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(Prime Time Crime exclusive June 14, 2013)
By Bob Cooper
In 2008 a jury in Kenora, Ontario, hearing the 2nd Degree Murder trial of Clifford Kokopenace acquitted him of murder but found him guilty of the lesser included offence of Manslaughter in the stabbing death of a friend who apparently should have been more circumspect in his choice of pals. Kokopenace, a man with a long, violent criminal record, appealed his conviction and last Friday the Ontario Court of Appeal, in a split decision, overturned the conviction and ordered a new trial.
In most cases where a new trial is ordered it’s because the trial judge’s charge to the jury is found to be flawed or some other irregularity like lack of disclosure or juror misconduct prevented the Accused from getting a fair trial. None of that occurred here and there was never any suggestion that it had. In fact, in 2011, the same court upheld the conviction but put its own ruling on hold in order to hear arguments that Kokopenace’s Charter rights were breached because he is an Indian within the meaning of the Indian Act and the jury that convicted him had no Indians on it.
In a previous column Justice should be colour blind I was critical of the Aboriginal sentencing discount in Canada provided by both legislation and case law. This takes things to a whole new level because once you start down this road there’s no end to it and these decisions and their effect on the whole justice system just keep compounding themselves.
In this case the court found that the Ontario government had not done enough to ensure Indians were adequately represented on juries. It’s clear from the evidence that the government had made quite an effort in sending jury notifications to Indian Reserves but few of them were returned. So whose fault is that? No matter, the court tossed out the conviction to pressure the government to do more. The question they fail to answer is how much more? In other words, how many Indians on a jury is enough? One, two, four, six? Future courts are left to figure that out for themselves and more cases will be tossed. Kokopenace’s victim, of course, is lost in all of this social engineering. He isn’t even a consideration but re-trying a case after so many years is always a daunting task. Witnesses die or can’t be located, memories fade, evidence is lost, all giving an undeserved advantage to the accused.
Another major consequence sure to arise is other groups jumping on this bandwagon. Inevitably, Chinese, East Indians, Blacks, Muslims, Transgendered Bulgarians, etc. will all be demanding juries of their ‘peers’ and will launch endless rounds of appeals having absolutely nothing to do with the evidence, the merits of the case, or the fairness of the trial. If Jodi Arias had the good fortune to be tried in Ontario she’d be halfway home by now because there weren’t enough Hispanic manipulative psychopaths on the jury.
I’ve no doubt that, like most of the judges I’ve known over the years, these are well-intentioned, honorable people who took their duty seriously but in this case their view of the forest was obscured by the trees. Turning a dangerous killer loose won’t improve the social ills of natives (or anyone else in his path), it will just make them worse, and all they’ve accomplished was to sew a few more seeds of divisiveness in a country that could do without them.
Bob Cooper is a retired Vancouver policeman. He walked a beat in Chinatown and later worked in the Asian Organized Crime Section and the Homicide Squad.