Manslaughter conviction tossed for exclusion of First Nations on jury

APTN National News
An Aboriginal man convicted of manslaughter has been granted a new trial in what is being described as a landmark decision after the Ontario Court of Appeal ruled First Nations weren’t included in the jury selection pool.

As a result the court found Clifford Kokopenace’s 2008 trial was invalid, as was his subsequent conviction of manslaughter in the stabbing death of a friend on the Grassy Narrows First Nation.

The court found the exclusion of First Nations from the jury roll and the Crown not negotiating with Nishnawbe Aski Nation over the matter violated Kokopenace’s constitutional rights.

“The courts found that the Crown efforts to create a representative jury were willfully inadequate, including finding that the Crown ‘completely ignored’ the process for negotiating with First Nations leadership on addressing the question of exclusion of First Nations from juries,” said lawyer Julian Falconer who represented Nishnawbe Aski Nation as an intervenor on the appeal heard last May.

The court made the ruling in a 2-1 decision Friday and the problem is not with the system Ontario has adopted, but rather with the way the province failed to deal with problems with the process said Jonathan Rudin, program director of Aboriginal Legal Services of Toronto.

“What the majority of the court found was that Ontario’s method of selecting jurors denies Aboriginal people in northern Ontario their right to a fair trial since it does not allow for a First Nations on-reserve residents to be properly represented on jury panels,” said Rudin. “Ensuring the system meaningfully includes First Nations on-reserve residents engages the honour of the Crown.”

Rudin said the decision does not mean that an Aboriginal accused person has to have First Nations on-reserve people on his or her particular jury, but that the larger panel from which jurors are chosen has to be representative.

“This case is of tremendous consequence, because it sets a standard of conduct for government with including First Nations in the justice system,” said Falconer. “This goes to the very root of Aboriginal alienation from the justice system and prescribes the standards that the Crown ought to be meeting and certainly rejects he steps that have been taken to date.”

The court had upheld Kokopenace’s conviction but suspended the ruling pending the outcome of the constitutional challenge.

Nishnawbe Aski Nation Deputy Grand Chief Alvin Fiddler said they’ve been pursing the issue since 2008 when it was learned the Kashechewan Inquest into the deaths of Jamie Goodwin and Ricardo Wesley contained the names of First Nations people from only 14 of NAN’s 49 First Nations on the jury roll.

“We were stonewalled by the government and had to take this to the courts,” said Fiddler. “We are hopeful that the Ontario government will now see that this is the way forward.”

In February, Frank Iacobucci released his report First Nations Representation on Ontario Juries that looked at First Nation representation on Ontario jury rolls. The report came with 17 recommendatiosn.

1 thought on “Manslaughter conviction tossed for exclusion of First Nations on jury

  1. Janet Cutter says:

    thats BS! >: (……..and if a native did that…they’ll fry him…but wen it comes to Caucasus….they just seem too get a slap on the warist….you know what I mean….

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