Jury-Roll Issue Stalls Native Deaths Inquest – Again

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A Coroner’s Inquest that was to begin this fall has again been delayed because of a lack of Native representation on the jury roll in the district.

The inquest was called to examine the deaths of seven young aboriginal students. Over an 11-year period, the teenagers died after leaving their reserves in northern Ontario to attend high school in Thunder Bay.

But the chief coroner recently informed the Provincial Advocate for Children and Youth, and Aboriginal Legal Services of Toronto, that the inquest into the deaths of Reggie Bushie, Jethro Anderson, Jordan Wabasse, Kyle Morriseau, Curran Strang, Robyn Harper, and Paul Panacheese, are on hold, pending a public examination of Thunder Bay’s 2015 jury roll.

That examination is being done with the coroner’s office, First Nation groups, and Ontario’s Ministry of the Attorney General.

Obligation for Jury Representation

The chief coroner’s decision was made in part because of another trial that has been delayed over jury-roll concerns. A judge in the Superior Court of Justice in Thunder Bay ruled in April that a defendant’s Charter rights were breached because the Crown failed to make “reasonable efforts” to meet its obligations regarding First Nation representation on the jury list.

The jury roll issue has stalled 11 other inquests involving the deaths of aboriginal people, and the Supreme Court of Canada will consider the issue in a second-degree murder appeal later this year.

In March, Nishnawbe Aski Nation (NAN) applied for leave to intervene at the Supreme Court in R. v. Kokopenace, a case that will consider the meaning of the state’s obligation to ensure a “representative” jury roll.

The respondent in Kokopenace was convicted of second-degree murder, but a new trial was ordered by the Court of Appeal for Ontario. The Crown appealed that decision.

Spotlight on Jury-Roll Process Across the Justice System

A coroner’s inquest into the deaths of Native students in Northern Ontario brought the issue of jury rolls into focus. It has since led to an independent review and several judicial review requests. Inquest-related decisions have also affected jury trials in the province, of both Native and non-Native defendants.

NAN is a political organization for 49 northern First Nations. It took the province to court in 2009 over questions regarding aboriginal participation on the first Bushie coroner’s jury, effectively halting the inquest. That inquest had expanded to include the other students’ deaths.

In March 2011, the Ontario Court of Appeal found the Ontario coroner’s office was not forthcoming about how the roll was established and that Native families’ requests to find out how the jury was selected were reasonable.

Review, Report, Implementation

Former Supreme Court of Canada Justice Frank Iacobucci headed an independent review of Ontario’s jury roll system after the Bushie Inquest and other cases brought the issue to the province’s attention.

The Attorney General’s office has created an implementation committee, to oversee the Iacobucci Report recommendations. It had its first meeting in June, in Toronto.

Implementation Committee member Erwin Stach is a deputy judge on the Supreme Court of Yukon. A former Superior Court Justice who practised in Northestern Ontario, Justice Stach has said substantive change to the Juries Act in Ontario is long overdue.

“Participation on this committee offers the opportunity of recommending positive changes both large and small, changes that will improve the jury experience for generations still to come,” he said. “Some proposals in the Iacobucci report lend themselves to prompt implementation. Others will require meaningful dialogue with First Nation leaders and other major stakeholders, or more extensive study.”

Devil in the Jury Roll Details

The Director of Assessment and county sheriffs are responsible for compiling an annual jurors list. In practice, the responsibility is delegated to the Provincial Jury Center (PJC) in London, and to local court officials.

Each spring, Court Services staff at each Ontario Superior Court, in consultation with local judges, provide an estimate to the Provincial Jury Centre of the number of jurors they believe will be needed for all jury trials in the upcoming year. The Jury Centre tells the Municipal Property Assessment Corporation (MPAC) how many jurors are needed, and MPAC selects names at random from the list of municipal residents within each county and district.

Section 6(8) of the Juries Act calls for the names of individuals living in First Nations communities to be acquired using any available record, since their names are not included in the MPAC records.

Related cases include: R. v. Kokopenace, 2013 ONCA 389, and R. v. Spiers, 2012 ONCA 798 (CanLII).

The Office of the Chief Coroner investigates approximately 16,000 deaths per year across Ontario. Roughly 6,000 of these cases require an autopsy, performed by a forensic pathologist.
 

    More Information

    Pierre v. McRae, 2011 ONCA 187 (CanLII)
    Jury-roll issue delays inquest; case cited in non-inquest matters.

    R. v. Omstead, 1998 CanLII 14771 (ON SC)
    Outlines the purpose and principles of an inquest.

    Connolly v. Coroner, 2013 ONSC 2874 (CanLII)
    Judicial review, mandamus application for an inquest.

    Speaking for the Dead” – SCOPE article on death investigation in Ontario

    Read the Coroners Act

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