R v Madahbee-Cywink

All four of the applicants in this case had been charged with a variety of criminal offences and had elected trial by jury in the District of Manitoulin in northern Ontario. All four applicants also alleged that the 2014 jury roll for Manitoulin District violated ss. 11(d) and 11(f) of the Charter of Rights and Freedoms by not being “reasonably representative of the First Nations on-reserve population” in the District, and sought a  stay of proceedings for their respective prosecution on this basis. The Charter applications were based on the Ontario Court of Appeal’s decision in R. v. Kokopenace. While a further appeal of that decision was heard in October 2014 and the Supreme Court of Canada’s judgment remains reserved, the parties chose not to wait for the outcome of that further appeal as all jury trials of First Nations individuals had been adjourned on Manitoulin Island for the past fifteen months in anticipation of an outcome from these applications.

Canada’s Criminal Code leaves it up to each provincial legislature to determine how jurors will be summonsed and jury panels will be assembled. Ontario’s Juries Act addresses these issues through a “jury roll” process with the generation of a list of eligible prospective jurors for each county or district. Every year the sheriff of a county or district first determines how many prospective jurors will be required for all the jury trials and inquests to be held in the area that year. Then this number is passed on to an employee of the Municipal Property Assessment Corporation (MPAC) that selects a sufficient number of names at random through the most recent enumeration of the area’s residents under the provincial Assessment Act. The Juries Act also requires that this selection of names takes place in an “approximately proportionate” manner for residents of each municipality so that no one municipality is significantly over or under represented on the jury roll.

MPAC’s selection process does not include the on-reserve membership of First Nations since they are not enumerated under the provincial regime. However, the Juries Act requires the sheriff to select names of eligible on-reserve individuals as well, using “any record available” to find these names and treating each reserve as a municipality in terms of maintaining their “approximate proportionality” with other municipalities in the area.

Once a list of names has been assembled, each person on the list is sent a jury notice with various questions relevant to their eligibility to be a juror. Whoever is determined to be eligible based on their responses to the jury notice is then added to the jury roll, and “jury panels” are comprised of individuals whose names are drawn at random from the jury roll list. There is no additional requirement for proportionality at the “jury panel” stage.

The Charter applications in this case were not directed at the constitutionality of the Juries Act itself; instead, they challenged the administrative actions and alleged inaction of provincial officials in carrying out their duties under this legislation and ensuring the representativeness of the jury roll. The two rights at issue were the s. 11(d) right to “a fair and public hearing by an independent and impartial tribunal” and the s. 11(f) right to “trial by jury” where imprisonment for five years or more is a possible outcome of a prosecution.  The requirement for a jury roll to be representative came out of judicial interpretation of these two rights. Most recently, in R. v. Kokopenace, the Ontario Court of Appeal unanimously agreed that there is a qualified right to a representative jury roll that focuses on process over results. In other words, the test for whether this right has been breached depends on the process followed in assembling it, not on the representativeness of the jury roll itself. The Ontario Court of Appeal applied the following test: “in the process of compiling the jury roll, [did] Ontario [make] reasonable efforts to seek to provide a fair opportunity for the distinctive perspectives of Aboriginal on-reserve residents to be included, having regard to all the circumstances and keeping in mind the objective served by the representativeness requirement”?

While conceding that only 15.4% of the names on the jury roll for the District of Manitoulin were from on-reserve Aboriginal individuals in spite of this group comprising 32.77% of the District’s total eligible population, the Court noted that this was still far more representative than what had occurred in the Kokopenace case. The Court also distinguished the two cases on the basis that there was no issue with respect to mail delivery to on-reserve individuals in Manitoulin and there was a significantly better response rate to the jury notices in this case. Furthermore, the Court noted that since the Kokopenace case, Ontario had made attempts to implement recommendations from a report commissioned from former Supreme Court of Canada Justice Frank Iacobucci on this issue, which formed part of its “reasonable efforts” to carry out its constitutional duties.

The Court found that six of the band lists relied on for the creation of the Manitoulin jury roll, obtained directly from each band’s administration, were either current or reasonably current, with the oldest two lists dating from 2011. No band list was provided for the seventh reserve in spite of efforts made to obtain one, and a 1997 band list from Indian and Northern Affairs Canada (as it then was) was relied on for this purpose. However, the Court noted that this was a small reserve with an adult population of 105, as compared to the total 3,500 eligible on-reserve individuals in the District. It found no Charter violation at this step of the process.

While there was a higher rate of post office returns for the jury notices sent to on-reserve individuals, approximately 90% of the jury notices were successfully delivered on-reserve and the Court found the difference between this and the 95% success rate for off-reserve delivery was not “constitutionally significant”. The Court found there was no consistent pattern, as in some previous years Ontario had greater success sending jury notices to on-reserve individuals in the District than off-reserve. Furthermore, as an “affirmative action” measure Ontario delivered an additional 30% more jury notices to on-reserve individuals than would have otherwise been necessary to achieve proportionality with other municipalities. The Court found no Charter violation at this stage of the process either.

The final stage of analysis from the Kokopenace decision was to examine whether Ontario had made “reasonable efforts” to encourage First Nations residents to respond to jury notices – the Court noted that this was the “most difficult and complex part of the Kokopenace framework”. In finding no Charter violation at this stage either, the Court addressed various province-wide steps taken by Ontario to increase the on-reserve response rate to jury notices, including: its “affirmative action” program to increase the number of notices mailed to on-reserve residents; its commissioning of the Iacobucci report and creation of a committee to implement recommendations from that report; its engagement in government-to-government consultation with First Nations on the issue, as recommended in the Iacobucci report; and its appointment of a Mohawk lawyer as Assistant Deputy Attorney-General who would “be responsible for overseeing the government’s response” to the Iacobucci report.