He was arrested in Chignik and transported approximately 463 miles to Anchorage
for trial. The population of Chignik was at the time 95 percent Aboriginal,
while only 3.5 percent of Anchorage’s population was Aboriginal.[222]
Pursuant to the rules governing the selection of juries in force at the time,
the jury was drawn from within fifteen miles of the site of the trial, and
consequently, not a single Aboriginal
person appeared on Alvarado’s jury panel, let alone the petit jury.[223] Alvarado was found
guilty, but he successfully challenged the composition of his jury panel in an
appeal before the Alaska Supreme Court by arguing that the jury selection
process “precluded residents from Chignik and virtually all Native villages
within the district, thus violating his constitutional right to an impartial
jury”.[224]
In finding that the this policy for selecting jurors was unconstitutional, the
Alaska Supreme Court wrote that substituting members of one community (in this
case Chignik) with those from another (Anchorage) substantially impairs “the democratic
ideal inherent in the notion of an impartial jury as an institution
representing a fair cross section of the community”.[225]
Instead, the community that must be represented on the jury panel is the
community where the crime is alleged to have taken place.
-
In
response to the Alaska Supreme Court’s decision in Alvarado, the state
legislature adopted Alaska Criminal
Procedure Rule 18.[226] Rule 18 introduces a number
of steps to help increase Aboriginal representation on juries in Alaska. First, it increases the number of trials sites outside of the state’s major urban
centers and requires that jurors be called from within a fifty-mile radius of
each trial site. Second, it gives the trial judge the discretion to limit the
number of miles from the courthouse from which prospective jurors are chosen;
however the accused is given a corresponding right to have jurors called from
the entire fifty mile radius if the first
jury pool “fails to fairly represent a cross-section of the community”.[227] Third, the defendant
is given the right to move, within ten days
of entering a plea, for the trial to be relocated from the presumptive
trial site to an alternative trial site within the venue district that is
nearest to the site where the crime occurred.[228]
Fourth, if the fifty mile radius rule is unlikely to result in a jury that is
representative of a fair cross-section of society, the accused or the court can
request a change in the jury selection area.[229] In practice, this latter rule may be carried out in
three ways: the trial venue may be relocated to a community that is more representative; the court may draw
prospective jurors from beyond the fifty mile radius; or the court may
organize the trial in a community where no trial site exists but which is more
representative.[230]
-
Although
the implementation of Rule 18 has made important steps towards improving
Aboriginal representation on juries in Alaska, several commentators have identified remaining difficulties. For instance,
certain rural communities are excluded because they do not fall within the
fifty mile radius. Moreover, Rule 18 imposes the onus on defendants to request
a change of venue within ten days; however they are often ignorant of this
right.[231]
(ii) New York
-
New
York uses a
multiple source list approach to create its jury roll. The names of prospective
jurors are drawn from the following five lists: registered voters, the holders
of drivers’ licenses or other identification
issued by the Division of Motor Vehicles, state income tax filers, recipients
of family assistance, and recipients of unemployment insurance.[232]
The state updates these lists annually and has eliminated all automatic
exemptions for jury service. At $40 per day, the state pays one of the highest
juror per diems in the United States. New Yorkers can also volunteer for
jury duty, and after jury questionnaires have been sent out, two-follow ups are
immediately sent to non-responders.
-
New
York has
taken a number of steps in response to biases against minorities in the state’s
court system. In 1988, the Chief Judge of New York created the Judicial
Commission on Minorities, which exists to this day, as a body to study this
problem and make recommendations to improve minority interactions with the
court system. In a five-volume report issued in 1991, the Commission concluded
that minorities are significantly
underrepresented on many juries in the court system.[233]
The Commission found that all-white juries in New York were a regular
occurrence and minorities charged with an offence were likely to face juries
where their peers are not represented.[234] Moreover,
the Commission’s report noted that there was evidence of peremptory challenges
being used to exclude minorities from jury panels in trials where the defendant
is also a member of a minority group.[235]
-
To
address these shortcomings, the Commission made a number of recommendations,
including expanding the number of sources from which prospective jurors are
selected for the jury source list. In addition, the Commission recommended that
measures be put in place to allow jurors to be “on call” for a trial.[236]
This recommendation, which has been implemented, means that persons may be on
call for a one-day trial for several days, and if they are not called, but were
available, their jury duty is considered complete.[237] The Commission’s report also
recommended strict judicial scrutiny over peremptory challenges to
ensure that prospective minority jurors are not improperly excluded and that
jury questionnaires record race in order to provide more information for
further study.
-
As a
result of the U.S. Supreme Court decision in Batson v. Kentucky, the U.S. has constitutional limits on the use of peremptory challenges, banning their use in a
racially discriminatory manner.[238]
Subsequent cases have expanded this prohibition, widening the group of persons
subject to the rule to include the defence counsel and lawyers in civil cases,
and widening the group of prohibitions to include challenges based on sex,
while some lower courts have added religion to the list.[239]
-
New York State has developed
a line of jurisprudence under the Batson rule that appears to be broader than the rest of the
country’s application of those precedents. In its 2008 decision in People v.
Luciano, the New York Court of Appeals noted that courts should forbid
peremptory challenges based on “race, gender, or any other status that
implicates equal protection concerns”.[240] In one
recent case, people with a hunting license were found to satisfy this test, and
a mistrial was declared because the defence counsel peremptorily challenged all
potential jurors with a hunting license.[241]
-
Finally,
in New York State, it is possible to volunteer for jury duty. The list of
volunteers is used to supplement the five source lists that counties use to
compile their jury rolls. Judge Dwyer of the New York Rensselaer County Court
has gone so far as to mail “coupons” to residents, urging individuals to
volunteer their names for the master jury list by filling out the form and
mailing it back. One thousand residents
responded to this initiative in 1993, and several hundred to a similar
initiative in 1984.[242] Accepting volunteers
seems to be a useful way to supplement the master source list with names of
residents who do not appear on the other lists used.
(iii) Sending Jury Roll Questionnaires to Areas
with Significant Minority Populations
-
In
2006, following a 2005 study by U.S. District Judge Nancy Gertner, the U.S.
Dictrict Court of Massachusetts revised its jury plan along the following
lines: “a jury summons returned as undeliverable from any of the court’s three geographic divisions will spur the court
to send another summons to another resident in the same zip code.”[243]
Also, to keep lists more up to date and to try to negate the effects of a more transient renter population, the jury roll
derived from postal addresses will be updated every six months.[244]
-
Based
on this initiative, the U.S. District Court of Kansas amended its jury plan in
2007 to include a “supplemental draw” in
which the response to an undeliverable summons will be sending of a new summons
to someone in the same zip code.[245]
This initiative not only includes undeliverable summonses, but also
nonresponsive ones, an expansion on the Massachusetts initiative.
-
Currently,
an ad hoc committee of Eastern Michigan judges, appointed by Chief Judge Gerald
Rosen and co-chaired by Judge Victoria Roberts, is considering reforms to the
jury selection system in the U.S. District
Court of Eastern Michigan along similar lines of those of Massachusetts and
Kansas, outlined above.[246]
PART IV: THE
JURY SYSTEM AND FIRST NATIONS: THE FUTURE
a. INTRODUCTION
-
From the foregoing, it is clear that the jury system in Ontario, like the province’s
justice system more generally, and its
counterparts across a variety of Canadian and international
jurisdictions, has often ignored or discriminated against Aboriginal persons.
This part of the Report focuses on how the representation of First Nations
peoples can be improved on Ontario’s juries.
-
This
task cannot be accomplished without substantial input from First Nations people,
as well as the organizations working on the ground. It is for this reason that
I have gone into great depth in describing, in section B, my visits and
meetings with First Nations people, government officials, and members of the
judiciary, and in section C, the written submissions I received from First
Nations, non-governmental, and government organizations. From this accumulation
of experience and input, in section D, I conclude by offering my
recommendations.
b. RESULTS OF VISITS AND MEETINGS
-
The visits
and meetings carried out during the engagement phase of the Independent Review
have been an important source of information and ideas that have assisted me
greatly in understanding the systemic problems First Nations individuals face
in dealing with the criminal justice system, and also the mechanics of the jury
selection process and the efforts to assemble the jury roll in so far as First
Nations residents on reserve are concerned.
The First Nations we visited enlightened us with respect to their important perspectives
regarding culture, responsibilities as leaders of their communities, and the
many issues they must overcome to possess the capacity to serve as jurors. The
government officials and members of the judiciary recognized the importance of
this Review in providing information and suggestions from their experience to
deal with the problems that are thwarting the proper inclusion of First Nations
peoples on juries in Ontario, and offered their full cooperation.
1. First Nations Sessions
-
During
the course of the Independent Review, I had the opportunity to visit many
wonderful and, in many ways, remarkable communities. Without exception, I was
welcomed into every community and treated with kindness, generosity, and
respect. I met many articulate leaders and people, young and old, who keenly
offered their insights and perspectives with respect to the criminal justice
and jury systems. The prevailing message I
learned from every First Nation I visited was very clear: substantive and
systemic changes to the criminal justice system are necessary conditions
for First Nations participation on juries in Ontario. I refer to this lesson
often in this Report; its repetition reflects the centrality of its importance.
-
Many
common themes arose during the engagement sessions, and I summarize the issues
and points discussed under
these topics. The list of First Nations and government officials I met
throughout this process is attached as Appendix E to this Report.
(a) First Nations peoples’ perspectives on the justice
system
chill their desire to serve on Ontario juries
-
In the
opinion of First Nations representatives we met, the most significant systemic
barrier to the participation of First Nations peoples in the jury system in Ontario is the negative role the criminal justice system has played in their lives,
culture, values, and laws throughout history. This became very apparent in
discussions with First Nations leaders, Elders, and others during the
engagement sessions. They uniformly expressed the position that, until
significant and substantive changes are made to the criminal justice system,
the issue of jury participation will not improve.
(i) Cultural Barriers
-
One of
the biggest challenges expressed by many First Nations leaders and people is
with respect to the conflict that exists between First Nations’ cultural
values, laws, and ideologies regarding traditional approaches to conflict
resolution, and the values and laws that underpin the Canadian justice system.
The objective of the traditional First Nations’ approach to justice is to
re-attain harmony, balance, and healing with respect to a particular offence,
rather than seeking retribution and punishment. First Nations observe the
Canadian justice system as devoid of any reflection of their core principles or
values, and view it as a foreign system that has been imposed upon them without
their consent.
-
Unfortunately,
the criminal justice system represents deep-rooted pain and oppression for many
First Nations peoples. The system is
perceived not only as a tool to subjugate traditional approaches to conflict
resolution in favour of assimilation into
the mainstream society, but also as a mechanism by which a myriad of historical wrongs have been perpetrated upon
First Nations. Today, First Nations peoples see themselves either as
spectators to or victims of the justice system, whereas historically they were
direct participants in the resolution of conflict within their own communities.
To be asked to participate in Canada’s justice system is seen by many First Nations people as contributing to their own
oppression and, therefore, repugnant. These sentiments are not
surprising, as many experts and authors have recognized the failure of the
justice system for First Nations. For example, the Royal Commission on Aboriginal
People observed:
The Canadian
criminal justice system has failed the Aboriginal peoples of Canada - First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural
- in all territorial and governmental jurisdictions. The principal reason for
this crushing failure is the fundamentally
different world views of Aboriginal and non-Aboriginal people with respect
to such elemental issues as the substantive
content of justice and the process of achieving justice.[247]
-
That being said, however, a number of the First Nations
people with whom I met expressed a willingness and desire to work towards a
reconciliatory model of justice that respects and incorporates First Nations
traditional values and laws as a matter of self-governance within Canada’s justice system. I will discuss this desire in more detail later in the Report.
-
Another
core traditional First Nations value that often prevents many First Nations
people from participating on juries for
criminal trials relates to the cultural teaching that a person is not to sit in
judgment of the actions of another or to direct a person’s actions.
Rather than judge an offence committed by an individual and determine his or
her fate, the traditional Aboriginal justice process was aimed at restoring the
offender and the victim to a place of harmony, peace, healing, and
reconciliation. Because criminal trials require the jury to make a finding of
guilt or innocence, which potentially affects a person’s future in a negative
way, many First Nations people feel unwilling to participate in that process.
It is noteworthy that many First Nations people expressed an interest in
participating in coroner’s inquests, viewing the role of the coroner’s jury,
which does not make findings of guilt and which recommends changes to a system
to prevent similar tragedies, as more aligned with their cultural
understandings and ideologies.
(ii) Systemic Discrimination
-
First
Nations people often spoke of the systemic discrimination that either they or
their families have experienced within the
justice system as it related to criminal justice or child welfare. Negative
experiences of the criminal justice system, along with historic
limitations on the rights of First Nations, have created negative perspectives and an intergenerational
mistrust of the criminal justice system. Such perceptions, by implication, extend to participation in the jury
process. First Nations people generally view the criminal justice system as working against them, rather than for
them. It seems counterintuitive to them to participate in it.
-
I
heard numerous tragic stories of First Nations individuals’ experiences with
the justice system at various levels, and what they clearly revealed were
pervasive systemic problems with the way in which justice is delivered, and is
seen to be delivered, to First Nations individuals. Many persons accused of crimes plead guilty to their offences, rather
than electing trial, in order to have their charge resolved quickly but
without appreciating the consequences of their decision. In fact, many First
Nations individuals explained that they have never known a friend or family
member who, when charged, proceeded to trial. Many of these accused persons
believe they will not receive a fair trial owing to racist attitudes prevalent
in the justice system, including those of
jury members. A question was raised about whether the so-called Gladue
reports were being properly prepared, or if they were even prepared at all for
First Nations offenders. Also mentioned was the fact that provincial court
judges attend remote First Nations communities only once every 60 to 90 days,
resulting in long delays. Lastly, remands were mentioned in the context that they are a common occurrence and many cannot
afford to travel to larger communities where the nearest Superior Court
of Justice is located.
-
I also heard about the need for court workers in the
communities to assist with the court process, and the absence of translation services
afforded to First Nations people who do not speak English, leading to
fundamental misunderstandings of the criminal justice process and,
consequently, a guilty plea or a conviction. More
disturbing were the anecdotes relayed to me regarding inhumane treatment
afforded to First Nations people in jail. For example, I was told of a
First Nations accused person being released from a Kenora jail without footwear
or socks in the winter months. I was also told about the general ill-treatment
and lack of dignity afforded to First
Nations people in jail by the guards, and the lack of support and adequate
probation services for offenders upon release from jail to facilitate
their integration back into the community, which often contributes to
re-offending.
-
Because
my review was not a formal witness hearing inquiry, I did not ascertain the
truth of these allegations. Quite frankly,
that is not relevant. Even if they are only perceptions, they are instructive,
because to First Nations people those perceptions inform their opinion
about the justice system and that is the relevant and important consideration.
-
According
to First Nations people with whom I spoke, there is a real fear that the
passage of the Safe Streets and Communities Act, recently enacted
legislation that among other things imposes mandatory minimum sentences, eliminates conditional sentences, and extends the
time before which applications for pardon can be made, will perpetuate
the systemic discrimination in the justice system and increase the rate of
incarcerated First Nations people, many of whom would not otherwise be
incarcerated, such as first time and
non-violent offenders.[248] Many First Nations people
believe this Act will reduce funding for crime prevention, police
enforcement, and victim and rehabilitation programs – all core justice-related
services that First Nations communities urgently need.
-
Justice
challenges in northern First Nations communities are distinct and more drastic
than appears to be the case in central and southern First Nations communities.
The First Nations people I met in northern communities described a systemic
lack of access to adequate legal services to defend charges, a deficiency that
not only compromises their legal rights but also compounds their aversion to
participate in the jury system. As mentioned above, the remote locations of First
Nations require duty counsel and judges to fly into communities in varying
frequency – typically every 60 to 90 days for one to two day periods – and
limit access to their legal counsel. These circumstances pose challenges that
compromise a First Nation accused’s ability to properly defend himself or
herself.
-
The
lack of adequate infrastructure available to house court proceedings poses
another challenge that compromises the delivery of justice in the North. It was
explained that First Nations individuals in certain regions must attend court
to address their charges in make-shift court rooms temporarily housed in arenas or dilapidated community halls. These
venues do not provide adequate space for private interview rooms, and
create an environment that lacks the decorum, respect, and formality ordinarily
required for a court of law. It is
understandable that First Nations people are reluctant to participate in the
justice system, and particularly on
juries, when their interactions with the system are anything but positive,
respectful, or fair.
-
Since at least 1999, the Supreme Court of Canada has
repeatedly recognized the urgency of measures required to address the crisis the
criminal justice system presents to First Nations peoples. In R. v. Gladue,
after recounting the numerous reports and studies on the Aboriginal justice
issues, the Court stated:
These findings
cry out for recognition of the magnitude and gravity of the problem, and for
responses to alleviate it. The figures are stark and reflect what may
fairly be termed a crisis in the Canadian
criminal justice system. The drastic overrepresentation of aboriginal
peoples within both the Canadian prison population and the criminal justice
system reveals a sad and pressing social problem.[249]
-
Most
recently, the Supreme Court had an opportunity to assess the impact of its
earlier decision in Gladue, and the hope for changes to the criminal
justice system that would address systemic issues affecting First Nations
peoples. This assessment was not positive:
This cautious
optimism has not been borne out. In fact, statistics indicate that the
overrepresentation and alienation of Aboriginal peoples in the criminal justice
system has only worsened. In the immediate
aftermath of Bill C-41, from 1996 to 2001, Aboriginal admissions to custody increased by 3 percent while
non-Aboriginal admissions declined by 22 percent… From 2001 to 2006, there was an overall decline in
prison admissions of 9 percent. During that same time period, Aboriginal
admissions to custody increased by 4 percent… As a result, the
overrepresentation of Aboriginal people in the criminal justice system is worse
than ever. Whereas Aboriginal persons made up 12 percent of all federal inmates
in 1999 when Gladue was decided, they accounted for 17 percent of
federal admissions in 2005… As Professor Rudin asks: “If Aboriginal
overrepresentation was a crisis in 1999, what term can be applied to the
situation today?”[250]
-
Despite
this grim backdrop, I engaged in a number of positive discussions with First Nations
leaders and community members regarding initiatives First Nations had taken to
assert leadership over various aspects of
the justice system in their respective communities. First Nations leaders in
various communities recalled a time
when the Province had funded a restorative justice program. As I understand it,
this program allowed First Nations to
develop a cultural approach to justice through the organization of justice
committees that began to integrate First Nations principles into the
delivery of justice. In particular, in Sandy Lake First Nation, I heard about
the consultative role of Elders in the sentencing of First Nations offenders,
originally developed through the restorative justice program. This practice has
been admirably accepted by the local judiciary, and has continued, with Elders
volunteering in the face of funding cuts to a program they deemed too important
to end. I was advised that Elder advisors were also used in the Attawapiskat
First Nation. These are the kind of steps that are helpful in moving towards
the integration of First Nations principles and values into the justice system.
(iii) Education
-
First
Nations people lack knowledge and awareness of the justice system generally,
and the jury system, in particular. It was understandably expressed that most
First Nations individuals will refrain from participating in a process about
which they know nothing. Many First Nations people were unaware that the same
jury roll was used to select juries for both trials and coroner’s inquests.
Therefore, most leaders identified the need for a focused and sustained
education strategy for First Nations communities with respect to the role of
juries in the justice system and the process by which jury rolls and jury
panels are created, as well as the rights of individuals accused of offences
and the rights of victims.
-
In
2010, the Ministry of the Attorney General, through the Court Services
Division, partnered with the Grand Council of Treaty #3 to deliver “Community
Jury Awareness Forums” to fifteen Treaty #3 First Nations located in the Kenora
Judicial District. The forums focused on providing outreach and education
regarding the jury process. The Grand Council of Treaty #3 expressed an
interest in continuing to deliver these information forums and to work with the
Ministry of the Attorney General to share information and develop jury lists to
address the underrepresentation of First Nations peoples on the jury roll.
-
A
similar partnership among the Ministry of the Attorney General, Court Services
Division and the Union of Ontario Indians was created in 2009 and 2010.
Together, they hosted three Jury Information Forums for the Anishinabek First
Nations, which addressed the lack of First Nations candidates on the jury
rolls, ways to improve relations, cooperation and trust between Anishinabek
First Nations and the Ministry of the
Attorney General and Court Services, and how to increase the representation of
First Nations peoples in the justice system generally. These Jury Forums
appear to have many educational benefits, and the First Nations partners
expressed an interest in enhancing and continuing with the Jury Forums.
-
It was
also mentioned by many people that government officials, Court Services staff,
and police officers who work with First Nations ought to be educated with
respect to the circumstances and issues that First Nations people face on a
daily basis. In addition to cultural awareness training, it was suggested that
all Court Services staff who are involved with ensuring First Nations peoples
are represented on the jury roll ought to be trained to undertake their duties
in the most effective way possible. It was thought that a better understanding
of First Nations peoples would lead to better outcomes all around.
-
Further,
education with respect to the justice system in general, and the jury system in
particular, needs to take into account the relative youth of the First Nations
population in Ontario. As of the 2006 Census, almost half of First Nations
people in Ontario were below the age of 24, and almost 30 percent were 14 or younger. In comparison, just 18 percent
of Ontarians were 14 or younger, and only approximately 32 percent of Ontarians were 24 or younger.[251] The median age for the First
Nations population in Ontario is 27.9 years, whereas the median age for
the province as a whole is 38.7 years.[252]
(iv) Self-Government
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First
Nations leaders resoundingly and assertively expressed the desire to assume
more control of community justice matters as an element of their inherent right
to self-government, and, at the very least, to be involved in developing solutions to the jury representation issue.
Having been introduced to community-based
restorative justice initiatives in previous years, First Nations experienced
the benefits to their communities that came from the development of a
culturally appropriate approach to justice. However, these programs were
discontinued owing to funding cuts, and therefore will require financial
resources and capacity to be resumed. First Nations leaders were unequivocal
that re-introducing restorative justice programs would have multiple benefits
at the community level. Such benefits include the delivery of justice in a
culturally relevant manner, greater understanding of justice at the community
level, increased community involvement in the implementation of justice and,
finally, an opportunity to educate people about the justice system and their
responsibility to become engaged on the juries when called upon to do so.
(v) Policing
-
The
issue of local police services arose in many discussions throughout the
engagement process. It became very clear that inadequate police services, and
associated funding, contribute to negative perceptions of the criminal justice
system. Many First Nations were very concerned about the limited and
under-resourced police services and the lack
of sufficient training for them. Some First Nations leaders expressed
frustration regarding the lack of enforcement of First Nation by-laws.
(b) Current practices for collection of names and contact
information of First Nations people on reserve are inadequate
-
The
majority of First Nations Chiefs and Councillors I spoke to throughout the
engagement process were concerned about
preserving the confidentiality of band membership lists. The leaders’
prevailing concern relates to their obligation to protect the privacy of
their citizens. Many took the position that they were obliged to obtain the
consent of their citizens before they could disclose personal information such
as names, dates of birth, and addresses. Moreover, many Chiefs felt strongly
that education about the jury system was a pre-requisite to the disclosure of
names. They also felt it was unfair to subject their people to what they regard
as a completely foreign process.
-
Chiefs
also expressed confusion relating to the position taken by Aboriginal Affairs
and Northern Development Canada (AANDC) (formerly Indian and Northern Affairs
Canada (INAC)) regarding the disclosure of membership lists. At one point in
time, INAC was advising First Nations governments to refrain from disclosing
any information taken from the Indian Registry System. Recently, AANDC appears to have changed its position, choosing instead to
leave the decision to disclose Band Lists to the discretion of
individual First Nations.
-
Some
First Nations leaders indicated that the lists sought by Court Services
officials would not provide the information they were seeking. The band
membership lists that are typically requested by Court Services contain the
names of all citizens of that First Nation, regardless of whether they live on or
off the reserve. Typically, there is no indication of the location of residency
for each member. In some instances, the Court Services Division has requested
disclosure of the First Nation’s “Electoral” or “Voters” list. I was advised
that electoral lists also do not contain the addresses of First Nations
citizens. Therefore, there is no list possessed by First Nations that contains
the information required by the Court Services Division for the purposes of the
jury roll. Specifically, we did not learn of a First Nation possessing a
“Residency” list that contains the names and addresses of First Nation citizens
resident on the reserve.
-
While
a residency list would be ideal for the purposes of the Ontario jury roll, it
may not be practical. First Nations have stated that they would have to devote
time and resources to assemble such a list. They would require financial capacity to gather and maintain appropriate,
accurate and current records, including addresses of all their citizens.
Some First Nations I met expressed a willingness to do this if they received
funding to do so.
-
Many
other First Nations leaders and individuals suggested that the participation of
First Nations peoples on juries should be voluntary, particularly considering
the social and economic pressures already on their communities. They expressed
the view that First Nations’ administrators are best positioned to explore the
interest and eligibility of citizens, and accordingly, could be tasked with
maintaining a First Nations jury list. They
were of the opinion that First Nations would support an option whereby they
would enter into an agreement with Ontario to train First Nations
administrators to create and maintain lists of names of willing First Nations
people for the purposes of the jury roll. From this First Nations jury roll, it
was suggested that the Provincial Jury Centre could then randomly draw the
names required for the distribution of questionnaires. It was thought that such
an approach would be appropriate to address
the representation of First Nations’
reserve residents on the jury roll. In addition, I received a very practical suggestion
that a First Nations person be staffed in each judicial district to work with
First Nations to obtain the information required for the purposes of the jury
roll.
-
It has
become obvious that the process to obtain the names and addresses of First
Nations people on reserve must be clear and
consistent throughout all judicial districts wherein First Nations communities
are situated. As suggested by a participant in the engagement process, clear
guidelines in this respect should be provided to all parties charged with the
implementation of section 6(8) of the Juries Act.
(c) Jury questionnaires pose problems and concerns
that deter First Nations responses
-
Many
First Nations Chiefs, Councillors, and others raised issues regarding the
substance of the jury questionnaire forms. First, the statement of penalty for
non-response on the form provides “[i]f you fail to return the form without
reasonable excuse within five (5) days of receiving it, or knowingly give false
information on the form, you are committing an offence. If convicted of this
offence, you may be fined up to $5000.00, or imprisoned up to six (6) months,
or both.” First Nations view both the penalty for non-response and the time
limit for response as unreasonable, and more importantly, as imposing jury duty through intimidation and threat. It was often
expressed that soliciting participation in the jury system by threat of
fine and/or imprisonment had the reverse effect and was a strong disincentive
to participate. Moreover, we are unaware of
any case where an individual was fined or imprisoned or even charged
with an offence for failing to respond to a jury questionnaire.
-
The second feature of the jury questionnaire to which
First Nations people took considerable exception was the question regarding Canadian
citizenship. While it is recognized that being a Canadian citizen is an eligibility
requirement to serve as a juror, many First Nations believe very strongly, and
are proud of the fact that, they are First Nations citizens. As a result, many
First Nations persons who respond to the jury questionnaire
answer in the negative, or would answer in the negative, to the Canadian
citizenship question. This citizenship issue automatically disqualifies
them from having their names entered on the jury roll. It was frequently
suggested that if there were an alternative question asking if the respondent
was a First Nation citizen or member, they would answer in the affirmative, and
therefore not be disqualified from jury service.
-
Third,
many First Nations leaders stated that Chiefs and Councillors ought to be
included on the list of occupations that are exempted from jury service. It was
stated that elected officials do not have the time or ability to be away from
their communities and ought to be afforded the same exemption as other elected
officials throughout Canada.
-
Fourth,
I heard repeatedly that language poses a considerable obstacle. Requiring
fluency in English or French as an eligibility requirement for jury service is
problematic for many whose spoken language is their First Nation language. I
spoke with many First Nations people who stated that if Ontario seeks their
participation on juries, it ought to accommodate people who speak First Nations
languages by equipping juries with translation services, if necessary.
Moreover, the lack of translation of jury questionnaires and accompanying instructions pose challenges to First
Nations people in completing the jury questionnaire forms.
-
Lastly,
many First Nations participants in the engagement process expressed a lack of
understanding of the jury selection process and role of juries, which in turn
served as a barrier to responding to jury questionnaires. It was noted that
confusion and misunderstandings often arise when a person is called for jury
selection but not chosen for jury service, with no follow-up communication from
the Court Services Division. It is likely
that negative messages are passed to other people in the community, which
potentially has an adverse impact on their future interest in responding
to jury questionnaires.
(d) Practical barriers to jury participation
-
In
addition to all of the aforementioned obstacles, there exist some very real
logistical barriers that First Nations peoples, particularly in northwestern Ontario, must overcome to participate on juries. Transportation from reserve communities to
the urban centres is a significant challenge in a number of ways. Travel to
urban centres often requires multiple modes of transportation that can take up
to several days. The cost for airfare far exceeds what people can afford
out-of-pocket. While the Court Services Division
in the Kenora judicial district pre-arranges travel, accommodation and meal
allowances for potential First
Nations jurors, my understanding is that this service is not consistently
offered in other judicial districts. First Nations leaders expressed the
opinion that all expenses related to the jury selection process or jury service must therefore be paid prior to travel to
urban centres because of lack of resources and available credit.
-
First
Nations people also noted that accommodations
and meal allowances are not adequate. It was reported that hotels were
substandard and meal stipends did not allow for healthy meal options. Concerns
were also raised with respect to lack of translation services for people who
travel to the urban centre where their dominant language is a First Nation
language. Because the jury selection process and jury services require First
Nations people to be away from their communities for several days, it was noted
that childcare and Elder care expenses ought to be included as a necessary expense,
or preferably, children and Elders ought to accompany the potential juror on an
expense-paid basis. Moreover, for those
potential jurors who are employed, First Nations people felt strongly that
income supplements should be available. The First Nations people, with
whom I spoke who had experienced jury service, expressed the need for
community-based supports, such as assistance with process logistics, as well as
services for psychological impacts that may arise following jury service.
-
Finally,
First Nations people identified that the existence of criminal records, and
lack of awareness of pardon procedures, present a significant bar to jury
service. They explained that some First Nations people have old criminal
records, many for minor offences, that excuse them from being eligible for jury
service. However, owing to the lack of information and costs associated with
pardon procedures, most do not expunge their criminal record, choosing to live
with it instead.
(e) Coroner’s Inquests
-
The
importance of coroner’s inquests was emphasized by the families involved in
coroner’s inquests and by leaders and other people I met. Many First Nations
people are dying while in state care, and a fear was expressed that the number
of deaths will rise, simply by the excessive number of First Nations people in
penal institutions and the child welfare system. It was explained to me that
First Nations people understand, better than non-First Nations people, the
systemic and historic issues that are engrained in the justice system, which
often come into play in these tragedies. Therefore, ensuring the representation
of First Nations peoples on coroner’s juries is viewed to be integral to the
proper resolution and prevention of future tragedies that involve First Nations
peoples.
-
Aboriginal
Legal Services of Toronto hosted a Families Forum – a gathering of family
members who had been or were involved in coroner’s inquests to examine the
circumstances of a death while in state care. The main concerns expressed by
the participants related to the composition of the juries and their lack of representativeness of any First Nations
peoples, and the delays associated with the inquest. Families have been
waiting for as many as five years to move forward with the inquests.
Admittedly, much of this delay is associated
with the lack of resolution of the issue of underrepresentation of First
Nations peoples on coroner’s juries.
While this issue is being addressed in the courts, coroner’s inquests are
placed into abeyance, and the families are prevented from obtaining
answers and the necessary closure in a timely manner.
-
Christa
Big Canoe, Legal Advocacy Director at ALST, emphatically expressed this point:
“The only thing these people ask for is fairness, not special treatment”. That
should be an attainable goal for everyone involved.
(f) Relationship between the Ministry of the
Attorney General
and First Nations with respect to the jury roll needs to be improved
-
Every
First Nation individual I met unequivocally asserted that the way forward with
respect to enhancing a relationship with the Ministry of the Attorney General
in the context of the jury system, and all justice matters, is through a
government-to-government process. First Nations want to assume greater control
of the justice system as it applies to their people and communities and rely
upon their traditional approaches to justice as the preferred approach. First
Nations recall the restorative justice programs that were initiated in a previous era and look to build upon those as a means
to reclaim authority and responsibility over the delivery of justice to
their people. They strongly believe that diverting First Nations people from the criminal justice system to a traditional
system of healing and reconciliation will have many benefits that will
ultimately trickle down to the jury roll process. Therefore, First Nations
advocate for adequate funding to support community-based justice initiatives
aimed at enhancing participation on juries in a culturally appropriate manner,
and to return to the implementation of First Nations restorative justice
initiatives.
-
First
Nations view Ontario and Canada’s investment in First Nations restorative
justice programs as also benefitting the criminal justice system. Consistent
with a restorative justice approach, First Nations people expressed the need for collaboration between the Ministry of the
Attorney General and First Nations in developing a proper jury roll
selection process. A family member who attended the Families Forum, discussed above, suggested a pragmatic step in
this direction; the Attorney General should host a meeting with First Nations leadership to consider ways to
implement section 6(8) of the Juries Act. Such a meeting would
signal a positive step towards improving the relationship between the Attorney
General and First Nations, particularly with respect to the jury system. On a
broader level, it was also suggested that the Attorney
General create a “Round Table” on Aboriginal People and Justice to design,
develop, and implement an Aboriginal Justice system.
-
It became abundantly clear throughout the engagement
process that education and awareness among First Nations people in relation to
the jury system for both trials and coroner’s inquests is a priority and would
serve to improve the relationship. Increased education about the process for
pardons and access to support services for First Nations are required.
Likewise, First Nations are insistent that increased education, including
cultural sensitivity training, is also required for Court Services and policing
officials regarding First Nations culture, values, and traditions.
-
In the
words of former Chief Jonathan Solomon Sr. of Kashechewan, “it is up to the
Attorney General of Ontario to close the ‘Knowing and Doing Gap’”.
2. Meetings with Government Officials and the
Judiciary
-
During
the engagement process for the Independent Review, my legal team and I also met
and spoke with officials from the Ministry of the Attorney General, Court
Services Division, the Provincial Jury Centre, Ministry of Health and Long-Term
Care, the Provincial Advocate for Children and Youth, and members of the
judiciary who were involved in increasing the representation of First Nations
peoples on the jury roll. We obtained helpful information regarding the role of
the key actors in compiling the jury roll. We also heard a consensus view among
government officials that improvements are necessary to substantially increase
the participation of First Nations reserve residents on the jury roll.
-
Most
of the information I learned from government officials and members of the
judiciary about the compilation of the jury roll in Ontario and efforts to
improve the representation of First Nations persons on the jury roll has
already been described by me in Part III under the sections entitled the “Jury
Selection Process as it Currently Operates in Ontario” and “First Nations
Representation on Ontario Juries”, and I will not repeat those descriptions
here.
-
As
discussed in those sections, at present, the manner in which potential First
Nations jurors are identified is ad hoc and contingent upon the efforts made by
court staff to connect with First Nations, and
ultimately the decisions of First Nations to exercise their discretion to
disclose a list of reserve residents. This
ad hoc system has proven to be ineffective and results in a jury roll that is
unrepresentative of all First Nations
peoples on reserve. Accordingly, obtaining the names of First Nations residents
on reserve in each judicial district
in accordance with section 6(8) of the Juries Act in a consistent,
reliable, and uniform manner is a core problem. Equally, if not even
more important to achieving a representative jury roll is identifying effective
ways to encourage the participation of First Nations peoples in the jury system
once adequate lists or records are obtained that provide a reliable data source
for First Nations reserve residents.
-
As I
described above, until 2001, the Provincial Jury Centre obtained Band Lists
from the Department of Indian Affairs and Northern Development through the
Indian Registry System. It is the position of the federal Department that its
decision to refrain from further disclosure of Band Lists following 2000 came
at the request of First Nations, coupled with a review of the information-sharing
agreement between Ontario and the Department of Indian Affairs and Northern
Development with regard to the application of the new Privacy Act.[253]
In 2007 and 2009, the Federal Department was advising First Nations against
disclosing information from the Indian Registry System to third parties.[254]
However, it is the Department’s current position that each First Nation may
exercise its discretion to disclose their Band Lists to Ontario for the
purposes of the jury roll.[255]
-
I
understand that the Court Services Division has considered, but not seriously
pursued, the option of obtaining names of First Nations persons living on
reserve from the Ministry of Health and Long-Term Care. Officials of the
Ministry of the Attorney General with whom we spoke expressed the view that
using the Ontario Health Insurance Plan (OHIP) database is not an ideal option
for the collection of names of First Nations people on reserve for a number of
reasons. First, gaining access to the OHIP database will require legislative and
regulatory change and trigger a First Nations consultation process and, hence,
be a lengthy pursuit. Second, the database does not contain a First Nations
identifier and therefore may not be overly helpful in identifying persons
living on reserve. Third, the reliability of the OHIP data base is somewhat
compromised by the existence of a relatively large number of fraudulent cards.
-
However,
our discussions with officials within the Ministry of Health and Long-Term Care
suggested that the OHIP database could possibly be an important additional data
source of names for the jury roll. While it was acknowledged that there is no
First Nations indicator in the database, searches could yield success using the
proper search criteria, such as postal codes and date range. Because the new
OHIP cards must be renewed, cardholders are
generally required to keep their cards and information current in order
to access health services. However, it was acknowledged that the proper
analysis and data polling must be undertaken to test the adequacy of the search
results. With respect to disclosure of information for the purposes of the jury
roll, the official with whom we spoke cautioned that the Ministry would also
have to explore its legal obligations in this regard. In any event, the OHIP
database, coupled potentially with information-sharing agreements or memorandum
of understanding, is an avenue worthy of further exploration.
-
As
described above, court officials in the Kenora District, and more recently Thunder Bay, have undertaken various efforts to reach out to First Nations to obtain
residence information and have undertaken
programs to educate and inform First Nations communities about the jury system.
A recent example, as mentioned earlier, is the initiative of the Ministry
of the Attorney General, Court Services Division in the Kenora Judicial
District, the Grand Council of Treaty #3, and the Union of Ontario Indians to
deliver Jury Information Forums in a total of 15 First Nations communities in
2010 and 2011. The reports that resulted from
these Jury Forums contain useful recommendations for improvements. At the Red
Rock First Nation, a community person was trained and hired to undertake
a door-to-door campaign to educate people on the
jury process. Beginning in 2008, jury questionnaires were produced in syllabics
for First Nations people fluent only in their indigenous language. In addition,
a First Nations court translator and liaison person was hired in the
Kenora office to provide assistance to Court Services in its outreach efforts.
It is precisely these types of initiatives, among others undertaken, that are
critical to provide regular and on-going education, information, and
encouragement to First Nations people on reserve with respect to jury service
in the effort to create the annual jury roll.
-
I was
also very interested to learn of the project undertaken in Thunder Bay to
construct a new Court House with an
Aboriginal Hearing Room that will be a symbolic and respectful centerpiece of
the new Court House. I understand that the process to conceptualize,
develop, and construct the Aboriginal Hearing room
has involved First Nations people and Elders from the outset and that every
First Nations protocol was honoured and followed. This is an important
initiative that I would hope will provide a culturally appropriate space for
First Nations people to participate in Ontario’s justice system, and will go
some way toward beginning to ameliorate some of the problems described above.
-
It was
acknowledged by all with whom we met that the key to addressing the issue of
representation of First Nations peoples on juries is significant collaboration
and communication between First Nations leadership
and the Ministry of the Attorney General. It was stressed that solutions must
be sufficiently flexible to
accommodate regional circumstances and distinctions, while providing certainty
of process. For example, some
suggested that alternatives to jury selection process should be explored, such
as a video conferencing for jury
selection. It was also proposed that consideration be given to trials conducted
by the Superior Court of Justice in select First Nations communities,
similar to the Provincial Courts. Finally, it was suggested that Superior Court judges could be provided with
discretion to require a minimum quantum of First Nations jurors for
criminal trials.
C. Submissions
1. NAN submissions
-
NAN and its legal team were
key participants in the community engagement process carried out as part of the
Independent Review. Following the community dialogue sessions, NAN prepared submissions for my consideration, which are divided into six parts.
-
Part I
is an introduction of NAN as a political organization and its role in the
Independent Review, as previously described in this Report. In its general
overview of the problem of the underrepresentation of First Nations peoples in Ontario’s jury system, NAN quite rightly states
that the issue “is but one symptom of a larger problem of alienation and
exclusion of First Nations people within the justice system”.[256]
Addressing criminal justice in Northern Ontario has been a priority for NAN.
-
In Northern Ontario there are four judicial districts for
which jury rolls are prepared: Kenora, Thunder Bay, Timmins, and Cochrane. Various First
Nations associated with NAN are situated in each of these districts. NAN explains that of the 46 First Nations
situated in the Kenora judicial district, 30 of them fall under NAN’s organizational umbrella. Of these, I visited with the leadership and citizens
of seven First Nations. In the Thunder Bay judicial district, four of the 15
First Nations are part of NAN. I also visited with First Nations in the Timmins and Cochrane judicial districts for a total of 10 First Nations associated with NAN.
-
Part II of NAN’s submissions describe the recent
litigation in Ontario regarding the underrepresentation of First Nations peoples on the
jury roll in Ontario. I have previously addressed these cases in Part II and
Part III of this Report.
-
Part
III of NAN’s Submissions advocates for a “Charter-based approach to jury
representativeness”. The crux of NAN’s proposal is that the approach to comply
with section 6(8) of the Juries Act ought to focus on obtaining the
proper number of First Nations peoples on the jury roll, rather than on ensuring
court officials make “reasonable efforts”, exercise due diligence, or possess
good intentions to include on-reserve First
Nations peoples on the jury roll. NAN submits that the results-based approach
will require the Attorney General to
address the broader systemic issues affecting First Nations peoples and the
justice system, which are inextricably linked to the low response rate
to jury questionnaires and ultimately the lack of representativeness of the
jury roll. Moreover, such an approach in NAN’s view will also foster the
development of a respectful relationship between First Nations and the Attorney
General.
-
NAN submits that First
Nations’ historic experiences with the Government’s actions grounded in “good
intentions” have resulted in catastrophic legal and policy developments that
have contributed to the disadvantages faced by First Nations people. Therefore,
the government’s “good intentions” should be avoided in addressing the
underrepresentation of First Nations peoples on Ontario juries. For example,
they refer to the Indian Residential Schools policy, and early provisions of
the Indian Act, which prohibited Indians from leaving reserves without
the permission of the Indian Agent, prohibited Indians from hiring lawyers, and
banished sacred ceremonies.
-
Part
IV of NAN’s submissions focuses on the practical and cultural barriers to
participation on juries faced by First Nations peoples. NAN outlines eight
barriers to the representation of First Nations peoples on Ontario juries,
which are substantively similar to what we heard in the engagement sessions and
are essentially aligned with what I have discussed in the previous section.
Rather than being repetitive, I will provide a brief overview of the
perspectives on these matters from NAN and the various people we met.
-
Cultural
barriers.
This first obstacle emerges from the conflict between First Nations’ cultural
values, traditional laws, and norms, and the
Euro-Canadian principles and values that underlie the Canadian justice system. First Nations’ cultural values and
teachings prevent people who live by those values and teachings from judging the conduct and behavior of others,
thereby instilling a strong sense of reticence to participate in juries
for criminal trials. NAN quotes Chief Adam Fiddler from the Sandy Lake First
Nation:
One of the reasons our people don’t want to be on the jury, it goes
against our values. It also goes against the Bible. There are teachings from the Bible that we
cannot judge others. Also it’s part of our traditional values. We cannot judge
somebody. We have our own traditional ways of dealing with issues… You cannot
tell someone what to do, and you cannot judge them. To judge them is wrong. The
idea of sitting on the jury and judge whether what they did is acceptable or
not is wrong. There is a fear of that. That is one aspect of it… On the one
hand, we are arguing to be part of the jury, but our fundamental belief system
is that we don’t want to be part of it. We struggle with it.[257]
-
However, it was observed that given the non-retributive
nature of coroner’s inquests and the potential effect of the juries’
recommendations to change policies, First Nations people would not encounter
the same cultural contradiction. Joe Meekis from the Keewaywin First Nation
articulated succinctly:
Coroners
inquests are very important for us. We need to take part in those sessions.
We have heard people talk about those cases. These cases affect our communities
deeply; our kids who die in that river. I cannot express how important it is.
We have
to be included in those juries. That is very important.[258]
-
NAN representatives observed
that significant changes to the justice system and its relationship with First Nations could have a correlative impact on
First Nations’ views regarding participation on juries.
-
Justice
system is an alien system. First Nations people do not view the Canadian justice system
as a positive presence in their lives. They view it as a foreign system of
imposition that has subjugated traditional and more peaceful and culturally
driven approaches to resolving conflict. First Nations view themselves as
objects of the criminal justice system rather
than meaningful partners and participants in it. Chief Eno Anderson of Kassibonika Lake First Nation was eloquent
in his vision for a justice system that reflects First Nations’ cultural norms:
Until they
incorporate our principles, our understanding, our values, we won’t accept it…
It will feel foreign. Like a stranger coming into our community. Until we have
a structure that we are part of. If we are part of it, we will support it… We
want a justice system that can resolve problems, not a justice system that
takes away our people.[259]
-
Mistrust
of police/authorities. Consistently negative experiences encountered by First
Nations people with respect to the police
and other authorities compound their negative perceptions of the criminal
justice system. This experience has a direct correlation to the lack of
interest in participating in the jury system, as described by Chief Roger
Wesley of Constance Lake First Nation:
That’s what has
to change – we have to have a fair opportunity. Fair. Fair justice would be
something new to this province, because it doesn’t exist for First Nations
people… Take note, the system is fundamentally flawed for these people. As a
leader of this community, it’s tough to see young men and women being put
through the process and never feeling like they had a chance.[260]
-
The level of mistrust is exacerbated by the directive
language used in the jury forms, which is perceived as a threat of jail or fines for
failure to respond to a jury questionnaire. Joe Meekis of the Keewaywin First
Nation summed up a constant theme of the engagement sessions: “[w]hy stretch
out your hand if you are going to hit the guy? Not a good way to ask for help.”[261]
-
“Conveyor
belt” for guilty pleas. First Nations participants from community to community
repeatedly identified numerous systemic and serious problems with the way in
which justice is delivered in Northern Ontario, which more often than not
result in guilty pleas, as described in Part IV, Section A of this Report. One
citizen from Mattagami First Nation stated, “[n]ot once has [friends or family]
made it to trial. They always plead guilty. Guilty, Guilty, Guilty.”[262]
-
There
is a real perception that the justice system simply does not care about First
Nations peoples and the reciprocal effect is that First Nations people refuse
to participate in any aspect of the justice system. Chief Connie Gray MacKay of
the Mishkeegogamang First Nation provided a powerful, yet disturbing, depiction
of a typical day in court in Pickle Lake:
Any client who
wants to talk to their lawyer, it happens in the kitchen. The judge changes in
the library. The lawyers don’t have a room they can interview people in, if the
kitchen is full and the bar is full, so there is no privacy, no
confidentiality. There is a makeshift wall inside the courtroom, so you can
have a meeting there, or you are meeting alongside of the walls. It’s a whole
shaming process, there is no privacy for anyone… Something has
to change, it’s no longer acceptable.[263]
-
These experiences undermine respect for the judicial
process and are counterproductive to enhancing jury participation.
-
Practical obstacles to jury participation in remote
communities. The geographical and socio-economic realities of First
Nations in the North give rise to significant challenges to jury participation.
As discussed in Part IV, Section B of this Report, NAN maintains that these
logistical and funding matters must be addressed to encourage First Nations
people to participate on juries.
-
Lack
of education concerning the jury system. Many participants in the engagement
sessions were profoundly unfamiliar with the justice system in general, and the
jury system in particular. Based on the accounts from First Nations people, it
was equally clear that the justice system and its actors require substantial
education about First Nations peoples. Following our meeting, the Kassabonika
Lake First Nation provided written submissions that summarized this issue
succinctly:
People are
reluctant to serve [on juries] when they do not understand or trust the system…
Just as there is a need for the justice system to be better informed and
educated, there is a need for community
education and awareness about the justice system. Elements such as the
role and relationships of jurors need to be taught and understood. Information should be translated into the aboriginal language
of the community; including jury notices.[264]
-
Criminal
records disqualify many First Nations people from participating in juries. First Nations peoples’
prior convictions represent a substantial barrier to the participation on
Ontario juries; a barrier which will only increase with recent amendments to
the Criminal Code that make it more difficult to obtain pardons to
absolve a person’s criminal record.
-
Lack
of respect for First Nations leadership. The manner in which some court
officials attempt to obtain band or electoral lists from First Nations is
perceived as inappropriate and lacking a respectful protocol that is owed to
elected First Nations leadership. An anecdote was provided of a situation in
which a court official sought to obtain names from an administrative assistant
after a Chief refused to disclose a list. Most, if not all, of the First
Nations leaders spoke of their duty to respect and protect the privacy rights
of the people they represent.
-
Part V
of NAN’s Systemic Submissions address the role of the Nishnawbe Aski Legal
Services Corporation (NALSC) in the delivery of justice in Northern Ontario.
NALSC was created in 1990 as a result of collaboration between NAN and Legal Aid Ontario to address justice issues in the
North. It delivers the Legal Aid Plan in Treaty 9 and Treaty 5 territories, provides public legal education, and
carries out law reform initiatives, such as restorative justice
programs, in the areas of criminal and child welfare law. Its programs are
funded by an array of public funders.
-
NAN
acknowledges serious limitations associated with NALSC’s program delivery, in
that it is unable to offer the full scope of services to all NAN communities
owing to funding constraints. NAN proposes that if the restorative justice
programs were properly resourced, NALSC would be better positioned to meet its
objective of diverting a majority of criminal matters to restorative justice,
enabling First Nations to move towards a
culturally specific justice model. NAN also proposes that adequate funding be
provided for NALSC’s public education mandate to help First Nations
people in NAN communities understand the justice system and the role of juries
therein, and to provide the support necessary to assist potential First Nation
jurors in their participation.
-
In
Part VI of its Systemic Submissions, NAN sets out broad areas on which, in its
view, the Report of the Independent Review ought to focus its recommendations.
-
Implementation:
combating skepticism of the review process. NAN proposes that the Report recommend
the creation of an implementation process that identifies the institution or
department that would carry the responsibility for implementing a particular
recommendation, with measureable benchmarks within a reasonable time frame. As
well, NAN proposes that a reporting mechanism be included in the
recommendations to update First Nations, the public, and the courts.
-
Ownership:
enhancement of restorative justice programs. NAN states that the way forward to
reconcile competing worldviews regarding justice is to foster long-term
participation of First Nations peoples in, and ownership of, the justice
system. NAN proposes that this reconciliation can be achieved by creating
partnerships within First Nations on self-governance and justice, and making
necessary room for legal plurality and the
existence of dual justice systems. The existing approach in Sandy Lake First
Nation and Attiwapiskat First Nation
of enabling Elders to sit with the provincial court judge has proved
beneficial, despite the withdrawal of funding to support this activity.
-
Reparations: improvements to the justice system. NAN
proposes that the government make significant investments
to improve the operation of the justice system in northwest Ontario.
Discussions with First Nations have
exposed a system that fails at its most rudimentary level and has lost the
confidence, trust and respect of First Nations people generally. NAN argues that unless the overall justice system is addressed, there is no prospect for
redressing the under-representation of First Nations peoples on juries.
Therefore, it urges the Independent Review
to highlight the most pressing issues and propose recommendations for a process
to address the basic failings of the system. NAN outlines some of these key
needs:
-
increased frequency of court sittings, and, in
consultation with First Nations leadership, explore the feasibility of holding
jury trials in remote communities;
-
appropriate infrastructure for court hearings;
-
adequate legal representation and a review of
the Legal Aid system in the North;
-
properly trained language interpreters; and
-
adequate funding for the accused and their
witnesses to properly access the justice system.
-
Relationships:
the creation of provincial-level infrastructure to manage the inclusion of
First Nations people on the jury roll. NAN proposes the development of infrastructure
to manage a comprehensive province-wide process to include on-reserve First
Nations residents on the jury roll. Such an approach will promote the
implementation of section 6(8) of the Juries Act in a systematic and consistent
manner throughout Ontario. NAN proposes that the elements of this process
should include:
-
affixing accountability for the implementation
of section 6(8) with the Assistant Deputy Minister of the Attorney General,
rather than local court officials, to ensure the appropriate expertise is used,
adequate resources are committed and reporting is mandated;
-
developing solutions through partnerships
created that respect a government-to-government relationship; and
-
collecting, analyzing, and monitoring the
statistics of jury questionnaires and implementing
remedial measures, as necessary.
-
Involvement:
First Nations participations in juror enumeration. NAN recommends that First Nations
governments be given the opportunity to become directly involved in juror
enumeration. NAN argues that this approach
would enhance the eligible return rate of questionnaires sent to First Nations
and, therefore, actual representation of First Nations peoples on the
jury roll. The solution to enhancing actual representation does not lie in
increasing the number of jury questionnaires sent to First Nations people, but
rather in outreach and self-selection of those individuals who have the
ability, willingness, and capacity to serve as jurors. NAN argues that as long
as a sufficient number of suitable candidates are enumerated, the fundamental principle of randomness would not be offended. NAN states that the subsequent safeguards of the out-of-court and in-court jury
selection process would preempt any legal challenges of impartiality of the
jury. Finally, NAN submits that any approach to enumeration should respect
principles of autonomy; involving First Nations in an enumeration process must
be consensual and participation of individual jurors should be voluntary
-
Support: ensuring the participation of First Nations
peoples on juries. During the engagement process, meeting First Nations
people who served on a jury was not common. However, there were a number of
individuals who received jury questionnaires. Of these people, most expressed
confusion, concerns respecting the content of the forms, and fear regarding
penalties for not responding. As a result of this feedback, NAN proposes five
measures that are aimed at providing the necessary support to garner
participation of First Nations peoples on juries.
-
Public legal education should be carried out for
First Nations people regarding the jury system and the role of jurors. It should be developed in consultation with
First Nations governments and organizations. Likewise, an education
initiative is required for officials of the Court Services Division regarding
First Nations peoples and cultural and political protocols to reduce alienating
interactions.
-
Contact policies
and practices should be renewed to transform the manner in which court
officials initiate contact with First Nations with a
view to soliciting voluntary participation, rather than coerced participation.
Additional support resources in the form of a contact person within the Court
Services Division would assist in clarifying questions regarding the process.
-
Travel and income supports ought to be enhanced
to alleviate the hardship of traveling. Such supports could take the form of
increased financial resources or implementing video conferencing
or other similar technology to reduce travel
for the jury selection process. Where travel is required, a designated
person from the local Court Services Division office should make all the
necessary arrangements for travel. Enhanced income supports are required for
matters such as childcare and Elder care responsibilities.
-
Interpretation services for First Nations jurors
would enhance the potential for participation. NAN also suggests amending the Juries Act to include a First Nations
language as a qualifying criterion to jury eligibility, which would be
aligned with the official languages recognized by the Official Languages Act.
-
Exclusions based on criminal record could be
addressed through an amendment to the Juries Act that aligns prohibited
criminal offences with specific offences contained in the Criminal Code.
2. Union of Ontario Indians submissions
-
The
Union of the Ontario Indians is an advocate for 39 Anishinabek First Nations in
Ontario with an approximate population of 55,000 First Nations persons. The Union was incorporated by the Anishinabek Nation in 1949 and is comprised of four regional
areas represented by respective Regional Chiefs.
-
We received three main groups of submissions from the Union. First, the Union provided a comprehensive set of submissions following the engagement process
addressing nine areas that require improvements and advance recommendations in this regard. Second, the Union provided
us with its report entitled “Juries are a Circle of Justice”,[265]
which it prepared following the Jury Information Forums conducted in 2009, which I described above at paragraph 226 of the
Report. Third, the Union commissioned three independent papers that
address the issue of the representation of First Nations peoples on Ontario juries. I briefly discuss each of these submissions below.
(a) Submissions Following Engagement Process
-
The Union in its submissions identifies three prevailing messages that arose from the
engagement process. First, Anishinabek First Nations are generally apathetic
about becoming involved in the jury system because it is a part of a larger
justice system that is perceived as foreign, unfair, and devoid of Anishinabek
values and interests. Second, Anishinabek First Nations prefer to develop and
implement their own justice-related institutions as a means to reduce the
number of people in jail, which will in turn increase confidence in the justice
system. Examples of these institutions include the police, diversion and
restorative justice programs, court workers, and courts. Third, in order to
encourage the participation of First Nations
peoples on juries, Ontario should take steps to improve the justice system,
including increasing cultural competency in the courts and providing
more public education to First Nations communities on the role of juries and
the associated processes.
-
First Nations justice projects. The Union reports that its First Nations members view the development of community justice projects as a
partnership between First Nations and the justice system. In addition to
diverting First Nations individuals from penal institutions and promoting
healing and recovery, these projects have a positive impact on First Nations
because they enable them to rebuild jurisdiction over their own affairs. On the
broader scale, community justice projects reduce fear, confusion, and distaste that
First Nations currently have for the justice system. Therefore, this
recommendation has twin benefits of improving the relationship of First Nations
and the justice system, while empowering the communities to address justice
issues that affect them.
-
The
Union recommends that Ontario provide additional funding and support for
community justice programs and related work.[266]
-
Policing.
The Union reports that First Nations police programs positively contribute to First Nations’
relationship with law enforcement. However, currently First Nations policing is
a discretionary program, not secured by enabling legislation, so its existence
and funding are vulnerable to elimination. The Union recommends that Ontario and Canada work collaboratively to develop First Nations Policing legislation, or
preferably, fund First Nations to develop their own policing laws.
-
The Union submits that certain tangible measures should be taken to improve First Nations
police services and enhance public confidence in their delivery. First, it
suggests that a regulatory body be established
to oversee the operation of First Nations law enforcement programs. Second,
because there is currently no
mechanism to review inappropriate conduct, the Union proposes the creation of
an independent review board to
adjudicate complaints. The Union suggests that the Office of the Independent
Police Review Director could be involved in this initiative. Finally, it
recommends that OPP officers receive mandatory cultural competency training,
including in the areas of First Nations’ rights, laws, and by-law enforcement.
-
Health. The Union’s Women’s
Council hold strong beliefs that the overrepresentation of First Nations
peoples in Ontario jails is largely attributable to health issues generated
over the years by the historic injustices endured by First Nations peoples.
They propose that health supports be available both inside and outside of penal
institutions to those offenders who require it. Specifically, the Union
recommends that Ontario increase funding to
First Nations administrations for programs and services to address physical and
mental health issues. It also recommends that provincial penal institutions
increase rehabilitation services available to offenders while in custody
and during the parole process, and suggests that these services be monitored by
a civilian oversight committee.
-
Education. The Union states that
informing and educating First Nations people on justice matters generally, and the jury system specifically, will
dispel many misunderstandings and encourage First Nations people to
participate in the jury process. The Union recommends that educational efforts
be creatively designed and implemented in collaboration with tribal councils,
Provincial Treaty Organizations or other regional organizations. To
specifically target youth, the Union proposes that Ontario and Canada develop a school curriculum regarding the justice system, including the jury process
as it relates to First Nations peoples living on reserves.
-
The Union also emphasizes the importance of clarifying the privacy issues concerning disclosure
of electoral lists or other information regarding band membership, and sharing
this information with First Nations leadership.
-
Racism
and special circumstances. Many First Nations individuals believe that racist
misconceptions and assumptions permeate the justice system – from policing to
courts to the penal institutions. As one measure
to address these issues, the Union recommends the implementation of mandatory
cultural competency training for
police, court workers, Crown prosecutors, prison guards and employees, the
Office of the Children’s Lawyer, and
Children’s Aid Society workers. The Union also recommends that consideration
be given to incorporating into the criminal justice system the opportunity for
a First Nations accused to raise special circumstances – as currently provided
during sentencing in accordance with the Supreme Court of Canada’s Gladue
decision – prior to sentencing and as early as his or her first court
appearance.
-
Juries. To instill greater confidence in the
justice system and increase the willingness of First Nations people to participate on juries,
the Union proposes that Ontario make concerted efforts to increase the number of First Nations judges appointed to the bench,
especially to appellate courts. The Union also recommends that the
Attorney General investigate alternatives to the current system that allows
potential jurors to be removed by a challenge for cause, challenges which may
be sometimes motivated by racist intent.
-
Travel
and expenses. The
socio-economic conditions of most First Nations reserves, the great distance
between reserves and courts locations, and the in-court jury selection process
are serious disincentives and barriers to jury participation, particularly for
a lengthy jury trial. To alleviate some of
these obstacles, the Union recommends a drastic increase in the compensation
rates for jurors, including those who
are required to appear for selection but are excused. Concurrently, the Union proposes that the Attorney General explore options to convene court
proceedings on First Nations reserves, where possible.
-
Options
for improving and updating jury rolls. Although some First Nations people
appreciate their civic duty to serve on juries, encouraging Chiefs and Councils
to share information with Court Services is the challenge. In recommending a
variety of options, the Union stresses that a “one size fits all” approach is
not an appropriate way to obtain lists from First Nations. The Union recommends the consideration of an “opt in” process whereby individual First Nations
people would volunteer to serve. The Union also suggests including an ongoing
plebiscite on the electoral ballots cast by individual voters that poses a
question as to whether the community agrees to share their membership or
residency list. Finally, the Union again suggests that juror compensation be
increased to serve as an economic inducement to an otherwise impoverished
demographic.
-
Coroner’s
inquests.
The fact that a jury for a coroner’s inquest is selected from the same jury
roll as juries for criminal trials is something that is unknown to most people
who participated in the engagement process. This type of information could
motivate First Nations leadership to disclose Band Lists and to work with Court
Services to ensure that coroner’s inquests into First Nations deaths are
convened in a timely manner. An assertive educational campaign would serve to
inform First Nations leadership of the benefits of disclosing lists for the
preparation of the jury roll. The nature of a coroner’s inquest is also a
motivating factor for potential First Nations jurors, who would see it as an
opportunity to take part in making recommendations for change.
-
The Union recommends that Ontario educate First Nations
Chiefs and Councils regarding the importance of jury rolls
generally, and the representation of First Nations peoples on coroner’s
inquests specifically.
It suggests that Ontario partner with tribal councils and PTOs in their
education efforts to maximize effectiveness. It also suggests that Ontario consider separating jury rolls for criminal trials and coroner’s inquests to ensure
the participation of First Nations peoples in the latter.
(b) Submissions Following Jury Information Forums --
“Juries are a Circle of Justice”
-
As
previously explained, the Union partnered with the Ministry of the Attorney
General in 2009 to deliver Jury Information Forums to the First Nations
associated with the Union. Following those Forums, the Union prepared a report
that contained the following recommendations:
Ways to increase the number of First Nations jurors
-
For the purposes of the jury roll, the
Anishinabek Nation and Ministry of Attorney General should negotiate an
agreement to develop a process to obtain Band Lists and establish protocols for
the use, protection and storage of the information.
-
Organize Jury Information Forums in all 40
Anishinabek First Nations.
-
The Ministry and the Anishinabek Nation should
work collaboratively to develop a promotional strategy for dissemination of
information regarding the jury process.
-
Create the position of Anishinabek Nation
Sheriff, or a similar role, who would liaise with First Nations and compile the
jury roll.
-
Develop a distinct process for the selection of
First Nations jurors within which First Nations would be charged with selecting
potential jurors for the jury roll.
Procedural Recommendations
-
Develop a jury summons form specific to
Anishinabek First Nations and produce it in the First Nations languages of Odawa,
Ojibway, Delaware, Pottawatomi, Chippewa, Algonquin and Mississauga.
-
Provide translation services in the First
Nations languages.
-
Remove the references to penalties for
non-response on the jury form.
-
Provide an option to identify First Nations
citizenship on the jury form.
-
Remove the requirement for Anishinabek jurors to
swear an oath on the Bible or take an oath to be a juror.
-
Provide nominal remuneration for jury duty.
-
Provide for travel expenses for all potential
jurors who are required to attend the selection process, regardless of whether
they are selected for duty or reside within a certain radius of the courthouse.
-
Provide culturally appropriate aftercare
treatment for jurors who require it.
Ontario Justice System
-
Provide information and assistance to those
First Nations citizens who want to obtain a pardon for past criminal offences.
-
Appoint a liaison person to work with
Anishinabek First Nations to provide information about the Ontario
justice system and to provide support for jury summons forms and related
documentation.
-
Enhance funding for the Aboriginal Court Worker
program and First Nations justice workers to support offenders.
(c) Independent Papers Commissioned by the Union
-
Paper by Elder Ernie
Sandy. In his paper,
“Recommendations from First Nation Citizens in Ontario Justice System”, Elder
Ernie Sandy interviewed many First Nations people and made recommendations
based on what he learned.[267] The views he heard reflected the
recurring theme that First Nations people were uninterested in serving on
juries because their experiences and perceptions of the justice system were
pugnacious, negative, colonial and contrary to their core cultural beliefs.
That being said, he stated that some expressed curiosity towards the jury
system. Mr. Sandy made the following recommendations.
Education and Outreach
-
Develop outreach programs regarding the jury
selection process to be delivered in First Nations communities by First Nations
justice workers. The focus of these programs should be to educate First Nations
citizens about the importance in serving on a jury and could be promoted with
the use of a slogan. For example, “You can make a difference in someone’s life
as a jury member”.
-
Develop a comprehensive “First Nation culture
and historical awareness” sensitivity program delivered, with the assistance of
Elders and guest speakers, to key personnel and justice lawyers who work
closely with First Nations citizens.
-
The Attorney General’s office should host a
conference on the jury system that is aligned with the timing for major
political gatherings in the province.
-
Produce a video that explains the jury system in
a First Nations context and emphasizes the importance of participation, to be
used as an education tool in schools and for the purposes of informing First
Nations people generally.
-
Encourage “kitchen table” dialogue between court
workers, leadership, and First Nations community members with an emphasis that
no formal education is required to sit on a jury.
-
Create a juror orientation program to prepare
individuals for the jury selection process.
Accessibility
-
Encourage First Nations citizens to actively
pursue their right to sit on a jury, even if excluded through the selection
process.
Eligibility
-
Request a list of the names of eligible First
Nations individuals from the federal department
of Aboriginal Affairs and Northern Development.
Relationship Building
-
Establish a First Nations citizen advisory body
within the Attorney General’s office. Through this process, mutual admiration
of each other’s professional, cultural and personal qualities can be fostered.
-
Paper
by Elder Mike Esquega Sr. (Northern Superior Regional Elder). The central message of
Mr. Esquega’s submission is that improvements to the justice system
for Anishinabek citizens may increase their willingness to
participate in the jury system.[268]
-
Mr. Esquega recommends that Ontario develop and
implement an action plan to acknowledge, support and provide accommodations for First
Nations people to participate in the jury process. This plan should include the
following elements:
-
a process to educate and consult with First
Nations individuals when they are subpoenaed to the jury selection process;
-
the use of ceremony in the court process,
including jury selection;
-
consideration of a minimum mandatory number of
First Nations citizens (or a full panel);
-
a support system for those attending the
selection processes;
-
oversight of the selection process to ensure its
fairness; and
-
provisions to respond to financial and cultural
concerns, such as considering holding court in the community of an accused
person or a neighbouring First Nation.
-
Mr. Esquega also recommends that Ontario enter into a
Protocol Agreement with First Nations to ensure that
continuous and meaningful consultations occur with First Nations with respect
to changes to the justice system, and that an educational campaign be
implemented. He recommends that the consultations to be held with Chiefs and
Councils, as well as with citizens, through forums provided by the Union of
Ontario Indians and other organizations, and that the consultations should include
women, youth, and elders, and produce a discussions paper for review by the
First Nations and government officials.
-
Paper
by Karen Restoule. For her paper “Recommendations from Jury Roll Selection –
Problems or Symptom?”, Ms. Restoule interviewed individuals from 15 First Nations regarding the criminal justice
system and the jury process.[269]
The dominant theme of these interviews is consistent with what I heard
throughout the engagement process – that there is a profound mistrust of, and
alienation from, a criminal justice system that is perceived to be contrary to
Anishinabek original jurisdiction over justice matters and devoid of
Anishinabek legal principles or cultural values.
-
Ms.
Restoule proposes that existing Community Justice Programs delivered by First
Nations organizations in a culturally appropriate manner in 23 First Nations
communities should be expanded to other areas of the justice system, including
criminal trials for summary, hybrid, and indictable offences, as well as
coroner’s inquests. She also proposes the creation of a model of justice based
upon the American Tribal Courts as a process of reconciliation for the
application of common law and Anishinabek Nation legal principles.
Alternatively, Ms. Restoule suggests incorporating Indigenous legal principles
into the criminal justice system as a means to encourage the participation of
First Nations peoples on juries.
-
Ms.
Restoule’s recommendations specific to the jury system include:
First Nations Legal Principles
-
traditional legal principles of the Anishinabek
Nation should be incorporated within the jury system, and the justice system as
a whole, particularly when Anishinabek citizens are involved.
-
a feast and/or relevant ceremonies should be
held when any citizen of the Anishinabek Nation
is involved in criminal or civil trials, whether as an accused or a victim.
Partnership with First Nations
-
Anishinabek Nation leadership should be included
in the development and implementation of any recommendations regarding the jury
roll selection process and/or justice system stemming from this Independent
Review.
-
Elders should be included in any legal process
involving a citizen of the Anishinabek Nation.
-
Elders should be consulted regarding their role
and level of participation within criminal or civil trials and coroner’s
inquests.
-
an ongoing relationship should be maintained
between the Ministry of the Attorney General and the Anishinabek Nation.
-
meetings and ceremonies should be held every
year to reaffirm commitments between the Ministry of the Attorney General and
the Anishinabek Nation, allowing for amendments to be made to the processes and
trust to be built over time.
Resources
-
adequate resources should be provided to
citizens of the Anishinabek Nation attending jury duty. Further, criminal or
civil trials and coroner’s inquests should be hosted within Anishinabek Nation
territory to reduce costs substantially.
-
adequate resources should be provided to
accommodate the families of the individuals attending jury duty.
-
resources should be provided to implement the
recommendations stemming from this Independent Review.
Education
-
training should be provided for all individuals
working within the justice system, including the judiciary, legal, and
administrative staff, and such initiatives should be developed and delivered in
partnership with the Anishinabek Nation.
-
there should be public legal education
initiatives targeted towards First Nations peoples and youth that seek to
create awareness of the role of juries. These initiatives should be developed and delivered in partnership with the Anishinabek
Nation and local school boards. The distinctions between a criminal or
civil jury versus an inquest jury should be emphasized in the materials.
Accessibility
-
where possible, criminal or civil trials and
coroner’s inquests should be held within the First Nation of the accused or
victim, or within the Anishinabek Nation territory.
-
where it is not possible to host the legal
process within the Anishinabek Nation territory, the process should be made available to the First Nations involved via
videoconferencing and resources for necessary equipment should be
provided to First Nations of the Anishinabek Nation.
Language
-
translation and interpretation services should
be made available to all First Nations individuals selected to participate on a
jury, as well as the families affected by the trial or inquest, including
instances where video-conferencing is employed.
Eligibility
-
the Canada and Ontario citizenship criteria for
jury roll selection should be reconsidered. Many First Nations individuals do
not identify as citizens of these jurisdictions.
-
the criteria of having no prior criminal record
should be reconsidered.
-
the eligibility requirements for serving on a
criminal or civil jury should differ from those for a coroner’s inquest.
Outreach Strategy
-
an outreach strategy should be developed and
delivered in partnership with the Anishinabek Nation, in order to ensure that
materials are culturally appropriate.
-
there should be an outreach strategy
specifically geared towards engaging First Nations youth. It is important to
ensure this strategy is “catchy.”
3. Chiefs of Ontario submissions
-
In a
letter dated June 4, 2012, former Ontario Regional Chief Angus Toulouse
submitted his thoughts and recommendations for changes to the current process
for the assembly of the jury roll in Ontario, as it relates to First Nations
peoples. Former Chief Toulouse recognized the importance of the Independent
Review and pledged his full support.
-
The primary theme of the submissions of the Chiefs of
Ontario, like that of others who have participated in this process, is that the
encouragement of participation of First Nations peoples in the court system must be accompanied by the broader objective of
eradicating systemic discrimination in the justice system. The Chiefs of Ontario cite several examples that
they view as symptomatic of the ways in which the Canadian justice
system is currently failing First Nations peoples through the subversion of
First Nations legal traditions and customs and the failure to reconcile the
Canadian legal system with First Nation legal principles and traditions.
-
The
Chiefs view Canadian child welfare law as incongruous with the First Nations
concept of the family unit, as it causes the relocation of many First Nations
children. They raise the issue of inadequate attention given to the preparation
of Gladue reports (pre-sentence reports) by probation officers. The Chiefs state that, rather than provide the proper
context to determine an appropriate sentence, probation officers often
perform a disservice to First Nations offenders because their reports are
written with a Eurocentric bias. They also describe how traditional healing
circles have essentially become sentencing circles that impose conventional
criminal procedures and sentences, contrary to the healing attributes that
First Nations seek. They describe the use of crimogenic risk assessments that
are designed to assess the risks of reoffending, asserting that these reports
are often used by the Crown in criminal proceedings as a tool to establish that
First Nations offenders are at a high risk of re-offending. The Chiefs of
Ontario argue that these reports create a bias against First Nations offenders
by failing to consider the specific cultural context of the offender’s
background.
-
The
Chiefs of Ontario address the issue of the collection of names and addresses of
on-reserve residents for the purposes of jury questionnaires. With respect to
the option of drawing upon Ontario Health Insurance Program information as a
source of names and addresses for on-reserve First Nations peoples, the Chiefs
of Ontario argue that this data source, if used alone, would not capture all
on-reserve First Nations peoples, as they note that many First Nations peoples
in remote communities do not have health cards. In any event, they observe that
simply identifying the ideal data source will not necessarily result in a
higher response rate to jury questionnaires due to the broader systemic issues
that have engendered a deep mistrust by First Nations peoples of the justice
system.
-
The
Chiefs of Ontario recommend that the Attorney General’s office include
designated First Nations officials to
address First Nation issues and intergovernmental relations. These positions,
appointed to serve each treaty region or judicial district, could be
mandated to collect information from the First Nations within the delineated
regions and to maintain relationships with First Nations on justice matters and
judicial services.
-
The
Chiefs of Ontario advance four specific recommendations with respect to the
jury forms:
-
Citizen v. First Nations: It is recommended that
the jury forms include a question relating to a person’s citizenship of a First
Nation. It was explained that some First Nations do not relate to Canadian
citizenship and often do not possess evidence of such.
-
encourage First Nations members to complete and
submit forms: It is recommended that both the Province of Ontario and the Federal
Government work collaboratively with First Nations Governments, regional organizations or tribal councils to fund and
provide an educational program that targets youth, designed to inform
them of their legal and civil rights and duties within the Canadian
constitutional and common law framework.
-
exemption from jury service: It is recommended
that Elders be exempted from jury service so that their traditional role and
cultural integrity in the community is preserved.
-
translation services: Increased and adequate
translation services could help to encourage First Nations peoples to
participate as potential jurors.
-
The Chiefs of Ontario maintain that the paramount factor
for increasing the participation of First Nations peoples in the jury system is the recognition
and accommodation of First Nations legal traditions and cultural differences.
In addition, they identify two practical barriers to the participation of First
Nations peoples on juries that require particular attention: the payment of
transportation, accommodations and meals by
the Ministry of the Attorney General; and the provision of support services to
enable First Nations individuals to complete jury forms, attend at a
trial or coroner’s inquest, and deal with post-jury duty psychological effects.
-
The Chiefs of Ontario conclude their comments by
reinforcing the need for a respectful government-to-government relationship between
First Nations and the Government of Ontario as a means to address the systemic
issues plaguing the criminal justice system.
4. Aboriginal Legal Services of Toronto submissions
-
Aboriginal Legal Services of Toronto (ALST) is a
multi-service legal agency that has served Toronto’s Aboriginal
community for over 21 years. This organization has gained substantial
experience through the representation of Aboriginal clients in coroner’s inquests,
inquiries, criminal litigation, and advocacy to ensure Aboriginal clients
receive equitable treatment in and access to the justice system. In particular,
ALST has been actively involved in litigation that has considered and is
considering the issue of the representation of First Nations peoples on juries.
-
ALST
frames the issue of jury representativeness as one of fundamental justice,
which they assert is being breached by the lack of representation of First
Nations peoples on the jury roll. As a general proposition, ALST is of the view
that the issue of jury representation arises from the failure to fulfill the
obligations demanded by section 6(8) of the Juries Act. They note that
there is no consistent source list from which to draw on-reserve First Nations
names, nor have sufficient efforts been made to ensure the jury roll is
properly representative of First Nations peoples.
-
ALST
asserts that First Nations people who reside on a reserve have the right to be
considered for jury duty and that a properly representative jury is
particularly important for Aboriginal accused persons in the criminal justice system. They note that systemic discrimination
against Aboriginal people in the criminal justice system has been most
recently affirmed by Canada’s highest court in R. v. Ipeelee[270]
and that an accused person being tried by a jury that is drawn from an
unrepresentative jury roll potentially faces discrimination under section 15 of
the Charter.
-
ALST addresses the connection between the historic
exclusion of Aboriginal people from the Canadian justice
system and the underrepresentation of on-reserve First Nations peoples on the
jury roll. It notes the correlation between the overrepresentation of
Aboriginal people in the penal systems and their exclusion from participation
in the Canadian justice system, arguing that the latter is a factor that
contributes to the excessive imprisonment of Aboriginal peoples.
-
ALST
also addresses the connection between the coroner’s process and the jury roll
issue. Because the number of Aboriginal peoples in the penal system is
unrelenting, thereby increasing the probability of deaths that will occur while in custody, coroner’s inquests are of
growing importance. Ensuring that inquest juries represent the Aboriginal population is integral to remedying the
circumstances by which such deaths occur through a proper understanding
of the historic, cultural, and contemporary contexts.
-
Following
its review of recent litigation respecting the issues of representation of
First Nations peoples on juries, ALST states that using Band Lists is not the
most effective manner in which to ensure that First Nations peoples are
represented on the jury roll in Ontario. They take this position for a number
of reasons. First, ALST draws the distinction between those First Nations that
control and administer their own membership
lists and those First Nations that have chosen to leave their membership lists
to be maintained by Aboriginal Affairs and Northern Development Canada
(AANDC). Of those First Nations that have regained control of their membership
lists, they will have to consider the privacy interests of their members in
deciding upon disclosure, just as AANDC must consider privacy issues. Those
First Nations that have left their lists with
AANDC rely on the federal Department to address this matter. Finally, ALST
argues that band members ought to be involved in the decision-making
that will, in effect, determine whether band members will participate in the
jury system.
-
ALST
questions the lack of consistency with respect to Ontario’s efforts to comply
with section 6(8) of the Juries Act.
ALST contends that Ontario failed to assess the impact of the Supreme Court of
Canada’s decision in Corbiere v. Canada, preventing Court
Services personnel from appreciating that the lists they relied upon likely
contained names, without distinction, of First Nation citizens who reside off
the reserve. Referring to the evidence of actions taken by local Court Services
officials in the Thunder Bay and Kenora judicial
districts to comply with section 6(8), ALST submits that the exercise of local
authority and discretion within Court Services is not the appropriate
means to address the representation of First Nations peoples on the jury roll.
-
In
looking forward at ways to remedy the current problems of lack of
representation of First Nations peoples on Ontario juries, ALST recommends
Ontario follow the Manitoba model, under which, as I noted at paragraph 154, names
of all Manitoba jurors are selected by data drawn from the provincial health
registry. ALST notes that the Manitoba Justice Inquiry, to which I have also
referred to at paragraph 154, found that this approach adequately addressed the
representation issue, with the exception of Winnipeg, though no explanation for
this exception was given.[271]
-
ALST
makes a number of recommendations, categorizing them as either long term or
interim activities. The recommendations are as follows:
(i) Long term Recommendations
General
-
creation of a map that depicts judicial
districts and the First Nations communities situated within them.
-
clear and concise directives to regional Court
Services offices in relation to:
-
standards of communication and outreach to First
Nations communities and peoples;
-
recruiting First Nations staff in regions where
there is a high percentage of First Nations population;
-
human resource policy on hiring, retaining and
promoting First Nations employees within the Court Services Division; and
-
a policy that prioritizes the representation of
First Nations peoples on the jury roll within the Court Services Division and
Coroner’s Office.
-
mandatory training for Sheriffs to familiarize
them with the composition, political and cultural attributes of the First
Nations in their respective judicial districts.
Training
-
aboriginal cultural competency training for
Court Services staff, Coroners and their counsel that includes general
information about each First Nation, history of exclusion, overrepresentation and
incarceration, inquest issues, cultural and lived experiences:
-
developed by or with First Nations
-
adequately funded
-
sustainable and transferrable; and
-
regularly updated.
-
communications training for staff of the Court
Services Division and Crown lawyers.
Relationships
-
strategic outreach to First Nations leadership,
tribal councils, political and territorial organizations, Aboriginal service
agencies and women’s groups.
Coroner’s Services
-
outreach to First Nations governments and
communities to explain the importance of representation on inquest juries.
-
regional and investigative coroners should meet
with First Nations governments and political organizations regarding juries.
Legislative Changes
-
research approaches from other jurisdictions
that address First Nations access to justice and inclusion on the jury roll,
the results of which should guide legislative change.
-
create an equal system for all jurors.
-
as an alternative to legislative change, Ontario should seek to enter into a Memorandum of Understanding with Aboriginal Affairs and
Northern Development for the provision of annual lists from the Indian
Registration system of First Nations reserve residents.
Outreach
-
an implementation committee should be created
that includes First Nations governments and agencies from each judicial
district that contains First Nations reserves.
-
a public awareness campaign should be designed
in consultation with First Nations peoples directed at the general public and
legal professionals.
-
Ontario should sponsor a
Continuing Professional Development course certified by the Law Society of
Upper Canada that addresses the representation issue.
(ii) Interim Recommendations
Court Services Division and Sheriffs
-
training
should be provided to all Sheriffs and court staff that are involved in
implementing section 6(8) of the Juries Act. Training should
incorporate a historical overview, information on First Nations governance
systems, the impact of the Indian Act on Band Lists and voters lists,
and cultural competency and communication training appropriate for dealing with
First Nations peoples.
-
changes should be made to the jury manual to set
out a specific protocol regarding engagement with First Nations for the
implementation of section 6(8).
-
Court Services staff should make efforts to
build relationships with First Nations communities, tribal councils and
political and territorial organizations as part of a robust communication and
outreach strategy.
Inquest Recommendations
-
In the case of an
unrepresentative jury roll, the Coroner should make direct efforts to
communicate with the victim’s family to explore whether
they want to proceed in any event of the existing jury roll, rather than
unnecessarily delaying the inquest.
-
The Coroner should explore what steps can be
taken to implement a representative jury on a case-by-case basis, similar to
what the Court of Appeal recommended in Pierre v. McRae, which was to
order the sheriff to produce a list of jurors from a proper jury roll.
5. Submissions of the Office of the Provincial
Advocate for Children and Youth
-
The
Provincial Advocate for Children and Youth made submissions respecting a role
for First Nations youth in the jury education process. The Provincial Advocate
is an independent officer appointed by the Legislative Assembly of Ontario. His
mandate is to “provide an independent voice for children and youth and partner
with them to bring issues forward; encourage communication and understanding
between children and families and those who provide them with services and;
educate children, youth and their caregivers about the rights of children and
youth.” As part of his mandate, the Provincial Advocate works for the rights
and interests of First Nations children and youth.
-
By way
of context, the Provincial Advocate notes that First Nations peoples currently
represent 16.7 percent to 19.7 percent of the prison population in Canada, while they represent only four percent of the overall Canadian population.
According to the Provincial Advocate, these statistics are likely to worsen
over the coming decade, and Ontario already has the third highest incarceration
rate in Canada. It is the view of the Provincial Advocate that Aboriginal youth
are almost eight times more likely to be in custody compared to their
non-Aboriginal peers.
-
The
socio-economic challenges faced by Aboriginal youth create a dire picture that
begs for transformative changes to the justice system if First Nations peoples
are to participate in the jury process. The Provincial Advocate explains that
gang involvement, high rates of suicide, contact with the youth justice system, unemployment and underemployment, lack of
education, history of physical and sexual abuse, and over-policing are
matters that in one way or another burden the life of an Aboriginal youth.
Accordingly, it is imperative that First Nations youth be involved in creating
solutions to the jury system to counter the overrepresentation of First Nations
peoples in the justice system and to lend their experience to address
prevention approaches and alter perceptions that bar willingness to participate
on juries.
-
In preparing his submissions, the Provincial Advocate’s
office recruited a group of First Nations youth with whom it had previously worked
to seek their perspectives and opinions regarding potential reforms aimed at
inclusion of youth in the jury process. The Provincial Advocate’s office
expressed a commitment to move forward with its recommendations that focus on
educational processes to address the systemic barriers to First Nations youth
and their communities insofar as participation on juries is concerned.
-
The
Provincial Advocate identifies an initial challenge in working with First
Nations youth in a reform process that he describes as needing to overcome a
“confidence deficit”. Many First Nations youth have come to feel apathetic towards the “system” because the government has
failed to provide the most basic of services, like clean water, health
care, food security or safe housing. Coupled with the historical wrongs committed by government in relation to First
Nations’ culture, language, loss of land, racism, discrimination and
other injustices, many First Nations youth feel disempowered to effect any sort
of change.
-
Also
contributing to the confidence deficit is the pattern of exclusion of First
Nations youth from decision-making regarding matters that affect their lives.
Such exclusion serves to undermine their confidence in their own ability to
make sound decisions. The confidence deficit effectively impedes motivation on
the part of First Nations youth to become involved in reformative change.
However, according to the Provincial Advocate, with the necessary supports,
this challenge is manageable.
-
The Provincial Advocate suggests a number of ways to
empower First Nations youth to willingly participate in
changing the system to better serve their rights and interests. First, youth
must come to understand and appreciate that they possess certain
definable rights by virtue of being First Nations citizens, as well as citizens of Ontario and Canada. The Provincial Advocate’s office states that given its role in rights education,
it is well-positioned to act as a resource for First Nations youth as they
advocate for change in Ontario’s Justice System.
-
The
Provincial Advocate advances the concept of civic engagement as an effective
framework to explain an individual’s obligation to the jury process. Educating
First Nations youth about how they can contribute to their community in a
meaningful way by applying their lived experiences can be an effective way to instill motivation for active community
engagement. The community is strengthened by maximizing the number of
youth that are taught the importance of civic engagement, in the context of
First Nations’ cultural values and norms. Once seen in that context, First
Nations youth can then apply this concept to the broader community and, in
particular, the jury process.
-
The
Provincial Advocate stresses the importance of the Gladue[272]
case and the principles espoused therein as a tool to entice young people to
become active in the reform process. Ensuring that the Gladue principles
are properly applied to Aboriginal offenders is a way in which First Nations
youth can positively exercise their civic engagement. Moreover, sentencing
options available through the application of the Gladue principles
present an opportunity for young people to learn about their First Nation’s
traditional laws, values, and approaches to the restoration of harmony and
justice and how that can be applied in a daily setting. Being involved in a
community’s restorative justice process can be an invaluable teaching tool that
demonstrates the resolution of conflict and the return to harmony. This is a
positive exercise of the justice system. The Provincial Advocate asserts that
any systemic reform of the justice system must be based upon the Gladue
principles. Reforms must be focused on remedying the overrepresentation of
First Nations peoples in prisons and the circumstances by which the lives of
First Nations peoples are the subject of coroner’s inquests.
-
As a
first step, the Provincial Advocate recommends initiating a discussion that
brings together First Nations youth to
strategize on the development and delivery of jury education workshops. He
further recommends that a strong mentorship relationship be fostered
between Justice officials and First Nations youth to reinforce the commitment
to move towards systemic change.
-
Specific
recommendations proposed by the Provincial Advocate include:
-
First Nations young
people be brought together so that they can share their knowledge, questions and concerns about Ontario’s justice system and be educated
regarding the role of the jury process in improving the conditions that
influence the delivery of justice to First Nations peoples.
-
the Provincial Advocate’s Office work in
partnership with First Nations youth, communities and leadership to develop
recommendations that are specific to what is needed to create a justice system
that is fair and just in their eyes and anchored in their rights under the
United Nations Convention on the Rights of the Child.
-
First Nations young people be provided with the
opportunity to work with their Elders, the Provincial Advocate’s office and the
justice system to create a mentorship model that encourages the participation
of youth in the jury process.
-
young people be provided with an opportunity to
work with the Provincial Advocate’s office to develop educational activities,
and participate in a process to help develop a systemic policy framework to
transform the jury process. Early education is a key strategy to ensure that
young First Nations people are informed of how jury service can contribute to
delivering justice for First Nations people.
-
a review of the current jury recruitment and
selection process be conducted to identify the barriers for First Nations young
people and adults and changes that are necessary to promote involvement in jury
service that is aligned with a cultural approach to civic engagement.
-
the province develop simplified educational
materials on the jury and court process and a provincial outreach and education program that links the
importance of community involvement and participation on the jury
process to the development of justice models that are reflective of the values
and traditional healing approaches of First Nations communities, built upon the
Gladue principles.
-
a social indicator lens be applied to identify
the barriers that must be addressed in developing processes and education
approaches. More must be done to understand the impact poor education,
substandard housing, lack of economic opportunity, and violence play in
hindering the participation of First Nations young people in the jury process.
6. Submission of Legal Aid Ontario
-
By letter dated July 30, 2012, Legal Aid Ontario provided a submission for my consideration regarding its
Aboriginal Justice Strategy. Generally, Legal Aid Ontario recognizes the
importance of enhancing access to justice for Aboriginal peoples; a fact
reflected in the development of its Aboriginal Justice Strategy.
-
The
submission begins by providing the background of Legal Aid Ontario, which
explains that it has been in existence since
1998 pursuant to the Legal Aid Services Act as an independent yet
publicly-funded non-profit corporation that provides legal services to
low income people in Ontario.[273]
With respect to criminal cases, it is only authorized to provide assistance
where there is a strong likelihood that the accused may incur a sentence of
incarceration.
-
Legal
Aid Ontario’s 2008 Aboriginal Justice Strategy was born out of a consultative
process engaged with Aboriginal people and service organizations in Ontario. The goals of the strategy are to improve services to Aboriginal people by removing
barriers to accessing justice, including Aboriginal people on its management
team, increasing Aboriginal legal representation, and improving services to the Aboriginal community. To meet these goals,
Legal Aid Ontario establishes annual initiatives to improve their
services, which has included ensuring that legal counsel who are assigned legal
aid work for Aboriginal people comply with
mandatory professional standards particular to Aboriginal law and the relevant
factors in keeping with the Gladue decision and the preparation
of Gladue Reports.
-
Legal
Aid Ontario provides statistics that indicate that ten percent of the
certificates given to legal aid applicants were issued to those who identified
as Aboriginal. Moreover, between 11 percent and 15 percent of Legal Aid certificates for criminal matters,
youth criminal matters and child welfare matters are issued to Aboriginal people. Legal Aid Ontario also notes
that in supporting Aboriginal initiatives, it funds the Nishnawbe-Aski Legal Services Corporation certificate and
advice lawyer program, which, as already discussed at paragraphs
paragraphs 281, and 282 provides legal services to 49 First Nations in the NAN geographical territory.
D. Recommendations
1. Introduction
-
Before
setting forth specific recommendations, I believe it worthwhile to provide a
number
of preliminary observations.
-
First, it must be emphasized that recommendations without
clear and specific procedures, and details for
implementation will be hollow. Because much of the numerous past reports
relating to Aboriginal people have gathered dust on the shelf, I am
acutely aware that this Report will be greeted cynically by the First Nations
community and result in little or no meaningful changes if there are not early
and concrete steps taken by the Government
to implement my recommendations. For these reasons, I have taken the unusual
step of beginning – rather than ending – my recommendations with the section on
Implementation, which includes recommendations for establishing bodies that
will be instrumental in turning the words on the page in my Report into action.
-
Second,
it is obvious that all the recommendations listed below cannot be implemented
at the same time. It is also abundantly
clear that resolving the issues on jury representation is going to take time.
There is no magic bullet that can
provide an instantaneous solution. Consequently, the implementation of various
recommendations will need to be prioritized,
and milestones and targets scheduled. This is part of the work I
anticipate will be carried out by the Implementation Committee and its support
staff, which I describe in the section on Implementation of Recommendations
that follows.
-
Third, in making recommendations, it is virtually
impossible for me to calculate or estimate the financial costs of the recommendations. The
Independent Review team has neither the capacity nor expertise to perform those
tasks. However, the terms of the mandate as stated in the Order-in-Council call
for me to take the financial situation into account in putting forth
recommendations.
-
I
believe that the best way to comply with the terms of reference, and to make
recommendations for the improvement in the
representation of on-reserve First Nations peoples on juries, while being
respectful of Ontario’s financial condition, is the following approach.
I have made recommendations that I believe should be made based on what I have
heard or observed to improve the jury representation situation. If, on further
analysis, these prove to be financially difficult, I would suggest that
consideration be given to modify the recommendation in a way that reduces costs
while not changing the substance of the recommendation. Alternatively that
particular recommendation might be deferred since, as mentioned, every
recommendation practically cannot be implemented at the same time. However, these
are examples of matters to be left to the Implementation Committee, as
discussed below.
-
I
realize that many of my recommendations will involve costs, but I would like to
say that as much as I can, I have taken financial considerations into account
in making the recommendations. With that said, when principles of justice and
fairness for thousands of people are involved, the financial aspects of the
matter should not trump those fundamental principles in any material way.
Moreover, the costs of doing nothing will likely be more than the costs of
implementing these recommendations, when one considers the expenses involved by
the present approach. This is apart from the greater potential for loss of
liberty and increased distress for First Nations peoples and a further
deterioration in the relations between the Ministry and First Nations.
-
Fourth,
it became apparent almost immediately from the start of the Independent Review
that the problems with improving the representation of First Nations peoples on
juries are inextricably connected with problems arising from the justice
system’s treatment of members of First Nations generally. This is an undeniable
fact. I realize that my review is not about reforming the justice system of Ontario, but I would be derelict in my duty as the
Independent Reviewer to avoid any discussion of the need to address serious
issues that arise from how the justice
system impacts the question of jury
representation. Accordingly, I feel compelled
to put forth recommendations which deal with these broader issues. Some of these issues relating to the
justice system may be ones for longer term responses,
but they are not to be ignored if progress and improvement are to be
achieved.
-
Fifth,
in listing my recommendations, I do not wish to imply that they are complete in
every way, as they may require some fine tuning at the implementation stage, or
more substantially, further analysis or study or consultation with First
Nations. In addition, I greatly benefitted from the myriad of recommendations from various groups and individuals that have
been summarized above. I have done so because the Implementation
Committee may well wish to consider some of them as the Committee deems
appropriate.
-
Finally,
and most importantly, while I believe all of the recommendations below are
desirable and would go a long way to
enhancing the representation of First Nations peoples on juries,
something even more fundamental is required.
-
In my
experience dealing with Aboriginal issues as a lawyer (in both public and private
practice) and judge, too often I have seen evidence or examples of mistrust and
disrespect between Aboriginal and non-Aboriginal Canadians, whether the latter
are government or private institutions or individuals. Although the evils of
racism and discrimination have diminished over time, much more is needed to
foster a relationship of harmony and enlightened co-existence between Aboriginals and non-Aboriginals. Without building a foundation of mutual respect
and mutual trust for each other, the recommendations below will achieve
nothing. And that respect and trust has to be earned not proclaimed. Concrete proposals
and mutual effort are required.
-
To my
mind, the model relationship between the two groups should be partners rather
than what history reveals as adversaries. First Nations do have governments,
and this Independent Review has reinforced my belief in the importance of
emphasizing a government-to-government relationship that incorporates an underlying respect for cultural,
traditional, and historical values that are different. It is this government-to-government
relationship that must underlie the relationship between Ontario and First
Nations going forward in dealing with justice and jury representation issues.
To recognize this, I have recommended the models of the Implementation
Committee and the Advisory Group to the Attorney-General as outlined below.
2. Implementation of Recommendations — Establishing
an Implementation Committee and Minister’s Advisory Group
-
As
noted in the introduction above, I have decided to begin my recommendations
with this section on implementation. I do so in order to emphasize the
fundamental importance of the government moving quickly to create – in partnership with First Nations in Ontario –
bodies that can effectively begin the work of responding not just to the
problem of underrepresentation of First Nations individuals on juries, but to
the broader systemic challenges that have been identified in the course of the
Independent Review.
-
As frequently mentioned, cynicism and mistrust of jury
participation along with similar concerns about the
justice system are widespread within First Nations communities. That cynicism
includes doubts among First Nations that much will ever come out of this
Independent Review. The Order-in-Council, to some extent, recognizes implicitly
this state of affairs. In addition to calling for recommendations to enhance the representation of on-reserve First Nations
peoples on juries, it calls for recommendations “to strengthen the
understanding, cooperation and relationship between the Ministry of the
Attorney General and First Nations on this issue”.
-
To
meet the implementation part of my mandate, I have two major recommendations to
put forward: the establishment of an Implementation Committee with government
and First Nations members and the setting up of an Advisory Group to the
Attorney General on matters affecting First Nations and the Justice System.
(a) Implementation Committee
-
RECOMMENDATION
1: I recommend that the Ministry of the Attorney General establish an
Implementation Committee consisting of a substantial First Nations membership
along with Government officials and individuals who could, because of their
background or expertise, contribute significantly to the work of the Implementation Committee. This Committee would be
responsible for the oversight of the implementation of the below
recommendations and related matters. In view of the importance and urgency of
the matter, I recommend that the Committee be established as soon as practically
possible.
-
Having
First Nations membership that is substantial and not mere tokenism would
underscore the seriousness of the Ministry of the Attorney General to improving
the relationship between the Ministry and First Nations and increase the
chances of greater acceptance within the First Nations. An example of someone
with a unique background or expertise that should be represented on the
Committee is an individual who could be a First Nations youth representative.
Such a representative would be valuable because of the serious issues facing
First Nations youth and the importance of the perspective that a youth
representative on the Committee could bring to it, given the dramatic
demographic increase of youth referred to in paragraph 228.
-
I do not wish to specify the exact number of people who
would serve on the Committee except to say it
should be large enough to include individuals who can contribute from their
experience and qualifications to the
work of the Committee, yet small enough to avoid difficulty in scheduling
meetings and conducting its business. It may be that approximately seven
to nine members is the appropriate range.
-
The
Committee will need to have a support group, which should not be large in
number, and could involve secondments from existing Ministry of the Attorney
General staff and others as appropriate.
-
The Committee would be appointed by the Attorney General
for a three year term with the possibility of a renewal for an additional term.
A small secretariat would need to be assembled with the appointment of an
Executive Director who could come from the public service.
-
The
Committee members would be paid pursuant to provincial practice for boards of
directors for independent Crown agencies. The budgets and expenses for the
Committee’s work would be subject to approval pursuant to Management Board
guidelines and established Government of Ontario procedures.
-
The
Implementation Committee would be responsible for such things as:
- developing a timetable for
implementing the recommendations with milestones to achieve measurable targets
as appropriate;
- establishing protocols for
meetings, decision making, and related matters;
- issuing annual reports to
the Attorney General on progress made in the implementation
of recommendations and changes that are deemed important by the Committee to
make;
- ensuring there is a proper
liaison with the Deputy Attorney General and other officials
of the Ministry to achieve a cooperative and collaborative working
relationship;
- developing and
transmitting recommendations of the Committee for implementation
to the Deputy Attorney General for approval; and
- receiving periodic reports
from Ministry officials on implementation of recommendations
and related matters.
(B) Advisory group to the Attorney General on First
Nations peoples and the justice system
-
RECOMMENDATION
2: To address paragraph 1(b) of the Order in Council 1288/2011 on August 11,
2011 establishing my mandate, I recommend that the Attorney General establish
an Advisory Group to the Attorney General on matters affecting First Nations
peoples and the Justice System. Creating this Group would not only underscore
the commitment of the Ministry to improve their relationship with First Nations
on jury issues but also on justice system concerns that are related to the
participation of First Nations peoples on juries.
-
As I
have already mentioned, I believe that relations between the justice system and
First Nations have reached the crisis stage. As one senior Ontario government
official told us: “justice has not been a friend to First Nations”. This
situation has been arrived at over many years of neglect, and a response is required on many fronts, including a top down
approach for the Attorney General to seek the candid advice and wisdom
of those directly affected, namely First Nations. In my view, this would be
welcomed by the First Nations leaders and
people with one major proviso: the Advisory Group should not be window dressing
but be an effective mechanism for the Attorney General to receive valuable
input from First Nations to begin a real pathway to improve elements of the
justice system that for too long have been ignored as far as First Nations
peoples are concerned.
-
The
Group could be asked to meet periodically but at least twice a year as decided
by the Attorney General. I would leave
other details for the Group, such as membership, to the determination by the
Attorney General since it would be presumptuous of me to go any further. In a
similar vein, I do not wish to prescribe the agenda items for such a
group. We heard much from First Nations people about the importance of restorative justice in the justice system.
Accordingly, that could be a point for discussion by the Advisory Group.
-
The recommendations to set up an Implementation
Committee and an Advisory Group to the Attorney General
will not by that alone solve all the concerns that have been outlined in this
Report, but it will signal an important and much needed change in the
commitment of Ministry officials to improve the situation facing First Nations. The effective working of
the Implementation Committee and Advisory Group will go beyond the
signaling stage of a changed commitment, but could well lead to an improved
relationship between First Nations and the Ministry of the Attorney General, and
even better still to positive and meaningful improvements for First Nations
peoples.
3. Recommendations Respecting Systematic Concerns
about the Justice System
-
As I
have repeatedly emphasized throughout the Report, it is clear to me that
meaningful progress can only be made in improving the representation of First
Nations peoples on Ontario’s jury roll if steps are also taken at the same time to respond to the systemic issues that
have prevented First Nations peoples from participating in Ontario’s justice system.
-
These
systemic issues include:
-
conflict between First Nations and Euro-Canadian
approaches to criminal justice;
-
the systemic racism that unfortunately still
appears to be present in our justice system, including instances of
mistreatment of First Nations inmates in prison, general disrespect by police
and discriminatory public reaction to First Nations complaints;
-
the almost universally-held view of First
Nations individuals that the justice system is alien or foreign;
-
the problem of inadequate legal representation
of First Nations individuals, particularly in the north, resulting in virtually
automatic guilty pleas;
-
but on the positive side, I heard or read some
commentary to the effect that if positive changes are made to the justice
system then the reticence of First Nations individuals to participate on juries
will lessen.
-
In
order to address these systemic issues, I recommend that:
RECOMMENDATION 3:
after obtaining the input of the Implementation Committee, the Ministry of the Attorney General
provide cultural training for all government officials working in the justice
system who have contact with First Nations peoples, including police, court
workers, Crown prosecutors, prison guards and other related agencies.
I
appreciate that a certain level of cultural training is already provided,
having been the beneficiary of such training myself as a former judge. However,
this training must be consistent, comprehensive and broadly available to all persons working in the justice system who
have contact with First Nations peoples, not episodic, ad hoc or limited
to certain groups of people.
RECOMMENDATION 4: the Ministry of the Attorney General
carry out the following studies
for eventual input by the Implementation Committee:
- a study on legal representation
that would involve Legal Aid Ontario, particularly in the north, that would
cover a variety of topics, including the adequacy of existing legal representation, the location and schedule of court
sittings, and related matters. Particular attention should be paid to
the practice in the Northwest Territories of holding hearings in remote locations and drawing jury rolls exclusively from
residents within 30 kilometres of the court. Similarly, in Alaska the jury pool is drawn from residents within 50 miles of remote courthouses and the defendant has the ability to challenge
the representativeness of the jury pool, among other improvements
implemented by the state of Alaska outlined in paragraph 193. Northern Ontario’s
geographical and demographic conditions are very similar to these two
jurisdictions;
- a study on First Nations
policing issues, including the recognition of First Nations police forces
through enabling legislation, the establishment of a regulatory body to oversee
the operation of First Nations law
enforcement programs, the creation of an independent review board to
adjudicate policing complaints, and the development of mandatory cultural
competency training for OPP officers; and
- a review of the Aboriginal
Court Worker program and an examination of resources
required to improve the program.
These studies and reviews
need not be long, drawn-out initiatives, and could be carried out by Ministry
staff, of course in consultation with First Nations. Ultimately the studies and
review should be submitted to the Implementation Committee for review and
recommendations.
RECOMMENDATION 5: the Ministry of the Attorney General
create an Assistant Deputy Attorney General (ADAG) position responsible for
Aboriginal issues, including the implementation of this Report. This official
would need a small support group that could draw on the expertise of officials already in the Ministry. The ADAG would have
ongoing responsibility for matters affecting First Nations and jury representation, as well as issues with
the justice system, as deemed appropriate. This person should be a
member of the Implementation Committee, and his/her colleagues would be
actively involved in providing input through him/her to the Committee and to
the advisory group to the Attorney General as directed. As an example of
his/her role, noting the confusion and lack of transparency regarding jury
districts in Ontario, the ADAG should be asked to make a map of these districts
publicly available.
RECOMMENDATION 6: after obtaining the input of the Implementation
Committee, the Ministry of the Attorney General provide broader and more
comprehensive justice education programs for First Nations individuals,
including:
- developing brochures in
First Nations languages with plain wording which provide comprehensive
information on the justice system, including information respecting
the role played by criminal, civil, and coroner’s juries;
- establishing First Nations
liaison officers responsible for consulting with First Nations
on juries and on justice issues. The officers would be assigned approximately
15 reserves for their liaison work and would be First Nations people. The
officers would also undergo a training
program to provide them with the background information necessary to perform
their roles; this program would be developed by the Ministry of the Attorney
General.
The liaison officers could be tasked with holding Jury Information Forums on
the reserves within their purview;
- commissioning the creation
of video or other educational instruments, particularly in First Nations
languages, that would be used to educate First Nations individuals as to the
role played by the jury in the justice system and the importance of
participating
on the jury; and
- considering the
feasibility of a program that would enlist students from Ontario law schools to
participate in intensive summer education and legal assistance programs
for First Nations representatives, dealing with the justice system generally
and the
jury system in particular, in consultation with Chiefs, and Court Services
officials.
It
is important to emphasize that all of the education initiatives above would
have to be carried out with the input of the Implementation Committee, but also
in consultation with PTOs, other associations, and First Nations.
RECOMMENDATION
7: With respect to First Nations youth, in addition to having a youth member on
the Implementation Committee, the Implementation Committee should request that
the Provincial Advocate for Children and Youth facilitate a conference of
representative youth members from First Nations reserves to focus on specific
issues in the relationship between youth, juries, and the justice system,
addressed in this report. The Provincial Advocate for Children and Youth should
prepare a report on that conference; prior to submitting the report to the
Implementation Committee the Provincial Advocate for Children and Youth should
consult with PTOs and other First Nations associations.
4. Recommendations Respecting the Reform of the
Jury Selection Process
-
There
is a consensus shared with everyone with whom I met, including government
officials, that the current practices followed by Court Services officials to
compile the jury list are not achieving results that adequately represent First Nations individuals on the jury roll. It is
clear that steps must be taken to obtain access to a database that
contains an up-to-date record of the names of individuals living on reserve.
The current reliance by Court Services
officials on obtaining the names from Band List information, though resulting
from well-meaning efforts, is ad hoc and leads in many cases to out-of-date and
otherwise unreliable information being used to compile the jury roll. In
addition to obtaining an accurate and comprehensive data base, it is clear that
much more needs to be done to encourage First Nations individuals to complete
and return jury questionnaires when they receive them, and to serve on juries
when summonsed to do so.
-
As with my recommendations respecting systemic issues,
it is crucial that approaches to deal with these challenges
be carried out collaboratively with PTOs and First Nations and coordinated
through the Implementation Committee described above, that they take
into consideration interests of individual privacy, and that they give due
respect to First Nations’ autonomy. My hope is that if these issues are pursued
on the basis of a relationship of mutual
respect and consistently with the government-to-government relationship between First Nations and Ontario, First Nations
governments will cooperate to find practical solutions that will
overcome these privacy and other logistical issues, so that an appropriate
comprehensive an accurate database of First Nations individuals living on
reserve can be compiled.
-
In
order to address these issues, I recommend that:
RECOMMENDATION
8: the Ministry of the Attorney General, in consultation with the
Implementation Committee, undertake a prompt and urgent review of the
feasibility of, and mechanisms for, using
the OHIP database to generate a database of First Nations individuals living on
reserve for the purposes of compiling the jury roll. This appears to me
to be the most promising means by which First Nations names can be added to
jury rolls. It is my hope that, if it proves feasible, the use of the OHIP
database will be implemented on an urgent basis.
RECOMMENDATION 9: in connection with this review, the
Ministry of Attorney General and First Nations, in consultation with the Implementation
Committee, consider all other potential sources for generating this database,
including band residency information, Ministry of Transportation information and other records, and steps that
might be taken to secure these records, such as a renewed memorandum of understanding between
Ontario and the Federal government respecting band residency information
or memorandums of understanding between Ontario and PTOs or First Nations, as
appropriate.
RECOMMENDATION
10: the Ministry of the Attorney General, in consultation with the
Implementation Committee, consider amending the questionnaire sent to
prospective jurors to:
- make the language as
simple as possible;
- translate the
questionnaire into First Nations languages as appropriate;
- remove the wording
threatening a fine for non-compliance and replacing it with wording stating
simply that Ontario law requires the recipient to complete and return the form because of the importance of the jury in ensuring
fair trials under Ontario’s justice system;
- on the premise that a
First Nations member living on reserve in Ontario satisfies the Canadian
citizenship requirement under s. 2(b) of the Juries Act, add an option
for First Nations individual to identify themselves as First Nations members or
citizens rather than Canadian citizens;
- enable First Nations
elected officials, such as Chiefs and Councillors, as well as Elders,
to be excluded from jury duty; and
- provide, through an
amendment to the Juries Act, for a more realistic period than
the current five days for the return of jury questionnaires.
RECOMMENDATION
11: the Ministry of the Attorney General, in consultation with the
Implementation Committee, consider implementing the practice from parts of the
U.S., that when a jury summons or
questionnaire is undeliverable or is not returned, another summons or
questionnaire is sent out to a
resident of the same postal code, thereby ensuring that nonresponsive
prospective jurors do not undermine jury representativeness.
RECOMMENDATION
12: the Ministry of the Attorney General, in consultation with the
Implementation Committee, consider a procedure whereby First Nations people on
reserve could volunteer for jury service as a means of supplementing other jury
source lists. This is practised in New York State as a way to supplement jury
rolls drawn from several other lists that might overlook certain individuals,
and could serve a similarly valuable purpose with respect to First Nations
peoples in Ontario. By supplementing other jury source lists in this manner,
the Ministry of the Attorney General and the Implementation Committee would wish
to be satisfied that this would not offend the randomness principle.
RECOMMENDATION
13: the Ministry of the Attorney General, in consultation with the
Implementation Committee, consider enabling First Nations people not fluent in
English or French
to serve on juries by providing translation services and by amending the jury
questionnaire accordingly to reflect this change.
RECOMMENDATION
14: the Ministry of the Attorney General, in consultation with the
Implementation Committee, adopt measures to respond to the problem of First
Nations individuals with criminal records for minor offences being
automatically excluded from jury duty by:
- amending the Juries Act
provisions that exclude individuals who have been convicted of certain offences from inclusion on the jury roll,
to make them consistent with the relevant Criminal Code
provisions, which exclude a narrower group of individuals;
- encouraging and providing
advice and support for First Nations individuals to apply
for pardons to remove criminal records; and
- considering whether, after
a certain period of time, an individual previously convicted of certain
offences could become eligible again for jury service. In New South Wales,
people with prior convictions are barred from jury service for two to five years,
depending on the offence.
RECOMMENDATION
15: the Ministry of the Attorney General discuss with the Implementation Committee the advisability of recommending to the
Attorney General of Canada an amendment to the Criminal Code that would prevent the use of peremptory
challenges to discriminate against First Nations people serving on
juries. A practice that has developed in the U.S. by which judges are able to
supervise the exercise of peremptory challenges, if a judge is of the opinion
that the challenge is being used in a discriminatory manner. The point of this
is that, if every change in the Report is
implemented to its fullest, First Nations jury service could still be
significantly undermined through discriminatory use of peremptory
challenges. It should also be recalled that the Manitoba Inquiry report recommended the abolition of
peremptory challenges to avoid the underrepresentation of Aboriginal
people on juries.
5. Recommendations Respecting Jury Member
Compensation
-
The current
compensation for jury members of $40 per day from the 11th to 49th day of a
trial, and $100 per day after the 49th day,
has been in place since 1991. Considering the Consumer Price Index, if these
figures had risen with inflation, they would have stood at $57.92, and $144.81
at the end of 2011, respectively.[274]
-
We
heard many concerns expressed about the low levels of compensation as well as
failure to reimburse for the real costs incurred by a prospective juror for
child care or Elder case expenses. We have not had sufficient time or resources to examine this issue with the thoroughness
it deserves. However, from all that I have heard on the subject an
upward adjustment appears to be warranted, as does a reconsideration of the
present provision of no compensation for the first ten days of jury service.
-
RECOMMENDATION
16: In view of the concerns I have heard and the fact that current jury
compensation is not consistent
with cost-of-living increases, I recommend that the Ministry of the Attorney
General refer the issue of jury member compensation to the Implementation
Committee for consideration and recommendation.
6. Recommendations Respecting Coroner’s Inquests
-
The
issue of improving First Nations representation on coroner’s inquests is worthy
of special consideration for at least four reasons.
-
First,
as described at paragraphs 102 and 103 above, the role played by coroner’s
juries in answering certain questions and making recommendations, as opposed to
making findings of guilt, is remarkably consistent
with what has been described to me as the traditional way in which justice has
been administered by First Nations
communities. My experience in speaking with First Nations individuals was that,
while they expressed reluctance to engage in the “judging” involved in
being on a criminal jury, they were interested to learn about how the coroner’s
jury process works and expressed interest in becoming involved.
-
Second,
although members of coroner’s inquest juries are drawn from the same list as
jurors for criminal and civil trials, the process by which the coroner selects
a jury is distinct from the criminal and civil jury selection process. As I
described at paragraph 102 above, when the coroner begins an inquest, he or she
issues a warrant which requires the Provincial Jury Centre to provide a list of
jurors living in the area where the death occurred. The Coroner’s Constable
then selects the names of people whom he or she believes to be “suitable to
serve as jurors at an inquest” from that list and issues summonses requiring
them to attend at the place of inquest. This process is significantly different
from the criminal jury process in particular, which emphasizes the importance
of random selection and provides procedural protections for the accused and
Crown to challenge jurors and have them removed from the list.
-
Third,
it is apparent that the families of First Nations individuals who are the
subject of coroner’s inquests have a strong
and compelling interest in having First Nations individuals, ideally from same
community as the individual whose death is being investigated, take part
in the coroner’s inquest jury. I was very moved to hear these families’ stories
during the forum organized by Aboriginal Legal Services Toronto. While I do not
want to underestimate the importance of First Nations individuals serving on
criminal juries, I note that the issue of underrepresentation of First Nations
individuals on juries has been particularly prominent in the context of
coroner’s inquests.
-
Finally,
I heard during the engagement process and in the submissions of a number of
participants that some First Nations individuals might have an interest in
volunteering for jury duty. I understand that this may raise issues of
randomness in the context of a criminal or civil trial (though, as I have pointed
out, volunteering for jury duty exists in New York State). That is why I have
recommended that volunteer service for criminal juries be further considered by
the Implementation Committee. But volunteering to be on the jury roll for a
coroner’s inquest is compatible with the distinct way in which a coroner’s jury
is empanelled, as well as the unique objectives of a coroner’s inquest.
-
RECOMMENDATION 17: For all of the above reasons, I
recommend that the Ministry of the Attorney General, in consultation with the
Implementation Committee, institute a process that would allow for First
Nations individuals to volunteer to be on the jury roll for the purposes of
empanelling a jury for a coroner’s inquest.
Appendix A
Order in Council
O.C./Décret 1388/2011
On the
recommendation of the undersigned, the Lieutenant Governor, by and with the
advice and concurrence of the Executive Council, orders that:
WHEREAS
the Juries Act, R.S.O. 1990, c. J.3, governs the jury process in Ontario, including the process for preparing the jury roll;
WHEREAS
subsection 6 (8) of the Juries Act prescribes the process for selecting
persons living on reserve communities for potential inclusion on the jury roll;
WHEREAS
it has been determined that it is desirable to authorize under the common law,
pursuant to the prerogative of Her Majesty the Queen in right of Ontario, and
in the discharge of the government’s executive functions, an individual to
review the process for including persons
living on reserve communities on the jury roll and to do so
independently of government and on a systemic basis;
WHEREAS
Nishnawbe Aski Nation has resolved as a political territorial organization to
work with the Ontario government and the Independent Reviewer to enhance the
representation on jury rolls of First Nations persons living on reserve
communities in its territories;
WHEREAS
other First Nations have been,
and are, or may be desirous of the same goal;
AND
WHEREAS it is desirable to set out the terms of reference for such a review;
THEREFORE,
it is ordered that the Honourable Frank
Iacobucci be appointed as an Independent Reviewer and authorized to conduct such a review;
AND THAT
the terms of reference for the Honourable Frank Iacobucci be as follows:
MANDATE
- The
Independent Reviewer shall conduct a systemic review and report on any relevant
legislation and processes for including First Nations persons living on reserve
on the jury roll from which potential jurors are selected for all jury trials
and coroners inquests, in order to make recommendations:
- to
ensure and enhance the representation of First Nations persons living on
reserve communities on the jury roll; and
- to strengthen the understanding, cooperation and
relationship between the Ministry of the Attorney General and First Nations on
this issue.
- The
Independent Reviewer shall conduct the review in an expeditious manner and
shall deliver his final report and recommendations to the Attorney General no
later than August 31, 2012.
- While
promoting the achievement of the goals described above, any recommendations
developed should take into account the challenging fiscal context for
government and First Nations in Ontario.
- In
conducting the review, the Independent Reviewer shall:
- review the existing legislation and processes, practices and past practices;
- review and consider any existing records or reports relevant to this mandate,
including jury rolls in a systemic context, and any transcripts relating to public legal proceedings;
- conduct interjurisdictional analysis, including any relevant legislation, and
identify best practices.
- In
conducting the review, the Independent Reviewer may request any person to
provide information or records to him, hold
public and/or private meetings and hold consultations with First Nations communities, including attendances on
First Nations communities.
- The
Independent Reviewer shall invite and receive submissions in writing from any
First Nation, First Nation political territorial organization, First Nation
organization, member of
a First Nation as well as from any interested party, including ministries of
government.
7. In fulfilling his mandate, the Independent Reviewer shall not report on any
individual cases that are, have been, or may be subject to a criminal investigation
or
8. The Independent Reviewer shall perform his duties without making any
findings of fact
in relation to misconduct, or expressing any conclusions or recommendations
regarding the civil or criminal liability of any person or organization, and
without interfering in any investigations or criminal or other legal
proceedings.
- In
delivering his report to the Attorney General, the Independent Reviewer shall
ensure that the report is in a form appropriate, pursuant to the Freedom of
Information and Protection of Privacy Act and other applicable legislation,
and in sufficient quantity, for public release and be responsible for
translation and printing, and shall ensure that it is available in English,
French, Cree, Ojibway, Oji-Cree and Mohawk at the same time, in electronic and
printed versions. The Attorney General shall make the report available to the
public.
RESOURCES
- Within a budget approved by the Ministry of the
Attorney General the Independent Reviewer may retain such counsel,
staff, or expertise he considers necessary
in the performance of his duties at reasonable remuneration approved by
the Ministry of the Attorney General. They shall be reimbursed for reasonable
expenses incurred in connection with their duties in accordance with Management
Board of Cabinet Directives and Guidelines.
- The
Independent Reviewer shall establish and maintain
a website and use other technologies to promote accessibility and
transparency to the public.
- The
Independent Reviewer shall follow Management Board of Cabinet Directives and
Guidelines and other applicable government policies in obtaining other services
and goods he considers necessary in the performance of his duties unless, in
his view, it is not possible to follow them.
- The
Independent Reviewer may make recommendations
to the Attorney General or the Deputy Attorney General regarding funding
for parties who have information relevant to the systemic issues and who would
be unable to participate
in the review without such funding. Any such funding
recommendations shall be in accordance with Management Board of Cabinet
Directives and Guidelines.
- All
ministries and all agencies, boards and commissions of the Government of
Ontario shall, subject to any privilege or
other legal restrictions, assist the Independent Reviewer to the fullest
extent so that the Independent Reviewer may carry out his duties and shall
respect the independence of the review.
Décret
O.C./Décret
1388/2011
Sur la
recommandation de la personne soussignée, le lieutenant-gouverneur, sur l’avis
et avec le consentement du Conseil exécutif, décrète ce qui suit :
ATTENDU
QUE la Loi sur les jurys (L.R.O. 1990, chap. J.3) régit le processus de
sélection des jurés en Ontario, y compris la préparation dela liste des jurés;
ATTENDU QUE le paragraphe 6 (8) de la Loi sur les jurys prescrit le processus de sélection des personnes
vivant dans des réserves en vue de leur éventuelle inclusion sur la liste des
jurés;
ATTENDU QU’il a été déterminé qu’il est souhaitable d’autoriser, en common
law et selon la prérogative de Sa Majesté la Reine du chef de l’Ontario, et dans le cadre des
fonctions exécutives du gouvernement, un particulier à examiner la
procédure d’inclusion des personnes vivant dans des réserves sur la
liste des jurés et ce, indépendamment du gouvernement et sur une base
systémique;
ATTENDU
QUE Nishnawbe Aski Nation a résolu, en tant qu’organisation territoriale
politique, de travailler avec le gouvernement de l’Ontario et l’examinateur
indépendant pour accroître la représentation,
sur les listes de jurés, des membres des Premières nations vivant dans
des réserves situées sur ses territoires;
ATTENDU
QUE d’autres Premières nations ont aspiré, aspirent ou peuvent aspirer au même
but;
ET
ATTENDU QU’il est souhaitable d’énoncer le cadre de référence d’un examen de ce
genre;
EN
CONSÉQUENCE, il est ordonné que l’honorable Frank Iacobucci soit nommé
à titre d’examinateur indépendant et autorisé à procéder à cet examen;
ET QUE le
mandat de l’honorable Frank Iacobucci soit le suivant :
MANDAT
- L’examinateur indépendant procède à un examen systémique et prépare un rapport
sur les dispositions législatives et la procédure pertinentes en vue d’inclure
des membres des Premières nations vivant dans des réserves sur la liste des jurés à partir de laquelle sont
choisis les jurés potentiels pour tous les procès devant jury et toutes les enquêtes du coroner, dans le
but de faire des recommandations
visant ce qui suit :
- garantir et accroître la représentation, sur la liste des jurés, des membres
des Premières nations vivant dans des réserves;
- consolider la compréhension, la collaboration et les relations entre le ministère du Procureur
général et les Premières nations en ce qui concerne cette question.
- L’examinateur indépendant procède promptement
à l’examen et remet son rapport final et ses recommandations au
procureur général au plus tard le 31 août 2012.
- Bien qu’elles visent à favoriser la réalisation
des buts énoncés ci-dessus, les recommandations formulées devraient
tenir compte de la conjoncture fiscale difficile à laquelle font
face le gouvernement et les Premières
nations de l’Ontario.
- Dans
le cadre de son examen, l’examinateur indépendant :
- examine les dispositions législatives et la procédure en vigueur ainsi que les
pratiques actuelles et passées;
- examine et étudie les dossiers ou les rapports
existants qui se rapportent à son mandat, y compris les listes de jurés dans un
contexte systémique, et les transcriptions relatives aux procédures judiciaires
publiques;
- procède à une analyse interterritoriale, notamment des dispositions
législatives pertinentes, et détermine les meilleures pratiques à suivre.
- Dans
le cadre de son examen, l’examinateur indépendant peut demander à toute
personne de lui fournir des renseignements ou des documents, tenir des séances
publiques ou à huis clos et engager des consultations avec des collectivités
des Premières nations,
y compris se rendre sur place.
- L’examinateur indépendant demande et reçoit des observations écrites des
Premières nations, de toute organisation territoriale politique des Premières
nations, de toute organisation des Premières
nations, de tout membre d’une Première Nation ainsi que de toute partie
intéressée, y compris des ministères du gouvernement.
- Dans
le cadre de son mandat, l’examinateur indépendant ne doit pas faire rapport sur
des causes particulières qui font, ont fait ou peuvent faire l’objet d’une enquête, notamment pénale, d’une
poursuite pénale ou d’une autre procédure judiciaire.
- L’examinateur indépendant s’acquitte de ses fonctions sans tirer de conclusions
de fait en matière d’inconduite ni formuler
de conclusions ou de recommandations
quant à la responsabilité civile ou pénale de toute personne ou de tout organisme et sans intervenir dans des enquêtes
ou des procédures judiciaires, notamment des poursuites pénales.
- L’examinateur indépendant veille à remettre son rapport au procureur général
sous une forme appropriée, conformément à la Loi sur l’accès à l’information
et la protection de la vie privée et aux autres lois applicables, et en nombre
d’exemplaires suffisant pour sa diffusion
publique et doit en assurer la traduction et l’impression. En outre, il
fait en sorte qu’il soit disponible en même temps en version française,
anglaise, cri, ojibway, ojicri et mohawk et tant sur support électronique que
papier. Le procureur général met le rapport à la disposition du public.
RESSOURCES
- Dans
le cadre d’un budget approuvé par le ministère du Procureur général,
l’examinateur indépendant peut retenir les services des avocats, du personnel
ou des experts qu’il juge nécessaires à l’exercice de ses fonctions selon la
rémunération raisonnable approuvée par le ministère du Procureur général. Les
personnes retenues se font rembourser les frais raisonnables engagés dans
l’exercice de leurs fonctions, conformément aux directives et aux lignes directrices du Conseil de gestion
du gouvernement.
- L’examinateur indépendant se dote d’un site Web et utilise d’autres
technologies pour promouvoir l’accessibilité et la transparence.
- À
moins que, à son avis, cela ne soit pas possible, l’examinateur indépendant
suit les directives et les lignes
directrices du Conseil de gestion du gouvernement ainsi que les autres
politiques applicables du gouvernement dans le cadre de l’obtention des autres
biens et services qu’il estime nécessaires à l’exercice de ses fonctions.
- L’examinateur indépendant peut faire des recommandations au procureur général
ou au sous-procureur général en ce qui concerne le financement des parties qui
détiennent des renseignements se rapportant aux questions systémiques et qui, à
défaut de ce financement, ne seraient pas en
mesure de participer à l’examen. Ces recommandations doivent être
conformes aux directives et aux lignes
directrices du Conseil de gestion du gouvernement.
- Sous réserve de tout privilège ou de toute autre restriction légale, tous les ministères
ainsi que tous les organismes, conseils et commissions du gouvernement de
l’Ontario prêtent sans réserve leur concours à l’examinateur indépendant de
façon qu’il puisse s’acquitter de ses fonctions
et ils respectent l’indépendance de l’examen.
APPENDIX B
Juries
Act
R.S.O. 1990, CHAPTER J.3
Consolidation
Period: From June 30, 2010 to the e-Laws currency date.
Last
amendment: 2009, c. 33, Sched. 2, s. 38.
DEFINITIONS
1. In this Act,
“county” includes a
district; (“comté”)
“Director of
Assessment” means the employee of the Municipal Property Assessment Corporation
who is appointed by the Corporation to be the Director of Assessment under this
Act; (“directeur de l’évaluation”)
“regulations” means
the regulations made under this Act. (“règlements”) R.S.O. 1990, c. J.3, s. 1;
1997, c. 43, Sched. G, s. 22; 2001, c. 8, s. 206.
ELIGIBILITY
Eligible jurors
2. Subject to
sections 3 and 4, every person who,
(a) resides
in Ontario;
(b) is a
Canadian citizen; and
(c) in the
year preceding the year for which the jury is selected had attained the age of
eighteen years or more,
is eligible and liable to serve as a juror on juries in the Superior Court of
Justice in the county in which he or she resides. R.S.O. 1990, c. J.3, s. 2;
2006, c. 19, Sched. C, s. 1 (1).
Ineligibility to serve as
juror
Ineligible occupations
3. (1) The following
persons are ineligible to serve as jurors:
Every
member of the Privy Council of Canada or the Executive Council of Ontario.
Every
member of the Senate, the House of Commons of Canada or the Assembly.
Every
judge and every justice of the peace.
Every
barrister and solicitor and every student-at-law.
Every
legally qualified medical practitioner and veterinary surgeon who is actively
engaged
in practice and every coroner.
Every person
engaged in the enforcement of law including, without restricting the generality
of the foregoing, sheriffs, wardens of any
penitentiary, superintendents, jailers or keepers of prisons, correctional
institutions or lockups, sheriff’s officers, police officers, firefighters who
are regularly employed by a fire department for the purposes of subsection 41
(1) of the Fire Protection and Prevention Act, 1997, and officers of a
court of justice. R.S.O. 1990, c. J.3, s. 3 (1); 1994, c. 27, s. 48 (1); 1997,
c. 4, s. 82.
(2) Repealed: 1994,
c. 27, s. 48 (2).
Connection with court action
at same sittings
(3) Every person who
has been summoned as a witness or is likely to be called as a witness in a
civil or criminal proceeding or has an interest in an action is ineligible to
serve as a juror at any sittings at which the proceeding or action might be
tried. R.S.O. 1990, c. J.3, s. 3 (3).
Previous service
(4)
Every person who, at any time within three years preceding the year for which
the jury roll is prepared, has attended
court for jury service in response to a summons after selection from the roll
prepared under this Act or any predecessor thereof is ineligible to serve as a
juror in that year. R.S.O. 1990, c. J.3, s. 3 (4); 1994, c. 27, s. 48 (3).
Ineligibility for personal
reasons
4. A person is
ineligible to serve as a juror who,
(a) has a
physical or mental disability that would seriously impair his or her ability to
discharge
the duties of a juror; or
(b) has been
convicted of an offence that may be prosecuted by indictment, unless the person
has subsequently been granted a pardon. R.S.O. 1990, c. J.3, s. 4; 2009, c. 33,
Sched. 2, s. 38 (1).
PREPARATION OF JURY ROLLS
Duty of sheriff
Number of jurors on roll
5. (1) The sheriff
for a county shall on or before the 15th day of September in each year
determine
for the ensuing year for the county,
the
number of jurors that will be required for each sittings of the Superior Court
of Justice;
the
number of persons that will be required for selection from the jury roll for
the purposes
of any other Act; and
the
aggregate number of persons that will be so required. R.S.O. 1990, c. J.3, s. 5
(1); 2006, c. 19, Sched. C, s. 1 (1).
Number of jurors in districts
(2) In a territorial district, after determining
the number of persons that will be required for service during the ensuing
year, the sheriff shall fix the total number of persons that shall be selected
from municipalities, and the total number that shall be selected from territory
without municipal organization. R.S.O. 1990,
c. J.3, s. 5 (2).
Transmission of resolutions
(3) The sheriff shall
forthwith upon making the determination under subsection (1) certify and
transmit,
(a) to the
Director of Assessment,
(i) a
copy of the determination declaring the aggregate number of persons required
for the jury roll in the county in the ensuing year, and
(ii) a
statement of the numbers of jury service notices to be mailed to persons in the
county; and
(b) to the
local registrar of the Superior Court of Justice, a copy of the determination
for the number
of jurors under clause (1) (a). R.S.O. 1990, c. J.3, s. 5 (3); 2006, c. 19,
Sched. C, s. 1 (1).
Jury service notices
6. (1) The Director
of Assessment shall in each year on or before the 31st day of October cause a
jury service notice, together with a return to the jury service notice in the
form prescribed by the regulations and a prepaid return envelope addressed to
the sheriff for the county, to be mailed by first class mail to the number of
persons in each county specified in the sheriff’s statement, and selected in
the manner provided for in this section. R.S.O. 1990, c. J.3, s. 6 (1).
Selection of persons notified
(2) The persons to
whom jury service notices are mailed under this section shall be selected by
the Director of Assessment at random from persons who, from information
obtained at the most recent enumeration of the inhabitants of the county under
section 15 of the Assessment Act,
(a) at the
time of the enumeration, resided in the county and were Canadian citizens; and
(b) in the
year preceding the year for which the jury is selected, are of or will attain
the age
of eighteen years or more,
and the number of
persons selected from each municipality in the county shall bear approximately
the same proportion to the total number selected for the county as the total
number of persons eligible for selection in the municipality bears to the total
number eligible for selection in the county, as determined by the enumeration.
R.S.O. 1990, c. J.3, s. 6 (2).
Application of subs. (2) to
municipalities in districts
(3) In a territorial
district for the purposes of subsection (2), all the municipalities in the
district shall together be treated in the same manner as a county from which
the number of jurors required is the number fixed under subsection 5(2) to be
selected from municipalities. R.S.O. 1990, c. J.3, s. 6 (3).
Address for mailing
(4) The jury service notice to a person under this
section shall be mailed to the person at the address shown in the most
recent enumeration of the inhabitants of the county under section 15 of the Assessment
Act. R.S.O. 1990, c. J.3, s. 6 (4).
Return to jury service notice
(5) Every person to
whom a jury service notice is mailed in accordance with this section shall
accurately and truthfully complete the return and shall mail it to the sheriff
for the county within five days after receipt thereof. R.S.O. 1990, c. J.3, s.
6 (5).
When service deemed made
(6) For the purposes
of subsection (5), the notice shall be deemed to have been received on the
third day after the day of mailing unless the person to whom the notice is
mailed establishes that he or she, acting in good faith, through absence,
accident, illness or other cause beyond his or her control did not receive the
notice or order, or did not receive the notice or order until a later date.
R.S.O. 1990, c. J.3, s. 6 (6).
List of notices given
(7) The Director of
Assessment shall furnish to the sheriff for the county a list of persons in the
county arranged alphabetically to whom jury service notices were mailed under
this section forthwith after such mailing and the list received by the sheriff
purporting to be certified by the Director of Assessment is, without proof of
the office or signature of the Director of Assessment, receivable in evidence
in any proceeding as proof, in the absence of evidence to the contrary, of the
mailing of jury service notices
to the persons shown on the list. R.S.O. 1990, c. J.3, s. 6 (7).
Indian reserves
(8) In the selecting
of persons for entry in the jury roll in a county or district in which an
Indian reserve
is situate, the sheriff shall select names of eligible persons inhabiting the
reserve in the same manner
as if the reserve were a municipality and,
for the purpose, the sheriff may obtain the names of inhabitants
of the reserve from any record available. R.S.O. 1990, c. J.3, s. 6 (8).
Sheriff to prepare jury roll
7. The sheriff shall
in each year prepare a roll called the jury roll in the form prescribed by the
regulations. R.S.O. 1990, c. J.3, s. 7.
Entry of names in jury roll
8. (1) The sheriff
shall open the returns to jury service notices received by the sheriff and
shall cause the name, address and occupation of each person making such a
return, who is shown by the return to be eligible for jury service, to be
entered in the jury roll alphabetically arranged and numbered consecutively.
R.S.O. 1990, c. J.3, s. 8 (1); 1994, c. 27, s. 48 (4).
English, French and bilingual
jurors
(2) The jury roll
prepared under subsection (1) shall be divided into three parts, as follows:
1. A part
listing the persons who appear, by the returns to jury service notices, to
speak,
read and understand English.
2. A part
listing the persons who appear, by the returns to jury service notices, to
speak,
read and understand French.
3. A part
listing the persons who appear, by the returns to jury service notices, to
speak,
read and understand both English and French. 1994, c. 27, s. 48 (5).
Omission of names
(3) The sheriff may,
with the written approval of a judge of the Superior Court of Justice, omit the
name from the roll where it appears such
person will be unable to attend for jury duty. R.S.O. 1990, c. J.3, s. 8 (3);
2006, c. 19, Sched. C, s. 1 (1).
Supplementary names
(4) The sheriff may
request the Director of Assessment to mail such number of additional jury
service notices and forms of returns to jury service notice as in the opinion
of the sheriff are required. R.S.O. 1990, c. J.3, s. 8 (4).
Supplying of supplementary
names
(5) Upon receipt of
a request from the sheriff under subsection (4), the Director of Assessment
shall forthwith carry out such request and for such purpose section 6 applies
with necessary modifications with respect to the additional jury service
notices requested by the sheriff to be mailed. R.S.O. 1990,
c. J.3, s. 8 (5).
Selection from unorganized
territory
(6) In a territorial district, the sheriff shall
select names of eligible persons who reside in the district outside
territory with municipal organization in the numbers fixed under subsection
5(2) and for the purpose may have recourse to the latest polling list prepared
and certified for such territory, and to any assessment or collector’s roll
prepared for school purposes and may obtain names from any other record
available. R.S.O. 1990, c. J.3, s. 8 (6).
Certification of roll
9. As soon as the
jury roll has been completed but not later than the 31st day of December in
each year, the sheriff shall certify the roll to be the proper roll prepared as
the law directs and shall deliver notice of the certification to a judge of the
Superior Court of Justice, but a judge of the court may extend the time for
certification for such reasons as he or she considers sufficient. R.S.O. 1990,
c. J.3, s. 9; 2006, c. 19, Sched. C, s. 1 (1).
Extension of times
10. The Chief
Justice of the Superior Court of Justice may, upon the request of the sheriff
for a county, extend any times prescribed by this Act in connection with the
preparation of the jury roll for the county to such date as the Chief Justice
considers appropriate and may authorize the continued use of the latest jury roll
until the dates so fixed. R.S.O. 1990, c. J.3, s. 10; 2006, c. 19, Sched. C, s.
2 (1).
Additions to roll by sheriff
11. (1) Where there
are no persons or not a sufficient number of persons on the proper jury roll,
or where there is no jury roll for the year in existence, the sheriff may
supply names of eligible jurors from the jury rolls
for the three nearest preceding years for which there is a jury roll or
certified copy thereof in existence. R.S.O. 1990, c. J.3, s. 11 (1).
Certification of additions by
sheriff
(2) The names
supplied to the jury roll under this section shall be entered thereon and
certified by the sheriff. R.S.O. 1990, c. J.3, s. 11 (2).
JURY PANELS
Issuance of precepts
12. A judge of the
Superior Court of Justice may issue precepts in the form prescribed by the
regulations to the sheriff for the return of such number of jurors as the
sheriff has determined as the number to be drafted and returned or such greater
or lesser number as in his or her opinion is required. R.S.O. 1990,
c. J.3, s. 12; 2006, c. 19, Sched. C, s. 1 (1).
Two or more sets of jurors
13. (1) Where a
judge of the Superior Court of Justice considers it necessary that the jurors
to form the panel for a sittings of the Superior Court of Justice be summoned
in more than one set, the judge may direct the sheriff to return such number of
jurors in such number of sets on such day for each set as he
or she thinks fit. R.S.O. 1990, c. J.3, s. 13 (1); 2006, c. 19, Sched. C, s. 1
(1).
Sheriff to divide jurors into
sets
(2) The sheriff
shall divide such jurors into as many sets as are directed, and shall in the
summons to every juror specify at what time his or her attendance will be
required. R.S.O. 1990, c. J.3, s. 13 (2).
Each set a separate panel
(3) Each set shall
for all purposes be deemed a separate panel. R.S.O. 1990, c. J.3, s. 13 (3).
Additional jurors
14. (1) A judge of
the Superior Court of Justice, after the issue of the precept, at any time
before or during the sittings of the court,
by order under his or her hand and seal, may direct the sheriff to return an
additional number of jurors. R.S.O. 1990, c. J.3, s. 14 (1); 2006, c.
19, Sched. C, s. 1 (1).
Duty of sheriff as to
drafting additional number of jurors
(2) The sheriff,
upon the receipt of an order under subsection (1), shall forthwith draft such
additional number of jurors in the manner provided by this Act, and shall add
their names to the panel list, and shall forthwith thereafter summon them, and
where there are not a sufficient number of jurors on the jury roll for the
purpose of the additions, section 11 applies. R.S.O. 1990, c. J.3, s. 14 (2).
How sheriffs to draft panels
of jurors
15. Every sheriff to
whom a precept for the return of jurors is directed shall, to such precept,
return a panel list of the names of the jurors contained in the jury roll,
whose names shall be drafted from such
roll in the manner hereinafter mentioned. R.S.O. 1990, c. J.3, s. 15.
Sheriff to draft panel
16. Upon receipt of
the precept, the sheriff shall post up in his or her office written notice of
the day, hour and place at which the panel of jurors will be drafted, and the
sheriff shall draft the panel by ballot from the jury roll in the presence of a
justice of the peace who shall attend upon reasonable notice from the sheriff.
R.S.O. 1990, c. J.3, s. 16.
How sheriff to prepare a
panel
17. (1) Before
proceeding to draft a panel of jurors from a jury roll, the sheriff shall
prepare a proper title or heading for the list of jurors to be returned, to
which he or she shall fix an appropriate number according as such panel is the
first, second, third or subsequent panel drafted from such jury roll, and the
title or heading shall set forth the number of jurors to be returned. R.S.O.
1990, c. J.3, s. 17 (1).
Ballots for drafting panel
(2) The sheriff
shall then append to such title or heading a list of numbers from “1” forward
to the number required, and shall prepare a set of ballots of uniform and
convenient size containing the same number of ballots
as there are numbers on the jury roll, allowing one number to each ballot,
which number shall be printed or written on it, and the sheriff shall
then proceed to draft the panel of jurors. R.S.O. 1990, c. J.3, s. 17 (2).
Drafting of panel
18. (1) The sheriff
shall draft the panel by drawing at random the ballots from a container in the
presence of the justice of the peace. R.S.O. 1990, c. J.3, s. 18 (1).
Panel list
(2) The names of the
persons so drafted, arranged alphabetically, with their places of residence and
occupations shall then be transcribed by the sheriff, with a reference to the
number of each name on the jury roll, and each name shall be thereupon marked
by the sheriff or the sheriff’s deputy upon the jury roll. R.S.O. 1990, c. J.3,
s. 18 (2).
(3) Repealed: 1994,
c. 27, s. 48 (6).
Idem
(4) The panel list
so alphabetically arranged and numbered, with a short statement of the precept
in obedience to which it has been drafted, the date and place of such drafting,
and the names of the sheriff, or the sheriff’s deputy and the justice of the
peace, present at such drafting, shall then be recorded and attested by the
signatures of the sheriff, or the sheriff’s deputy and the justice of the
peace, and such panel list shall be retained in the custody of the sheriff.
R.S.O. 1990, c. J.3, s. 18 (4).
Automated procedure for
drafting panel
18.1 (1) Instead of following the procedure described in sections 15 to 18 to draft
a panel of jurors, the sheriff may use
any electronic or other automated procedure to accomplish the same result.
1994, c. 27, s. 48 (7).
Non-application of certain
requirements
(2) When a jury
panel is being drafted under subsection (1),
notice
need not be posted as set out in section 16;
the
participation of a justice of the peace, as referred to in section 16 and subsections
18 (1)
and (4), is not required. 1994, c. 27, s. 48 (7).
Criminal record check
18.2 (1) For the
purposes of confirming whether clause 4 (b) applies in respect of a person
selected under section 18 or 18.1 for inclusion on a jury panel, the sheriff
may, in accordance with this section and the regulations, request that a
criminal record check, prepared from national data on the Canadian Police
Information Centre database, be conducted concerning the person. 2009, c. 33,
Sched. 2, s. 38 (2).
Timing
(2) A criminal
record check concerning a person that is requested under subsection (1) shall
be obtained by the sheriff before he or she finalizes the jury panel on which
the person is to be included. 2009, c. 33, Sched. 2, s. 38 (2).
Collection, use and disclosure
of personal information by sheriff
(3)
Subject to any restrictions or conditions set out in the regulations, the
sheriff shall collect, directly or indirectly, use and disclose such personal
information respecting a person who is the subject of a criminal record check under subsection (1)
as is required for the purposes of this section. 2009, c. 33, Sched. 2, s. 38
(2).
Agreement with police force
(4) The sheriff may
enter into an agreement with a police force that is prescribed by the
regulations respecting,
(a) the
preparation of a criminal record check by the police force for the purposes of
this section; and
(b) the
collection, use and disclosure of personal information by the police force for
the purposes
of the criminal record check. 2009, c. 33, Sched. 2, s. 38 (2).
Removal and replacement
(5) If, on review of
a person’s criminal record check, the sheriff determines that clause 4 (b)
applies
in respect of the person, the sheriff shall,
(a) remove
the person from the jury panel on which the person was to have been included;
(b) remove
the person’s name and other information from the jury roll for the applicable
year; and
(c) draft, in
accordance with section 18 or 18.1, as the case may be, another person for the
jury panel to replace the person who was removed. 2009, c. 33, Sched. 2, s. 38
(2).
Notice
Summoning jurors 21 days before attendance required
19. (1) The sheriff
shall summon every person drafted to serve on juries by sending to the person
by ordinary mail a notice in writing in the form prescribed by the regulations
under the hand of the sheriff at least twenty-one days before the day upon
which the person is to attend, but when the sheriff is directed to draft and
summon additional jurors under this Act, such twenty-one days service is not
necessary. R.S.O. 1990, c. J.3, s. 19 (1).
Excusing of jurors
(2) The sheriff may
excuse any person summoned for a jury sittings on the ground,
(a) of
illness; or
(b) that
serving as a juror may cause serious hardships or loss to the person or others,
but unless a judge
of the Superior Court of Justice directs otherwise and despite any other
provision of this Act, such person shall be included in a panel to be returned
for a sittings later in the year or, where there
are not further sittings in that year, in a panel to be returned for a sittings
in the year next following. R.S.O. 1990, c. J.3, s. 19 (2); 2006, c. 19,
Sched. C, s. 1 (1).
Secrecy of jury roll and
panel
20. The jury roll
and every list containing the names of the jury drafted for any panel shall be
kept under lock and key by the sheriff, and except in so far as may be
necessary in order to prepare the panel lists, and serve the jury summons,
shall not be disclosed by the sheriff, the sheriff’s deputy, officer, clerk, or
by the justice of the peace mentioned in section 16, or by any other person,
until ten days before the sittings of the court for which the panel has been
drafted, and during such period of ten days, the sheriff, or the sheriff’s
deputy, shall permit the inspection at all reasonable hours of the jury roll
and of the panel list or copy thereof in his or her custody by litigants or
accused persons or their solicitors and shall furnish the litigants or accused
persons or their solicitors, upon request and payment of a fee of $2, with a
copy of any such panel list. R.S.O. 1990, c. J.3, s. 20.
Attendance of jurors
postponed or not required
Countermand where no jury cases
21. (1) Where there
is no business requiring the attendance of a jury at a sittings in respect of
which a precept has been issued,
(a) the local
registrar, where the sittings is for the trial of actions; or
(b) the Crown
Attorney, where the sittings is for the trial of criminal prosecutions,
shall, at least five
clear days before the day upon which the sittings is to commence, give notice
in writing to the sheriff in the form prescribed by the regulations that the
attendance of the jurors is not required. R.S.O. 1990, c. J.3, s. 21 (1).
Postponement of date for
attendance of jurors
(2) Where the
business of the court does not require the attendance of the jurors until a day
after the day upon which the sittings is to commence, the appropriate officer
determined under subsection (1) shall, at least five clear days before the day
upon which the sittings is to commence, give notice in writing to the sheriff
in the form prescribed by the regulations that the attendance of the jurors is
not required until such later day as is specified in the notice. R.S.O. 1990,
c. J.3, s. 21 (2).
Notice to jurors
(3)
Subject to subsection (4), where, upon receipt of such notice it appears to the
sheriff that the attendance of jurors is
not required or not required until a later date, the sheriff shall forthwith by
registered mail or otherwise, as he or she considers expedient, notify in the
form prescribed by the regulations each person summoned to serve as a juror
that attendance at the sittings is not required or is not required until the
day specified in the notice. R.S.O. 1990, c. J.3, s. 21 (3).
Sheriff must ascertain that there
are no prisoners in custody
(4) In the case of a
sittings for the hearing of criminal proceedings, the sheriff shall not give
the notice mentioned in subsection (3) unless he or she is satisfied that there
is no prisoner in custody awaiting trial at the sittings. R.S.O. 1990, c. J.3,
s. 21 (4).
Division of panel
22. A judge of the Superior Court of Justice who considers it necessary may direct
that the jurors summoned for a sittings
of the Court be divided into two or more sets as he or she may direct, and each
set shall for all purposes be deemed a separate panel. R.S.O. 1990, c. J.3, s.
22; 2006, c. 19, Sched. C, s. 1 (1).
Merger
22.1 A judge of the
Superior Court of Justice who considers it necessary may direct that two or
more panels of jurors, including panels established by division under section
22, be merged into a single panel. 1994, c. 27, s. 48 (8); 2006, c. 19, Sched.
C, s. 2 (2).
Excusing of juror
Religious reasons
23. (1) A person
summoned for jury duty may be excused by a judge from service as a juror on the
ground that service as a juror is incompatible with the beliefs or practices of
a religion or religious order to which the person belongs. R.S.O. 1990, c. J.3,
s. 23 (1).
Illness or hardship
(2)
A person summoned for jury duty may be excused by a judge from attending the
sittings on the ground,
of
illness; or
that
serving as a juror may cause serious hardships or loss to the person or others,
and the judge may
excuse the person from all service as a juror, or the judge may direct that the
service of a person excused be postponed and that despite any provision of this
Act, the person be included in a panel to be returned for a sittings later in
that year or in a panel to be returned for a sittings in the year next
following. R.S.O. 1990, c. J.3, s. 23 (2).
Application for excusing
(3) A person
summoned for jury service may be excused under subsection (1) or (2),
(a) before
the day for attendance, by any judge of the Superior Court of Justice;
(b) on or
after the day for attendance, by the judge presiding at the sittings,
and the application
to be excused may be made to the sheriff. R.S.O. 1990, c. J.3, s. 23 (3); 2006,
c. 19, Sched. C, s. 1 (1).
Release and transfer of
jurors
Release before sittings
24. (1) Where jurors
are summoned for a jury sittings, a judge of the Superior Court of Justice may,
at any time before the sittings, release from or postpone service of any number
of jurors summoned for the sittings. R.S.O. 1990, c. J.3, s. 24 (1); 2006, c.
19, Sched. C, s. 1 (1).
Release during sittings
(2) The judge
presiding at the sittings may release from or postpone service of any number of
jurors summoned for the sittings. R.S.O. 1990, c. J.3, s. 24 (2).
Transfer to another panel
(3) Jurors released
from service at a sittings under this section may be resummoned by the sheriff
for service at any other sittings, held concurrently with or immediately
following the sittings from which they were released. R.S.O. 1990, c. J.3, s.
24 (3).
Constitution of panel
(4) Where jurors
have been released from service or their service has been postponed under this
section, the remaining jurors constitute the panel, and jurors recalled or
resummoned under this section form part of the panel to which they are added.
R.S.O. 1990, c. J.3, s. 24 (4).
Superior Court of Justice may
issue precepts as heretofore
25. Subject to this
Act, the Superior Court of Justice and the judges thereof have the same power
and authority as heretofore in issuing any precept, or in making any award or
order, orally or otherwise, for the return of a jury for the trial of any issue
before the court, or for amending or enlarging the panel of jurors returned for
the trial of any such issue, and the return to any precept, award or order
shall be made in the manner heretofore used
and accustomed, and the jurors shall, as heretofore, be returned from the body
of the county, and shall be eligible according to this Act. R.S.O. 1990,
c. J.3, s. 25; 2006, c. 19, Sched. C, s. 1 (1).
ACTIONS TRIED BY JURY
When actions to be entered
for trial
26. Subject to any
order of a judge of the Superior Court of Justice, actions to be tried by a
jury shall be entered for trial not later than six clear days before the first
day of the sittings. R.S.O. 1990, c. J.3, s. 26; 2006, c. 19, Sched. C, s. 1 (1).
DRAWING JURY AT TRIAL
Empanelling jury at the trial
27. (1) The name of
every person summoned to attend as a juror, with the person’s place of
residence, occupation, and number on the panel list, shall be written
distinctly by the sheriff on a card or paper, as nearly as may be of the form
and size following:
DAVID BOOTH
OF LOT NO. 11, IN THE 7TH CON. OF ALBION
MERCHANT
and the names so
written shall, under the direction of the sheriff, be put together in a
container to be provided by the sheriff for that purpose, and he or she shall
deliver it to the clerk of the court. R.S.O. 1990, c. J.3, s. 27 (1).
How the clerk is to proceed
to draw names
(2) Where an issue
is brought on to be tried, or damages are to be assessed by a jury, the clerk
shall, in open court, cause the container to be shaken so as sufficiently to
mix the names, and shall then draw out six of the cards or papers, one after
another, causing the container to be shaken after the drawing of each name, and
if any juror whose name is so drawn does not appear or is challenged and set
aside, then such further number until six
jurors are drawn, who do appear, and who, after all just causes of challenge
allowed, remain as fair and
indifferent, and the first six jurors so drawn, appearing and approved as
indifferent, their names being noted in the minute book of the clerk of
the court, shall be sworn, and shall be the jury to try the issue or to assess
the damages. R.S.O. 1990, c. J.3, s. 27 (2).
Names drawn to be kept apart,
etc.
(3) The cards or
papers containing the names of persons so drawn and sworn shall be kept apart
until the jury has given in its verdict, and it has been recorded, or until the
jury has been by consent of the parties, or by leave of the court, discharged,
and shall then be returned to the container there to be kept with the other
cards or papers remaining therein. R.S.O. 1990, c. J.3, s. 27 (3).
Automated procedure for
empanelling jury in civil cases
27.1 Where a trial
is in respect of a civil proceeding, instead of following the procedure
described in section 27 to select a jury, any electronic or other automated
procedure may be used to accomplish the same result. 2009, c. 33, Sched. 2, s.
38 (3).
Selection of juries in
advance
28. A jury may be
selected in accordance with section 27 or 27.1 at any time before the trial of
an issue or assessment of damages directed by the judge presiding at the
sittings and shall attend for service upon the summons of the sheriff. R.S.O.
1990, c. J.3, s. 28; 2009, c. 33, Sched. 2, s. 38 (4).
Several causes may be tried
in succession with the same jury
29. (1) Despite sections 27, 27.1 and 28, unless a party objects, the court may try
any issue or assess damages with a jury previously selected to try any other
issue or to assess damages. 2009, c. 33, Sched. 2, s. 38 (5).
Same
(2) Despite
subsection (1), unless a party objects, the court may order any juror from the
previously selected jury whom both parties
consent to withdraw or who may be justly challenged or excused by the court,
to retire and may cause another juror to be selected in accordance with section
27 or 27.1, as the case may be, in his or her place, in which case the issue
shall be tried or the damages assessed with the remaining members of the
previously selected jury and the new juror or jurors, as the case may be, who
appear and are approved as indifferent. 2009, c. 33, Sched. 2, s. 38 (5).
If a full jury does not
appear supplementary jurors may be appointed
30. (1) Where a full
jury does not appear at a sittings for civil matters, or where, after the
appearance of a full jury, by challenge of any of the parties, the jury is
likely to remain untaken for default of jurors, the court may command the
sheriff to name and appoint, as supplementary jurors, so many of such other
able persons of the county then present, or who can be found, as will make up a
full jury, and the sheriff shall return such persons to serve on the jury.
R.S.O. 1990, c. J.3, s. 30 (1).
Adding names of supplementary
jurors
(2) Where a full
jury does not appear, the names of the persons so returned shall be added to
the panel returned upon the precept. R.S.O. 1990, c. J.3, s. 30 (2).
The sheriff to note on rolls
names of jurors who do not serve
31. Immediately
after the sittings of the court, the sheriff shall note on the jury roll from
which the panel of jurors returned to the sittings was drafted opposite the
names of the jurors, the non-attendance or default of every juror who has not
attended until discharged by the court. R.S.O. 1990, c. J.3, s. 31.
CHALLENGES
Lack of eligibility
32. If a person not
eligible is drawn as a juror for the trial of an issue in any proceeding, the
want
of eligibility is a good cause for challenge. R.S.O. 1990, c. J.3, s. 32.
Peremptory challenges in
civil cases
33. In any civil proceeding,
the plaintiff or plaintiffs, on one side, and the defendant or defendants,
on the other, may challenge peremptorily any four of the jurors drawn to serve
on the trial, and such
right of challenge extends to the Crown when a party. R.S.O. 1990, c. J.3, s.
33.
Ratepayers, officers, etc.,
of municipality may be challenged
34. In a proceeding to which a municipal corporation, other than a county, is a
party, every ratepayer, and every officer or servant of the corporation is, for
that reason, liable to challenge as a juror. R.S.O. 1990, c. J.3, s. 34.
GENERAL
Payments under Administration
of Justice Act
Fees payable to jurors and justices of the peace
35. (1) Such fees and allowances as are prescribed under the Administration of
Justice Act shall be paid to,
(a) every
juror attending a sittings of the Superior Court of Justice; and
(b) the
justice of the peace in attendance for each panel drafted under section 16.
R.S.O. 1990, c. J.3, s. 35 (1); 2006, c. 19, Sched. C, s. 1 (1).
Sums to be paid with record
when entered for trial in jury cases
(2) With every
record entered for trial of issues or assessment of damages by a jury in the
Superior Court of Justice there shall be
paid to the local registrar of the Superior Court of Justice such sum as is prescribed
under the Administration of Justice Act, and the record shall not be
entered unless such sum is first paid. R.S.O. 1990, c. J.3, s. 35 (2); 2006, c.
19, Sched. C, s. 1 (1).
Attendance and fees
List of jurors to be called
36. (1) The clerk of
the court or the sheriff or sheriff’s officer shall, at the opening of the
court and before any other business is proceeded with, call the names of the
jurors, and the sheriff or sheriff’s officer shall record those who are present
or absent. R.S.O. 1990, c. J.3, s. 36 (1).
Record of fees paid
(2) The sheriff
shall keep a record of the payment of fees to jurors for attending sittings of
a court.
R.S.O. 1990, c. J.3, s. 36 (2).
When fees payable
(3) A juror is not
entitled to fees or expenses in respect of days that he or she does not or is
not required to attend. R.S.O. 1990, c. J.3, s. 36 (3).
Jury areas
36.1 (1) A jury area
established under clause 37 (c) shall be treated as a separate county for the
purposes of this Act. 1994, c. 27, s. 48 (9).
Court facilities
(2)
If there are no court facilities in a jury area, a regional senior judge of the
Superior Court of Justice may order residents of the jury area who are summoned
for jury duty to attend at a court outside the jury area. 1994, c. 27,
s. 48 (9); 2006, c. 19, Sched. C, s. 1 (1).
Regulations
The Attorney
General may make regulations,
(a) prescribing any form required or permitted by this Act to be prescribed by the
regulations;
(b) prescribing the manner of keeping jury rolls and lists of jury panels and
records thereof and requiring and prescribing the form of the certification or
authentication of entries therein;
(b.1)
setting out restrictions or conditions that apply to the collection, use or
disclosure of personal information by the sheriff, for the purposes of
subsection 18.2 (3);
(b.2)
prescribing a police force for the purposes of subsection 18.2 (4);
(c) establishing jury areas, consisting of parts of existing counties, for the
purposes of section 36.1. R.S.O. 1990, c. J.3, s. 37; 1994, c. 27, s. 48 (10);
2009, c. 33, Sched. 2, s. 38 (6, 7).
Offences
38. (1) Every person
who,
(a) wilfully
makes or causes to be made any alteration in any roll or panel or in any
certified copy thereof except in accordance with this Act;
(b) falsely
certifies any roll or panel; or
(c) influences or attempts to influence the selection of persons for inclusion in
or omission from any jury roll or panel, except in a proper procedure under
this Act,
is guilty of an
offence and on conviction is liable to a fine of not more than $10,000 or to
imprisonment for a term of not more than two years, or to both. R.S.O. 1990, c.
J.3, s. 38 (1).
Idem
(2) Every sheriff,
or clerk or registrar of a court, who refuses to perform any duty imposed on
him or her by this Act, is guilty of an offence and on conviction is liable to
a fine of not more than $5,000. R.S.O. 1990, c. J.3, s. 38 (2).
Idem
(3) Every person who
is required to complete a return to a jury service notice and who,
(a) without
reasonable excuse fails to complete the return or mail it to the sheriff as
required
by subsection 6(5); or
(b) knowingly
gives false or misleading information in the return,
is guilty of an
offence and on conviction is liable to a fine of not more than $5,000 or to
imprisonment for a term of not more than six months, or to both. R.S.O. 1990,
c. J.3, s. 38 (3).
Evidence of not mailing
(4) For the purposes
of subsection (3), where the sheriff fails to receive a return to a jury
service notice within five days from the date on which it was required by this
Act to be mailed, such failure is proof, in the absence of evidence to the
contrary, that the person required to mail it to the sheriff failed to do so
in the time required. R.S.O. 1990, c. J.3, s. 38 (4).
Certificate as evidence
(5) A statement as
to the receipt or non-receipt of a return to a jury service notice purporting
to be certified by the sheriff is, without
proof of the appointment or signature of the sheriff, receivable in evidence
as proof, in the absence of evidence to the contrary, of the facts stated
therein in any prosecution under subsection (3). R.S.O. 1990, c. J.3, s. 38
(5).
Contempt of court
39. Every person is
in contempt of court who, without reasonable excuse,
(a) having
been duly summoned to attend on a jury, does not attend in pursuance of the
summons, or being there called does not answer to his or her name; or
(b) being a
juror or supplementary juror, after having been called, is present but does not
appear, or after appearing wilfully withdraws from the presence of the court;
or
(c) being a
sheriff, wilfully empanels and returns to serve on a jury a person whose name
has
not been duly drawn upon the panel in the manner prescribed in this Act; or
(d) being a
registrar or other officer wilfully records the appearance of a person so
summoned
and returned who has not actually appeared. R.S.O. 1990, c. J.3, s. 39.
Idem, tampering with jurors
40. (1) Every person
is in contempt of court who, being interested in an action that is or is to be
entered for trial or may be tried in the
court, or being the solicitor, counsel, agent or emissary of such person,
before or during the sittings or at any time after a juror on the jury
panel for such court has been summoned knowingly, directly or indirectly,
speaks to or consults with the juror respecting such action or any matter or
thing relating thereto. R.S.O. 1990, c. J.3, s. 40 (1).
Revocation or suspension of
licence, etc.
(2)
A solicitor, barrister or student-at-law who is guilty of such offence may, in
addition to any other penalty, have his
or her licence under the Law Society Act to practise law or provide
legal services revoked or suspended, or his or her name may be erased from the
register of the Law Society or removed from the register for a limited time, by
the Superior Court of Justice upon motion at the instance and in the name of
the Attorney General. 2006, c. 21, Sched. C, s. 114.
Exception where juror is a
party or witness
(3) This section
does not apply where a juror is also a party to or a known witness or interested
in the action or is otherwise ineligible as a juror in the action, nor to
anything that may properly take place in the course of the trial or conduct of
the action. R.S.O. 1990, c. J.3, s. 40 (3).
Leave of absence from
employment
41. (1) Every employer
shall grant to an employee who is summoned for jury service a leave of absence,
with or without pay, sufficient for the purpose of the discharge of the
employee’s duties, and, upon the employee’s
return, the employer shall reinstate the employee to his or her position, or
provide the employee with alternative work of a comparable nature at not
less than his or her wages at the time the leave of absence began and without
loss of seniority or benefits accrued to the commencement of the leave of
absence. R.S.O. 1990, c. J.3, s. 41 (1).
Liability of employer for
breach
(2) An employer who
fails to comply with subsection (1) is liable to the employee for any loss
occasioned by the breach of the obligation. R.S.O. 1990, c. J.3, s. 41 (2).
Penalty for reprisals
(3) Every employer
who, directly or indirectly,
(a) threatens
to cause or causes an employee loss of position, or employment; or
(b) threatens
to impose or imposes on an employee any pecuniary or other penalty,
because of the
employee’s response to a summons, or service as a juror, is guilty of an
offence and on conviction is liable to a fine of not more than $10,000 or to
imprisonment for a term of not more than three months, or to both. R.S.O. 1990,
c. J.3, s. 41 (3).
Posting up copies of s. 139
(2, 3) of Criminal Code
42. The sheriff
shall at the sittings of the Superior Court of Justice for trials by jury post
up in the court room and jury rooms and in the general entrance hall of the
court house printed copies in conspicuous type of subsections 139 (2) and (3)
of the Criminal Code (Canada) and subsection 40 (1) of this Act. R.S.O.
1990, c. J.3, s. 42; 2006, c. 19, Sched. C, s. 1 (1).
Saving of former powers of
court and judges except as altered
43. Nothing in this
Act alters, abridges or affects any power or authority that any court or judge
has, or any practice or form in regard to
trials by jury, juries or jurors, except in those cases only where such power
or authority, practice or form is repealed or altered, or is inconsistent with
any of the provisions of this Act. R.S.O. 1990, c. J.3, s. 43.
Omissions to observe this Act
not to vitiate the verdict
44. (1) The omission
to observe any of the provisions of this Act respecting the eligibility,
selection, balloting and distribution of jurors, the preparation of the jury
roll or the drafting of panels from the jury roll is not a ground for
impeaching or quashing a verdict or judgment in any action. R.S.O. 1990, c.
J.3, s. 44 (1).
Panel deemed properly
selected
(2) Subject to
sections 32 and 34, a jury panel returned by the sheriff for the purposes of
this Act shall be deemed to be properly selected for the purposes of the
service of the jurors in any matter or proceeding. R.S.O. 1990, c. J.3, s. 44
(2).
APPENDIX C
Coroners Act
R.S.O. 1990, CHAPTER C.37
Consolidation
Period: From July 1, 2012 to the e-Laws currency date.
Last
amendment: 2009, c. 33, Sched. 18, s. 6.
DEFINITIONS
1. (1) In this Act,
“Chief Coroner”
means the Chief Coroner for Ontario; (“coroner en chef ”)
“Chief Forensic
Pathologist” means the Chief Forensic Pathologist for Ontario; (“médecin
légiste en chef”)
“Deputy Chief
Coroner” means a Deputy Chief Coroner for Ontario; (“coroner en chef adjoint”)
“Deputy Chief
Forensic Pathologist” means a Deputy Chief Forensic Pathologist for Ontario; (“médecin légiste en chef adjoint”)
“forensic
pathologist” means a pathologist who has been certified by the Royal College of
Physicians and Surgeons of Canada in forensic pathology or has received
equivalent certification in another jurisdiction; (“médecin légiste”)
“mine” means a mine
as defined in the Occupational Health and Safety Act; (“mine”)
“mining plant” means
a mining plant as defined in the Occupational Health and Safety Act;
(“installation minière”)
“Minister” means the
Solicitor General; (“ministre”)
“Oversight Council”
means the Death Investigation Oversight Council established under section 8;
(“Conseil de surveillance”)
“pathologist” means
a physician who has been certified by the Royal College of Physicians and
Surgeons of Canada as a specialist in anatomical or general pathology or has
received equivalent certification in another jurisdiction; (“pathologiste”)
“pathologists
register” means the register of pathologists maintained under section 7.1;
(“registre des pathologistes”)
“spouse” means a
person,
(a) to whom
the deceased was married immediately before his or her death,
(b) with whom
the deceased was living in a conjugal relationship outside marriage immediately
before his or her death, if the deceased and the other person,
(i) had cohabited for at least one year,
(ii) were together the parents of a child, or
(iii) had together entered into a cohabitation agreement under section 53 of the Family
Law Act; (“conjoint”)
“tissue” includes an
organ or part of an organ. (“tissu”)
R.S.O. 1990, c. C.37, s. 1; 1999, c. 6, s. 15 (1); 2005,
c. 5, s. 15 (1, 2); 2009, c. 15, s. 1 (1).
Interpretation of body
(2)
A reference in this Act to the body of a person includes part of the body of a
person. 2009, c. 15, s. 1 (2).
Effect of Act
Repeal of common law functions
2. (1) In so far as it is within the jurisdiction of the Legislature, the common
law as it relates to the functions,
powers and duties of coroners within Ontario is repealed. R.S.O. 1990, c. C.37,
s. 2 (1).
Inquest not criminal court of
record
(2) The powers
conferred on a coroner to conduct an inquest shall not be construed as creating
a criminal court of record. R.S.O. 1990, c. C.37, s. 2 (2).
Appointment of coroners
3. (1) The
Lieutenant Governor in Council may appoint one or more legally qualified
medical practitioners to be coroners for Ontario who, subject to subsections
(2), (3) and (4), shall hold office during pleasure. R.S.O. 1990, c. C.37, s. 3
(1).
Tenure
(2)
A coroner ceases to hold office on ceasing to be a legally qualified medical
practitioner. 2005, c. 29, s. 2.
Chief Coroner to be notified
(3) The College of Physicians and Surgeons of Ontario shall forthwith notify the Chief Coroner
where the licence of a coroner for the
practice of medicine is revoked, suspended or cancelled. R.S.O. 1990, c. C.37,
s. 3 (3).
Resignation
(4) A coroner may
resign his or her office in writing. R.S.O. 1990, c. C.37, s. 3 (4).
Residential areas
(5) The Lieutenant
Governor in Council may by regulation establish areas of Ontario and the
appointment and continuation in office of a coroner is subject to the condition
that he or she is ordinarily resident in the area named in the appointment.
R.S.O. 1990, c. C.37, s. 3 (5).
Crown Attorney notified of
appointment
(6) A copy of the
order appointing a coroner shall be sent by the Minister to the Crown Attorney
of any area in which the coroner will ordinarily act. R.S.O. 1990, c. C.37, s.
3 (6).
Appointments continued
(7) All persons
holding appointments as coroners under The Coroners Act, being chapter 87
of the Revised Statutes of Ontario, 1970, shall be deemed to have been
appointed in accordance with this Act. R.S.O. 1990, c. C.37, s. 3 (7).
Chief Coroner and duties
4. (1) The Lieutenant Governor in Council may appoint a coroner to be Chief
Coroner for Ontario who shall,
(a) administer this Act and the regulations;
(b) supervise, direct and control all coroners in Ontario in the performance of
their duties;
(c) conduct
programs for the instruction of coroners in their duties;
(d) bring the
findings and recommendations of coroners’ investigations and coroners’ juries
to the attention of appropriate persons, agencies and ministries of government;
(e) prepare,
publish and distribute a code of ethics for the guidance of coroners;
(f) perform
such other duties as are assigned to him or her by or under this or any other
Act or
by the Lieutenant Governor in Council. R.S.O. 1990, c. C.37, s. 4 (1); 2009, c.
15, s. 2 (1, 2).
Deputy Chief Coroners
(2) The Lieutenant
Governor in Council may appoint one or more coroners to be Deputy Chief
Coroners for Ontario and a Deputy Chief Coroner shall act as and have all the
powers and authority of the Chief Coroner if the Chief Coroner is absent or
unable to act or if the Chief Coroner’s position is vacant. 2009, c. 15, s. 2
(3).
Delegation
(3) The Chief
Coroner may delegate in writing any of his or her powers and duties under this
Act to a Deputy Chief Coroner, subject to any limitations, conditions and
requirements set out in the delegation. 2009, c. 15, s. 2 (4).
Regional coroners
5. (1) The
Lieutenant Governor in Council may appoint a coroner as a regional coroner for
such region of Ontario as is described in the appointment. R.S.O. 1990, c.
C.37, s. 5 (1).
Duties
(2) A regional
coroner shall assist the Chief Coroner in the performance of his or her duties
in the region and shall perform such other duties as are assigned to him or her
by the Chief Coroner. R.S.O. 1990, c. C.37, s. 5 (2).
Ontario Forensic Pathology Service
6. The Minister
shall establish the Ontario Forensic Pathology Service, to be known in French
as Service de médecine légale de l’Ontario, the function of which shall be to
facilitate the provision of pathologists’ services under this Act. 2009, c. 15,
s. 3.
Chief Forensic Pathologist
and Deputies
7. (1) The Lieutenant Governor in Council may appoint a forensic pathologist to be
Chief Forensic Pathologist for Ontario who shall,
(a) be
responsible for the administration and operation of the Ontario Forensic
Pathology Service;
(b) supervise
and direct pathologists in the provision of services under this Act;
(c) conduct
programs for the instruction of pathologists who provide services under this
Act;
(d) prepare,
publish and distribute a code of ethics for the guidance of pathologists in the
provision of services under this Act;
(e) perform
such other duties as are assigned to him or her by or under this or any other
Act or by the Lieutenant Governor in Council. 2009, c. 15, s. 3.
Deputy Chief Forensic
Pathologists
(2) The Lieutenant
Governor in Council may appoint one or more forensic pathologists to be Deputy
Chief Forensic Pathologists for Ontario and a Deputy Chief Forensic Pathologist
shall act as and have all the powers and authority of the Chief Forensic
Pathologist if the Chief Forensic Pathologist is absent or unable to act or if
the Chief Forensic Pathologist’s position is vacant. 2009, c. 15, s. 3.
Delegation
(3) The Chief
Forensic Pathologist may delegate in writing any of his or her powers and
duties under this Act to a Deputy Chief Forensic Pathologist, subject to any
limitations, conditions and requirements set out in the delegation. 2009, c.
15, s. 3.
Pathologists register
7.1 (1) The Chief
Forensic Pathologist shall maintain a register of pathologists who are
authorized by the Chief Forensic Pathologist to provide services under this
Act. 2009, c. 15, s. 3.
Notification re loss of
medical licence
(2)
The College of Physicians and Surgeons of Ontario shall forthwith notify the
Chief Forensic Pathologist if the licence
for the practice of medicine of a pathologist who is on the pathologists
register is revoked, suspended or cancelled. 2009, c. 15, s. 3.
Oversight Council
8. (1) There is
hereby established a council to be known in English as the Death Investigation
Oversight Council and in French as Conseil de surveillance des enquêtes sur les
décès. 2009, c. 15, s. 4.
Membership
(2) The composition
of the Oversight Council shall be as provided in the regulations, and the
members shall be appointed by the Lieutenant Governor in Council. 2009, c. 15,
s. 4.
Chair, vice-chairs
(3) The Lieutenant
Governor in Council may designate one of the members of the Oversight Council
to be the chair and one or more members of the Oversight Council to be
vice-chairs and a vice-chair shall act as and have all the powers and authority
of the chair if the chair is absent or unable to act or if the chair’s position
is vacant. 2009, c. 15, s. 4.
Employees
(4) Such employees
as are considered necessary for the proper conduct of the affairs of the
Oversight Council may be appointed under Part III of the Public Service of Ontario Act, 2006. 2009, c. 15, s. 4.
Delegation
(5) The chair may
authorize one or more members of the Oversight Council to exercise any of the
Oversight Council’s powers and perform any of its duties. 2009, c. 15, s. 4.
Quorum
(6) The chair shall
determine the number of members of the Oversight Council that constitutes a
quorum for any purpose. 2009, c. 15, s. 4.
Annual report
(7) At the end of
each calendar year, the Oversight Council shall submit an annual report on its
activities, including its activities under
subsection 8.1 (1), to the Minister, who shall submit the report to the
Lieutenant Governor in Council and shall then lay the report before the
Assembly. 2009, c. 15, s. 4.
Additional reports
(8) The Minister may
request additional reports from the Oversight Council on its activities,
including its activities under subsection 8.1 (1), at any time and the
Oversight Council shall submit such reports as requested and may also submit
additional reports on the same matters at any time on its own initiative. 2009,
c. 15, s. 4.
Expenses
(9)
The money required for the Oversight Council’s purposes shall be paid out of
the amounts appropriated by the
Legislature for that purpose. 2009, c. 15, s. 4.
Functions of Oversight
Council
Advice and recommendations to Chief Coroner and Chief Forensic Pathologist
8.1 (1) The
Oversight Council shall oversee the Chief Coroner and the Chief Forensic
Pathologist
by advising and making recommendations to them on the following matters:
1. Financial
resource management.
2. Strategic
planning.
3. Quality
assurance, performance measures and accountability mechanisms.
4. Appointment and dismissal of senior personnel.
5. The
exercise of the power to refuse to review complaints under subsection 8.4 (10).
6. Compliance
with this Act and the regulations.
7. Any other
matter that is prescribed. 2009, c. 15, s. 4.
Reports to Oversight Council
(2) The Chief
Coroner and the Chief Forensic Pathologist shall report to the Oversight
Council on the matters set out in subsection (1), as may be requested by the
Oversight Council. 2009, c. 15, s. 4.
Advice and recommendations to
Minister
(3) The Oversight
Council shall advise and make recommendations to the Minister on the appointment
and dismissal of the Chief Coroner and the Chief Forensic Pathologist. 2009, c.
15, s. 4.
Complaints committee
8.2 (1) There shall
be a complaints committee of the Oversight Council composed, in accordance with
the regulations, of members of the Oversight Council appointed by the chair of
the Oversight Council. 2009, c. 15, s. 4.
Chair
(2) The chair of the
Oversight Council shall designate one member of the complaints committee to be
the chair of the committee. 2009, c. 15, s. 4.
Delegation
(3) The chair of the
complaints committee may delegate any of the functions of the committee to one
or more members of the committee. 2009, c. 15, s. 4.
Quorum
(4) The chair of the
complaints committee shall determine the number of members of the complaints
committee that constitutes a quorum for any purpose, and may determine that one
member constitutes a quorum. 2009, c. 15, s. 4.
Confidentiality
8.3 (1) Every member
and employee of the Oversight Council and of the complaints committee shall
keep confidential all information that comes
to his or her knowledge in the course of performing his or her duties
under this Act. 2009, c. 15, s. 4.
Exception
(2) An individual
described in subsection (1) may disclose confidential information for the
purposes of the administration of this Act or the Regulated Health
Professions Act, 1991 or as otherwise required by law. 2009, c. 15, s. 4.
Complaints
Right to make a complaint
8.4 (1) Any person
may make a complaint to the complaints committee about a coroner, a pathologist
or a person, other than a coroner or pathologist, with powers or duties under
section 28. 2009, c. 15, s. 4.
Form of complaint
(2) The complaint
must be in writing. 2009, c. 15, s. 4.
Matters that may not be the
subject of a complaint
(3) A complaint
about the following matters shall not be dealt with under this section:
1. A
coroner’s decision to hold an inquest or to not hold an inquest.
2. A
coroner’s decision respecting the scheduling of an inquest.
3. A coroner’s decision relating to the conduct of an
inquest, including a decision made while presiding at the inquest. 2009,
c. 15, s. 4.
Complaints about coroners
(4) Subject to
subsection (8), the complaints committee shall refer every complaint about a
coroner, other than the Chief Coroner, to
the Chief Coroner and the Chief Coroner shall review every such complaint.
2009, c. 15, s. 4.
Complaints about pathologists
(5) Subject to
subsection (8), the complaints committee shall refer every complaint about a
pathologist, other than the Chief Forensic Pathologist, to the Chief Forensic
Pathologist and the Chief Forensic Pathologist shall review every such
complaint. 2009, c. 15, s. 4.
Complaints about Chiefs
(6) Subject to
subsection (8), the complaints committee shall review every complaint made
about
the Chief Coroner or the Chief Forensic Pathologist. 2009, c. 15, s. 4.
Referral to other persons or
bodies
(7)
The complaints committee shall refer every complaint about a person, other than
a coroner or pathologist, with powers or
duties under section 28 to a person or organization that has power to deal with
the complaint and that the committee considers is the appropriate person or
organization to deal with the complaint. 2009, c. 15, s. 4.
Same
(8) If the
complaints committee is of the opinion that a complaint about a coroner or
pathologist is more appropriately dealt with by the College of Physicians and
Surgeons of Ontario or another person or organization
that has power to deal with the complaint, the complaints committee shall refer
the complaint to the College or that other person or organization. 2009,
c. 15, s. 4.
Notice of referral
(9) If the
complaints committee refers a complaint to the College of Physicians and
Surgeons of Ontario or another person or organization under subsection (8), the
committee shall promptly give notice in writing to the complainant, the coroner
or pathologist who is the subject of the complaint, and the Oversight Council.
2009, c. 15, s. 4.
Refusal to review a complaint
(10) Despite
subsections (4) and (5), the Chief Coroner and the Chief Forensic Pathologist
may refuse to review a complaint referred to him or her if, in his or her
opinion,
(a) the
complaint is trivial or vexatious or not made in good faith;
(b) the
complaint does not relate to a power or duty of a coroner or a pathologist
under this Act; or
(c)the
complainant was not directly affected by the exercise or performance of, or the
failure to exercise or perform, the power or duty to which the complaint
relates. 2009, c. 15, s. 4.
Same
(11) Despite
subsection (6), the complaints committee may refuse to review a complaint if,
in its opinion,
(a) the
complaint is trivial or vexatious or not made in good faith;
(b) the
complaint does not relate to a power or duty of the Chief Coroner or the Chief
Forensic Pathologist; or
(c) the
complainant was not directly affected by the exercise or performance of, or the
failure to exercise or perform, the power or duty to which the complaint
relates. 2009, c. 15, s. 4.
Reports after review or
decision to not review
(12) The Chief
Coroner and the Chief Forensic Pathologist shall, promptly after completing his
or her review of a complaint referred to him or her or deciding to not review
the complaint, report in writing to the complainant, the person who is the
subject of the complaint and the complaints committee on the results of the
review or the decision to not review the complaint, as the case may be. 2009,
c. 15, s. 4.
Same
(13) The complaints
committee shall, promptly after completing its review of a complaint or deciding
to not review the complaint, report in writing to the complainant, the person
who is the subject of the complaint, the Oversight Council and the Minister on
the results of the review or the decision to not review the complaint, as the
case may be. 2009, c. 15, s. 4.
Request for review by
complaints committee
(14) If a complaint
is made about a coroner or pathologist, other than the Chief Coroner or the
Chief Forensic Pathologist, and the
complainant or the coroner or pathologist who is the subject of the complaint
is not satisfied with the results of the review of the complaint or the
decision to not review the complaint by the
Chief Coroner or the Chief Forensic Pathologist, he or she may request in
writing that the complaints committee review the complaint and the
complaints committee shall review the complaint and shall, promptly after
completing its review or deciding to not review the complaint, report in
writing to the complainant, the person who
is the subject of the complaint and the Chief Coroner or the Chief Forensic Pathologist,
as appropriate, on the results of the review or the decision to not review the
complaint, as the case may be. 2009, c. 15, s. 4.
Refusal to review a complaint
on request
(15) The complaints
committee may refuse to review a complaint pursuant to a request made under
subsection (14) if, in its opinion,
(a) the
complaint is trivial or vexatious or not made in good faith;
(b) the
complaint does not relate to a power or duty of a coroner or a pathologist
under this Act; or
(c) the
complainant was not directly affected by the exercise or performance of, or the
failure to exercise or perform, the power or duty to which the complaint
relates. 2009, c. 15, s. 4.
Annual reports to Oversight
Council
(16) The complaints
committee shall submit an annual report on its activities to the Oversight
Council at the end of each calendar year. 2009, c. 15, s. 4.
Additional reports
(17) The Oversight
Council may request additional reports from the complaints committee on its
activities or on a specific complaint or
complaints about a specific person at any time and the complaints committee
shall submit such reports as requested and may also submit additional reports
as described at any time on its own initiative. 2009, c. 15, s. 4.
Police assistance
9. (1) The police
force having jurisdiction in the locality in which a coroner has jurisdiction
shall make available to the coroner the assistance of such police officers as
are necessary for the purpose of carrying out the coroner’s duties. 2009, c.
15, s. 5.
Same
(2) The Chief
Coroner in any case he or she considers appropriate may request that another
police force or the criminal investigation branch of the Ontario Provincial
Police provide assistance to a coroner in an investigation or inquest. 2009, c.
15, s. 5.
Duty to give information
10. (1) Every person
who has reason to believe that a deceased person died,
(a) as a
result of,
(i) violence,
(ii) misadventure,
(iii) negligence,
(iv) misconduct, or
(v) malpractice;
(b) by unfair
means;
(c) during pregnancy or following pregnancy in
circumstances that might reasonably be attributable thereto;
(d) suddenly
and unexpectedly;
(e) from disease or sickness for which he or she was
not treated by a legally qualified medical practitioner;
(f) from any
cause other than disease; or
(g) under
such circumstances as may require investigation,
shall immediately
notify a coroner or a police officer of the facts and circumstances relating to
the death, and where a police officer is notified he or she shall in turn
immediately notify the coroner of such facts and circumstances. R.S.O. 1990, c.
C.37, s. 10 (1).
Deaths to be reported
(2) Where a person
dies while resident or an in-patient in,
(a) Repealed:
2007, c. 8, s. 201 (1).
(b) a
children’s residence under Part IX (Licensing) of the Child and Family
Services Act or premises approved under subsection 9 (1) of Part I
(Flexible Services) of that Act;
(c) Repealed:
1994, c. 27, s. 136 (1).
(d) a
supported group living residence or an intensive support residence under the Services
and Supports to Promote the Social Inclusion of Persons with Developmental
Disabilities Act, 2008;
(e) a
psychiatric facility designated under the Mental Health Act;
(f) Repealed:
2009, c. 33, Sched. 18, s. 6.
(g) Repealed:
1994, c. 27, s. 136 (1).
(h) a public
or private hospital to which the person was transferred from a facility,
institution or home referred to in clauses (a) to (g),
the person in charge
of the hospital, facility, institution, residence or home shall immediately
give notice of the death to a coroner, and the coroner shall investigate the
circumstances of the death and, if as a result of the investigation he or she
is of the opinion that an inquest ought to be held, the coroner shall hold an
inquest upon the body. R.S.O. 1990, c. C.37, s. 10 (2); 1994, c. 27, s. 136
(1); 2001, c. 13, s. 10; 2007, c. 8, s. 201 (1); 2008, c. 14, s. 50; 2009, c.
15, s. 6 (1); 2009, c. 33, Sched. 8, s. 11; 2009, c. 33, Sched. 18, s. 6.
Deaths in long-term care
homes
(2.1)
Where a person dies while resident in a long-term care home to which the Long-Term
Care Homes Act, 2007 applies, the person in charge of the home shall
immediately give notice of the death to a coroner and, if the coroner is of the
opinion that the death ought to be investigated, he or she shall investigate the
circumstances of the death and if, as a result of the investigation, he or she
is of the opinion that an inquest ought to be held, the coroner shall hold an
inquest upon the body. 2007, c. 8, s. 201 (2); 2009, c. 15, s. 6 (3).
Deaths off premises of
psychiatric facilities, correctional institutions,
youth custody facilities
(3) Where a person
dies while,
(a) a patient
of a psychiatric facility;
(b) committed
to a correctional institution;
(c) committed
to a place of temporary detention under the Youth Criminal Justice Act (Canada); or
(d) committed
to secure or open custody under section 24.1 of the Young Offenders Act
(Canada), whether in accordance with section 88 of the Youth Criminal
Justice Act (Canada) or otherwise,
but while not on the
premises or in actual custody of the facility, institution or place, as the
case may be, subsection (2) applies as if the person were a resident of an
institution named in subsection (2). 2009, c. 15, s. 6 (4).
Death on premises of
detention facility or lock-up
(4) Where a person
dies while detained in and on the premises of a detention facility established
under section 16.1 of the Police Services Act or a lock-up, the officer
in charge of the facility or lock-up shall immediately give notice of the death
to a coroner and the coroner shall hold an inquest upon the body. 2009, c. 15,
s. 6 (4).
Death on premises of place of
temporary detention
(4.1) Where a person
dies while committed to and on the premises of a place of temporary detention
under the Youth Criminal Justice Act (Canada), the officer in charge of
the place shall immediately give notice of the death to a coroner and the
coroner shall hold an inquest upon the body. 2009, c. 15, s. 6 (4).
Death on premises of place of
secure custody
(4.2) Where a person
dies while committed to and on the premises of a place or facility designated
as a place of secure custody under section 24.1 of the Young Offenders Act
(Canada), whether in accordance with section 88 of the Youth Criminal
Justice Act (Canada) or otherwise, the officer in charge of the place or
facility shall immediately give notice of the death to a coroner and the
coroner shall hold an inquest upon the body. 2009, c. 15, s. 6 (4).
Death on premises of correctional
institution
(4.3) Where a person
dies while committed to and on the premises of a correctional institution, the
officer in charge of the institution shall immediately give notice of the death
to a coroner and the coroner shall investigate the circumstances of the death
and shall hold an inquest upon the body if as a result of the investigation he
or she is of the opinion that the person may not have died of natural causes.
2009, c. 15, s. 6 (4).
Non-application of subs.
(4.3)
(4.4) If a person
dies in circumstances referred to in subsection (4), (4.1) or (4.2) on the
premises of a lock-up, place of temporary detention or place or facility
designated as a place of secure custody that is located in a correctional
institution, subsection (4.3) does not apply. 2009, c. 15, s. 6 (4).
Death in custody off premises
of correctional institution
(4.5) Where a person
dies while committed to a correctional institution, while off the premises of
the institution and while in the actual custody of a person employed at the
institution, the officer in charge of the institution shall immediately give
notice of the death to a coroner and the coroner shall investigate the
circumstances of the death and shall hold an inquest upon the body if as a
result of the investigation he or she is of the opinion that the person may not
have died of natural causes. 2009, c. 15, s. 6 (4).
Other deaths in custody
(4.6) If a person
dies while detained by or in the actual custody of a peace officer and
subsections (4), (4.1), (4.2), (4.3) and (4.5) do not apply, the peace officer
shall immediately give notice of the death to a coroner and the coroner shall
hold an inquest upon the body. 2009, c. 15, s. 6 (4).
Death while restrained on
premises of psychiatric facility, etc.
(4.7)
Where a person dies while being restrained and while detained in and on the
premises of a psychiatric facility within
the meaning of the Mental Health Act or a hospital within the meaning of
Part XX.1 (Mental Disorder) of the Criminal Code (Canada), the officer
in charge of the psychiatric facility or the person in charge of the hospital,
as the case may be, shall immediately give notice of the death to a coroner and
the coroner shall hold an inquest upon the body. 2009, c. 15, s. 6 (4).
Death while restrained in
secure treatment program
(4.8) Where a person
dies while being restrained and while committed or admitted to a secure
treatment program within the meaning of Part VI of the Child and Family
Services Act, the person in charge of the program shall immediately give
notice of the death to a coroner and the coroner shall hold an inquest upon the
body. 2009, c. 15, s. 6 (4).
Notice of death resulting
from accident at
or in construction project, mining plant or mine
(5) Where a worker
dies as a result of an accident occurring in the course of the worker’s
employment at or in a construction project, mining plant or mine, including a
pit or quarry, the person in charge of such project, mining plant or mine shall
immediately give notice of the death to a coroner and the coroner shall hold an
inquest upon the body. R.S.O. 1990, c. C.37, s. 10 (5); 2009, c. 15, s. 6 (5).
Certificate as evidence
(6) A statement as
to the notification or non-notification of a coroner under this section,
purporting to be certified by the coroner is without proof of the appointment
or signature of the coroner, receivable in evidence as proof, in the absence of
evidence to the contrary of the facts stated therein for all purposes in any
action, proceeding or prosecution. R.S.O. 1990, c. C.37, s. 10 (6).
Interference with body
11. No person who
has reason to believe that a person died in any of the circumstances mentioned
in section 10 shall interfere with or alter the body or its condition in any
way until the coroner so directs by a warrant. R.S.O. 1990, c. C.37, s. 11.
Power of coroner to take
charge of wreckage
12. (1) Where a
coroner has issued a warrant to take possession of the body of a person who has
met death by violence in a wreck, the coroner may, with the approval of the
Chief Coroner, take charge of the wreckage and place one or more police
officers in charge of it so as to prevent persons from disturbing it until the jury at the inquest has viewed it, or
the coroner has made such examination as he or she considers necessary.
R.S.O. 1990, c. C.37, s. 12 (1).
View to be expedited
(2) The jury or
coroner, as the case may be, shall view the wreckage at the earliest moment
possible. R.S.O. 1990, c. C.37, s. 12 (2).
Shipment of bodies outside Ontario
13. (1) Subject to section 14, no person shall accept for shipment or ship or take
a dead body from any place in Ontario to
any place outside Ontario unless a certificate of a coroner has been obtained
certifying that there exists no reason for further examination of the body.
R.S.O. 1990, c. C.37, s. 13 (1).
Fee for certificate
(2) An applicant for
a certificate under subsection (1) shall pay to the coroner such fee as is
prescribed therefor. R.S.O. 1990, c. C.37, s. 13 (2).
Embalming, etc., prohibited
(3) No person who
has reason to believe that a dead body will be shipped or taken to a place
outside Ontario shall embalm or make any alteration to the body or apply any
chemical to the body, internally
or externally, until the certificate required by subsection (1) has been
issued. R.S.O. 1990, c. C.37, s. 13 (3).
Transportation of a body out
of Ontario for post mortem
14. A coroner may in
writing authorize the transportation of a body out of Ontario for post
mortem examination and, in such case a provision in any Act or regulation
requiring embalming and preparation by a funeral director does not apply.
R.S.O. 1990, c. C.37, s. 14.
Coroner’s investigation
15. (1) Where a
coroner is informed that there is in his or her jurisdiction the body of a
person and that there is reason to believe that the person died in any of the
circumstances mentioned in section 10, the coroner shall issue a warrant to
take possession of the body and shall examine the body and make such
investigation as, in the opinion of the coroner, is necessary in the public
interest to enable the coroner,
(a) to
determine the answers to the questions set out in subsection 31 (1);
(b) to
determine whether or not an inquest is necessary; and
(c) to
collect and analyze information about the death in order to prevent further
deaths in similar circumstances. 2009, c. 15, s. 7 (1).
Idem
(2)
Where the Chief Coroner has reason to believe that a person died in any of the
circumstances mentioned in section 10 and no warrant has been issued to
take possession of the body, he or she may issue the warrant or direct
any coroner to do so. R.S.O. 1990, c. C.37, s. 15 (2).
Jurisdiction
(3) After the issue
of the warrant, no other coroner shall issue a warrant or interfere in the
case, except the Chief Coroner. R.S.O. 1990, c. C.37, s. 15 (3); 2009, c. 15,
s. 7 (2).
Expert assistance
(4)
Subject to the approval of the Chief Coroner, a coroner may obtain assistance
or retain expert services for all or any
part of his or her investigation or inquest. R.S.O. 1990, c. C.37, s. 15 (4).
No warrant
(5) A coroner may
proceed with an investigation without taking possession of the body where the
body has been destroyed in whole or in part or is lying in a place from which
it cannot be recovered or has been removed from Ontario. R.S.O. 1990, c. C.37,
s. 15 (5).
Investigative powers
16. (1) A coroner
may,
(a) examine
or take possession of any dead body, or both; and
(b) enter and
inspect any place where a dead body is and any place from which the coroner has
reasonable grounds for believing the body
was removed. R.S.O. 1990, c. C.37, s. 16 (1); 2009, c. 15, s. 8.
Idem
(2) A coroner who
believes on reasonable and probable grounds that to do so is necessary for the
purposes of the investigation may,
(a) inspect
any place in which the deceased person was, or in which the coroner has
reasonable grounds to believe the deceased person was, prior to his or her
death;
(b) inspect
and extract information from any records or writings relating to the deceased
or his
or her circumstances and reproduce such copies therefrom as the coroner
believes necessary;
(c) seize
anything that the coroner has reasonable grounds to believe is material to the
purposes of the investigation. R.S.O. 1990, c. C.37, s. 16 (2).
Delegation of powers
(3) A coroner may
authorize a legally qualified medical practitioner or a police officer to
exercise
all or any of the coroner’s powers under subsection (1). R.S.O. 1990, c. C.37,
s. 16 (3).
Idem
(4) A coroner may,
where in his or her opinion it is necessary for the purposes of the
investigation, authorize a legally qualified medical practitioner or a police
officer to exercise all or any of the coroner’s powers under clauses (2) (a), (b) and (c) but, where such power is
conditional on the belief of the coroner, the requisite belief shall be
that of the coroner personally. R.S.O. 1990, c. C.37, s. 16 (4).
Return of things seized
(5) Where a coroner
seizes anything under clause (2) (c), he or she shall place it in the custody
of a police officer for safekeeping and shall return it to the person from whom
it was seized as soon as is practicable after the conclusion of the
investigation or, where there is an inquest, of the inquest, unless the coroner
is authorized or required by law to dispose of it otherwise. R.S.O. 1990, c.
C.37, s. 16 (5).
Obstruction of coroner
(6) No person shall
knowingly,
(a0 hinder,
obstruct or interfere with or attempt to hinder, obstruct or interfere with; or
(b) furnish
with false information or refuse or neglect to furnish information to,
a coroner in the
performance of his or her duties or a person authorized by the coroner in
connection with an investigation. R.S.O. 1990, c. C.37, s. 16 (6).
Appointment of persons with
coroners’ investigative powers and duties
16.1 (1) The Chief
Coroner may appoint any person, in accordance with the regulations, to exercise
the investigative powers and duties of a coroner. 2009, c. 15, s. 9.
Same
(2) Subject to
subsection (3) and the regulations, this Act applies with necessary
modifications to
a person appointed under subsection (1) as if he or she were a coroner. 2009,
c. 15, s. 9.
Limitation
(3) A person
appointed under subsection (1) cannot determine whether or not an inquest is
necessary or hold an inquest. 2009, c. 15, s. 9.
Report
(4) A person
appointed under subsection (1) shall report his or her findings to the Chief
Coroner or a coroner specified by the Chief Coroner, who shall then determine
whether or not an inquest is necessary. 2009, c. 15, s. 9.
Transfer of investigation
17. (1) A coroner
may at any time transfer an investigation to another coroner where in his or
her opinion the investigation may be continued or conducted more conveniently
by that other coroner or for any other good and sufficient reason. R.S.O. 1990,
c. C.37, s. 17 (1).
Investigation and inquest
(2) The coroner to
whom an investigation is transferred shall proceed with the investigation in
the same manner as if he or she had issued the warrant to take possession of
the body. R.S.O. 1990, c. C.37, s. 17 (2).
Notification of Chief Coroner
(3) The coroner who
transfers an investigation to another coroner shall notify the Chief Coroner of
the transfer, and the Chief Coroner shall assist in the transfer upon request.
R.S.O. 1990, c. C.37, s. 17 (3).
Transmitting results of first
investigation
(4) The coroner who
transfers an investigation to another coroner shall transmit to that other
coroner the report of the post mortem examination of the body, if any,
and his or her signed statement setting forth briefly the result of his or her
investigation and any evidence to prove the fact of death and the identity of
the body. R.S.O. 1990, c. C.37, s. 17 (4).
Inquest unnecessary
18. (1) Where the
coroner determines that an inquest is unnecessary, the coroner shall forthwith
transmit to the Chief Coroner a signed statement setting forth briefly the
results of the investigation, and shall also forthwith transmit to the division
registrar a notice of the death in the form prescribed by the Vital
Statistics Act. 2009, c. 15, s. 10.
Recommendations
(2) The coroner may
make recommendations to the Chief Coroner with respect to the prevention of
deaths in circumstances similar to those of the death that was the subject of
the coroner’s investigation. 2009, c. 15, s. 10.
Disclosure to the public
(3) The Chief
Coroner shall bring the findings and recommendations of a coroner’s
investigation, which may include personal information as defined in the Freedom
of Information and Protection of Privacy Act, to the attention of the
public, or any segment of the public, if the Chief Coroner reasonably believes
that it is necessary in the interests of public safety to do so. 2009, c. 15,
s. 10.
Record of investigations
(4)
Every coroner shall keep a record of the cases reported in which an inquest has
been determined to be unnecessary, showing for each case the coroner’s
findings of facts to determine the answers to the questions set out in subsection 31 (1), and such findings,
including the relevant findings of the post mortem examination and of any other examinations or analyses of the
body carried out, shall be available to the spouse, parents, children,
brothers and sisters of the deceased and to his or her personal representative,
upon request. 2009, c. 15, s. 10.
Coroner’s report if death
suspected not of natural causes
18.1 If the coroner
is of the opinion, based on his or her investigation, that the deceased person
may not have died of natural causes, the coroner shall advise the regional
coroner of that opinion and the regional coroner shall so advise the Crown
Attorney. 2009, c. 15, s. 11.
Determination to hold an
inquest
19. Where the
coroner determines that an inquest is necessary, the coroner shall,
(a) forthwith notify the Chief Coroner of that
determination and give the Chief Coroner a brief summary of the results of the investigation and of the
grounds upon which the coroner made that determination; and
(b) hold an
inquest. 2009, c. 15, s. 12.
What coroner shall consider
and have regard to
20. When making a
determination whether an inquest is necessary or unnecessary, the coroner shall
have regard to whether the holding of an inquest would serve the public
interest and, without restricting the generality of the foregoing, shall
consider,
(a) whether
the matters described in clauses 31 (1) (a) to (e) are known;
(b) the
desirability of the public being fully informed of the circumstances of the
death through
an inquest; and
(c) the
likelihood that the jury on an inquest might make useful recommendations
directed to
the avoidance of death in similar circumstances. R.S.O. 1990, c. C.37, s. 20.
Where body destroyed or
removed from Ontario
21. Where a coroner
has reason to believe that a death has occurred in circumstances that warrant
the holding of an inquest but, owing to the destruction of the body in whole or
in part or to the fact that
the body is lying in a place from which it cannot be recovered, or that the
body has been removed from Ontario, an inquest cannot be held except by virtue
of this section, he or she shall report the facts to the Chief Coroner who may
direct an inquest to be held touching the death, in which case an inquest shall
be held by the coroner making the report or by such other coroner as the Chief
Coroner directs, and the law relating to coroners and coroners’ inquests
applies with such modifications as are necessary in consequence of the inquest
being held otherwise than on or after a view of the body. R.S.O. 1990, c. C.37,
s. 21.
22. Repealed: 2009,
c. 15, s. 13.
Inquest mandatory
22.1 A coroner shall
hold an inquest under this Act into the death of a child upon learning that the
child died in the circumstances described in clauses 72.2 (a), (b) and (c) of
the Child and Family Services Act. 2006, c. 24, s. 2 (1).
23. Repealed: 2009,
c. 15, s. 14.
Chief Coroner may direct that
body be disinterred
24. Despite anything
in the Funeral, Burial and Cremation Services Act, 2002 or a regulation
made under that Act, the Chief Coroner may, at any time where he or she
considers it necessary for the purposes of an investigation or an inquest,
direct that a body be disinterred under and subject to such conditions as the
Chief Coroner considers proper. R.S.O. 1990, c. C.37, s. 24; 2002, c. 33, s.
142; 2009, c. 15, s. 15.
Direction by Chief Coroner
25. (1) The Chief
Coroner may direct any coroner in respect of any death to issue a warrant to
take possession of the body, conduct an investigation or hold an inquest, or
may direct any other coroner to do so or may intervene to act as coroner
personally for any one or more of such purposes. R.S.O. 1990, c. C.37, s. 25
(1).
Inquest into multiple deaths
(2) Where two or
more deaths appear to have occurred in the same event or from a common cause,
the Chief Coroner may direct that one inquest be held into all of the deaths.
R.S.O. 1990, c. C.37, s. 25 (2).
Direction to replace coroner
(3) If the Chief
Coroner is of the opinion that a coroner is unable to continue presiding over
an inquest for any reason, the Chief Coroner may direct another coroner to
continue the inquest. 1994, c. 27, s. 136 (3).
Request by relative for
inquest
26. (1) Where the
coroner determines that an inquest is unnecessary, the spouse, parent, child,
brother, sister or personal representative of the deceased person may request
the coroner in writing to hold an inquest, and the coroner shall give the
person requesting the inquest an opportunity to state his or her reasons,
either personally, by the person’s agent or in writing, and the coroner shall
advise the person in writing within sixty
days of the receipt of the request of the coroner’s final decision and where
the decision is to not hold an inquest shall deliver the reasons
therefor in writing. R.S.O. 1990, c. C.37, s. 26 (1); 1999,
c. 6, s. 15 (3); 2005, c. 5, s. 15 (4).
Review of refusal
(2) Where the final
decision of a coroner under subsection (1) is to not hold an inquest, the
person making the request may, within twenty days after the receipt of the
decision of the coroner, request the Chief Coroner to review the decision and
the Chief Coroner shall review the decision of the coroner after giving the
person requesting the inquest an opportunity to state his or her reasons either
personally, by the person’s agent or in writing. R.S.O. 1990, c. C.37, s. 26
(2).
Decision final
(3) The decision of
the Chief Coroner is final. R.S.O. 1990, c. C.37, s. 26 (3); 2009, c. 15, s.
16.
Where criminal offence
charged
27. (1) Where a
person is charged with an offence under the Criminal Code (Canada)
arising out of a death, an inquest touching the death shall be held only upon
the direction of the Chief Coroner and, when held, the person charged is not a
compellable witness. R.S.O. 1990, c. C.37, s. 27 (1); 2009, c. 15, s. 17 (1).
Idem
(2) Where during an
inquest a person is charged with an offence under the Criminal Code (Canada) arising out of the death, the coroner shall discharge the jury and close the
inquest, and shall then proceed as if he or she had determined that an inquest
was unnecessary, but the Chief Coroner may direct that the inquest be reopened.
R.S.O. 1990, c. C.37, s. 27 (2); 2009, c. 15, s. 17 (2).
Where charge or appeal
finally disposed of
(3) Despite
subsections (1) and (2), where a person is charged with an offence under the Criminal
Code (Canada) arising out of the death and the charge or any appeal from a
conviction or an acquittal of the offence charged has been finally disposed of
or the time for taking an appeal has expired, the coroner may hold an inquest
and the person charged is a compellable witness at the inquest. R.S.O. 1990, c.
C.37, s. 27 (3); 2009, c. 15, s. 17 (3).
Post mortem examination
28. (1) A coroner
may at any time during an investigation issue a warrant for a pathologist to
perform
a post mortem examination of the body. 2009, c. 15, s. 18.
Other examinations and
analyses
(2) A coroner may at
any time during an investigation conduct examinations and analyses that the
coroner considers appropriate in the circumstances or direct any person, other
than the pathologist
to whom the warrant is issued, to conduct such examinations and analyses. 2009,
c. 15, s. 18.
Pathologist’s duty
(3)
The pathologist to whom the warrant is issued shall perform the post mortem examination
of the body. 2009, c. 15, s. 18.
Power to examine body
(4) The pathologist
to whom the warrant is issued or, if no warrant has been issued, a pathologist
who has been notified of the death by a coroner or police officer and who
reasonably believes that a coroner’s warrant will be issued to him or her under
subsection (1) may,
(a) enter and
inspect any place where the dead body is and examine the body; and
(b) enter and
inspect any place from which the pathologist has reasonable grounds for
believing the body was removed. 2009, c. 15, s. 18.
Notice to coroner
(5) A pathologist
who exercises a power under subsection (4) shall notify,
(a) the
coroner who issued the warrant; or
(b) if no
warrant has been issued, the coroner by whom the pathologist believes the
warrant
will be issued. 2009, c. 15, s. 18.
Other examinations and
analyses
(6) The pathologist
who performs the post mortem examination may conduct or direct any
person other than a coroner to conduct such other examinations and analyses as
he or she considers appropriate in the circumstances. 2009, c. 15, s. 18.
Direction of Chief Forensic
Pathologist
(7) The Chief
Forensic Pathologist may direct a pathologist or any other person, other than a
coroner, to conduct any examinations and analyses that the Chief Forensic
Pathologist considers appropriate in the circumstances. 2009, c. 15, s. 18.
Assistance
(8) The pathologist
who performs the post mortem examination may obtain the assistance of
any person or persons in performing the post mortem examination and in
conducting any other examinations and analyses. 2009, c. 15, s. 18.
Pathologist from register
(9) The coroner may
issue a warrant under subsection (1) only to a pathologist whose name is on the
pathologists register. 2009, c. 15, s. 18.
Assignment to another
pathologist
(10) The Chief
Forensic Pathologist may at any time during an investigation assign another
pathologist whose name is on the pathologists register to perform the post
mortem examination in place of the pathologist named on the coroner’s
warrant, and in that case, every reference in this section to the pathologist
to whom the warrant is issued applies to the pathologist assigned to the
investigation by the Chief Forensic Pathologist. 2009, c. 15, s. 18.
Reports of post mortem
findings
29. (1) The
pathologist who performed the post mortem examination of a body under
section 28 shall forthwith report in writing his or her findings from the post
mortem examination and from any other examinations or analyses that he or
she conducted to the coroner who issued the warrant, the regional coroner and,
if the pathologist who performed the post mortem examination is not the
Chief Forensic Pathologist, the Chief Forensic Pathologist. 2009, c. 15, s. 18.
Same
(2) A person, other
than the pathologist who performed the post mortem examination, who
conducted any other examination or analysis under section 28 shall forthwith
report his or her findings in writing to the pathologist who performed the post
mortem examination, the coroner who issued the warrant, the regional
coroner and, if the pathologist who performed the post mortem
examination is not the Chief Forensic Pathologist, the Chief Forensic
Pathologist. 2009, c. 15, s. 18.
Further post mortems
(3) If, after a post
mortem examination of a body is performed, the Chief Forensic Pathologist
is of the opinion that a second or further post mortem examination of
the body is necessary, he or she shall so advise the Chief Coroner, and the
Chief Coroner shall issue a warrant for a second or further post mortem
examination of the body. 2009, c. 15, s. 18.
Crown counsel
30. (1) Every
coroner before holding an inquest shall notify the Crown Attorney of the time
and place at which it is to be held and the Crown Attorney or a barrister and
solicitor or any other person designated by him or her shall attend the inquest
and shall act as counsel to the coroner at the inquest. R.S.O. 1990, c. C.37,
s. 30 (1).
Counsel for Minister
(2)The Minister may
be represented at an inquest by counsel and shall be deemed to be a person
with standing at the inquest for the purpose. R.S.O. 1990, c. C.37, s. 30 (2).
Purposes of inquest
31. (1) Where an
inquest is held, it shall inquire into the circumstances of the death and
determine,
(a) who the
deceased was;
(b) how the
deceased came to his or her death;
(c) when the
deceased came to his or her death;
(d) where the
deceased came to his or her death; and
(e) by what
means the deceased came to his or her death. R.S.O. 1990, c. C.37, s. 31 (1).
Idem
(2) The jury shall
not make any finding of legal responsibility or express any conclusion of law
on any matter referred to in subsection (1). R.S.O. 1990, c. C.37, s. 31 (2).
Authority of jury to make
recommendations
(3) Subject to
subsection (2), the jury may make recommendations directed to the avoidance of
death in similar circumstances or respecting
any other matter arising out of the inquest. R.S.O. 1990, c. C.37, s. 31 (3).
Improper finding
(4)
A finding that contravenes subsection (2) is improper and shall not be
received. R.S.O. 1990, c. C.37, s. 31 (4).
Failure to make proper
finding
(5) Where a jury
fails to deliver a proper finding it shall be discharged. R.S.O. 1990, c. C.37,
s. 31 (5).
Inquest public
32. An inquest shall
be open to the public except where the coroner is of the opinion that national
security might be endangered or where a person is charged with an indictable
offence under the Criminal Code (Canada) in which cases the coroner may
hold the hearing concerning any such matters in the absence of the public.
R.S.O. 1990, c. C.37, s. 32.
Juries
33. (1) Every
inquest shall be held with a jury composed of five persons. R.S.O. 1990, c.
C.37, s. 33 (1); 2009, c. 15, s. 19 (1).
Jurors
(2) The coroner
shall direct a constable to select from the list of names of persons provided
under subsection 34 (2) five persons who in his or her opinion are suitable to
serve as jurors at an inquest and the constable shall summon them to attend the
inquest at the time and place appointed. R.S.O. 1990, c. C.37, s. 33 (2).
Idem
(3) Where fewer than
five of the jurors so summoned attend at the inquest, the coroner may name and
appoint so many persons then present or who can be found as will make up a jury
of five. R.S.O. 1990, c. C.37, s. 33 (3).
(4) Repealed: 2009,
c. 15, s. 19 (2).
List of jurors
34. (1) A coroner
may by his or her warrant require the sheriff for the area in which an inquest
is to be held to provide a list of the names of such number of persons as the
coroner specifies in the warrant taken from the jury roll prepared under the Juries
Act. R.S.O. 1990, c. C.37, s. 34 (1).
Idem
(2) Upon receipt of
the warrant, the sheriff shall provide the list containing names of persons in
the number specified by the coroner, taken from the jury roll prepared under
the Juries Act, together with their ages, places of residence and
occupations. R.S.O. 1990, c. C.37, s. 34 (2).
Eligibility
(3) No person who is
ineligible to serve as a juror under the Juries Act shall be summoned to
serve or shall serve as a juror at an inquest. R.S.O. 1990, c. C.37, s. 34 (3).
Idem
(4)
An officer, employee or inmate of a hospital or an institution referred to in
subsection 10 (2) or (3) shall not serve as a juror at an inquest upon the
death of a person who died therein. R.S.O. 1990, c. C.37, s. 34 (4).
Excusing from service
(5) The coroner may
excuse any person on the list from being summoned or from serving as a juror on
the grounds of illness or hardship. R.S.O. 1990, c. C.37, s. 34 (5).
Exclusion of juror with
interest
(6) The coroner
presiding at an inquest may exclude a person from being sworn as a juror where
the coroner believes there is a likelihood that the person, because of interest
or bias, would be unable to render a verdict in accordance with the evidence.
R.S.O. 1990, c. C.37, s. 34 (6).
Excusing of juror for illness
(7) Where in the
course of an inquest the coroner is satisfied that a juror should not, because
of illness or other reasonable cause, continue to act, the coroner may
discharge the juror. R.S.O. 1990, c. C.37, s. 34 (7).
Continuation with reduced
jury
(8) Where in the
course of an inquest a member of the jury dies or becomes incapacitated from
any cause or is excluded or discharged by the coroner under subsection (6) or
(7) or is found to be ineligible to serve, the jury shall, unless the coroner
otherwise directs and if the number of jurors is not reduced below three, be
deemed to remain properly constituted for all purposes of the inquest. R.S.O.
1990, c. C.37, s. 34 (8).
Report to sheriff re jury
service
35. On or before the
31st day of December in each year, the coroner shall advise the sheriff of the
names of persons who have received fees for service as jurors at inquests and
the number of each such name on the jury roll. R.S.O. 1990, c. C.37, s. 35.
Jury irregularities not to
affect outcome
36. The omission to
observe any of the provisions of this Act or the regulations respecting the
eligibility and selection of jurors is not a ground for impeaching or quashing
a verdict. R.S.O. 1990, c. C.37, s. 36.
Jury’s duties, powers
View of place
37. (1) The jury
shall view any place that the coroner directs them to view. 2009, c. 15, s. 20.
Questions
(2) The jurors are
entitled to ask relevant questions of each witness. R.S.O. 1990, c. C.37, s. 37
(2).
Majority verdict
38. A verdict or
finding may be returned by a majority of the jurors sworn. R.S.O. 1990, c.
C.37, s. 38.
Service of summonses
39. A summons to a
juror or to a witness may be served,
(a) by
personal service;
(b) by
leaving a copy, in a sealed envelope addressed to the person summoned, at his
or her place of residence with anyone who appears to be an adult member of the
same household; or
(c) by
sending it by registered mail addressed to the place of residence of the person
summoned. 2009, c. 15, s. 21.
Summonses
40. (1) A coroner
may require any person by summons,
(a) to give
evidence on oath or affirmation at an inquest; and
(b) to
produce in evidence at an inquest documents and things specified by the
coroner,
relevant to the
subject-matter of the inquest and admissible. R.S.O. 1990, c. C.37, s. 40 (1).
Form and service of summonses
(2) A summons issued
under subsection (1) shall be in the form approved by the Minister and shall be
signed by the coroner. 2009, c. 15, s. 22.
Bench warrants
(3) Upon proof to
the satisfaction of a judge of the Superior Court of Justice of the service of
a summons under this section upon a person and that,
(a) such
person has failed to attend or to remain in attendance at an inquest in
accordance with the requirements of the summons; and
(b) the
person’s presence is material to the inquest,
the judge may, by a
warrant in the prescribed form, directed to any police officer, cause such
witness to be apprehended anywhere within Ontario and forthwith to be brought
to the inquest and to be detained in custody as the judge may order until the
person’s presence as a witness at the inquest is no longer required, or, in the
discretion of the judge, to be released on a recognizance (with or without
sureties) conditioned for appearance to give evidence. R.S.O. 1990, c. C.37, s.
40 (3); 1997, c. 39, s. 4 (2); 2006,
c. 19, Sched. C, s. 1 (1); 2009, c. 33, Sched. 9, s. 3 (1).
Proof of service
(4) Service of a
summons may be proved by affidavit in an application under subsection (3).
R.S.O. 1990, c. C.37, s. 40 (4).
Certificate of facts
(5) Where an
application under subsection (3) is made on behalf of a coroner, the coroner
may certify to the judge the facts relied on to establish that the presence of
the person summoned is material for the purposes of the inquest and such
certificate may be accepted by the judge as proof of such facts. R.S.O. 1990,
c. C.37, s. 40 (5).
Persons with standing at
inquest
41. (1) On the
application of any person before or during an inquest, the coroner shall
designate the person as a person with standing at the inquest if the coroner
finds that the person is substantially and directly interested in the inquest.
R.S.O. 1990, c. C.37, s. 41 (1); 1993, c. 27, Sched.; 1999, c. 12, Sched. P, s.
2.
Rights of persons with
standing at inquest
(2) A person
designated as a person with standing at an inquest may,
(a) be
represented by a person authorized under the Law Society Act to
represent the person
with standing;
(b) call and
examine witnesses and present arguments and submissions;
(c) conduct
cross-examinations of witnesses at the inquest relevant to the interest of the
person with standing and admissible. R.S.O. 1990, c. C.37, s. 41 (2); 2006, c.
21, Sched. C, s. 104 (1).
Costs of representation
(3) If the coroner
in an inquest into the death of a victim as defined in the Victims’ Bill of
Rights, 1995 designates a spouse, same-sex partner or parent of the victim
as a person with standing at the inquest, the person may apply to the Minister
to have the costs that the person incurs for representation by legal counsel in
connection with the inquest paid out of the victims’ justice fund account
continued under subsection 5 (1) of the Victims’ Bill of Rights, 1995.
2006, c. 24, s. 2 (2).
Payment
(4)
Subject to the approval of Management Board of Cabinet, payment of the costs
described in subsection (3) may be made
out of the victims’ justice fund account. 2006, c. 24, s. 2 (2).
Protection for witnesses
42. (1) A witness at
an inquest shall be deemed to have objected to answer any question asked the
witness upon the ground that his or her answer may tend to criminate the
witness or may tend to establish his or her liability to civil proceedings at
the instance of the Crown, or of any person, and no answer given by a witness
at an inquest shall be used or be receivable in evidence against the witness in
any trial or other proceedings against him or her thereafter taking place,
other than a prosecution for perjury in giving such evidence. R.S.O. 1990, c.
C.37, s. 42 (1).
Right to object under Canada Evidence Act
(2)
Where it appears at any stage of the inquest that the evidence that a witness
is about to give would tend to criminate the witness, it is the duty of the
coroner and of the Crown Attorney to ensure that the witness is informed of his
or her rights under section 5 of the Canada Evidence Act. R.S.O. 1990,
c. C.37, s. 42 (2).
Rights of witnesses to
representation
43. (1) A witness at
an inquest is entitled to be advised as to his or her rights by a person
authorized under the Law Society Act to advise him or her, but such
person may take no other part in the inquest without leave of the coroner.
2006, c. 21, Sched. C, s. 104 (2).
Same
(2) Where an inquest
is held in the absence of the public, a person advising a witness under
subsection (1) is not entitled to be present
except when that witness is giving evidence. 2006, c. 21, Sched. C, s. 104 (2).
Admissibility of evidence
What is admissible in evidence at inquest
44. (1) Subject to
subsections (2) and (3), a coroner may admit as evidence at an inquest, whether
or not admissible as evidence in a court,
(a) any oral
testimony; and
(b) any
document or other thing,
relevant to the
purposes of the inquest and may act on such evidence, but the coroner may
exclude anything unduly repetitious or anything that the coroner considers does
not meet such standards of proof as are commonly relied on by reasonably
prudent persons in the conduct of their own affairs and the coroner may comment
on the weight that ought to be given to any particular evidence. R.S.O. 1990,
c. C.37, s. 44 (1).
What is inadmissible in
evidence at inquest
(2) Nothing is
admissible in evidence at an inquest,
(a) that
would be inadmissible in a court by reason of any privilege under the law of
evidence; or
(b) that is
inadmissible by the statute under which the proceedings arise or any other
statute. R.S.O. 1990, c. C.37, s. 44 (2).
Conflicts
(3) Nothing in
subsection (1) overrides the provisions of any Act expressly limiting the
extent to or purposes for which any oral testimony, documents or things may be
admitted or used in evidence. R.S.O. 1990, c. C.37, s. 44 (3).
Copies
(4) Where the
coroner is satisfied as to their authenticity, a copy of a document or other
thing may
be admitted as evidence at an inquest. R.S.O. 1990, c. C.37, s. 44 (4).
Photocopies
(5) Where a document
has been filed in evidence at an inquest, the coroner may, or the person
producing it or entitled to it may with the
leave of the coroner, cause the document to be photocopied and the coroner
may authorize the photocopy to be filed in evidence in the place of the
document filed and release the document filed, or may furnish to the person
producing it or the person entitled to it a photocopy of the document filed
certified by the coroner. R.S.O. 1990, c. C.37, s. 44 (5).
Taking evidence
45. (1) The evidence
upon an inquest or any part of it shall be recorded by a person appointed by
the coroner and approved by the Crown Attorney and who before acting shall make
oath or affirmation that he or she will truly and faithfully record the
evidence. R.S.O. 1990, c. C.37, s. 45 (1).
Transcription of evidence
(2) It is not
necessary to transcribe the evidence unless the Chief Coroner or Crown Attorney
orders it to be done or unless any other person requests a copy of the
transcript and pays the fees therefor except that the coroner may prohibit the
transcribing of all or any part of evidence taken in the absence of the public.
R.S.O. 1990, c. C.37, s. 45 (2); 2009, c. 15, s. 23.
Adjournments
46. An inquest may
be adjourned from time to time by the coroner of his or her own motion or where
it is shown to the satisfaction of the coroner that the adjournment is required
to permit an adequate hearing to be held. R.S.O. 1990, c. C.37, s. 46.
Maintenance of order at
inquest
47. A coroner may
make such orders or give such directions at an inquest as he or she considers
necessary for the maintenance of order at the inquest, and, if any person
disobeys or fails to comply with any such order or direction, the coroner may
call for the assistance of any peace officer to enforce the order or direction,
and every peace officer so called upon shall take such action as is necessary
to enforce the order or direction and may
use such force as is reasonably required for that purpose. R.S.O. 1990, c.
C.37, s. 47.
Interpreters and constables
Interpreters
48. (1) A coroner
may, and if required by the Crown Attorney or requested by the witness shall,
employ a person to act as interpreter for a witness at an inquest, and such
person may be summoned to attend the inquest and before acting shall make oath
or affirm that he or she will truly and faithfully translate the evidence.
R.S.O. 1990, c. C.37, s. 48 (1).
Constables
(2)
A coroner may appoint such persons as constables as the coroner considers
necessary for the purpose of assisting the coroner in an inquest and, on the
request of the coroner, the police force having jurisdiction in the
locality in which an inquest is held shall provide a police officer for the
purpose and, before acting, every such constable shall take oath or affirm that
he or she will faithfully perform his or her duties. R.S.O. 1990, c. C.37, s.
48 (2).
Administration of oaths
49. The coroner
conducting an inquest has power to administer oaths and affirmations for the
purpose of the inquest. R.S.O. 1990, c. C.37, s. 49.
Further powers of coroner
Abuse of processes
50. (1) A coroner
may make such orders or give such directions at an inquest as the coroner considers
proper to prevent abuse of its processes. R.S.O. 1990, c. C.37, s. 50 (1).
Limitation on
cross-examination
(2) A coroner may
reasonably limit further cross-examination of a witness where the coroner is
satisfied that the cross-examination of the witness has been sufficient to
disclose fully and fairly the facts in relation to which the witness has given
evidence or where the coroner is of the opinion that the questions being asked
are irrelevant, unduly repetitious or abusive. 2009, c. 15, s. 24.
Exclusion of representatives
(3) A coroner may
exclude from a hearing anyone, other than a person licensed under the Law
Society Act, advising a witness if the coroner finds that such person is
not competent properly to advise the witness, or does not understand and comply
at the inquest with the duties and responsibilities of an adviser. 2006, c. 21,
Sched. C, s. 104 (3).
Rules of procedure for
inquests
50.1 The Chief
Coroner may make additional rules of procedure for inquests. 2009, c. 15, s.
25.
Contempt proceedings
51. Where any person
without lawful excuse,
(a) on being
duly summoned as a witness or a juror at an inquest makes default in attending
at the inquest; or
(b) being in
attendance as a witness at an inquest, refuses to take an oath or to make an
affirmation legally required by the coroner to be taken or made, or to produce
any document or thing in his or her power or control legally required by the
coroner to be produced by the person or to answer any question to which the
coroner may legally require an answer; or
(c) does any
other thing that would, if the inquest had been a court of law having power to
commit for contempt, have been contempt of that court,
the coroner may
state a case to the Divisional Court setting out the facts and that court may,
on application on behalf of and in the name of the coroner, inquire into the
matter and, after hearing any witnesses who may be produced against or on
behalf of that person and after hearing any statement that may be offered in
defence, punish or take steps for the punishment of that person in like manner
as if he or she had been guilty of contempt of the court. R.S.O. 1990, c. C.37,
s. 51.
Conclusion of inquest
Return of verdict
52. (1) The coroner
shall forthwith after an inquest return the verdict or finding, with the
evidence where the Crown Attorney or Chief Coroner has ordered it to be
transcribed, to the Chief Coroner, and shall transmit a copy of the verdict and
recommendations to the Crown Attorney. R.S.O. 1990, c. C.37, s. 52 (1); 2009,
c. 15, s. 26.
Release of exhibits
(2)
After an inquest is concluded, the coroner shall, upon request, release
documents and things put in evidence at the inquest to the lawful owner or person entitled to
possession thereof. R.S.O. 1990, c. C.37, s. 52 (2).
Protection from personal
liability
53. No action or
other proceeding shall be instituted against any person exercising a power or
performing a duty under this Act for any act done in good faith in the
execution or intended execution of any such power or duty or for any alleged
neglect or default in the execution in good faith of any such power or duty.
2009, c. 15, s. 27.
Seals not necessary
54. In proceedings
under this Act, it is not necessary for a person to affix a seal to a document,
and no document is invalidated by reason of the lack of a seal, even though the
document purports to be sealed. R.S.O. 1990, c. C.37, s. 54.
Offences
55. Any person who
contravenes section 10, 11, 13 or subsection 16 (6) is guilty of an offence and
on conviction is liable to a fine of not more than $1,000 or to imprisonment
for a term of not more than
six months, or to both. R.S.O. 1990, c. C.37, s. 55.
Regulations and fees
56. (1) The
Lieutenant Governor in Council may make regulations,
(a) prescribing powers and duties of the Chief Coroner;
(b) prescribing powers and duties of the Chief Forensic Pathologist;
(c) prescribing the composition of the Oversight Council and of the complaints
committee
of the Oversight Council;
(d) prescribing matters for the purpose of paragraph 7 of subsection 8.1 (1);
(e) respecting the making, referral and reviewing of complaints under section 8.4;
(f) defining
“restrain” for the purpose of subsections 10 (4.7) and (4.8);
(g) governing
the retention, storage and disposal of tissue samples, implanted devices and
body fluids obtained in performing a post mortem examination of a body or
conducting examinations or analyses under section 28. 2009, c. 15, s. 28 (1);
2009, c. 33, Sched. 9, s. 3 (2).
Same
(2) The Minister may
make regulations,
(a) respecting the appointment of persons under section 16.1;
(b) prescribing limits on the powers of persons appointed under section 16.1;
(c) providing
for the selecting, recording, summoning, attendance and service of persons as
jurors at inquests;
(d) prescribing matters that may be grounds for disqualification because of
interest or bias of jurors for the purposes of subsection 34 (6);
(e) prescribing the contents of oaths and affirmations required or authorized by
this Act;
(f) prescribing the form of a warrant for the purpose of subsection 40 (3);
(g) prescribing fees and allowances that shall be paid to persons rendering
services in connection with coroners’ investigations and inquests and providing
for the adjustment of such fees and allowances in special circumstances;
(h) requiring
and governing the disclosure, collection and use of information, including
personal information within the meaning of the Freedom of Information and
Protection of Privacy Act, about coroners, pathologists and other members
of the College of Physicians and Surgeons of Ontario among the Chief Coroner,
the Chief Forensic Pathologist, the Oversight Council and the College of
Physicians and Surgeons of Ontario. 2009, c. 15, s. 28 (1).
Coroners’ fees and allowances
(3)
The Minister may set fees and allowances for coroners for services performed
under this or any other Act and may provide for the adjustment of such fees and
allowances in special circumstances. 1997, c. 39, s. 5 (2).
Non-application of Legislation
Act, 2006, Part III
(4) Part III
(Regulations) of the Legislation Act, 2006 does not apply to,
(a) any rules made by the Chief Forensic Pathologist
respecting the maintenance of the register of pathologists under section 7.1 or
the authorization of pathologists to provide services under this Act; or
(b) the rules of procedure for inquests made by the Chief Coroner under section
50.1. 2009, c. 15, s. 28 (2).
Forms
57. (1) The Minister may approve forms for the purposes of this Act and provide for
their use. 2009, c. 15, s. 29.
Same
(2) Where the
Minister approves a form and requires its use, the form shall be available on
the website
of the ministry of the Minister. 2009, c. 15, s. 29.
Appendix D
Suite 3000
79 Wellington St. W.
Box 270, TD Centre
Toronto, Ontario
M5K 1N2 Canada
Tel 416.865.0040
Fax 416.865.7380
www.torys.com
Frank Iacobucci
Tel 416.865.8217
November
9, 2011
RE:
Independent Review of First Nations Representation on Ontario’s Jury Roll
I would
like to take this opportunity to introduce myself as the Independent Reviewer
appointed by the Attorney General and the
Government of Ontario to examine, report and offer recommendations regarding the process for inclusion of First Nation peoples
living in reserve communities on the provincial jury roll from which
potential jurors are selected for all jury trials and coroners inquests. My
report will be submitted to the Attorney General of Ontario on or before August
31, 2012.
The matter of First Nations’ representation on Ontario’s jury roll has been raised in certain trials and coroners’ inquests
over the last several years, a development that has prompted some First
Nations’ organizations to advocate
for a systemic review of the creation of the jury roll. The Government of
Ontario has responded by establishing
a process for an Independent Review with the objective of enhancing First
Nations’ representation on the provincial jury roll and strengthening
the relationship between the Ministry of the Attorney General and First Nations
in this regard.
I am
keen to meet with First Nation organizations and communities in the next few
months to discuss this important matter and
obtain an informed view of the issues related to First Nations and the jury
roll. I hope you will be interested
in participating in this process. I welcome your involvement, or the
involvement of your member
communities, and look forward to discussing the most effective means by which
this could occur, considering the needs of your organization and the
parameters of this process. We would be pleased to receive written submissions, convene or attend meetings, or engage in a
combination of these approaches.
Throughout the Independent Review process, I will be
supported by a legal team led by John Terry, a partner at
Torys LLP and Candice S. Metallic, of Maurice Law Barristers & Solicitors
as Associate Counsel. Please feel encouraged to follow up with either
Mr. Terry or Ms. Metallic if you wish to participate in this process, or if you
have any questions, comments or concerns respecting the process.
For further
information, please visit the website for the Independent Review at
www.firstnationsandjuriesreview.ca. I look forward to meeting with you in the
very near future.
Sincerely,
Frank
Iacobucci
APPENDIX E
List of engagement sessions
FIRST NATIONS AND OTHER GROUPS AND
INDIVIDUALS
|
OFFICIALS THAT ATTENDED
|
SUBMISSIONS
|
Nishnawbe
Aski Nation
|
Several
meetings with, then, Deputy Chief Terry Waboose, Bentley Cheechoo and NAN
Assembly
|
Written Submission
|
1. Keewaywin |
Council,
Elders & community representatives
|
|
2. Kassabonika Lake |
Chief
& Council, Elders, community representatives, and justice committee
|
Written Submission
|
3. Webequie
|
Council,
community representatives
|
|
4. Mattagami
|
Chief
& Council, community representatives
|
|
5. Moose
Cree
|
Chief
& Council, justice worker, probation officer, lawyer
|
Written Submission
|
6. Constance Lake
|
Chief
& Council, community representatives
|
|
7. Sandy Lake
|
Chief
& Council, Elders, justice committee
|
|
8. Mushkeegomang
|
Chief
& Council
|
|
9. Poplar
Hill
|
Chief
& Council
|
|
10. Sachigo Lake
|
Chief
& Council, community representatives, students
|
Written Submission
|
11. Kasheshewan
|
Chief
Solomon (in Toronto)
|
|
Grand
Council Treaty 3
|
Meeting
with then Grand Chief Diane Kelly and Chief Simon Forbister
|
|
1. Wauzhushk Onigum
|
Gathering
of 8 Chiefs, Councilors, Elders, and technicians
|
|
Union
of Ontario Indians
|
Meeting
with legal counsel
|
Written
Submission
|
1. Garden River
|
Gathering
of 3 Chiefs, an Elder and technicians
|
Written
presentation
|
2. Toronto
|
Gathering
of 1 Chief, Councilors from 5 First Nations, and technicians
|
3 written
presentations
|
APPENDIX F
Suite 3000
79 Wellington St. W.
Box 270, TD Centre
Toronto, Ontario
M5K 1N2 Canada
Tel 416.865.0040
Fax 416.865.7380
www.torys.com
Frank
Iacobucci
Tel 416.865.8217
April 20, 2012
RE: Independent
Review of First Nations Representation on Ontario’s Jury Roll – Points Raised
Through Dialogue with First Nations and Further Questions
Last
November, I wrote to you to introduce myself as the Independent Reviewer
appointed by the Attorney General and the Government of Ontario to examine,
report and offer recommendations regarding the process for inclusion of
First Nation peoples living in reserve communities on the provincial jury roll
from which potential jurors are selected for all jury trials and coroners
inquests.
I explained at the
time that I would be meeting with First Nation organizations and communities
over the next several months to obtain an
informed view of the issues related to First Nations and the jury roll. I have
now completed most of those consultations, having traveled throughout the
province to meet with First Nations leaders and community members, treaty
organization representatives, judges, court officials and other interested
groups to discuss this very serious issue.
As
we move from the consultation phase toward the report-writing stage of my
review, I wanted to give you feedback on
what I have heard during these consultations and provide you with an additional
opportunity to give your input on some
follow-up questions that I have. In order to do that, I enclose a short
document that describes the points
raised through my dialogue with First Nations, organized under five issues, as
well as a list of follow-up questions relating to some of those issues.
I encourage you to
provide me with your comments or submissions in response to these questions,
any of the other issues discussed and points raised in the document, or any
other issues relevant to my review. In order
to meet the deadline for me to complete my report, I would be grateful if you
would provide me with any comments or submissions by no later than May
25, 2012.
Sincerely,
Frank Iacobucci
INDEPENDENT REVIEW OF FIRST
NATION
REPRESENTATION ON ONTARIO’S JURY ROLL
MANDATE OF INDEPENDENT REVIEW
- Systemic challenges to First Nations
representation on Ontario’s jury roll for trials and coroner’s inquests
- Improve
relationship between First Nations and Ministry of the Attorney General in the
context
of the jury roll
POINTS RAISED THROUGH
DIALOGUE WITH FIRST NATIONS
Issue
#1: First Nations’ perspectives on the justice system
chill the desire to serve on Ontario juries
-
Competing values, ideologies and laws with respect to achieving justice, i.e.
Canadian system of criminal justice does not accord with traditional First
Nations principles of attaining harmony and balance
- Systemic
discrimination – negative experiences have shaped adverse perspectives and
mistrust
of the whole of the criminal justice system, including jury duty
- Justice
challenges in northern First Nations communities are distinct -- e.g. lack of
access --
and compound the problem
- Lack of
education about and awareness of the jury system
-
Self-government objectives for community based justice initiatives and
ancillary resource/capacity requirements are not supported
- Inadequate policing services and funding
contribute to negative perceptions of the criminal justice system
Issue #2: Current practices
for collection of names and contact
information of First Nations peoples on reserve are inadequate
-
Residency vs. membership – A specific list of on-reserve residence is required,
rather than the full membership list or
voters list
- First
Nations seek capacity to gather and maintain appropriate, accurate and current
records, including addresses, for jury roll purposes
-
Voluntariness of First Nation participation is required given extent of
existing social and economic pressures. First Nations’ administrators are best
positioned to solicit interest
Issue #3: Juror questionnaires
pose problems and concerns that deter First Nation responses
- Penalty
for non-response (fine or imprisonment) within unreasonable time limit (five
days of receipt of notice) is perceived as imposing jury duty through
intimidation and threat
- The requirement to declare ‘Canadian’ citizenship
prevents participation of many First Nations peoples
- List of
exemptions from jury duty ought to include elected First Nation leadership
- English or
French-speaking requirement is problematic for many whose primary language is
their First Nation language – juries ought to be equipped with translation
services, if necessary
- Lack of
translation of questionnaires and instructions pose challenges to completing
forms
- Lack of
understanding of the jury selection process and role of juries prevent response
to jury questionnaires
- Confusion
and misunderstanding may arise when someone is empanelled but not chosen for a
jury
Issue #4: Practical barriers
to jury participation
- Transportation – travel to urban centers often
requires multiple modes of transportation that occupy significant
amounts of time (several days in some circumstances) and costs are beyond what
people can afford out of pocket. Transportation presents a significant barrier
to northern First Nations who incur higher travel costs which, in turn, further
inhibits participation
-
Accommodations and meal allowances are not always sufficient
- Childcare
expenses must be included as a necessary expense
- Employment
income supplements may be required, when necessary
- All expenses related to the jury system must
be paid prior to travel due to lack of resources and credit
- Community-based supports, such as assistance with
process and postjury service psychological effects, are needed by those
who participate in juries
- Lack of
translation services while in urban centres creates hardships
- Criminal
records and lack of awareness of pardon procedures present a bar to service
Issue #5: Relationship
between the Ministry of the Attorney General
and First Nations with respect to the jury roll needs to be improved
- Need for
collaboration between the Ministry of the Attorney General and First Nations
- Education
and awareness of jury system for both trials and coroner’s inquests among First
Nations needs to be improved
- Increased education required for provincial
officials regarding First Nations’ culture, values and traditions
- More education about process for pardons and
access to support services for First Nations is required
- Proper
funding is required to support community based justice initiatives aimed at
enhancing participation on juries in a culturally appropriate manner and to
implement First Nation restorative justice initiatives
- Better
cultural sensitivity training is needed for those involved in the justice
system
FOLLOW-UP QUESTIONS
- On-reserve residency name and address information
- How should
this information be collected?
- Should
OHIP information be used?
- Should
band list information be provided?
- Should
First Nations communities collect this information themselves and provide it to
the Ministry of the Attorney General?
- Jury forms
- Should the
forms ask whether an individual is “First Nations” as opposed to the current
form which asks whether an individual is a Canadian citizen?
- How can
First Nations members be encouraged to complete and submit the forms?
For example, should the penalties for non-response be modified in some way?
- Are there
any exemptions from jury service that should be included in addition to
exempted
First Nations leadership?
- If the
form stated that a translator could be provided for a juror, would that improve
First Nations participation?
- Practical barriers
- What kinds
of transportation, accommodation, meals or other costs should be paid for
in order to encourage participation?
- What kinds
of community supports for completing jury forms, attending a trial or inquest,
or dealing with post-jury psychological effects should be provided?
- Relationship between First
Nations and Ministry of the Attorney General
- What steps
would you recommend be taken to improve this relationship?
[1] Juries Act, R.S.O. 1990, c. J. 3, s. 6(8).
[2] Pierre v. McRae, 2011 ONCA 187 at para. 68.
[4] R.
v. Kokopenace, 2011 ONCA 536.
[5] R
v. Spiers (2007), 76 W.C.B. (2d) 55 (O.N.S.C.J.).
[6] The
Independent Review was provided with these materials by counsel with the
agreement of the court. See para. 5 of the respondent’s factum in R
v. Kokopenance.
[7] See Lloyd E. Moore, The Jury: Tool of Kings, Palladium of Liberty (Cincinnati: W.H. Anderson Company,
1963), at chapter 1. Greek mythology speaks of the trial of Orestes,
killer of his mother Clytemnestra (the wife of Agamemnon) as the “first jury
trial of a mortal.” In deciding Orestes’ fate, the jury split with six votes
cast for guilty and six votes for not guilty. However, the goddess Athena took
pity on Orestes and cast her vote for an acquittal.
[10] William Forsyth, History of Trial by Jury, (London: John Parker and Sons, 1852) at 54.
[11] Moore, supra note 7
at 35.
[13] Ibid., at
49-50. See also John Dawson, A History of Lay Judges (Harvard
University Press: Cambridge Mass, 1960) at 289-290.
[14] Theodore
Plucknett, A Concise
History of the Common Law, 5th ed. (The Lawbook Exchange, Ltd.: New Jersey, 2011) at 126.
[15] Moore, supra note 7 at 68-69, 82, 89.
[16] R.A. Hughes,
“Role of a Jury in a Criminal Case,” in Edson Haines, ed., Special Lectures of the Law Society of
Upper Canada 1959
(Toronto: The Law Society of Upper Canada, 1959) at 9.
[17] Simon Stern,
“Between Local Knowledge and National Politics: Debating Rationales for Jury
Nullification After Bushell’s Case” (2001-2002) 111 Yale L.J. 1815 at 1822.
[21] R. v. Sherratt, [1991] 1 S.C.R. 509. [Sherratt].
[22] Law Reform
Commission of Canada, Working
Paper 27: The Jury in Criminal Trials by Chairman Francis Muldoon (Ottawa: Minister of Supply and
Services Canada, 1980).
[23] Sherratt, supra note 21 at para. 30.
[24] Ontario Law
Reform Commission, Report
on the Coroner System in Ontario, by Chairman Allan Leal (Toronto: Queen’s Printer, 1971) at 11. Christopher
Granger, Canadian Coroner Law: A Legal Study of Coroner and Medical
Examiner Systems in Canada (Toronto: The Carswell Company Ltd., 1984) at 35; where the
author indicates that changes to the coroner’s system in England occurred after
the office was transplanted to Canada.
[26] Report on the
Coroner System in Ontario, supra note 24 at 25.
[28] Ontario Law
Reform Commission, Report on the Use of Jury Trials in Civil Cases, by
Chairman John McCamus (Ontario: Queen’s Printer, 1994) at 92.
[29] Sherratt, supra
note 21.
[30] Brian M. Brown, Poundmaker, Big Bear, and the 1885
Rebellion (1999),
online: alittlehistory.com <http://www.alittlehistory.com/NativeRb.htm>.
[31] Thomas Fiddler
and James R. Stevens, (Manotick, ON: Penumbra Press, 1985) at 73.
[32] The Royal
Commission on the Donald Marshall, Jr., Prosecution, , by Chief Justice T.
Alexander Hickman (Halifax: McCurdy’s Printing and Typesetting Limited, 1989).
[33] Graham Parker,
“Trial by Jury in Canada” (1987) 8 Osgoode Hall L.J. 178 at 178.
[36] Ibid. See
also An Act to Establish Trials by Jury, Upper Canada Statutes, 1792, c.
2.
[37] An Act to
Establish Trials by Jury, ibid.
[38] R. Blake Brown, A Trying Question: The
Jury in Nineteenth Century Canada (Toronto: Osgoode Society for Canadian Legal
History, 2009) at 44.
[41] J.C.E. Wood,
“Discovering the Ontario Inquest” (1967) 5 Osgoode Hall L.J. 243 at 246.
[42] See Christopher
Granger, Canadian Coroner Law: A Legal Study of Coroner and Medical Examiner
Systems in Canada (Toronto: The Carswell Company Ltd., 1984) at 15, 28.
[43] Act to amend the
Law respecting the office of the Coroner, 1850, Upper Canada Statutes, c. 56.
[44] Ontario Law
Reform Commission, Report on the Law of Coroners by Chairman John McCamus
(Ontario: Queen’s Printer, 1995).
[45] See the current Coroner’s
Act, R.S.O. 1990, c. C.37, attached to this Report as Appendix C.
[46] R. Blake Brown,
supra note 38 at 45.
[47] R. Blake Brown,
ibid. An Act for the Regulation of Juries, Upper Canada Statutes, 1794 c. 1.
[48] R. Blake Brown, ibid
at 88.
[49] Upper Canada
Jurors’ Act of 1850, Upper Canada Statutes, 1850 c. 5.
[50] R. Blake Brown, supra
note 38 at 135-138.
[51] An Act to Amend
the Jurors’ Act, S.O. 1879, c. 14.
[52] R. Blake Brown, supra
note 38 at 144.
[55] The Honourable
Mr. Justice Todd L. Archibald & Robert L. Gain, “The Breadth of Civil Jury
Trials in Canada: Their History and Availability” in The Honourable Mr. Justice
Todd L. Archibald & The Honourable Mr. Justice Randall Scott Echlin, Annual
Review of Civil Litigation, 2007 edition, (Toronto: Thomson Canada Limited,
2007) 139 at 141.
[56] Law Reform Act
of 1868, S.O. 1868, c. 6, s. 18(1).
[57] Act for the
better administration of Justice in the Courts of Ontario, S.O. 1873, c. 8.
[58] Ibid., at
c. 8, s. 16-17.
[59] Ontario Royal
Commission Inquiry into Civil Rights by Commissioner James Chalmers McRuer,
Report No. 1, Vol. 2 (Toronto: Queen’s Printer, 1968) at 859.
[60] Ontario Law
Reform Commission, Report on the Use of Jury Trials in Civil Cases by
Chairman John McCamus, (Ontario: Queen’s Printer, 1994) at 90.
[61] Courts of
Justice Act, R.S.O. 1990, c.43, s. 108.
[62] Rules of Civil
Procedure, R.R.O. 1990, Regulation 194, s. 47.01.
[63] An Act to
provide for the summary punishment of Petty Trespasses, and other offences,
Upper Canada Statutes 1834, c. 4.
[64] R. Blake Brown, A
Trying Question: The Jury in Nineteenth Century Canada, (Toronto: Osgoode
Society for Canadian Legal History, 2009) at 199. An Act for more speedy
trial, in certain cases, of persons charged with felonies and misdemeanors, in the
Provinces of Ontario and Quebec, S.C. 1869, c. 34.
[65] Neil Vidmar, “The
Canadian Criminal Jury: Searching for a Middle Ground” (1999) 62 Law and
Contemporary Problems 141 at 146.
[66] Criminal
Code, S.C. 1894, c. 29, s. 783, 786.
[67] Ibid., at
c. 29, s. 818.
[68] Law Reform
Commission of Canada, Working Paper 27: The Jury in Criminal Trials by
Chairman Francis Muldoon (Ottawa: Minister of Supply and Services Canada, 1980)
at 2.
[69] Criminal Code,
supra note 66 at Part XIX – Indictable Offences, and Part XXVII – Summary
Convictions.
[70] See also Criminal
Code, R.S.C., 1985,
c. C-46, s. 469.
[71] Ibid., Criminal
Code at c. C-46, s. 473(1).
[72] Ibid., c. C-46, s. 787.
[73] Criminal Code,
supra note 66 at Part XXVII – Summary Convictions.
[75] Kazi Stastna, “Jury Duty: Unfair burden
or civic obligation?” CBC News (8 November 2011) online: CBC News
<http://www.cbc.ca/news/canada/story/2011/11/06/f-juries-analysis.html>.
[76] Juries Act,
R.S.O. 1990, c. J. 3. Juries Act, R.R.O. 1990, Reg. 680. There seems to
be confusion as to the delineation of jury districts, and the terminology used.
Section 5(2) of the Juries Act addresses “territorial districts”, while
s. 10 of Regulation 680 under the Juries Act establishes two “jury
areas,” but does not identify the rest of the province’s jury areas. It is
regrettable that there is no publically available source of information
identifying Ontario’s jury districts or areas, or providing a map thereof. This
lack of transparency seems to give rise to confusion, and warrants clarification.
[77] Affidavit of
Shawn Joy, sworn on July 19, 2011, filed in R. v. Kokopenace at para. 5.
[78] Criminal Code,
R.S.C., 1985, c. C-46, s. 638(1)(b).
[79] Ibid., at c. C-46, s. 634.
[80] Courts of
Justice Act, R.S.O. 1990, Chapter C.43, s. 108.
[81] Coroners Act,
RSO 1990, c C.37, s. 33(2).
[82] R. v. Sherratt,
[1991] S.C.J. No. 21 at para. 31.
[83] Lloyd E. Moore, The
Jury: Tool of Kings, Palladium of Liberty (Cincinnati: W.H. Anderson
Company, 1963) at 68.
[84] The Jurors Act,
R.S.O. 1877, c. 48, s. 6.
[85] An Act to Amend
the Jurors’ Act, R.S.O. 1973 c. 81, s. 5.
[86] U.S. Constitution. amend. VI.
[87] Strauder v. West Virginia (1880), 100 U.S. 303.
[88] David Kairys,
Joseph Kadane and John Lehoczky, “Jury Representativeness: A Mandate for
Multiple Source Lists” (1977) California L.R., Vol. 65, No. 4 at 780. Albert
Alschuler and Andrew Deiss, “A Brief History of the Criminal Jury in the United States” (1994) 61 The University of Chicago L.R. 867 at 893.
[89] Albert Alschuler
and Andrew Deiss, ibid., at 894.
[90] Norris v. Alabama (1935), 294 U.S. 587.
[91] Patterson v. Alabama (1935), 294 U.S. 600.
[92] Cynthia Williams,
“Jury Source Representativeness and the Use of Voter Registration Lists” (1990)
65 New York University L.R. 591 at 591.
[96] Duncan v. Louisiana (1968), 391 U.S. 145.
[97] Batson v. Kentucky (1986), 476 U.S. 79.
[98] Valerie Hans and
Neil Vidmar, Judging the Jury (Perseus Publishing: United States, 1986)
at 58.
[99] Hiroshi Fukurai,
Critical Evaluations of Hispanic Participation on the Grand Jury: Key-Man
Selection, Jurymandering, Language and Representativeness Quotas” (2001) 5 Texas Hispanic Journal of Law and Policy 7 at 19.
[100] United States v. Green (2005), 389 F. Supp. 2d 29 at para. 23.
[103] Coramae Richey
Mann, Unequal Justice: A Question of Color (Indianapolis: Indian
University Press, 1993) at 172.
[104] See Judge Nancy
Gertner, “12 Angry Men (And Women) in Federal Court” (2007) 82 Chicago-Kent
L.R. 613; United States v. Green, 389 F. Supp. 2d 29; Hiroshi Fukurai,
Edgar W. Butler and Richard Krooth, “Where Did Black Jurors Go? A Theoretical
Synthesis of Racial Disenfranchisement in the Jury System and Jury Selection”
(1991) 22 Journal of Black Studies 196.
[105] Law Reform
Commission of Canada, Working Paper 27: The Jury in Criminal Trials by
Chairman Francis Muldoon (Ottawa: Minister of Supply and Services Canada, 1980)
at 37.
[108] R. v. Sherratt,
[1991] 1 S.C.R. 509 at para. 35.
[109] R. v. Church of
Scientology of Toronto, 33 O.R. (3d) 65 (C.A.).
[110] R. v . Laws (1998),
41 O.R. (3d) 499 (C.A.).
[111] R v. Nahdee, [1994]
2 C.N.L.R. 158 (O.N.C.J.).
[113] R. v. Ransley,
[1993] O.J. No. 2828 (O.N.C.J.).
[114] Sherratt, supra
note 108.
[115] R. v. Bain,
[1992] 1 S.C.R. 91.
[116] R. v. Smoke,
[1983] O.J. No. 563, (H.C.J.)
[117] R. v. Butler, [1984] B.C.J. No. 1915 (B.C.C.A.).
[119] Fiddler v. the
Queen (1994), 22 C.R.R. (2d) 82 (O.N.C.J.).
[120] R. v. A.F.,
[1994] O.J. No. 1392 (O.N.C.J.).
[121] R. v. Wareham (#2), [2012] O.J. No. 767 (S.C.J.).
[122] See paragraphs 53 to 55, and the
tables of demographic data contained therein, of the Affidavit of Amber Khan
(January 21, 2011) filed in R. v. Kokopenace.
[123] “Ruling by Dr.
Eden on motion regarding jury selection,” Inquest concerning the death of
Reggie Bushie, (September 9, 2011) at para. 18.
[124] Juries Act, R.S.O. 1990, c.
J. 3., s. 6(8).
[125] See section 73(2) of the Courts
of Justice Act, R.S.O 1990, c. 43, as amended, which provides for any power
or duty of the sheriff to be exercised or performed by a person to whom the
power or duty has been assigned by the Deputy Attorney General or a person
designated by the Deputy Attorney General.
[126] Juries Act, supra note
124 at s. 9. The Transcript of the cross-examination of Shaun Joy filed in R.
v. Kokopenace, at 25-27.
[127] See paragraph 13 of the Affidavit
of Sheila Bristo dated December 2, 2011, filed in R. v. Kokopenace
[128] Access to
Information Act, R.S.C. 1985, c. A-1. Agreement between Canada and Ontario dated July 20, 1983, filed as Exhibit 25 to the transcript of the
cross-examination of Shaun Joy filed in R. v. Kokopenace.
[129] R. v. Fiddler (1994), 22
C.R.R. (2d) 82 at para. 101 (O.N.C.J.).
[130] The 1996 version of this
directive, which was filed in R. v. Kokopenace , is a memorandum dated
June 25, 1996 from the Director of the Program Development Branch of the
Ministry of the Attorney General Court Services Division. According to the
evidence filed in Kokopenance, I understand that versions of this
directive were distributed annually.
[131] The Affidavit of Sheila Bristo
(December 2, 2011), filed in R. v. Kokopenace, at para. 17.
[132] Privacy Act, R.S.C. 1985,
c. P-21.
[133] Letter from Diane Leroux,
Coordinator, Access to Information and Privacy, INAC to Liz Boyce, Court
Administration Division, Ministry of the Attorney General of Ontario (September
24, 2001).
[135] Affidavit of Laura Loohuizen,
filed in R. v. Kokopenace at paras. 82-83.
[136] For example, when the number of
questionnaires sent to on-reserve residents was increased from 600 for
compiling the 2008 jury roll to 810 for compiling the 2009 jury roll, the
number of eligible on-reserve residents who replied and were able to be added
to the jury roll increased from 34 to 64
persons. Correspondingly, when the number of questionnaires sent to on-reserve
residents was decreased to 652 in 2010
and 684 in 2011, the number of eligible on-reserve residents added to the jury
roll decreased to 41 and 43 persons respectively. See Exhibit C of the
Affidavit of Shaun Joy (July 19, 2011) filed in R.
v. Kokopenace.
[137] Affidavit of Laura Loohuizen, supra note 135 at paras. 103-104. See also: Exhibit
54, filed in R. v. Kokopenace.
[138] Exhibit C of the Affidavit of
Shaun Joy (July 19, 2011) filed in R. v. Kokopenace.
[139] Inquest
concerning the death of Reggie Bushie; Ruling by Dr. Eden on motion regarding jury
selection, September 9, 2011, at para. 18.
[140] Ibid.,
at paras. 25-26.
[141] R. v. Wareham (#2), [2012] O.J. No. 767 at para. 54 (S.C.J.).
[142] Ibid.,
at para. 23.
[143] Public Inquiry
Into the Administration of Justice and Aboriginal People, Report on Aboriginal Justice Inquiry of Manitoba,
Vol. 1
by A.C. Hamilton & C.M. Sinclair. (Winnipeg: Public Inquiry into the
Administration of Justice and Aboriginal People,
1991) online:
The Aboriginal Justice Implementation Commission
<http://www.ajic.mb.ca/volumel/toc.html> at chapter 1.
[144] Ibid.,
at chapter 9.
[149]
Law Reform Commission of Canada, Working Paper 27:
The Jury in Criminal Trials by Chairman Francis Muldoon
(Ottawa: Minister of Supply and Services Canada, 1980) at 54.
[150] Report on Aboriginal Justice Inquiry of Manitoba, supra
note 143 at chapter 9.
[152]
R v. Bain, [1992] 1 S.C.R. 91.
[153]
Criminal Code, R.S.C., 1985, c. C-46, s.634 as
am. by An Act to Amend the Criminal Code, S.C. 1992, c.41, s.2.
[154]
Jury Act, R.S.B.C. 1996 Chapter 242, ss. 2
and 8.
[155]
See Jury Duty – Our Justice System Depends On It,
online: British Columbia Ministry of Justice
<http://www.ag.gov.bc.ca/courts/jury_duty/index.htm>.
[156]
Letter from Barry Penner, Q.C., Attorney General for British Columbia to Jason
Gratl, British Columbia Civil Liberties Association
(July 11, 2011) Re. First Nation Underrepresentation on Jury Rolls.
[157]
Mark Israel, “The Underrepresentation of Indigenous Peoples on Canadian Jury
Panels” (2003) 25 Law and Policy 37 at 42.
[158]
Christopher Gora, “Jury Trials in the Small Communities of the Northwest Territories” (1993) 13 Windsor Yearbook of Access
to Justice 156 at 161.
[159]
Jury Act, R.S.N.W.T. 1988 c. 5.
[160] Official Languages of the Northwest Territories,
online: Northwest Territories Education, Culture and Employment
<http://www.ece.gov.nt.ca/pdf_File/Official%20Language/024-Official%20Languages%20Map-web.pdf>.
[161]
Christopher Gora, supra note 158 at 165-166.
[163]
Jury Act, supra note 159 at c.J-2, s. 8(2).
[164]
Jury Regulations, NWT Reg (Nu) 034-99, s. 3(1).
[165]
Mark Israel, supra note 157 at 48.
[166] Cited in Mary
Crnkovich and Lisa Addario, Inuit Women and the
Nunavut Justice System, (Ottawa: Statistics Canada,
Research and Statistics Division, 2000) at 7.
[167]
Jury Act, RSA 2000, c J-3, s. 7.
[168]
Jury Act Regulation, Alta Reg. 68/1983.
[169]
Justice on Trial: Report of the Task Force on the
Criminal Justice System and its Impact on the Indian and Métis People of Alberta, vol. 1 (Main Report) (Alberta: Justice and Solicitor General, March 1991)
at 44-45 to 44-46. See also the comments in Mark Israel, supra note 157 at 41.
[170]
The Jury Act, Statutes of Saskatchewan 1998,
c. J-4.2, s. 7(1).
[171]
Law Reform Commission of Saskatchewan, Proposals for
the Reform of the Jury Act, (Saskatchewan: December 1979) at 18-20
[172]
Jurors Act, RSQ, c J-2, s. 42.
[173]
Juries Regulations, O.I.C. 2000-356 (June 29,
2000), N.S. Reg. 126/2000; Juries Act, SNS 1998,
c 16.
[174]
Law Reform Commission of Nova Scotia, Final Report
on Juries in Nova Scotia (Nova Scotia: June 1994) online:
<http://www.lawreform.ns.ca/Downloads/Jury_FIN.pdf> at 42.
[175]
Law Reform Commission of Nova Scotia, Juries in Nova
Scotia (Nova Scotia: June 1993) online
<http://www.lawreform.ns.ca/Downloads/Jury_DIS.pdf> at 2-3, 5-6, 9-10,
21-24 and 26-28.
[176]
The Royal Commission on the Donald Marshall, Jr.,
Prosecution (Halifax:
McCurdy’s Printing and Typesetting Limited, December, 1989) at 12.
[177]
Jury Act, R.S.P.E.I. 1998, c. J-5.1, s. 8.
[178]
Jury Act, 1991, S.N.L. 1991, c. 16, s. 14(1).
[179]
Prospective Jurors Alternate Sources Regulations,
NLR 88/99, s. 2.
[180]
Australian Law Reform Commission, Aboriginal
Customary Law Research Paper no. 13. (Canberra: AGPS, 1983) at para.
590.
[181]
Michael Chesterman, “Criminal Trial Juries in Australia: From Penal Colonies to
a Federal Democracy” (1999) Law and Contemporary Problems 69 at 71.
[182]
Law Reform Commission of Western Australia, Selection,
Eligibility and Exemption of Jurors: Discussion Paper, Project No. 99
(Perth, Western Australia: Quality Press, 2009) at 14.
[184]
Law Reform Commission of New South Wales, Report 117
– Jury Selection (Sydney: 2008) at 1.21.
[185]
Law Reform Commission of Western Australia, supra
note 182 at 14. Law Reform Commission of New South Wales, Ibid.
[186]
Queensland Law Reform Commission, A Review of Jury
Selection, Report No. 68 (Queensland: QLRC, February 2011) at 75.
[188]
Law Reform Commission of New South Wales, supra
note 184 at 11.21, 11.69.
[189]
Queensland Law Reform Commission, supra note
186 at 6.14.
[191]
Law Reform Commission of Western Australia, supra
note 182 at 94.
[193]
Law Reform Commission of New South Wales, supra
note 184 at 1.35.
[194]
Mark Israel, “Ethnic Bias in Jury Selection in Australia and New Zealand” (1998) International Journal of Sociology 35 at 44.
[195]
Law Reform Commission of New South Wales, supra
note 184 at 3.19-3.23.
[196]
Queensland Law Reform Commission, supra note
186 at 11.38.
[197]
Ibid., at 6.148-6.150.
[198]
Ibid., at 11.86, 11.18-11.19.
[200]
Law Reform Commission of New South Wales, supra
note 184 at 1.51-1.53.
[201]
Law Reform Commission of Western Australia, supra
note 182 at 47.
[202]
Queensland Law Reform Commission, supra note
186 at 11.106-11.110.
[203]
New Zealand Law Commission, Juries in Criminal
Trials, Report 69 (Wellington: NZLC, 2001) online: <http://www.lawcom.govt.nz/>
at para. 165.
[204]
The others being competence, independence and impartiality.
[205] New Zealand Law
Commission, supra note 203 at para. 135.
[206]
Ibid., at paras. 136-156.
[207]
Ibid., at para. 165.
[208]
Ibid., at para. 166.
[209]
Mark Israel, supra note 194 at 40.
[211]
New Zealand Law Commission, supra note 203 at
paras. 168-174.
[212]
Ibid., at para. 173.
[213]
Ibid., at para. 496.
[214] Judge
Nancy Gertner, “12 Angry Men (And Women) in Federal Court” (2007) 82 Chicago-Kent L.R.
613 at 617;
Jury Selection and Service Act of 1968, 28
U.S.C. ยง 1861.
[215]
Albert Alschuler and Andrew Deiss, “A Brief History of the Criminal Jury in the
United States” (1994)
61 The University of Chicago L.R. 867 at 884.
[216]
Rachel King, “Bush Justice: The Intersection of Alaska Natives and the Criminal
Justice System in Rural Alaska” (1998)
77 Oregon L.R.
1 at 2.
[217]
Jeff May, “Alvarado Revisited: A missing Element in Alaska’s Quest for Provide
Impartial Juries for Rural Alaskans” (2011)
28 Alaska L.R.
246 at 246.
[220] Alvarado v. State of Alaska, 486 P.2d 891 (1971).
[221]
Devon Knowles, “From Chicken to Chignik: The Seach for Jury Impartiality in
Rural Alaska Native Communities” (2005)
37 Columbia Human
Rights L.R. 235 at 249; Alvarado v. State,
486 P.2d 891 (1971).
[222]
Jeff May, supra note 217 at 260.
[226] “Rule 18. Venue:
Place for Trial,” 2011-2012 Alaska Rules of Criminal
Procedure, online: Alaska Court System
<http://courts.alaska.gov/crpro.htm#18>.
[227]
Devon Knowles, supra note 221 at 250.
[228]
Jeff May, supra note 217 at 266.
[232]
Paula Hannaford-Agor, “Systematic Negligence in Jury Operations: Why the
Definition of Systematic Exclusion
in Fair Cross Section Claims Must be Expanded” (2011) 59 Drake L.R. 761 at
780-781.
[233]
Report of the New York State Judicial Commission on Minorities, (1991) 19
Fordham Urban L.J. 181 at 242.
[237]
General
Information Questions and Answers, online: New York State Unified Court System
<http://www.nyjuror.gov/juryQandA.shtml>.
[238]
Batson v. Kentucky, 476 U.S. 79 (1986).
[239]
Michael C. Dorf, “Are Hunters a Constitutionally-Protected Group? A New York
Judge Says Yes” FindLaw (9 September 2010),
online: <http://writ.lp.findlaw.com/dorf/20100909.html>.
[240]
People v. Luciano, 1 No. 78 (N.Y. 2008).
[241] Michael C. Dorf, supra
note 239.
[242]
Stephanie Domitrovich, “Jury Source Lists and the Community’s Need to Achieve
Racial Balance on the Jury” (1994),
33 Duquesne L.R. 39 at 97.
[243]
“Courts Try to Maximize Jury Diversity” The Third
Branch (July 2007), online:
<http://www.uscourts.gov/News/TheThirdBranch/07-07-01/Courts_Try_to_Maximize_Jury_Diversity.aspx>
[246] “Why so few black
jurors?” The Detroit Free Press (3 June
2012), online:
<http://www.freep.com/article/20120603/OPINION01/206030445/Editorial-Why-so-few-black-jurors->.
[247]
Royal Commission on Aboriginal People, Bridging the
Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada
(Ottawa: RCAP, 1996) at page 309.
[248]
Safe Streets and Communities Act, SC 2012, c.
1.
[249]
R. v. Gladue,
[1999] 1 S.C.R. 688 at para. 64.
[250]
R. v. Ipeelee, 2012 SCC 13 at para. 62.
Citations embedded in the quotation have been omitted.
[251]
Population by age groups, sex, and aboriginal
identity groups, online: Statistics Canada
<http://www12.statcan.ca/census-recensement/2006/dp-pd/hlt/97-558/pages/page.cfm?Lang=E&Geo=PR&Code=01&Table=
2&Data=Change&Sex=1&Abor=3&StartRec=1&Sort=2&Display=Page>.
2011 Census statistics are not yet available.
[252]
Aboriginal identity population by age groups, median
age and sex, online: Statistics Canada
<http://www12.statcan.ca/census-recensement/2006/dp-pd/hlt/97-558/pages/page.cfm?Lang=E&Geo=PR&Code=01&Table=1
&Data=Count&Sex=1&Age=10&StartRec=1&Sort=2&Display=Page>.
[253]
See Exhibit D to the Affidavit of Shawn Joy, sworn on July 19, 2011, filed in R. v. Kokopenace.
[254]
See Exhibits 71 and 72 (Binder 6, Tabs 27, 28) to the Affidavit of Laura
Loohuizen, sworn on July 18, 2011, filed
in R. v. Kokopenace, R. v. Spiers, Court File No. C49961 / C48160.
[255]
See paragraph 14, and Exhibit 2 of the Affidavit of Allan Tallman, sworn on
September 30, 2011, filed in the
R. v. Kokopenace and R. v. Spiers, Court File No. C49961 / C48160.
[256]
Nishnawabe Aski Nation, First Nations and Juries
Review, Systemic Submissions (July 11, 2012) at page 1.
[265]
Union of Ontario Indians, Juries are a Circle of
Justice – Report on the Ontario Jury Information Forums Conducted
Within the Anishinabek Nation, November 2009 to February 2010 (Spring
2010).
[266]
Union of Ontario Indians, Submissions on Behalf of
the Anishinabek Nation to the Iacobucci Review, at page 5.
[267]
Ernie Sandy (Traditional Teacher, Elder), First
Nation Citizens in Ontario Justice System March 23, 2012.
[268]
Mike Esquega Sr. (Northern Superior Regional Elder), Anishinabek Jury Selection Process, 2012
[269]
Karen R. Restoule, Jury Roll Selection – Problems or
Symptom?, March 23, 2012.
[270]
R. v. Ipeelee, 2012 SCC 13.
[271]
Public Inquiry Into the Administration of Justice and Aboriginal People, Report on Aboriginal Justice Inquiry of Manitoba,
Vol. 1 by A.C. Hamilton & C.M. Sinclair. (Winnipeg: Public Inquiry into the
Administration of Justice and Aboriginal People, 1991)
online: The Aboriginal Justice Implementation Commission
<http://www.ajic.mb.ca/volumel/toc.html> at chapter 19.
[272] R. v. Gladue, [1999] 1 S.C.R. 688.
[273]
Legal Aid Services Act, S.O. 1998, c. 26.
[274] Consumer Price Index, historical summary, online:
Statistics Canada
<http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/econ46a-eng.htm>.