Case Of R V Kokopenace

According to the Canadian Charter of Rights and Freedoms, “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal” (Legislative Services Branch, 2017, para. 11). In the significant Canadian case R. v. Kokopenace, an Aboriginal man was tried by an unfair jury as the community where the trial took place was 25 percent First Nations, however, the jury only included 4 percent of First Nations people (Pinder, 2015). This report will summarize the major facts of the case, court’s decisions, and dissenting opinions of the judges.

Clifford Kokopenace was an Aboriginal man who lived on the Grassy Narrows First Nations reserve

The reason for Kokopenace’s appeal was that his s.11(d) right was breached as the method employed to select the jury roll failed to include the representativeness of on-reserve Aboriginals. Section 11(d) of the Canadian Charter of Rights and Freedoms states any individual charged with an offence has the right to be thought of as innocent until proven guilty and must be tried by a fair court of law (Legislative Services Branch, 2017, para. 11). The Court of Appeal for Ontario debated whether or not the province made an effort to provide Kokopenace with a fair trial such as, offering Aboriginal people the option of participating in the jury roll. The Court decided that Kokopenace’s s.11(d) right was infringed upon as well as the Province did not make a sufficient effort to offer Aboriginal people an opportunity to take part in the jury. When it came to the Supreme Court of Canada, they had an opposing view as compared to the Provincial Court of Appeal. The Supreme Court of Canada consented to Kokopenace’s appeal. Justice Moldaver of the Supreme Court stated that although representativeness is quite a significant attribute of the jury roll, it is rather regulated to a certain extent (Pinder, 2015). The idea of representativeness does not regard every particular type of group to be

Justice Cromwell and Chief Justice McLachlin perceived this case through a distinctive approach as compared to the majority. As an alternative of viewing the trial as a whole, they decided to concentrate on the functions of the jury which include, representing the community, presenting a protective barrier against unfair/harsh laws, and performing as informative means of the criminal justice system (Pinder, 2015). Without these factors, the trial would be deemed as unfair as the jury is viewed as the foundation of the trial and every matter follows accordingly (2015 SCC 28, para. 24). Cromwell and McLachlin stated the only means of exactly determining if the province abided by section 11(d) of the Charter is to evaluate the Province’s conduct considering the situation and how they tried to recognize the problem – if any. The Justices concluded there was an appropriate link relating the Province’s manner and the absence of diverse representation of the jury as stated in the Charter (Pinder,