TORONTO - Ontario's top court decided on Friday to hear arguments about whether the makeup of jury panels is unfair to accused aboriginals.
In an unusual decision, the Appeal Court took the step of putting an appeal ruling on hold despite having decided a jury was reasonable to have convicted a man of manslaughter in 2008.
"My proposed decision to adjourn the remainder of the appellant's appeal to a later date, while perhaps an unusual one, is within the inherent jurisdiction of this court to control its own process," Appeal Court Justice Harry LaForme writes.
"Because all of the grounds of appeal have not yet been fully determined, I would not issue an order disposing of the appeal at this time."
The case involves Clifford Kokopenace, who was convicted in Kenora, Ont., of stabbing his friend Taylor Assin to death in a 2007 fight that followed days of heavy drinking at a home on the Grassy Narrows reserve.
"Following the appellant's conviction, it became public knowledge for the first time that there was systemic under-representation of aboriginal on-reserve residents in the Kenora jury roll," the Appeal Court said.
Kokopenace then wanted to argue his constitutional rights had been trampled but the trial judge refused to delay sentencing.
In his appeal, Kokopenace claimed the lower court had made three errors involving the Crown's closing arguments, the judge's charge to the jury, and with the verdict itself.
But he also disputed the composition of the jury as a fourth ground for appeal.
In May, the Appeal Court heard arguments on the first three grounds.
Had Kokopenace been successful on those appeal counts, a hearing about jury makeup would not have been needed, LaForme writes.
"As a matter of general practice, appeals should be heard in a single hearing in the interests of judicial economy and finality," the justice says.
"However, in the particular circumstances of this case, I believe an adjournment to deal separately with the fourth ground is appropriate."
In an affidavit in 2008, a court-operations supervisor said only 44 natives were being considered for jury selection in the Kenora district where aboriginals make up a large portion of the population.
The affidavit said Ottawa had not provided the jury centre with band electoral lists in years.
Earlier this year, the Ontario Court of Appeal ordered a judicial inquiry into whether the Thunder Bay District's jury roll properly represents aboriginals.
A judge later put a murder trial on hold because there weren't enough aboriginals in the jury pool.
LaForme adjourned the hearing on jury makeup to a date to be determined.
