Supreme Court of Nova Scotia
Citation: R. v. Bradley, 2014 NSSC 126
Date: 20140404
Docket: CRP 409566
Registry: Pictou
Between:
Her Majesty the Queen
v.
Daniel Michael Bradley
DECISION ON CHALLENGE FOR CAUSE
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Judge: |
The Honourable Justice Peter P. Rosinski |
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Heard: |
By written submissions only |
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Counsel: |
J. Patrick Young for the Crown Rob Sutherland for the Accused |
By the Court:
Introduction
[1] In Canada, in contrast to the criminal process in the United States, jurors are presumed to be indifferent or impartial as between the prosecution and the accused. However, to best ensure impartiality, in the process of selecting jurors for a criminal trial, both the Crown and the accused have a statutory right, pursuant to s. 638 of our Criminal Code, to challenge potential jurors for cause. Subsections 1(a) to (f) set out the only bases upon which a “ challenge for cause shall be allowed” – s. 638 (2).
[2] Section 638 (1) (b) of the Criminal Code permits a challenge for cause on the ground that: “a juror is not indifferent between the Queen and the accused”. In this context, “indifferent” has been authoritatively interpreted as having the same meaning as “impartial” – R. v. Find 2001 SCC 32 at para. 32.
[3] Regarding potential juror bias or partiality, the case law has identified two forms of concern, conveniently labeled: “specific prejudice [which] can attach to a particular accused, for example, because of pretrial publicity or personal knowledge of the parties associated with the trial, [whereas] generic prejudice is not specific to a particular accused. Rather it involves general beliefs, attitudes and biases held by a juror that prevent him or her from deciding the case with a fair and impartial mind regardless of the facts of the particular case…” – Per Moldaver, J.A. [as he then was] for the Court in R. v. A.B. [1997] O.J. No. 1578 (C.A.).
[4] The case at Bar concerns a suggested “generic prejudice”.
[5] Mr. Bradley is charged with a number of break and enter and possession of stolen property charges. His counsel seeks pursuant to s. 638(1)(b) to have prospective jurors challenged for cause by asking them the questions:
1. Were you ever a victim of a break and enter involving theft of some of your property?
2. If so, would it interfere with your ability to be impartial in this matter?
The Crown argues that no questions of this nature should be asked of any prospective jurors.
[6] Applying the law to the circumstances of this case, I find myself in agreement with the Crown’s position.
Why it is not appropriate to permit the proposed questioning of prospective jurors in this case?
[7] Mr. Bradley argues that (in its March 19 written submission): “the reason we propose these questions is that Parliament presumes a break and enter to be an aggravating circumstance on sentencing in some circumstances [s. 348.1 Criminal Code] and requires in other circumstances that the sentencing court consider evidence that an offence may have had a significant impact on the victim [s. 718.2 (a) (iii.1) Criminal Code]. We infer from these sections and from common sense that victims of break and entry are often traumatized. Presumed or proven trauma is the basis for a challenge for cause…” (and in its March 27 written submission): “… [The defence] asserts its application is not a fishing expedition. A realistic potential for the existence of partiality can be inferred from the Criminal Code sections cited. Any presumption of impartiality is not an irrebuttable or unchallengeable presumption. Granting the defence application would not result in lengthy cross examination of potential jurors.”
[8] In response the Crown argues (in its March 24 written submission): “there is no requisite foundation which demonstrates that despite all other safeguards, there is a realistic possibility of partiality on the part of a potential juror”.
[9] No evidence was tendered to assist the Court in the resolution of this issue. The parties agreed to argue this issue by way of written submissions only.
(ii) The relevant legal principles
[10] In R. v. Find, [2001] 1 SCR 863, 2001 SCC 32, at paragraphs 30 – 45 Chief Justice McLachlan for the Court stated the test for “partiality”, when considering s. 638(1)(b) of the Criminal Code as follows:
30 Section 638(1)(b) of the Code permits a party to challenge for cause on the ground that “a juror is not indifferent between the Queen and the accused”. Lack of indifference may be translated as “partiality”. Both terms describe a predisposed state of mind inclining a juror prejudicially and unfairly toward a certain party or conclusion: see Williams, supra, at para. 9.
31 In order to challenge for cause under s. 638(1)(b), one must show a “realistic potential” that the jury pool may contain people who are not impartial, in the sense that even upon proper instructions by the trial judge they may not be able to set aside their prejudice and decide fairly between the Crown and the accused: Sherratt, supra; Williams, supra, at para. 14.
32 As a practical matter, establishing a realistic potential for juror partiality generally requires satisfying the court on two matters: (1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision. These two components of the challenge for cause test reflect, respectively, the attitudinal and behavioural components of partiality: Parks, supra, at pp. 364-65; R. v. Betker (1997), 115 C.C.C. (3d) 421 (Ont. C.A.), at pp. 435-36.
33 These two components of the test involve distinct inquiries. The first is concerned with the existence of a material bias, and the second with the potential effect of the bias on the trial process. However, the overarching consideration, in all cases, is whether there exists a realistic potential for partial juror behaviour. The two components of this test serve to ensure that all aspects of the issue are examined. They are not watertight compartments, but rather guidelines for determining whether, on the record before the court, a realistic possibility exists that some jurors may decide the case on the basis of preconceived attitudes or beliefs, rather than the evidence placed before them.
34 The test for partiality involves two key concepts: “bias” and “widespread”. It is important to understand how each term is used.
35 The New Oxford Dictionary of English (1998), at p. 169, defines “bias” as “prejudice in favour of or against one thing, person, or group compared with another, especially in a way considered to be unfair”. “Bias”, in the context of challenges for cause, refers to an attitude that could lead jurors to discharge their function in the case at hand in a prejudicial and unfair manner.
36 It is evident from the definition of bias that not every emotional or stereotypical attitude constitutes bias. Prejudice capable of unfairly affecting the outcome of the case is required. Bias is not determined at large, but in the context of the specific case. What must be shown is a bias that could, as a matter of logic and experience, incline a juror to a certain party or conclusion in a manner that is unfair. This is determined without regard to the cleansing effect of trial safeguards and the direction of the trial judge, which become relevant only at the second stage consideration of the behavioural effect of the bias.
37 Courts have recognized that “bias” may flow from a number of different attitudes, including: a personal interest in the matter to be tried (Hubbert, supra, at p. 295; Criminal Code, s. 632); prejudice arising from prior exposure to the case, as in the case of pre-trial publicity (Sherratt, supra, at p. 536); and prejudice against members of the accused’s social or racial group (Williams, supra, at para. 14).
38 In addition, some have suggested that bias may result from the nature and circumstances of the offence with which the accused is charged: R. v. L. (R.) (1996), 3 C.R. (5th) 70 (Ont. Ct. (Gen. Div.)); R. v. Mattingly (1994), 28 C.R. (4th) 262 (Ont. Ct. (Gen. Div.)); N. Vidmar, “Generic Prejudice and the Presumption of Guilt in Sex Abuse Trials” (1997), 21 Law & Hum. Behav. 5. In Williams, supra, at para. 10, this Court referred to Vidmar’s suggestion that bias might, in some cases, flow from the nature of the offence. However, the Court has not, prior to this case, directly considered this kind of bias.
39 The second concept, “widespread”, relates to the prevalence or incidence of the bias in question. Generally speaking, the alleged bias must be established as sufficiently pervasive in the community to raise the possibility that it may be harboured by one or more members of a representative jury pool (although, in exceptional circumstances, a less prevalent bias may suffice, provided it raises a realistic potential of juror partiality: Williams, supra, at para. 43). If only a few individuals in the community hold the alleged bias, the chances of this bias tainting the jury process are negligible. For this reason, a court must generally be satisfied that the alleged bias is widespread in the community before a right to challenge for cause may flow.
40 If widespread bias is shown, a second question arises: may some jurors be unable to set aside their bias despite the cleansing effect of the judge’s instructions and the trial process? This is the behavioural component of the test. The law accepts that jurors may enter the trial with biases. But the law presumes that jurors’ views and biases will be cleansed by the trial process. It therefore does not permit a party to challenge their right to sit on the jury because of the existence of widespread bias alone.
41 Trial procedure has evolved over the centuries to counter biases. The jurors swear to discharge their functions impartially. The opening addresses of the judge and the lawyers impress upon jurors the gravity of their task, and enjoin them to be objective. The rules of process and evidence underline the fact that the verdict depends not on this or that person’s views, but on the evidence and the law. At the end of the day, the jurors are objectively instructed on the facts and the law by the judge, and sent out to deliberate in accordance with those instructions. They are asked not to decide on the basis of their personal, individual views of the evidence and law, but to listen to each other’s views and evaluate their own inclinations in light of those views and the trial judge’s instructions. Finally, they are told that they must not convict unless they are satisfied of the accused’s guilt beyond a reasonable doubt and that they must be unanimous.
42 It is difficult to conceive stronger antidotes than these to emotion, preconception and prejudice. It is against the backdrop of these safeguards that the law presumes that the trial process will cleanse the biases jurors may bring with them, and allows challenges for cause only where a realistic potential exists that some jurors may not be able to function impartially, despite the rigours of the trial process.
43 It follows from what has been said that “impartiality” is not the same as neutrality. Impartiality does not require that the juror’s mind be a blank slate. Nor does it require jurors to jettison all opinions, beliefs, knowledge and other accumulations of life experience as they step into the jury box. Jurors are human beings, whose life experiences inform their deliberations. Diversity is essential to the jury’s functions as collective decision-maker and representative conscience of the community: Sherratt, supra, at pp. 523-24. As Doherty J.A. observed in Parks, supra, at p. 364, “[a] diversity of views and outlooks is part of the genius of the jury system and makes jury verdicts a reflection of the shared values of the community”.
44 To treat bias as permitting challenges for cause, in the absence of a link with partial juror behaviour, would exact a heavy price. It would erode the threshold for entitlement defined in Sherratt and Williams, and jeopardize the representativeness of the jury, excluding from jury service people who could bring valuable experience and insight to the process. Canadian law holds that “finding out what kind of juror the person called is likely to be – his personality, beliefs, prejudices, likes or dislikes” is not the purpose of challenges for cause: Hubbert, supra, at p. 289. The aim is not favourable jurors, but impartial jurors.
45 Ultimately, the decision to allow or deny an application to challenge for cause falls to the discretion of the trial judge. However, judicial discretion should not be confused with judicial whim. Where a realistic potential for partiality exists, the right to challenge must flow: Williams, supra, at para. 14. If in doubt, the judge should err on the side of permitting challenges. Since the right of the accused to a fair trial is at stake, “[i]t is better to risk allowing what are in fact unnecessary challenges, than to risk prohibiting challenges which are necessary”: Williams, supra, at para. 22.
[my emphasis added]
[11] Under the title “Proof: How a Realistic Potential for Partiality May Be Established” Chief Justice McLachlan for the Court in R. v. Find, [2001] 1 SCR 863, 2001 SCC 32, stated at paragraphs 46 – 47:
A party may displace the presumption of juror impartiality by calling evidence, by asking the judge to take judicial notice of facts, or both. In addition, the judge may draw inferences from events that occur in the proceedings and may make common sense inferences about how certain biases, if proved, may affect the decision-making process.
The first branch of the inquiry – establishing relevant widespread bias – requires evidence, judicial notice or trial events demonstrating a pervasive bias in the community. The second stage of the inquiry – establishing a behavioural link between widespread attitudes and juror conduct – may be a matter of proof, judicial notice, or simply reasonable inference as to how bias might influence the decision-making process: Williams, supra, at para. 23.
[12] Bearing in mind that this case concerns an alleged generic prejudice, based on the nature of the offence charged, I will focus my examination of the jurisprudence accordingly.
[13] The Supreme Court of Canada has only once expressly considered offence-based generic prejudice.
[14] In R. v. Find, the Court reviewed offence-based generic prejudice through the lens of sexual abuse allegations, which to date had been where the issue was most often litigated.
[15] In particular the Court focused on two decisions of the Ontario Court of Appeal: R. v. A.B. [1997] O.J. No. 1578 (McMurtry, C.J.O., Osborne and Moldaver, JJ.A.) and R. v. A.K. and N.K. [1999] O.J. No. 3280 (McMurtry C.J.O., Charron and Moldaver, JJ.A.).
[16] In A.B. Moldaver, J.A. [as he then was], writing for the Court, concluded that the trial judge did not err in refusing to permit the appellant to challenge each prospective juror for cause on the basis that there existed “a realistic possibility that one or more of the prospective jurors would, because of the nature of the charges of sexual assault between father and daughter, not be impartial between the Crown and the accused”.
[17] He rejected the appellant’s assertion that the ratio decidendi in the Ontario Court of Appeal decision R. v. Parks (1993) 84 CCC (3d) 353 should be extended as of right to cases of sexual assault.
[18] He found the analogy to the Parks case, which involved racial bias, could not be extended “to cases where the challenge is directed towards a particular crime or form of criminal conduct… If strongly held views about a particular crime are allowed to become a yardstick against which harsh reality is measured, then, on a principled approach, I fail to see how the crime of sexual assault can be meaningfully distinguished from other crimes such as murder, robbery, break and entry or drug trafficking, to mention but a few.”
He went on to state:
As I have already observed, standing alone, the nature of the crime will rarely if ever meet the tests for partiality under s. 638(1)(b) of the Criminal Code. That said, I should not be taken as suggesting that a realistic possibility of partiality can never be established in sexual assault cases.
Earlier he more generally stated:
To be more precise, I am of the view that strong attitudes about a particular crime, even when accompanied by intense feelings of hostility and resentment towards those who commit the crime, will rarely, if ever, translate to partiality in respect of the accused.
[19] Two years later, in R. v. A.K. and N.K. Justice Moldaver, in dissent on this issue, took the position that the comments of the Supreme Court of Canada in R. v. Williams [1998] 1 SCR 1128 and its impact on a previous decision of the Ontario Court of Appeal authored by Justice Moldaver, R. v. Betker (1997) 115 CCC (3d) 421 required that: “the legal principles that led this Court in Betker to deny the legitimacy of all crime-based challenges must be adjusted to conform with the principle set forth in Williams. When the correct legal principles are applied to the evidence, I am satisfied that there is reason to suppose that the jury pool may contain people who were unable to apply the presumption of innocence to persons charged with sexual abuse or were unable to fairly weigh the evidence of the accused and/or complainant. In other words, the evidence meets the threshold test for partiality enunciated in Williams.” (paras. 155 – 156)
[20] Chief Justice McMurtry and Justice Charron , as the majority in A.K., held in contrast that:
As indicated earlier, it is the appellant’s first argument that this court on the basis of Williams, should take judicial notice of the fact that with respect to certain offences there exists a widespread bias in the community giving rise to concerns about prospective juror’s impartiality. It is argued that allegations of sexual abuse, particularly as against children, give rise to such strong feelings or opinions and beliefs in the general population that there is a real risk that some prospective jurors might decide the case based on their personal views rather than solely on the evidence and in accordance with the judge’s instruction on the law. Reliance is placed on the following excerpt from Williams in support of the contention that an accused is now entitled as of right, to challenge prospective jurors for cause and all cases of sexual assault because of the nature of the charges [at p. 1138 SCR, p. 488 C.C.C.]: ‘Generic prejudice, the class of prejudice at issue on this appeal, arises from stereotypical attitudes about the defendant, victims, witnesses or the nature of the crime itself. Bias against a racial or ethnic group or against persons charged with sex abuse are examples of general prejudice’.
I do not accept the appellant’s argument that the Supreme Court in Williams has recognized a right to challenge for cause in all cases of sex abuse. Although the above two noted sentences do make reference to bias against persons charged with sex abuse, they must not be read out of context. Williams could only have the precedential value contended by the appellants of the court had actually taken judicial notice of the matter. It did not. Williams was a case of racial prejudice. (paras. 30 – 31)
[my emphasis added]
[21] There are two distinct inquiries and decisions to be made in relation to the resolution of a challenge for cause dispute – R. v. Find at paras. 30 – 45.
[22] The first stage is the inquiry before the judge to determine whether challenges for cause should be permitted. The test at that stage is: whether there is a realistic potential or possibility for widespread bias or partiality in the community, which those persons could not set aside, despite trial safeguards.
[23] The second stage involves the opportunity to question potential jurors in court as to whether they harbour such material biases, and if so whether they are able to set those biases aside and act as impartial jurors (the attitudinal and behavioural components of partiality).
[24] In Find the Supreme Court of Canada defined “bias” as: “in the context of challenges for cause, refers to an attitude that could lead jurors to discharge their function in the case at hand in a prejudicial and unfair manner.”; and that: “’widespread’, relates to the prevalence or incidence of the bias in question. Generally speaking, the alleged bias must be established as sufficiently pervasive in the community to raise the possibility that it may be harboured by one or more members of a representative jury pool (although, in exceptional circumstances, a less prevalent bias may suffice, provided it raises a realistic potential of juror partiality: Williams, supra, at para. 43). If only a few individuals in the community hold the alleged bias, the chances of this bias tainting the jury process are negligible.” (paras. 35 and 39)
[25] As Chief Justice MacLachlan pointed out in Find: “the law accepts that jurors may enter the trial with biases. But the law presumes that jurors’ views and biases will be cleansed by the trial process. It therefore does not permit a party to challenge their right to sit on the jury because of the existence of widespread bias alone.” She then sets out some of the trial safeguards that exist to cleanse the trial process of material biases in paras. 41-42.
[26] Ultimately the Court in Find concluded that “the decision to allow or deny an application to challenge for cause falls to the discretion of the trial judge. . . . [and] where a realistic potential for partiality exists, the right to challenge must flow: Williams, supra, at para. 14. If in doubt, the judge should err on the side of permitting challenges. Since the right of the accused to a fair trial is at stake ‘it is better to risk allowing what are in fact unnecessary challenges, than to risk prohibiting challenges which are necessary’: Williams, supra, at para. 22”. (para. 45)
[27] Specifically in relation to sexual abuse the Court in Find concluded in relation to the attitudinal component: “while widespread victimization may be a factor to be considered, standing alone it fails to establish widespread bias that might lead jurors to discharge their task in a prejudicial and unfair manner”. (para. 60)
[28] In relation to the behavioural component (that some jurors may be unable or unwilling to set aside their biases to render a decision in strict accordance with the law), the Court concluded that there are fundamental distinctions between the racial prejudice at issue in Williams and a more general bias relating to the nature of the offence itself as presented in Find.
[29] These distinctions led the Court to conclude that:
In the absence of evidence that such beliefs and attitudes may affect jury behaviour in an unfair manner, it is difficult to conclude that they will not be cleansed by the trial process. Only speculation supports the proposition that jurors will act on general opinions and beliefs to the detriment of an individual accused, in disregard of their oath or affirmation, the presumption of innocence, and the directions of the trial judge. (para. 100)
[30] Chief Justice MacLachlan concluded specifically in relation to sexual abuse on children:
The case for widespread bias arising from the nature of charges of sexual assault on children is tenuous. Moreover, even if the appellant had demonstrated widespread bias, its link to actual juror behaviour is speculative, leaving the presumption that it would be cleansed by the trial process firmly in place. Many criminal trials engage strongly held views and stir up powerful emotions… Absent proof we cannot simply assume that strong beliefs and emotions translate into a realistic potential for partiality, grounding a right to challenge for cause. (para. 109)
[31] Since the Supreme Court’s decision in Find, the most recent and relevant comments from that Court regarding the criminal jury system, arise from a group of cases concerning the information contained in jury panel lists (which is a listing of persons who are potential jurors in a specific case), and inquiries made by Crown counsel in conjunction with police services regarding the backgrounds of the persons on the jury panel list. Properly such enquiries should be directed at discovering whether any of those persons are ineligible for jury duty as a result of their criminal antecedents (a collective term intended to encompass a check of jurors on police databases to identify whether any persons by virtue of their criminal conduct are not eligible for jury duty under provincial law or were subject to being challenged for cause under s. 638(1)(c) of the Criminal Code).
[32] Those cases are R. v. Yumnu 2012 SCC 73, [2012] 3 SCR 777; R. v. Emms 2012 SCC 74, [2012] 3 SCR 810; and R. v. Davey 2012 SCC 75; [2012] 3 SCR 828.
[33] Each of those cases contains different factual scenarios, but a common legal issue: whether it is appropriate for the Crown counsel to seek the opinion of local police officers as to the “suitability” of prospective jurors for the purpose of assisting the Crown in the exercise of its peremptory challenges and, if so, whether those opinions should have been disclosed.
[34] Yumnu set out the applicable legal principles. The evolution of the jury selection process, which embodies the challenge for cause process, is neatly summarized by Chief Justice McLachlan and R. v. Find in paras. 18 – 25:
18 To provide context and guidance to the determination of this issue, it is necessary to consider the process of jury selection and the place of challenges for cause in that process.
19 The jury selection process falls into two stages. The first is the “pre-trial” process, whereby a panel (or “array”) of prospective jurors is organized and made available at court sittings as a pool from which trial juries are selected. The second stage is the “in-court” process, involving the selection of a trial jury from this previously prepared panel. Provincial and federal jurisdictions divide neatly between these two stages: the first stage is governed by provincial legislation, while the second stage falls within the exclusive domain of federal law (see C. Granger, The Criminal Jury Trial in Canada (2nd ed. 1996), at pp. 83-84; R. v. Barrow, [1987] 2 S.C.R. 694, at pp. 712-13).
20 Both stages embody procedures designed to ensure jury impartiality. The “pre-trial” stage advances this objective by randomly assembling a jury pool of appropriate candidates from the greater community. This is assured by provincial legislation addressing qualifications for jury duty; compilation of the jury list; the summoning of panel members; selection of jurors from the jury list; and conditions for being excused from jury duty. These procedures furnish, so far as possible, a representative jury pool: R. v. Sherratt, [1991] 1 S.C.R. 509, at pp. 525-26; P. Schulman and E. R. Myers, “Jury Selection”, in Studies on the Jury (1979), a report to the Law Reform Commission of Canada at p. 408.
21 The “in-court” process is governed by ss. 626 to 644 of the Criminal Code. Its procedures directly address juror impartiality. The selection of the jury from the assembled pool of potential jurors occurs in an open courtroom, with the accused present. The jury panel is brought into the courtroom and the trial judge makes a few opening remarks to the panel. Provided the validity of the jury panel itself is not challenged (pursuant to the grounds listed in s. 629(1)), the Registrar reads the indictment, the accused enters a plea, and the empanelling of the jury immediately begins: see Sherratt, supra, at pp. 519-22.
22 Members of the jury pool may be excluded from the jury in two ways during the empanelling process. First, the trial judge enjoys a limited preliminary power to excuse prospective jurors. This is referred to as “judicial pre-screening” of the jury array. At common law, the trial judge was empowered to ask general questions of the panel to uncover manifest bias or personal hardship, and to excuse a prospective juror on either ground. Today in Canada, the judge typically raises these issues in his remarks to the panel, at which point those in the pool who may have difficulties are invited to identify themselves. If satisfied that a member of the jury pool should not serve either for reasons of manifest bias or hardship, the trial judge may excuse that person from jury service.
23 Judicial pre-screening at common law developed as a summary procedure for expediting jury selection where the prospective juror’s partiality was uncontroversial, such as where he or she had an interest in the proceedings or was a relative of a witness or the accused: Barrow, supra, at p. 709. The consent of both parties to the judicial pre-screening was presumed, provided the reason for discharge was “manifest” or obvious. Otherwise, the challenge for cause procedure applied: Sherratt, supra, at p. 534. In 1992, s. 632 of the Criminal Code was enacted to address judicial pre-screening of the jury panel. This provision allows the judge, at any time before the trial commences, to excuse a prospective juror for personal interest, relationship with the judge, counsel, accused or prospective witnesses, or personal hardship or other reasonable cause.
24 The second way members of the jury may be excluded during the empanelling process is upon a challenge of the prospective juror by the Crown or the accused. Both parties are entitled to challenge potential members of the jury as these prospective jurors are called to “the book”. Two types of challenge are available to both the Crown and the accused: (1) a limited number of peremptory challenges without providing reasons pursuant to s. 634; and (2) an unlimited number of challenges for cause, with leave of the judge, on one of the grounds enumerated under s. 638(1) of the Criminal Code.
25 One ground for challenge for cause is that a prospective juror is “not indifferent between the Queen and the accused”: Criminal Code, s. 638(1)(b). If the judge is satisfied that a realistic potential for juror partiality exists, he or she may permit the requested challenges for cause. If challenged for cause, the impartiality of the candidate is tried by two triers of fact, usually two previously sworn jurors: Criminal Code, s. 640(2). Absent elimination, the juror is sworn and takes his or her place in the jury box. After the full complement of 12 jurors is empanelled, the accused is placed in their charge, and the trial commences.
[35] Justice Moldaver, writing for the Court in Yumnu commented regarding the scope of acceptable inquiries at paras. 50-55.
[36] Interestingly for the purposes of my analysis, Justice Moldaver noted under the heading “The Acceptable Bounds of Jury Vetting” at paragraph 41 – 44:
Another concern is juror privacy. …
Jury duty is precisely that – a duty. People are not asked to volunteer; they are selected at random. … Once selected, jurors become judges of the facts. Their personal lives at that point are no more relevant than that of the presiding judge.
Jurors deserve to be treated with respect. Subject to a few narrow exceptions, they are entitled to know that their privacy interests will be preserved and protected. …
The concerns that I have identified are very real and they are to be taken seriously. There are, however, countervailing interests at play that warrant some limited checking and some minimal intrusion into the private lives of potential jurors.
At paras. 56 – 59 he elaborates upon the concern:
Checking for a prospective juror’s criminal record is not as easy as one might think. As Watt J.A. observed, at para. 92, jury panel lists lack crucial information the authorities need to ensure that the results of inquiries made through the various databases available to them are accurate. The more information the authorities have about the prospective juror — and by that I am referring to details such as full name, date of birth, fingerprint search number, and so on — the less intrusive the search need be. . . .
. . . Cross-referencing and cross-checking through the use of multiple databases may be the only means the authorities have to ensure that the right person is being checked. And even then, there can be no guarantees.
Of course, the more databases accessed, the more likely it is that the authorities will come upon information that goes beyond the particular province’s eligibility criteria as it relates to prior or ongoing criminal activity, or the criteria needed to bring a challenge for cause under section 638(1)(c) of the Code. In other words, the broader the search, the greater the intrusion into the prospective jurors privacy interests.
In the course of performing valid criminal background checks through the use of police databases, the authorities may inadvertently come across information that falls outside the scope of the provincial eligibility criteria or the criteria specified in s. 638(1)(c) of the Code. . . . Alternatively, the authorities may discover that a potential juror has been a complainant on a prior occasion and may, for that reason, find it difficult to remain impartial, either generally or in the particular circumstances of the case at hand.
The authorities cannot set out to find this type of information — but if it comes to their attention in the course of performing valid criminal background checks, they need not turn a blind eye to it. It could form the basis for any of the following procedures in the courtroom:
(1) a request to the trial judge to excuse the juror under s. 632(a) to (c) of the Code on grounds of obvious partiality, personal hardship, or other reasonable cause;
(2) a request to the trial judge to stand the juror aside under s. 633 of the Code for reasons of personal hardship or any other reasonable cause, including potential partiality;
(3) request to challenge a juror for cause for any of the reasons set out in s. 638(1)(a) to (f) of the Code; and
(4) a reason to exercise or refrain from exercising a peremptory challenge under ss. 634 and 635 of the Code.
[37] Notably Justice Moldaver clearly stated that any such information: “that is relevant to the jury selection process must be disclosed to the Defence. This would include information relevant to eligibility, s.638(1)(c), and any of the other matters I have identified.”
[38] At para. 64 he more precisely delineates what he means when he says, “information relevant to the jury selection process”. He would exclude matters of public knowledge, general reputation in the community, feelings, hunches, suspicions, innuendo or other such amorphous information. What he would include is relevant “information that rises above the general, and is both reasonably accurate and reliably based”.
[39] He went on to indicate that, although the question of whether there is a reciprocal obligation on the part of the Defence to disclose information in its possession that could impact on the jury selection process was only raised tangentially, and not fully argued, the Supreme Court also placed an obligation on the Defence as follows:
First, where defence counsel know or have good reason to believe that a potential juror has engaged in criminal conduct that renders him or her ineligible for jury duty under provincial law or subject to being challenged for cause under section 638(1)(c) of the Code, this should be disclosed [to the Crown].
Second, where defence counsel know or have good reason to believe that a potential juror cannot serve in a particular case due to matters of obvious partiality, this too should be disclosed. (para. 66 – 67)
[40] In R. v. Find, Chief Justice McLachlan considered what are some of the kinds of matters that would amount to “manifest” or obvious partiality at paragraph 23: “… such as, where the person had an interest in the proceedings or was a relative of a witness or the accused”. Clearly this list is not exhaustive – presumably any person with obvious ties to a person that has an interest in the proceeding would also be included.
[41] The upshot of this group of cases (i.e. Yumnu) for present purposes is that, absent exceptional circumstances, the Supreme Court of Canada has recognized that the limits of justified invasion of juror privacy are to be strictly confined to database searches targeting the eligibility of the persons on the jury panel list to serve as jurors. However, if the Crown through consultation with police receives their “recommendations with regard to jury composition that are based on knowledge gathered in the course of law enforcement activities” (which is reasonably accurate and reliably based, and relevant to a potential juror’s eligibility, suitability or ability to remain impartial) or otherwise receives similar information that may bear on the jury selection process, it must disclose the information to the Defence – paras. 40 – 41 and 47 in R. v. Davey 2012 SCC 75, per Karakatsanis, J.
[42] A legitimate concern about juror privacy is also triggered when a defendant proposes a challenge for cause based on the nature of the offence. This arises in part, as in this case, because the challenge presupposes that some potential jurors have been victims of the offences with which the defendant is charged. The Supreme Court of Canada in Find has suggested that such intrusions by way of challenge for cause (in that case regarding sexual abuse) would in any event unlikely be permitted, given the difficulty of satisfying the preconditions of finding a widespread bias in the community, and that members thereof with such bias would be unable or unwilling to set such bias aside after the cleansing trial safeguards are imposed.
Application to the circumstances of this case
[43] Jurors are presumed to be impartial until that presumption is displaced. The burden to obtain leave from the Court to pose challenge for cause questions pursuant to s. 638(1)(b) of the Criminal Code is upon the requesting party.
[44] I should note here that the relevant “community” (which is the judicial district in which jurors must reside in order to be eligible to be included on the jury panel list) is defined, according to s. 2(2) of the Juries Act c. 16 SNS 1998 and s. 2 of the Juries Regulations N.S. Reg. 126/2000, as Pictou County in the case at Bar.
[45] I therefore ask myself whether the Defendant has established that there is a realistic potential for juror partiality in Pictou County. He may do this by establishing affirmative answers to both of the following questions:
1. Is there a widespread bias in the community as against persons charged with break and enter offences; and
2. If so, may some jurors be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision?
[46] Since no evidence was called, the Defendant is asking me to take judicial notice of facts, and to draw reasonable inferences about the existence of and how such alleged bias against persons charged with break and enter, if proved, may affect the decision-making process of potential jurors.
[47] In a nutshell, the Defendant is arguing there is the required “widespread bias” and that some persons holding such bias may be incapable of setting it aside, despite trial safeguards. He says that I should take judicial notice that: there are significant instances of break and enter into dwellings (including seasonal dwellings) in Pictou County; and that among those, a significant number of the victims experience a significant level of feelings of victimization.
[48] In the language of the Court in Find at para. 38, I must be satisfied that “the alleged bias must be established as sufficiently pervasive in the community to raise the possibility that it may be harboured by one or more members of a representative jury pool”.
[49] In my view, it is inappropriate to take judicial notice of the suggested facts. There is no demonstrated “air of reality” in support of them. The preconditions for doing so, while to be considered purposively and flexibly depending on the issue in question, are not met here – see R. v. Spence [2005] 3 SCR 458 (which involved a challenge for cause issue argued in the context of alleged racial prejudice).
[50] Even if I were in a position to conclude there is a widespread bias against persons charged with break and enter offences, the law presumes that jurors’ views and biases will be cleansed by the trial process (Find at para. 40), and I cannot take judicial notice of, or infer factual conclusions, in the circumstances of this case as presented, such that I am satisfied that that presumption has been rebutted by the Defendant here.
[51] I am nowhere near in such doubt about these matters such that “it is better to risk allowing what are in fact unnecessary challenges, than to risk prohibiting challenges which are necessary” (Find at para. 45).
[52] Therefore I refuse leave to the Defendant to challenge for cause potential jurors in this case on the basis that they are not indifferent as between The Queen and the Defendant.
Rosinski, J.