Last week, in Nishnawbe Aski Nation v. Eden, [2011] O.J. No. 988, the Ontario Court of Appeal allowed an appeal of a First Nation and the relatives of two deceased persons from the dismissal of their applications for judicial review of a coroner’s refusal to issue a summons.
The appellants were concerned with the process for the selection of a jury roll and the failure to ensure that Aboriginal people would be on the coroner’s inquest jury.
In 2007, two First Nations persons died. One individual died of a drug overdose while in jail. The second individual drowned. Inquests into their deaths were ordered. Before each inquest began, the families of the deceased raised concerns about whether the jury roll from which the coroners’ juries were selected was representative as they had evidence that in a neighbouring district the jury roll excluded almost all First Nations persons living on a reserve. Each family asked the presiding coroner to issue a summons to the Director of Court Operations so they could find out how the jury roll was established, but the coroners refused. The two families and the First Nation applied for judicial review of the coroners’ decisions and a stay of the inquests pending the hearing of their applications. A stay was granted in one inquest, but denied in the second because the inquest had already begun. After the stay was denied, the family involved in that inquest withdrew because of the failure to ensure that aboriginal persons would be represented on the jury. Subsequently, the applications for judicial review were dismissed. The Divisional Court held that neither coroner erred in refusing to issue a summons to the Director of Court Operations as the coroners had no statutory power to review the process for the selection of the jury roll, had no authority to remedy any problems with the jury roll and that the evidence submitted by the families was insufficient to warrant further inquiry.
HELD: Appeals allowed. The applications for judicial review were granted. Although there was no express statutory or common law authority entitling a coroner to question the representativeness of a jury roll, there was an implied jurisdiction to do so in ss. 33(2), 34(1) and 50(1) of the Coroners Act. In addition, the coroner had the jurisdiction to remedy a list drawn from an unrepresentative roll. The evidence presented by the families showed a nexus between the evidence of the Director of Court Operations and the purpose of the inquest, and a strong case of summoning the Director. As the inquest which had been completed was marred by the legitimate concern about the unrepresentativeness of the jury roll and the consequent withdrawal of the family, a new inquest was ordered.
Turtle Talk 