





CITATION: R. v. Kokopenace, 2011
    ONCA 498

DATE: 20110706


DOCKET: M40198 and M40199 (C49961/C48160)


COURT OF APPEAL FOR ONTARIO


OConnor A.C.J.O. (In Chambers)


BETWEEN:


Her Majesty the Queen


Respondent


and


Clifford Kokopenace


Appellant


AND BETWEEN:


Her
          Majesty the Queen


Respondent


and


Clare
          Spiers


Appellant


Julian N. Falconer and Sunil S. Mathai,
          for the proposed intervener Nishnawbe Aski Nation


Jonathan Rudin and Christina Big
          Canoe, for the proposed interveners, Rhoda & Berenson King (Bushie
          Family) and Elizabeth & Marlene Pierre (Pierre Family)


Michal Fairburn and Deborah
          Calderwood, for the respondent, Her Majesty the Queen


Anthony Moustacalis, for the
          appellant, Clare Spiers


Jessica Orkin, for the appellant,
          Clifford Kokopenace


Heard:
June 29,
          2011


ENDORSEMENT

[1]

Nishnawbe Aski Nation (
NAN)
    and Rhoda & Berenson King (Bushie Family) and Elizabeth & Marlene
    Pierre (Pierre Family) as represented by the Aboriginal Legal Services Toronto
    Inc. (ALST) seek to intervene in these appeals as parties.  The rationale for seeking to be added as
    parties is that both sets of interveners propose to participate in these
    appeals by potentially cross-examining witnesses and tendering evidence.
[2]

I am not prepared to add the applicants as
    parties to these appeals.  These appeals
    are criminal in nature and factually unrelated as they arise from entirely
    separate incidents.  In both cases the
    appellants are appealing their convictions for serious offenses, including murder
    and manslaughter, based on errors alleged to have been made at trial.   The only link between the two appeals is
    that both appellants raise an issue with respect to the manner in which the
    jury panel was selected for their trials.
[3]

The parties to these appeals are the
    appellants and the Crown. In most instances there is no room and to add
    strangers as parties to a criminal appeal.  If simply added as parties, the interveners would, like any other party,
    have the right to seek to introduce new evidence, comment on the merits of the substantive
    grounds of appeal and would have rights of appeal.  In my view, such participation is inappropriate
    and inconsistent with the Canadian system of criminal justice. Indeed, neither
    proposed intervener seeks an opportunity to litigate the substantive issues under
    appeal but both wish to participate only in relation to the issue arising out
    of the jury panel selection process.
[4]

The
    proposed interveners concede that the reason they seek to be added as parties
    arises from this courts common practice of requiring interveners as friends of
    the court to accept the record as it exists and not seek to augment the record.
    They hope to be excused from that condition so that they might participate more
    fully in the development of the record in relation to jury panel issue.
[5]

Intervention,
    whether as an added party or as a friend of the court, may be made subject to
    such conditions as the court deems appropriate. Even if added as a party, an
    intervener may be confined to the existing record and be subject to other
    restrictions imposed as conditions for the granting of intervener status. In
    contrast, an intervener added as a friend of the court may be permitted to
    augment the record in appropriate cases.
[6]

I
    am satisfied that both NAN and the ALST have the experience and resources that
    will enable them to provide assistance to the court in dealing with the issue
    of the jury selection process that arises in these two appeals.  Further, I am satisfied that the
    participation of both sets of proposed interveners should not be limited by the
    usual condition that they be bound by the record as developed by the
    parties.
[7]

While
    this limiting condition will rarely be dispensed with, these proposed
    interveners have demonstrated a basis for permitting more wide-ranging involvement
    in this case. Both appellants supported intervention by the applicants on the
    basis that, amongst other things, they do not individually have the expertise,
    access to information or the resources to fully develop the record. In
    contrast, the proposed interveners have access to information not generally
    available to individual litigants and have the resources to develop an
    appropriate record for use by the court.  In my view, the participation of these
    interveners will be important in assisting the court to have a proper understanding
    of the nature and scope of the jury panel issue raised in these appeals.
[8]

At
    this point I am prepared to allow the applications and order that applicants be
    granted intervener status as friends of the court and direct that their
    involvement will not be subject to the usual blanket limitation that they
    accept the record as it exists. This participation may well include being
    granted the opportunity to cross-examine any witnesses tendered by the Crown
    and developing and introducing other relevant evidence not tendered by the
    parties.  However, I am not prepared, at
    this time, to authorize unfettered participation in the appeals by the
    interveners.
[9]

The
    Crown has not yet produced the record that it proposes to rely upon in relation
    to the jury selection issue in each of these appeals.  That record will be available by the end of
    July and will be provided to both the appellants and the interveners.  At that time, both interveners will be at a
    better position to advise what, if any, witnesses they wish to cross-examine
    and articulate, with some specificity, the type, nature, scope and relevance of
    any evidence that they might wish to tender on the jury selection issue.  At that point I may be approached with a view
    to determining what, if any, limitations will be placed on the scope of the
    interveners participation in these appeals.
[10]

As a result the applicants motions to be added as
    parties to these appeals are dismissed. However both sets of applicants are
    granted intervener status as friends of the court. The motions are otherwise
    adjourned to a date to be fixed in order to consider any conditions in relation
    to the interventions, including the scope or limitations of the interveners involvement
    in developing the record and any ancillary timing or filing issues. There will
    be no costs of this motion.
D. OConnor A.C.J.O.