ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-09-0025
DATE: 2012-02-10

B E T W E E N:

HER MAJESTY THE QUEEN

Robert Kozak , for the Crown

• and -

ANDRE WAREHAM,

Steven Hinkson , for the Applicant

Applicant

HEARD: January 31, February 1, 2012, at Thunder Bay, Ontario

Platana J.

Reasons On Jury Challenge

[ 1 ] The Applicant is charged with second degree murder, contrary to s. 235(1) of the Criminal Code .

[ 2 ] This matter was set to proceed to trial in the jury sittings in March 2011. A challenge to the panel, which was brought with respect to the 2011 panel, was successful. The matter was traversed to the November sittings, at which time that motion was abandoned.

[ 3 ] On January 16, 2012, counsel for the accused filed a Notice of Motion to challenge this panel pursuant to s. 629 of the Criminal Code . He also relies on s. 7.11(d) and 15 of the Canadian Charter of Rights and Freedoms . Prior to the commencement of the trial, I dismissed the motion, and indicated that I would provide these reasons.

[ 4 ] Counsel agreed that the materials filed in the November motion should be considered in this motion. The evidence in this motion is comprised of the following materials: three volumes of transcripts from the inquest into the death of Reggie Bushie; the Application record in the previous motions, a transcript of the hearing before Justice H. Pierce in March 2011; a binder containing documentation with respect to the 2012 jury roll, and an affidavit of Don Blaquiere, Manager of Court Operations.

[ 5 ] In addition to the materials filed viva voce evidence was given by Sheila Bristo, Area Director of Corporate Planning in the Ministry of the Attorney General; Anna Maria Clark, Supervisor of the Provincial Jury Centre in London, Ontario, who testified via video-conference; Janette Sprovieri, Supervisor of Court Operations in Thunder Bay; and Don Blaquiere, Manager of Court Operations in Thunder Bay.

[ 6 ] The challenge to the 2011 jury panel came as a result of the decision of the Ontario Court of Appeal in Pierre and McRae , 2011 ONCA 187 , and the inquest into the death of Reggie Bushie held in July 2011.

[ 7 ] The focal issue is the manner in which information is gathered with respect to the names of First Nations persons living on reserves for the purpose of obtaining a representative panel from which a jury may be selected. Put in another fashion has s. 6(8) of the Juries Act been complied with by the Sheriff as it pertains to the 2012 jury panel in the District of Thunder Bay?

Facts

[ 8 ] The facts are not in dispute. The procedure for establishing a panel are detailed, and are set out in the decisions in Pierre (which, although a Coroner’s jury, is required to follow the same procedure) and in The Queen v. Dr. Michael Monture, 2011 ONSC 4254 . Central to the position of the Applicant is the submission that, following the decision of Justice Pierce on the 2011 jury panel, which determined the process then used to be insufficient to gather names, nothing has been done to alter the process to increase the number of names of potential jurors from First Nations peoples living on-reserve. That motion was a challenge pursuant to the Juries Act and not under s. 629 of the Criminal Code .

[ 9 ] On the limited evidence before her, Justice Pierce decided that the 2011 jury panel selection in this case was not representative. In coming to that conclusion, Justice Pierce was presented with evidence that the efforts to obtain the names of natives living on reserves consisted of Court Services sending a fax and letter to each chief and band requesting an updated band electoral list. That was followed up with a phone call approximately five days later. After repeated efforts to get the lists, Court Services Division would then simply wait to see which bands would provide the information. No efforts were made beyond that. With the exception of two of the fifteen communities, all declined to provide updated lists due to confidentiality, or the fact that the information was protected under the Privacy Act . In cases where no current information was provided, the most current lists were used. The lists were generally old, some dating back to 2000.

[ 10 ] No information was available as to how many questionnaires had been returned.

[ 11 ] No meetings with any First Nations had taken place.

[ 12 ] What is clear from the Act, and from previous case law, is that there is no specific code, or procedure, to be followed as to how to obtain the names. It is the responsibility of the local court sites to comply with the obligation in the Act to “select names of eligible persons inhabiting the reserve.” I adopt paragraph 6 of the Bushie Inquest ruling where it is stated:

“The following principles from Nahdee and Pierre are relevant to the assessment of representativeness of the jury roll:

i. The court considers the sheriff’s efforts with respect to First Nations reserves under Section 6(8).

ii. The sheriff’s duty goes beyond the rote task of making requests, and requires exercise of diligence, resourcefulness, ingenuity, and perhaps persuasion.

iii. The sheriff can not passively acquiesce to non-response or chronically ignored requests.

iv. The sheriff’s duty is to attempt, so far as he or she is able, to obtain a list of inhabitants of the reserve, and to send jury questionnaires to persons randomly selected from the list. The courts have established criteria for assessment of the sheriff’s performance of his or her statutory duty, not a prescriptive map of the process to be followed by the sheriff. A single letter from the sheriff, without follow-up, failed the test in Nahdee ; but this should not be taken to mean that dispatching a second letter would necessarily suffice. For instance, in Pierre , at paragraph 68 , the Court of Appeal found that the Kenora jury roll was “manifestly unrepresentative”, despite actions by the Kenora sheriff which exceeded those taken by the sheriff in Nahdee .

v. It is recognized in Nahdee that, where a sheriff has done his or her statutory duty so far as he or she is able, and a First Nation or its individual members choose not to participate, “the responsibility then rests not with the sheriff.”

[ 13 ] It is clear from the submissions of counsel, and from previous decisions, that the crux of this issue is what must the sheriff do to meet the test of due diligence in obtaining names when faced with the refusal of First Nations band councils to provide same. I am of the view that I need not repeat the history which is detailed in Bushie , and referenced in Pierre , which discusses how this issue arose post-2000. Simply put, in prior years, band lists were provided by INAC; however, in 2000 INAC stopped sending such lists. Although there is no specific evidence before me as to why this decision was made, from documentation filed, the issue appears to have been made as a result of Privacy Act considerations.

[ 14 ] The documentation filed, and the viva voce evidence provided at the hearing, satisfies me that, following the Court of Appeal ruling in Bushie , the Ministry of the Attorney General began increased efforts to obtain names. Reference was made in Pierre to the process used in Kenora, where the jury panel was found to be manifestly unrepresentative. In that case, a letter had been faxed requesting up-to-date lists. Only four of forty-two communities responded. Court officials visited fourteen remote communities and obtained eight more band electoral lists. The rate of return of jury questionnaires was significantly lower than the return from persons living in municipalities. Of a population of over 12,000 persons living on reserves, only 44 were listed on the 2007 jury roll.

[ 15 ] The evidence of Sheila Bristo, Acting Director, Corporate Planning Branch, is that it is the responsibility of each local court site to document their selection process and to provide this information to the Provincial Jury Centre. Post 2000, the percentage of jury questionnaires returned was known by the Provincial Jury Centre, but that information was not necessarily transmitted to local sites. Any information with respect to the percentage of returns was sent to the Corporate Planning Branch of the Ministry of the Attorney General.

[ 16 ] Ms. Bristo testified that following the Bushie Inquest and the decision in Pierre , various steps were taken by the Corporate Planning Branch in an attempt to increase the representation from natives residing on reserves. New draft letters to chiefs were prepared setting out information with respect to a 1-800 number for questions, information about payment for expenses, and more complete information to accompany the questionnaires. Corporate manuals were updated, and additional staff training was provided. Scripts were developed and provided to local sites. The scripts provided wording that could be helpful in persuading the band chiefs to provide the band electoral lists. Clarification was obtained with respect to the Privacy Act and it was determined that nothing in the Privacy Act precludes the band councils from providing the lists, however, the Act does preclude Government Departments from doing so. Envelopes with return postage were included when questionnaires were sent out. Direction was given to address letters requesting band lists to the chief. The chief is named personally, as opposed to using the generic salutation that was used in previous years. All request letters were to be signed by the Manager of Court Operations, and not by a support clerk. Staff training was conducted. Brainstorming sessions were held to elicit ideas and suggestions from Supervisors and Managers of Court Operations to discuss potential approaches in attempting to obtain a list of individuals living on a particular reserve who were 18 years of age or older.

[ 17 ] Ms. Bristo also testified that telephone calls, discussions and letters were sent/held with Political Territorial Organizations and the Independent First Nations Co-ordinator, including Grand Council Treaty #3, the Anishinabek First Nation and the Association of Iroquois and Allied Indians.

[ 18 ] Don Blaquiere, Manager of Court Operations in the District of Thunder Bay, testified that he was aware in 2011 that the response rate for natives on reserves had been low, and as far as he was aware, until the Bushie inquest, nothing had been done to address that issue. Further, he testified that while there had been discussions about that issue, he had not seen any formal document as to the correlation between a two percent return from on-reserve natives, and the native population in Thunder Bay. He further testified that, prior to 2009, he had no memory of any discussion amongst management about the issue of the bands declining to submit lists. The issue of a low number of natives on the panels was not raised with him.

[ 19 ] In his evidence before me in this motion, Mr. Blaquiere testified that subsequent to testifying before Justice Pierce, the procedure for attempting to obtain band lists for the jury panels in Thunder Bay has been changed as a result of various meetings, conferences, and directives from the Corporate Planning Branch. Arrangements have been made, and agreements made, whereby letters sent to individual members of a First Nation are/can be sent to the band office. By doing so, delivery is then effected on the individuals. Internet searches were done to determine names in particular bands. A second follow-up letter was sent and directed to the chief.

[ 20 ] Janette Sprovieri, Supervisor of Court of Operations, gave evidence. Her evidence is that the letters were signed by either she, or Mr. Blaquiere, in recognition of the status of the chief. In addition, letters to the chiefs included an offer to visit the First Nation and to meet with the chief, and/or council to discuss requirements of the Juries Act , and to discuss how they could best obtain a current band electoral list. Ms. Sprovieri testified that these letters, containing an offer to visit the band, were sent to all fifteen chiefs. Assistance of Native Court Worker Darrel Mandamin was sought. Two responded and visits were made to those bands/reserves. She did agree that these two bands/reserves were the closest to Thunder Bay. She disagreed with an inference made by Mr. Hinkson, that geography and distance were the reasons why other visits to more distant bands were not held. She clearly testified that offers to visit were made to all, and she or Mr. Blaquiere would have attended wherever they were invited. No invitation was extended by the other thirteen bands. Meetings were held with local native elders to seek assistance regarding how to make inroads into the communities and obtain names.

[ 21 ] Mr. Blaquiere also testified that Court Services personnel from Kenora attended in Thunder Bay to discuss and assist in brainstorming ways of obtaining updated band lists.

[ 22 ] Some bands responded to the request for band lists, and, Lac de Milles Lacs responded that they had no members living-on-reserve. Based on the numbers known, the formula for the number of questionnaires to be sent out was applied and the resulting number was increased by thirty percent.

[ 23 ] The final result of the returns for the preparation of the 2012 jury array were that 249 questionnaires were sent out; 24 were returned, and 14 names were eligible.

Position of Applicant

[ 24 ] Mr. Hinkson begins with the proposition that a jury panel must be representative. He relies on the Court of Appeal decision in Pierre , which states that the jury roll must comply with the Juries Act , in other words, the jury must be selected from a jury roll that is representative.

[ 25 ] He relies on the decision of Pierce J. in the earlier challenge to the jury panel in this case, as well as the decision in Bushie, to argue that nothing has changed since that decision. He acknowledges that changes were made in terms of directions, manuals, and staff training from the Corporate Planning Branch, but argues that these changes were generic to all sites and not specifically addressed to the issues in Thunder Bay.

[ 26 ] He submits that the attempts to obtain current/updated lists are still not sufficient. He submits there should have been more pro-active efforts to attend at more than two reserves. He further argues that the Sheriff should have asked for the assistance of others, including natives, to gain access to the band lists.

[ 27 ] He submits the only difference from the efforts made from 2011 to 2012 are that the sheriff is now sending two letters instead of one, and that it is now the managers who make the phone calls to the band chiefs. He suggests the local sites sought no assistance from the Corporate Planning Branch or the Provincial Jury Centre, and made no contact with the court office in Kenora to try and find ways to increase the response rate. He further submits that there was no “summit” of the various levels to specifically address the Thunder Bay issue.

[ 28 ] In addition, he argues that efforts could have been made prior to the initial contact letters in August.

[ 29 ] He posits that the Corporate Branch was not keeping Thunder Bay sufficiently aware of the problem with the number of returned questionnaires, and therefore, they were unaware of the percentage returns and could not address the problem adequately. Further, the local Manager should have been aware of the problem, it having been recognized in Bushie.

[ 30 ] He appears to focus his argument on the lack of assistance between the Corporate Branch and the local office, both information flowing from the Corporate Branch and the failure of Thunder Bay to ask for assistance from the Corporate Branch.

Position of the Respondent Crown

[ 31 ] The Crown argues that the evidence before Justice Pierce was not a full hearing of the available evidence on this issue, and therefore, I must not simply rely on the March 2011 decision. He further notes this challenge is to the 2012 jury roll, and the issue before Justice Pierce was not s. 629 .

[ 32 ] He replies to Mr. Hinkson’s argument on any changes since 2011 by noting the evidence that details changes in the correspondence; updated manuals and training; offers to attend at all First Nations reserves to discuss the issue of band lists; brainstorming sessions were held to find alternative ways of approaching the band councils, or obtaining the names; telephone calls were made by court managers in an attempt to deal directly with, and personalize contacts with the chiefs. He also points out that while the evidence does indicate that Thunder Bay staff did not go to Kenora seeking assistance and ideas, staff from Kenora came to Thunder Bay.

[ 33 ] He relies on the Supreme Court of Canada decision in R. v. Biddle , 1995 134 (SCC) , [1995] 1 S.C.R. 761, at paras. 57-58 , where McLachlin C.J. states:

“ To say that a jury must be representative is to set a standard impossible of achievement.”

And in R. v. Sherratt , 1991 86 (SCC) , [1991] 1 S.C.R. 509 at paras. 26-38 , where Justice L’Heureux-Dube states the modern jury “… was envisioned as a representative cross-section of society, honestly and finely chosen.”

[ 34 ] Mr. Kozak frames the question for me in this motion as “whether the provisions of the Juries Act were complied with in substance, in relation to the creation of the 2012 jury roll for this district.” It is not the actual composition of the array or any panel, but whether the steps designed to promote representativeness were reasonably taken.

[ 35 ] He cites the decisions in R v. Ransley , [1993] O.J. No. 2828 (Gen. Div.) , R. v. Nahdee (No. 1) , 1993 17034 (ON SC) , [1993] O.J. No. 2425 (Gen. Div.), R. v. Nahdee (No.2) , [1994] C.N.L.R. 158, and Pierre v. McRae , 2011 ONCA 187 , as supporting the proposition that each case is fact-specific. Different circumstances may require different approaches.

[ 36 ] Mr. Kozak relies on the two-part test in R. v. Butler , (1984) 1984 500 (BC SC) , 63 C.C.C. (3d) 243 (B.C.C.A), at 259:

“(1) Conduct that amounts to the deliberate exclusion of any particular group, by the sheriff, is contrary to the Juries Act and leads in an unrepresentative jury roll.

(2) Conduct that falls short of deliberate exclusion must be assessed on a standard of reasonable diligence. In this regard, so long as the sheriff has made reasonable efforts to include First Nations reserve residents in the jury roll process, in a manner that reflects the wording and intention of section 6(8) of the Juries Act , the sheriff will have fulfilled his/her duty. In such a case, the resulting roll (regardless of its actual composition) will be representative in law.

[ 37 ] He submits that, in assessing whether reasonable efforts have been made under the second prong of this test, consideration must be given to all relevant circumstances which may include some of the following: steps taken to obtain and update band lists; follow-up practices with bands where no responses are received to communications; previous responses from bands re band lists; attempts to encourage reserve residents to participate in the jury process; refusals made by bands on policy, or other grounds, to provide the lists; and, any other explanation for low return rates or lack of participation by reserve residents in the process.”

[ 38 ] Mr. Kozak frames his argument in three parts: Corporate direction, execution and cultural sensitivity.

[ 39 ] With respect to Corporate direction, he submits that the Corporate Planning Branch, since the preparation of the flawed 2011 list, has prepared and distributed new manuals, conducted brainstorming sessions, held meetings and contacted Provincial Native Organizations. An exchange of information now takes place between Corporate and Thunder Bay as to the low returns of the questionnaires, information that was previously not given.

[ 40 ] With respect to execution, Mr. Kozak submits that Thunder Bay Court Services followed the updated manuals as prepared. Training sessions were held. Template letters were utilized. Requests were followed up by second calls, faxes and offers to attend the communities.

[ 41 ] Mr. Kozak frames the third part of his argument by submitting that I should look at the entire issue “through the lens of cultural sensitivity and reality”. He points to the evidence of Ms. Sprovieri, whose experience in dealing with native issues for 20 years suggested that she and her staff should address letters to the chiefs by name, and not generically; that calls to chiefs be made by managers; and that court staff would attend at First Nation territories if requseted to do so. Further, he argues it was reasonable to assume that when band councils agreed to distribute letters to individuals through the band office, it could be relied on.

[ 42 ] Mr. Kozak points to the fact that Ms. Sprovieri’s evidence is that many of the communities consider themselves to be sovereign and it was in that context that, despite their commonality of culture, each community responded in a different fashion. He points to Ms. Sprovieri’s evidence that a conscious effort was made in trying to build relationships. A decision was made to respect the Chief and Councils’ decision not to provide the list. In cases where bands provided lists only of names of persons willing to sit on a jury, that was respected. The issue of the Privacy Act was followed up so that those bands who raised that as an issue were provided information indicating that the band itself releasing band electoral lists was not a breach of the Privacy Act .

[ 43 ] Mr. Kozak, in referring to the need to view this issue through the lens of cultural sensitivity, notes that the Criminal Code in s. 718.2 (e) specifically mandates that special consideration be given to aboriginal peoples. He notes that special consideration is mandated further in the area of criminal law in the decision of R. v. Gladue .

[ 44 ] Having spent some seventeen years as a lawyer travelling regularly to remote reserves inhabited by First Nations people, and some twenty years as a judge in the Northwest Region, I accept Mr. Kozak’s submission that this issue must be looked at through the lens of “cultural sensitivity.”

[ 45 ] Mr. Hinkson responds to this specific point by pointing to the existence of “ Gladue courts” in some areas of the Province as an example of the Government recognizing a specific problem and implementing a process to effectively deal with it. This, he says, should have been done here.

Discussion

[ 46 ] This motion is brought under s. 629 of the Criminal Code , on the grounds of partiality. The Applicant relies on the decision respecting the 2011 jury panel rendered by Pierce J. In that decision, Justice Pierce specifically acknowledged that the voir dire challenge in that case was distinct from the challenge to the array in the Criminal Code . That section reads:

“Challenging the jury panel

629. (1) The accused or the prosecutor may challenge the jury panel only on the ground of partiality, fraud or wilful misconduct on the part of the sheriff or other officer by whom the panel was returned.

In writing

(2) A challenge under subsection (1) shall be in writing and shall state that the person who returned the panel was partial or fraudulent or that he wilfully misconducted himself, as the case may be.”

[ 47 ] I am, therefore, drawn to the decision of Justice Arrell in HMTQ v. Monture , 2011 ONSC 4254 . Similar facts in that case demonstrated attempts to obtain current band lists to ensure there was adequate representation of native peoples living on-reserve. The circumstances are very similar. I find no need to repeat much of his analysis, other than to recognize that the onus is on the Applicant, on a balance of probabilities, to prove that the sheriff has not complied with the provisions of s. 629 . If there is non-compliance, that renders the jury panel unrepresentative, and amounts to proof of partiality.

[ 48 ] As in Monture , I find that the procedures here are not perfect, however, the evidence suggests, done in good faith. Efforts, which may appear to be minimal to some, but which I accept are significant, have been made to attempt direct contact with the band chiefs. Offers were made to all fifteen communities to attend meetings. Clarification was obtained for Privacy Act concerns. Telephone books and 411 searches were made – as was the case in previous years.

[ 49 ] Evidence was presented by Ministry personnel as to how the number of questionnaires to be sent out was determined. As Ms. Sprovieri said, the telephone book is not of assistance and internet searches proved to be of no assistance.

[ 50 ] The Court of Appeal in Pierre recognized that there is no specific procedure set out that must be followed, but that each case is to be dealt with in its own context. In my questioning of counsel for the Applicant I queried what other steps should have been taken to attempt to obtain names. Mr. Hinkson suggested that band members could be hired to deliver letters. I find that, in light of the band council’s refusal to provide lists, it would be unreasonable to consider asking a member to so assist. Furthermore, such a step is directed to the issue of delivery of the questionnaire; it is not focused on initially obtaining the names for the purpose of determining the appropriate representation. Further, I do not accept his argument that any changes made were not specific to Thunder Bay. General changes, applicable to all sites, is sufficient to include addressing the issues in Thunder Bay.

[ 51 ] In sum, I reference the words of Donnelly J. in R. v. Nahdee (No. 1) :

“If the sheriff … having done his statutory duty so far as he is able and the band still chooses not to participate, either by providing lists or by individuals failing to appear as required for jury service, the responsibility then rests not with the sheriff.”

[ 52 ] As I noted at the beginning of these reasons, and as noted in the Bushie inquest, the sheriff’s duty to ensure representativeness requires due diligence, resourcefulness, ingenuity and perhaps persuasion. There can be no passive acquiescence to non-response, or chronically ignored requests. The sheriff’s duty is to attempt, so far as he is able, to obtain a list of inhabitants of the reserve, and to send jury questionnaires to persons randomly selected from the list.

[ 53 ] As circumstances change, factors to be considered may change. Continuing efforts must be made to ensure the sheriff is meeting not only the legislated mandate and purpose of the Juries Act ; he or she must also ensure that the spirit of the Act, which is that an accused be tried by a jury of one’s peers, is protected.

[ 54 ] The Application was brought pursuant to s. 629 of the Criminal Code on the ground that this panel, and by reference the 2012 Thunder Bay jury roll, is partial because it is not representative. 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 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.

[ 55 ] The basis for partiality is not that there is not a sufficient number of a particular group of people on a jury panel, but that the list from which a particular jury is selected has been prepared in a non-partial manner.

[ 56 ] The Applicant has not met the onus in these circumstances to establish partiality and this motion is dismissed.

_______ ”original signed by”_ ___

Mr. Justice T. A. Platana

Released: February 10, 2012

COURT FILE NO.: CR-09-0025
DATE: 2012-02-10

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – ANDRE WAREHAM, Applicant REASONS ON JURY CHALLENGE Platana J.

Released: February 10, 2012

/mls