



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kokopenace, 2013 ONCA 389

DATE: 20130614

DOCKET: C49961
/C48160

Goudge, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Clifford Kokopenace (C49961)

Appellant

and

Clare
    Spiers (C48160)

Appellant

and

Nishnawbe Aski Nation
Bushie Family and Pierre Family
David Asper Centre for Constitutional Rights

Interveners

Jessica Orkin, Paul Burstein and Delmar Doucette, for
    Clifford Kokopenace

Jessica Orkin and Anthony Moustacalis, for Clare Spiers

Michal Fairburn, Scott Latimer, Gillian Roberts and
    Deborah Calderwood, for the respondent

Jonathan Rudin and Christa Big Canoe, for the Bushie and
    Pierre families

Cheryl Milne and Kent Roach, for the David Asper Centre
    for Constitutional Rights

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

Heard: April 30, May 2-4, 2012

On appeal from the conviction entered on June 17, 2008 by
    Justice Erwin W. Stach of the Superior Court of Justice, sitting with a jury,
    and
the convictions entered on December 3, 2007
    by Justice James Robert MacKinnon of the Superior Court of Justice, sitting
    with a jury.

H.S. LaForme J.A.:

INTRODUCTION

[1]

The appellant Kokopenace was convicted of manslaughter on June 17, 2008,
    in the Superior Court in Kenora. The appellant Spiers was convicted of
    first-degree murder and two counts of kidnapping on December 3, 2007, in the
    Superior Court in Barrie.

[2]

In this court, they each assert that the petit jury that found them
    guilty was derived from a jury roll that, because of the process used to
    prepare it, inadequately ensured representative inclusion of Aboriginal
    on-reserve residents. They argue that this violated their rights under ss.
    11(d), 11(f) and 15 of the
Canadian Charter
    of Rights and Freedoms
, and the
Juries
    Act
, R.S.O. 1990, c. J.3 (the Act). Their petit juries were,
    therefore, improperly constituted. As a result they are entitled to new trials.

[3]

In addition to this jury composition issue, the appellants each raised
    other issues in this court. This panel previously dismissed the other issues
    raised by the appellant Kokopenace: see
R. v. Kokopenace
, 2011 ONCA 536,
    107 O.R. (3d) 189. However for reasons previously released that dealt with the
    jury vetting in his case, this panel allowed the Spiers appeal and ordered a
    new trial: see
R. v. Spiers
, 2012 ONCA 798, 113 O.R. (3d) 1. It is
    therefore unnecessary to address the jury composition issue in that case. The
    reasons that follow therefore address the jury composition issue in the
    Kokopenace appeal only.

BACKGROUND

[4]

The jury selection process in Ontario takes place in three stages. The
    first stage is the preparation of the jury roll of individuals selected from
    the community who are able to serve as jurors. The second stage is the
    selection of names from the jury roll to make up the jury panels for particular
    court sittings. The third stage is the selection from the jury panel of the
    petit jury for a particular criminal jury trial.
[1]

[5]

The
Criminal Code
governs
    the third stage of this process, but looks to provincial legislation to govern
    the first two stages. In Ontario, the Act is that legislation.

[6]

The appellants challenge is to the first stage, namely the preparation
    of the jury roll. The Act provides that a jury roll will be prepared each year
    for each county and district in Ontario by provincial officials. The Act
    requires that, before September 15 each year, the sheriff of the county
    determines the aggregate number of persons required for the jury roll in the
    ensuing year, and the number of notices for jury service required to be sent
    out to achieve that number. It is accepted in this appeal that the county or
    district constitutes the community from which the jury roll will be drawn.

[7]

Pursuant to s. 6(2) of the Act, the Director of Assessment for the Municipal
    Property Assessment Corporation then identifies those to receive the notices by
    randomly selecting them from the names listed on the most recent municipal
    enumeration, provided they are residents of the county or district, Canadian
    citizens and at least 18 years of age. The Director is also required to ensure
    that each municipalitys share of those to receive notices approximately
    reflects that municipalitys share of those in the county or district eligible
    to receive notices.

[8]

However, because the municipal enumeration process does not capture
    those who reside on Indian reserves,
[2]
the Act provides a separate process for including them at this step of the jury
    roll process. The Act permits the sheriff to use any available list of on-reserve
    residents from which to randomly select the names to receive jury service
    notices. Section 6(8), which refers to these reserves as Indian reserves,
    reads as follows:

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.

[9]

Section 6(5) of the Act requires that every person to whom a jury
    service notice is mailed, whether on or off reserve, complete it and return it
    to the sheriff. Section 8(1) mandates the sheriff to prepare the jury roll from
    those persons returning the notices who are eligible for jury service. Section
    18(1) directs the sheriff to use random selection from the jury roll to create
    each jury panel, from which petit juries are then drawn.

[10]

The
    context for this appeal is the preparation of the 2008 jury roll for the
    District of Kenora. It was the jury roll from which the petit jury that tried
    this appellant was derived. The 2008 jury roll consisted of 699 potential
    jurors of whom 29 were on-reserve residents.
[3]
This represents 4.1% of the jury roll.

[11]

In
    geographic terms, the District of Kenora is Ontarios largest. It makes up
    about one-third of Ontarios land mass. The judicial center is the city of Kenora,
    where the Superior Court of Justice sits, and where this appellant was tried.
    There are a large number of Indian reserves in the District, many of them
    remote from the city of Kenora and many accessible only by air. According to
    the 2006 census, the total population of the District was approximately 65,000.
    The on-reserve population is roughly one third of that total.
[4]
Since it is not contested that the
    vast majority of persons residing on reserve are Aboriginal,
[5]
in this appeal I propose to treat Aboriginal on-reserve residents as a proxy
    for on-reserve residents, and vice versa. A failure of representative inclusion
    of one is a failure of representative inclusion of the other.

[12]

The
    particular focus of this appeal is on what was done by Ontario to include
    Aboriginal on-reserve residents in preparing the jury roll. While they were not
    excluded from the jury roll, the question is whether Ontario did enough to
    include them in order to meet the representativeness requirement created by ss.
    11(d) and (f) of the
Charter
.

[13]

Prior to
    his conviction, the appellant did not seek to challenge the representativeness
    of the jury roll from which his petit jury was derived. However, he sought to
    raise the matter on appeal. In light of this courts decision in
Pierre v. McRae, Coroner
,
2011 ONCA 187, 104
    O.R. (3d) 321, Crown counsel agreed that it was not in the interest of justice
    to oppose the representativeness question being raised first on appeal. As a
    consequence, extensive fresh evidence was filed in this court and this question,
    broken down into several issues, was fully argued on appeal. Three parties were
    permitted to intervene, all of whom supported the appellants.

THE LEGAL ISSUES

[14]

The major
    legal issue in this appeal requires the determination of the scope of the
    appellants constitutional right under ss. 11(d) and (f) of the
Charter
to representativeness of the jury
    roll in his case. I will then turn to an assessment of whether, on the facts,
    the state, namely Ontario, violated that right.

[15]

The
    appellant provides one articulation of the constitutional right and the Crown
    provides another. They then each apply that articulation to what was done in
    preparing the jury roll in question, and reach opposite conclusions.

[16]

As a
    corollary, the appellant also says that he accepts the constitutionality of the
    Act provided it is interpreted to reflect
Charter
values. Given this interpretation of the Act, he argues Ontarios
    actions that breach the
Charter
also breach its statutory obligations. He does not argue that if those actions
    are
Charter
-compliant, they
    nonetheless violate the Act.

[17]

While the
    interveners generally support the appellant, the two who speak to this issue,
    the Nishnawbe Aski Nation (NAN)
[6]
and the Bushie and Pierre families, each offer their own articulation of the
    representativeness right.

[18]

For its
    part the Crown defends Ontarios actions as constitutional, but makes clear it
    does not rely, in the alternative, on section 1 of the
Charter
.

[19]

The second
    issue raised by the appellant is that, in any event, what the state did in
    preparing the jury roll constitutes partiality, fraud or wilful misconduct
    under s. 629(1) of the
Criminal Code
.

[20]

Thirdly,
    the appellant argues that the states actions in failing to sufficiently
    include Aboriginal on-reserve residents in the jury roll in his case violates
    s. 15 of the
Charter
. He is
    supported in this by the intervener, the David Asper Centre for Constitutional
    Rights.

[21]

Finally,
    if Ontario did not meet its constitutional obligation, the question of remedy
    must be addressed.

[22]

I propose
    to deal with each of these issues in turn.

The Representativeness Issue: ss. 11(d) and (f) of the
Charter


The law

[23]

Before
    assessing the facts to determine whether the constitutional right to
    representativeness of the appellant was violated, the scope of that right and
    therefore the scope of the corresponding state obligation must be determined.

[24]

The
    provisions engaged by this issue are ss. 11(d) and (f) of the
Charter
. They read as follows:

11.

Any person charged with an offence has the right



(d) to be presumed innocent until proven guilty according to
    law in a fair and public hearing by an independent and impartial tribunal;



(f) except in the case of an offence under military law tried
    before a military tribunal, to the benefit of trial by jury where the maximum
    punishment for the offence is imprisonment for five years or a more severe
    punishment;

[25]

In
R. v. Sherratt
, [1991] 1 S.C.R. 509,
    LHeureux-Dubé J. explained that the representativeness right was an essential
    component of the s. 11(f) right to trial by jury. She said this at 525:

The perceived importance of the jury and the
Charter
right to jury trial is meaningless without some guarantee that it will perform
    its duties impartially and represent, as far as is possible and appropriate in
    the circumstances, the larger community. Indeed, without 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.
Provincial legislation guarantees representativeness, at least in the
    initial array. The random selection process, coupled with the sources from
    which this selection is made, ensures the representativeness of Canadian
    criminal juries
. [Emphasis added.]

[26]

In my
    view, the representativeness right is also sourced in the s. 11(d) right to a
    hearing by an impartial tribunal. Where the tribunal includes a jury, deriving
    that jury from a representative jury roll is an important means of ensuring its
    impartiality. See
R. v. Church of
    Scientology
(1997), 33 O.R. (3d) 65 (C.A.) at 118, leave to appeal
    to S.C.C. refused, [1997] S.C.C.A. No. 683.

[27]

The
    representativeness right guaranteed by these two subsections of the
Charter
must inform the entire process of
    jury selection. Only if the process begins with a properly representative jury
    roll, can the petit jury randomly derived from it have the required element of
    representativeness as described in
Sherratt
.
    In this appeal, it is the appellants right to a representative jury roll, what
    that means, and whether it was achieved that is at stake.

[28]

The
Charter
right to a representative jury
    roll serves several important objectives. First, it is a means of ensuring that
    any petit jury derived from that jury roll is an impartial decision maker. The
    representative character it brings to the jury composition process allows the
    jury to act as the conscience of the community, as LHeureux-Dubé J. said in
Sherratt

at 523. Second, it serves
    to build public knowledge of and trust in the criminal justice system. These
    objectives of impartiality and enhanced public confidence were described by
    Rosenberg J.A. in
Scientology
,
    at 119 this way:

The justification for the representative nature of the jury is
    not simply to assure that the case is tried by an impartial tribunal.  The
    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.  The accused and the community have
    an interest in maintaining the representative character of the jury
    system.  In
Sherratt
, L'Heureux-Dubé J. made several other comments
    concerning the nature of the representative character of the jury.  Thus,
    she stated at p. 524 S.C.R. that the modern jury was not meant to be a tool of
    either the Crown or the defence but rather "was envisioned as a
    representative cross-section of society, honestly and fairly
    chosen".

[29]

The
    central legal issue in this appeal, however, is not the
Charter
roots of the representativeness
    right nor the objectives it serves, but rather the content of the right. On
    this question,
Scientology
is
    the seminal case.

[30]

Rosenberg
    J.A. describes the content of the right in these terms at 120-121:

The right to a representative jury roll is not absolute in the
    sense that the accused is entitled to a roll representative of all of the many
    groups that make up Canadian society. This level of representativeness would be
    impossible to obtain.  There are a number of practical barriers inherent
    in the selection process that make complete representativeness impossible.  The
    roll is selected from a discrete geographical district which itself may or may
    not be representative of the broader Canadian society.

Further, the critical characteristic of impartiality in the
    petit jury is ensured, in part, by the fact that the roll and the panel are
    produced through a random selection process. To require the sheriff to assemble
    a fully representative roll or panel would run counter to the random selection
    process. The sheriff would need to add potential jurors to the roll or panel
    based upon perceived characteristics required for representativeness. The
    selection process would become much more intrusive since the sheriff in order
    to carry out the task of selecting a representative roll would require
    information from potential jurors as to their race, religion, country of origin
    and other characteristics considered essential to achieve representativeness.
    The point of this is not to demonstrate that a jury panel or roll cannot or
    should not be representative, but that the right to a representative panel or
    roll is an inherently qualified one. There cannot be an absolute right to a
    representative panel or roll.

What is required is a process that provides a platform for
    the selection of a competent and impartial petit jury, ensures confidence in
    the jurys verdict, and contributes to the communitys support for the criminal
    justice system
. [Emphasis added.]

[31]

The right
    to a representative jury roll is thus not an absolute right, but an inherently
    qualified one. The right does however require the state to use a jury roll
    process that provides a platform for the selection of a petit jury that serves
    the objectives of impartiality and enhancing public confidence in the criminal
    justice system. Essential to achieving these objectives is that the distinctive
    perspectives that make up the community are provided a fair opportunity to be
    included in the jury roll, and to be brought to the jury function. In this way
    the jury can serve as the conscience of the community as the representativeness
    guarantee requires.

[32]

The
    appellant proposes a three-part test to answer that question. First, a group
    alleged to be excluded from the jury roll, or underrepresented on it, must be
    distinctive in a sense that reflects the purposes of the guarantee. Second, the
    representation of the group on the jury roll must be shown not to be fair and
    reasonable compared to the groups representation in the community served by
    the jury roll. Third, this underrepresentation must be due to or exacerbated by
    factors for which the process used by the state properly bears responsibility.

[33]

The
    interveners phrase their proposed test slightly differently. NAN submits that
    the state fails in its obligation if the process it uses to create the jury
    roll results in systematic exclusion or under-inclusion of Aboriginal
    on-reserve residents, regardless of whether the state can be said to be
    responsible for it. The Bushie and Pierre families agree with that, save only
    that the state may be able to show that it has made all available efforts to
    cure the deficiencies.

[34]

The common
    theme that these parties share is that the representativeness right seeks a
    jury roll that mirrors the make-up of the full community from which it is
    drawn.

[35]

The Crown,
    on the other hand, proposes a quite different answer. It submits that the
    states obligation arises only at the first step of preparing the jury roll,
    namely compiling band lists of Aboriginal on-reserve residents. It must simply
    make reasonable efforts to access and use broad-based lists of potential jurors
    from across the community as the source of the names selected at random to
    receive jury service notices.

[36]

In my view
    none of these tests hit the mark.

[37]

The way
    this court dealt with the facts in
Scientology
sheds light on this aspect of representativeness.

[38]

The jury
    composition issue in
Scientology
was whether the statutory exclusion of non-citizens from the jury selection
    process violated the representativeness obligation of the state.

[39]

This court
    found that it did not. Non-citizens do not share a sufficiently distinctive set
    of perspectives to require their inclusion in the process of creating the jury
    roll. Rosenberg J.A. put it this way at 121-122:

In my view, there is no characteristic that persons bring to
    the fact-finding process of the jury based solely on their immigration status.
    Canadian citizens are of all races, nationalities, ethnic origin, colour,
    religion, sex, age and ability.  Immigration status is simply not a
    relevant characteristic when regard is had to the rationale underlying the
    right to a representative pool. A jury pool selected from Canadian citizens
    represents the larger community for the purposes of trial by jury.

. . .

I hesitate to attempt to articulate an all-inclusive test of
    distinctiveness such as "some immutable characteristic". In my view,
    it is preferable to deal with each case having regard to the purposes of the
    representativeness requirement as set out by L'Heureux-Dubé J. in
Sherratt
.
The essential quality that the representativeness requirement brings to the
    jury function is the possibility of different perspectives from a diverse group
    of persons
. The representativeness requirement seeks to avoid the risk
    that persons with these different perspectives, and who are otherwise
    available, will be systematically excluded from the jury roll.

Exclusion of non-citizens does not infringe the
    representativeness or fair cross-section requirement in this sense. There was
    no evidence that non-citizens as a group share any common thread or basic
    similarity in attitude, ideas or experience that would not be brought to the
    jury process by citizens. [Emphasis added.]

[40]

In this
    case, there can be no doubt about the importance of the Aboriginal on-reserve
    perspectives. Aboriginal on-reserve residents constitute a significant portion
    of the population in the Kenora District, and although all Aboriginal on-reserve
    residents would not necessarily approach their task in the same way, their race,
    their shared heritage and their on-reserve life experiences bring important and
    distinctive perspectives to their jury service. As
Scientology
tells us,
    to be
Charter
-compliant, the states process for preparing the jury roll
    must bring to the petit jury function the possibility of the inclusion of these
    distinctive perspectives.

[41]

This is
    made even more essential by the statutory scheme chosen by Ontario. It uses the
    most recent municipal enumeration for all but Aboriginal on-reserve residents
    in preparing the jury roll. Because of this exclusion, the statutory scheme
    provides s. 6(8) to include Aboriginal on-reserve residents in the process of
    preparing the jury roll. Absent this provision, a process of jury roll
    preparation using only the most recent municipal enumeration would exclude the
    distinctive perspectives of Aboriginal on-reserve residents and would therefore
    not be
Charter
-compliant. Section 6(8) provides a way to avoid such an
    exclusion.

[42]

However
    here the question is not exclusion but whether Ontario has breached its
    constitutional obligation by insufficiently including Aboriginal on-reserve
    residents in the jury roll process. Has Ontario done enough under s. 6(8) to
    provide Aboriginal on-reserve residents with a fair opportunity to have their perspectives
    included that it can be said to have met its representativeness obligation?

[43]

Scientology
demonstrates why the approach
    of the appellant and the interveners is erroneous. It tells us that the answer
    cannot be dictated by the make-up of the jury roll that results from the
    process. The right to a representative jury roll is an inherently qualified
    one. It does not require a jury roll in which each group is represented in
    numbers equivalent to its proportion of the population of the community as a whole.
    As Rosenberg J.A. said, there are practical barriers that render this
    impossible to achieve and the attempt to do so would require undesirably
    invasive inquiries of potential jurors. Moreover, a fully representative jury
    roll cannot be squared with the random selection process used to choose those
    who are to receive jury service notices.

[44]

In my
    view, therefore, in creating the jury roll, the test for the states compliance
    with the representativeness right cannot simply look to the composition of the
    jury roll that results. Hence I disagree with the test proposed by the
    appellants, NAN and the Bushie and Pierre families, all of which focus on the
    make-up of the jury roll that results from the states process, and the extent
    to which it mirrors the community it serves.

[45]

Rather,
    the focus must be on the steps taken by the state to seek to prepare a jury
    roll that provides a platform for the selection of a competent and impartial
    petit jury that will ensure confidence in the jurys verdict and contribute to the
    communitys support for the criminal justice system.

[46]

It is
    useful at this point to recall that the process of preparing the jury roll
    requires three steps: first, the compilation of the lists and the random
    selection of names from them to receive jury service notices; second, the
    delivery, receipt, and return of those notices; third, the entering on the jury
    roll of those responding who are eligible for jury service. This process
    applies for all Ontario residents whether off or on reserve.

[47]

It must be
    noted that the state does not have exclusive control over these steps. For
    example, there may be practical impediments that stand in the way of the state
    being able to use lists that fully reflect the entire community, or there may
    be individuals who choose not to respond to the notices received, entirely
    apart from any action of the state. However, the states actions clearly matter
    for both these steps of the process. The state has an important role in
    compiling the lists and sending the jury service notices and in facilitating
    delivery and receipt of the notices and the responses to them.

[48]

Hence, I
    disagree with the Crowns proposed test. I do not think that the states
    obligation is confined simply to the compilation of the lists from which
    recipients of the jury service notices are to be selected.

[49]

In my
    view, to meet its representativeness obligation, the state must make reasonable
    efforts at each step of creating the jury roll. That includes the states
    actions in compiling the lists, but also in sending the notices, facilitating
    their delivery and receipt and encouraging the responses to them. The objective
    of the states actions must be to seek to provide the platform necessary to
    select an impartial petit jury and to maintain public confidence in the criminal
    justice system by providing groups that bring distinctive perspectives to the
    jury process with their fair opportunity to be included in the jury roll.

[50]

In
    summary the question posed is whether in the process of compiling the jury
    roll, Ontario made reasonable efforts to seek to provide a fair opportunity for
    the distinctive perspectives of Aboriginal on-reserve residents to be included,
    having regard to all the circumstances and keeping in mind the objective served
    by the representativeness requirement.

[51]

The
    reasonable efforts standard is a continuing one. If, as time passes, further
    steps that are reasonably available are needed to provide the fair opportunity
    to be included, they must be taken.

APPLICATION OF THE LAW TO THIS CASE

PROCEDURAL HISTORY

[52]

Mr.
    Kokopenaces trial for second-degree murder occurred before Mr. Justice Stach,
    sitting with a jury, in Kenora in 2008. On June 17, the jury acquitted him of
    the murder charge, but found him guilty of the lesser and included offence of
    manslaughter.

[53]

Prior to
    sentencing, Mr. Kokopenaces trial counsel learned for the first time of
    irregularities in the composition of the Kenora jury roll, particularly with
    respect to representativeness, when he became aware of an affidavit sworn a few
    days before by the Acting Supervisor of Court Operations for Kenora District,
    Ms. Rolanda Peacock (Peacock Affidavit). The affidavit had been filed by
    Coroners counsel at an inquest into the death of two First Nations persons
    from Kashechewan, and appeared to demonstrate that the prescriptions of the
Juries
    Act
in respect of Aboriginal on-reserve residents had not been complied
    with.

[54]

At a
    pre-sentence conference in late September, Stach J. declined to adjourn the
    sentencing proceedings to hear a mistrial application as he considered himself
    to be
functus officio
. Defence counsel determined, therefore, that this
    court was the proper forum for determining the jury composition issue.

[55]

The Crown
    originally resisted making disclosure in respect of the jury composition issue,
    taking the position that, pursuant to this courts decision in
R. v. Roach
,
    2009 ONCA 156, 246 O.A.C. 96, jury composition could not be raised for the
    first time on appeal, and that the necessary records were both irrelevant and
    in the possession of the third-party Court Services Division (CSD). At the
    direction of Rouleau J.A., the appeal was bifurcated, permitting the non-jury
    grounds, a
Roach
application, and a disclosure application to be heard
    first. Before this hearing could take place, this court released its decision
    in
Pierre v. McRae
.

[56]

In light
    of this courts decision in that case, which highlighted significant problems
    with the preparation of the Kenora jury roll, the Crown agreed that it was not
    in the interest of justice to oppose the question of the representativeness of
    the jury being raised on appeal. Disclosure for the purpose of the appeal of
    the jury composition issue soon followed, and extensive fresh evidence was
    filed in this court. The non-jury appeal grounds were argued first and later
    dismissed; however, no order was issued and this court adjourned the appeal in
    order to hear argument on the jury composition issue. See
R. v. Kokopenace
at paras. 4-6 and 64.

[57]

The jury
    composition question, broken down into several issues, was fully argued on
    appeal. Three parties were permitted to intervene, all of whom supported the
    appellant.

[58]

Finally, on
    February 26, 2013, while this appeal was under reserve, the Honourable Frank
    Iacobucci, a retired justice of the Supreme Court of Canada, released his
    independent report on the representation of First Nations persons on Ontario
    juries (Iacobucci Report). In 2011, Mr. Iacobucci was appointed by the
    province of Ontario to review the process for including persons living on
    reserve communities on the jury roll and to do so independently of government
    and on a systemic basis: see
First Nations Representation on Ontario
    Juries: Report of the Independent Review Conducted by the Honourable Frank
    Iacobucci
(Toronto: February 2013), Appendix A, at 95. By letter dated
    February 27, 2013, all parties supported tendering this report for
    consideration by this court as fresh evidence. I would accept the Iacobucci
    Report as fresh evidence and I will consider it in my analysis.

THE COMPILATION OF THE JURY ROLL AND ABORIGINAL ON-RESERVE
    RESIDENTS

[59]

As
    described above, the jury selection process in Ontario takes place in three
    stages and the appellants challenge is to the first stage, the preparation of
    the jury roll.

[60]

Although
    the Act refers to the duties of the sheriff, in practise it is the local
    court staff in each county or judicial district that are responsible for
    facilitating the process of sending out jury notices. They determine the number
    of jury service notices to be sent out for the following year, based on
    anticipated jury demands and other factors. Then, employees at the Provincial
    Jury Centre (PJC) inform the Municipal Property Assessment Corporation
    (MPAC) how many off-reserve jury notices are required to be sent out for each
    district, and ask MPAC to randomly select names from municipal enumeration
    lists.

[61]

For
    Aboriginal on-reserve residents, local court staff  instead of the MPAC and
    the PJC  facilitate this stage of the process. They advise the PJC of the
    number of questionnaires needed and receive that number of questionnnaires from
    the PJC. They obtain the names of on-reserve residents, randomly select who will
    receive jury service notices, and prepare and mail the notices.

[62]

At the
    time relevant to this appeal, completed jury service notices in respect of the
    MPAC process were returned to the then-Ministry of Revenue; completed
    questionnaires in respect of the s. 6(8) process were returned directly to the
    PJC. Then, the names of eligible prospective jurors were entered into the jury
    selection system, which is used to develop the jury roll for each county or
    district, and for selecting panels for each Superior Court of Justice location,
    as required. Eligibility is determined pursuant to criteria set out in the Act.
    Once added to the roll, a potential Aboriginal on-reserve resident juror is no
    more or less likely to become a member of a jury panel than any other potential
    juror.

[63]

Until
    2000, Indian and Northern Affairs Canada (INAC)
[7]
provided lists to provincial authorities for the purposes of s. 6(8) of the
    Act, which included the names of persons affiliated with each band
[8]
.
    At the time relevant to this appeal, local court staff understood the practice
    to be that if a band electoral list could not be directly obtained from
    reserves in the judicial district, the INAC band lists could be used.

[64]

The
    problems that are the focus of this appeal, regarding the preparation of the
    jury roll, became evident primarily because in 2001 INAC stopped providing CSD
    with band lists for the purposes of preparing jury rolls going forward,
    ostensibly as a result of privacy concerns. At the heart of the appeal, then,
    are the states efforts to address any problems that may have arisen or come to
    light after the loss of the INAC band lists, which had an impact on the right
    to a representative jury under s. 11 of the
Charter
.

COMPOSITION OF THE JURY ROLL IN KENORA AND THE PEACOCK AFFIDAVIT

[65]

As
    mentioned above, the context for this appeal is the preparation of the 2008
    jury roll for the judicial district of Kenora. Ontario Court of Justice (OCJ)
    sittings occur at base courts in Kenora and Dryden, and at satellite courts in
    Sioux Lookout and Red Lake. In addition, court staff from the District service
    26 fly-in or drive-to OCJ locations within the District. All Superior Court
    jury trials in the District take place in Kenora, with the exception of
    indictments in criminal matters originating from some reserves in the
    north-east region which are almost invariably transferred to the Superior Court
    of Justice in Cochrane for trial.

[66]

The
    reserve and Indian settlement lands within the Kenora District are associated
    with 46 First Nations. Many of the First Nations communities in the District
    are accessible only by air. According to the 2006 census, the total population
    of the District was approximately 65,000. As already noted, the on-reserve
    population is about one third of that total.

[67]

In 1993,
    the return rate for completed questionnaires was approximately 33% for
    Aboriginal on-reserve residents as compared to 60% to 70% for non-Aboriginal
    communities: see
R. v. A.F.
(1994), 30 C.R. (4th) 333 at para. 53 (Ont.
    C.J. (Gen. Div.))  In 2002, 9 years later, the Aboriginal on-reserve return
    rate declined to 15.8%. By 2008  the year that is being examined in this
    appeal  that rate, as we shall see later, had declined to 10%.

[68]

In
    the Iacobucci Report
, several factors are identified as possible reasons for the
    reluctance of Aboriginal on-reserve residents to participate in the jury
    selection process. These include conflicting views regarding the traditional
    approaches to conflict resolution; systemic discrimination experienced by First
    Nations people within the justice system; a lack of knowledge about the justice
    system generally and of the jury system in particular; the desire, expressed by
    First Nations leaders, to assume greater control of justice matters in their
    communities; and concerns for the protection of privacy rights with respect to
    the disclosure of personal information. In addition, concerns were expressed
    with respect to the content of the jury questionnaire itself, particularly the
    statement of penalty for non-response, the requirement to declare citizenship
    and the language requirement: see the Iacobucci Report at 4-5.

[69]

Importantly
    however, the report also concluded (at  63) that:

[A]t present, the manner in which potential First Nations
    jurors are identified is ad hoc and contingent upon the efforts made by court
    staff to connect with First Nations, and ultimately the decisions of First
    Nations to exercise their discretion to disclose a list of reserve residents. 
    This ad hoc system has proven to be ineffective and results in a jury roll that
    is unrepresentative of all First Nations peoples on reserve.

[70]

This being
    said, during the period that response rates by on-reserve residents were less
    than ideal, a significant substantive change occurred in the system used by
    Kenora court services: in 2001, Ontario ceased to have access to the prevalent
    data source  the INAC band lists  on the basis of which jury service notices
    were delivered to on-reserve residents.

[71]

Concerns
    with respect to the preparation of the Kenora jury roll after 2000 first came
    to light for those outside Ontario court services operations in 2008, with the
    filing in court of the Peacock Affidavit, detailing jury preparation efforts in
    Kenora. As I have stated above, the affidavit was sworn in connection with a
    coroners inquest into deaths on the Kashechewan First Nation.

[72]

In
    summary, the Peacock Affidavit disclosed that because INAC was no longer
    supplying up-to-date band lists for the region, court officials tried to obtain
    lists directly from First Nations reserves within the District. The affidavit
    summarized efforts made by court services officials in 2006 and 2007 in this
    regard, as well as the results that those efforts produced: of the 45 First
    Nations in the judicial district, 4 responded to the 2006 efforts by producing
    lists and 8 responded to the 2007 efforts.

[73]

In
    addition, the Peacock Affidavit represented that in 2007, the Kenora jury roll
    was based on jury service notices sent to 1,200 persons living in
    municipalities and 484 Aboriginal on-reserve residents. The eligible rate of
    return was 66% in 2006 and 56% in 2007 for the former, and the eligible rate of
    return was 10.72% in 2006 and 7.83% in 2007 for the latter. Of a population of
    more than 12,000 Aboriginal on-reserve residents in Kenora, only 44 were
    included on the 2007 jury roll, and not a single person from Kashechewan (where
    the deaths took place) was included on the jury roll.

PIERRE v. MCRAE

[74]

In late
    2007, two young Aboriginal men died in Thunder Bay. Inquests into their deaths
    were ordered under the
Coroners Act
, R.S.O. 1990, c. C.37. Weeks before
    the inquest began, the families of the deceased raised concerns regarding the
    representativeness of the jury roll in the District of Thunder Bay. They sought
    confirmation that First Nations individuals living on reserves were included on
    the jury roll.

[75]

Neither
    the coroner nor the Ministry of the Attorney General (MAG) appeared willing
    to answer their concerns. A request was therefore made to the coroner to issue
    a summons to a representative of MAG  in this case, the Director of Court
    Operations for the North West Region  to attend at the inquest before the jury
    was sworn, to give evidence on how the jury roll was composed. This request was
    refused.

[76]

A judicial
    review of the refusal was denied by the Divisional Court: see
Pierre v.
    McRae
(2009), 259 O.A.C. 1. In January 2010, leave to appeal to this court
    was granted. The record for the appeal included the Peacock Affidavit.

[77]

In
    allowing the appeal in respect of the Thunder Bay jury roll in
Pierre
,
    Laskin J.A., at paras. 68 and 69, relied heavily on the Peacock Affidavits
    insight into the Kenora jury roll preparation and observed that:

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.

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.

[78]

The
    appellant does not seek to rely on
Pierre
as dispositive of any issue in
    this appeal. I agree with this approach. In
Pierre
, this court examined
    the representativeness of the Kenora jury roll only to see whether there was a
    basis for inquiring into the representativeness of the Thunder Bay jury roll,
    which was the issue in that case. Moreover, the Peacock Affidavit was a
    two-page summary of efforts in respect of the 2007 Kenora jury roll. In this
    appeal, by contrast, the fresh evidence going to the representativeness of the
    2008 Kenora jury roll  in particular, the details of the states efforts to
    compensate for the loss of the INAC band lists  is voluminous, encompassing many
    thousands of pages. The Crown submits that when this fresh evidence is
    considered, this courts findings in
Pierre
will be distinguishable and
    that the efforts by the state to create the jury roll for 2008 will be found to
    pass constitutional scrutiny.

[79]

To that
    end, I propose next to set out the efforts that were made by the state to produce
    a representative jury roll in the District of Kenora between 2000 and 2008. The
    onus of proof is on the appellant to demonstrate the
Charter
breach by
    showing that the states actions in this regard fell short of its obligations:
    see Peter W. Hogg,
Constitutional Law of Canada
, 5th ed. supplemented, vol.
    2, looseleaf (Toronto: Thomson Reuters Canada, 2007)  at para. 38.4.

[80]

In the
    circumstances of this case, two facts gave rise to the potential constitutional
    problem and must, therefore, ground the analysis  the change in Federal policy
    that caused the provision of band lists to cease, and the continuing decrease
    in the rates of return of jury service notices by Aboriginal on-reserve residents.

[81]

The
    efforts taken after INAC stopped providing the lists, and up to the preparation
    of the 2008 jury roll for Kenora, in respect of the s. 6(8) process have to be
    understood as a response to this state of affairs; the appropriateness or not
    of the states efforts will be wholly informed by these circumstances and by Ontarios
    response to them. It is not enough, in the particular circumstances of this
    appeal, to focus solely on the efforts made in 2007 for the preparation of the
    2008 jury roll. The analysis is an iterative one. That is, it will include an
    examination of the states efforts in the year 2000 and each following year in
    order to assess the appropriateness of its response to the constitutional
    issue.

[82]

For that
    reason, in order to determine whether the states efforts in respect of the
    preparation of the 2008 jury roll for Kenora survive a constitutional
    challenge, some of the prior history of s. 6(8) work in the district has to be
    reviewed as part of the necessary context.

THE STATES KNOWLEDGE OF DECREASING RETURNS

[83]

Before 2007,
    the PJC did not advise Kenora District court staff of the response rates for
    jury questionnaires sent to Aboriginal on-reserve residents.

[84]

The
    process and information that appears to have been followed by MAG dates back to
    at least the mid-1990s. Each year the Kenora District office determined the
    number of questionnaires to be sent to Aboriginal on-reserve residents and
    forwarded this on to the PJC. The PJC in turn sent the Kenora District the equivalent
    number of questionnaires and prepaid postage return envelopes addressed to the
    PJC. The questionnaires, therefore, were returned directly to the PJC for
    vetting as to eligibility and inclusion on the jury roll. Through this process,
    the PJC knew the number of returns as compared to the number of questionnaires
    sent out.

[85]

Also,
a Minister's cover
    letter, drafted by the PJC in English and French, was sent out along with the
    questionnaire throughout Ontario. Further, in Kenora District an additional
    letter was also included that was specifically drafted to help reserve
    residents understand the jury process. This letter was included in plain
    English and in Ojibway and Oji-Cree syllabics. The opening paragraph of the
    English version  of this letter reads:

We are trying
to involve more First Nation members
in
    jury duty so we can have the benefit of their wisdom.  To help us, it is
    important that you fill out the paper we are sending you and return it to us as
    soon as possible.  To help you we have enclosed a stamped envelope with our
    address on it. [Emphasis added.]

[86]

I take
    from this that the issue of low return rates of on-reserve residents was known
    to at least Kenora District staff and that there was a concern about it.

[87]

And, as I
    noted earlier, in 1994 Stach J. in
A.F.
drew specific attention to the
    fact that there was a serious issue with regard to the representativeness of
    the jury roll: the return rate was approximately 33% for Aboriginal on-reserve
    residents compared to 60% to 70% for non-Aboriginal residents. This should have
    put the province on notice that without attention there could be a problem
    resulting in a jury roll being unrepresentative and in breach of s. 11 of the
Charter
.

[88]

The 1996
    policy directive from MAG, PDB #563, which I will say more about below,
    distributed to Kenora District staff by the PJC provided the following, at 4:

From the information you provide on numbers of questionnaires
    sent out, the Provincial Jury Office will have to determine numbers of
    questionnaires returned completed, numbers returned undelivered, and numbers
    no return received.

It is essential that we evaluate the results of these efforts
    as this is of extreme importance to the management of our jury system.

[89]

Unfortunately,
    the evaluation that the PJC deemed essential did not take place until 2006
    and the PJC blinded itself to evidence of what was actually occurring. That is,
    Stach J.s observation in
A.F.
turned out to become even more serious.
    In 2002 the number of Aboriginal on-reserve resident returns, which itself was
    known to the PJC, had now declined to 15.8%.
[9]


[90]

In 2003,
    the number of questionnaires sent to off-reserve residents was increased from
    800 to 1000. According to the PJC, this was due to the high number of Coroners
    lists and the low number of Native returns. This suggests that, at least on
    some level, the PJC knew that there may be a problem with the
    representativeness of First Nations on-reserve residents on the jury roll. Indeed,
    the number sent to on-reserve residents was increased correspondingly.

[91]

In June
    2004, it appears that the issue of on-reserve representativeness was a
    recognized concern in the Kenora District. On this occasion, Ms. Loohuizen
    (about whom I will say more shortly), Justice Stach, Justice of the Peace Morrison,
    Rolanda Peacock and a PJC representative brainstormed ways to improve the
    participation of Aboriginal on-reserve residents in the jury process.

[92]

In 2007,
    for the first time, the PJC advised Kenora District staff of the number of
    responses to the questionnaires sent to on-reserve residents.
[10]
Clearly though, up to this point the PJC knew for every year between 2000 and
    2010 the total number of questionnaires sent to on-reserve residents in Kenora District
    and the total number of replies received. I would add that eligible off-reserve
    response rates province-wide were apparently being collected from the year 2000
    onward.
[11]

[93]

Finally, at
    some level MAG actually knew about the historical problem of low response rates
    from Aboriginal on-reserve residents and was aware of it as an issue dating
    back to at least 2001.
[12]


[94]

In spite
    of this history of decreasing rates of returns of questionnaires by Aboriginal
    on-reserve residents, the province's efforts were concentrated almost
    exclusively on obtaining Band electoral lists or any lists that the First
    Nations would provide in order to create the jury roll for the Aboriginal
    on-reserve population. Virtually nothing was done to address the deteriorating
    rate of return of questionnaires.

A.

S. 6(8) EFFORTS MADE BETWEEN 2000-2006

[95]

Between
    2000 and 2006, and predating it, the guidelines that applied to the performance
    of s. 6(8) duties were contained in a policy document from the Program
    Development Branch, Courts Administration Division of MAG: a 1996 policy
    directive entitled
Aboriginals Resident on Reservations to be Included on
    Jury Roll for 1997
(also known as PDB #563). PDB #563 was distributed
    annually by the PJC to local courts whose districts contained First Nations
    reserves, as part of the communication package that initiated the s. 6(8) work
    for the year. PDB #563 instructs all area CSD staff to:

·

ascertain, check and confirm the reserves located in your county
    or district;

·

attempt to obtain the band electoral list, or any other accurate
    list of residents, by writing letters, telephoning or visiting the reserves in
    your area;

·

calculate the number of on-reserve questionnaires to be sent,
    using the proportionality formula provided, so that on-reserve residents would
    receive the share of the questionnaires corresponding to their share of the
    population of the district;

·

perform a random selection of the required number of names from
    the best possible list, and prepare and mail the questionnaires to these
    persons; and,

·

provide interim and final reports to the PJC at various points in
    the process.

[96]

The
    practice of CSD in applying this policy was that if a band electoral list 
    which was the preferred list to be used for this purpose  could not be
    obtained directly from the reserves in the district, CSD staff would use the
    lists requested from and provided by INAC, even though PDB #563 noted that the
    INAC band lists may not constitute the best list for use in terms of
    identifying who lives on a reserve.

[97]

After INAC
    decided to stop providing band lists for this purpose, the PJC amended its
    annual communication package to local CSD offices to remove the reference to
    the INAC band lists. In all other respects, the communication remained largely
    unchanged. In the first year that INAC band lists stopped coming, staff were
    told to use lists from the previous year if Band lists were also not
    forthcoming.

[98]

In a
    briefing note dated September 4, 2001, the CSD manager responsible for the PJC
    recommended that CSD staff in the areas  where reserves are located should
    continue to follow written procedures with increased emphasis on making local
    contact with the Chief and other appropriate senior band officials to negotiate
    obtaining the best list of names available. The note also recognized that
    Ministry direction [was] required concerning the obtaining of the INAC lists
    in future years.

[99]

Since
    2001, and throughout the time relevant to this appeal, it was Ms. Laura
    Loohuizen who had been almost solely responsible for carrying out the work
    related to s. 6(8) for Kenora District. Ms. Loohuizen assumed these duties soon
    after she began working at CSD Kenora in September of 2001 as judicial
    secretary/trial coordinator. She would continue to be responsible for s. 6(8)
    efforts even after her promotion to Group Leader within CSD in 2005. Ms. Rolanda
    Peacock, whose affidavit first brought the issue of the representativeness of
    the Kenora jury roll to light, was her immediate supervisor after this time.

[100]

In her first year of
    employment, Ms. Loohuizen carried out the random selection of names from
    available INAC band lists from 2000. At this time, she had INAC band lists for
    42 reserves of the 43 she believed (erroneously as it turns out) were in Kenora
    District; it appears that for one reserve  Neskantaga/Lansdowne House  Ms.
    Loohuizen never had a record from which to complete the s. 6(8) work.

[101]

Beginning sometime in 2002,
    Ms. Loohuizen became involved in the entire cycle of s. 6(8) work for the
    preparation of the 2003 jury roll. At this time, she reviewed and sought to
    implement the procedures set out in PDB #563. To this end, she made several
    inquiries to the PJC regarding how the steps outlined in PDB #563 were to be
    undertaken. Such inquiries would continue to 2007.

[102]

By way of instruction, she
    sought direction on how updated lists were to be obtained. She was advised that
    new INAC band lists would not be supplied and that [w]e have to attempt to
    obtain lists [of on-reserve residents] from the bands, failing that we use
    whatever list is available.

[103]

In July of 2002, and in
    response to the PJCs instructions that she would have to get lists from the
    bands themselves, or use whatever list was available, Ms. Loohuizen wrote to
    the Chiefs of every First Nation for which she had an INAC band list from 2000,
    as well as to senior officials at NAN. No band lists resulted from this effort.

[104]

As a result, Ms. Loohuizen
    continued to use the INAC band lists from 2000 for the purposes of calculating
    the number of on-reserve questionnaires to be sent and for the random selection
    of on-reserve residents. Indeed, throughout the entire relevant time period,
    Ms. Loohuizen continued to use the 2000 INAC band lists if she was unable to
    obtain an updated band list.

[105]

After 2002, and for the next
    three years, no efforts were made by Ms. Loohuizen to obtain updated lists of
    on-reserve residents. The efforts that were made in respect of jury roll
    preparation only involved the following:

·

In June 2004, Ms. Loohuizen participated in a brainstorming
    session with Justice Stach, Ms. Peacock, a Justice of the Peace (who was also
    an Elder
[13]
),
    and an individual from the PJC in order to decide other ways to improve the
    participation of Aboriginal on-reserve inhabitants in the jury process.

·

Also in 2004, Ms. Loohuizen requested information from the Elder
    with whom she participated in the brainstorming session about contact people in
    the Treaty 3 and Treaty 9 areas; she received no response.

[106]

Throughout this period, Ms.
    Loohuizen again relied on the INAC band lists from 2000 for s. 6(8) purposes,
    continuing the practice of CSD in this regard. Obviously, because the INAC band
    lists only included individuals over the age of 18, these lists would have
    become increasingly inaccurate with each passing year, as individuals newly
    turned 18 would not be captured unless an updated band list were obtained. This
    is a special problem for populations residing on reserve, which are generally disproportionately
    young. Any other changes in the interim, such as deaths or relocations, would
    also not be captured.

[107]

In August 2006, Ms.
    Loohuizen once again wrote to each Chief of the 42 bands for which she had a
    2000 INAC band list, requesting current lists from them. She received updated
    band lists from four, and no response from any of the others. As before, Ms.
    Loohuizen continued to use the 2000 INAC band lists in respect of the remaining
    38 identified bands. For Neskantaga/Lansdowe House, she still had neither a
    band list nor an INAC list.

[108]

During all of this time,
    there were no discernible changes in CSDs policies and practices with respect
    to s. 6(8) requirements. This may have been the result of insufficient
    attention being paid to the results of s. 6(8) efforts: while PDB #563 required
    that interim and final reports were to be prepared and sent by local offices to
    the PJC, these reports were routinely not prepared or did not contain the
    required information.

B.

EFFORTS IN 2007 FOR THE 2008 JURY ROLL

[109]

As I noted earlier, in
    January 2007, the PJC compiled the results of the 2006 questionnaires and
    communicated details of the response rates for the county or district to the
    local court locations; local court staff had not previously been advised of the
    response rates resulting from their efforts pursuant to s. 6(8). Ms. Loohuizen
    learned that of the 484 questionnaires sent to on-reserve individuals in 2006,
    349 were not returned; 82 were returned undelivered; and one was returned
    advising that the recipient was deceased. Of those that were returned, 15 were
    ineligible and only 37 were eligible. Statistically, there was only a 10.7%
    total response with 7.6% of the responses being found eligible. By comparison,
    the off-reserve eligible return rate was 56%. Almost 17% of the on-reserve
    questionnaires were returned as undeliverable.

[110]

Ms. Loohuizen communicated
    these results to Justice Stach. As a result, the number of questionnaires to be
    sent out to on-reserve inhabitants was increased to 600 from 484 the previous
    year. Justice Stach and Ms. Peacock also determined that additional efforts
    would be made to improve representativeness.

[111]

In July 2007, Ms. Loohuizen
    sought assistance in identifying the boundaries of the district, and the
    reserves within it for which she was responsible, particularly in the northeast
    region. It appears that this was the first time she made such an inquiry, and
    it may have been prompted by questions that were arising in relation to an upcoming
    coroners inquest in Kashechewan.

[112]

From this inquiry she
    learned for the first time that she had been excluding two bands from the s.
    6(8) efforts entirely. She also learned another reserve on her list had split,
    resulting in two separate communities. Thus, her list of First Nations within Kenora
    District grew from 43 to 46.
[14]
By the
    time the error was discovered, there was insufficient time to make significant
    efforts to obtain lists in respect of these communities.

[113]

During the summer of 2007,
    Ms. Loohuizen and Darrell Mandamin, CSDs interpreter liaison for the Northwest
    Region, travelled with a court party to 15 fly-in reserves to meet with members
    of band leadership to discuss Aboriginal participation in the jury system. As a
    result of these visits, eight updated lists were obtained. Ms. Loohuizen
    followed up with the other seven, but did not receive lists.

[114]

Ms. Loohuizen and Mr.
    Mandamin also sought meetings with four First Nations located near Kenora,
    successfully meeting with leaders from two of them. Unfortunately, no lists
    were ultimately received from these meetings, despite subsequent follow-ups.
    Attempts made to contact an additional ten First Nations to arrange for
    in-person meetings or telephone discussions were unsuccessful, and no lists
    were obtained as a result.

[115]

On the basis of these
    efforts, when the s. 6(8) questionnaires for the 2008 jury roll were to be
    mailed out in the fall of 2007, the Kenora CSD had the following derived from
    46 First Nations in the district:

·

Band lists from 2007 in respect of eight First Nations;

·

Band lists from 2006 in respect of two First Nations;

·

INAC lists from 2000 in respect of 32 First Nations; and

·

No list for four First Nations.

[116]

It is obvious that the vast
    majority of the source lists for s. 6(8) purposes for the 2008 jury roll were
    out-dated. The INAC band lists, which were used for a sizable portion of the Districts
    population, would not include, by this time, people who had become adults since
    2000. In addition, they would not capture on- and off-reserve movement within
    the populations of these 32 First Nations.

[117]

For the purposes of the 2008
    jury roll, 1200 questionnaires were sent to the off-reserve municipal
    population of Kenora District. Pursuant to a direction from Justice Stach, 600
    questionnaires were sent to the on-reserve population. This was an increase
    from the previous year and was greater than the proportional share of notices
    required based on the CSD formula.

[118]

The results of the 2007
    efforts ultimately became known to Ms. Loohuizen in February of 2008, when it
    was learned that of the 600 on-reserve questionnaires that were sent, only 60
    were returned: a 10% return rate. Of these, 34 persons (or 5.7% of the 600)
    were found to be eligible for jury service. 166 questionnaires (or 27.7%) were
    returned by the post office. In respect of 374 questionnaires (or 62.3%), there
    were no responses. By comparison, the off-reserve eligible response rate was
    55.6%. It can be seen, therefore, that the result of the states efforts to
    compensate for the loss of the yearly INAC band lists as of 2001 were less than
    ideal.

[119]

The 2008 jury roll for
    Kenora ultimately consisted of 699 potential jurors, of whom 29 were on-reserve
    residents.
[15]
This represents 4.1% of the jury roll, even though First Nation residents
    represented about 33% of the Kenora Districts population.

[120]

Mr. Kokopenaces jury was
    selected on May 27, 2008 from a panel list of 175 jurors; 8 of these were
    on-reserve residents. Of these 8, 4 were from fly-in reserves and 4 had road or
    boat access to Kenora. Three of the 8 were ultimately excused to later sittings
    without having attended court; 1 was excused entirely without having attended
    court; and 2 did not respond to the summons. Mr. Kokopenaces jury ultimately
    did not include any on-reserve residents.

THE STATES SPECIAL RELATIONSHIP WITH ABORIGINAL PEOPLE

[121]

The states knowledge of
    decreasing returns, and the efforts made to address this issue, must be
    evaluated in the context of the states special relationship with Aboriginal
    people.

[122]

Aboriginal people hold a
    unique legal and constitutional position in Canada that is recognized in
    historical instruments such as the
Royal Proclamation of 1763
, and
    constitutional instruments such as s. 91(24) of the
Constitution Act, 1867
,
    which gives Parliament legislative authority over Indians, and Lands Reserved
    for the Indians. Further recognition of the unique position of Aboriginal
    people is found in pre- and post-Confederation treaties, entered into largely
    in Ontario and the western provinces, with the exception of British Columbia.
    Finally, s. 35 of the
Constitution Act, 1982
recognizes and affirms the
    existing Aboriginal and treaty rights of Canadas Aboriginal peoples, defined
    as including Indian, Inuit and Métis peoples.

[123]

A considerable body of
    jurisprudence has attempted to define and characterize the special relationship
    between the Crown and Aboriginal people that arises out of and upon this
    historical foundation. Some of that jurisprudence is relevant to the analysis
    necessary to this appeal. Among the principles that have developed is the
    honour of the Crown. As the Supreme Court stated in
Manitoba Metis
    Federation Inc. v. Canada (Attorney General)
, 2013 SCC 14 at para. 66,
    [t]he ultimate purpose of the honour of the Crown is the reconciliation of
    pre-existing Aboriginal societies with the assertion of Crown sovereignty.
    Because of its connection with s. 35 of the
Constitution Act, 1982
, the
    honour of the Crown has been called a constitutional principle:
Beckman v.
    Little Salmon/Carmacks First Nation
, 2010 SCC 53, [2010] 3 S.C.R. 103, at
    para. 42. Furthermore, the honour of the Crown imposes a heavy obligation:
Manitoba
    Metis
at para. 68.

[124]

Typically, the honour of the
    Crown has been invoked in the context of Aboriginal or treaty rights, as
    recognized under s. 35 of the
Constitution Act, 1982
. (See e.g.
Manitoba
    Metis
at para. 68.),
Haida  Nation v. British Columbia (Minister of Forests)
, 2004 SCC 73, [2004]  3 S.C.R. 511, for example, was concerned with a
    potential Aboriginal claim to land title.

[125]

Nonetheless, previous
    decisions by the Supreme Court have explicitly and repeatedly stated that the
    principle of the honour of the Crown is always engaged where Aboriginal peoples
    are concerned. See
R. v. Marshall
, [1999] 3 S.C.R. 456 at para. 49:
    This appeal puts to the test the principle, emphasized by this Court on
    several occasions, that the honour of the Crown is always at stake in its
    dealings with aboriginal people.  See also
Haida
at para. 16, where
    McLachlin C.J., writing for the court, stated that [t]he honour of the Crown
    is always at stake in its dealings with Aboriginal peoples.

[126]

The Supreme Court now
    appears to have retreated from this position. Instead, not all interactions
    between the Crown and Aboriginal people engage the honour of the Crown; more
    specifically, it will not be engaged by a constitutional obligation in which
    Aboriginal peoples simply have a strong interest or one owed to a group
    partially composed of Aboriginal peoples (
Manitoba Metis
, at paras. 68
    and 72). I note that the rights at stake in this appeal are grounded in legal
    rights under s. 11 of the
Charter
, which are shared by all in Canada. They
    are not Aboriginal rights
per se
, at least as ordinarily contemplated by
    s. 35.

[127]

However, Ontario has chosen
    to implement this constitutional obligation through a statutory scheme  s.
    6(8) of the
Juries Act
 that explicitly treats Aboriginals (specifically,
    those living on reserve) separately and differently from the remainder of the
    population. In such circumstances, the principle of the honour of the Crown is
    engaged to the extent that this historical context must be kept in mind when
    assessing Ontarios conduct for constitutional sufficiency.

[128]

To be clear, the honour of
    the Crown attaches not because the appellant is Aboriginal, but because the
    means through which Ontario has chosen to fulfill the appellants constitutional
    right to a representative jury requires the government to interact with
    Aboriginal people differently than with all other people. It is the manner of
    that interaction to which the honour of the Crown applies.

[129]

The honour of the Crown is
    the source of different legal duties in different circumstances: see
Haida
at
    para. 18 and
Manitoba Metis
at para. 73. In
Haida
, the Supreme
    Court held that the honour of the Crown gave rise to a duty on the Crown to
    consult with Aboriginal people and, if necessary, accommodate Aboriginal
    interests, where the Crowns conduct might affect an Aboriginal claim or right,
    established or potential. The Crowns efforts at consultation should be
    consistent with the objective of reconciliation.

[130]

It was not argued that the
    duty to consult is engaged in this case. In most cases thus far where the duty
    to consult is engaged there is an Aboriginal right or treaty right that is
    being affected by the Crowns conduct or planned conduct.

[131]

In any case, the concept of
    the duty to consult can nonetheless be informative of whether Ontarios efforts
    were reasonable in this case, particularly since the respondent submits that
    both its conduct and its legislative design with respect to jury roll
    composition see[k] the cooperation of people living on reserves. The Crown
    points in that regard to the evidence of Ms. Bristo, Acting Director, Corporate
    Planning Branch of the Court Services Division of the Ministry of the Attorney
    General, where she said that their approach

has been trying to engage with the First Nations in a very
    upfront way to develop the partnerships and trust and understanding so that we
    can learn about their issues, but then also they can understand the importance
    of the jury process and being on a jury and their participation on a jury.

[132]

In
Haida
, at para.
    45, McLachlin C.J. applied the concept of the duty to consult to potential
    rights claims and observed that the scope of consultation would lie on a
    spectrum. In all cases, the controlling question would be what is required
    to maintain the honour of the Crown and to effect reconciliation between the
    Crown and the Aboriginal peoples with respect to the interests at stake.

[133]

Given the need to engage the
    Aboriginal people living on reserves in the Kenora District in addressing the
    representation problem on Kenora jury rolls  a need Ontario recognizes  it
    can hardly be denied that the Crown ought to have engaged in meaningful
    consultation in good faith in the problems resolution. An effective resolution
    would require the good faith participation of the Aboriginal people in return. In
    this regard, I would adopt as instructive the New Zealand Ministry of Justices
Guide for Consultation with Maori
(1997) at 31, excerpted in
Haida
at para. 46:

genuine consultation means
    a process that involves:

·

gathering information to test policy proposals;

·

putting forward proposals that are not yet finalized;

·

seeking Maori opinion on those proposals;

·

informing Maori of all relevant information upon which those
    proposals are based;

·

not promoting but listening with an open mind to what Maori have
    to say;

·

being prepared to alter the original proposal; and

·

providing feedback both during the consultation process and after
    the decision-process.

[134]

It is in the light of these
    principles, which are consistent with the honour of the Crown, that the Crowns
    efforts in respect of jury roll preparation should be evaluated in this case.

THE STATES KNOWLEDGE OF ABORIGINAL ESTRANGEMENT FROM THE
    JUSTICE SYSTEM

[135]

In addition to the above, the
    problem of underrepresentation in the Kenora jury roll must be viewed in the
    light of a second contextual element, and that is the evident and frequently
    remarked-upon overrepresentation of Aboriginal persons in Canadian prisons.
    This overrepresentation is the manifestation of a fundamental estrangement of
    Aboriginal persons from the criminal justice system.

[136]

A few key figures serve to
    illustrate the scope of this estrangement. Although Aboriginal people
    constitute less than 4% of the general Canadian population, Aboriginal
    offenders make up 20% of federal penitentiary inmates. This overrepresentation
    is more pronounced for Aboriginal women, who account for 41% of all women in
    sentenced custody.
[16]


[137]

Canadian courts have not
    only commented on the stark reality of Aboriginal overrepresentation in the
    criminal justice system, but they have also observed its roots in an attitude
    of discrimination that pervades the administration of justice.

[138]

In
R. v. Williams
,
    [1998] 1 S.C.R. 1128, at paras. 57-58, the Supreme Court of Canada upheld the
    right of an Aboriginal accused to challenge jurors for cause where there is a
    realistic potential for partiality or prejudice in the community. In so
    holding, the court noted the evidence of widespread racism against Aboriginal
    persons that has translated into systemic discrimination in the criminal
    justice system.

[139]

One year later, that court
    in
R. v. Gladue
,
[1999]
    1 S.C.R. 688,

considered the proper application of the
    sentencing principles in s. 718.2(e) of the
Criminal Code
within the
    context of a criminal justice system that had failed Aboriginal peoples. The
    court had before it extensive evidence that Aboriginal people were
    overrepresented in the criminal justice system as offenders. On the basis of
    that evidence, the court directed judges to be cognizant of systemic factors
    arising out of the history of Aboriginal relations in Canada that bear on an
    offenders culpability.

[140]

For the next thirteen years,
    the Ontario judiciary attempted to address the crisis in the Canadian criminal
    justice system through the application of the
Gladue
principles. In
R.
    v. Kakekagamick
(2006), 81 O.R. (3d) 664 (C.A.), for example, this court
    restated the trial judges duty to give effect to the
Gladue
principles,
    and reemphasized their importance in the struggle to address the systemic
    discrimination faced by Aboriginal people in the criminal justice system.

In
    Ontario,
Gladue
courts were created in October 2001 through the efforts
    of judges, academics and community agencies, including Aboriginal Legal
    Services of Toronto, with the cooperation of the Attorneys General for Ontario
    and Canada as well as Legal Aid Ontario.

[141]

Despite the ominous warnings
    in both
Gladue
and
Kakekagamick
, the Supreme Court of Canadas
    decision in
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433 describes,
    at para. 62, only a worsening situation. The question in
Ipeelee
was how
    to determine a fit sentence for the breach of a long-term supervision order in
    the case of an Aboriginal offender. In allowing the appeal,
[17]
the Court observed that the overrepresentation of Aboriginal people in the
    criminal justice system as offenders is worse than ever, and repeated its
    message from
Gladue
with a renewed urgency.

[142]

In recent years, this court
    has come to the recognition that the
Gladue
principles properly extend
    beyond sentencing for criminal offences, and that
Gladue
s underlying
    philosophy bears on other aspects of the interaction between Aboriginal peoples
    and the justice system. These have included extradition (see
United States
    of America v. Leonard
, 2012 ONCA 622, 112 O.R. (3d) 496, leave to appeal to
    S.C.C. refused, [2012] S.C.C.A. No. 490), sentencing for civil contempt (see
Frontenac
    Ventures Corp. v. Ardoch Algonquin First Nation
, 2008 ONCA 534, 91 O.R.
    (3d) 1, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 357), and
    dispositions of persons found not criminally responsible on account of mental
    disorder (see
R. v. Sim
(2005), 78 O.R. (3d) 183).

[143]

This extension was implicit
    in the recognition in
Gladue
, at para. 65, and
Ipeelee
, at para.
    61, that sentencing innovation alone would not solve the greater alienation of
    aboriginal people from the criminal justice system.

[144]

Both
Gladue
, at para.
    61, and the earlier decision of
Williams
, at para. 58, also recognized
    that the overrepresentation of Aboriginal peoples as accused was only the tip
    of the iceberg in terms of the ways in which the criminal justice system was
    failing Aboriginal peoples. The underrepresentation of Aboriginal peoples on
    the jury roll illustrates another part of the same iceberg, sharing the same
    root causes: a relationship marked by tensions originating in the colonial era.

[145]

Judges have been directed to
    take judicial notice of how the history of colonialism continues to translate
    into, among other things, higher levels of incarceration for Aboriginal peoples
    as part of the context in which the sentencing inquiry must take place:
Ipeelee
at para. 60. Outside the sentencing context, the import of cases extending the
Gladue
principles may be the idea, suggested in
Ipeelee
at para. 71 and
    affirmed in
Leonard
at para. 52, that, because of the continuing
    significance of this history, to achieve real equity, sometimes different
    people must be treated differently.

[146]

I can see no reason why the
    reasonableness of the states efforts in respect of s. 6(8) of the Act

a
    provision that is directed to the proportional representation of Aboriginal
    people residing on reserve on the jury roll for a given community  should not
    be viewed in the light of this same context.

[147]

MAG, in its prosecutorial
    role, has been on the front lines of this crisis. It could not have escaped
    knowing about the alienation of Aboriginal people from the criminal justice
    system, or the direction from the courts since
Gladue
that it is a
    problem that must be addressed.

[148]

Despite this, the current low
    rates of jury participation of First Nations persons residing on reserve in
    Kenora represent a decline. As reflected in
A.F.
, the return rate for
    completed jury service notices from the First Nations community in 1993 was 33%.
    While not high, the return rate in the wake of the states efforts in 2007 for
    the preparation of the 2008 jury roll in Kenora dropped even further to only 10%.

[149]

To those who argue that
    Aboriginal on-reserve residents have a particular antipathy or reluctance to
    serving on juries, I would make two observations. First, the participation of
    Aboriginal people with the jury system began only relatively recently. As Mark
    Israel notes in The Underrepresentation of Indigenous People on Canadian Jury
    Panels (2003) 25(1) Law and Policy 37 at 39-40, jurors used to be selected
    from voter lists, and First Nations people did not have universal franchise until
    as late as 1969. As a result, the Inuit only began serving as jurors in 1957
    and other Indigenous Canadians as late as 1972.

[150]

Second, the Iacobucci Report
    observes at 53 that, it is clear that the jury system in Ontario, like the
    provinces justice system more generally, and its counterparts across a variety
    of Canadian and international jurisdictions, has often ignored or discriminated
    against aboriginal persons. The Report then goes on, as I noted earlier, to
    identify several reasons, expressed by First Nations representatives, for the
    reluctance of First Nations persons to engage in the criminal justice system,
    including the jury system in Ontario. In light of these reasons, Mr. Iacobucci observes
    at 56 that, It is understandable that First Nations people are reluctant to
    participate in the justice system, and particularly on juries, when their
    interactions with the system are anything but positive, respectful, or fair.

[151]

Any assessment of the
    states efforts must, therefore, have regard to this reality as well as the
    broader problem of Aboriginal estrangement from the criminal justice system,
    and look to whether the state was aware of the need to achieve real equity in
    respect of Aboriginal participation on juries, and the further and different
    efforts that this might require.

DEFINING THE STATE FOR THE PURPOSES OF THE REQUIREMENTS OF
    S. 6(8) AND, CONSEQUENTLY, SS. 11(D) AND (F) OF THE CHARTER

[152]

The state for the purposes
    of s. 6(8) of the Act is the province of Ontario. When assessing the efforts of
    the state in order to determine their reasonableness, it is important to
    distinguish between efforts undertaken at the Kenora District level and those
    efforts undertaken provincially. As I will explain, this is critical to the
    context in which this analysis must be undertaken.

[153]

Although s. 6(8) refers to
    the responsibility of the sheriff for the efforts to ensure representation of
    Aboriginal on-reserve residents on the jury roll, these responsibilities 
    including selecting names of eligible on-reserve residents in the same manner
    as if the reserve were a municipality from any record available  are, in
    fact, more widely distributed. The sheriff for the purposes of the Act is the
    one referred to in s. 73 of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43 (
CJA
), who has been appointed under Part III of the
Public
    Service of Ontario Act, 2006
, S.O. 2006, c. 35, Sched. A.

[154]

As explained briefly above,
    the sheriffs jury-related duties in respect of a given county or district are actually
    divided among various court services employees who have been assigned the
    powers of sheriff, or act on the instruction of those holding assigned powers,
    pursuant to s. 73(2) of the
CJA
.

[155]

In addition, the reality is
    that the steps that can be taken at a local level are heavily circumscribed in
    practice. The entire process is coordinated centrally by the province, and both
    court services and PJC staff are responsible for following policies set
    centrally, as opposed to changing them. In the ordinary course, therefore,
    Ontarios responsibility under the Act involves more than just the area CSD
    offices. The entities involved include all of the following:

·

Director of Assessment, Municipal Property Assessment Corporation:
    MPAC identifies those off-reserve who are to receive notices by random
    selection from the most recent municipal assessment, provided they are
    residents of the county or district, Canadian citizens and at least 18 years of
    age.

·

The Ministry of Revenue (as it then was): This ministry receives
    completed questionnaires from off-reserve residents and determines eligibility
    to serve as a juror in accordance with the
Juries Act
. The data for
    eligible persons is then sent to the PJC.

·

The Ministry of the Attorney General: MAG is the department of
    the Ontario government that is responsible for the oversight of the justice
    system within the province.

·

Court Services Division (CSD): The division of MAG that
    provides administrative and courtroom support to all judicial officers in the
    Superior Court of Justice and the Ontario Court of Justice. Court staff provide
    for courtroom clerks, court reporters, registrars, and court interpreters
    required for court proceedings. With respect to managing the jury system, local
    CSD staff fulfill the sheriffs responsibility of determining the number of
    jury notices to be sent for the following year, based on anticipated jury
    demands and other factors. They also, in respect of on-reserve residents,
    select the individuals to receive questionnaires, and prepare and mail out the
    questionnaires.

·

Provincial Jury Centre (PJC): This entity is responsible for
    the administration of the jury system for the Province of Ontario, including the
    annual preparation of the jury roll and the random selection and summoning of
    potential jurors. The PJC communicates to MPAC the required number of
    off-reserve jury notices to be sent for each county or district each year. In
    addition, it enters the list of eligible potential jurors that results from
    responses to service notices onto the jury roll, in respect of both on-reserve
    and off-reserve returns.

·

The Director of Court Operations for the West Region: The CSD
    official who performs the sheriffs responsibility of certifying each jury roll
    as the proper roll prepared as the law directs.

[156]

In addition, with respect to
    individuals other than Aboriginals residing on reserve, MAG retains as agent
    the private third-party vendor DST Output Canada Inc. for the provision of
    mailing and printing services.

[157]

What the above illustrates
    is that for purposes of carrying out its duties under the
Juries Act
,
    the state is comprised of much more than a district CSD office or any one
    employee. Thus, for the purpose of assessing whether the state took reasonable
    steps in the process of compiling the jury roll, more than just the efforts of
    CSD in Kenora will need to be considered. Any fair assessment, in my view,
    requires that the state be defined more broadly and, at the very least,
    including MAG, in order to take into account the practical realities of how the
    jury roll preparation process is undertaken in Ontario. This is particularly
    important given the states special relationship with Aboriginal people and the
    responsibilities this entails.

ANALYSIS

[158]

As I explain above, any
    analysis of the states efforts in respect of jury roll preparation must be a
    contextual one. It is only then that the true significance of First Nations
    persons estrangement from this aspect of the administration of justice is
    understood.

1.

REASONABLENESS OF THE STATES EFFORTS in respect of jury roll
    preparation pursuant to s. 6(8) of the act

[159]

As I have stated, one
    question that underlies the analysis of the reasonableness of the states
    efforts in respect of the preparation of the jury roll for 2008 for the
    purposes of ss. 11(d) and (f) of the
Charter
is whether the state
    delivered jury service notices to Aboriginal on-reserve residents and
    facilitated their return sufficiently to allow them a fair opportunity to have
    their distinctive perspectives included in the jury roll. This assessment is a
    contextual exercise in all respects, taking into account both the history of
    practices since at least 2001, when INAC band lists ceased to be provided to
    CSD, and also the states special relationship with Aboriginal people and the
    responsibilities that entails.

[160]

The state must demonstrate
    that it exercised diligence, resourcefulness, ingenuity and persuasion in this
    regard:
R. v. Nahdee
(1993), 26 C.R. (4th) 109 (Ont. C.J. (Gen. Div.))
    at para. 20.
[18]
If the state simply accepted the repeated failure to secure responses to its
    efforts, the efforts will be shown to be unreasonable.

[161]

On this record, the state
    was faced with two discrete problems. The first was obtaining accurate
    up-to-date lists of Aboriginal on-reserve residents. The second was the
    deteriorating rate of return of questionnaires from the on-reserve residents. While
    the focus of my analysis will primarily be from 2000, I would note again that
    in 1993 the return rate for Aboriginal on-reserve residents was roughly half of
    that of the non-aboriginal community.

[162]

The first thing to be
    observed of the states efforts in respect of the preparation of the jury roll,
    both before and including the efforts for the 2008 jury roll, is that they were
    almost exclusively those of Ms. Loohuizen. She had some assistance and
    supervision in respect of her efforts  from Justice Stach, from Mr. Mandamin,
    and others  but the lions share of the effort was hers.

[163]

By 2002, the PJC would have
    been aware that Ms. Loohuizen had unanswered questions about the s. 6(8)
    process and was having difficulty obtaining up-to-date band lists. She had made
    several inquiries of them by this point, but it appears that no greater
    instruction was given than to continue using existing INAC band lists because
    no further lists were likely to be forthcoming.

[164]

PDB #563, the policy which
    was distributed annually by the PJC, called for interim and final reports to be
    made in respect of s. 6(8) work, but these reports were routinely not provided.

[165]

In 2007, the PJC for the
    first time began providing Kenora District staff with data on the responses to
    on-reserve questionnaires, in respect of the 2006 mailouts for the 2007 jury
    roll.
[19]
The
    record does not disclose any reasons why the PJC did not provide this data to District
    staff in earlier years. I would observe that response rates in respect of
    off-reserve questionnaires throughout the province and for Kenora specifically
    were apparently available in each year from 2000 onward.
[20]
In any case, the 2007 results for
    Kenora, particularly the fact that the total response rate for that year was
    only 10.7%, with only 7.6% of the responses being found to be from eligible
    jurors, show that by any standard or objective analysis, there ought to have
    been concerns about whether Aboriginal on-reserve residents were
    underrepresented on the Kenora jury roll.

[166]

Because data in respect of
    response rates for each district only began to be communicated to local court
    locations after 2006, no one appears to have been in a position to identify the
    precise extent of the ongoing problem prior to that time,
[21]
or determine what efforts might be required to ameliorate them. There is no
    question that Ms. Loohuizens own efforts could have begun much earlier than
    they did.

[167]

But, while MAG should have
    known much earlier, there can be no doubt that by January 2007, it knew there
    were problems with the representation of Aboriginal on-reserve residents on the
    jury rolls in Kenora. Although it is clear from the briefing note of September
    4, 2001 that the PJC was awaiting direction from MAG regarding INACs decision
    to stop providing lists and efforts to obtain INAC band lists in future years,
    no significant attempts in respect of other data sources appear to have been
    made; no changes were made to the governing policies; and no sustained Ministry
    efforts to obtain lists from INAC appear to have been made or directions given.
    CSDs Kenora office and Ms. Loohuizen continued their efforts, essentially
    alone.

[168]

The evidence also shows an
    absence of necessary training or oversight of local court staff by MAG with
    respect to s. 6(8) work and the particular understanding in respect of First
    Nations in Ontario that is necessary to doing that work.

[169]

Ms. Loohuizen herself, for
    example, undertook the s. 6(8) work without any specific training in this
    regard, including any particular instruction on how to distinguish between a
    reserve (a plot of land designated under the
Indian Act
) and a First
    Nation or a band. Responses to her inquiries to the PJC were not particularly
    helpful, and could not compensate for this lack of training.

[170]

The training and oversight
    systems that were implemented beginning in 2008, evidence of which comprised
    part of the fresh evidence on this appeal, were certainly not in existence in
    2007 when the jury roll at issue in this appeal was compiled.

[171]

It can be reasonably
    concluded that some significant errors in the s. 6(8) efforts in Kenora that
    would have had an impact on representativeness can be attributed to this basic
    lack of attention. Among other things, three errors in particular can be set apart.

[172]

First, when Ms. Loohuizen
    first began her s. 6(8) work, she identified 43 reserves in the Kenora District.
    This number incorrectly excluded three reserves, and mistakenly included one.
    This error would not be corrected until 2007. Even though this error was
    discovered prior to the compilation of the 2008 jury roll, there was
    insufficient time to compensate for it, with the results that these three First
    Nations were entirely excluded from the 2008 jury roll.
[22]


[173]

The failure even to properly
    identify the reserves within the boundaries of the judicial district is one of
    the most compelling errors in favour of the appellants; because of this
    misapprehension, eligible prospective jurors from these communities were
    excluded entirely from the 2008 jury roll and deprived of a meaningful chance
    to have their perspectives considered. Although I have used the phrase the
    distinct perspectives of Aboriginal on-reserve residents in setting out the representativeness
    issue, I do not mean to suggest that all Aboriginal on-reserve residents in
    Ontario, or all those within Kenora District, are a homogenous group that
    shares uniform perspectives. Each reserve is a separate community, and the
    exclusion of one  or in this case, three  weakens representativeness.

[174]

Second, the formula
    prescribed by PDB #563 for determining the number of on-reserve questionnaires
    required to be sent in a particular year is based on estimates set out in a
    separate policy document, one which was not provided to Ms. Loohuizen. In its
    absence, and with no other guidance as to how to form the necessary estimates,
    Ms. Loohuizen made her own estimates of the jury-eligible population of each
    reserve by counting the number of adult names on each list in her possession.
    Given that her estimates were made from out-of-date lists, it is reasonable to
    assume this approach would compound distortions and underestimate the
    population on which the formula should be based.

[175]

Finally, another clear error
    made by Ms. Loohuizen can be attributed, on the one hand, to MAGs failure to
    appreciate the importance of a major legal development to the policy governing
    the jury roll preparation process and, on the other, to Ms. Loohuizens
    inadequate instruction regarding the nature of available lists.

[176]

Because the MPAC enumeration
    process captures Aboriginal persons living off-reserve, it is important that
    the s. 6(8) process only include those individuals residing on-reserve. The
    ideal source list for the purposes of s. 6(8) would be an up-to-date list, with
    addresses, of all adults resident on a given reserve. If a source list contains
    individuals who actually reside off-reserve, steps will need to be taken either
    to remove those individuals from the s. 6(8) enumeration or, alternatively, to
    otherwise compensate for the over-inclusive nature of the list. It must be
    recognized that Aboriginal off-reserve residents may potentially have different
    perspectives than Aboriginal on-reserve residents.

[177]

The evidentiary record in
    this case supports a reasonable conclusion that the INAC band lists from 2000,
    at least, likely included on-reserve residents only. These lists were
    inaccurate in other respects, because of how dated they were by the time the
    jury roll for 2008 was being prepared, but did not give rise to this particular
    distortion. However, throughout the period relevant to this appeal, the lists
    requested and received from the Bands themselves were sought in accordance with
    PDB #563, which provides that a band electoral list is the preferred source
    for the names of on-reserve residents for the purposes of s. 6(8).

[178]

When this policy was first
    distributed, this instruction likely did refer to the best available source for
    the purposes of s. 6(8). At the time, s. 77(1) of the
Indian Act
restricted voting in respect of elections under the
Indian Act
regime to
    members ordinarily resident on the reserve. Accordingly, a voters list or
    band electoral list would only have included the names of those residing on the
    reserve.

[179]

In 1999, the Supreme Court
    of Canada released its decision in
Corbiere v. Canada (Minister of Indian
    and Northern Affairs)
, [1999] 2 S.C.R. 203, which held that s. 77(1) of the
Indian Act
violated s. 15 of the
Charter
. After the declaration
    of invalidity imposed in that decision expired the following year, and
Indian
    Act
regulations were amended to give effect to the decision, the electoral
    lists for
Indian Act
elections included band members residing both on-
    and off-reserve.

[180]

Since 2000, then, the policy
    instruction on the basis of which the entire s. 6(8) process was undertaken has
    been incorrect in a way that is directly related to the question of the
    representativeness of the jury roll. Ms. Loohuizens evidence was that she had
    been asking for band electoral lists in accordance with the instructions. There
    is no evidence that any steps were taken by CSD or the PJC to update their
    practices in light of this change in the law during the time relevant to this
    appeal, and no evidence that Kenora District staff received instructions on how
    to determine the nature of the lists provided or why it mattered.

[181]

The evidence shows that Ms.
    Loohuizen knew prior to this that the band electoral lists she was provided
    with included off-reserve individuals, yet she continued to use these lists,
    without removing off-reserve individuals, to determine who would receive
    questionnaires. The evidence also shows that Ms. Loohuizen did not learn until
    2011 that individuals residing off the reserve should not be included in the s.
    6(8) enumeration.

[182]

The practical effect of
Corbiere
is that it made any band electoral lists obtained from First Nations after its
    release much less valuable in terms of their utility for meeting the
    requirements of s. 6(8) and identifying on-reserve residents eligible to serve
    on local juries, unless independent steps were taken to compensate for the
    inclusion of eligible voters living off reserve.

[183]

Everyone is presumed to know
    the law and to act accordingly:
Beauregard v. Canada
, [1986] 2 S.C.R.
    56. Certainly, of all entities, the Ministry of the Attorney General can be
    presumed to know the law, including changes to it and the implications of those
    changes. Yet, the evidence shows that CSD staff in Kenora, at any rate, only
    became aware of the significance of
Corbiere
to the utility of band
    electoral lists when the issue was raised in cross-examination in connection
    with these appeals  12 years after the decision was released. The issue was
    addressed for the first time in CSD policy documents and practices in training
    materials prepared in August 2011. Overlooking a legal change of this nature
    demonstrates a considerable lack of attention and a high degree of indifference
    to the problem.

[184]

It is important at this
    point to repeat what source lists CSD in Kenora had for the purpose of
    preparing the jury roll for 2008:

·

Band lists from 2007 in respect of eight First Nations, and from
    2006 in respect of two other First Nations;

·

INAC lists from 2000 in respect of 32 First Nations; and

·

No list for four First Nations.

[185]

Therefore, the jury roll at
    issue in the present appeal was compiled, in respect of 42 of the 46 First
    Nations in the judicial district, from records that were objectively either
    significantly out-dated or inaccurate in a way that would give rise to
    distortions in representation. The state knew or ought to have known about
    these deficiencies in the source lists, and the evidence shows at least seven
    years where very little was done to ameliorate the situation.

[186]

I would note, also, that
    even if Ms. Loohuizens efforts in 2007 had resulted in the provision of more
    band electoral lists from bands in the district, her lack of understanding
    about the nature of the lists, and the states failure to take steps to account
    for the legal implications of the
Corbiere
decision, would likely still
    have caused distortions that would give rise to concerns about the
    representativeness of the jury roll. It is reasonable to think the above may
    explain why the increase of jury service notices for the 2008 jury roll by
    Justice Stach did not result in a corresponding increase in eligible responses.

[187]

The exact impact of these
    errors, in a quantitative sense, cannot be known on this record. However, the
    cumulative inaccuracies in the source lists inevitably bear on the likelihood
    that sufficient questionnaires would have reached individuals residing
    on-reserve. The states apparent willingness to rely on a data source that, for
    any number of reasons, demonstrated significant inaccuracies leads inevitably
    to the conclusion that  even on the Crowns own proposed test  it did not
    make reasonable efforts to ensure an honest and fair process, the end result
    of which would be to allow Aboriginal on-reserve residents a fair opportunity
    to have their distinctive perspectives included in the jury roll.

[188]

The appellant has met his
    burden in respect of ss. 11(d) and (f) of the
Charter
.

[189]

I would add that the purpose
    of going through these errors is not to make an example of Ms. Loohuizen or her
    efforts. It is clear that she was aware of the low level of on-reserve
    Aboriginal representation in the jury process  the copious records she
    maintained attest to this  and was attempting, in her own way, to address it. Throughout
    the relevant periods, she undertook several efforts that, although not relevant
    to the preparation of the jury roll, demonstrated her concern with increasing
    First Nations participation in this aspect of the administration of justice.

[190]

For example, by 2005, Ms.
    Loohuizen had begun to assist First Nations persons who had received a jury
    summons to attend court for jury panel purposes, including by phoning
    prospective jurors to help with travel arrangements and ensuring they
    understood that they did not have to pay to attend.

[191]

She also began including
    CSDs toll-free number on juror summonses in order to encourage recipients to
    call if they had questions about the process. In addition, she continued the
    practice, which predated her employment with the CSD, of sending explanatory
    letters in plain English with the jury questionnaires, as well as translations
    into Ojibway and Oji-Cree native syllabics.

[192]

In her capacity as trial
    coordinator, Ms. Loohuizen observed that the travel days posed a substantial
    hardship to prospective jurors travelling from remote reserves. For example,
    with no scheduled weekend flights from the more remote fly-in reserves, the
    prospect of responding to a summons for a jury panel to be heard on Monday
    involved a five-day ordeal involving flights, taxis, buses and a weekend stay
    in a hotel. Consequently, in 2006, CSD Kenora began calling jury panels to
    appear on Tuesdays, rather than on Mondays, to assist in shortening the travel
    time for those coming from remote reserves.

[193]

Her efforts in 2007 to meet
    in person with band leadership in the fly-in communities in the northeast to
    discuss jury roll representation were marked by her respect and her
    appreciation of the band leaderships willingness to meet with her to discuss
    the issue of Aboriginal representation in the jury system.

[194]

Again, there is no question
    that Ms. Loohuizen remained dedicated to the principle of representativeness
    and made her own best efforts to fulfil her obligations under the
Juries Act
.
    However, it is the states efforts that are at issue in a broader sense. Its approach,
    as set out in the September 2001 briefing note, to continue to follow written
    procedures with increasing emphasis on negotiating to obtain the best list of
    names available was manifestly unreasonable for all of the reasons set out
    above.

C.

Additional Comments on The Nature of the States Engagement with First
    Nations on this Issue

[195]

MAGs approach to the
    resolution of the problem of representativeness of on-reserve Aboriginals on
    jury rolls has been to leave the process in the hands of junior members of the
    public service, in this case, Ms. Loohuizen. From PDB #563 and the September 2001
    briefing note, it is clear that local CSD staff are designated as the
    representatives of the state directed to make contact with Chiefs and other
    appropriate senior band officials to negotiate for band lists.

[196]

The Crown describes the
    provinces approach as one of cooperation. They rely on Ms. Loohuizens
    evidence that she considered trust and respect to be at the core of the
    relationship between CSD and on-reserve communities. She described that she had
    attempted to develop positive relationships with reserve communities in her
    effort to gain greater representation for First Nations people on juries within
    the Kenora District.

[197]

During the time relevant to
    this appeal, Ontario and MAG had an Aboriginal Justice Strategy in place to
    address the specialized needs of Aboriginal communities in justice-related
    areas. The strategy advanced the goal of working with Aboriginal communities to
    develop an integrated justice policy framework. A government publication setting
    out this initiative, among others, notes the following commitment:

Ontario is committed to addressing these issues through the
    development of an Aboriginal Justice Strategy, together with Aboriginal
    partners. Our new approach will pursue effective ways to work together,
    reflecting the diverse needs of rural and urban Aboriginal communities, with an
    emphasis on prevention for children and youth and promoting community safety.
    (Ontario Native Affairs Secretariat,
Ontarios New Approach to Aboriginal
    Affairs
(Toronto: Queens Printer for Ontario, 2005) at 18 [
New
    Approach
].)

[198]

The objectives of the
    strategy are to reduce overrepresentation of Aboriginals in the justice system;
    increase access to the full range of criminal justice services; increase
    participation in the administration of justice; promote justice sector knowledge;
    and explore traditional justice and customary law. (Ministry of the Attorney
    General, Aboriginal Justice Strategy, online: MAG
    <http://www.attorneygeneral.jus.gov.on.ca/english/aboriginal_justice_strategy/default.asp>).

[199]

The
New Approach
document also indicated at 3 that Ontario recognizes that First Nations have
    existing governments and is
committed to dealing with First Nations
    governments in a co-operative and respectful manner that is consistent with
    their status as governments
(emphasis added).

[200]

Until 2007, the lead on Aboriginal
    affairs within the Ontario government was the Ontario Native Affairs
    Secretariat (ONAS), later the Ontario Secretariat of Aboriginal Affairs
    (OSAA). These bodies were the Ontario governments representatives in
    trilateral negotiations with senior federal government officials and Ontario
    First Nations Chiefs in connection with efforts to resolve a variety of
    Aboriginal issues of mutual concern. OSAA was replaced in June 2007 with the
    stand-alone Ministry of Aboriginal Affairs in recognition of the importance of
    the provinces relationship with Aboriginal people in Ontario.

[201]

In spite of Ontarios stated
    approach to deal with First Nations people by way of a collaborative and
    coordinated effort, the province virtually ignored this policy on the issue of
    jury creation. Moreover, during this entire process Ontario viewed the requests
    for lists from First Nations as being made to First Nations governments. That
    is, as Ms. Bristo agreed in her cross-examination, Ontario has a government-to-government
    relationship with First Nations (at 171). A potential vehicle for a
    coordinated and cohesive response existed in ONAS/OSAA. However, despite the
    recognition that First Nations have existing governments, the province left a
    lower-level bureaucrat  who was neither trained in her duties nor on the
    reality of First Nations relations with Ontario  to facilitate the bulk of
    the efforts in approaching the Chiefs of First Nations for updated band lists,
    inconsistent with the status of First Nations as governments.

[202]

I would note that a Chief is
    the head of his or her First Nation government in much the same manner that a
    mayor is the head of his or her municipal government. In my view, MAGs
    delegation of its responsibilities to area CSD workers on this critical problem
    was not a reasonable approach. The question could be asked: if 46
    municipalities in a given judicial district were showing the same critical
    results as First Nations reserves were in this case, would Ontario have gone
    about resolving the problem through the sole efforts of a junior bureaucrat?

[203]

In other contexts, important
    issues of collective concern have been dealt with through tripartite (involving
    the federal and provincial governments and First Nations) or bilateral
    consultation and negotiations with Chiefs through the First Nations respective
    political organization, which in this case was NAN. This is consistent with the
    special relationship between First Nations in Canada and the Crown. This type
    of process was completely ignored in this case, until the jury representation
    issue came to light in 2007.

[204]

Finally, I would add, in
    response to evidence that efforts made since the extent of this issue first became
    public in 2008 have made little substantive difference in the situation, that
    the Iacobucci Report sheds some light on the nature of efforts that are likely
    to have an impact. This fresh evidence suggests very clearly that the type of
    bilateral or tripartite, state-to-state engagement is the most likely way to
    gain the participation of First Nations persons in the jury system. As the
    report explains, at 6:

First Nations leaders unequivocally asserted that the way
    forward with respect to enhancing a relationship with the Ministry of the
    Attorney General in the context of the jury system, and all justice matters, is
    through a government-to-government relationship and a process that reflects
    such a relationship. First Nations seek greater control of the justice system
    as it applies to their people and view the re-integration of restorative
    justice programs as one measure to achieve this goal. The need for a
    collaborative approach to develop a proper jury roll process for First Nations
    peoples on reserve is viewed as a necessary step forward in a respectful
    relationship. Moreover, partnering with First Nations with respect to
    educational initiatives aimed at First Nations and government officials would
    contribute to improving the relationship.

CONCLUSION ON REASONABLENESS OF THE STATES EFFORTS

[205]

To be
Charter
-compliant,
    the states process for preparing the jury roll must bring the possibility that
    the distinctive perspectives of Aboriginal on-reserve residents will be
    included in the petit jury. Under the test established herein, the state must
    have made reasonable efforts, considering all the circumstances known to it, to
    fulfill its obligation such that Aboriginal on-reserve residents were given a
    fair opportunity to have their distinctive perspectives included in the jury
    roll.

[206]

Having chosen a regime that
    necessarily requires recurrent efforts to achieve a comparable inclusion of
    on-reserve residents in the jury roll as off-reserve ones, it was incumbent on
    the state to undertake those efforts diligently, with ingenuity, and in keeping
    with the special relationship between the Crown and Aboriginal people. The
    state was obliged to do more than to rely on the efforts of a sole individual
    in a local court office.

[207]

The discussion above
    discloses that the quality of effort, especially given the nature and extent of
    the problem, was sorely lacking for several reasons.

[208]

First, while the precise outcomes
    of the states efforts as they might have arisen since 2000 were not known to
    Kenora District staff until 2007, because the PJC before then had not sent them
    the response statistics, the PJC had access to the raw data itself and Kenora District
    staff were aware of the general concern over response rates. Thus, the extent
    of the low response rates  which were less than half that of non-Aboriginal
    off-reserve residents in 1993 and appear to have been decreasing each year
    since  were known to Ontario. Despite that, the causes were never investigated
    so that different modalities of engagement could be undertaken. This is despite
    the fact that the Ministry acknowledged that it was aware of the problem of low
    rates among First Nations populations, at least at a general level, earlier. The
    state, therefore, considered engaging in new and more creative efforts, as
    required, too late.

[209]

In this case, the numerous
    frailties in the source lists for s. 6(8) purposes from which the 2008 Kenora
    jury roll was compiled ensured that the array could not be fairly chosen. Given
    what the state knew and ought to have known about the problem, the validity of
    its claim to reasonable efforts in the circumstances is undermined. The
    integrity of the process was fundamentally compromised by the inattention paid
    by the state to a known and worsening problem, year after year.

[210]

Second, the states actions
    show that it almost entirely failed to inform its approach with an
    understanding of its special relationship with Aboriginal people and the responsibilities
    entailed thereby. There is no evidence that the state took into account the
    critical estrangement of Aboriginal persons from the criminal justice system
    and the administration of justice in the post-
Gladue
context in its
    approach to the jury representation problem.

[211]

In the end, I have
    considered such things as what the state did and did not do, what it knew
    before engaging in efforts, what it learned about the efficacy of those efforts,
    and any resulting effects. In this case, what the state knew or ought to have
    known was considerable; what the state did in response was very little.

[212]

As a result, the ultimate
    question of whether, in all the circumstances, the state made reasonable
    efforts to compile source lists for the preparation of the 2008 jury roll in
    Kenora must be answered in the negative.

[213]

I will now turn to and briefly
    address the remaining issues that were advanced by the appellant and the interveners.

The Partiality Issue: s. 629 of the
Criminal Code

[214]

Here the appellant argues
    that, in any event, what the state did in preparing the jury roll constitutes
    partiality, fraud or wilful misconduct under s. 629(1) of the
Criminal Code
.
Because of my conclusion that the appellant
    has shown a breach of ss. 11(d) and (f) of the
Charter
and a breach of s. 6(8) of the Act, an analysis of this issue is unnecessary.

The Equality Issue: s. 15 of the
Charter

[215]

For the same reason, I need not
    deal with the s. 15 issue. However, since it was fully argued, I will do so
    briefly.

[216]

The appellant, supported by
    the intervener, the David Asper Centre for Constitutional Rights, argues that
    the exclusion from jury rolls of Aboriginal on-reserve residents (or at least
    their under-inclusion) violates s. 15 of the
Charter
.
    They argue that this violates the appellants personal equality rights. They
    also argue that it constitutes a violation of the s. 15 rights of Aboriginal
    on-reserve residents as potential jurors.

[217]

There is no dispute that
    this requires the appellant to show that the states actions created a
    distinction based on an enumerated or analogous ground that imposes a
    disadvantage by perpetuating prejudice or stereotyping. There is also little
    dispute, and I accept, that Aboriginal on-reserve residence is an analogous
    ground.

[218]

In addressing his personal
    equality rights, the appellant argues that the states actions significantly
    diminished the likelihood of Aboriginal persons appearing on the jury panel of
    the appellant, thereby exacerbating [his] existing disadvantage. The nature
    of that disadvantage is not articulated, nor is there anything in the record
    that suggests what that might be. There can be no doubt about the general
    systemic discrimination suffered by Aboriginal people in the criminal justice
    system. However, without evidence, I cannot conclude that this appellant suffered
    disadvantage because of the make-up of his petit jury or of the jury roll from
    which it was derived.

[219]

The appellant also argues
    that his personal equality rights are violated because he is an Aboriginal
    on-reserve resident and the states actions mean he has less chance of being
    tried by a jury including Aboriginal on-reserve residents than off-reserve
    accused do of being tried by a jury including off-reserve residents. I would
    offer the same answer to this argument: there is nothing in the record to suggest
    that this constitutes a disadvantage. Nor does the appellant suggest any.

[220]

The appellant further argues
    that the states actions significantly diminish the opportunity of Aboriginal
    on-reserve residents to serve on a jury thereby exacerbating their disadvantage
    and alienation from the criminal justice system. He says that he should be
    granted public interest standing to raise this issue.

[221]

Given my conclusions above,
    I leave for another day whether, if the states actions in seeking to include
    Aboriginal on-reserve residents in the preparation of the jury roll met its
    representativeness obligation, those actions could nonetheless constitute a
    distinction for s. 15 purposes.

[222]

It is not necessary to
    address that issue because I would not accord the appellant public interest
    standing in this case. The appellant seeks a new trial. His interest is in
    personal remedies under s. 24(1) of the
Charter
.
    A public interest claim is not a personal one. It typically seeks declaratory
    relief under s. 52(1) of the
Charter
.
    It is hard to see that this appellant has any such interest. Moreover, the
    appellant has offered no reason why prospective jurors could not reasonably and
    effectively challenge the states actions. Rather, it appears that the
    appellants position is premised on his challenge to his conviction serving as
    a sufficiently important reason to challenge the states actions. In my view,
    that is not enough to accord him public interest standing.

[223]

In summary, I find that the
    appellant has not made out a violation of his equality rights. I would
    therefore dismiss this issue.

REMEDY

[224]

Having concluded that there
    was a violation of the appellants constitutional rights under ss. 11(d) and
    (f) of the
Charter
, I now turn to the appropriate remedy for that
    violation.

[225]

The appellant, supported by
    the interveners the Bushie and Pierre families and NAN, argues that this court
    should set aside his conviction for manslaughter and order a new trial.

[226]

The respondent argues, and I
    accept, that a new trial is only an appropriate remedy under s. 24(1) if the
    appellant can establish (a) actual partiality or prejudice in the trial, (b) a
    reasonable apprehension of partiality or bias, or (c) the appearance of
    unfairness such that public confidence in the integrity of the justice system would
    be undermined. The respondent points out that this court has already held, at
    2011 ONCA 536, that the appellants trial was not unfair. There is also no
    support in the circumstances of this case for a reasonable apprehension of
    partiality or bias.

[227]

However, the
Charter
violation
     of the appellants right to representativeness of the jury roll  necessarily
    undermines public confidence in the integrity of the justice system and the
    administration of justice. As I have discussed above, Rosenberg J.A. in
Scientology
described the twin purposes of representativeness as being impartiality
and
public confidence in the criminal justice system. It follows that the states
    failure to meet its constitutional obligation of representativeness necessarily
    diminishes public confidence in that system.

[228]

In my view a declaration
    could not restore public confidence in the criminal justice system going
    forward, nor could it restore public confidence that justice was done in the
    appellants case. The only effective remedy is to order a new trial.

[229]

The respondent emphasizes
    that the appellants trial counsel failed to raise the representativeness issue
    at trial, and argues that this failure precludes a new trial or is at least a
    very strong indicator that it did not affect the fairness of the trial or
    public confidence in the integrity of the justice system.

[230]

However, this submission
    misses the mark. As I have discussed above, the violation of the right to
    representativeness in this case is not the low representation of Aboriginal
    on-reserve residents on the jury panel per se. The violation is the states
    failure to provide Aboriginal on-reserve residents with a fair opportunity to
    be included in the jury roll. A disproportionately low number of Aboriginal
    on-reserve residents on a jury panel is not, in itself, necessarily evidence
    that there were significant deficiencies in the process by which the roll was
    created. Trial counsels assumption, as stated in his cross-examination, that
    the state was complying with its obligations, was a reasonable one. It is the
    detailed record assembled for the first time that demonstrates the states
    failure.

[231]

Moreover, it is for the
    court, not for counsel, to determine and remedy the damage to public confidence
    in the criminal justice system.

[232]

For these reasons, I would
    grant the application to introduce fresh evidence, allow the appeal, and order a
new trial
.
    I am confident that the Crown will appropriately exercise its discretion
    whether to proceed with a new trial, having regard to all the circumstances of
    the case, including the time the appellant has spent in custody.

H.S. LaForme J.A.

Goudge J.A. (Concurring):

[233]

I have had the
    benefit of reading the reasons for judgment of my colleague LaForme J.A.  I
    agree with his conclusion that in all the circumstances of this case the appeal
    must be allowed and a new trial ordered because the appellant was denied the
    right to the representative jury roll that is guaranteed to him by the
Canadian
Charter of Rights and Freedoms
.

[234]

While I agree
    entirely with my colleagues analysis of the law of representativeness in
    paras. 1-51 of his reasons, in applying that law to the circumstances here I
    reach the same conclusion that he does, but for reasons that differ somewhat
    from his.  In addition, I fully concur with his analysis and disposition of the
    issues concerning s. 629(1) of the
Criminal Code
, s. 15 of the
Charter
,
    and remedy.

[235]

Before turning
    to the circumstances of this case that I think deserve special emphasis, it is
    helpful to highlight several aspects of the legal test explained by my
    colleague.

[236]

First, it is
    clear that the constitutional right of an individual to be tried by a jury
    selected from a properly representative jury roll is mirrored by the
    corresponding constitutional obligation of the state.  When I describe the
    states obligation, I am also describing the appellants right.

[237]

Second, the
    state in this case is Ontario.  While the statutory obligation under s. 6(8) of
    the Act rests on the sheriff, the constitutional obligation rests on Ontario. 
    Ontarios central agencies are most relevant here because of their capacity to
    address its constitutional obligations.  I refer particularly to the Court
    Services Division (CSD), the Provincial Jury Centre (PJC) and the CSDs local
    Kenora District presence, Ms. Laura Loohuizen.  Also important however are
    Ontarios agencies dealing with its Aboriginal citizens, particularly the Native
    Affairs Secretariat, which later became the Ministry of Aboriginal Affairs.

[238]

Third, the
    states obligation extends beyond compiling the lists and sending out the jury
    service notices.  It includes facilitating their delivery and encouraging the
    responses to them.

[239]

Fourth, the
    states obligation is a continuing one.  Year over year, it is an obligation
    that the state must ensure it is discharging.

[240]

Fifth, the
    states obligation is to make reasonable efforts to provide Aboriginal
    on-reserve residents with a fair opportunity to have their perspectives
    included in the jury roll.  This must be distinguished from additional steps
    that might be taken in pursuit of best social policy.  The constitutional
    imperative does not require perfection of the state.

[241]

Sixth, assessing
    the states preparation of the 2008 jury roll for the Kenora District against
    the constitutional standard requires a consideration of all relevant
    circumstances.  Several deserve highlighting:

1.

Recent history
    is one such circumstance.  The ongoing nature of the states constitutional
    obligation makes its prior treatment of that obligation relevant in assessing
    its efforts in the year in question.  Past neglect cannot be ignored in
    determining what is currently required of the state.

2.

I agree with my
    colleague that the states special relationship with Aboriginal people is also
    relevant.  While the constitutional right to representativeness is the
    appellants, it requires the state to provide Aboriginal on-reserve residents
    with their fair opportunity to be included in the jury roll.  The state has
    chosen to discharge its obligation by a statutory mechanism that addresses
    Aboriginal on-reserve residents discretely.  In my view, the states
    interaction with Aboriginal people that this necessitates engages the honour of
    the Crown and is a factor informing what is constitutionally required of the
    state.

3.

I also agree
    that the fundamental estrangement of Aboriginal people from the justice system
    is a relevant consideration.  That is particularly true in the Kenora District
    where Ms. Loohuizen indicated that on average, 54% of the jury trials involve
    Aboriginal people as complainant, accused or both.  The need to address this
    estrangement simply enhances the importance of the states efforts to provide Aboriginal
    on-reserve residents with the opportunity to be included in the annual jury
    roll.

[242]

The facts to
    which these legal principles are to be applied are comprehensively described by
    my colleague.  I propose only to provide emphasis to those that, in my view,
    graphically highlight the challenge posed for the states representativeness
    obligation in preparing the 2008 Kenora jury roll.

[243]

There can be
    little doubt that for a number of years before 2008, the underrepresentation of
    Aboriginal on-reserve residents in the jury system in the Kenora District was a
    well-known problem.  Several things made that obvious:

1.

Because of the
    process used, the PJC knew each year how many questionnaires were sent to
    Aboriginal on-reserve residents, how many responses were returned from those
    who received them, and how many of those were eligible for inclusion in the
    jury roll.  The PJC also had the comparable numbers for the province as a
    whole.  The very low eligible response rate for Aboriginal on-reserve residents
    clearly compared poorly with the same numbers province-wide.

2.

The
    underrepresentation of Aboriginal people in the jury process was the subject of
    a well-known court proceeding in Kenora as far back as 1993.

3.

The letter sent
    with the questionnaires to Aboriginal on-reserve residents each year since at
    least 2001 reflected the concern with this underrepresentation: We are trying
    to involve more First Nation Members in jury duty so we can have the benefit of
    their wisdom.

4.

In 2004, a
    representative of the PJC met with local Kenora officials and Justice Stach to
    discuss ways to improve the inclusion of Aboriginal on-reserve residents in the
    jury process, beginning with the jury roll.

5.

In December
    2006, Ms. Loohuizen reviewed the 2007 jury roll and estimated that only about
    6.59% were Aboriginal, far less than their one-third share of the population of
    the district.

6.

By the spring of
    2008 in Kenora, this underrepresentation of Aboriginal on-reserve residents
    could come as no surprise to any justice participant working in the District of
    Kenora, as the Crown concedes in its factum.

[244]

It is also
    useful to highlight the facts surrounding the states compilation of lists of
    Aboriginal on-reserve residents, its role in facilitating delivery of the
    questionnaires and in encouraging responses.

[245]

My colleague has
    dealt thoroughly with the lists used to source the Aboriginal on-reserve
    residents who were sent jury service notices in the fall of 2007 for the 2008
    jury roll.  I need only highlight that the great majority of those lists were
    dated, did not take account of those who turned 18 or died after 2000, or those
    who moved on or off reserve after 2000, and omitted several small reserves
    altogether.

[246]

The
    questionnaires were mailed to Aboriginal on-reserve residents by delivery to
    the intended recipient at General Delivery, to be picked up by the recipient
    at the reserve post office.
[23]
Questionnaires not claimed within 30 days were returned to the sender.  The
    record is sparse concerning the precise proportion of questionnaires that were
    unclaimed and returned (the Returned by post office or RPO rate) or how
    this compared with the rate for the province as a whole.  Two examples that are
    available suggest that this problem was significantly greater for on-reserve
    residents than for those off reserve.  In 2001 for the 2002 jury roll, 10.6% of
    the questionnaires sent to the reserves were returned as undeliverable.  The
    province-wide off-reserve rate for that year was 6.2%.  In 2006 for the 2007
    jury roll, the comparable figures were 16.9% and 6.0%.  In other words, it
    seems clear that there was a delivery problem for on-reserve questionnaires in
    compiling the annual jury roll in the Kenora District.

[247]

It was also
    clear that there was an ongoing significant problem with the response rate from
    those Aboriginal on-reserve residents who received the questionnaires, compared
    to off-reserve residents.  The PJC practice of sending out questionnaires and
    receiving the responses made that evident to the PJC every year.  As the acting
    director of the corporate planning branch of CSD agreed in cross-examination,
    lower on-reserve response rates have been a historical issue for the Ministry
    of the Attorney General.  There are many demonstrations of this in the record.

[248]

In 1994, Stach
    J. in
A.F.
set out the troubling comparison between Aboriginal
    on-reserve return rates (33%) and off-reserve returns (60 to 70%).  Historical
    records of the PJC for eligible returns show an even more troubling comparison
    (13.3% compared to 62%) for the 2002 jury roll.  In the 2003 preparation for
    the 2004 jury roll, the PJC again signalled the fact of very few Native
    returns to the local Kenora officials.  The results from that year were
    equally concerning  a 9% success rate for Aboriginal on-reserve residents
    compared to a 50% eligible return rate for those off reserve.  The PJC records
    for the 2006 jury roll show the same kind of comparison (9.9% compared to
    53.1%).  The Kenora officials were advised in detail by the PJC of the results
    of the mailing for the 2007 jury roll.  They are even more graphic, showing
    7.6% eligible on-reserve responses compared to 55.7% for off-reserve.  This is
    despite the fact that the number of questionnaires sent to Aboriginal
    on-reserve residents was increased, as Ms. Loohuizen said, to help offset
    previously low response rates from on-reserve recipients of the questionnaire
    in prior years.

[249]

By 2008
    therefore, the comparatively low rate of return from Aboriginal on-reserve
    residents had been well-known by the state for a number of years as a
    significant contributing cause of the underrepresentation of Aboriginal
    on-reserve residents on the annual jury roll for the Kenora District.

[250]

In summary, the
    jury roll at issue in this case was prepared in the context of ongoing serious
    problems with three steps of the process.  First, the lists of Aboriginal
    on-reserve residents from which recipients were selected were flawed.  Second,
    the delivery of questionnaires to them was significantly impaired by a
    Returned by post office rate considerably higher than for off-reserve
    residents.  Third, the response rate for those on reserve receiving the
    questionnaires was much lower than for their off-reserve counterparts.  The
    state clearly had a role to play in each of these steps.  How it responded to
    these challenges must be assessed against its constitutional obligation.

[251]

As my colleague
    has described, Ontarios response was left very largely to Ms. Loohuizen, the
    person in Kenora responsible for the inclusion of Aboriginal on-reserve
    residents in the jury process.  That was true for the preparation of the 2008
    jury roll as it had been for the previous six years.  I agree that, over that
    time, she did the very best she could within the limits of her relatively
    junior position, and the very limited training she had received.  She is to be
    commended for this.  However, the question is not her dedication but whether
    the state made the reasonable efforts required of it by its constitutional
    obligation.

[252]

The first challenge
    for the state, to which the appellant directed much argument, was that
    presented by the band lists.  My colleague has described their frailties in
    detail.  He has also described the steps undertaken by Ms. Loohuizen to try to
    get up to date lists from the bands directly, to replace the dated band lists
    provided by INAC up to 2000.  Obtaining current band lists was the primary
    focus of her efforts to seek to include Aboriginal on-reserve residents in 2008
    jury roll process, as it had been in the several years before that.  As is
    described by my colleague, she met with only limited success.

[253]

My assessment of
    her efforts to address the challenge presented by the band lists differs from
    that of my colleague LaForme J.A.  In my view, these efforts should be assessed
    in the context of the potential impact of the challenge presented by these
    lists to the objective, namely to provide a fair opportunity for the
    distinctive perspectives of Aboriginal on-reserve residents to be included in
    the jury roll.

[254]

The major
    difficulty with the lists was that the 32 INAC band lists were seven years
    old.  The other 10 band lists she used were relatively current.  However, even
    the 32 INAC lists retained very considerable utility for representativeness
    purposes.  Except for Aboriginal on-reserve residents who died or left after
    2000 (whose numbers are unknown on this record), the INAC lists remained an
    accurate source of names of those who continued to live on reserve in 2008. 
    Absent problems with delivery and response rates, a properly proportional
    selection of names from the INAC lists would still provide the distinctive
    perspectives of Aboriginal on-reserve residents that representativeness
    requires.

[255]

It is true that
    the INAC band lists did not include those who moved onto the reserves or turned
    18 after 2000.  In addition, Ms. Loohuizen had no lists for 4 reserves. 
    However, these omissions did not undermine the utility of the lists she did
    have, when looked at through the lens of what representativeness seeks to provide. 
    Undoubtedly it would have been better, from the perspective of completeness,
    had Ms. Loohuizen succeeded in obtaining current lists for all of the bands in
    the Kenora District.  However, for the reasons I have given I think this could
    have had only a marginal impact on the objective of representativeness.

[256]

I would
    therefore conclude that the band lists presented only a quite modest challenge
    to the representativeness obligation of the state in preparing the 2008 jury
    roll.  Moreover, to meet this challenge, Ms. Loohuizen in fact made a number of
    different efforts to acquire better lists, as my colleague has described.

[257]

In the end, an
    assessment of Ms. Loohuizens efforts on behalf of the state to meet the
    challenge for the jury roll process presented by the band lists requires
    consideration of these efforts in the context of the potential impact of the
    lists on representativeness.  A major challenge would require major efforts. 
    However as I have said, I view that impact as modest.  I would therefore conclude
    that, faced with this, her efforts were sufficient that, if this were the only
    challenge to the 2008 jury roll, I would not find that the state fell short of
    its constitutional obligation.

[258]

The second
    challenge for the state argued by the appellant was the relative difficulty in
    getting the questionnaires into the hands of the intended Aboriginal on-reserve
    recipients, compared to off-reserve residents.  For each group, the state would
    have known how many questionnaires were sent out and how many were returned as
    undeliverable.  The record points to a markedly worse experience for Aboriginal
    on-reserve residents.  It need hardly be said that since the on-reserve
    questionnaires were significantly less likely to be delivered, this
    significantly reduced the fair opportunity of Aboriginal on-reserve residents
    to have their perspectives included in the jury roll.  The delivery problem
    therefore presented a challenge that the state had to address.

[259]

Its
    constitutional obligation required it to make reasonable efforts to facilitate
    delivery of the questionnaires.  While there may be many reasons that do not
    involve the state for questionnaires not reaching their intended recipients,
    there are clearly steps the state could have taken to make successful delivery
    more likely, beginning with a search for the cause or causes and what the state
    might do to assist.

[260]

The difficulty
    here was the states inattention to this challenge.  It appears that virtually
    nothing was done over the years, including for the 2008 jury roll, to determine
    the cause or causes of the on-reserve delivery problem or what the state could
    do to alleviate it.  Ms. Loohuizen, who was left to do the heavy lifting for
    the state, described in detail the efforts she went to from 2001 to 2008 to
    include Aboriginal on-reserve residents in the jury roll process.  None
    addressed the delivery problem.

[261]

The record shows
    that not until 2011 were any steps taken by the state to try to do what it
    could to reduce the disparity between on-reserve and off-reserve delivery
    rates.  In that year, the state introduced new practices for reserves with high
    RPO rates, such as resending the questionnaires and contacting chiefs for
    assistance with deliveries.  In his report, Mr. Iacobucci offers another
    suggestion: when a questionnaire is returned within 30 days as undelivered,
    another questionnaire is sent out to another on-reserve resident.

[262]

It is not
    necessary to decide if these solutions to the delivery problem are
    constitutionally required.  What can be said is that faced with this
    substantial challenge, which impaired the fair opportunity of Aboriginal
    on-reserve residents to have their perspectives included in the jury roll,
    inaction by the state in the face of action that it could have taken cannot
    meet the reasonable efforts standard required by the representativeness right
    of the appellant.

[263]

The third
    challenge facing the state in preparing the 2008 jury roll and also argued by
    the appellant was the comparatively low rate of return from Aboriginal
    on-reserve residents to whom questionnaires were sent.  The comparison with
    off-reserve return rates was stark.  Off-reserve rates were typically four or
    five times higher than for on-reserve residents.  For the reasons I have
    described, the state knew of this discrepancy for a number of years.  Its
    impact on the underrepresentation of Aboriginal on-reserve residents on the
    annual jury roll is obvious.  The magnitude of the difference in return rates
    meant a significantly reduced opportunity for inclusion of Aboriginal on-reserve
    residents in the jury roll relative to off-reserve residents.

[264]

The states
    response to this challenge was once again left very largely to Ms. Loohuizen,
    occasionally with the advice of her superior at the PJC and in later years with
    some assistance from Justice Stach.

[265]

One obvious step
    for the state was apparently not taken.  There is nothing in the record to
    suggest that from 2001 to 2007 Ms. Loohuizen or any other state representative
    made a concerted effort to determine from Aboriginal on-reserve leaders why the
    response rates were so comparatively low, or what the state might do to help.

[266]

As with the
    delivery problem, there are undoubtedly many possible explanations for the
    comparatively low response rates from Aboriginal on-reserve residents that have
    nothing to do with the state.  The issue is what steps the state could
    reasonably have taken to address the problem.  The states representativeness
    obligation required it to make reasonable efforts to encourage those responses
     efforts that constitute an essential part of its obligation to seek to
    provide those residents with a fair opportunity to have their distinctive
    perspectives included in the jury roll.

[267]

Starting with
    the work in 2003 for the 2004 jury roll, Ms. Loohuizen and the PJC began to
    implement the one step that they thought would alleviate the problem.  The PJC
    increased the number of questionnaires sent to Aboriginal on-reserve
    residents.

[268]

The next year
    Ms. Loohuizen added a further increase, beyond the number called for by the
    Aboriginal on-reserve share of the districts population, to, as she said,
    help in a small way to offset our poor response rate.  That was followed by a
    smaller increase the following year and a more substantial one the year after
    (in 2006 for the 2007 jury roll) to help offset previously low response rates
    from on-reserve residents.  The results of the mailing in 2006, which starkly
    highlighted the low response rate challenge, led her, on Justice Stachs
    advice, to increase substantially the number of questionnaires sent to
    Aboriginal on-reserve residents the next year.  This was part of the
    preparation for the 2008 jury roll, the one at stake in this case.

[269]

It is thus
    apparent that over the years, the states focus was on increasing the number of
    questionnaires sent to Aboriginal on-reserve residents beyond their share of
    the population as the way to address the low response rate problem.  What is
    also striking however, is how unsuccessful this was, right from the beginning. 
    For the 2002 jury roll, before Ms. Loohuizen began this effort, a total of 57
    responses were received.  This figure was 44 in the 2006 jury roll year, 52 in
    2007, and 60 in 2008.  For the 2008 jury roll, the number of Aboriginal
    on-reserve questionnaires was increased from 484 to 600, an increase of 116. 
    It resulted in only 8 more responses than the year before  and only 3 more
    than the 57 that had been received in 2002 when 360 questionnaires were sent
    out.

[270]

The failure of
    this approach to successfully address the low response rate challenge was
    therefore apparent from early on.  Yet it was continued, up to and including
    the year in question in this case.

[271]

It is true that
    over this period of time, several other steps were taken that might possibly
    have assisted with this problem in a minor way.  None were, however, undertaken
    with that objective and the results demonstrate that none helped.  The plain
    English and syllabics covering letters sent with each questionnaire had always
    said that expenses would be paid for jury service.  Questionnaire recipients
    who had inquiries could seek assistance from Ms. Loohuizens office in Kenora. 
    In the summer of 2007 Ms. Loohuizen visited a number of reserves to discuss
    jury representativeness issues.  However, her major objective appears to have
    been to acquire updated band lists.  Indeed, given her junior position, it
    would have been too much to expect an in-depth discussion with band leaders
    about the cause or causes of low response rates or what the state could
    reasonably do to address them.

[272]

Mr. Iacobuccis
    report offers some considerable insight into what those discussions might have
    yielded had they taken place.  He described a number of reasons contributing to
    the low response rates that were identified by Aboriginal leaders.  He leaves
    no doubt that the problem is complex.  He concludes that it reflects broader
    issues like the dissonance between traditional Aboriginal approaches to
    conflict resolution and the approaches of the Canadian justice system, the
    historic discrimination in that system experienced by Aboriginal peoples, and
    their lack of understanding of the system.

[273]

However, Mr.
    Iacobuccis report offers several ways that the state could address the
    problem.  A clear prerequisite is discussion between Aboriginal leaders and
    senior Ontario officials.  People in junior positions such as Ms. Loohuizen
    should not be expected to shoulder that burden.  He also offers specific
    solutions such as a more comprehensive justice education program for Aboriginal
    people, a revised questionnaire to make it simpler and free of wording
    perceived by the recipients as threatening, and a change in practice so that if
    a questionnaire is not returned, another questionnaire is dispatched to another
    on-reserve resident.

[274]

I need not
    determine whether any of these proposals are constitutionally required.  They
    simply demonstrate that there are and were things the state could do to
    alleviate the problem, had it investigated.

[275]

It is sufficient
    to repeat that the state left the serious challenge of low response rates with
    a junior employee.  Through her, the state response, repeated year after year
    up to and including the 2008 jury roll can only be described as a failure.  No
    attempts to engage with Aboriginal leaders appear to have been undertaken to
    determine the causes of prior response rates or what other ameliorative efforts
    might be undertaken by the state to encourage responses.

[276]

I do not think
    that a failed response, coupled with a failure to explore other steps the state
    might have taken to help, can be said to constitute the reasonable efforts
    required of the state to address this problem and do what it reasonably could
    to provide Aboriginal on-reserve residents with a fair opportunity to have
    their distinctive perspectives included in the 2008 jury roll.  The challenge
    of low response rates was serious.  It required more from the state.

[277]

In summary, I
    would conclude that because of the states failure to make reasonable efforts
    to facilitate delivery of questionnaires to Aboriginal on-reserve residents and
    to encourage responses to them, Ontario failed to meet its constitutional
    obligation to the appellant in the preparation of the 2008 jury roll in the
    District of Kenora.

S.T. Goudge
    J.A.

Rouleau J.A. (Dissenting):

A.

Introduction

[278]

I
    have had the benefit of reading the reasons of both of my colleagues. Although
    I reach a different conclusion than they do, there is much in their reasons
    with which I agree. Specifically, I agree with LaForme J.A.s analysis of the
    law of representativeness in paras. 1 to 51 of his reasons and with his
    analysis of s. 15 of the
Canadian
Charter of Rights and Freedoms
.
    I also agree with his conclusion that the government has a special relationship
    with Aboriginal people.

[279]

However,
    as I will explain, I disagree with the majoritys application of the law to the
    facts of this case. I have concluded that the respondent was not in breach of
    its constitutional obligations and I would dismiss the appeal.

B.

OVERVIEW

[280]

In
    theory, the creation of a jury roll is a simple process governed by the
Juries
    Act
, R.S.O. 1990, c. J.3. In practice, however, this process can be fraught
    with difficulties ungoverned by the legislation. Many such difficulties arose
    during the creation of the 2008 Kenora jury roll. The issue in this case is
    whether the governments response to those problems was reasonable.

[281]

What
    is clear from my colleagues analyses and from the review conducted by Mr. Iacobucci
    (the Iacobucci Report) is that Aboriginal people who reside on reserves are
    seriously underrepresented on jury rolls produced in the district of Kenora.
    Together, my colleagues LaForme J.A. and Goudge J.A. identify three main causes
    of this underrepresentation: the lists being used to send jury questionnaires
    are unreliable; there are problems with the delivery of the questionnaires;
    and, most importantly, the response rate of on-reserve residents to the
    questionnaires is extremely low. It is equally clear that the problem has been growing
    for several years, and the governments efforts to increase the representation
    of on-reserve residents on the jury roll have been unsuccessful.

[282]

As
    I will explain below, up to and beyond 2007, the government did not know the
    full complexity of the problem: they thought the decline being observed in the
    representation of Aboriginal on-reserve residents on the jury roll was largely
    due to the difficulty they experienced in securing accurate, up-to-date lists
    of on-reserve residents. The appellant in this case also identified the list
    issue as the primary failing of the government, and both parties focused their
    arguments and fresh evidence on this point. Ultimately, I find that the
    government deployed reasonable efforts to obtain better lists; and, to the
    extent that those efforts were unsuccessful, reasonable steps were taken to
    ensure that on-reserve residents were still provided with the opportunity to
    contribute their distinctive perspective to the jury process, despite the
    deteriorating quality of the lists. This opportunity was provided by increasing
    the number of jury notices sent to on-reserve residents beyond what their
    proportionate numbers would have otherwise dictated, which reasonably compensated
    for the inaccuracies in the lists being used.

[283]

I
    find that the delivery issue identified by Goudge J.A. is largely a symptom of
    the inaccuracy of the lists. The government adequately addressed it through the
    aforementioned increase in the number of questionnaires sent.

[284]

The
    government was still struggling to better understand the complex problem of low
    and declining return rates in 2007-2008. It would take considerably more time
    and study if it was to be effectively addressed. With the benefit of the
    Iacobucci Report, we now know considerably more than was known then. It shows
    that the problem is extremely complicated: First Nations individuals feel
    alienated from the justice system and it is this sense of alienation that is at
    the root of their unwillingness to participate in the jury process. Importantly,
    the Iacobucci Report explains that there are no easy solutions. Several of its
    recommendations involve costs and would necessitate important policy and
    legislative changes, changes that ought not to be undertaken without considered
    study. Governments must be accorded time and leeway to react appropriately and
    effectively to emerging social, political, or economic conditions. Given what
    the government knew in 2007, and the sheer complexity of the problem, its
    efforts to address the low and declining response rates were reasonable in the
    circumstances.

[285]

In
    responding to a problem such as the one posed by declining response rates, the
    government has many options. It is not clear, however, where constitutional
    requirement ends and where good policy begins. Mobilizing government resources
    to encourage higher response rates from on-reserve residents is certainly good
    policy. Which, if any, of the recommendations made in the Iacobucci Report are
    constitutionally required is not for this court to decide. What is constitutionally
    required is that the government make reasonable efforts to give on-reserve
    residents a fair opportunity to bring their distinctive perspective to the jury
    process. Given what they knew at the time, the steps they took to address the
    problems of which they reasonably could have been aware, and the deference due
    to the governmental process, I find that the government discharged its burden
    in this case.

C.

analysis

[286]

I
    turn now to an analysis of the issues raised in this appeal.

(1)

Defining the Problem

[287]

A
    challenge we face in assessing whether the governments efforts were reasonable
    in this case is that there were (and are) two distinct, but related problems
    hindering on-reserve residents participation in the Kenora jury process. The
    first problem was that once the federal government stopped giving the province
    INAC lists, Ms. Laura Loohuizen had difficulty obtaining up-to-date lists of
    the residents of First Nation reserves in the Kenora district. This problem
    worsened each year as the INAC lists grew increasingly out of date.

[288]

The
    second problem was that fewer and fewer on-reserve residents were responding to
    jury questionnaires, and more and more of those who did respond were ineligible
    for jury duty. As shown by my colleagues, the gap between response rates from
    on-reserve residents and off-reserve residents widened significantly from the
    early 1990s to 2007. As I will explain however, up until quite recently, this
    deterioration in response rates was believed to be largely caused by the lists
    problem. In 2007, with the statistics relating to response rates in hand, the
    government would have become aware that the problem was more significant and
    more complex than previously thought and that  if a
marked
improvement in response rates was to be achieved  any
    solution would have to involve more than simply pursuing better lists. The
    Iacobucci Report has now made it apparent that although securing better lists
    will be an important first step towards increasing the representation of
    on-reserve residents on the jury roll, it will have but a limited ultimate
    impact on resolving the problem of low response rates.

[289]

I
    will first deal with the lists issue and then turn to the broader concern of
    the declining response rate from on-reserve residents.

(2)

The Lists Problem

[290]

Reasonable
    efforts to secure accurate lists are a statutory requirement under the
Juries
    Act
and a component of the governments
Charter
obligation to
    provide on-reserve residents with a fair opportunity to have their distinct
    perspective included on the jury roll. Despite the massive amount of fresh
    evidence filed, the exact impact of the various errors made by the government,
    both in collecting the band lists and in the use they made of those lists to
    create the jury roll, cannot be precisely known. As explained by my colleague Goudge
    J.A., however, the challenge to the representativeness of the jury roll
    presented by the band lists was quite modest. I agree with his conclusion that
    the government did not breach its constitutional obligation to make reasonable
    efforts to compile a representative jury roll by using the out-of-date INAC
    lists, by lacking lists for four reserves entirely, or by using post-
Corbiere
band lists, especially when assessed in light of what the principle of jury
    representativeness seeks to provide. I will give detailed reasons for my
    conclusion.

[291]

Before
    turning to my analysis, however, I think it is important to relate certain
    additional facts drawn from the record.

(a)

Some Facts

[292]

LaForme
    J.A. correctly notes that the on-reserve population of Kenora makes up an
    estimated 30.2% to 36.8% of the total population of that district. However, for
    the purposes of developing a jury roll, only those aged 18 years or older are
    relevant, because a person must be 18 to be eligible for jury duty. The on-reserve
adult
population actually makes up 21.5% to 31.8% of the total adult
    population of Kenora, which is a significantly lower proportion than that
    expressed by my colleague.

[293]

In
    2008, the number of jury notices sent to on-reserve residents was disproportionately
    high in comparison to off-reserve residents, which favoured their
    representation on the jury roll. This is because of the way Ms. Loohuizen
    conducted her calculations for the purposes of s. 6(8) of the
Juries Act
.
    In determining how many jury notices to send out to the on-reserve population
    for the 2003 to 2008 Kenora jury rolls, Ms. Loohuizen used the 1996 census
    figures for off-reserve residents who were 18 or older,
[24]
but she counted by hand the number
    of on-reserve residents who were 18 or older on the most recent band lists she
    received. As a result, for her calculations for the 2008 roll, her on-reserve
    adult figure would have partially reflected any population growth in that
    demographic since 1996. By contrast, the number of off-reserve adult residents
    remained static at its 1996 level. This favoured greater representation by
    on-reserve residents on the jury roll because it caused a disproportionately
    high number of jury notices to be sent to on-reserve residents in comparison to
    off-reserve residents. This effect may have been magnified because, as compared
    to the off-reserve population of the district, the on-reserve populations were
    disproportionately young. This is reflected in the appellants population
    estimates, which show that the proportion of the 18-and-over population of
    Kenora District living on-reserve increased
from
    between 17.1% and 30.6% in 200
1
to
    between 21.5% and 31.8% in 2006
.

[294]

In
    numerical terms, Ms. Loohuizens use of the manually-updated numbers generated
    a requirement that 403 questionnaires be sent to on-reserve residents. Had she
    not updated the on-reserve figure and instead used the 1996 census figures for
    both on- and off-reserve populations, the requirement would have been to send
    only 334 questionnaires to on-reserve recipients.
[25]

[295]

Once
    Ms. Loohuizen and Justice Stach became aware of the low rate of return of
    questionnaires by on-reserve residents, they further increased the number of
    questionnaires sent to them to 600. This represents an increase of 266
    questionnaires over the number required by the 1996 census figures (which was
    334). It represents an increase of 197 questionnaires over the number required
    by Ms. Loohuizens manually-adjusted figure (which was 403).

[296]

It
    is also important to note that the list used to send off-reserve questionnaires
    is produced by MPAC. However, that list is only updated every three years, and
    its addresses will therefore regularly be out of date to some extent as well.

[297]

With
    these background facts in mind, I will now turn to assessing how each of the
    problems with the lists used by Ms. Loohuizen impacted the principle of the
    representativeness of the jury roll.

(b)

The Outdated Lists

[298]

I
    acknowledge that the use of the outdated INAC lists from 2000 directly impacted
    the opportunity of on-reserve residents to be selected for jury duty:
    on-reserve residents listed there who had died or moved off of the reserve
    after the lists were prepared may have been sent questionnaires which they
    would not have received. The fresh evidence shows that, during the relevant
    period, the number of questionnaires returned by the post office as not
    delivered increased  a clear indication that the problem did exist and was
    worsening. However, as shown by the facts outlined above, the increase in the
    number of jury notices sent to on-reserve residents likely compensated for the
    inaccuracy of the lists, such that the perspective of on-reserve Aboriginal
    people was given a fair opportunity to be included on the jury roll.

(c)

The Missing Lists for
    Four Reserves

[299]

Some
    of the list-related errors made by the government had little or no impact on
    whether the perspective of on-reserve residents was reasonably made available
    for inclusion on the jury roll. For example, the failure to identify three
    reserves as being located in the Kenora district, and the failure to obtain a
    list from a fourth reserve, means that residents of those reserves did not
    receive jury notices.
[26]
However, the number of questionnaires sent to those reserves for which lists
    were available was increased well above the number that, proportionately,
    on-reserve residents should have received. In the result, the questionnaires
    received by the 42 reserves for which lists were available would likely have
    compensated for the four that received no questionnaires.

(d)

The Effect of
Corbiere

[300]

The
    impact of still other errors or inaccuracies was equally minimal. An example is
    the governments failure to recognize the practical effect of the Supreme Court
    of Canadas decision in
Corbiere

v. Canada (Minister of Indian and
    Northern Affairs
), [1999] 2 S.C.R. 203. As explained by my colleague
    LaForme J.A., this error meant that some of the lists being used by Ms.
    Loohuizen included band members who were not resident on the reserves. The
    effect of this overinclusiveness was twofold. On the one hand, it artificially
    inflated the number of on-reserve residents, as calculated by Ms. Loohuizen,
    thereby increasing the number of questionnaires to be sent to on-reserve
    residents beyond what it would have been otherwise. On the other hand, some
    questionnaires directed to on-reserve residents were sent to off-reserve
    residents who likely did not receive them. The net impact, however, was likely
    negligible: statistically speaking, the number of misdirected questionnaires
    ought to roughly equal the number of additional questionnaires sent because of
    the larger list of residents.

(e)

The Governments
    Response to the Lists Problem Was Reasonable

[301]

The
    government can properly be faulted for some of the failures described above.
    The standard is not one of perfection, however, and the issue for this court to
    decide is whether the government deployed reasonable efforts in response to
    problems of which it was or ought reasonably to have been aware. The government
    knew about the problems with the INAC lists. It responded in two ways: it tried
    to obtain new lists, and it tried to compensate for the fact that it was using
    older lists in the meantime.

[302]

LaForme
    J.A.s reasons, at paras. 101 to 107, outline some efforts the government
    deployed to obtain accurate, up-to-date lists to replace the INAC lists. He
    finds fault, however, in these efforts. I agree that the response was limited
    in the early years. This, however, was understandable. That the lists were one
    or two years old is insignificant, given that the MPAC information is only
    updated every three years. Also, when Ms. Loohuizen sent letters to the chiefs
    in 2002, she likely expected that lists would be provided shortly thereafter in
    response to this request. Clearly, when no lists were forthcoming, more needed
    to be done. This led to the further efforts outlined in LaForme J.A.s reasons
    and to the greater involvement not only of Ms. Loohuizen, but also of Ms.
    Peacock and Justice Stach. In 2007, Ms. Loohuizen alerted the Assistant Deputy
    Minister to the problem. The government then considered whether policy and
    legislative changes would be required, and later appointed Mr. Iacobucci.

[303]

This case is not like
R. v. Nahdee
(1993), 26 C.R. (4th) 109 (Ont. C.J. (Gen. Div.)), where
    the Court

found that the government failed in its obligation to obtain
    lists of on-reserve residents from which to compile the jury roll. In that case,
    the sheriff had not obtained any lists for the bulk of the reserves located in
    the district. The sheriff had only sent a single request for such lists. The Court,
    at para. 20, explained that these efforts were unacceptable and that the government
    must exercise diligence, resourcefulness, ingenuity and perhaps persuasion,
    extending beyond mailing a single request. The situation in the present case
    is quite different, in that Ms. Loohuizen had lists for the vast majority of
    the reserves in Kenora. The problem was that, as time passed, they were growing
    out of date.

[304]

The
    governments response, however, was not limited to the attempt to obtain better
    lists. To compensate for the inaccuracy of the current lists, the government,
    at the direction of Justice Stach, substantially increased the number of
    questionnaires sent to on-reserve residents over and above what their over-18
    population figures required. As noted earlier, the number of questionnaires
    that would have been sent based on the 1996 census data was 334; and, using Ms.
    Loohuizens figures, it was 403. As a result of Justice Stachs direction, the
    number of jury notices sent to on-reserve residents was increased to 600. In my
    view, this constituted a reasonable effort to provide on-reserve residents with
    the opportunity to bring their distinctive perspective to the jury process. In
    so finding, I am not suggesting that we can know for a fact that the increase
    in the number of jury questionnaires sent to on-reserve residents compensated
    with mathematical precision for the inaccuracies in the lists being used. The
    increase may have been too large or too small. However, given the way the
    matter developed, these efforts by the government were reasonable for the
    purposes of the 2008 jury roll.

(3)

The Delivery
    Problem

[305]

Before
    turning to the issue of declining response rates, I wish to address a point discussed
    by my colleague Goudge J.A. He asserts that the increase in the number of
    questionnaires addressed to on-reserve residents being returned as
    undeliverable was an independent problem faced by the government  separate and
    apart from the lists issue  to which the government failed to react until 2011.
    In my view, this concern is not well founded. The rising number of
    undeliverable questionnaires is directly related to the deteriorating quality
    of the lists. As the lists grew older, they would include a greater number of
    persons who had either died or moved off of the reserve. In addition, new lists
    obtained by Ms. Loohuizen from the reserves were often voters lists and,
    pursuant to the
Corbiere
decision, included the names of some
    off-reserve band members. Because the questionnaires are usually sent general
    delivery to the various reserves, these intended recipients would obviously not
    pick up their mail at the post office within the 30-day period for doing so. As
    a result, with each year that passed, an increasing number of questionnaires
    were returned as undeliverable. This is another reason why Justice Stach
    directed that the number of questionnaires sent to on-reserve residents be
    increased to 600. In my view, the problem of undeliverable questionnaires is
    encompassed in the list quality problem and was addressed appropriately by the government.

(4)

The Response Rate
    Problem

[306]

In
    reaching the conclusion that the government did not deploy reasonable efforts
    as required by the
Charter
, both of my colleagues rely on the fact
    that while the government knew return rates were deteriorating, little was done
    to encourage on-reserve residents to respond to jury notices, and Ms. Loohuizen
    was left to address the problem with no involvement of senior MAG staff. I
    respectfully disagree. The government was responding adequately to the problem
    as it was then understood. Starting in 2007, it would have become increasingly
    apparent that the problem was, and is, complex. In order to bring about an
    effective solution, time, study and consultation are needed. Furthermore, any
    solution will likely involve costs, as well as policy and legislative changes
    whose ramifications must be carefully considered. Below I will discuss what was
    known, what was done and, finally, what is required to address the issue as it
    is now understood.

(a)

What Was Known at the
    Time

[307]

This
    court has had the benefit of a massive amount of fresh evidence that contains a
    considerable amount of after-the-fact analysis of the information available in
    2007, as well as data generated subsequently. I am reminded of a quote attributed
    to Galileo: All truths are easy to understand once they are discovered; the
    point is to discover them.

[308]

Although
    the PJC would, as noted by my colleagues, have had the raw data from which to
    calculate the response rates to jury questionnaires by on-reserve residents,
    nothing in the record before us suggests that prior to January 2007, the PJC
    had interpreted the data by carrying out the necessary compilation and
    calculations. January 2007 was the first time that the actual response rate was
    quantified, and the severity of the problem was known and communicated to Ms.
    Loohuizen.

[309]

This
    is not to say that the PJC and Ms. Loohuizen were not aware that response rates
    from on-reserve residents were lower than the rates for off-reserve residents.
    The fact that on-reserve residents were less likely to respond to jury notices was
    known in the 1990s.

[310]

Even
    when the hard data about on-reserve response rates became available in 2007,
    however, it was still thought that this low rate was principally due to the
    fact that since 2000, the government had been unable to obtain accurate and
    up-to-date lists of on-reserve residents. This belief endured after 2007, as appears
    from this courts decision in
Pierre v. McRae, Coroner,
2011 ONCA 187,
    104 O.R. (3d) 321. The court concluded, at para. 68, that the
    underrepresentation of Aboriginal individuals living on reserves on the Kenora
    jury roll was due to the INAC lists not being available and the fact that
    court officials did very little to obtain other records.

[311]

The
    appellants principal concern in this case was the deteriorating quality of the
    lists and this issue was viewed by the parties as the cause of the low response
    rate. The appellant only addresses the response rate, in the sense of it
    constituting a separate problem, at para. 76 of his factum. There he explains
    that because no one was responsible for reviewing and comparing response rates,
    no one was in a position to identify the extent of the ongoing problem, let
    alone assess whether additional efforts ought to be made or changes
    implemented. Although the appellants factum also contains some brief
    discussion of the RPO rates, the submissions and the fresh evidence filed in
    this matter dealt almost exclusively with the lists and on the efforts made by
    the government to obtain better, updated lists.

[312]

With
    the benefit of hindsight only, it becomes clear that the problem of declining response
    rates exists quite independently from the inadequacy of the lists being used. I
    turn now to address the issue of what was done in response to that problem, as
    it was understood at the time.

(b)

What Was Done

[313]

When
    Ms. Loohuizen was told the actual response rate in 2007, she advised Justice Stach
    and together they determined that the best way to respond was to increase the
    number of questionnaires sent to on-reserve residents. Given what they knew and
    the time they had to act, this action was appropriate and meets the reasonable
    efforts standard.

[314]

My
    colleague Goudge J.A. finds fault with this initiative, remarking that it is
    striking how unsuccessful it was. He points to the number of responses received
    from on-reserve residents over the 2002 to 2008 period to support his
    conclusion. In his view, set out at para. 263 of his reasons, the persistent
    and large difference between the return rates from on- and off-reserve
    residents meant a significantly reduced opportunity for inclusion of Aboriginal
    on-reserve residents in the jury roll relative to off-reserve residents.

[315]

I
    disagree with his conclusions for two reasons.

[316]

Firstly,
    the issue is whether the governments efforts were reasonable in light of the
    information they had. In my view, the governments action of increasing the
    number of questionnaires sent to on-reserve residents had a significant impact
    and, in the circumstances, was reasonable. In point of fact, the numbers set
    out at para. 269 of Goudge J.A.s reasons show that this effort did result in
    more responses being received by the PJC. The number of responses received
    increased from 44 in 2006 to 60 in 2008, which is greater than the 57 responses
    received in 2002 when the list problems began.
[27]
The governments efforts were not made with a view to solving the underlying issue,
    they were made to offset its effect pending a better understanding of the
    problem and the implementation of appropriate remedial steps.

[317]

Secondly,
    and more importantly, I disagree with Goudge J.A.s description of the
    constitutional obligation imposed on the government, as stated at para. 263 of
    his reasons and as I have quoted above. The government has to offer all groups
    with a distinct perspective a reasonable opportunity to have their views
    included on the jury roll. The fact that a particular group responds in lower
    numbers to the invitation to participate, and this despite the offer and
    encouragement of the government, does not mean that they have a significantly
    reduced
opportunity
for inclusion (emphasis added). In other words, a
    low response rate does not necessarily mean the government has failed to
    perform its constitutional obligations. As observed in the Iacobucci Report,
    the reasons for which on-reserve residents choose not to participate in the
    jury process are complex. No doubt there are many other groups that, for their
    own reasons, also respond in lower numbers to that offered opportunity. The
    reasonable efforts of the government must be viewed in the context of their
    efforts to offer all Ontario residents the opportunity to participate in the
    jury process and to encourage them to respond favourably. Before concluding
    that the governments efforts are constitutionally deficient with respect to a
    particular group, however, it must be shown that the government was or should
    have been aware of the reduced response rates, there were reasonable efforts
    available to it to encourage an increase in responses from this group, these
    efforts would have had a realistic prospect of success, and these efforts were
    not undertaken. What will be considered as reasonable efforts involves a
    consideration of factors such as costs, policy implications, and the broader
    impact on the functioning and constitutionality of the provincial jury system.
    The record before us does not, in my view, support finding that the
    governments efforts fell short in that regard.

[318]

Moreover,
    Ms. Loohuizen implemented several other initiatives intended to increase
    on-reserve residents participation in the jury process, beyond increasing the
    number of jury notices. Ms. Loohuizen recognized that on-reserve residents
    faced significant challenges to participating in the jury system that are not
    necessarily faced by other Ontario communities. Some of her initiatives to
    address these challenges are set out in paras. 190 to 193 of LaForme J.A.s
    reasons, initiatives such as providing a toll-free number on juror summonses,
    calling juries on Tuesdays rather than Mondays to accommodate travel from
    remote communities, and assisting in making travel arrangements. I consider that
    steps like these would, in a small way, serve to convey to those receiving jury
    notices that the court valued their participation and was sensitive to their
    needs. This, it was hoped, would translate into increased willingness to participate
    in the jury process by on-reserve residents.

[319]

My
    colleagues argue, however, that the governments actions were unreasonable because
    Ms. Loohuizen was left to address the problem without the assistance and
    support of senior MAG personnel. This failure to involve senior management is
    an important component in their assessment that reasonable efforts were not
    deployed as required by the
Charter
.

[320]

Their
    criticism misses the mark, in my view. The local court office would have the
    benefit of local knowledge and be able to develop a working relationship with
    the various First Nations in the district. Further, the fact that Ms. Loohuizen
    was the person principally responsible for working with the Kenora First
    Nations was consistent with s. 6(8) of the
Juries Act
, which appoints
    the local sheriff as responsible for this task:

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.

The Act is not challenged in this proceeding. Leaving
    Ms. Loohuizen with the primary responsibility for this issue was also in
    accordance with MAG policy, a policy that applies to all districts in the
    province.

[321]

In
    addition, the record shows that Ms. Loohuizen was not operating alone. She was
    working under the direction of both the local judge and Ms. Peacock, her
    supervisor. She consulted with them and a local elder, and she spoke to several
    chiefs in the district as she sought solutions to the problem.

[322]

When
    Ms. Loohuizen was informed of the actual rates of response in 2007, she would
    have realized that the problem was more serious than she had previously
    understood and may be beyond the scope of her powers to resolve. As mentioned
    above, she reported the problem to the Assistant Deputy Minister in 2007. As
    noted by Ms. Peacocks comment that its gone up to Corporate. Weve made
    noise and its in their hands, by August 2008, higher echelons in MAG were
    seized of the matter and were considering the need for policy and legislative
    changes. Ms. Loohuizen also started working with the Ontario Justice Education
    Network and MAGs policy division in order to devise ways to educate on-reserve
    residents about the jury system and to improve response rates.

[323]

In
    any event, even if senior management had become involved earlier than it was
    and some improvement in the situation was thereby achieved, it would only have
    obviated the need for such a large increase in the number of questionnaires
    sent to on-reserve residents.

[324]

As
    a result, when viewed in context, I consider the governments efforts to
    address the problem of the low response rates to be reasonable.

[325]

One
    last issue I wish to address briefly is my colleagues argument that Ms.
    Loohuizen and the PJC ought to have prepared all of the reports and evaluations
    required by PDB #563. They argue that had the respondent and its agents done
    so, it would have known about the low response rates earlier, and could have
    taken steps to remedy the situation before 2008.

[326]

It
    is certainly regrettable that the reporting required by the policy was not
    consistently made. Better reporting would potentially have allowed Ms.
    Loohuizen to know the extent of the low return rates sooner. It is not clear,
    however, to what extent these reports would have assisted in shedding more
    light on the cause of the low response rates and alerted MAG to the fact that
    the problem was largely independent of the deteriorating quality of the lists
    being used. Furthermore, I do not view that a failure to submit some of the
    reports provides a basis for concluding that the respondent breached its duty
    to make reasonable efforts and that the juries constituted during those years
    were not
Charter
-compliant.

(c)

What Is Required

[327]

Even
    with the benefit of hindsight, my colleagues offer only a few directions as to
    what the respondent ought to have done to address the challenge posed by the
    declining response rates. Moreover, these suggestions are principally directed at
    improving the quality of the lists: for example, one central proposal is that
    senior MAG personnel ought to have been involved earlier in the negotiations with
    band leadership to obtain lists.

[328]

It
    must be recalled, however, that Ms. Loohuizen and Justice Stach were aware of
    the problems with the lists. By increasing the number of questionnaires sent,
    they took appropriate and reasonable steps in the circumstances to compensate
    for their deteriorating quality and the unavailability of new, replacement
    lists. To the extent that my colleagues suggestions would have produced better
    lists, this would simply have eliminated the need to increase the number of
    questionnaires as done by Ms. Loohuizen and Justice Stach.
[28]
Implementing their suggestions would
    not, by and large, have resolved the problem of declining return rates.

[329]

That
    problem is highly complex and will require very different solutions that will
    take time to implement. As the Iacobucci Report found, the low return rates and
    consequent underrepresentation of on-reserve residents on the jury roll are
    symptoms of a much broader problem. As Mr. Iacobucci explained, at
2
:

An examination of that problem [the underrepresentation of
    individuals living on reserves on Ontarios jury roll] leads inexorably to a
    set of broader and systemic issues that are at the heart of the current
    dysfunctional relationship between Ontarios justice system and Aboriginal
    peoples in this province. It is these broad problems that must be tackled if we
    are to make any significant progress in dealing with the underrepresentation of
    First Nations individuals on juries.

[330]

Resolving
    the low response rate problem which, in turn, causes the underrepresentation
    problem, will therefore likely require a review of both policy and legislation.
    When the PJC calculated the on-reserve response rates in 2007, MAG would have
    realized that the problem of low response rates had worsened significantly. By
    then it would have also realized that more accurate lists might not be
    forthcoming. MAG then began the process of considering the need for changes to
    its policies and to the legal framework for assembling jury rolls. The October
    23, 2007 briefing note prepared by Ms. Peacock, the Supervisor of Court
    Operations for Kenora, is an indication that this policy development process
    was being undertaken.

[331]

But
    when a government is faced with a problem of this complexity, and it must
    contemplate policy changes and legislative reform, as well as the expenditure
    of scarce resources, it should not have to act precipitously. In my view, the
    government cannot be faulted for taking the time necessary to fully understand
    the root causes of the problem; consider options available to it to bring about
    a resolution; undertake the studies it needs to be reasonably confident that
    the proposed changes will actually help; and inquire into and weigh the broader
    ramifications of any changes being considered. Once this process is complete,
    the government should act. As set out by Deschamps J. in
Chaoulli v. Quebec
    (Attorney General)
, 2005 SCC 35, [2005] 1 S.C.R. 791, the courts must show
    deference to the government when they are called upon to change policy or
    legislation because of the emergence of new social, economic or political
    conditions. As Deschamps J. explains, at para. 95, deference is often accorded
    to the government in recognition of the facts that it is up to the government
    to choose the measure, that the decision is often complex and difficult, and
    that the government must have the necessary time and resources to respond.

[332]

Such
    caution by the government is particularly warranted in this case because the policy
    and legislation in question applies to the preparation of jury rolls in every
    district in Ontario. Changes must be approached thoughtfully, as there can be
    important broader implications. Particularly, before deciding to target a specific
    group for greater participation in the jury process, care must be taken to
    ensure that the constitutionally-required randomness of the jury roll is
    maintained. The policy now in place encourages individuals to respond to
    questionnaires by making it a legal requirement. This policy applies equally to
    every Ontarian, whether that Ontarian is a member of an underrepresented group,
    a group reluctant to participate in the jury system, or a group eager to
    participate. This case has highlighted the underrepresentation of a particular
    group, Aboriginal people residing on reserves. Because of the structure of the
Juries
    Act,
that groups response rate can be calculated. The response rates of
    other disadvantaged groups cannot be so easily calculated, as they are grouped
    with all off-reserve residents on the MPAC list. Representativeness of the jury
    roll requires that all distinct perspectives have a fair opportunity to
    participate in the process. A decision to target one particular group to
    encourage their participation should not be done hastily without having
    considered its potential ramifications.

[333]

Commissioning
    a review such as the one conducted by Mr. Iacobucci is an appropriate response
    to a polycentric problem like that faced here by the government. The Iacobucci
    Report was an important step in the study of the problem and outlined several
    possible approaches to solving it. Which of the Reports many proposals, if
    any, come within the governments obligation to make reasonable efforts is
    not for this court to decide. Some, however, clearly go beyond what is
    constitutionally mandated and fall squarely within the realm of government
    policy.

[334]

The
    failings raised by the appellant do not rise to the level of a constitutional
    breach, given the current structure of the
Juries Act
; the state of
    knowledge in 2007; and the steps taken by the government to secure better lists,
    ensure the delivery of jury questionnaires, and encourage their return. The
    obligation of the government is to make reasonable efforts, not all efforts and
    not fruitless efforts. As I have explained, the government should also be given
    the appropriate time to study the problem, develop a proposed solution, and
    bring about its implementation. The complexity of the problem in this case
    meant that the governments efforts were reasonable in all of the
    circumstances, and therefore in compliance with its
Charter
obligations.

D.

Section 629 of the
Criminal Code

[335]

The
    appellant also argues that the conduct of the government in preparing the jury
    roll constitutes partiality, fraud or wilful misconduct under s. 629(1) of the
Criminal
    Code, R.S.C. 1985, c. C-46
. I would not give effect to this submission.
    Although the government made errors and oversights in the preparation of the
    jury roll, the record demonstrates the good faith and sustained efforts of the
    various persons involved and their concern to ensure on-reserve residents be
    provided a fair opportunity to participate in the jury process.

E.

CONCLUSION

[336]

For
    these reasons, I would dismiss the appeal.

Released: June 14, 2013 (S.T.G.)

Paul Rouleau
    J.A.





[1]
Coroners juries are also selected from the annual jury roll.



[2]
Section 2 of the
Indian Act
, R.S.C. 1985, c. I-5, defines reserve as a
    tract of land, the legal title to which is vested in Her Majesty, that has been
    set apart by Her Majesty for the use and benefit of a band.  Unless otherwise
    specified in these reasons, reserve and First Nation will mean the same
    thing and refer to reserves as defined in s. 2 of the
Indian Act
.



[3]
This figure, prepared by counsel for the appellant, does not appear to be
    disputed by the respondent.



[4]
Estimates prepared by counsel for the appellant, which the respondent does not
    appear to dispute, range from 30.2% to 36.8%.



[5]
Section 2 of the
Indian Act
defines an Indian
as a person who
    pursuant to this Act is registered as an Indian or is entitled to be registered
    as an Indian.
Unless otherwise specified in
    these reasons, Indian and Aboriginal will mean the same thing and refer to
    Indians as defined in s. 2 of the
Indian Act
.



[6]
NAN
    is a First Nations political territorial organization representing the
    political, social and economic interests of its communities to all levels of
    government. NAN territory encompasses James Bay Treaty 9 territory and
    Ontarios portion of Treaty 5. NAN represents 49 First Nations Reserve
    communities throughout Ontario. Of the 46 Reserves located in the judicial
    district of Kenora, NAN represents 30. It should be noted that NAN does not
    keep band lists for its constituent First Nations communities.



[7]
This department of government is now called Aboriginal Affairs and Northern
    Development Canada. Because most of the materials filed in this matter refer to
    INAC, that is the designation that will be used throughout these reasons.



[8]
Section 2 of the
Indian Act
defines a band as a body of Indians (a)
    for whose use and benefit in common, lands, the legal title to which is vested
    in Her Majesty, have been set apart before, on or after September 4, 1951, and
    a band list as a list of persons that is maintained under s. 8 by a band or
    in the Department. Section 8 states, There shall be maintained in accordance
    with this Act for each band a Band List in which shall be entered the name of
    every person who is a member of that band.



[9]
Exhibit C, Affidavit of Shaun Joy. The exhibit notes that: These figures are
    based on the historical records available to the PJC. Report prepared by
    Provincial Jury Centre Staff.  There is no explanation that I know of as to
    why this calculation is available in 2002, but not for 2000-2001 and 2003-2005.



[10]
This breakdown included the number of responses that were determined to be
    eligible, the number of responses that were determined to be ineligible, the
    number of questionnaires returned by the post office, the number for whom the
    addressee was deceased, and the number of questionnaires to which there was no
    response.



[11]
I say apparently because exhibit C to the Joy affidavit states that [t]hese
    figures are based on the historical records available to the PJC.  On this
    basis, these figures either were collected or could have been collected at the
    time.



[12]
Sheila Bristo, Acting Director, Corporate Planning Branch, CSD,
    cross-examination at  214-215.



[13]
Very generally, and with respect and any necessary apologies, it is said that
    an Elder is traditionally an individual known in the Aboriginal community as a
    person who holds the knowledge, history, ceremonies, songs, dances and cultural
    traditions of the community. Elders are viewed by Aboriginal people as role
    models and they hold an esteemed place of respect in the Aboriginal community.



[14]
Saugeen First Nation, which was mistakenly included within the reserves of
    Kenora District, continued to be included for s. 6(8) purposes even after
CSD
confirmed the boundaries of the district.



[15]
Again, this figure as presented by counsel for the appellant does not appear to
    be disputed by the respondent.



[16]
This figure is for 2010-2011 and includes both provincial and federal custody.
    See Mia Dauvergne, Adult correctional statistics in Canada, 2010/2011,
    Juristat 2012 at 11, online: Statistics Canada <http://www5.statcan.gc.ca/bsolc/olc-cel/olc-cel?catno=85-002-X201200111715&lang=eng>.



[17]
The appeal in respect of the appellant Ipeelee was allowed; the appeal in
    respect of the appellant Ladue, which was heard and decided together with that
    of Ipeelee, was dismissed.



[18]
I note that this case focused on the sheriffs compliance with s. 6(8) in
    obtaining any list available, as opposed to a
Charter
claim (although
    the decision did mention the
Charter
).



[19]
It appears that data collection documenting response rates was done for the
    judicial district as a whole. Reserve-by-reserve data compilation would only
    begin in 2009.



[20]
Again, I say apparently because this evidence was based on historical
    records available to the PJC.



[21]
In
    her cross-examination, Ms. Bristo acknowledged that MAG was aware of the
    historic low rates, if not the exact extent.



[22]
This is in addition to a fourth, Neskantaga/Lansdowne House, for which Ms.
    Loohuizen also lacked a list.



[23]
The only exception was that questionnaires for one reserve were sent to the
    bands address, a rural route in Kenora since 2007.



[24]
The district of Kenora continued to use the 1996 census for the purposes of its
    jury roll until 2009.



[25]
The appellant provides this figure at footnote 278 of his factum.  Because it
    is calculated using 1996 census data, which excludes some incompletely
    enumerated reserves, 334 may understate the appropriate number of
    questionnaires.



[26]
The three were Kashechewan, Marten Falls, and
    Koocheching, and the fourth was Neskantaga/Lansdowne House. While both
    Kashechewan and Marten Falls were overlooked due to a misunderstanding of the
    Kenora Districts boundaries, CSD staff in Thunder Bay had been including
    Marten Falls within Thunder Bay District and had a corresponding 2000 INAC list
    for that reserve. The record demonstrates that although Ms. Loohuizen was
    unaware until 2007 that Koocheching had separated from Sandy Lake, she believed
    that its population may have been captured in Sandy Lakes 2000 INAC list. It
    is not clear from the record that this belief was incorrect. She also included Saugeen
    First Nation, although it is not located within Kenora District.



[27]
It is important to note that despite this rise in responses, the number of
    questionnaires returned by on-reserve residents in 2008 would have to have been
    higher still if it was to have kept pace with the increase in the number of
    questionnaires sent to off-reserve residents that was necessary to accommodate
    the number of juries needed in the district that year.



[28]
Experience has shown that obtaining updated lists from the reserves actually
    produces worse results than using the INAC lists, however. The analysis carried
    out by the respondent regarding the 2011 Kenora jury roll suggests as much. For
    the 2011 jury roll, the government used 24 INAC lists and 18 more recent lists
    received from the chiefs of reserves. These 18 lists were dated between 2006
    and 2010. Of the 313 questionnaires sent to persons on the INAC lists, 39 (or
    12.5%) were filled out and returned. Of the 371 questionnaires sent to persons
    on the more recent lists, 26 (or 7.0%) were filled out and returned.


