CITATION: R. v. Wabason & R v. Capay, 2015 ONSC 4763

COURT FILE NO.: CR-11-0142 & CR-13-0070

DATE: 2015-07-27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen,

Respondent,

• and -

Dayna Arron, Peter Keen, and Andrew T.G. Sadler, for the Crown

Shaldon Wabason,

Applicant/Defendant

Jessica Orkin and Delmar Doucette, for the Applicant/Defendant Wabason

AND BETWEEN:

Her Majesty The Queen,

Respondent

• and -

Dayna Arron, Peter Keen, and Andrew T.G. Sadler, for the Crown

Adam Capay,

Jessica Orkin and Delmar Doucette, Agents for the Counsel for the Applicant/Defendant Capay

Applicant/Defendant

HEARD: June 8, 9, 10, 11 and 12, 2015, at Thunder Bay, Ontario

Platana J.

RESTRICTION ON PUBLICATION:

By Order of Justice Platana, made June 8, 2015, with reasons to follow, information identifying the names of the Applicants, facts of the allegations to be made and the evidence to be called against the Applicants, and the fact that one of the Applicants brought the 2014 Kokopenace application, may not be published, broadcasted, or transmitted in any manner for either Applicant until the end of their trial.

Reasons On Kokopenace Application

Overview

[1] The main applicant, Mr. Wabason, is charged with second degree murder and break and enter. His trial is scheduled for September 2015 in Thunder Bay. The second applicant, Mr. Capay, is charged with first degree murder and is also scheduled for trial in 2015 in Thunder Bay. Both applicants are Aboriginal.

[2] The Wabason matter was originally scheduled for trial in 2014. He challenged the 2014 jury roll in Thunder Bay. On April 15, 2014, Justice McCartney held that the 2014 Thunder Bay jury roll was unconstitutional, finding that the state had failed to make reasonable efforts to meet its constitutional representativeness obligations, as required from the Ontario Court of Appeal’s decision in R. v. Kokopenace, 2013 ONCA 389, O.J. No. 2752. Justice McCartney ordered a temporary stay of proceedings for one year as a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms: R. v. Wabason, 2014 ONSC 2394 (“Wabason #1”).

[3] On May 21, 2015, the Supreme Court of Canada in R. v. Kokopenace, 2015 SCC 28, S.C.J. No. 28, overturned the Court of Appeal’s decision. The majority found that the 2008 Kenora jury roll did not violate ss. 11(d) or 11(f) of the Charter. Justice Moldaver, for the majority, found that the state will meet its representativeness obligation when they provide a fair opportunity for a broad cross-section of society to participate in the jury process (para. 61). Furthermore, Justice Moldaver stated that although this is a serious issue that merits attention, that the accused’s Charter rights were not the appropriate vehicle to redress this concern (para. 65).

[4] Both applicants challenge the 2015 jury roll, stating that it violates their ss. 11(d) and 11(f) Charter rights. Mr. Wabason is seeking a permanent stay of proceedings. Mr. Capay did not have independent counsel at the application. Mr. Wabason’s counsel, acting as agents for Mr. Capay’s counsel, stated that Mr. Capay agreed to be bound by the result of this application, however, may seek a different remedy after a determination is made on the alleged ss. 11(d) and 11(f) Charter violations.

Statutory Scheme

[5] The facts regarding the applicable statutory scheme for the composition of the jury roll are not in dispute and are drawn from a combination of both parties’ factums. Furthermore, Justice Code provided a detailed summation of the statutory framework for the inclusion of on-reserve residents on the jury roll in R. v. Madahbee-Cywink, 2015 ONSC 434, O.J. No. 306, at paras. 8 – 17.

[6] The facts are not in dispute that every year, a jury roll for each judicial district is composed pursuant to the provisions of the Juries Act, R.S.O. 1990, c. J.3. There are three stages for the creation of a jury:

1. Inhabitants of each judicial district are randomly selected and sent jury notices. Based on their eligibility, those who return completed jury notices are entered into the jury roll.
2. Individuals on the jury roll are randomly selected for the jury panel.
3. A petit jury is selected from individuals on the jury panel.

[7] The primary data source for all inhabitants that live off-reserve (Aboriginal or Non-Aboriginal) is from Municipal Property Assessment Corporation (MPAC) records for municipal elections. These lists are updated every four years.

[8] This process does not include those who live on reserves. Thus, on-reserve residents are added to the jury roll through s. 6(8) of the Juries Act:

(8) In the selecting 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.

[9] Although the statute places the responsibilities on the sheriff, in practice, their duties and responsibilities are distributed between various Court Services Division (CSD) employees. Essentially, to add on-reserve residents to the jury roll each year, CSD staff have to:

1. Identify the reserves within a district;
2. Obtain source lists that identify individuals over the age of 18 that live on those reserves;
3. Send questionnaires to randomly selected individuals from the source lists; and,
4. When returned, add eligible inhabitants to the jury roll for the district.

Evidence

[10] The evidence in this case consists of affidavit and viva voce evidence of Sheila Bristo and Laura Loohuizen, together with the supporting materials. It was agreed that the Record of Proceedings in Justice McCartney’s decision in Wabason (Wabason #1) be part of these proceedings, together with supplementary materials filed by the Crown. A number of exhibits containing information with respect to individual band members were filed under seal.

Evidence of Sheila Bristo

[11] Sheila Bristo is the Director of the Divisional Support Branch, CSD. She has been responsible for the Provincial Jury Centre (“PJC”) including preparation of the jury rolls since 2011, when she was the Acting Director. The Operational Support Unit has responsibility for developing policy and procedure for juries. The PJC is responsible for development and certification of jury rolls, and the random selection of potential jurors. She testified that following the decision on the 2014 roll, in what is now referred to as Wabason #1, she did a review in order to make improvements to the compilation of the 2015 roll. The process began with a series of meetings with staff experienced in jury matters throughout the province and, in particular, Thunder Bay and Kenora. The focus of the discussions was on how to improve the lists of eligible people living on reserves and on the delivery of juror questionnaires.

[12] As part of the review process, the Provincial Jury Manual was extensively updated in 2014 to clarify requirements and to update training materials. Specific emphasis was placed on Chapter 7 of the manual which deals with engaging First Nations individuals living on reserves, in accordance with s. 6(8) of the Juries Act. Section 7.4 dealing with a review of Source Lists, and the different types of lists, was made a focal point.

[13] In addition to the extensive nature of the manual, a province-wide network of staff resource persons was established to have someone local deal with jury issues, and Aboriginal jury issues in particular. In Northwest Ontario, a new position of Aboriginal Jury Coordinator was established with responsibility for the Districts of Kenora, Rainy River and Thunder Bay. Laura Loohuizen, who had previous experience in these issues, was given that responsibility. The process was changed such that Corporate office, not local, took on the responsibility of identifying all reserves, including any new ones, in order to get accurate lists.

[14] A number of specific changes were made in relation to obtaining lists, determining the number of questionnaires to be sent out, the distribution of questionnaires to potential jurors, and issues in regard to the delivery of questionnaires. In an attempt to obtain up-to-date source lists of people living on the reserve, over 18, and eligible to be jurors, Pilot Project #1 was introduced. That project consisted of a written request to the individual band chief to provide the list and an offer to pay the band office for someone to prepare the list. Materials were prepared to assist local Managers of Court Operations in the following up on the request. A new form of invoice was prepared to facilitate the band office in invoicing for payment of the preparation of the list.

[15] In the District of Thunder Bay, there were twelve bands with on-reserve population (four had no one living on the reserve). Four of the twelve bands responded to and participated in the Pilot Project #1.

[16] Prior to the preparation of the 2014 roll, the calculation of the number of juror questionnaires was done by local court officers. In the 2014 roll, that determination was centralized by CSD to ensure consistency, and to reduce the workload on local staff. Previous calculation of that number was based on the “county test”, the purpose of which is to ensure that the proportion of people who receive questionnaires off-reserve is approximately the same as the proportion of on-reserve who receive questionnaires. In an effort to improve the rates of return, the Ministry decided to increase the number of on-reserve questionnaires by 30%.

[17] In 2014, in preparation for the 2015 roll, the Ministry also implemented Pilot Project #2, which offered remuneration to a band member to deliver questionnaires on-reserve. The same four communities who participated in Pilot Project #1, participated in #2.

[18] Ms. Bristo testified as to changes made with respect to improving the procedures dealing with questionnaires that had been mailed, and which were subsequently returned by the Post Office (“RPOs”). Since 2011, the PJC has monitored the rates of RPOs. Historically, local Managers of Court Operations (“MCOs”) were contacted by the PJC to follow up to determine if there was an alternate way to deliver the returned questionnaires. In 2012, follow-up action was directed if approximately 90% of the questionnaires were returned. For the 2014 roll, the trigger point for follow up was reduced to 50%.

[19] In addition to lowering the trigger point, the Province implemented Pilot Project #3. This project involved local staff being required to follow up on every RPO. A second questionnaire to a randomly selected individual was sent where information was obtained that the original recipient was no longer living on reserve, was deceased, or was otherwise unreachable.

[20] In a further ongoing effort to increase the return rates of juror questionnaires to on-reserve residents, the Ministry implemented Pilot Project #4. When lists used in the initial mail-out appeared to include a significant number of off-reserve residents, additional questionnaires were sent out.

[21] Ms. Bristo’s evidence is that throughout the process efforts were made to follow-up with the band chiefs; additional letters were sent requesting assistance with lists; posters were sent to the bands encouraging juror participation; wording or letters were changed to attempt more of a cooperative spirit than a directive one.

[22] Ms. Bristo described how starting in 2008, the Ministry began to outreach to Provincial Territorial Organizations (“PTO”) and the Independent First Nations (“IFN”) in an effort to engage in dialogue about improving the presence of on-reserve First Nations people on jury rolls. As a result of that outreach, 21 jury awareness forums were held between 2009 and 2013. Future discussions concerning forums has, by agreement, been deferred in light of the work of the Debwewin Committee Implementation Report. Letters were sent to the PTOs and the IFN asking their assistance to encourage band members to respond to the questionnaires. The PTOs and the IFN were also made aware of the Pilot Projects that had been offered to the individual band chiefs.

[23] With respect to the agreed upon decision to defer the holding of future forums, Ms. Bristo’s evidence is that the Ministry made a decision that in light of the Iacobucci Report and the formation of the Debwewin Committee, the Ministry should not proceed unilaterally in deference to the Report which recommended a collaborative process.

[24] Ms. Bristo gave evidence with respect to the Ministry follow up to the Iacobucci Report, released on February 26, 2013. She testified as to the Ministry action on five main topics:

• establishing an implementation committee and minister’s advisory group;

• addressing systematic concerns about the justice system;

• reforming the jury roll and selection process;

• jury member compensation; and

• coroner’s inquests.

[25] She stated that in June 2013, the Ministry responded to the Report by creating an Implementation Committee, the co-chair, and a majority of members of which are Aboriginal. She noted that the Committee has held several meetings. Her evidence is that the Ministry is very aware that while much of the Committee’s work involves issues broader than just jury issues, the Report stresses the necessity for this to be a collaborative undertaking. She believes the way forward towards resolution of these issues is to continue to work together. She stated that the Ministry recognizes that imposing changes unilaterally is not going to work.

[26] In cross-examination, Ms. Bristo acknowledged that when she became Administrative Director in April 2011, the preparation of jury rolls was an active issue. She has been involved in active preparation from 2012 on. She is aware of the different ways in which reserve bands are accessible, by road or air, and that there are variations in postal services on reserves. Some have only general delivery, some have street addresses, and some have banks of post office boxes. She did follow up with Canada Post for more effective delivery, however, they have no capacity to determine if any mail recipient lives on the reserve, and is over 18. Pilot Project #2 was initiated because of the different mail delivery systems.

[27] She agreed that when all steps have been taken to find specific addresses, and none could be found, the questionnaires were sent to General Delivery, or to the band office. She agreed that if there are specific addresses, and mail was sent “general delivery” she could not say how mail would be received.

[28] She stated that she is aware of the problems with out-of-date lists but commented that the MPAC list used for non-reserve questionnaires, are updated every four years. She did agree that there is no ‘perfect’ list, and that different types of lists are used, which have different types of information.

[29] Ms. Bristo stated that following the ruling of McCartney J. in Wabason #1, she reviewed the testimony of Ms. Sprovieri to see what changes could be made. She acknowledged that the problems around the jury roll are broader than not having an accurate list.

[30] Ms. Bristo testified that she understands her duties with respect to certifying the rolls for the entire Province, and s. 9 of the Juries Act. When certifying, she ensures that names and addresses have been obtained from any record available. In preparation for the 2015 roll, she was satisfied that staff had done what they could, taking into account the Pilot Projects, to find the best records to use.

[31] In response to questioning concerning delivery, Ms. Bristo agreed that prior to 2011, returns by specific reserves were not monitored. She did not become aware until that time of the high RPO rate specific to that reserve. When the Ministry became aware of the high RPO rates in individual reserves, the issue was addressed aggressively. Recognizing that there could be a number of reasons for an RPO, 30% more questionnaires were sent out, and the Pilot Projects were initiated.

[32] In responding to questions specifically about delivery to Fort William First Nation, she stated that if the community does not send a list, staff has to use the best list available. She stated that without a list, if no information is provided, staff proceed on the basis of much less information, they check other ways of obtaining that information, and “they work with what they have”. She acknowledged that the likelihood of receipt of questionnaires intended for any recipient is diminished without the assistance of the band.

[33] With respect specifically to Fort William First Nation, Ms. Bristo knew that for 2013 and 2014, the RPO rate was 100%. Efforts were being made by staff to find addresses by using other sources, both corporate and local.

[34] She testified that she was aware that driver’s licences, and health cards have information with respect to addresses and birth dates. Her evidence is that she has considered getting information from other government agencies such as Ministry of Transportation (“MTO”) and Ministry of Health (“MOH”), however, in her view that would require legislative changes. Further, local staff have advised that driver’s licence information would be of limited value in reserves which are only accessible by air, and vehicles are uncommon, indeed, many communities do not have roads.

[35] Ms. Bristo was asked whether her office had attempted to get addresses of individuals from MTO. Her response was that she had not. She considered that any request so made would not be considered a personal request, but as one coming from the Ministry of the Attorney General. She stated that in light of the Debwewin Committee, which has stressed cooperation and consultation, although inquiries have been made about the availability of required information from the other government ministries, in the spirit of Debwewin, no unilateral action has been pursued by her, as representative of the Ministry of the Attorney General.

[36] One of the significant problems learned was that some of the lists used contained names of people living off-reserve. Some lists provided by Aboriginal Affairs and Northern Development Canada (“AANDC”) show residency codes, others show birthdates. Not all lists show both residency and birthdate. Some lists relied on previously electoral lists, which include on and off-reserve band members. In 2012, these were described as the “best source”, however, in 2014, the instructions given to staff were that electoral lists should be viewed as “a starting point”. In the 2014 Jury Manual, staff were instructed to seek other ways of finding addresses.

[37] In cross-examination, Ms. Bristo acknowledged that there are numerous types of lists containing information on band members, both on and off-reserve. There are two types of bands in the Indian Act, sections 10 and 11. In the case of s. 10 bands, the band controls the list, while in the case of s. 11, AANDC controls the list. There are different lists for “registered Indian” and “registered member”. Ms. Bristo referenced a letter from AANDC dated February 7, 2012, confirming that for band lists under sections 8, 9 and 11 of the Indian Act, use of those lists after they have been provided to the band, does not fall under the federal Privacy Act and may be disclosed by First Nations, if they choose to do so, without being in breach of the Act. There has been inquiries between the Ontario Government or the Federal Government, with respect to AANDC releasing lists in their control to the Province. The reply of the Federal Government was that it would be best to contact the bands directly for their lists. Ms. Bristo also testified that not all lists apparently used by AANDC contain information necessary for preparation of the jury rolls.

[38] Ms. Bristo confirmed that while the changes referred to in her evidence with respect to the 2014 Manual, and the Pilot Projects have been implemented by her office, much discussion is ongoing with respect to jury issues with the Aboriginal organizations. Her position remains that the Ministry is respectful of the discussions underway in the Debwewin Committee, and as a policy matter, the Ministry has decided not to make any changes which may impact on those discussions negatively, specifically any changes that may be considered in the area of obtaining personal information as to addresses and birthdates of people who receive questionnaires from other Provincial Government ministries or sources.

[39] With respect to the preparation of the 2014 jury roll for Thunder Bay, the rate of return of questionnaires was up from 13.8 to 14.1%. While she was discouraged in light of the efforts made, she was encouraged with the reduction in the number of RPOs.

Evidence of Laura Loohuizen

[40] Ms. Loohuizen is the Aboriginal Jury Coordinator for the Northwest Region, and has been so since her appointment in August 2014. She has been involved in the juror roll selection for the 2015 roll since July of 2014, having previously done the same work in Kenora. Her evidence is that she has been involved in the jury process since 2007, on an increasing basis, including extensive work in the Kokopenace jury roll.

[41] She testified that in 1996, Courts Administration had issued a four page memorandum (PDB 563) regarding on-reserve residents and their inclusion on the 1997 jury roll for areas where reserves were situate. That was the memorandum in effect in 1997. At that time, little training was offered by the Corporate Branch of the Ministry of the Attorney General. She was then heavily involved in the changes to Chapter 7 of the 2009 Jury Manual. The changes were directed towards providing clearer direction to staff for compilation of the jury roll. She stated that significant and mandatory training for staff was carried out.

[42] Her evidence is that following her appointment as Jury Coordinator in Thunder Bay, her first work was to ‘get the lay of the land’. She made herself familiar with the number of reserves in the District, where they were located, and how they were accessed. She determined that there were 12 First Nations reserves in the District of Thunder Bay with residents on the reserve.

[43] Her evidence is that post Kokopenace (C.A.) she has concentrated on the issues of obtaining and developing lists for jury rolls for s. 6(8) individuals, and secondly, to find ways of delivery of the questionnaires to those randomly selected.

[44] She was questioned on her knowledge of the various lists which had been used for previous jury rolls. She stated that a “good source list” would be a list of all persons 18 years of age and older, with their mailing address, and confirmation that they were living on the reserve. She had been told repeatedly by communities that they did not have such a list. She is familiar with band electoral lists, which include all band members, and knows that different lists are compiled by bands for purposes other than s. 6(8) of the Act. She is aware that mailing address are often omitted on some types of list. She has received housing lists, and is aware that some residents on-reserve may share address numbers.

[45] She testified as to other sources of information she has used. She stated that Google maps do not work; phone books are of limited use as they often contain only the first initial with the surname; she cannot tell from a phone book whether a person is living on the reserve or not; cell phone use means less information as to addresses; and Canada 411 on the internet has the same limitations.

[46] As part of the process for the 2015 roll, as a result of discussions among staff, an idea was generated to offer compensation to the bands for preparation of lists which could be used to obtain better information for the preparation of the roll. This was generated into what became Pilot Project #1 in May 2014.

[47] In September 2014, Pilot Project #2 was implemented offer to pay for delivery of the questionnaires to on-reserve residents. She was also involved in the thinking behind the initiation of Pilot Project #3.

[48] Following the first letter sent, Ms. Loohuizen then followed up with all band chiefs, as per Pilot Project #1. The letter included the offer to compensate for preparation of the list, and an assurance that all lists would be kept confidential. She subsequently followed up with multiple calls to the band chiefs. Four of the twelve communities responded to the offer made in Pilot Project #1. Ms. Loohuizen stated that it was difficult to reach the chiefs. In some cases, for example, Fort William First Nation, bands said they could not share the lists because of privacy concerns. In those cases, Ms. Loohuizen spoke to them of the AANDC memorandum that releasing lists in the band’s possession did not violate privacy concerns in the Privacy Act.

[49] With respect to the lists used, Ms. Loohuizen testified that of the twelve bands for which she had lists, eight of the band lists were less than four years old. In each case she had a list, she updated it from information she received from various sources. She contrasted that with the situation in Kokopenace trial in 2008, where she had few lists, and many were over seven years old.

[50] She further testified that after the Court of Appeal evidence heard in Kokopenace, she changed from using Statscan dates as to the number of people living on-reserve, to figures supplied by AANDC, which she found to be much more reliable. Her evidence then, is that using Pilot Project #4, the number of questionnaires to be sent out was increased by 30%.

[51] Ms. Loohuizen was asked about her knowledge of the use of General Delivery as an address for the delivery of juror questionnaires. She is aware that some communities have box numbers, but the band council does not keep a record of who has what box. She has attended at the post office on reserves where they have only General Delivery, and has been told by the clerk that they ‘know everybody and know where to put it’. She has also been advised that in some communities, mail is held at the band office, or post office, and notices are posted in the band office as to who has mail.

[52] Ms. Loohuizen testified that after using the more accurate AANDC figures, applying information for previous years as to the number of questionnaires sent, comparing population figures she had from local information against AANDC data, she determined that there were 3,246 people living on reserve. After applying the random selection process, and increasing the number by 30%, the calculation demonstrated that 206 questionnaires should be sent. As a result of Pilot Project #3 – second mail out – the actual number sent was 235.

[53] Ms. Loohuizen testified as to Pilot Project #3, the follow-up to every RPO. Previously, if a reserve showed a high percentage of RPOs, the band office only would be contacted in a general sense. Her evidence is that for the 2015 roll every undelivered RPO was called for the four communities which had provided lists, and in those cases a replacement questionnaire was sent out. For the others, the chief was called and if it was found that the person was not living on-reserve, a new name was randomly selected as a replacement. Lists were updated where assistance was provided by the band. Fort William First Nation provided no assistance in the Pilot Projects.

[54] Ms. Loohuizen testified as to various outreach efforts she had made, including attending at Grand Council Treaty #3, advertising in the local Aboriginal media on three occasions over a six week period, and in-person meetings with band councillors on some reserves where their invitations to attend were accepted. On one occasion, she attended at a meeting with the chief and band leaders at a community on eight hour drive from Kenora. In total, Ms. Loohuizen documented 286 different efforts to reach out to the various bands, in writing, by phone calls, or email. She received 22 responses.

[55] With specific reference to Fort William First Nation, she made numerous calls and emails with no response. She contacted her Director in Thunder Bay who called, and did receive a call back. Forty-nine questionnaires were sent to Fort William First Nation, addressed to the band office. Despite the attempts in follow up asking for assistance in both lists, and then delivery, all forty-nine were returned. In addition to the attempts to enlist assistance from the band office, she attempted to use the phone book and on-line resources to obtain mailing addresses. Only one address was found.

[56] In summary, she described the efforts she made which were new for the 2015 jury roll as follows: creation of her new position as Aboriginal Jury Coordinator; the implementation and use of the Pilot Projects related to both obtaining lists and delivery of questionnaires; using new and higher population numbers reflecting previous numbers reflecting previous numbers and local knowledge; increased staff training; amendments to Chapter 7 of the Jury Manual to instruct staff on procedures; and the use of media and posters sent to band offices explaining the role of jurors and the importance of returning questionnaires.

[57] In cross-examination, she acknowledged that she had not dealt with the jury roll in Thunder Bay prior to the preparation of the 2015 roll. She saw little of what had happened in previous years. She discussed the previous procedures with the Manager and Supervisor of Court Operations. She read the judgment in Wabason #1, but not the transcripts. She began her fresh efforts in July 2014.

[58] She stated that the process she followed is “night and day” from what was done in Wabason #1. There is much greater corporate involvement. Greater emphasis has been placed on attempting to obtain lists. She has a greater knowledge of the types of lists which exist, the residence codes used in some lists, the importance of using lists that show only on-reserve, or distinguish between members living on/off reserve. She is aware of the distinction between s. 10 and s. 11 bands, and who controls the lists for each type of band. Her evidence is that she had the same results using both types, so saw no need to differentiate.

[59] She acknowledged that even if she received assistance in receiving a list from the bands, Fort William First Nation in particular, delivery was still required.

[60] When asked specifically about how she sought assistance from the bands for the preparation of this jury roll, she stated that: she requested the band list suitable for jury preparation; she followed up on those requests; she sought advice for delivery for the names on lists she had, or was able to obtain; she asked if General Delivery was the most effective manner of delivery; she advised the bands of the offer for compensation; and she followed up on every RPO to attempt delivery.

[61] She also used the Wawatay Aboriginal newspaper for purposes of providing information directly to individuals. She provided a 1-800 number directly to herself for the purpose of providing information to individuals who called.

[62] For each RPO, she contacted the band directly for any assistance which could be given. She acknowledged that some reserves may have streets with names, different ways to access the reserve, and different ways of postal access, by box office, actual post office building (or part of).

[63] Ms. Loohuizen’s evidence is that when she was able to ascertain a person had moved off the reserve, or was deceased, or otherwise not resident, she used the randomizer process to replace that name and set out a replacement questionnaire to the selected person.

[64] She was cross-examined on the efforts made in each of the reserves in the District. I do not propose to review in detail the evidence relating to the nature of the list used, or the efforts made to effect delivery in each case. The efforts she described apply to all the bands. It is sufficient for me to note that in some cases, the band councils offered assistance, both in providing information for the list, and for delivery. The lists were different. Some were electoral lists, some INAC lists provided by the band, some self-generated within the band. Three bands provided Indian Registration Lists. The lists were not necessarily up-to-date. Ms. Loohuizen then made inquiries to update the information.

[65] Much emphasis in cross-examination was focused on Fort William First Nation, situate within the City of Thunder Bay. It is the largest of the communities, and Ms. Loohuizen took no issue with the fact that 25% of the total on-reserve residents in the District of Thunder Bay live there, including members of other bands. The RPO rate for this community was 100%, and had been for the previous two years’ jury rolls. Ms. Loohuizen was not made aware of that. She testified that she had discussion with the local staff in Thunder Bay, and knew that there are streets and address numbers in this community. She ‘believed’, but could not confirm, that she contacted the band office before the first mail out requesting a band list and advice as to mailing the questionnaires. She was told they were unable to share band information. The questionnaires were sent care of the band office, as had been done previously. Follow-up requests, including the offers in Pilot Projects were not responded to. Telephone book and Canada 411 searches were conducted to see if a particular person lived on reserve or not. Either no address was found or she could not confirm it was the same person.

[66] She was cross-examined on potential use of information contained on drivers’ licences. She was aware that such a licence had the address, requirement to notify of a change of address, and a requirement to update the license every five years. She was aware that a Private Investigator could get information from the Ministry of Transportation. She was examined on the fact that Exhibit F-24, affidavits of Greg Hutchison and Elizabeth Smith, state that by using Canada Post Internet search, addresses and postal codes could be determined. Ms. Loohuizen acknowledged that while the Private Investigator could get confirmation on the address of 34 of 49 individuals, she did not use this as a source. It is of note that the names in Exhibit F-24 are the names that came from the lists that were used to create the jury roll. That information was obtained by court order which required that the personal information, if submitted in evidence, be under seal. She did state that if she had access to MTO records, she could have sent the questionnaires directly to the individuals who had been randomly selected.

[67] The following source lists were used to randomly select names of individuals to receive juror questionnaires for the 12 populated First Nations communities in the District of Thunder Bay. Action taken is noted in the Additional Details section. (Taken from p. 18, Vol. 1 of Affidavit of Laura Loohuizen.)

Band	Title and Year of List	Additional Details
Aroland	2013 INAC Individual Report -includes birth dates and on/off reserve information	-Only names of on-reserve adults used 2014 on-reserve over 18 volunteer list received after first mailout -Cross-referenced and included in RPO replacement mailout -Hand delivery
Biinjitiwaabik Z.A.	2000 C Jury Duty List -includes birth dates	-Chief reviewed recipients at in-person meeting and advised whether selected individuals on/off reserve
Fort William	2005 INAC Individual Report -includes birth dates	-List of Voters born up to 1987 -No on/off reserve column -Off-reserve residents probably included; calculations adjusted accordingly
Ginoogaming (Long Lac):	2014 Community Profile list -individuals 18 and over living on reserve	-List included post office box numbers -Hand delivery
Kiashke Z.A. (Gull Bay)	2011 INAC “Potential Voter’s List -for Posting” -individuals 18 and over	-No on/off reserve column -An on-reserve handwritten list was received in 2013, and cross-references to the 2011 list
Long Lake No. 58	2014 list titled “Ministry of Attorney General, Court Services Division, Long Lake #58 First Nation – On reserve individuals 18 years of age or older” -includes birthdates, on reserve, addresses	-The clerk went door-to-door in the evenings and weekends to gather this information -Hand delivery
Marten Falls (Ogoki Post)	2008 INAC Individual Report. -includes birthdates, on/off reserve column	-Only names of on-reserve adults used.
Ojibways of Pic river (Heron Bay)	2011 INAC “Voter’s List – For Posting” -18 and over	-No on/off reserve column. -Cross-references to 2009 INAC “Voter’s List – Electoral” with on-off reserve column to remove those off-reserve as of 2009.
Pays Plat	2005 INAC “Potential Voter’s List – Electoral” -18 and over, on/off reserve	-Off-reserve individuals crossed off.
Pick Mobert	2013 “Employee Listing – Address” -includes addresses	-Provided with many names already crossed off prior to list being faxed
Red Rock (Lake Helen)	2014 volunteer list -18 and over, on reserve	-Added to 2000 INAC Jury Duty List -2012 volunteer list, 2011 volunteer list, 2013 volunteer list all cross-referenced and also added to 2000 INAC Jury Duty List -Hand delivery
Whitesand	2013 Voter’s List -18 and over	-No on/off reserve column -Off-reserve residents probably included; calculations adjusted accordingly.

[68] Ms. Loohuizen acknowledged that for all her efforts, of the 235 questionnaires sent out, 33 were returned (14%) and 23 were found eligible (9.8%).

Positions of the Parties

Applicant’s Position

[69] It is the Applicant’s position that the state’s efforts for the 2015 Thunder Bay jury roll do not satisfy the constitutional standard set out by the majority of the Supreme Court of Canada in Kokopenace. The Applicant puts forward two key arguments: (1) that the state has not made reasonable efforts to obtain source lists that include the significant on-reserve population in Thunder Bay; and, (2) that the state has not made reasonable efforts to ensure delivery of jury notices to on-reserve individuals. The Applicant submits that the state cannot rely on a policy decision to await the Debwewin Committee Report before proceeding to make changes in both the composition of lists and the delivery of questionnaires.

[70] The thrust of the arguments by the Applicant is that the reasonableness of the efforts made in obtaining source lists must be assessed in light of the knowledge at the time. Therefore, as Ontario knows more now than it knew when compiling the 2008 Kenora jury roll, their efforts were unreasonable. The Applicant states in their factum at para. 57:

The state now has a much greater understanding of what constitutes an appropriate list, of the deficiencies in particular types of lists, of the available methods to obtain these lists, and of the consequences of adopting particular approaches.

[71] The Applicant submits that efforts should be made to receive source lists directly from AANDC, which was formally INAC. Counsel relies on Law Society of Upper Canada v. Canada (Attorney General) (2008), 2008 CanLII 1666 (ON SC), 89 O.R. (3d) 209, and argues that Ontario could have sought a court order so that source lists could continue to be obtained through AANDC.

[72] The Applicant references Kokopenace (S.C.C.), where Justice Moldaver concluded that the record, regarding the 2008 Kenora jury roll, indicated that lists of on-reserve residents could only be obtained from the reserves themselves (para. 117). The Applicant submits that, on the record of this application, two alternative data sources are available: the MTO; and through the Ontario Health Insurance Plan (“OHIP”). Ms. Bristo, in testimony, stated that these options were not available as they would require legislative changes. The Applicant disputes this and argues that information can be obtained from the MTO without legislative changes. They submit this was demonstrated by the Applicant’s ability to obtain addresses through the use of a Private Investigator.

[73] Furthermore, the Applicant relies on the testimony of Ms. Bristo where she stated that CSD was not going forward with the option of obtaining data from OHIP as they are awaiting the implementations from the recommendations of the Iacobucci Report by the Debwewin Committee. The Applicant submits that Ontario is deliberately not choosing to take other options that are available to them out of deference to the First Nations, which is solely a policy decision, rather than upholding their constitutional requirements.

[74] In terms of the quality of lists for the 2015 jury roll, the Applicant submits that four of the twelve lists are substantially out of date, stating they are over six years old. Further, when lists are received from First Nations directly, they are often partial lists and cannot be relied upon as a complete source list.

[75] The Applicant submits that in Kokopeace (S.C.C.), Justice Moldaver did not treat delivery as a separate issue from the lists because the delivery was directly linked to the accuracy of the lists (para. 119). The Applicant distinguishes the 2015 Thunder Bay jury roll by submitting that delivery can be disassociated, specifically in regards to Fort William First Nation. The Applicant argues that CSD sent the jury notices to the band office for a number of reserves, or addressed to General Delivery. Counsel specifically notes delivery to Fort William band office, despite the knowledge that the band explicitly stated they would not send them to their residents. The failure to seek alternative sources for obtaining addresses, such as through the MTO, the Applicants claim is unreasonable.

[76] The Applicant has throughout the submissions placed importance on the policy decision made by the state to defer any significant changes pending the report of the Debwewin Committee. Counsel argues that the policy decision, while it may be a laudable approach, cannot be considered in priority over the accused’s constitutional rights.

Crown’s Position

[77] The Crown submits that Ontario exceeded the reasonable efforts that are required by Kokopenace (S.C.C.). The timing of the creation of the 2015 jury roll is important as it was compiled prior to the release of Kokopenace (S.C.C.). The Crown argues its efforts were created and based on by the Court of Appeal’s decision and as such, were creative and persistent. Furthermore, the Crown submits the efforts that were made were specific to the issues identified by Justice McCartney’s order.

[78] Specifically in regards to the source lists, the Crown relied on its recent changes to demonstrate that its efforts were reasonable. Those efforts being: the creation of the Aboriginal Jury Coordinator position; changes to the Jury Management Manual; increases in training of CSD staff; and the various pilot projects dealing with offering compensation for the preparation of lists, and the delivery of questionnaires.

[79] The Crown recognizes that there are alternative data sources, however, argues that no data source is perfect and there will be no perfect list. Thus, as there would be deficiencies in MTO, OHIP, or even AANDC created lists, it is Ontario’s preference to continue to go directly to the First Nations. Further, a request was made to the Federal Government, and the response was to ask the bands for lists. The Crown disagrees with the Applicant’s submission that they could have sought source lists from AANDC, as AANDC does not have control of membership lists for s. 10 reserves. The Crown takes the position that it is reasonable for Ontario to await any recommendations of the Debwewin Committee as to lists to be used to ensure the cooperative procedure recommended in the Iacobucci Report is respected.

[80] The Crown argues that while four of the twelve lists are dated, every list has been updated throughout the years with the information that CSD receives. Eight of the twelve lists were less than four years old.

[81] In regards to delivery, the Crown submits that the Applicant is focused on a results-based approach, which was specifically rejected by the majority in Kokopenace (S.C.C.). The Crown disputes the Applicant’s submission that the majority decision requires the state to make reasonable efforts to ensure delivery. Ontario relies on the postal delivery system in order to ensure delivery, and the Crown submits that in and of itself should end the inquiry into the reasonableness of their efforts in regard to delivery.

[82] The Crown submits that its efforts with respect to delivery exceeded what was required: by updating the Jury Management Manual; providing the bands with compensation for delivering the questionnaires; monitoring RPO rates; Pilot Project #3 where they followed up on every questionnaire that was RPO; and Pilot Project #4 where CSD sent more questionnaires than required.

[83] In regards to Fort William First Nation, the Crown submits that CSD offered to compensate the band for delivering the questionnaires, which they submit provides the community with a fair opportunity to participate. The Crown relies on Justice Moldaver’s statement at para. 66, “If the state makes reasonable efforts but part of the population is excluded because it declines to participate, the state will nonetheless have met its constitutional obligation.”

Discussion

[84] At the time this application was initiated, the legal framework was that set out by the Ontario Court of Appeal in Kokopenace. Counsel agree that the decision in this case turns on my understanding of whether the reframed test for representativeness set out by the Supreme Court in Kokopenace has been met by the province. From the judgment of Moldaver J., the following can be extracted from paras. 59 – 126:

(3) The Legal Test for Representativeness

(a) The Appropriate Test Focuses on the Process Used to Compile the Jury Roll

59 Representativeness focuses on the adequacy of the jury selection process. It does not require the state to ensure that any particular perspective is represented on the jury roll, nor does it require the state to ensure that its source lists proportionately represent all groups that are eligible for jury duty. It follows that the test to determine whether the state has complied with its representativeness obligation focuses on the process used throughout jury selection as opposed to the ultimate composition of the jury roll.

60 The Court of Appeal concluded that the test is whether the state made reasonable efforts to provide a fair opportunity for groups with distinctive perspectives to participate in the jury process. With respect, I would frame the test differently. Shining the spotlight on “distinctive perspectives” is problematic and, in my view, improperly focuses on who is being included instead of the process for their inclusion. Moreover, it raises thorny questions about what qualifies as a “distinctive perspective” and what characteristics require representation — questions that are not helpful when examining if the process was adequate.

61 As a result, I would reframe the test as follows. To determine if the state has met its representativeness obligation, the question is whether the state provided a fair opportunity for a broad cross-section of society to participate in the jury process. A fair opportunity will have been provided when the state makes reasonable efforts to: (1) compile the jury roll using random selection from lists that draw from a broad cross-section of society, and (2) deliver jury notices to those who have been randomly selected. In other words, it is the act of casting a wide net that ensures representativeness. Representativeness is not about targeting particular groups for inclusion on the jury roll.

63 … Rather, it is the quality of the state’s efforts that will determine if the process is adequate. As the record shows, the compilation of jury rolls is a complex exercise, and many of the factors bearing on the process are not within the state’s control. For example, as I will discuss, Ontario was entirely dependent on cooperation from the First Nations in order to obtain adequate lists of their on-reserve residents. …

66 That said, if the state deliberately excludes a particular subset of the population that is eligible for jury service, it will violate the accused’s right to a representative jury, regardless of the size of the group affected. It is self-evident that the state will not have made reasonable efforts if it deliberately excludes part of the population. Deliberate exclusion undermines the integrity of the justice system and cannot be tolerated. However, if it is a question of unintentional exclusion, it is the quality of the state’s efforts in compiling the jury roll that will determine whether the accused’s right to a representative jury has been respected. If the state makes reasonable efforts but part of the population is excluded because it declines to participate, the state will nonetheless have met its constitutional obligation. …

95 To the extent the low rate of return was caused by problems with the source lists or delivery, Ontario was obliged to make reasonable efforts to address the problem. Such problems are part of the process, and are therefore part of Ontario’s obligation to provide a fair opportunity. However, Ontario was not required to address any and all causes of the low response rates. It was not required to address systemic problems contributing to the reluctance of Aboriginal on-reserve residents to participate in the jury process. …

114 First and most importantly, Ontario’s constitutional obligation does not depend on obtaining perfect lists. The focus is on the efforts to provide an opportunity for participation. As the evidence shows, Ms. Loohuizen’s efforts showed a real awareness of the problem. She did the best she could with the lists she received and made ongoing and escalating efforts over the years to obtain better source lists. …

117 As the record indicates, although Ontario had a great deal of responsibility for the lists, it could only obtain lists of on-reserve residents from the reserves themselves. It had no independent access to this information. Regardless of Ontario’s efforts, if the reserves refused to provide source lists for s. 6(8) purposes, the province had no other way of obtaining them. Laying any and all deficiencies at the province’s feet paints an inaccurate picture. As I have explained, the compilation of source lists is not something over which Ontario had complete control. For that reason, I am of the view that the appropriate test must focus on the state’s efforts, not on whether it succeeded in obtaining updated lists.…

(b) The Delivery

119 …The evidence about mail delivery on reserves indicates that the likelihood of notices reaching the intended recipients was directly linked to the accuracy of the lists. ... The comparatively high number of undeliverable questionnaires must therefore be seen as a symptom of the outdated lists. As I have concluded that the efforts to address the lists were reasonable, I need not address this point further.

120 …Moreover, the post office is not within the province’s control, and the province cannot force individuals to pick up their mail. Like the lists, delivery is not entirely within the province’s control and a reasonable efforts test is all that is required.

121 In this regard, I note that the province did not simply throw up its hands upon learning of the problems with delivery. Rather, it took an aggressive approach.…

126 ... For the purposes of ss. 11(d) and 11(f), the state’s constitutional obligation stops when it has provided a fair opportunity for a broad cross-section of society to participate in the jury process.

[85] The Supreme Court of Canada at paras. 61 of the Supreme Court decision, reframed the “Kokopenace test” and focuses on those parts of the test dealing with lists, and delivery of the jury notices. Counsel have advised that random selection is not an issue in this case. Reasonable efforts is the standard the state is held to.

[86] The test must be applied in light of what is known at the time. I am satisfied that Ontario knew more at the time of preparation of the 2015 roll than the 2014. Ontario’s ‘reasonable efforts’ must be examined in the context that it knows more about the lists, more about its process, and more about delivery issues.

[87] There are three areas in which the Applicant submits that Ontario has failed to make reasonable efforts to achieve representativeness: prioritizing policy preferences over constitutional obligations; failure to make reasonable efforts in relation to source lists; and failure to make reasonable efforts to deliver the questionnaires to those selected, with particular regard to Fort William First Nation.

[88] With respect to the first failure, Ms. Bristo and Ms. Loohuizen both said that with the ongoing work of the Debwewin Committee, in deference to the First Nations governments, they preferred not to act unilaterally but to be respectful and wait for the report of the Committee. Ms. Bristo testified that in order to use MTO data, a change would be necessary. Discussions have taken place regarding the use of OHIP data, however, Ms. Bristo stated she was waiting for the Debwewin Committee recommendations. Justice Moldaver came to the conclusion that, on the facts before him, obtaining records from the bands was the only choice. Alternative avenues for the state to include on-reserve First Nations residents were before the Supreme Court, but were not specifically noted as being necessary to still come within the reasonable efforts test enunciated by Justice Moldaver.

[89] I have considered that the Iacobucci Report identified the clear importance of the partnership with First Nations communities, and that in seeking to resolve those issues, governments should move forward in partnership with First Nations. At para. 29 in Kokopenace (S.C.C.), Justice Moldaver comments:

The Iacobucci Report reveals that the problem with the underrepresentation of on-reserve residents is deep-rooted and multi-faceted, and that it extends well beyond the difficulty of obtaining accurate source lists. It explains that the problem is linked to the long history of Aboriginal estrangement from the justice system and the mistrust of that system that has resulted. …

[90] At para. 22, in Madahbee-Cywink, Justice Code, quoted from the Court of Appeal decision in Kokopenace where Justice LaForme stated:

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.

[91] Justice Code, in Madahbee-Cywink, further stated at para. 55:

… First, the right to a representative jury roll is a qualified right, as explained above. It is not a right to a particular representative result. Rather, it is a right to a fair process. That fair process, in relation to the problem of differential response rates, requires high-level government-to-government consultations that will address the broad underlying systemic causes. That process is ongoing at the present moment. It is true that the process has not yet produced concrete results and it has not had an impact on the 2014 Manitoulin District jury roll. However, the constitutional right at issue in the present Applications is not a right to a particular result in relation to the 2014 jury roll. Rather, it is a right to a process and that process requires the high-level consultations mandated by all three judgments in Kokopenace.

[92] I take from the reading of these excerpts that courts have recognized the importance of ensuring that the jury selection process must serve as “enhancing public confidence” and is one that is “linked to the mistrust of the justice system”. I consider these comments in light of the Applicant’s submission that the state cannot rely on a policy decision to await the Debwewin Report, and rather should make further changes at this time. I am of the view that the comments of the Iacobucci Report, and the above-noted case quotes, recognize the importance of creating, and maintaining, a sense of mutual respect.

[93] I accept Ms. Bristo’s evidence that for the state to act unilaterally has a potentially negative effect on the relationship established within the Committee and between on-reserve bands and the state.

[94] Knowing that considerations were given in the Iacobucci Report to alternative sources of information within the Ontario Government, it is reasonable to await the Debwewin Report.

[95] Ms. Orkin argues that insufficient efforts have been made to obtain lists from Aboriginal Affairs. I do not agree. In response to a request from the Province for assistance, the reply from Aboriginal Affairs was that it would be best to get the lists from the bands themselves. The Province then went no further with that request. I do not accept Ms. Orkin’s argument that the Province could seek a court order to disclose the lists under the Privacy Act. I do not consider it reasonable that the Province should have to resort to a court order in order to obtain names and addresses of anyone who is potentially eligible to sit as a juror.

[96] The Supreme Court has clearly established that the focus on an application of this nature is on the process, and not the ultimate composition of the roll. The evidence establishes a number of significant changes since the decision in Wabason #1, including implementation of the various Pilot Projects, pertaining to both lists and delivery.

[97] I reference Justice Moldaver’s comments at para. 117 of Kokopenace where he states, “Regardless of Ontario’s efforts, if the reserves refused to provide source lists for s. 6(8) purposes, the province had no other way of obtaining them. Laying any and all deficiencies at the province’s feet paints an inaccurate picture.” At para. 119, Justice Moldaver links the issue of delivery directly to the issue of the lists.

[98] In para. 107 of the Supreme Court decision, Justice Moldaver noted that two of the judges in the Ontario Court of Appeal concluded that “Ms. Loohuizen’s attempts to obtain updated lists were persistent and demonstrated a sincere effort to include on-reserve residents”. With respect to the 2014 roll in Thunder Bay, the evidence demonstrates far greater efforts on the part of Ms. Loohuizen than was found to be reasonable in Kokopenace. I note specifically: the offers for compensation in the Pilot Projects, both for lists and delivery; the creation of the position of Aboriginal Jury Coordinator; the changes to s. 7 of the Jury Manual; the changes in letters sent to the chiefs; and the evidence of all the attempts to follow-up; the outreach to the provincial organizations.

[99] In the lists before this court, two are from 2005, including from Fort William. One is an INAC list from 2000. For one, the list is from 2000 but has had updates added to it, and one from 2008. Of the lists used, six were from 2013 and 2014, two were dated 2011, and in 2008, two from 2005 and one dated the year 2000. She references Ms. Loohuizen’s efforts, and follow-up, where she was able to update some of the lists. She notes the RPO follow-up in Pilot Project #3, when every RPO was the subject of follow-up.

[100] I further considered the letters filed as part of Exhibit F-13 between the Ontario Ministry and the Federal Department of AANDC, where AANDC stated lists should be obtained from the bands.

[101] With respect to the MPAC lists that are constitutionally valid for purposes of including off-reserve residents in Ontario, I note the decision of Justice Code in Madahbee-Cywink, at para. 28, where he states:

The Assessment Act enumeration lists used by the Director of Assessment, to obtain names of off-reserve residents, are updated every four years. Accordingly, they are not always current or accurate. there is no suggestion that these off-reserve MPAC lists are constitutionally deficient even though they will not be entirely accurate or current in some years. The four year cycle for updating the lists means that they are reasonably current and accurate, although they are not perfect.

[102] In the Supreme Court, Justice Moldaver commented that delivery was linked to the issue of lists as the likelihood of notices reaching the intended recipients was directly linked to the accuracy of the lists. The evidence of Ms. Bristo is that beginning in 2011, the Province began to track RPO rates reserve-by-reserve, a process not in effect at the time of Kokopenace. The local staff at the time had no way of following up locally with reserves that had a high rate of RPOs. Since tracking on a reserve-by-reserve basis began, the Province has become aware that some of the causes for high RPOs is linked to the accuracy and currency of the lists. To attempt to lower the rate of RPOs on reserve, the Province has instituted a number of efforts, including increasing by a percentage the number of lists set out; the effects to obtain source lists; efforts to get assistance with delivery; and sending out replacement questionnaires.

[103] These efforts are all tied to a list. All require that delivery can actually be effected. No delivery is occurring because the First Nation government will not assist and alternative addressing mechanisms have not been located.

[104] Ms. Orkin specifically focused on Fort William where the bundle of questionnaires is sent to the band office, and the bundle gets returned. She argues that is not linked to any list issue. She has argued that none of initiatives introduced by the province have assisted in addressing that issue. The RPO rate has been 100% in 2013 and 2014, and that was known to local court staff. Counsel submits in the face of the knowledge that for the past three years delivery has not been effected by sending the questionnaires to the band office, and having them all returned as RPOs, greater efforts should have been made to ascertain the correct address, beyond contacting the First Nation government.

[105] Counsel has referred to Exhibit F-24 which contains the affidavit of the private investigator and the information he was able to obtain from MTO. Ms. Orkin submits that Ms. Loohuizen could have carried out the same searches through MTO, instead of relying on searches she made through Canada 411, and contacting the band office repeatedly for assistance.

[106] Ms. Orkin submits that this was a deliberate exclusion, which Justice Moldaver stated in para. 66 of Kokopenace, violates the accused’s rights to a representative jury. She submits that Ms. Bristo, and the local court office, knew that sending the questionnaires to the band office would result in them being returned and did so anyway. She argues that ‘deliberate exclusion’ does not have to be purposeful exclusion. She submits that when the exclusion arises from intentional acts where the consequences are known and they are taken anyway in the fact of an alternative, that qualifies as ‘deliberate exclusion’.

[107] In the alternative, counsel submits that if I do not find this to be deliberate exclusion, it does not satisfy the reasonable efforts test, as the Province chose to prefer to engage with the First Nations. She argues that the impact is significant in this case as Fort William is the largest of the twelve reserves and has one quarter of the population.

[108] I do not agree. In considering the efforts made by Ms. Loohuizen, I can come to no other conclusion than that she used reasonable efforts to include them. Any failure to have the questionnaires delivered to Fort William cannot be categorized either as deliberate, or qualify as “deliberate exclusion”.

[109] For all twelve on-reserve communities, additional efforts were made, and followed up on, to effect delivery. In some of the communities, those efforts were accepted by the bands, including door-to-door hand delivery, and explanation of the questionnaire. If some reserves elected not to participate in the Pilot Projects, that does not bear on the opportunity given to them.

[110] Changes made by the Ministry with regard to the follow upon RPOs, increasing the number of questionnaires to be sent, show significant efforts to effect delivery, efforts which are not undertaken with respect to any follow-up on RPOs for off-reserve residents.

[111] At para. 126 of the Kokopenace decision, Justice Moldaver states: “For the purposes of ss. 11(d) and 11(f), the state’s constitutional obligation stops when it has provided a fair opportunity for a broad cross-section of society to participate in the jury process.”

[112] At para. 66 of Kokopenace Justice Moldaver writes, “If the state makes reasonable efforts but part of the population is excluded because it declines to participate, the state will nonetheless have met its constitutional obligation.”

Conclusion

[113] As may be seen from these reasons, I am not persuaded that the Applicants’ s. 11(d) and 11(f) Charter rights to a representative jury roll have been violated in the preparation of the 2015 jury roll in the District of Thunder Bay. I am satisfied that in all aspects of the process for juror selection, including lists used, the random selection and the delivery of juror questionnaires, the Province has provided a fair opportunity and made reasonable efforts to ensure representativeness, based on the information they had, the additional efforts undertaken, and the sensitivity to the issue of the importance of collaborative efforts with First Nations communities to resolve the issue of potential involvement of residents living on-reserve in the jury process.

[114] This application is dismissed.

___”original signed by”

Mr. Justice T. A. Platana

Released: July 27, 2015

CITATION: R. v. Wabason & R v. Capay, 2015 ONSC 4763

COURT FILE NO.: CR-11-0142 & CR-13-0070

DATE: 2015-07-27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen,

Respondent,

• and -

Shaldon Wabason,

Applicant/Defendant

AND BETWEEN:

Her Majesty The Queen,

Respondent

• and -

Adam Capay,

Applicant/Defendant

REASONS ON KOKOPENACE APPLICATION

Platana J.

Released: July 27, 2015/mls