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Case comment

A missed opportunity for reconciliation

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The truth and reconciliation commission of canada made headlines in June when it described the residential school system as “cultural genocide.” The TRC’s report, Honouring the Truth, Reconciling for the Future, forces Canadians to acknowledge that policies aimed at destroying aboriginal peoples’ rich cultures caused immense suffering and perpetuated the marginalization and racial discrimination they experience. To this day, these policies continue to shape aboriginal peoples’ relationship with Canada and Canadians.

Aboriginal people have shown us that the challenges they face are not insurmountable. Many communities and individuals have fought hard for their rights and are thriving. Some individuals are investing the funds they received as part of the residential schools settlement back into their communities, building them up from the inside out. But the Crown must also take every opportunity available to repair these harms and work towards reconciliation.

Such an opportunity was missed in the case of Clifford Kokopenace. In 2008, Kokopenace, an aboriginal man who lived on a reserve in the district of Kenora in Ontario, was convicted of manslaughter. The Court of Appeal for Ontario ordered a new trial, finding that Kokopenace’s Charter rights were violated because the jury roll from which his jury was selected was not sufficiently representative: while approximately one-third of the adult population in Kenora in 2003 lived on the reserve, on-reserve residents made up only four per cent of the jury roll. In May 2015, a majority decision of the Supreme Court allowed the provincial Crown’s appeal and reinstated Kokopenace’s manslaughter conviction. 

The majority held that the Crown had met its constitutional obligation, which was limited to making “reasonable efforts” to compile a representative jury roll and to deliver jury notices to those selected. The decision placed the blame on aboriginal people for not participating in juries instead of compelling the Government of Ontario to address the systemic reasons for aboriginal non-participation. In the words of the majority, “if the state makes reasonable efforts but part of the population is excluded because it declines to participate, the state will nonetheless have met its constitutional obligation.” 

The minority insisted that the systemic factors that have contributed to aboriginal individuals’ alienation from, and reluctance to engage with, the criminal justice system cannot be ignored. While the accused must demonstrate a substantial connection between state (in)action and the lack of representation of on-reserve aboriginal people on juries, the results of those efforts cannot be overlooked. The minority effectively acknowledged that reconciliatory efforts are badly needed in the Canadian criminal justice system. Elsewhere the Supreme Court has called the over-representation of aboriginal peoples within the system a “crisis.” 

In 2011, the Hon. Frank Iacobucci was appointed to conduct an independent review on the issue of under-representation of first nations on juries in Ontario. His report associates the problem with their alienation from the criminal justice system, and provides Ontario with 17 tangible recommendations, including providing cultural training for government officials, undertaking comprehensive and accessible justice education efforts for aboriginal people, making revisions to the jury questionnaire and making it available in aboriginal languages, and using the Ontario Health Insurance Plan database for the purpose of compiling jury rolls. Prior to the Supreme Court’s decision in Kokopenace, Ontario had begun implementing some of these recommendations. Let us hope that it continues to do so. 

The Supreme Court had the opportunity to insist that the Ontario government take a step toward reconciliation, and it missed the mark. Addressing the issue of the under-representation of aboriginal people on juries alone will not resolve their alienation from the criminal justice system, but it will be a good-faith step on the road to reconciliation. Let us hope the Kokopenace decision is just a bump in that road.