Her Majesty the Queen v. Kennedy
[Indexed as: R. v. Kennedy]
Ontario Reports
Ontario Superior Court of Justice,
Goodman J.
October 15, 2013
118 O.R. (3d) 60 | 2013 ONSC 6419
Case Summary
Criminal law — Trial — Jury — Representative jury panel — Jury panel in London and Middlesex County not containing anyone of aboriginal heritage — Aboriginal accused challenging array on grounds that sheriff was guilty of partiality in returning jury panel — Application dismissed — Sheriff and senior officials contacting bands and band chiefs directly in effort to obtain updated band member lists but receiving no response — Officials also unsuccessful in efforts to meet with band chiefs to discuss matter — Officials' efforts conducted in good faith and without bias and being reasonable.
The accused, who was aboriginal, was charged with sexual interference and sexual assault and was to be tried by a jury in London, Ontario. The jury panel did not contain anyone of aboriginal heritage. The accused challenged the array on the grounds that the sheriff was guilty of partiality, fraud or wilful misconduct in returning the jury panel.
Held, the application should be dismissed.
As a result of a decision by Indian and Northern Affairs Canada to no longer provide names of band members to the Ministry of the Attorney General after 2000, names of potential qualified members of various bands were not made readily available to the ministry. Senior officials contacted bands and band chiefs directly in an effort to obtain updated band member lists. Envelopes with return postage were included when questionnaires were sent out. An offer of personal delivery was made. No responses were received. Numerous unsuccessful efforts were made to contact chiefs to engage in discussion with a view to enhancing aboriginal participation on jury panels. Local staff training was conducted and brainstorming sessions were held to elicit ideas on how to obtain on-reserve band lists. Band members and chiefs chose not to participate, respond or co-operate. The sheriff's and ministry's efforts were conducted in good faith and without bias, and there was no evidence as to what other efforts might be effective. The efforts to create a jury roll that was representative of the community were reasonable. [page61 ]
R. v. Kokopenace (2013), 115 O.R. (3d) 481, [2013] O.J. No. 2752, 2013 ONCA 389, 285 C.R.R. (2d) 77, 4 C.R. (7th) 67, 306 O.A.C. 47, 299 C.C.C. (3d) 48, 108 W.C.B. (2d) 207 [Leave to appeal to S.C.C. abandoned [2013] S.C.C.A. No. 308], distd
R. v. Wareham, [2012] O.J. No. 767, 2012 ONSC 908, 252 C.R.R. (2d) 193 (S.C.J.), consd
Other cases referred to
R. v. Church of Scientology (1997), 1997 CanLII 16226 (ON CA), 33 O.R. (3d) 65, [1997] O.J. No. 1548, 99 O.A.C. 321, 116 C.C.C. (3d) 1, 7 C.R. (5th) 267, 34 W.C.B. (2d) 453 (C.A.) [Leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 683]; R. v. Nahdee (No. 1), 1993 CanLII 17034 (ON SC), [1993] O.J. No. 2425, [1994] 2 C.N.L.R. 158, 26 C.R. (4th) 109, 21 W.C.B. (2d) 227 (Gen. Div.)
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 11(d), (f), 15
Criminal Code, R.S.C. 1985, c. C-46 [as am.], s. 629, (1)
Juries Act, R.S.O. 1990, c. J.3, s. 6(8)
Privacy Act, R.S.C. 1985, c. P-21 [as am.]
Authorities referred to
Iacobucci, Frank, First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by the Honourable Frank Iacobucci (Toronto: Ontario Ministry of the Attorney General, 2013)
Statistics Canada. 2013. Middlesex, CTY, Ontario (Code 3539) (table). National Household Survey (NHS) Profile. 2011 National Household Survey. Statistics Canada Catalogue no. 99-004-XWE. Ottawa. Released September 11, 2013.
APPLICATION challenging a jury array.
L. Tuttle, for Crown.
P. Munn, for applicant.
GOODMAN J.: —
Background
[1] The applicant is charged with sexual interference and sexual assault contrary to their respective provisions in the Criminal Code, R.S.C. 1985, c. C-46.
[2] This matter was set to proceed to trial with a jury on October 29, 2012. At the commencement of the trial, the applicant raised a constitutional question with respect to s. 6(8) of the Juries Act, R.S.O. 1990, c. J.3, and a challenge to the array pursuant to s. 629(1) of the Criminal Code. The applicant is a member of the First Nations constituency. Ms. Munn, counsel for the applicant, submitted that upon a review of jury panel no. 38, the list did not appear to be populated by anyone of aboriginal heritage. The Crown did not take issue with Ms. Munn's position. As [page62 ]a result, the trial was adjourned to allow the applicant to file appropriate materials and to permit the Crown to respond to the challenge and constitutional question. The panel was excused and the matter was adjourned to January 10, 2013 for the hearing.
[3] On January 10, 2013, counsel for the applicant presented a challenge to the array in Form 40. The challenge was premised on the grounds that the sheriff or deputy sheriff who returned the panel was guilty of partiality, fraud or wilful misconduct on returning it. The applicant chose not to proceed with the constitutional challenge.
[4] Ms. Tuttle, on behalf of the Crown, called two witnesses. During the course of the hearing, a number of letters and materials were filed.
[5] At the end of the hearing, the applicant abandoned his application having conceded that he could not meet the threshold required to establish a successful challenge to the array.[^1] I advised the parties that notwithstanding the applicant's stated position, as this issue was of significant import to the administration of justice in this judicial district, the court reserved the right to render a written decision on the evidence and the challenge advanced during the hearing. These are my reasons.
Issue
[6] The issue in this application is the manner in which information is gathered and related processes 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. This question requires a determination as to whether the sheriff was guilty of partiality, fraud or wilful misconduct in obtaining a representative panel for the purpose from which a jury may be selected. In other words, has s. 6(8) of the Juries Act been complied with by the sheriff as it pertains to the 2012 jury panel in this case, and generally in this jurisdiction?
The Evidence
[7] Ms. Sheila Bristo, acting director, Corporate Planning Branch, Court Services Division of the Ministry of Attorney General testified that at the relevant time in 2011, her responsibilities included the preparation of the jury roles for the 2012 jury panels, which is the subject raised in this application. [page63 ]Ms. Bristo testified that she was also responsible for the provincial jury centre, which at the time had been located in London but had subsequently been relocated to Toronto.
[8] Ms. Bristo explained the general process in obtaining the names for panels, including the use of municipal property assessment data ("MPAC") that was used to generate a randomized list of names for potential members of the panels. Those of aboriginal background who live off the reserve would be captured by the MPAC data; however, those individuals living on a reserve would not be so depicted.
[9] Ms. Bristo testified that by December 31 of each year, a request would be forwarded to the various regions as to how many jury panels would be required. A random sampling was taken from the MPAC tabulations that results in each of the regions or court locations generating a random list of names, and those individuals would be sent out a jury questionnaire.[^2]
[10] Ms. Bristo testified that as a result of a decision by Indian and Northern Affairs Canada ("INAC") -- as it was then called[^3] ? to no longer provide names of band members to the ministry after the year 2000, names of potential qualified members of various bands were not made readily available to the provincial ministry. As a result, and due to the fact that MPAC sampling did not capture those band members who resided on reserves, Ms. Bristo detailed each manager of each Superior Court location to contact the local band chiefs in an attempt to update and populate a list of potential jurors from their constituent base.[^4] She directed that there be an open dialogue with the chiefs in developing lists of potential jurors. To facilitate these discussions, her office provided a template of suggested wording for letters to be sent to the various bands in Ontario. The effort was geared to solicit band electoral list of those individuals 18 years of age and older who reside on reserves.
[11] Ms. Bristo testified that, in her overall experience throughout the province, a few bands had co-operated and provided names of their on-reserve members while the majority did not. Thus, the ministry was compelled to still rely on outdated lists to generate names from bands for jury panels. [page64 ]
[12] In an effort to ameliorate the situation, she had consulted her counterpart through the ministry to encourage INAC to provide an updated list of band members as well as to clarify the federal department's position about not providing updated band lists. In early 2012, the Assistant Deputy Attorney General wrote her counterpart in INAC to inquire if there was an opportunity to obtain updated lists from the federal government.[^5] The department responded and advised that, due to privacy reasons, INAC worked directly with the bands and it was not within its purview to generate lists of band members for provincial ministries. Ms. Bristo testified that another series of letters were written to the chiefs of various local bands as well as to Grand Chiefs Denise Stonefish and Randall Phillips of the Association of Iroquois and Allied Indians, Ms. Diane Maracle-Nadjiwon of the Independent First Nations and Mr. Patrick Madahbee, Grand Council Chief, Union of Ontario Indians.
[13] Ms. Bristo testified that in Middlesex County there are three First Nations bands: the Oneida of the Thames, the Muncee-Delaware and the Chippewas of the Thames. She testified that letters were written to the specific band chiefs. Despite these letters requesting engagement on this topic, the ministry did not hear back from any of the chiefs.
[14] Specifically, in London and Middlesex County, Ms. Bristo contacted the West Region director of courts services to have him engage in discussions with the various local bands. She testified that in London there was a high return rate of letters that were either not delivered or accepted by the recipients. These returned letters were carefully tracked. Ms. Bristo also requested Ms. Martellotti, the sheriff for London and Middlesex County, to contact the various chiefs directly. The intention was in making such contact, having a senior manager personally telephone or drive out to the reserves in Middlesex County and convey the importance and the desire to have these band lists provided and subsequent questionnaires filled out and returned. Notwithstanding that these letters were sent to specifically named individuals, they were all returned to the provincial jury centre marked undeliverable.
[15] Ms. Bristo testified that First Nations' representation and participation in juries is a priority within the ministry and that this position has been transmitted to the directors of various court regions. This issue is continually being reassessed and various reports are awaited as to how to better address the [page65 ]issues. The Attorney General had appointed her to do a review of potential changes from an analysis of other provincial systems, including awaiting the imminent report from the Honourable Mr. Iacobucci in order to facilitate greater participation of First Nations' individuals on juries.
[16] Ms. Fran Martellotti testified that, since 2006, she was and remains the manager of the London Courthouse and that she is responsible for the overall court operations. She has been designated as "the sheriff" for London and Middlesex County. In 2011, she directly participated in the development of the 2012 jury roll and ensured that all directives where followed locally. She described her efforts to have First Nations members located on reserves participate in the jury panel process and her extensive efforts to contact the chiefs of the three reserves in Middlesex County.
[17] In preparing the 2012 jury panels, Ms. Martellotti testified that on August 8, 2011, she sent out letters to the three First Nations' chiefs asking for an updated band list.[^6] There was no response and she again sent out letters on September 1, 2011 to the various chiefs of the three reserves. There was no response to this second series of letters. Ms. Martellotti testified that on September 28, she was advised to follow up with her efforts following the non-responses to her two previous letters. She then faxed various letters to the chiefs of the local bands, following up with a personal phone call to the chiefs requesting a meeting to speak with them. Ms. Martellotti testified that while she made several phone calls to the various offices of the band members requesting to speak to the chiefs, she was unable to reach any chief personally, and was informed that she would be unable to speak to them. Chief Waddilove from Munsee-Delaware First Nation left a message advising that he had made a request to his band council for a band eligibility list, but that the band's position was that no list would be forthcoming.
[18] Ms. Martellotti testified that no updated band member lists were ever received despite messages, letters and faxes being sent to the various band members requesting some engagement in the process. In fact, on October 4, 2011, Ms. Martellotti added that she received a letter from Candace Deleary, council secretary for Chippewas of the Thames First Nations, advising her that the band declined her request to share an updated on-reserve band list.[^7] [page66 ]
[19] With respect to the Oneida of the Thames First Nations, Ms. Martellotti sent a letter to Chief Joel Abram and advised the band of INAC's policy of declining to provide band lists, and again asked for an updated list. There was no response to her letter.
[20] As a result of the lack of information and co-operation, Ms. Martellotti testified that a brainstorming session was held with the provincial jury centre. She added that they were forced to use the year-2000 outdated band lists, and that in using the randomizer system, jury questionnaires were sent out to members of the bands. She testified that she arranged to send out the jury questionnaires to the three First Nations reserves in Middlesex County by courier or delivery with a letter requesting a response to the questionnaire and a covering letter to each chief of the three bands.[^8] In sending out these questionnaires, she relied on the outdated 2000 band lists from INAC, as that was the most recent list available to the ministry.
[21] On November 23, 2011, after sending out these letters, Ms. Martellotti called the band offices on two subsequent occasions requesting a dialogue with the chiefs. Concurrently, 16,231 questionnaires were sent out in the judicial district of London, including 231 jury notices sent out to the various local reserves in Middlesex County for inclusion on the 2012 jury lists; 229 of those notices were returned undeliverable and two were returned indicating that the individual was deceased. In cross-examination, Ms. Martellotti testified that she offered to the chiefs to personally hand-deliver the jury questionnaires to those individuals on the reserve due to the huge number not being delivered or picked up at the recipient post office site. There was never any response from any of the chiefs of the local bands.
Legal Authorities: The Court of Appeal's ruling in R. v Kokopenace
[22] After the date of this hearing, on June 14, 2013, the Court of Appeal released its decision in R v. Kokopenace (2013), 115 O.R. (3d) 481, [2013] O.J. No. 2752, 2013 ONCA 389.[^9] I appreciate that as the case was not released prior to the hearing date, the parties did not have an opportunity to argue this case before me.[^10] [page67 ]
[23] This 2008 case concerned an appeal by Kokopenace from a conviction in the Superior Court of Kenora for manslaughter. As indicated at paras. 56-57, the jury composition issue in Kokopenace was heard on fresh evidence submitted to the Court of Appeal.
[24] Prior to sentencing, Kokopenace claimed the jury that found him guilty was derived from a jury roll that, because of the process used to prepare it, inadequately ensured representative inclusion of aboriginal on-reserve residents. He argued that this violated his rights under ss. 11(d), 11(f) and 15 of the Canadian Charter of Rights and Freedoms and under the Juries Act.
[25] Kokopenace challenged the first stage of the process, namely, the preparation of the 2008 jury roll for the District of Kenora. The majority of the lists used to source the aboriginal on-reserve residents were dated, did not take account of those who turned 18 or died after 2000, or those who moved on or off reserve after 2000, and omitted several small reserves altogether. This was a significant contributing cause of the underrepresentation of aboriginal on-reserve residents on the jury roll for the Kenora District. At issue on appeal was whether the province had done enough to include aboriginal on-reserve residents in preparing the jury roll and in order to meet the representativeness requirement created by s. 11(d) and (f) of the Charter.
[26] The majority of the Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial. The court held that the state failed to make reasonable efforts to facilitate delivery of questionnaires to aboriginal on-reserve residents and failed to encourage responses to them, which therefore violated Kokopenace's s. 11(d) and (f) Charter rights in the preparation of the 2008 jury roll in the District of Kenora.
[27] It was clear that the court grappled with the manner of the state's efforts in dealing with aboriginal representation. The two issues were first obtaining accurate up-to-date lists of aboriginal on-reserve residents. Second was the deteriorating rate of return of questionnaires from the on-reserve residents. The jury roll at issue was compiled from records that were outdated or inaccurate in a way that gave rise to distortions in representation. The court held that the state knew or ought to have known about these deficiencies in the source lists, and that the evidence showed at least seven years where very little was done to ameliorate the situation. The state's apparent willingness to rely on a sole employee and a data source that demonstrated [page68 ]significant inaccuracies led to the conclusion that it did not make reasonable efforts to ensure a fair process, the end result of which would be to allow aboriginal on-reserve residents a fair opportunity to have their distinctive perspectives included in the jury roll.
[28] Kokopenace no doubt stands as strong binding precedent, but at the same time, I conclude that it is a fact-specific ruling. I find that it can be distinguished in several ways from the case before me.
[29] First, the scope of the decision reflects the systemic procedural and substantive problems in the north with the underrepresentation of aboriginal jurors. "Kenora" is referenced a total of 111 times in both the majority and dissenting opinions combined, which, when combined, total 336 paragraphs. This frequency alone demonstrates to some degree the weight that the circumstances in Kenora -- and Kenora only -- had on the Court of Appeal's ruling in Kokopenace.
[30] As indicated at paras. 11 and 119, in geographic terms, the District of Kenora is Ontario's largest, making up about one-third of Ontario's land mass. The judicial centre is the city of Kenora, where the Superior Court of Justice sits, and where Mr. Kokopenace was tried. There are a large number of reserves in the Kenora District, many of them remote from the city of Kenora and many accessible only by air. According to the 2006 census, the total population of the Kenora District was approximately 65,000. The on-reserve population makes up roughly one-third of that total. On its face, the situation is very different in the Kenora District as compared to London and Middlesex County. The southwestern region in which London sits is much smaller geographically; there are much fewer reserves in this region and the reserves are not remote. While the statistics may not be entirely up to date, I take judicial notice that the percentage of aboriginal band members residing on reserves in Middlesex County is markedly and exponentially less in population and per-capita rate as compared to those who reside in the Kenora District or for that matter in the northwest region.[^11] [page69 ]
[31] The majority of the Court of Appeal in Kokopenace writes, at para. 31:
The right to a representative jury roll is thus not an absolute right, but an inherently qualified one. The right does, however, require the state to use a jury roll process that provides a platform for the selection of a petit jury that serves the objectives of impartiality and enhancing public confidence in the criminal justice system. Essential to achieving these objectives is that the distinctive perspectives that make up the community are provided a fair opportunity to be included in the jury roll, and to be brought to the jury function. In this way the jury can serve as the conscience of the community as the representativeness guarantee requires.
[32] On the face of this comment, the court suggests that there are many different ways in which the right to a representative jury roll can be met; the "community" from which the jury is pulled is the ultimate controlling factor. Understandably, the Kenora community begged a more representative inclusion of on-reserve persons in the jury roll in Kokopenace; trials in London or in a similar region, however, take place in a community with an entirely different make-up and dynamic as compared to Kenora. Indeed, many of the considerations taken into account in Kokopenace to "represent" the community would likely have little or less application when fielding a jury roll in this region.[^12]
[33] At para. 152, the court in Kokopenace is explicit in that it is "important to distinguish between efforts undertaken at the Kenora District level and those efforts undertaken provincially. . . . [T]his is critical to the context in which this analysis must be undertaken." This statement, again, serves as another important marker as to the confines of the Kokopenace reasoning to the Kenora situation.
[34] Indeed, as quoted by the court in Kokopenace and as stated by Rosenberg J.A. in R. v. Church of Scientology (1997), 1997 CanLII 16226 (ON CA), 33 O.R. (3d) 65, [1997] O.J. No. 1548 (C.A.), at paras. 146-47, leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 683:
The right to a representative jury roll is not absolute in the sense that the accused is entitled to a roll representative of all of the many groups that make up Canadian society. This level of representativeness would be impossible to obtain. There are a number of practical barriers inherent in the selection process that make complete representativeness impossible. The [page70 ]roll is selected from a discrete geographical district which itself may or may not be representative of the broader Canadian society.
Further, the critical characteristic of impartiality in the petit jury is ensured, in part, by the fact that the roll and the panel are produced through a random selection process. To require the sheriff to assemble a fully representative roll or panel would run counter to the random selection process. The sheriff would need to add potential jurors to the roll or panel based upon perceived characteristics required for representativeness. The selection process would become much more intrusive since the sheriff in order to carry out the task of selecting a representative roll would require information from potential jurors as to their race, religion, country of origin and other characteristics considered essential to achieve representativeness. The point of this is not to demonstrate that a jury panel or roll cannot or should not be representative, but that the right to a representative panel or roll is an inherently qualified one. There cannot be an absolute right to a representative panel or roll.
[35] As noted, at para. 58 [in Kokopenace], the now seminal report by retired Supreme Court Justice Frank Iacobucci titled First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by the Honourable Frank Iacobucci (Toronto: Ontario Ministry of the Attorney General, 2013) was not released until the evidence had already been completed in Kokopenace and while it was under reserve. The Court of Appeal did take the report under consideration as fresh evidence on consent of the parties.
[36] The Iacobucci report postulates inter alia: "at present, First Nations representation on jury rolls is ad hoc and contingent upon efforts made by the court staff to connect with First Nations". Just because there was a clear breakdown in this "connection" in Kokopenace, does not mean that it should be assumed that all relationships between local court staff and First Nations in Ontario are as equally plagued by disconnect and ineffectiveness.
[37] In the case before me, the sheriff, the most senior representative, participated and made direct contact with the bands in order to assess and compose on-reserve participation in the jury roll. In Kokopenace, as indicated at paras. 99-120, a junior employee with little to no training in these matters solely had the task of carrying out work related to s. 6(8) of the Juries Act. Some of her work has now been demonstrated as incompetent, for example: for one reserve she did not have any record from which to complete her work for the purpose of drawing a jury roll from on-reserve residents; several of her efforts, though perhaps well-intentioned, produced no results; from 2002-2005, little to no efforts were made by her to obtain updated lists of on-reserve residents in the Kenora District; well into 2005, she relied on outdated band lists from 2000, which were knowingly [page71 ]inaccurate; once she received updated lists for four reserves in 2006, she continued to use the outdated band lists for the 38 remaining identified bands, while continuing with zero information whatsoever for one band; it was not until 2007 that she clarified the boundaries of the Kenora District and, as a result, in 2007 she discovered that two bands had been totally excluded. In my view, these circumstances and failures heavily influenced the majority's disposition in Kokopenace.
[38] Justice Rouleau in dissent in Kokopenace states, at para. 282, that up to and beyond 2007 -- the period relevant to Kokopenace -- Ontario did not know nor did it appreciate the "full complexity of the problem". This is in stark difference to the circumstances under which the current case comes before me, where the state is now certainly better informed and reacted to as regards First Nations and jury representation.[^13]
[39] Here, many of these general issues have been identified, and there have been attempts by senior management to remedy the situation. Indeed, the same scope of concern cannot be said to have arisen in this case.
[40] While I am not intending to be dismissive of the valid concerns raised by the Court of Appeal, I find that the facts and circumstances of this case including the efforts by the ministry and the sheriff are distinguishable from the situation in Kokopenace. Finally, unlike Kokopenace, there is neither a Charter nor constitutional challenge with respect to the legislation before me.
Discussion
[41] This application is brought under s. 629 of the Criminal Code, on the grounds of partiality. 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, it renders the jury panel unrepresentative and amounts to proof of partiality.
[42] The case before me parallels to some degree the evidence and issues that were present before Platana J. in R. v. Wareham, [2012] O.J. No. 767, 2012 ONSC 908 (S.C.J.). While Wareham was premised on the particular circumstances arising in Thunder Bay, I find Platana J.'s analysis and reasoning in the case to be instructive and I tend to share his ultimate conclusions.
[43] It is clear from the jurisprudence that the nub of this issue is what the sheriff must do to meet the test under s. 629(1) [page72 ]of the Criminal Code and under the Juries Act in obtaining names when faced with the refusal of First Nations band councils to provide the updated lists.
[44] Suffice it to state in prior years, band lists were provided by INAC; however, in 2000 INAC stopped sending such lists primarily as a result of but not limited to Privacy Act, R.S.C. 1985, c. P-21 considerations.
[45] In this case, the documentation filed and the viva voce evidence provided satisfies me that, in the years post 2008, the Ministry of the Attorney General began demonstrably increased efforts to obtain names of eligible band members, albeit largely without success. I accept Ms. Bristo's evidence that measured and relevant steps were taken by the ministry in an attempt to increase the representation of First Nations persons residing on reserves on the jury panels. New draft letters to chiefs were prepared setting out information, with more complete information to accompany the letters and questionnaires. Corporate manuals were updated and additional staff training was provided. Scripts were developed and provided to local court sites. These scripts provided wording that could be helpful in persuading the band chiefs to provide their band electoral lists.
[46] On several fronts, some clarification was sought from the federal department with respect to its stance under the Privacy Act. I accept that there is nothing in the Privacy Act that prevents the band councils from providing the lists; however, the Privacy Act may preclude government departments from doing so and INAC relied on that premise.
[47] In this case, all of the letters sent to the local First Nations reserves were signed by Ms. Martellotti, the manager of court operations, and not by a support clerk. Envelopes with return postage were included when questionnaires were sent out. An offer of personal delivery was made. Covering letters with directions were provided and specific letters were addressed to various First Nations associations and bands. In some of the correspondence, the chief is named personally, as opposed to using the generic salutation that was used in previous years and in different locations. The evidence demonstrates that numerous, albeit unsuccessful attempts were made to contact the chiefs to engage the discussion with a view to enhancing aboriginal participation on the jury panels. Local staff training was conducted and brainstorming sessions were held to elicit ideas from supervisors and managers in discussing approaches to obtain on-reserve band lists.
[48] I accept the evidence of Ms. Martellotti, who testified that conventional means were not of assistance and that all reasonable [page73 ]steps were taken. For reasons still unknown to me, the band members and chiefs chose not to participate, respond or co-operate.
[49] I agree with Platana J.'s comment in Wareham, where he stated, at para. 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. . . . 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.
[50] At para. 51, Platana J. goes on to quote from Donnelly J. in R. v. Nahdee (No. 1), 1993 CanLII 17034 (ON SC), [1993] O.J. No. 2425, [1994] 2 C.N.L.R. 158 (Gen. Div.), at para. 20:
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.
Again, as Platana J. held in Wareham, at para 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.
[51] Clearly, the procedures in this case are not perfect, however, the evidence and materials filed suggests to me that the sheriff's and ministry's efforts were conducted in good faith, without bias and with due consideration to its importance to the administration of justice. The efforts presented before me indicate direct, repeated attempts to contact and dialogue with the various band chiefs leading up to the development of the 2012 jury panels.
[52] As mentioned, the Honourable Frank Iacobucci was appointed in August 2011 by the Attorney General of Ontario to independently examine, report and offer recommendations regarding the process for inclusion of First Nations persons living in reserve communities on the provincial jury roll from which potential jurors are selected for all jury trials and coroners' inquests. Subsequent to the hearing of this application, the final report was released in Thunder Bay, Ontario on February 26, 2013.
[53] In part, the report finds that the justice system and juries process are in a quandary when Ontario's First Nations persons are concerned. However, while the report should certainly be lauded as a landmark step towards improving the access and participation of First Nations persons in Ontario's [page74 ]justice system, it does not purport to encompass or speak for the whole of Ontario in one swoop; just as the geography and demographics change as one ventures throughout the province, so too does this particular issue of First Nations representation in the justice system. Mr. Iacobucci engaged First Nations communities throughout the province, but in my view, it is clear that that report is particularly geared towards the situation in Northern Ontario.
[54] Mr. Iacobucci even alludes to this point, at para. 14 of the report: "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". He further states, at para. 219: "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."
[55] I must take into account the necessity for cultural sensitivity. However, when band chiefs and councils directly or indirectly decline to provide band lists to the sheriff, for whatever valid reason, and the leaders and decision makers of these respective communities decline to meet or discuss these issues with representatives of the ministry or the sheriff, I have no evidence before me to determine what other efforts might be reasonably effective.
[56] No doubt, more co-operation and interaction in conjunction with the recommendations in Mr. Iacobucci's report will go a long way in generating the required ongoing dialogue with First Nations members as well as enhancing strategies to promote greater participation by aboriginal persons on jury panels, while respecting their very important cultural interests. Clearly, the continued underrepresentation of First Nations members on jury panels in all locations and, in particular, where their population warrants serious consideration, remains a valid concern and is not beneficial for the proper administration of justice.
Conclusion
[57] The basis for partiality or misconduct is not that there is not an insufficient 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, biased manner.
[58] It is my view that the sheriff's duty to ensure representativeness requires due diligence, resourcefulness, ingenuity and perhaps moral suasion. In this case, the attempts at including First Nations persons living on-reserve demonstrate reasonable [page75 ]efforts by the sheriff and the Ministry to create a jury roll that is representative of the community.
[59] Based on the evidence, I do not find that Ms. Martellotti, or anyone working on behalf of the provincial jury centre, or for that matter the Ministry of the Attorney General, returned the panel on October 29, 2012 and was culpable of partiality, fraud or wilful misconduct.
[60] While this decision is only reflective of this particular case, I am persuaded that the processes engaged in London and Middlesex County by the sheriff do not lend themselves for prospective successful challenges pursuant to s. 629(1) of the Code, barring complacency, a material change in the current procedures or in a particularly unique circumstance. Therefore, notwithstanding the applicant's position, the application is dismissed.
Application dismissed.
[^1]: The applicant's trial was rescheduled to commence on October 15, 2013. [^2]: I need not delve further into the general process in generating jury lists as there is no issue as it pertains to those individuals who did not live on First Nations reserves. [^3]: According to letters filed, it appeared that in late 2011, the department was restyled as Aboriginal Affairs and Northern Development Canada. [^4]: Ex. 5 and 6. [^5]: See Ex. 12 and 13. [^6]: Ex. 2, 20, 21 and 22. [^7]: Ex. 29. [^8]: Ex. 31. [^9]: Leave to appeal to the Supreme Court filed August 12, 2013: [2013] S.C.C.A. No. 308. [^10]: At the same time, it must be noted that no party made any submissions during the hearing as the applicant abandoned his application after the presentation of the evidence. [^11]: Statistics Canada. 2013. Middlesex, CTY, Ontario (Code 3539) (table). National Household Survey (NHS) Profile. 2011 National Household Survey. Statistics Canada Catalogue no. 99-004-XWE. Ottawa. Released September 11, 2013. This most recent survey indicates that the total population in Middlesex County is 432,375, with 9,860 claiming aboriginal identity or 14,090 claiming aboriginal ancestry. The percentage of the aboriginal population compared to the total population in Middlesex County is at about 3.25 per cent. [^12]: Justice Rouleau, at para. 292, highlights even more facts that draw a distinction between the facts in Kokopenace and the current case: "LaForme J.A. correctly notes that the on-reserve population of Kenora makes up an estimated 30.2% to 36.8% of the total population of that district . . . The on-reserve adult population actually makes up 21.5% to 31.8% of the total adult population of Kenora, which is a significantly lower proportion than that expressed by my colleague." [^13]: This factor is even pointed out at para. 284 in Kokopenace.