ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-0142
DATE: 2014-04-15
B E T W E E N:
Her Majesty The Queen,
Deborah Kinsella and Andrew Sadler, for the Crown
Respondent
- and -
Shaldon Wabason,
Delmar Doucette and Jessica Orkin, for the Applicant
Applicant
HEARD: March 31 and April 1, 2, 3 & 4, 2014, in Thunder Bay, Ontario
McCartney J.
Decision On Application Challenging 2014 Jury Roll
for the District of Thunder Bay
Introduction
[1] The Applicant, Shaldon Wabason, is charged with second degree murder and breaking and entering under the Criminal Code. His jury trial is due to commence April 22, 2014. The present Application alleges a breach of his constitutional rights to a representative jury as set out in sections 11(d) and 11(f) of the Charter of Rights and Freedoms as follows:
“11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.”
Background
[2] A: Compiling Jury Rolls
The District of Thunder Bay, containing about 11 % of Ontario’s land mass, and along with the District of Kenora and Fort Frances composing the Northwest Judicial Region is one of the largest in Ontario, with an approximate total population 146,000 persons.
Thunder Bay District has several First Nation Reserves from which jurors for the jury roll are selected.
Each year a jury roll is chosen for each Superior Court location in the province. Prospective jurors are selected at random using the municipal enumeration lists collected by the Municipal Property Assessment Corporation (MPAC). However, since inhabitants of reserves under the Indian Act are not captured by the MPAC enumeration, the Juries Act prescribes a separate process to ensure a proportionate inclusion of on-reserve residents in the jury roll. The process is set out in s. 6(8) of the Juries Act as follows:
“Section 6 (8) In the selection of persons for entry in the jury roll in a county or district in which an Indian Reserve is situate, the sheriff shall select names of eligible persons inhabiting the reserve in the same manner as if the reserve were a municipality, and, for the purpose, the sheriff may obtain the names of inhabitants of the reserve from any record available. R.S.O. C J.3 section 6(8).”
- The sheriff’s duties relating to both on and off reserve residents are, in practice, divided among various employees of the Court Services Division of the Ministry of the Attorney General (MAG) which include:
(a) local court staff determining the number of jury notices required for their district for the year;
(b) employees of the Provincial Jury Centre (PJC) communicating to MPAC the required number of reserve jury notices to be sent for each district;
(c) for off-reserve questionnaires, they are returned to the Ministry of Revenue, where they are opened and reviewed. Thereafter the PJC enters the eligible potential jurors onto the jury roll;
(d) for on-reserve jury questionnaires, selecting the names of on-reserve inhabitants random selection of persons to receive questionnaires and preparation and mailing of questionnaires are done by local court staff in the relevant district. However, the PJC receives the completed questionnaires back, reviews them, and enters eligible names onto the jury roll;
(e) staff at the PJC prepare the jury rolls;
(f) the rolls are certified presently by Sheila Bristow, who is designated as sheriff for that purpose. She is the Acting Director, Corporate Services Divisional Support Branch, Court Services Division, Ministry of the Attorney General.
(g) since the lists of on-reserve residents generally do not include addresses, their questionnaires are often addressed to the Band Office or to General Delivery at the reserve post office. Generally, if a questionnaire is not picked up within 30 days it is returned to the PJC as “undeliverable”.
[3] B: Recent Proceedings Respecting Jury Representativeness
Pierre v. McRae, Coroner, 2011 ONCA 187 – This is a decision of Justice Laskin of the Ontario Court of Appeal. The issue or representativeness arose in connection with the inquest of the death of two First Nation youths, Pierre and Bushie. There the Court held that a coroner was entitled to look into the representativeness issue of the jury. It also shed grave doubt on the representativeness of Thunder Bay juries as it related to First Nations citizens.
R. v. Wareham, No. 1, (March 14, 2011) – This was a case in which was a challenge to the Thunder Bay roll. The challenge was made a few days after the release of the Pierre v. McRae decision. The trial judge heard evidence on the point and allowed the application on the basis of a lack of representativeness.
Bushie Inquest (Hearings of July 2011) – Pursuant to Justice Laskin’s order in Pierre v. Bushie, the inquest resumed and the issue of representativeness was explored by the coroner Dr. Eden. He found that the jury roll was not representative and directed that a proper roll be produced. Some of the reasons he gave were the use of outdated band lists, lists that included under 18 year olds as well as off-reserve people and failure to follow Ministry policy in obtaining band lists.
R. v. Wareham, No. 2, 2012 ONSC 908 – This case came before Platana J. for trial with a jury chosen from a new jury roll in 2012. The court, without the benefit of the expanded duties and guidance for the sheriff as set out in the Kokopenace case found, unlike the court in Wareham No. 1, that sufficient improvements had been made by the sheriff in obtaining more and better band lists. It was, however, decided on the basis of an alleged breach of section 629 of the Criminal Code rather than as a constitutional breach of the Applicant’s rights under sections 11(d) and 11(f) of the Charter.
R. v. Kokopenace (2011 ONCA 759, 2011 ONCA p. 759) – This case, heard in Kenora, related to a 2008 manslaughter conviction. The case came to the Court of Appeal on the issue of representativeness of on-reserve residents on the Kenora jury roll. In the Court of Appeal the issue was thoroughly explored, and the court’s decision sets out what is now required of the state (Ontario) to fulfill its constitutional obligations under section 11(d) and 11(f) of the Charter to on-reserve residents. The majority decision was written by Justice LaForme and supported by Justice Goudge. Justice Rouleau dissented.
Report of the Independent Review of First Nation Representation on Ontario Juries – This Review by Justice Frank Iacobucci was set up by the Ontario Government in August, 2011, and reported on February 20, 2013 while the Kokopenace appeal was still under reserve. The Court of Appeal, however, accepted the Report as fresh evidence in its decision.
The Issue
[3] The issue to be determined in this case is whether the 2014 Thunder Bay jury roll, from which the Applicant’s jury will be selected, complies with his right to a representative jury pursuant to section 11(d) and 11(f) of the Charter of Rights and Freedoms.
The Law
[4] As I mentioned previously, the legal test as to whether the Respondent has fulfilled its constitutional duties under section 11(d) and 11(f) of the Charter, is set out in R. v. Kokopenace. Justice LaForme puts the test succinctly at paragraphs 46, 49 and 50 as follows:
“[46] It is useful at this point to recall that the process of preparing the jury roll requires three steps: first, the compilation of the lists and the random selection of names from them to receive jury service notices; second, the delivery, receipt and return of those notices; third, the entering on the jury roll of those responding who are eligible for jury services. This process applies for all Ontario residents whether off or on reserve.
[49] In my view, to meet its representativeness obligation, the state must make reasonable efforts at each step of creating the jury roll. That includes the state’s actions in compiling the lists, but also in sending the notices, facilitating their delivery and receipt and encouraging the responses to them. The objective of the state’s actions must be to seek to provide the platform necessary to select an impartial petit jury and to maintain public confidence in the criminal justice system by providing groups that bring distinctive perspectives to the jury process with their fair opportunity to be included in the jury roll.
[50] In summary the question posed is whether in the process of compiling the jury roll, Ontario made 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.”
[5] Justice Goudge further explains the test as follows:
“[245] Before turning to the circumstances of this case that I think deserve special emphasis, it is helpful to highlight several aspects of the legal test explained by my colleague.
[236] First, it is clear that the constitutional right of an individual to be tried by a jury selected from a properly representative jury roll is mirrored by the corresponding constitutional obligation of the state. When I describe the state’s obligation, I am describing the appellant’s right.
[237] Second, the state in this case is Ontario. While the statutory obligation under s. 6(8) of the Act rests on the sheriff, the constitutional obligation rests on Ontario. Ontario’s central agencies are most relevant here because of their capacity to address its constitutional obligations. I refer particularly to the Court Services Division (CSD), the Provincial Jury Centre (PJC) and the CSD’s local Kenora District presence, Ms. Laura Loohuizen. Also important however are Ontario’s agencies dealing with its Aboriginal citizens, particularly the Native Affairs Secretariat, which later became the Ministry of Aboriginal Affairs.
[238] Third, the state’s obligation extends beyond compiling the lists and sending out the jury service notices. It includes facilitating their delivery and encouraging the responses to them.
[239] Fourth, the state’s obligation is a continuing one. Year over year, it is an obligation that the state must ensure it is discharging.
[240] Fifth, the state’s obligation is to make reasonable efforts to provide Aboriginal on-reserve residents with a fair opportunity to have their perspectives included in the jury roll. This must be distinguished from additional steps that might be taken in pursuit of best social policy. The constitutional imperative does not require perfection of the state.
[241] Sixth, assessing the state’s preparation of the 2008 jury roll for the Kenora District against the constitutional standard requires a consideration of all relevant circumstances. Several deserve highlighting:
Recent history is one such circumstance. The ongoing nature of the state’s constitutional obligation makes its prior treatment of that obligation relevant in assessing its efforts in the year in question. Past neglect cannot be ignored in determining what is currently required of the state.
I agree with my colleague that the state’s special relationship with Aboriginal people is also relevant. While the constitutional right to representativeness is the appellant’s, it requires the state to provide Aboriginal on-reserve residents with their fair opportunity to be included in the jury roll. The state has chosen to discharge its obligation by a statutory mechanism that addresses Aboriginal on-reserve residents discretely. In my view, the state’s interaction with Aboriginal people that this necessitates engages the honour of the Crown and is a factor informing what is constitutionally required of the state.
I also agree that the fundamental estrangement of Aboriginal people from the justice system is a relevant consideration. That is particularly true in the Kenora District where Ms. Loohuizen indicated that on average, 54% of the jury trials involve Aboriginal people as complainant, accused or both. The need to address this estrangement simply enhances the importance of the state’s efforts to provide Aboriginal on-reserve residents with the opportunity to be included in the annual jury roll.”
[6] The issue as to whether an allegation of partiality has to be made before a breach of s. 11(d) can be found, as set out by the Respondent herein, is firmly rejected by Justice LaForme in Kokopenace. Justice LaForme states that the representative right is engaged by both sections 11(d) and 11(f). At paragraph 27 he sets this out:
“The representativeness right guaranteed by these two subsections of the Charter must inform the entire process of jury selection. Only if the process begins with a properly representative jury roll, can the petit jury randomly derived from it have the required element of representativeness as described in Sherratt. In this appeal, it is the appellant’s right to a representative jury roll, what that means, and whether it was achieved that is at stake.”
The Facts
[7] The vive voce evidence in this Application was provided by the testimony of – Sheila Bristo, who is the Acting Director Corporate Services – Divisional Support Branch – Court Services Division for the Ministry of the Attorney General (MAG), as well as by Janette Sprovieri, Supervisor of Court Operations for MAG’s Court Services Division in Thunder Bay.
A. Evidence of Sheila Bristo
[8] Sheila Bristo testified that she is the person in charge of the annual jury roll preparation. In 2012, the Provincial Jury Centre which had been in London, Ontario, was moved to Toronto and the Manager of the Jury Centre reports to her. She also now certifies the annual roll. She summarized the process of choosing the annual jury roll as follows:
Letters are sent around July of each year to the Manager of Court Operations in each District or County reminding them that the rolls have to be certified and presented to the Chief Justice by December 31 so they should start collecting updated band lists. Getting accurate band lists has been a major problem after the year 2000 when the Federal Department of Indians Affairs, for privacy reasons, stopped sending band lists for the areas where there were First Nation reserves. Efforts to improve and obtain proper band lists include asking the First Nation’s political organizations for help, holding community programs (21 held since 2008), and after the Bushie Inquest highlighted the privacy issue, attempting to get help from the Federal government but to no avail. Also in 2011 a policy initiative was put into place by the Provincial Jury Centre due to the high number of undelivered questionnaires that were being returned by the post office (RPOs). So, by 2013, if over 50% of questionnaires were returned as undelivered, an investigation would have to take place at the local level to determine the reason. In 2014 it was discovered that no fewer than 6 of the 15 reserves in this area were over 50% RPOs, and it was agreed that there were similar statistics for 2012 and 2013 as well. Such a policy initiative was not, and still is not set up for questionnaires which are delivered but not mailed in. In this regard, they rely on general education, jury awareness forums and the like to address the problem, and expect that the Iacobucci report and implementation will have a positive effect in this area.
The jury manual sets out the procedure for determining how questionnaires are to be handled. The local Court Services advises the PJC, based on population figures, of the number of questionnaires required which, since 2009, have included a 30% increase to compensate for lower return rates. The PJC then forwards the required questionnaires to the local Court Services Office along with a package which includes various letters and explanations about the process. Court Services using the jury manual formula, determines how many questionnaires are to go to each reserve using the band lists. The recipients are randomly chosen and the questionnaires are sent to them. This is all attempted to be done by September to allow time for follow up problems.
[9] Sheila Bristo was asked on cross-examination about s. 7 of the jury manual, which deals with the reserves situation. She testified that to her knowledge the July 2012 manual is the current version. The earlier version was dated August 2011 and before this instructions were made by memorandum, i.e. Memorandum dated July 26, 1996. All of these maintain that band electoral lists are the best source of obtaining accurate information, but the recent version advises to look for non-residents on the lists. This change came as a result of the Bushie Inquest disclosing that band electoral lists include off-reserve residents by law. Bristo, herself, does not review individual lists but does obtain information regarding them on the annual final report from local Court Services.
[10] Sheila Bristo reviewed Exhibit E-11, which is a compilation of band lists supplied by the bands to Court Services for preparing the jury roll, and agreed that almost all seemed to be electoral lists and often did not indicate whether they included off-reserve residents. Furthermore, she agreed none of this information was forwarded to her in a final report.
[11] Bristo testified that, in summary, the oversight provided by her with regard to the process was as follows:
(a) Setting up the initial time frames;
(b) Obtaining final reports from local Court Services;
(c) Delivering her final report to the local Court Services so they could update their records;
(d) Dealing with the RPOs; and
(e) Acting in an advisory capacity on the band list situation.
[12] Bristo explained, especially with respect to the band lists and questionnaires situation, that because of the Iacobucci report, which is a report prepared by Justice Iacobucci at the request of the Ontario government to explore the current situation with respect to the problems of lack of reserve residents on jury rolls, two committees had been set up – an implementation committee and an advisory committee – with highly placed representatives from First Nations, the government and the judiciary, including herself as members. Because of this she felt it would not be the time to be making any major changes to the jury selection process.
B. The Evidence of Janette Sprovieri
[13] Janette Sprovieri is the Supervisor of Court Operations in Thunder Bay, and has held that position since 2004. She is responsible for jury selection in First Nation reserves in this District under s. 6(8) of the Juries Act. She first begins by writing to each Chief requesting an updated band list. Using the formula set out in the jury manual, she determines the number of questionnaires required for the 15 bands she deals with, adds 30% more, and obtains the required questionnaires from the PJC. She then randomly selects the number of prospective jurors each band is entitled to from the band lists, and mails them out. Sprovieri testified that before 2008 there was very little guidance in how to do the jury work but since then there has been much more help, i.e. training sessions, informal brain storming and the like. She has also personally visited four bands since 2011. Once the roll is complete the local Court Services office files a final report to PJC showing relevant statistics for each band.
[14] In regards to the problems of obtaining up-to-date band lists, Ms. Sprovieri stated that until she testified at the Bushie Inquest in 2011 she was unaware of the fact that reserve electoral lists included off-reserve as well as on-reserve parties. She also testified she was unaware of the most recent jury manual provision stating while band electoral lists are still the best source of information, they should be checked for non-residents. She does not do this, and stated that once she obtains a list from a band, she accepts it without question.
[15] In reviewing the band lists supplied in Exhibit E-11, 27 in all which were supplied as a result of disclosure herein, Ms. Sprovieri was in agreement that she would not have reviewed any of these lists for “on or off” reserve residents even though she knew that First Nations electoral lists on their face included all members of the First Nation whether on or off reserve.
[16] With respect to questionnaires Ms. Sprovieri indicated that in order to determine “population figures” for ordering questionnaires, she would take the highest number from the Department of Indian Affairs lists. Further she indicated there were often address problems when sending out questionnaires because many reserve residents only gave an address as General Delivery or to the band office address.
[17] Finally, Ms. Sprovieri advised in 2011, the first year of the policy regarding following up on RPOs, she found out that the Lac Des Milles Lac Band had no residents and that three bands, Gull Bay, Whitesands and Pic River, had a very high rate of returns because the lists which the Court Services had been provided with contain both on and off reserve residents – but all addressed to the reserve.
The Position of the Parties
A. The Position of the Applicant
[18] The Applicant sets out his position as follows:
(1) The history leading up to this case is important because the test is one of reasonableness and a state’s knowledge is a necessary component.
(2) The test in R. v. Kokopenace is the test to be applied here. In short, the test is whether the state made reasonable efforts to create a process which would deliver a representative jury roll. It is the process, not the results that matter.
(3) Allegations of actual partiality is not required to find a constitutional breach with respect to either sections 11(d) or 11(f) of the Charter. Proof of lack of representativeness of the jury roll is sufficient for both.
(4) Constitutional considerations:
(a) The Province set up a different system for jury selection for reserves than for the general population and so it has to put in the effort to make the system work;
(b) The state is all levels of government, i.e. the state as a whole;
(c) The state has a special relationship with Aboriginal people particularly because of their estrangement from the judicial system; and
(d) The state’s obligation is ongoing.
(5) The state has failed to take reasonable efforts at both the provincial and district level to obtain accurate Band lists and for its failed strategies regarding Return by Post Office (RPOs) and delivery problems of questionnaires.
(6) There has been a serious breach of the Applicant’s constitutional rights and the appropriate remedy is a stay of proceedings.
B. Position of the Respondent
[19] The Respondent sets out its position as follows:
(1) The state’s actions since 2008 (Kokopenace trial) have been reasonable considering the complexity of the issues; and
(2) The concept of jury representativeness being a qualified right, i.e., it requires setting up “a process that produces a platform for the selection of a competent and impartial petit jury – ensures confidence in the jury verdict – and contributes to the community support for the criminal justice system”. (See R. v. Church of Scientology (1997) 116 C.C.C. (3d) OCA.) In other words the emphasis is on process not results.
(3) The test must not be so high as to make it impossible for the state to achieve;
(4) The test should be measured by effort – not by results;
(5) In Kokopenace the constitutional violations found was more failure to address delivery problems and low rates of return than the efforts to obtain updated lists;
(6) In Kokopenace the court did not set any firm line of what had to be done – just made suggestions; and
(7) If there has been a breach, a stay is not the appropriate remedy – there are other options such as a declaration.
DISCUSSION
[20] The two major issues identified in Kokopenace, and which resulted in the test which must be applied in this case, are the same as in the present application – the issue of band lists and the issue of delivery and return of questionnaires.
A. The Band Lists
[21] In order to put the present situation into context I quote from Justice LaForme in Kokopenace as follows:
“[175] Finally, another clear error made by Ms. Loohuizen can be attributed, on the one hand, to MAG’s failure to appreciate the importance of a major legal development to the policy governing the jury roll preparation process and, on the other, to Ms. Loohuizen’s inadequate instruction regarding the nature of available lists.
[176] Because the MPAC enumeration process captures Aboriginal persons living off-reserve, it is important that the s. 6(8) process only include those individuals residing on-reserve. The ideal source list for the purposes of s. 6(8) would be up-to-date list, with addresses, of all adults resident on a given reserve. If a source list contains individuals who actually reside off-reserve, steps will need to be taken either to remove those individuals from the s. 6(8) enumeration, or alternatively, to otherwise compensate for the over-inclusive nature of the list. It must be recognized that Aboriginal off-reserve residents may potentially have different perspectives than Aboriginal on-reserve residents.
[177] The evidentiary record in this case supports a reasonable conclusion that the INAC band lists from 2000, at least, likely included on-reserve residents only. These lists were inaccurate in other respects, because of how dated they were by the time the jury roll for 2008 was being prepared, but did not give rise to this particular distortion. However, throughout the period relevant to this appeal, the lists requested and received from the Bands themselves were sought in accordance with PDB #563, which provides that a “band electoral list” is the preferred source for the names of on-reserve residents for the purposes of s. 6(8).
[178] When this policy was first distributed, this instruction likely did refer to the best available source for the purposes of s. 6(8). At the time, s. 77(a) of the Indian Act restricted voting in respect of elections under the Indian Act regime to members “ordinarily resident on the reserve”. Accordingly, a voter’s list or band electoral list would only have included the names of those residing on the reserve.
[179] In 1999, the Supreme Court of Canada released its decision in Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203, which held that s. 77(1) of the Indian Act violated s. 15 of the Charter. After the declaration of invalidity imposed in that decision expired the following year, and Indian Act regulations were amended to give effect to the decision, the electoral lists for Indian Act elections included band members residing both on- and of-reserve.
[180] Since 2000, then, the policy instruction on the basis of which the entire s. 6(8) process was undertaken has been incorrect in a way that is directly related to the question of the representativeness of the jury roll. Ms. Loohuizen’s evidence was that she had been asking for band electoral lists in accordance with the instructions. There is no evidence that any steps were taken by CSD or the PJC to update their practices in light of this change in the law during the time relevant to this appeal, and no evidence that Kenora District staff received instructions on how to determine the nature of the lists provided or why it mattered.
[181] The evidence shows that Ms. Loohuizen knew prior to this that the band electoral lists she was provided with included off-reserve individuals, yet she continued to use these lists, without removing off-reserve individuals, to determine who would receive questionnaires. The evidence also shows that Ms. Loohuizen did not learn until 2011 that individuals residing off the reserve should not be included in the s. 6(8) enumeration.
[182] The practical effect of Corbiere is that it made any band electoral lists obtained from First Nations after its release much less valuable in terms of their utility for meeting the requirements of s. 6(8) and identifying on-reserve residents eligible to serve on local juries, unless independent steps were taken to compensate for the inclusion of eligible voters living off reserve.
[183] Everyone is presumed to know the law and to act accordingly: Beauregard v. Canada, 1986 24 (SCC), [1986] 2 S.C.R. 56. Certainly, of all entities, the Ministry of the Attorney General can be presumed to know the law, including changes to it and the implications of those changes. Yet, the evidence shows that CSD staff in Kenora, at any rate, only became aware of the significance of Corbiere to the utility of band electoral lists when the issue was raised in cross-examination in connection with these appeals – 12 years after the decision was released. The issue was addressed for the first time in CSD policy documents and practices in training materials prepared in August 2011. Overlooking a legal change of this nature demonstrates a considerable lack of attention and a high degree of indifference to the problem.
[184] It is important at this point to repeat what source lists CSD in Kenora had for the purpose of preparing the jury roll for 2008:
• Band lists from 2007 in respect of eight First Nations, and from 2006 in respect of two other First Nations;
• INAC lists from 2000 in respect of 32 First Nations; and
• No list for four First Nations.
[185] Therefore, the jury roll at issue in the present appeal was compiled, in respect of 42 of 46 First Nations in the judicial district, from records that were objectively either significantly out-dated or inaccurate in a way that would give rise to distortions in representation. The state knew or ought to have known about these deficiencies in the source lists, and the evidence shows at least seven years where very little was done to ameliorate the situation.
[186] I would note, also, that even if Ms. Loohuizen’s efforts in 2007 had resulted in the provision of more band electoral lists from bands in the district, her lack of understanding about the nature of the lists, and the state’s failure to take steps to account for the legal implications of the Corbiere decision, would likely still have caused distortions that would give rise to concerns about the representativeness of the jury roll. It is reasonable to think the above may explain why the increase of jury service notices for the 2008 jury roll by Justice Stach did not result in a corresponding increase in eligible responses.
[187] The exact impact on these errors, in a quantitative sense, cannot be known on this record. However, the cumulative inaccuracies in the source lists inevitably bear on the likelihood that sufficient questionnaires would have reached individuals residing on-reserve. The state’s apparent willingness to rely on a data source that, for any number of reasons, demonstrated significant inaccuracies leads inevitably to the conclusion that – even on the Crown’s own proposed test – it did not make reasonable efforts to ensure an “honest and 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.”
[22] The similarities in the factual situations in Kokopenace and the present application are striking. The only real difference is that while the CSD may not have as much trouble in obtaining the lists from the bands, the real issue here is the accuracy of those lists.
[23] The effect of the Corbiere decision is equally striking in the present application, since in their testimony both Sheila Bristo and Janette Sprovieri testified that they were not aware that post-Corbiere both on and off reserve parties were entitled to vote in band elections, and so, unless otherwise indicated band electoral lists would have both on and off resident names. They said they were not aware of the effect of Corbiere until the Bushie Inquest in 2011.
[24] This then brings us to the jury manual. As indicated, all former instructions prior to the July 2012 manual recommended band lists as the best source of band members living on reserve. For the first time, under Chapter 7 entitled “First Nation Jurors Living on Reserves” while electoral lists were still recommended as the best source of determining residency, it was recommended that this list should be examined to ensure it only included on-reserve residents. It is noteworthy that Janette Sprovieri testified that she had not been aware of this “new recommendation”, and that she always just accepted the electoral lists without questionning them as to on or off residents.
[25] Sheila Bristo testified she could not ever remember seeing a band list.
[26] The Respondent points out that, apparently for the first time, in the letter to the Chiefs announcing the commencing the 2014 jury roll selection process, which is dated August 12, 2013, it was finally made clear that what the CSD was looking for was “band lists that indicates the names of people 18 years of age or over who live on reserve”. This is in sharp contrast to the letter announcing the 2013 roll preparation, dated August 3, 2012, which only asks for “a current copy of your band electoral list”. Such a small effort was hardly enough to make much of a difference to a problem which had been ongoing for many, many years. This is evident from a review of Exhibit E-11 which apparently shows the band lists used for the 2014 roll. Many of them are still outdated, and of those that aren’t, many are questionable as to “on or off” reserve.
B. Delivery And Return Of Jury Questionnaires
[27] Like the issue of accuracy of band lists, this issue strikes a remarkable resemblance to the same issue in the Kokopenace case. For that reason I would preface my marks by first quoting certain paragraphs from Kokopenace.
[28] Justice LaForme highlights the issue here as follows:
“[159] As I have stated, one question that underlies the analysis of the reasonableness of the state’s efforts in respect of the preparation of the jury roll for 2008 for the purposes of ss. 11(d) and (f) of the Charter is whether the state delivered jury service notices to Aboriginal on-reserve residents and facilitated their return sufficiently to allow them a fair opportunity to have their distinctive perspectives included in the jury roll. This assessment is a contextual exercise in all respects, taking into account both the history of the practices since at least 2001, when INAC band lists ceased to be provided to CSD, and also the state’s special relationship with Aboriginal people and the responsibilities that entails.
[160] The state must demonstrate that it exercised diligence, resourcefulness, ingenuity and persuasion in this regard: R. v. Nahdee (1993), 1993 17034 (ON SC), 26 C.R. (4th) 109 (Ont. C.J. (Gen. Div.)) at para. 20. If the state simply accepted the repeated failure to secure responses to its efforts, the efforts will be shown to be unreasonable.
[161] On this record, the state was faced with two discrete problems. The first was obtaining accurate up-to-date lists of Aboriginal on-reserve residents. The second was the deteriorating rate of return of questionnaires from the on-reserve residents. While the focus on my analysis will primarily be from 2000, I would note again that in 1993 the return rate for Aboriginal on-reserve residents was roughly half of that of the non-aboriginal community.”
[29] Justice Goudge, in his decision, while he does not emphasize the importance of the band list issue to the same degree as Justice LaForme, emphasizes the importance of this issue at the following paragraphs:
[249] “By 2008 therefore the comparatively low rate of return from Aboriginal on-reserve residents had been well-known by the state for a number of years as a significant contributing cause of the underrepresentation of Aboriginal on-reserve residents in the annual jury roll for the Kenora District.
[250] In summary, the jury roll at issue in this case was prepared in the context of ongoing serious problems with three steps of the process. First, the lists of Aboriginal on-reserve residents from which recipients were selected were flawed. Second, the delivery of questionnaires to them was significantly impaired by a “Returned by post office” rate considerably higher than for off-reserve residents. Third, the response rate for those on reserve receiving the questionnaires was much lower than for their off-reserve counterparts. The state clearly had a role to play in each of these steps. How it responded to these challenges must be assessed against its constitutional obligation.
[258] The second challenge for the state argued by the applicant was the relative difficulty in getting the questionnaires into the hands of the intended Aboriginal on-reserve recipients, compared to off-reserve residents. For each group, the state would have known how many questionnaires were sent out and how many were returned undeliverable. The record points to a markedly worse experience for Aboriginal on-reserve residents. It need hardly be said that since the on-reserve questionnaires were significantly reduced the fair opportunity of Aboriginal on-reserve residents to have their perspectives included in the jury roll. The delivery problem therefore presented a challenge that the state had to address.
[259] Its constitutional obligation requires it to make reasonable efforts to facilitate delivery for the questionnaires. While there may be many reasons that do not involve the state for questionnaires not reaching their intended recipients, there are clearly steps the state could have taken to make successful delivery more likely, beginning with a search for the cause and what the state might do to assist.
[260] The difficulty here was the state’s inattention to this challenge. It appears that virtually nothing was done over the years, including for the 2008 jury roll, to determine the cause or causes of the on-reserve delivery problem or what the state could do to alleviate it. Ms. Loohuizen, who was left to do the heavy lifting for the state, described in detail the efforts she went to from 2001 to 2008 to include Aboriginal on-reserve residents in the jury roll process. None addressed the delivery problem.
[261] The record shows that not until 2011 were any steps taken by the state to try to do what it could to reduce the disparity between on-reserve and off-reserve delivery rates. In that year, the state introduced new practices for reserves with high RPO rates, such as resending the questionnaires and contacting chiefs for assistance with deliveries. In his report, Mr. Iacobucci offers another suggestion: when a questionnaire is returned within 30 days as undelivered, another questionnaire is sent out to another on-reserve resident.
[262] It is not necessary to decide if these solutions to the delivery problem are constitutionally required. What can be said is that faced with this substantial challenge, which impaired the fair opportunity of Aboriginal on-reserve residents to have their perspectives included in the jury roll, inaction by the state in the face of action that it could have taken cannot meet the reasonable efforts standard required by the representatives right of the appellant.
[263] The third challenge facing the state in preparing the 2008 jury roll and also argued by the appellant was the comparatively low rate of return from Aboriginal on-reserve residents to whom questionnaires were sent. The comparison with the off-reserve return rates was stark. Off-reserve rates were typically four of five times higher than for on-reserve residents. For these reasons I have described, the state knew of this discrepancy for a number of years. Its impact on the underrepresentation of Aboriginal on-reserve residents on the annual jury roll is obvious. The magnitude of the difference in return rates meant a significantly reduced opportunity for inclusion of Aboriginal on-reserve residents in the jury roll relative to off-reserve.”
[30] The point being made here is that as in the present case, the state has known for years of the high rate of returns by post office of questionnaires mailed to the prospective jurors, and notes, as did Sheila Bristo, that in 2011 a plan was put into place to look into the reasons for the returns by Post Office and often they were successful in finding the reasons and attempting to correct them. However, this was not the same for the non-return of questionnaires which were apparently delivered but not mailed in. Statistics for 2013 in Thunder Bay shows only 9.9% were mailed back and for 2014 13.8%. This compares with return rates for the rest of the Province of 72% for 2013 and 66% for 2014. Sheila Bristo in her testimony had no explanation for taking no action, other than that they hope to deal with the situation through ongoing education and that now that the Iacobucci report was being implemented, the problem could be addressed. Like the return by post office problem, simple inquiries might have yielded results here. But to do nothing in the face of such a major problem is unacceptable and certainly not a reasonable approach to take.
Conclusion
[31] So for all of the above reasons I find that the Applicant has succeeded in establishing that the Respondent failed to make reasonable efforts to meet its representativeness obligations under s. 11(d) and 11(f) of the Charter of Rights and Freedoms, and thus the application is allowed.
Remedy
[32] Section 24(1) of the Charter of Rights and Freedoms reads as follows:
“Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”
[33] An “appropriate and just” remedy requires:
(a) fairness for all sides – here on one side society and on the other the Applicant/Accused.
(b) There has been no bias alleged or demonstrated by the Respondent against the Applicant.
(c) There have been no allegations of deliberate attempts by the state herein to exclude herein a particular group from the jury roll
(d) The Applicant is before the court facing very serious charges
(e) It is common ground that the issues addressed in this application are extremely complex.
[34] So, in my judgment, a balanced and fair remedy is a temporary stay of proceedings for one year to allow the Applicant to have his trial before a jury chosen from a new jury roll, and it is so ordered.
_______”original signed by”
The Hon. Mr. Justice J. F. McCartney
Released: April 15, 2014
COURT FILE NO.: CR-11-0142
DATE: 2014-04-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Shaldon Wabason,
Applicant
Decision On Application Challenging 2014 Jury Roll for the District of Thunder Bay
McCartney J.
Released: April 15, 2014
/mls