R. v. Kokopenace, 2011 ONCA 635

CITATION: R. v. Kokopenace, 2011 ONCA 635

DATE: 20111007

DOCKET: M40566 and M40567 (C49961 and C48160)

COURT OF APPEAL FOR ONTARIO

Goudge, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Clifford Kokopenace

Applicant

and

Clare Spiers

Applicant

and

Nishnawbe Aski Nation, Bushie Family and Pierre Family

Interveners

Heard: October 6, 2011

By the Court:

[1] Both the appellants and the Crown seek directions from the court about how to proceed with the appellants’ applications for disclosure of certain Band lists in furtherance of their constitutional challenge to their convictions. The issues that must be resolved in order to ultimately answer the disclosure question are:

(1) Whether the Crown is able to assert public interest privilege over the documents;

(2) If not, whether a Stinchombe process or an O’Connor process is to be used;

(3) Whichever of these two be used, whether disclosure is required.

[2] The major difference of opinion is whether these issues should be argued one after the other at a single hearing as the appellants propose, or whether the privilege issue should be heard and decided first, as the Crown submits.

[3] In our view these three issues should be argued at a single hearing, and then decided. We recognize that this will require the giving of notice to the Bands whose lists are being sought. We are of the view that this notice should encompass all three issues. We recognize that the service of these notices carries with it the possibility that some of the Bands may wish to exercise their rights to attend and make submissions on all three issues.

[4] We reach this conclusion for a number of reasons:

(1) The primary objective of this court must be to proceed as expeditiously as possible to hear the constitutional challenge to the convictions of the two appellants on serious criminal charges.

(2) This objective is best served by convening a single hearing to resolve all three issues.

(3) Given the time estimates of counsel, the record necessary for the hearing of these three issues and thus disposing of the appellants’ applications can be completed in time for the single hearing to take place in the week set aside for these appeals in November.

(4) The service of notices encompassing all three issues serves to give an element of transparency to this step in the process that is always desirable in the interest of justice. The notices will ensure that, whoever has present custody of the lists, the Bands whose lists they are, will know about the proceeding and the issues that affect those lists.

(5) We recognize that the giving of notice may pose some risk to the relations between Bands and the Crown and for the important work of the Iacobucci Inquiry. That risk remains to some degree, an imponderable. Although we have no direct evidence concerning the risk from the Bands themselves the Crown and NAN both described it. In all the circumstances however, we view the risk as acceptable, particularly given an appropriately worded notice, a notice mandated by the court, the objective of proceeding expeditiously with these appeals and most importantly, an understanding that the objective of the process of which notice is a part is to ensure that First Nations accused receive a fair trial as required by the Constitution.

[5] We therefore direct the following:

(1) These applications encompassing these three issues be heard at a single hearing commencing November 28, 2011.

(2) Notice be given to those Bands whose lists are referred to in paragraph 1 of the Crown’s factum together with the two Simcoe County Band lists.

(3) Those Bands to be served which are members of NAN be served through Mr. Falconer.

(4) The remaining notices be served by the Crown on each non-NAN Band.

(5) Rouleau J.A. continue his case management role including the time table for the completion of the application records, the content and timing of the notices, the time assignments for the hearing and all other matters necessary to have these applications heard as directed.

RELEASED: October 7, 2011 (“S.T.G.”)

“S.T. Goudge J.A.”

“H.S. LaForme J.A.”

“Paul Rouleau J.A.”