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Court overturns manslaughter conviction over lack of aboriginal jurors

A judge’s gavel.

PHOTODISC

Ontario's highest court has urged the province to end years of neglect by ensuring the proper representation of aboriginal people on jury rolls.

The 2-1 decision found that the Ministry of the Attorney-General "completely ignored" its obligation to negotiate a solution to the long-standing problem with aboriginal representatives.

The issue became part of an appeal by a Northern Ontario man, Clifford Kokopenace, who was convicted of manslaughter by a non-aboriginal jury in the 2008 stabbing death of a friend on the Grassy Narrows reserve.

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In its ruling Friday, the Ontario Court of Appeal ordered a new trial for Mr. Kokopenace with a more representative pool of potential jurors.

Alvin Fiddler, Deputy Grand Chief of Nishnawbe Aski Nation, said in a statement that years of "stonewalling" by the province made it necessary for his people to take legal action.

NAN lawyer Julian Falconer called the decision a resounding slap at governmental inaction.

"The court found that the government's efforts to create representative juries relied almost exclusively on a 'junior bureaucrat' who was given neither training nor supervision – and that the government ignored a 'known and worsening problem, year after year,' " Mr. Falconer said.

"The Ontario government has run out of excuses," he said. "It needs to take immediate and urgent steps to repair its relationships with First Nations' governments to address head-on the problem of aboriginal estrangement from the justice system."

Brendan Crawley, a spokesman for the Ministry of the Attorney-General, said it is too early to say whether the province will appeal the decision.

"However, I can tell you that the ministry remains committed to working collaboratively with all First Nations to develop initiatives that will improve First Nations jury participation," he said.

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The case focused on a 2008 jury roll in the Kenora district, which consisted of 699 potential jurors. Residents of aboriginal reserves make up one-third of the area's population, but they accounted for just 4 per cent of the jury roll used to create pools of jurors.

Majority justices Harry Laforme and Stephen Goudge concluded that the province was well aware that fewer and fewer First Nations people had been returning annual jury questionnaires.

The failure to provide representative jury rolls simply added to a sense of alienation many aboriginal people feel toward the justice system, they said. "In this case, what the state knew, or ought to have known, was considerable," the majority said. "What the state did in response was very little."

Lawyers Jonathan Rudin and Christa Big Canoe, who represented Aboriginal Legal Services of Toronto at the appeal, stressed that the decision "is not about the special treatment of aboriginal people."

"The reason the issue arose in the first place is because Ontario chose a method of jury selection that required the province to treat First Nations residents differently than anyone else," they said.

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About the Author
Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More

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