





CITATION:
R. v. Kokopenace, 2011 ONCA 759



DATE: 20111201



DOCKET: M40566 (C49961) and M40567 (C48160)



COURT OF APPEAL FOR ONTARIO



Goudge, LaForme and Rouleau JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Clifford Kokopenace

Applicant (Appellant
          in C49961)

AND BETWEEN

Her Majesty The Queen

Respondent

and

Clare Alexander

Spiers



Applicant (Appellant in C48160)



Delmar Doucette and Jessica Orkin, for the applicant Clifford
          Kokopenace

Anthony Moustacalis and Jessica Orkin, for the applicant Clare
          Alexander Spiers

Dennis Brown, Ria Tzimes, Darrell Kloeze, Michal Fairburn and
          Deborah Calderwood for the respondent

Julian N. Falconer and Sunil S. Mathai, for the intervener
          Nishnawbe Aski Nation (
NAN
)

Jonathan Rudin and Christa Big Canoe, for the intervener
          Bushie Family and Pierre Family



Heard: November 29, 2011



Application for disclosure in
          relation to the appeals from the conviction entered by Justice Erwin W. Stach
          of the Superior Court of Justice, sitting with a jury, dated June 17, 2008 and
          on appeal from the conviction of Justice J. Robert MacKinnon of the Superior
          Court of Justice, sitting with a jury, dated December 3, 2007.



By the Court:



OVERVIEW

[1]

The applicant Kokopenace and the applicant Spiers (collectively, the 
applicants
)
    seek disclosure, or in the alternative, production of certain records from the
    Crown or from the Court Services Division of the Ministry of the Attorney
    General (
CSD
).  The applicants position is that these records are
    subject to the first party disclosure obligations summarized in
R. v. Stinchcombe
,
    [1991] 3 S.C.R. 326 and
R. v. McNeil
, 2009 SCC 3, [2009] 1 S.C.R. 66. 
    In the alternative, the applicants submit that they are entitled to third party
    production of these records in accordance with
R. v. OConnor
, [1995] 4
    S.C.R. 411.

[2]

The records sought are as follows:

(a)    With respect to
    the 2008 jury roll prepared for the Kenora District, the applicant Kokopenace
    seeks:

(i)     thirty-six
    band lists still in the possession of CSD in the Kenora District that were used
    in preparing the 2008 jury roll;

(ii)    a band list
    provided by Kitchenuhmaykoosib Inninuwig (
KI
) to CSD in the Kenora District
    in 2009 (an earlier list provided by KI to CSD used to prepare the 2008 jury
    roll was destroyed by CSD upon receipt of the 2009 KI list); and

(iii)  a recreated
    list of on-reserve First Nations residents in the Kenora District to whom jury
    questionnaires were sent for the purpose of preparing the 2008 jury roll.

(b)    With respect to
    the 2007 jury roll prepared for Simcoe County, the applicant Spiers seeks disclosure
    of the band lists provided by the two First Nations communities in Simcoe
    County to CSD from 2000 to 2010.

[3]

Notice of the present application was given to all of the First Nations
    communities to which the records sought pursuant to this application related. 
    None of these First Nations communities sought to make submissions beyond the
    submissions made by the interveners.

[4]

At the outset of the hearing, the Crown, speaking for CSD, abandoned its
    claim of public interest privilege with respect to the records at issue.  The
    parties therefore agreed that the central issue to be resolved by the court was
    whether the records sought met the likely relevant test for third party
    disclosure as set out in
OConnor
or

whether the records formed
    part of the Crowns first party disclosure obligation and met the relevance
    standard under
Stinchcombe/McNeil
.  All parties agreed that the privacy
    interests in the records sought to be disclosed or produced were protected by
    the undertaking filed by the applicants and agreed to by all counsel.

[5]

The parties also agreed that it was most expeditious for the court to
    first consider whether production of the records was required under the
OConnor
third party disclosure regime. If production was required, the parties
    agreed that it was not necessary to continue and consider whether there was a first
    party disclosure obligation on the Crown under
Stinchcombe/McNeil
.

[6]

On the issue of likely relevant, CSD set out its position as follows:

(a)

it took no position on whether the 36 band lists still in the possession
    of CSD that were used to prepare the 2008 jury roll for Kenora District and the
    band lists used to prepare the 2007 jury roll for Simcoe County were likely
    relevant (this issue was left to be determined by the court);

(b)

if the court determined that the 36 band lists used in Kenora District
    met the likely relevant test in
OConnor
, then CSD agreed that the
    2009 KI list was likely relevant to the extent that it could be used to refresh
    the CSD deponents memory as to how the destroyed KI list would have been used
    in preparing the 2008 jury roll; and

(c)

the band lists used to prepare the jury rolls in Simcoe County for the
    years 2000-2005 and 2007-2010 did not meet the likely relevant test in
OConnor
.

[7]

As discussed above, the parties agreed that the court should first
    determine whether the likely relevant test set out in
OConnor
has
    been met.  If the likely relevant test has been met, the court need not
    decide whether there was a first party disclosure obligation on the Crown with
    respect to the records sought.  As a result, the court should simply determine
    whether the records should be produced, since it is understood that, by
    ordering production, the court would not be deciding whether or not a first party
    disclosure obligation exists.

[8]

The applicant Kokopenace withdrew his request for a recreated list of
    on-reserve First Nations residents to whom jury questionnaires were sent for
    the purpose of preparing the 2008 Kenora District jury roll.  The applicant
    indicated that if the various band lists being sought were produced, this
    information could be obtained through the cross-examination of CSD deponents.

ISSUES

[9]

As a result, the two issues to be decided are as follows:

(a)

Whether the band lists used to prepare the 2008 Kenora District jury
    roll and the 2007 Simcoe County jury roll are likely relevant to an issue on
    appeal.

(b)

Whether the 2000-2005 and 2007-2010 band lists used by CSD in Simcoe
    County to prepare the jury roll in 2001-2006 and 2008-2011 are likely
    relevant to an issue on appeal.

DISCUSSION

A.

Whether the band lists that were used to prepare the 2008 Kenora
    District jury roll and 2007 Simcoe County jury roll are likely relevant to an
    issue on appeal.

[10]

There is no dispute as to the legal test to be applied on this
    application.  As the Supreme Court of Canada explained in
OConnor
, at
    para. 22, likely relevant in the context of production means that there is a reasonable
    possibility that the information is logically probative to an issue at trial or
    the competence of a witness to testify (emphasis omitted).

[11]

The Supreme Court of Canada confirmed this meaning of likely relevant
    in
McNeil
and further explained, at para. 33, that:

An issue at
    trial here includes not only material issues concerning the unfolding of the
    events which form the subject matter of the proceedings, but also evidence
    relating to the credibility of witnesses and to the reliability of other
    evidence in the case.  At this stage of the proceedings, the court cannot
    insist on a demonstration of the precise manner in which the targeted documents
    could be used at trial.  The imposition of such a stringent threshold burden
    would put the accused, who has not seen the documents, in an impossible
    Catch-22 position. [Citation omitted.]

[12]

The position taken by the applicants in the appeals is that there was
    systematic underrepresentation of First Nations persons in the 2008 Kenora
    District and 2007 Simcoe County jury rolls.  As a result, the juries in the
    trials of the two applicants were not representative and new trials should be
    ordered.

[13]

The applicants argue that there is a reasonable possibility that
    obtaining the lists used by the CSD officials to prepare the jury rolls
may
assist them in making their case on appeal.   In particular, the applicants
    argue that the lists can be used to cross-examine CSD deponents with respect to
    the statements they have made in their affidavits and to better understand the
    use that CSD deponents made of the lists in preparing the jury rolls.  The
    lists will also enhance the applicants understanding of the contents of the
    lists and their relevance to the preparation of the jury rolls.

[14]

In summary, the lists will permit the applicants to have a better
    factual foundation for the arguments that: (1) the sheriff did not make the
    reasonable efforts required to prepare a representative jury roll as required
    by the
Juries Act
, R.S.O. 1990, c. J.13; (2) the sheriff or other
    officer who returned the jury panels was partial, fraudulent or wilfully
    misconducted himself and therefore such jury panels can be challenged in
    accordance with s. 629 of the
Criminal Code
, R.S.C. 1985, c. C-46; (3) the
    applicants were denied their right to a constitutionally sound jury as required
    by s. 11(f) of the
Canadian Charter of Rights and Freedoms
, Part I of
    the
Constitution Act, 1982
, being Schedule B to the
Canada Act 1982
(U.K.), 1982, c. 11; and (4) the various breaches of the applicants
Charter
rights are not justified under s. 1 of the
Charter
.

[15]

CSD made no submissions on this issue.

[16]

In our view, the applicants have demonstrated that these records are
    likely relevant.  They seek the very lists used to prepare the impugned jury
    rolls.  These records may contain annotations, entries or other information
    that can be used in testing the statements made by CSD deponents and in better
    understanding the process used to prepare the jury rolls.

[17]

The applicants need not establish the probative value of the records;
    they must only show that there is a reasonable possibility that the documents
    are logically probative to the issues raised respecting the representativeness
    of the jury rolls.

B.

Whether the 2000-2005 and 2007-2010 band lists used by CSD in Simcoe
    County to prepare the jury roll in 2001-2006 and 2008-2011 are likely
    relevant to an issue on appeal.

[18]

The applicant Spiers argues that the band lists used to prepare the jury
    rolls from 2001 through to 2011 are likely relevant to the issues raised in the
    appeal for three reasons.

[19]

First, the applicant Spiers notes that the Crown has made the
    information relating to the preparation of the jury rolls for 2001 to 2011
    relevant by itself filing an affidavit of a CSD deponent on the appeal providing
    information on the procedure followed to prepare the jury rolls in those very
    years.

[20]

Second, the applicant Spiers argues that the materials filed to date
    demonstrate that CSD officials did not follow their own policies to ensure the
    adequate representation of First Nations persons on the 2007 jury roll for
    Simcoe County.  The information from the other years sought will assist the
    applicant Spiers to establish the duration of the breach and the increasing
    impact of the breach over several years.  The duration and severity of the
    breach is, in the applicant Spiers submission, clearly relevant with respect
    to the issue of reasonable efforts under the
Juries Act
, wilful
    misconduct under s. 629 of the
Criminal Code
and the
Charter
issues raised on the appeal.

[21]

Finally, the information will allow the applicant Spiers to probe and
    question the statements made by the CSD deponent with respect to the preparation
    of the jury rolls for the years in question.

[22]

CSD argues that only the list used to prepare the 2007 jury roll has the
    possibility of having probative value.  In fact, although the affidavits filed
    by the Crown contain information on the process followed by CSD with respect to
    the preparation of the jury roll for years other than 2007, this does not make
    the band lists for those years relevant.

[23]

In our view, the band lists used for the preparation of the jury roll in
    each of those years meets the
OConnor
standard of likely relevant. 
    We are satisfied that the practice in effect for the preparation of the jury
    rolls over the years will be the subject of debate, as will, to a certain degree,
    the practices that are detailed in the CSD deponents affidavit.  We need not
    determine that the applicant will show that these practices have probative
    value, since, at this stage, he need only show that they have a reasonable
    possibility of being logically probative.

[24]

In conclusion, we grant the applicants application requiring that the
    requested lists be produced to the applicants, provided that the undertaking
    agreed to among the parties is given.  As indicated earlier and in light of our
    conclusion that production ought to be ordered, we make no finding as to
    whether the records come within the Crowns first party disclosure obligations
    pursuant to
Stinchcombe/McNeil
.

S.T. Goudge J.A.

H.S.
    LaForme J.A.

Paul Rouleau J.A.

RELEASED:  December 01, 2011


