Case # 35475
Her Majesty the Queen v. Clifford Kokopenace (October 6, 2014)
At issue in this appeal is jury selection and the representativeness of a jury. The respondent, Clifford Kokopenace, is an aboriginal person from grassy narrows first nation in the district of Kenora. The respondent was charged with second-degree murder in the stabbing death of taylor assin. His trial, sitting with a jury, took place in the Kenora district. The jury that tried the respondent was derived from the 2008 jury roll for that district. The jury roll consisted of 699 potential jurors, of whom 29 were first nation on-reserve residents, 4.1 per cent of the jury roll. At the time, First Nation on-reserve residents represented between 30.2 per cent and 36.8 per cent of the total population of Kenora district. The on-reserve adult population represented between 21.5 per cent and 31.8 per cent of the total population of that district. The respondent’s jury was selected from a panel list of 175 jurors, eight of whom were on-reserve residents. The respondent’s jury ultimately did not include any on-reserve residents. After a three-week trial, the jury found the respondent guilty of manslaughter. Prior to sentencing, the respondent’s trial counsel learned of irregularities in the composition of the Kenora jury roll. The irregularities in the jury roll were with respect to the representativeness of the jury. The judge, Stach J. declined to adjourn the sentencing proceedings to hear a mistrial application. On appeal the respondent argued that the jury that found him guilty was derived from a jury roll that inadequately represented aboriginal on-reserve residents. The respondent’s application for a mistrial was rejected, but fresh evidence was presented on appeal, and a new trial was ordered.