Daniel Brown

During jury selection for a second-degree murder trial, the accused requested the trial judge use the expanded stand-by power under s. 633 of the Criminal Code to ensure at least one Black juror was selected.

The Crown opposed the request.

The trial judge conducted a detailed analysis of the legislative history and conflicting jurisprudence regarding s. 633.

The court concluded that while s. 633 can be used to enhance jury diversity to maintain public confidence in the administration of justice, the specific grounds advanced by the defence—that a Black juror could help others understand cultural norms—did not constitute reasonable cause.

The request was denied.

The accused, a Black man charged with second-degree murder, brought an application to challenge prospective jurors for cause based on anti-Black racism.

The court determined the specific anti-bias instructions and questions to be posed to the jury panel.

The court also ruled that, under the new legislative regime, the trial judge rather than defence counsel would ask the challenge for cause questions to preserve objective neutrality and underscore the court's commitment to an impartial jury.

The Crown brought an application for the forfeiture of a $50,000 recognizance against a surety after the accused absconded to Pakistan on the morning of his sentencing for sexual assault.

The surety, the accused's wife, argued for partial forfeiture due to financial hardship and lack of fault.

The court applied the 'pull of bail' principle, finding that the surety failed to strictly supervise the accused and that absconding is the most serious breach of a recognizance.

The court ordered the full $50,000 forfeited, but stayed enforcement for 45 days to allow the accused an opportunity to voluntarily return to Canada.

The appellant appealed his conviction, seeking to introduce fresh evidence from a toxicologist.

The Court of Appeal admitted the fresh evidence, finding that although it was available at trial, the failure to lead it was an oversight by defence counsel rather than a tactical decision.

The court concluded that the evidence met the fourth Palmer criterion, as it was independent, objective evidence capable of raising sufficient concern about the complainant's credibility to reasonably affect the verdict.

The appeal was allowed, the conviction set aside, and a new trial ordered.