University of Ottawa
(A substantially similar version of this blog post appears in today's National Post.)
What does it mean to have a right to a representative jury? The Supreme Court of Canada answered that question last week in Kokopenace. Mr. Kokopenace was charged with second degree murder and was convicted of manslaughter by a jury. At the Supreme Court, he argued that he should be granted a new trial because the jury roll (the list of potential jurors) from which his jury was chosen contained very few Aboriginal people – a fact that was easily established on the record before the Court. In a judicial district in which 30 per cent of the population was Aboriginal, only 4 per cent of those on the jury roll were Aboriginal, and no Aboriginal people sat on Mr. Kokopenace’s jury. The representativeness issues were particularly concerning given that Mr. Kokopenace was Aboriginal.
A majority of the Court ruled against Mr. Kokopenace, holding counterintuitively that the fact that the jury roll was not actually representative was irrelevant. Rather, “the state satisfies an accused’s right to a representative jury by providing a fair opportunity for a broad cross-section of society to participate in the jury process.” In a particularly revealing passage, Justice Moldaver suggests that Aboriginal people bear some responsibility for the system’s lack of representativeness, noting that they “[decline] to participate” in large numbers.
The day after Kokopenace was released, the National Post’s Editorial Board lauded the decision, calling it “eminently reasonable and practical.” The Board acknowledged the issues with representativeness, but wrote that it would be “far more likely to undermine public confidence in the justice system… to overturn the verdict of a jury whose competence and fairness had never been impugned” than to grant Mr. Kokopenace a new trial.
The Editorial Board, and more importantly, a majority of the Supreme Court, misses the point. As the dissenters in Kokopenace explain, it has long been understood that the legitimacy of a verdict – especially in a murder trial – rests on the idea that the jury represents “the conscience of the community.” When a portion of the community is not represented on the jury roll, especially one that is subjected to the marginalizing effects of colonialism and racism, that legitimacy evaporates.
While the majority would have us believe that they are simply engaged in the neutral task of interpreting and applying the law, their reading of the constitution is by no means inevitable. On the contrary, in deciding that the government need only try for representativeness to satisfy its constitutional obligations, the majority resists the plain meaning of the right to a representative jury.
But the problems with the decision go much deeper than that. Judges wield enormous power in determining what constitutional rights require of government, and whose interests they protect. By concluding that the right to trial by jury should not be viewed as “a mechanism for repairing the damaged relationship between particular societal groups and our criminal justice system more generally,” the Court gives its institutional stamp of approval to the continued marginalization of Aboriginal people. As Deputy Grand Chief Alvin Fiddler of the Nishnawbe Aski Nation put it in an interview with the CBC, “It’s our community members that are filling those jails. It’s our community members that are interacting with the police, and yet in terms of being part of the justice system, they’re not there.” It is an all-too familiar narrative in a country scarred by the impact of colonialism and injustice. We are accustomed to Aboriginal people being dispossessed.
Of course, constitutional law cannot fix every social problem. No one would suggest as much. But when Courts decide that issues of colonialism and race are irrelevant to constitutional analysis, they undermine the constitution and the Court’s position as a trusted institution. I take modest comfort in the fact that two dissenting justices, Justice Cromwell and Chief Justice McLachlin, give voice to many of the concerns with the majority’s reasoning. But these protestations will be cold comfort to Mr. Kokopenace, whose unrepresentative jury has, by legal sleight of hand, been rendered representative. It will also be cold comfort to every other Aboriginal accused who must now face “justice” in a court system agnostic to whether Aboriginal people are counted as among the accused’s “peers”.
Vanessa MacDonnell is a law professor at the University of Ottawa. She tweets at @vanessa_macd.