The Court of Appeal for Ontario considered whether a coroner has jurisdiction to inquire into the representativeness of the jury roll from which a jury is selected for a coroner’s inquest. A representative and impartial jury is necessary to ensure that the public has confidence in the inquest’s process and conclusions. Coroner’s inquests were ordered in the deaths of two First Nations individuals. The families expressed concern over the composition of the jury roll, specifically that it might exclude First Nations individuals. After requests to government officials were refused, the families asked the presiding coroners to issue a summons to the Director of Court Operations in Thunder Bay to determine how the jury rolls were assembled. The coroners declined.
The families sought judicial review of these decisions. The Divisional Court dismissed the requests for three reasons. First, the court found that the coroner was not authorized by statute to review the process for the selection of the jury roll. Second, if a coroner reviewed the jury roll and identified a problem, the coroner would have no authority to remedy the problem. Finally, the court deferred to the coroners’ decisions that the evidence submitted by the applicants was insufficient to warrant further inquiry. The families appealed.
The Coroners Act and Juries Act provide the statutory framework for jury selection in coroner’s inquests. Under the Juries Act, the sheriff in a county or district prepares a jury roll based on the jury service notices returned by individuals randomly selected from municipal assessment lists. Since First Nations people living on reserves do not appear on these lists, s. 6(8) of the Juries Act provides a separate procedure for selecting First Nations to a jury.
If there is a reserve within the district or county, the sheriff must select a list of names of First Nations individuals from “any record available” and add them to the jury roll. Under s. 34 of the Coroners Act, the coroner may require the sheriff to provide a list of names to constitute a jury. The court noted that a representative jury is one that represents a cross-section of the larger community and that a representative jury enhances the impartiality of the jury.
The court held that there was a legislative silence in respect of the coroner’s jurisdiction. Thus, the court considered whether the legislature intended the coroner to have this power by necessary implication.
The court considered the five circumstances in which the doctrine of jurisdiction by necessary implication applies as set out by the Supreme Court of Canada in ATCO. It held that the doctrine must be applied in the circumstances because it is essential to permit the coroner to fulfill his mandate conferred by the Coroners Act. To ensure a representative and impartial jury, it must be selected from a jury roll that is properly constituted pursuant to the Juries Act. Thus, a coroner has the necessarily implied jurisdiction to inquire into the representativeness of a jury roll from which an inquest jury is selected. The coroner also has the jurisdiction to order a remedy in the event that the jury roll is non-compliant with the Act. In that circumstance, the coroner has the jurisdiction to order the sheriff to produce a jury roll that complies with s. 6(8) of the Juries Act.
March 10, 2011
Link to Decision
Julia Wilkes
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