





CITATION: Pierre v. McRae, 2011
          ONCA 187



DATE: 20110310



DOCKET: C51589 and C51590



COURT OF APPEAL FOR ONTARIO



Weiler, Laskin and Sharpe JJ.A.



BETWEEN



Elizabeth Pierre and Marlene Pierre



Applicants (Appellants)



and



Dr. Shelagh McRae, Coroner



Respondent (Respondent)



AND BETWEEN



Nishnawbe
          Aski Nation, Rhoda King and Berenson King



Applicants (Appellants)



and



Dr. David
          Eden, Coroner



Respondent (Respondent)



Jonathan Rudin, for the appellants, Elizabeth Pierre, Marlene
          Pierre, Rhoda King and Berenson King



Julian N. Falconer and Julian K. Roy, for the appellant
          Nishnawbe Aski Nation



Kim Twohig and Michael E. Burke, for the respondents



Suzan E. Fraser, for the intervener Provincial
          Advocate for Children and Youth



Heard: September 21, 2010



On appeal from the orders of the
          Divisional Court (Wilson, Lederman and Swinton JJ.), dated July 22, 2009,
          with reasons by Swinton J. and reported at (2009), 259 O.A.C. 1.



Laskin J.A.:



A.

INTRODUCTION

[1]

In late October 2007, Jacy Pierre, a 27-year-old First
    Nations person, died of a drug overdose in the Thunder Bay District Jail.  At about the same time, Reggie Bushie, a
    15-year-old First Nations youth, drowned in the McIntyre River near Thunder
    Bay.  Inquests into their deaths were
    ordered.

[2]

Before each inquest
began,
the
    families of the deceased raised concerns about whether the jury roll from which coroners juries are
    selected was representative.  The
    families produced compelling affidavit evidence showing that in the
    neighbouring District of Kenora the jury roll had excluded nearly all First
    Nations persons living on a reserve.  Each family

and
    on the Bushie inquest, Nishnawbe Aski Nation (NAN)
[1]


asked the presiding
    coroner to issue a summons to the Director of Court Operations so they could
    find out how the jury roll in the District of Thunder Bay was established.  Both coroners refused to issue a summons.

[3]

The Pierre family and NAN applied for judicial review
    of each coroners decision and a stay of the inquests pending the hearing of
    their applications.  Karakatsanis J.
    refused to stay the Pierre inquest but granted a stay of the Bushie
    inquest.  The Pierre inquest was
    completed in February 2009; the Bushie inquest has yet to be held.  In July 2009, the Divisional Court dismissed
    the applications for judicial review.

[4]

In January 2010, leave to appeal was granted.  The appeals raise three issues.  The critical first issue is whether a coroner
    has jurisdiction to inquire into the representativeness of a jury roll.  Assuming a coroner has this jurisdiction, the
    second issue is whether the families of the deceased and NAN have put forward
    sufficient evidence to warrant the issuance of a summons to the Director of
    Court Operations. Assuming a summons is warranted, the final issue is whether
    this court should order a second inquest into the death of Jacy Pierre.

B.

BACKGROUND

(a)
The inquest into the death of Jacy Pierre

[5]

Jacy
    Pierre was a member of the Fort William First Nation.  In late October 2007, he was being held on
    remand at the Thunder Bay District Jail.  He died there after obtaining and ingesting powdered methadone.

[6]

The
    coroner ordered an inquest into Jacy Pierres death under s. 10(4) of the
Coroners Act
, R.S.O. 1990, c. C 37,
    which directs a coroner to hold an inquest whenever a person dies while an
    inmate at a correctional institution.  Elizabeth and Marlene Pierre (the Pierre family) are the mother and
    grandmother of Jacy Pierre.  They were
    granted standing at the inquest under s. 41(1) of the
Coroners Act
.

[7]

Weeks
    before the inquest started, the Pierre family told the presiding coroner Dr.
Shelagh
    McRae that they had concerns and questions about the jury roll in the District
    of Thunder Bay.  They asked for
    information confirming that First Nations individuals living on reserves were
    included on the jury roll.  The coroners
    counsel told them to get this information from the Attorney Generals office.

[8]

The Pierre family then wrote to a representative
    of the Attorney Generals office, Robert Gordon, the Director of Court
    Operations for the North West Region.  The family asked Mr. Gordon four questions about the jury roll in
    Thunder Bay:

i.

What
    efforts were made by the Sheriff to select names of eligible persons for the
    jury roll that reside on Indian reserves in the Thunder Bay district?

ii.

What
    records were used by the Sheriff to obtain the names of the residents of the
    Indian reserves that exist in the Thunder Bay district?

iii.

How
    many jury questionnaires/notices were sent to First Nation on-reserve
    residents?

iv.

How
    many First Nation individuals from Indian reserves are on the current jury
    roll?

Instead of
    answering these questions, Mr. Gordon told the Pierre family to raise any
    questions or concerns about the Coroners jury with the Coroner or [her] counsel.

[9]

Faced
    with the unwillingness of either the office of the coroner or the Attorney
    General to answer their concerns, the Pierre family asked Dr. McRae to issue a
    summons to Mr. Gordon to attend the inquest before the jury was sworn and speak
    to the validity of the jury roll.  Dr.
    McRae refused to issue a summons.  She said
    that Mr. Gordons evidence was not vital to the purpose of the inquest.

[10]

The
    Pierre family sought to judicially review Dr. McRaes refusal to issue a
    summons and a stay of the inquest until their judicial review application was
    decided.  Although the motion judge found
    that the application raised a serious issue, she nonetheless dismissed the
    motion for a stay because the inquest had already begun by the time the motion
    was argued.

[11]

After
    their stay was denied, the Pierre family withdrew from the inquest and did not
    participate further.  They cited as a
    reason for their withdrawal the failure of the coroner to ensure that
    Aboriginal persons would be represented on the jury.  The inquest began on February 23, 2009 and
    was completed on February 25, 2009.

(b)
The inquest into the death of Reggie Bushie

[12]

Reggie Bushie was from the remote fly-in community of
    Poplar Hill.  He went to Thunder Bay for
    high school because his own community did not have a high school.  While in Thunder Bay, he lived with a family.

[13]

On October 26, 2007, Reggie Bushie went missing.  On November 1, 2007, his body was found in
    the McIntyre River, where he had apparently drowned.  The coroner ordered an inquest into Reggie
    Bushies death under s. 20 of the
Coroners
    Act
, which authorizes the holding of an inquest where doing so would serve
    the public interest.  The inquest will
    examine the circumstances surrounding Reggie Bushies death and how First
    Nations youths are affected when going to school far away from their home
    communities.

[14]

Rhoda and Berenson King (the King family) are the
    mother and step-father of Reggie Bushie.  In December 2008, they wrote to the coroners counsel and questioned whether
    the
Juries Act
,
R.S.O. 1990, c. J.3
had been complied
    with.  The coroners counsel replied,
    expressing her belief that the practices in the District of Thunder Bay
    complied with the
Juries Act
, and her
    confidence that the inquest jury would be representative and impartial.

[15]

In early January 2009, the King family asked the
    coroners counsel to clarify the basis of her belief.  The response was that the coroners counsel
    had obtained information about the jury roll from Mr. Gordon.  The King family was told to contact Mr.
    Gordon directly for any further information about compliance issues.  They did so, but Mr. Gordon refused to
    provide any further information without a summons.

[16]

The King family, supported by NAN, then brought a
    motion asking the coroner, Dr. David Eden, to issue a summons for Mr.
    Gordon.  They wanted Mr. Gordon to testify
    about the preparation of the jury roll.  In support of their motion, they filed an affidavit from a supervisor of
    court operations for the Ministry of the Attorney General in the district of
    Kenora.  The affidavit showed that the
    2008 district of Kenora jury roll was unrepresentative because it had almost
    wholly excluded First Nations persons living on reserves.

[17]

Despite this evidence, Dr. Eden denied the motion, and
    refused to issue a summons.  In his
    ruling, he held that the King family and NAN had not established a reasonably
    held concern about the representativeness and impartiality of the jury.  He also said, I do not believe that a jury
    roll from another judicial district at another time is adequately probative to
    impugn the 2009 Thunder Bay jury roll.

[18]

NAN applied for judicial review of Dr. Edens refusal
    to issue a summons to Mr. Gordon and for a stay pending the determination of
    its application.  On May 29, 2009
    Karakatsanis J. ordered a stay of the inquest proceedings.

(c)       The
    decision of the Divisional Court

[19]

The Divisional Court unanimously held that neither
    coroner erred in refusing to issue a summons to Mr. Gordon.  The court gave three reasons:  first, the coroner had no statutory power to
    review the process for the selection of the jury roll; second, the coroner
    would have had no authority to remedy any problems with the jury roll, should
    they be present; and third, each coroners decision that the evidence
    submitted by the applicants was insufficient to warrant further inquiry was
    deserving of deference.

C.

ANALYSIS

[20]

To
    put the issues in context, I will review briefly the function of a coroners
    inquest, the process for selecting a coroners jury and the importance of a
    representative jury, which lies at the heart of these appeals.

(a)

The function of a coroners inquest

[21]

A
    coroners inquest has two functions:  a
    narrow investigative function and a broader public interest function.  The inquests investigative function is to
    inquire into the circumstances of the death, including answering the five questions
    set out in s. 31(1) of the
Coroners Act
 who the deceased was, and how, when, where and by what means the deceased
    came to his or her death.  The inquests
    public interest function, which is found in s. 31(3) of the Act, is to make
    recommendations directed at avoiding a death in similar circumstances or on any
    matter arising out of the inquest.

[22]

Although
    an inquest jury cannot make findings of legal responsibility, recent case law
    has emphasized the importance of the inquests public interest function in
    exposing systemic failings that cause death.  In
People First of Ontario v.
    Porter, Regional Coroner Niagara
(1991), 5 O.R. (3d) 609 (Div. Ct.),
    reversed on other grounds (1992), 6 O.R. (3d) 289 (C.A.), the Divisional Court
    wrote about this public interest function:

A
    separate and wider function is becoming increasingly significant; the
    vindication of the public interest in the prevention of death by the public
    exposure of conditions that threaten life.  The separate role of the jury in recommending systemic changes to
    prevent death has become more and more important.  The social and preventive function of the
    inquest which focuses on the public interest has become, in some cases, just as
    important as the distinctly separate function of investigating the individual
    facts of individual deaths and the personal roles of individuals involved in
    the death.

(b)

The process for selecting a coroners jury

[23]

Every
    coroners inquest has a jury of five people.  The procedures for selecting a jury are found in the
Juries Act
and the
Coroners Act
, which incorporates by reference specific provisions
    of the
Juries Act
.  In a nutshell, the coroners jury is chosen
    from a list of jurors taken from a jury roll.

[24]

Under
    the
Juries Act
, the sheriff in a
    county or district prepares a jury roll each year.  The jury roll consists of a randomly selected
    group of Canadian citizens resident in the province, who have been sent and who
    have returned a jury service notice.  The
    persons randomly selected to receive jury service notices are taken from
    municipal assessment lists.

[25]

The
    names of First Nations persons living on reserves, however, are not found on
    municipal assessment lists.  Thus, the
Juries Act
prescribes a separate
    procedure for ensuring that First Nations persons on reserves are included on a
    jury roll.  Section 6(8) of the
Juries Act
states:

In
    the selecting of persons for entry in the jury roll in a county or district in
    which an Indian reserve is situate, the sheriff shall select names of eligible
    persons inhabiting the reserve in the same manner as if the reserve were a
    municipality and, for the purpose, the sheriff may obtain the names of
    inhabitants of the reserve from
any
    record available
. [Emphasis added.]

For First
    Nations persons, compliance with s. 6(8) is crucial if they are to be included
    in a jury roll and therefore eligible to serve on an inquest jury.

[26]

Under
    s. 34 of the
Coroners Act
, the
    coroner has the authority to direct the sheriff to provide a list of jurors
    taken from the jury roll.

(1) A coroner may by his or her warrant require the sheriff
    for the area in which an inquest is to be held to provide a list of the names
    of such number of persons as the coroner specifies in the warrant taken from
    the jury roll prepared under the Juries Act.

(2) Upon receipt of the warrant, the sheriff shall
    provide the list containing names of persons in the number specified by the
    coroner, taken from the jury roll prepared under the Juries Act, together with
    their ages, places of residence and occupations.

[27]

Under s. 33(2) of the Act, the coroner directs a
    constable to choose five persons from that list to serve as jurors at an
    inquest:

The coroner shall direct a constable to select from
    the list of names of persons provided under subsection 34(2) five persons who
    in his or her opinion are suitable to serve as jurors at an inquest and the
    constable shall summon them to attend the inquest at the time and place
    appointed

(c)       The
    importance of a representative jury

[28]

To
    function properly, a jury must have two key characteristics:  representativeness and impartiality.  A representative jury is one that corresponds,
    as much as possible, to a cross-section of the larger community.  And a representative jury enhances the
    impartiality of a jury.  In
R. v. Gayle
(2001), 54 O.R. (3d) 36
    (C.A.) at para. 56, Sharpe J.A. discussed the importance of a representative
    jury:

C
anadian law recognizes the importance of a
    representative jury.  The importance of representativeness, along with
    impartiality, was discussed in
R. v. Sherratt
, at p. 525 S.C.R., p. 204
C.C.C.
per LHeureux-Dubé J.: [W]ithout the two
    characteristics of impartiality and representativeness, a jury would be unable
    to perform properly many of the functions that make its existence desirable in
    the first place.  Representativeness was described at p. 525 S.C.R., p.
    204
C.C.C.
as a crucial
    characteristic of juries to which little if any objection can be made. 
    Representativeness was also accepted as an important characteristic of the jury
    in
R. v. Bain
, [1992] 1 S.C.R. 91, 69 C.C.C. (3d) 481 at pp. 159-60
    S.C.R., p. 530 C.C.C., per Stevenson J.  Gonthier J., dissenting in the
    result but not on this point, stated at
p.
    115 S.C.R.,
p. 494
C.C.C.
that [t]he well-informed observer certainly
    knows that a jury should be impartial, representative and competent.  In
Williams
at p. 500
C.C.C.
, McLachlin J.
    described a representative jury pool as one of the safeguards included in the
    s. 11(d) right to a fair trial and impartial jury.  Securing a
    representative jury enhances impartiality and, as this Court stated in
R. v.
    Church of Scientology of Toronto
(1997), 33 O.R. (3d) 65, 116 C.C.C. (3d) 1
    at p. 119 O.R., p. 61 C.C.C. [t]he representative character of the jury also
    furthers important societal or community interests by instilling confidence in
    the criminal justice system and acting as a check against oppression.

[29]

Of
    course, a party with standing at an inquest has no right to insist on a juror that
    is representative of a particular racial, ethnic or linguistic group.  Nonetheless, representativeness in the
    preparation of a jury roll is important, not only for ensuring a properly
    constituted jury, but also for maintaining the publics confidence in a
    coroners inquest and preserving its integrity.  A coroners power to inquire into the impartiality of an individual
    juror  a power the coroner undoubtedly possesses  cannot remedy the
    unrepresentativeness of a roll from which the jurors are chosen.  The representativeness of a jury roll depends
    on compliance with the
Juries Act
,
    and in the present case, on compliance with s. 6(8) of that Act.

First Issue: Does a coroner have jurisdiction
    to inquire into the representativeness of a jury role?

[30]

This
    is the principal issue on these appeals.  The Divisional Court concluded that a coroner has no jurisdiction to
    inquire into how a jury roll is established and, even if a coroner does have
    this jurisdiction, coroners are powerless to grant a remedy for an
    unrepresentative jury roll.  The Attorney
    General supports the Divisional Courts conclusions and
adds
a third prong to its argument:  both s.
    36 of the
Coroners Act
and s. 44 of
    the
Juries Act
cure any failure to
    comply with any statutory requirement concerning the selection of inquest
    jurors.

[31]

I
    do not accept the Attorney Generals position.  Admittedly, a coroners jurisdiction is derived from the
Coroners Act
and the common law rules of
    natural justice.  And while both s. 34(6)
    of the Act and the rules of natural justice give the coroner jurisdiction to
    exclude a potential juror for partiality, there is no express statutory or
    common law authority entitling a coroner to question the representativeness of
    a jury roll.

[32]

The
    legislatures silence, however, does not automatically mean the coroner lacks
    the power to inquire into the representativeness of a jury roll.  The court must examine the
Coroners Act
to determine whether the
    legislature intended the coroner to have this power by necessary
    implication.  A statutory tribunal, such
    as the office of the coroner, has not only those powers expressly granted by its
    enabling statute, but as well, by implication, all the powers needed to
    accomplish its statutory mandate.  Bastarache
    J. affirmed this proposition in
ATCO Gas
    & Pipelines Ltd. v. Alberta (Energy & Utilities Board)
, [2006] 1
    S.C.R. 140 at para. 51:

The
    powers conferred by an enabling statute are construed to include not only those
    expressly granted but also, by implication, all powers which are practically
    necessary for the accomplishment of the object intended to be served by the
    statutory regime created by the legislature.

[33]

The Supreme Court of Canada recently
    re-affirmed this principle in
R. v.
    Cunningham
, [2010] 1 S.C.R. 331. Rothstein J., writing for a unanimous
    court stated at para. 19 that a doctrine of jurisdiction by necessary implication
    [applies] when determining the powers of a statutory tribunal.

[34]

In
ATCO
, the Supreme Court of Canada
    enumerated the circumstances in which the doctrine of jurisdiction by necessary
    implication may be applied:


i.

when the jurisdiction sought is necessary to accomplish
    the objects of the legislative scheme and is essential to the statutory body
    fulfilling its mandate;


ii.

when the enabling act fails to explicitly grant the
    power to accomplish the legislative objective;


iii.

when the mandate of the statutory body is sufficiently
    broad to suggest a legislative intention to implicitly confer jurisdiction;


iv.

when the jurisdiction sought is not one which the statutory
    body has dealt with through use of expressly granted powers, thereby showing an
    absence of necessity; and


v.

when
the legislature did not
    address its mind to the issue and decide against conferring the power to the statutory
    body.

[35]

Here,
    the first circumstance listed in
ATCO
applies.  Coroners have jurisdiction to
    inquire into the representativeness of a jury roll by necessary implication, in
    order to fulfill their statutory mandate.

[36]

I
    agree with the appellants that this necessarily implied jurisdiction rests both
    in ss. 34(1) and 33(2), and in s. 50(1) of the
Coroners Act
.  That it does
    so is evident from examining the coroners statutory mandate and the purpose of
    these provisions.

[37]

The
Coroners Act
confers on a coroner the
    statutory mandate to preside over an inquest.  This mandate includes the legal duty to arrange for an inquest
    jury.  Sections 34(1) and 33(2) of the
    Act give the coroner the power to satisfy this part of the coroners
    mandate.  Section 34(1) gives the coroner
    the power, by warrant, to require the sheriff to produce a list of potential
    jurors taken from the jury roll prepared under the
Juries Act
.  Section 33(2)
    gives the coroner the power to direct a constable to choose from that list five
    persons suitable to serve as jurors at an inquest.

[38]

The
    coroners mandate to arrange for an inquest jury must necessarily include the
    power to ensure that the jury is lawfully constituted.  A lawfully constituted jury is one that is
    representative and impartial.  To be
    representative and impartial the jurors must initially be chosen from a jury
    roll that complies with the
Juries Act
 in other words, from a jury roll that is representative.  Thus, to fulfill the mandate conferred by the
    Act, a coroner has the necessarily implied jurisdiction to inquire into the
    representativeness of a jury roll from which an inquest jury is chosen.

[39]

Section
    50(1) of the
Coroners Act
give a
    coroner the authority to prevent abuse of an inquests processes:

A coroner may make such orders or give such
    directions at an inquest as the coroner considers proper to prevent abuse of
    its processes.

[40]

A
    coroners jurisdiction to control an inquest to prevent an abuse of process is
    not open ended.  It must be exercised
    within the limits and objects of the
Coroners
    Act
.  Still, it is a broad and
    flexible jurisdiction.  It can be
    exercised to prevent an inquest that is unfair or unjust, or an inquest in
    which the public would lose confidence:  see,
    for example,
Toronto (City) v. C.U.P.E.,
    Local 79
, [2003] 3 S.C.R. 77 at para. 37; and
Booth v. Huxter
(1994), 16 O.R. (3d) 528 (Div. Ct.) per Moldaver J.
    stating at p. 542 that, in circumstances which could undermine the public
    confidence in the administration of justice and the integrity of the process,
    the coroner should be able to act under s. 50(1) [of the
Coroners Act
] to cure the defect.

[41]

An
    inquest into the death of a First Nations person that is adjudicated by a jury
    chosen from a jury roll that excludes First Nations persons on reserves would
    not, in my view, be seen as a fair and just inquest or an inquest in which the
    public would have confidence.  It would
    amount to an abuse of process within s. 50(1) of the Act.

[42]

Again,
    therefore, in order to fulfill the coroners statutory mandate to prevent an
    abuse of process at an inquest, the coroner, by necessary implication, has the
    jurisdiction to inquire into the representativeness of a jury roll.

[43]

That
    brings me to the question of remedy.  Both the Divisional Court and the Attorney General maintain that, even
    if the coroner has jurisdiction to inquire into the representativeness of a
    jury roll and even if, for example, evidence were presented to the coroner
    showing that the jury roll was likely unrepresentative, there is nothing the
    coroner can do about it.

[44]

The
    Divisional Court suggested that the appellants could challenge the jury roll by
    an application under the
Charter
.  In oral argument, the Attorney General
    suggested that the appellants could seek declaratory relief in the Superior
    Court.  Both suggestions are unattractive
    because they would require the appellants to go outside of the inquest.  The question remains, however, whether a
    coroner has the jurisdiction to make an order remedying a juror list drawn from
    an unrepresentative jury roll.

[45]

In
    one sense, as the appellants argue, the question is premature.  All the appellants have asked for is an order
    requiring each coroner to issue a summons to Mr. Gordon.  If the summons is issued, then depending on
    Mr. Gordons evidence, a further remedial order may be unnecessary.

[46]

In
    another sense, however, the question of a remedy is a live question.  To ask the coroner to inquire into the
    representativeness of the jury roll when the coroner can do nothing about an
    unrepresentative roll would delay the inquest with arguably little
    corresponding benefit.

[47]

Yet,
    it seems to me that a coroner does have remedial authority to address concerns
    about an unrepresentative jury roll.  For
    example, suppose the list of jurors the sheriff is required to produce under s.
    34(1) of the
Coroners Act
reflects a
    jury roll that does not comply with s. 6(8) of the
Juries Act
.  In that case,
    the coroner could say that the list has not been taken from a jury roll that
    complies with s. 6(8) and could order the sheriff to produce a list of jurors
    from a proper jury roll.  At least to
    that extent, a remedy is available to rectify an unrepresentative jury roll.

[48]

That
    takes me to the curative provisions of the statutes, s. 36 of the
Coroners Act
and s. 44 of the
Juries Act
on which the Attorney General
    relies:

36.  The
    omission to observe any of the provisions of this Act or the regulations
    respecting the eligibility and selection of jurors is not a ground for
    impeaching or quashing a verdict.

44. (1) The omission to observe any of the
    provisions of this Act respecting the eligibility, selection, balloting and
    distribution of jurors, the preparation of the jury roll or the drafting of panels
    from the jury roll is not a ground for impeaching or quashing a verdict or
    judgment in any action.

44. (2) Subject to sections 32 and 34, a jury panel
    returned by the sheriff for the purposes of this Act shall be deemed to be
    properly selected for the purposes of the service of the jurors in any matter
    or proceeding.
[2]

[49]

The
    Attorney General submits that these provisions entitle a coroner to accept as
    properly selected the list of jurors taken from a jury roll.  In short, these provisions would cure any
    list that is defective because it was drawn from an unrepresentative jury
    roll.

[50]

I
    do not accept this submission.  These
    curative provisions are designed to relieve against minor or technical
    deficiencies, or procedural irregularities in the selection of jurors.  They are not intended to relieve against something
    as fundamental as an unrepresentative jury roll.

[51]

Representativeness
    is a key characteristic of a jury, a characteristic that enhances the
    likelihood of the other key characteristic of a jury, its impartiality.  It is a substantive and not merely a
    technical requirement for the proper functioning of a jury.  Thus, neither s. 44 of the
Juries Act
nor s. 36 of the
Coroners Act
can cure an
    unrepresentative jury roll.  And they certainly
    cannot be used to cure a roll that reflects the systemic discrimination or
    exclusion of First Nations persons.

[52]

The
    Supreme Court of Canadas judgment in
R.
    v. Barrow
, [1987] 2 S.C.R. 694, supports this position.  There, the Supreme Court dealt with the curative
    provisions in the
Criminal Code
relating
    to deficiencies in the jury selection process. Section 598(a), now s. 670(a), read
    as follows:

Judgment
    shall not be stayed or reversed after verdict upon an indictment

(a)
by
reason of any irregularity in the summoning or
    empanelling of the jury

Section 599, now
    s. 671, included language as broad as that of s. 44(1) of the
Juries Act
:

599.
    No omission to observe the directions contained in any Act with respect to the
    qualification, selection, balloting or distribution of jurors, the preparation
    of the jurors book, the selecting of jury lists, or the drafting of panels
    from the jury lists, is a ground for impeaching or quashing a verdict rendered
    in criminal proceedings.

[53]

According
    to the majority in
Barrow
, at paras.
    37-38, [t]he import of these two provisions is that an irregularity of form
    which does not affect the substance of a trial cannot be used to challenge the
    result.  In the case before the court,
    these provisions were of no assistance and did not apply because the omission complained
    of was not an irregularity of form. It [cast] into doubt two of the most basic
    aspects of a fair trial, the impartiality of the jury and the appearance of
    justice.

[54]

Likewise
    in this case, an unrepresentative jury is not an irregularity of form it is a
    matter of substance.  An
    unrepresentative jury roll casts into doubt the publics confidence in the
    impartiality of the jury and the fairness of the inquest.  It compromises the very appearance of
    justice.  The words of Dickson C.J.C. in
Barrow
, at para. 33, are apt:

The
    argument of the Crown in this appeal does not address what may be the most
    important aspect of the case, namely, the appearance of justice.  Even if the two-stage analysis of the
    empanelling process is a legally accurate description of the interplay of the
Criminal Code
and the Nova Scotia
Juries Act
, it leaves out of account the
    effect of the proceedings in this case as they would appear to the average
    citizen

Consistent
    with
Barrow
, neither s. 36 of the
Coroners Act
nor s. 44 of the
Juries Act
can cure a list drawn from a
    jury roll that almost wholly excludes First Nations persons.

[55]

I
    add that, historically, curative provisions such as the ones considered by the
    court in
Barrow
have been construed
    narrowly: see e.g.
R. v. Butler
(1984), 63 C.C.C. (3d) 243 (B.C.C.A.), at p. 261;
R. v. Varga
(1985), 18 C.C.C. (3d) 281 (Ont. C.A.), at pp. 287-288
    and
R. v. Rowbotham
(1988), 41 C.C.C.
    (3d) 1 (Ont. C.A.), at p. 33. This court has also construed s. 44(1) of the
Juries Act
narrowly:
Hrup v. Cipollone
(1994), 19 O.R. (3d)
    715 (C.A.), at pp. 718-719.

[56]

Thus,
    s. 36 of the
Coroners Act
and s. 44
    of the
Juries Act
must be interpreted
    to apply only to technical or procedural irregularities in the eligibility and
    selection of jurors, the preparation of the jury roll and the drafting of
    panels from the jury roll, and not to a requirement as fundamental as the
    representativeness of an inquest jury.  I
    conclude that the coroner has the jurisdiction to inquire into the representativeness
    of the jury roll and to remedy a list drawn from an unrepresentative roll.

Second Issue: Have the appellants put forward
    sufficient evidence to warrant the issuance of a summons?

[57]

Section
    40(1) of the
Coroners Act
give a
    coroner authority to issue a summons:

A coroner may require any person by summons,

(a)
to
give
    evidence on oath or affirmation at an inquest; and

(b)
to
produce
    in evidence at an inquest documents and things specified by the coroner,

relevant
to the
    subject-matter of the inquest and admissible.

[58]

To obtain an order requiring each coroner to issue a
    summons to Mr. Gordon, the appellants must show two things:  first, a nexus between the expected evidence
    of Mr. Gordon and the purpose of the inquest:  see
Reid v. Wigle
(1980), 29
    O.R. (2d) 633 (Div. Ct.); and second, sufficient evidence to justify a further
    inquiry into the alleged lack of representativeness of the jury roll in the
    District of Thunder Bay.

[59]

The appellants meet the first requirement.  The Attorney General accepts that Mr. Gordon was
    the most knowledgeable person within the Ministry to testify about the
    establishment of the jury roll in the District of Thunder Bay.  Moreover, on my view of the coroners
    jurisdiction, an inquiry into the representativeness of the jury roll is
    relevant to the purpose of the inquest.

[60]

The purpose of the inquest  to examine the
    circumstances of the death and make recommendations to avoid similar deaths in
    the future  cannot be satisfied with a jury selected from a jury roll that was
    not established in accordance with the requirements of the
Juries Act
.  With an
    unrepresentative jury roll, the inquest jury cannot be seen to represent  as
    far as possible and appropriate  the larger community, and its impartiality is
    undermined.

[61]

In short, without the two characteristics of
    representativeness and the impartiality, a jury cannot perform, in an
    acceptable way, the functions that make  juries desirable in the first place:  see
R.
    v. Sherratt
[1991], 1 S.C.R. 509 at 525.  The appellants have thus shown a nexus between the evidence of Mr.
    Gordon and the purpose of the inquest.

[62]

The important question on this branch of the appeals is
    whether the appellants have met the second requirement.  Have they put forward sufficient evidence to
    justify an inquiry into the representativeness of the jury roll?  Each coroner found that the families of the deceased
    and NAN had not put forward adequate evidence.  The Divisional Court held that their findings were entitled to
    deference.

[63]

I agree that the coroners findings are entitled to
    deference.  If those findings were
    reasonable, I would not interfere with them.  However, respectfully, I consider each finding to be unreasonable.  In saying that, I do not think it is
    necessary to specify the evidentiary threshold needed to justify a further
    inquiry.  Even if strong evidence were
    needed, as I view the record, the appellants have put forward a strong case for
    further inquiry into the representativeness of the jury roll in the District of
    Thunder Bay.

[64]

The appellants case consists principally of three
    items of evidence:  the decision of the
    Federal Department of Indian and Northern Affairs (INAC), taken a decade ago,
    to cease providing band electoral lists to the Provincial Jury Centre; the
    state of the jury roll in the District of Kenora in the aftermath of INACs
    decision; and the unwillingness of either Mr. Gordon or coroners counsel to be
    forthcoming about whether First Nations persons living on reserves were
    included on the jury roll from which the inquest juries were to be chosen.

[65]

Up until 2000, INAC provided the names of First Nations
    persons living on reserves by sending band electoral lists to the Provincial Jury
    Centre.  The Centre is responsible for
    sending jury questionnaires to all Ontario residents, including First Nations
    persons.  Thus, the band electoral lists played
    a central role in ensuring that First Nations persons on reserves were included
    in the County or District jury rolls.  They enabled sheriffs to fulfill their statutory obligation under s.
    6(8) of the
Juries Act
to select
    names of eligible persons inhabiting the reserve in the same manner as if the
    reserve were a municipality.

[66]

In 2000, however, INAC stopped sending these band
    electoral lists to the Centre.  The
    material before us does not disclose why the federal department stopped this
    practice.  Whatever the reason, without
    these lists, the Centre did not have an accurate, up-to-date record of the
    names of on-reserve First Nations persons.  Therefore, to meet their obligation under s. 6(8) of the
Juries Act
to create representative jury
    rolls that included First Nations persons, court officials had to find the
    names of persons on reserves form other available records.

[67]

The families of Jacy Pierre and Reggie Bushie together
    with NAN expressed to the coroners their concerns that court officials had not sought
    other available records to ensure a representative jury roll.  Their concerns were entirely reasonable in
    the light of what had happened in the neighbouring District of Kenora.  There, in 2006, a First Nations person from the
    Kashechewan community died and an inquest was ordered into his death.  Rolanda Peacock, Mr. Gordons counterpart in
    the District of Kenora, filed an affidavit in connection with that inquest.  Her affidavit is included in the record for
    the two appeals before us.

[68]

Ms. Peacocks affidavit shows that court officials did
    very little to obtain other records and, as a result, the District of Kenora
    jury roll was manifestly unrepresentative.  Her affidavit documents the following:

·

As INAC no longer supplied up to date band
    electoral lists, court officials tried to obtain band lists directly from First
    Nations reserves within the district.  In
    August 2006, they faxed a letter to the chiefs of 42 of the 45 First Nations
    communities in the District of Kenora, requesting up to date band lists.  Only four of the 42 communities
    responded.

·

In 2007, court officials traveled to 14 remote
    First Nations communities in the District of Kenora.  Their efforts produced only eight more band
    electoral lists.

·

In 2006 and 2007 the District of Kenora jury
    roll was based on jury questionnaires sent to 1,200 persons living in
    municipalities and 484 First Nations persons living on reserves.  The rate of return from persons living in
    municipalities was 66 per cent in 2006 and 56 per cent in 2007.  The corresponding rate of return from First
    Nations persons on reserves was 10.72 per cent and 7.83 per cent.

·

Of a population of over 12,000 First Nations
    persons living on reserves in the District of Kenora, only 44 were listed on
    the 2007 jury roll.

·

Although the inquest concerned the death of a
    First Nations person from Kashechewan, not a single person from that community
    was included on the District of Kenora jury roll.

[69]

Ms. Peacocks affidavit shows that much more needed to
    be done to produce a representative jury roll in the District of Kenora.  The annual roll in the years after INAC
    stopped sending band electoral lists to the Provincial Jury Centre almost
    entirely excluded First Nations persons living on reserves.

[70]

Nonetheless, Dr. Eden took the position that what
    occurred in the District of Kenora was not adequately probative of the
    representativeness of the jury roll in the District of Thunder Bay.  I cannot agree with his assessment.  Nor do I find reassuring the bald assertion
    of the coroners counsel in the Bushie inquest that the practices in the
    District of Thunder Bay complied with the
Juries
    Act
.

[71]

There is no reason to think that the
    unrepresentativeness of the jury roll in the District of Kenora is unique.  After 2000, the Provincial Jury Centre no
    longer received band electoral lists for the reserves in the District of
    Thunder Bay.  No evidence was produced in
    connection with either inquest that court officials in the District of Thunder
    Bay had made any greater efforts than their counterparts in the District of
    Kenora to obtain up-to-date band lists.

[72]

My concern about the representativeness of the jury
    roll in the District of Thunder Bay is fuelled by the unwillingness of either
    the coroners or Mr. Gordon to be forthcoming about how the roll was
    established.  The Pierre family and the
    King family requested information about the records used to obtain the names of
    First Nations persons on reserves, the number of jury questionnaire sent to
    on-reserve residents, and the number of First Nations persons on the jury roll
    from which inquest jurors are chosen (see for example the letter reproduced at
    para. 8 of these reasons).  Their request
    for this information was quite reasonable.  But they did not get any answers.  Instead, they got the run around.  A lot of time and money might have been saved had the Ministry and the
    coroners simply provided this information.

[73]

INACs decision to stop sending band electoral lists to
    the Provincial Jury Centre, the unrepresentativeness of the recent jury rolls
    in the District of Kenora and the unwillingness of Mr. Gordon and the coroners
    to provide information about the jury roll in the District of Thunder Bay make
    out a strong case for summonsing Mr. Gordon.  I would order that a summons be issued to him (or the current occupant
    of his position) to appear at the Bushie inquest and testify about the
    establishment of the jury roll in the District of Thunder Bay, and especially
    about the efforts to comply with s. 6(8) of the
Juries Act
, as well as the result of those efforts.

[74]

As will be evident, since I would order a new inquest
    into the death of Jacy Pierre, I would also order Mr. Gordon (or his successor)
    to appear before that inquest and similarly testify about the establishment of
    the jury roll in the District of Thunder Bay.

Third Issue:  Should this court order a second inquest into the death of Jacy Pierre?

[75]

I would order a new inquest into the death of Jacy
    Pierre.  I would do so for two reasons.

[76]

First, although Karakatsanis J. denied a stay of the
    inquest, she noted at para. 21 of her reasons, that [i]f the application for
    judicial review is successful, a new Inquest may be held.  Indeed, she found that counsel for the Pierre
    family was diligent in pursuing her concerns relating to whether the jury roll
    was representative of the community that includes First Nations.  Only the tight timeframes prevented that
    concern from being resolved before the Jacy Pierre inquest began.  Otherwise, undoubtedly, Karakatsanis J. would
    have stayed this inquest as she did the Reggie Bushie inquest.

[77]

Second, a new inquest is needed to restore the publics
    confidence in the inquiry into the circumstances of Jacy Pierres death.  The first inquest was marred by the
    legitimate concern about the unrepresentativeness of the jury roll and the
    consequent withdrawal of the Pierre family.  The First Nations community, and by extension the public, could have
    little confidence in the impartiality of the jury at that inquest.  Those memorable, even if well-worn, words
    apply here; justice must not only be done, it must be seen to be done.  A new inquest, where the alleged lack of representativeness
    of the jury roll may be fairly considered, is thus necessary.

D.

CONCLUSION

[78]

A coroner has jurisdiction by necessary implication to
    inquire into the representativeness of a jury roll.  The appellants have put forward sufficient
    evidence to justify an inquiry into the representativeness of the jury roll in
    the District of Thunder Bay.

[79]

Therefore, I would allow both appeals, and would grant
    the applications for judicial review.  I
    would also order a new inquest into the death of Jacy Pierre.

[80]

I would order that a summons be issued to Mr. Gordon
    (or his successor) to appear at the Reggie Bushie inquest and the Jacy Pierre
    inquest, and give evidence about the establishment of the jury roll in the
    District of Thunder Bay, and especially about the efforts to comply with s.
    6(8) of the
Juries Act
and the
    results of those efforts.

[81]

The parties may
    make brief written submissions on costs within 15 days of the release of these
    reasons.

RELEASED:  Mar 10,
    2011


JL                                                                                    John
    Laskin J.A.

I
    agree K.M. Weiler J.A.

I
    agree Robert J. Sharpe J.A.





[1]

NAN is
    a political organization representing 49 First Nations communities in Ontario,
    including the community where Reggie Bushie lived.



[2]
Sections
    32 and 34 of the
Juries Act
deal with
    juror challenges.


