R. v. Kokopenace, 2011 ONCA 498 and 2011 ONCA 536

In R. v. Kokopenace, the Ontario Court of Appeal is considering allegations of systematic underrepresentation of Aboriginal on-reserve residents in Ontario jury rolls.  A final decision on this issue is still pending, but the Court issued two significant preliminary rulings in 2011. First, it concluded that interveners could not be added as parties to a criminal case, but instead granted two applicants status as friends of the court.  Second, it separated the case into two parts, giving no effect to the grounds of appeal in the first part, but adjourning the second while remaining seized of the appeal.  It dismissed three grounds of appeal not related to the composition of the jury, but ordered that the jury issue be heard separately at a later date.

On the first issue, O'Connor A.C.J.O. found that "(i)n most instances there is no room to add 'strangers' as parties to a criminal appeal." Justice O'Connor held that it would be inappropriate and inconsistent with the Canadian criminal justice system to allow external parties to make submissions on substantive grounds or have rights of appeal. However, he concluded that Nishnawbe Aski Nation (NAN) and Aboriginal Legal Services of Toronto (ALST) have resources and experience that would assist the court in fully developing the record, whereas individual litigants such as the appellants do not. Therefore Justice O'Connor decided to grant NAN and ALST status as friends of the court and dispense with the usual blanket limitation that confines interveners to the existing record. He held that their participation may include cross-examining witnesses or introducing relevant evidence not tendered by the parties, but was not prepared to grant them unfettered participation.

LaForme J.A., writing for the court on the second issue, concluded that the abnormal procedure was within the Court's inherent jurisdiction to control its own process. Justice LaForme acknowledged that his decision to reject part of an appeal but adjourn the remainder to a later date was "perhaps an unusual one," but held that the merits of the appeal had not yet been fully argued.

July 6 / July 29, 2011
Link to 2011 ONCA 498
Link to 2011 ONCA 536

Marc Gibson & Sam Golder
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