





CITATION:
R. v. Kokopenace, 2011 ONCA 635



DATE: 20111007



DOCKET: M40566 and M40567 (C49961 and C48160)



COURT OF APPEAL FOR ONTARIO



Goudge, LaForme and Rouleau JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Clifford Kokopenace



Applicant



and



Clare
          Spiers



Applicant



and



Nishnawbe
          Aski Nation, Bushie Family and Pierre Family



Interveners



Heard: October 6, 2011



By the Court
:



[1]

Both the appellants and the Crown seek directions from the court about
    how to proceed with the appellants applications for disclosure of certain Band
    lists in furtherance of their constitutional challenge to their convictions. 
    The issues that must be resolved in order to ultimately answer the disclosure
    question are:

(1)       Whether the Crown is able to assert public
    interest privilege over the documents;

(2)       If not, whether a
Stinchombe
process or an
OConnor
process is to be used;

(3)       Whichever of these two be used, whether
    disclosure is required.

[2]

The major difference of opinion is whether these issues should be argued
    one after the other at a single hearing as the appellants propose, or whether
    the privilege issue should be heard and decided first, as the Crown submits.

[3]

In our view these three issues should be argued at a single hearing, and
    then decided.  We recognize that this will require the giving of notice to the
    Bands whose lists are being sought.  We are of the view that this notice should
    encompass all three issues.  We recognize that the service of these notices
    carries with it the possibility that some of the Bands may wish to exercise
    their rights to attend and make submissions on all three issues.

[4]

We reach this conclusion for a number of reasons:

(1)       The primary objective of this court must
    be to proceed as expeditiously as possible to hear the constitutional challenge
    to the convictions of the two appellants on serious criminal charges.

(2)       This objective is best served by
    convening a single hearing to resolve all three issues.

(3)       Given the time estimates of counsel, the
    record necessary for the hearing of these three issues and thus disposing of
    the appellants applications can be completed in time for the single hearing to
    take place in the week set aside for these appeals in November.

(4)       The service of notices encompassing all
    three issues serves to give an element of transparency to this step in the
    process that is always desirable in the interest of justice.  The notices will
    ensure that, whoever has present custody of the lists, the Bands whose lists
    they are, will know about the proceeding and the issues that affect those
    lists.

(5)       We recognize that the giving of notice
    may pose some risk to the relations between Bands and the Crown and for the
    important work of the Iacobucci Inquiry.  That risk remains to some degree, an
    imponderable.  Although we have no direct evidence concerning the risk from the
    Bands themselves the Crown and NAN both described it.  In all the circumstances
    however, we view the risk as acceptable, particularly given an appropriately
    worded notice, a notice mandated by the court, the objective of proceeding
    expeditiously with these appeals and most importantly, an understanding that
    the objective of the process of which notice is a part is to ensure that First
    Nations accused receive a fair trial as required by the Constitution.

[5]

We therefore direct the following:

(1)       These applications encompassing these
    three issues be heard at a single hearing commencing November 28, 2011.

(2)       Notice be given to those Bands whose
    lists are referred to in paragraph 1 of the Crowns factum together with the
    two Simcoe County Band lists.

(3)       Those Bands to be served which are
    members of NAN be served through Mr. Falconer.

(4)       The remaining notices be served by the
    Crown on each non-NAN Band.

(5)       Rouleau J.A. continue his case management
    role including the time table for the completion of the application records,
    the content and timing of the notices, the time assignments for the hearing and
    all other matters necessary to have these applications heard as directed.

RELEASED: October 7, 2011 (S.T.G.)

S.T. Goudge J.A.

H.S. LaForme
    J.A.

Paul Rouleau
    J.A.


