The Applicant Nishnawbe Aski Nation (“NAN”) was successful in obtaining a stay of the Inquest into the death of Reggie Bushie pending the determination of an Application for Judicial Review of decisions relating to the selection of the jury for the Inquest

Administrative law – Decisions of administrative tribunals – Coroner – Coroner’s inquest – Public interest – Judicial review – Compliance with legislation – Stay of proceedings – Jury selection – Witnesses – Aboriginal issues

Nishnawbe Aski Nation v. Eden, [2009] O.J. No. 2458, Ontario Superior Court of Justice, May 29, 2009, A. Karakatsanis J.

Reggie Bushie, 15 years of age, died of drowning while attending high school in Thunder Bay as there was no high school in his remote community of Poplar Hill First Nation. An Inquest was called to examine the circumstances surrounding his death and it was also expected to explore issues concerning how First Nation youths are impacted when attending school far away from their home communities. NAN, representing 49 First Nations within their territory, sought the Inquest and was granted public interest standing by the Coroner. Sections 33 and 34 of the Coroner’s Act, R.S.O. 1990, c. C. 37, provide for the selection of Inquest Juries from “names from the jury roll prepared under the Juries Act.” The issue raised in the Application for Judicial Review brought on by a NAN and a number of other Applicants related to whether the jury roll was representative of First Nations people within the Thunder Bay District as required by section 6(8) of the Juries Act and whether the parties in the case were entitled to call evidence in order to challenge the jury selection on that basis. Specifically, NAN sought judicial review of the Coroner’s decision refusing to issue a summons for the Ministry of the Attorney General Official responsible for the jury roll in the District to give evidence in a pre-Inquest Motion on the process for inclusion of First Nation members in the jury roll.

The family of the Deceased first raised concerns with the Coroner’s Counsel in November 2008 about the jury roll from which the jurors would be chosen and requested confirmation that First Nation individuals from the fifteen First Nations within the Thunder Bay District were included in the jury roll. This concern resulted from a prior Inquest where it had ultimately been determined that many First Nation individuals were not included in the 2008 Kenora District jury rolls. Coroner’s Counsel advised by letter that they believed the practices were in compliance with the Juries Act. When further details were requested, the family was advised to contact the Director of Court Operations directly. The family and NAN brought a Motion asking the Coroner for a Summons to compel the attendance of the Director of Court Operations to answer questions relating to efforts to include names of eligible First Nation reserve members in the jury rolls. The Coroner did not accept that the Applicants had established adequate grounds to inquire further into the operation of the Thunder Bay jury rolls. NAN and the family sought judicial review of that decision. They also sought a stay of the Inquest pending the disposition of the judicial review.

The Court noted that the test for a stay was well established. The moving party must show: (a) the application raises a serious question; (b) irreparable harm will result if the stay is not granted; (c) and the balance of convenience favours the granting of a stay. These factors must be considered as a whole. The overarching consideration is whether the interests of justice call for a stay: RJR MacDonald inc. v. Canada (Attorney General), [1994] S.C.J. No. 17.

The Court found that the Application for Judicial Review raised serious issues to be heard. The test is a low bar and the Court should not extensively review the merits but must determine the issues raised are not frivolous or vexatious. In the Court’s view, the issue raised by NAN was not frivolous or vexatious. A reasonably held concern was raised regarding the composition of the jury roll and whether it was representative of First Nations and in compliance with the Juries Act.

In reviewing the issue of “irreparable harm”, the Court noted that this was a type of harm that cannot be cured. The Court accepted Nan’s submission that whether the jury was selected from a jury roll representative of the First Nations within the judicial District as required by the Juries Act was an important aspect of the legitimacy of the Coroner’s Inquest for those First Nations Communities that have lost five youths attending high school far from their aboriginal communities. The Court agreed that there was a risk the public confidence in the Coroner’s Inquest may be irreparably harmed, particularly in the eyes of the aboriginal community represented by NAN.

In reviewing the balance of convenience, the Court acknowledged the Coroner’s concerns that any unnecessary delay increased the risk of further, preventable deaths. However, while the adjournment meant a likely delay for a number of months, the Court held that the delay was relatively brief and it was important that any recommendations from the jury be made by a jury that was representative of the community. In these circumstances, the Court was satisfied that the balance of convenience and the overall interests of justice favoured a stay.

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