R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32

Karl Find Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General for Alberta and the Criminal Lawyers’ Association (Ontario) Interveners

Indexed as: R. v. Find

Neutral citation: 2001 SCC 32.

File No.: 27495.

2000: October 13; 2001: May 24.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for ontario

Criminal law – Jurors – Right to challenge for cause – Nature of offence – Whether charges of sexual assault against children raise realistic possibility of juror partiality entitling accused to challenge for cause – Criminal Code, R.S.C. 1985, c. C‑46, s. 638(1)(b).

The accused was charged with 21 counts of sexual offences involving complainants ranging between 6 and 12 years of age at the time of the alleged offences. Prior to jury selection, he applied to challenge potential jurors for cause, arguing that the nature of the charges against him gave rise to a realistic possibility that some jurors might be unable to try the case against him impartially and solely on the evidence before them. The trial judge rejected the application. The accused was tried and convicted on 17 of the 21 counts. The majority of the Court of Appeal dismissed the accused’s appeal, upholding the trial judge’s ruling not to permit the accused to challenge prospective jurors for cause.

Held: The appeal should be dismissed. The nature of the charges against the accused did not give rise to the right to challenge prospective jurors for cause on the ground of partiality.

Section 638(1)(b) of the Criminal Code permits a party to challenge for cause where a prospective juror is not indifferent between the Crown and accused. Lack of indifference constitutes partiality. 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. The first branch of the test is concerned with the existence of a material bias, while the second is concerned 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 first branch involves two concepts: “bias” and “widespread”. “Bias” in the context of challenges for cause refers to an attitude that could lead jurors to decide the case in a prejudicial and unfair manner. 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 and may flow from a number of different attitudes. The second concept, “widespread”, relates to the prevalence or incidence of the bias in question. The bias must be sufficiently pervasive in the community to raise the possibility that it may be harboured by members of a jury pool. If widespread bias is shown, the second branch of the test requires an accused to show that some jurors may not be able to set aside their bias despite the cleansing effect of the trial judge’s instructions and the trial process itself. Ultimately, the decision to allow or deny an application to challenge for cause falls to the discretion of the trial judge. Where a realistic potential for partiality is shown to exist, the right to challenge must follow. If in doubt, the judge should err on the side of permitting challenges. Since jurors are presumed to be impartial, in order to rebut the presumption of impartiality, a party must call evidence or ask the trial 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 accused did not call any evidence in support of his application but relied heavily on proof by judicial notice. The threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

Here, the material presented by the accused falls short of grounding judicial notice of widespread bias in Canadian society against an accused in sexual assault trials. First, while the widespread nature of abuse and its potentially traumatic impact are not disputed, widespread victimization, standing alone, fails to establish widespread bias that might lead jurors to discharge their task in a prejudicial and unfair manner. Second, strong views about a serious offence do not ordinarily indicate bias and nothing in the material supports the contention, nor is it self‑evident, that an exception arises in the case of sexual assaults on children. Third, there was also no proof that widespread myths and stereotypes undermine juror impartiality. While stereotypical beliefs might incline some jurors against an accused, it is not notorious or indisputable that they enjoy widespread acceptance in Canadian society. Fourth, although crimes arouse deep and strong emotions, one cannot automatically equate strong emotions with an unfair and prejudicial bias against the accused. Jurors are not expected to be indifferent toward crimes. Strong emotions are common to the trial of many serious offences and have never grounded a right to challenge for cause. The proposition that sexual offences are generically different from other crimes in their tendency to arouse strong passions is debatable, and does not, therefore, lend itself to judicial notice. Fifth, the survey of past challenge for cause cases involving sexual offences does not, without more, establish widespread bias arising from sexual assault charges. The number of prospective jurors disqualified, although relied on as support for judicial notice of widespread bias, is equally consistent with the conclusion that the challenge processes disqualified prospective jurors for acknowledging the intense emotions, beliefs, experiences and misgivings anyone might experience when confronted with the prospect of sitting as a juror on a case involving charges of sexual offences against children. Lastly, the theory of “generic prejudice” against accused persons in sexual assault trials has not been proved, nor could judicial notice be taken of the proposition that such prejudice exists. While judicial notice could be taken of the fact that sexual crimes are almost universally abhorred, this does not establish widespread bias arising from sexual assault trials.

Although the accused failed to satisfy the first branch of the test for partiality, it is prudent to consider the second branch, as the two parts are not watertight compartments. It is open to a trial judge reasonably to infer, in the absence of direct evidence, that some strains of bias by their very nature may prove difficult for jurors to identify and eliminate from their reasoning. The strength of the inference varies with the nature of the bias in issue, and its amenability to judicial cleansing. Fundamental distinctions exist between racial bias and the more general bias relating to the nature of the offence itself. Firstly, racial bias may impact more directly on a jury’s decision than bias stemming from the nature of the offence because it is directed against a particular class of accused by virtue of an identifiable immutable characteristic. Secondly, trial safeguards may be less successful in cleansing racial prejudice because of its subtle, systemic and often unconscious operation. Bias directed toward the nature of the offence, however, is more susceptible to cleansing by the rigours of the trial process because it is more likely to be overt and acknowledged. The trial judge is more likely to address these concerns in the course of directions to the jury. Moreover, many of the safeguards the law has developed may be seen as a response to this type of bias. In the absence of evidence that strongly held beliefs or attitudes may affect jury behaviour in an unfair manner, it is difficult to conclude that they could not be cleansed by the trial process. It is speculative to assume that jurors will act on their beliefs to the detriment of an accused, in violation of their oath or affirmation, the presumption of innocence and the directions of the trial judge. As well, absent evidence to the contrary, there is no reason to believe that stereotypical attitudes about accused persons charged with a crime of a sexual nature are more elusive of the cleansing measures than stereotypical attitudes about complainants. It follows that such myths and stereotypes, even if widespread, provide little support for any inference of a behavioural link between these beliefs and the potential for juror partiality. Finally, absent evidence, it is highly speculative to suggest that the emotions surrounding sexual crimes will lead to prejudicial and unfair juror behaviour. The safeguards of the trial process and the instructions of the trial judge are designed to replace emotional reactions with rational, dispassionate assessment. Our long experience in the context of the trial of other serious offences suggests that our faith in this cleansing process is not misplaced. The accused failed to establish that sexual offences give rise to a strain of bias that is uniquely capable of eluding the cleansing effect of trial safeguards.

Cases Cited

Applied: R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128; R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353; R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509; R. v. Betker (1997), 1997 CanLII 1902 (ON CA), 115 C.C.C. (3d) 421; referred to: R. v. K. (A.) (1999), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641; R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694; R. v. G. (R.M.), 1996 CanLII 176 (SCC), [1996] 3 S.C.R. 362; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562; M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157; R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281; R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279; R. v. L. (R.) (1996), 1996 CanLII 8297 (ON SC), 3 C.R. (5th) 70; R. v. Mattingly (1994), 1994 CanLII 7556 (ON SC), 28 C.R. (4th) 262; R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 66 C.C.C. (2d) 219; R. v. Alli (1996), 1996 CanLII 4010 (ON CA), 110 C.C.C. (3d) 283; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. Lavallée, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852; R. v. Hillis, [1996] O.J. No. 2739 (QL); R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330; R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 11(d).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 626 to 644, 629(1), 632 [am. 1992, c. 41, s. 2], 634, 638(1)(b), (2), 640(2), 649, 658(1).

Authors Cited

Bala, N. “Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System”, in W. S. Tarnopolsky, J. Whitman and M. Ouellette, eds., Discrimination in the Law and the Administration of Justice. Montreal: Thémis, 1993, 231.

Canada. Law Reform Commission. Studies on the Jury. “Jury Selection”, by Perry Schulman and Edward R. Myers. Ottawa: The Commission, 1979.

Granger, Christopher. The Criminal Jury Trial in Canada, 2nd ed. Scarborough, Ontario: Carswell, 1996.

New Oxford Dictionary of English. Oxford: Clarendon Press, 1998, “bias”.

Paciocco, David. “Challenges for Cause in Jury Selection after Regina v. Parks: Practicalities and Limitations”. Toronto: Canadian Bar Association ‑ Ontario, February 11, 1995.

Sopinka, John, Sidney N. Lederman, and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.

Tanovich, David M., David M. Paciocco, and Steven Skurka. Jury Selection in Criminal Trials: Skills, Science, and the Law. Concord, Ontario: Irwin Law, 1997.

Vidmar, Neil. “Generic Prejudice and the Presumption of Guilt in Sex Abuse Trials” (1997), 21 Law & Hum. Behav. 5.

Wiener, Richard L., Audrey T. Feldman Wiener, and Thomas Grisso. “Empathy and Biased Assimilation of Testimonies in Cases of Alleged Rape” (1989), 13 Law & Hum. Behav. 343.

APPEAL from a judgment of the Ontario Court of Appeal (1999), 1999 CanLII 2270 (ON CA), 126 O.A.C. 261, [1999] O.J. No. 3295 (QL), dismissing the accused’s appeal from his conviction on 17 counts relating to sexual offences. Appeal dismissed.

David M. Tanovich and Umberto Sapone, for the appellant.

Jamie Klukach and Jennifer Woollcombe, for the respondent.

David M. Paciocco, for the intervener the Criminal Lawyers’ Association (Ontario).

Written submission by Jack Watson, Q.C., for the intervener the Attorney General for Alberta.

The judgment of the Court was delivered by

The Chief Justice –

I - Introduction

[1] Trial by jury is a cornerstone of Canadian criminal law. It offers the citizen the right to be tried by an impartial panel of peers and imposes on those peers the task of judging fairly and impartially. Since our country’s earliest days, Canadian jurors have met this challenge. Every year in scores of cases, jurors, instructed that they must be impartial between the prosecution and the accused, render fair and carefully deliberated verdicts. Yet some cases may give rise to real fears that, despite the safeguards of the trial process and the directions of the trial judge, some jurors may not be able to set aside personal views and function impartially.

[2] The criminal law has developed procedures to address this possibility. One of the most important is the right of the accused to challenge a potential juror “for cause” where legitimate concerns arise. This Court recently held that widespread prejudice against the accused’s racial group may permit an accused to challenge for cause: R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128. In this appeal we are asked to find that charges of sexual assault of children similarly evoke widespread prejudice in the community and also entitle the accused to challenge prospective jurors for cause.

[3] At stake are two important values. The first is the right to a fair trial by an impartial jury under s. 11(d) of the Canadian Charter of Rights and Freedoms. The second is the need to maintain an efficient trial process, unencumbered by needless procedural hurdles. Our task is to set out guidelines that ensure a fundamentally fair trial without unnecessarily complicating and lengthening trials and increasing the already heavy burdens placed on jurors.

[4] The appellant was charged with sexual assault of children. Before the jury was empanelled, he applied to challenge the potential jurors for cause. The nature of the charges against him, he contended, gave rise to a realistic possibility that some prospective jurors might harbour such prejudice that they would be unable to act impartially and try the case solely on the evidence before them. The trial judge rejected this request, as did the majority of the Ontario Court of Appeal. Before this Court, the appellant reasserts his claim that the denial of the right to challenge for cause violated s. 638(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, and deprived him of his Charter right to a fair trial.

[5] I conclude that the appellant has not established the right to challenge for cause. No basis has been shown to support the conclusion that charges of sexual assault against children raise a realistic possibility of juror partiality entitling the accused to challenge for cause. Accordingly, the appeal must be dismissed.

II - History of the Case

[6] The appellant was tried on 21 counts of sexual assault involving three complainants, who ranged between the ages of 6 and 12 at the time of the alleged offences. Prior to jury selection, defence counsel applied to challenge potential jurors for cause. No evidence was led in support of this application; rather, defence counsel contended a realistic potential for juror partiality arose from the ages of the alleged victims, the high number of alleged assaults, and the alleged use of violence. Defence counsel proposed that the following questions be put to potential jurors:

Do you have strong feelings about the issue of rape and violence on young children?

If so, what are those feelings based on?

Would those strong feelings concerning the rape and violence on young children prevent you from giving Mr. Find a fair trial based solely on the evidence given during the trial of this case?

The trial judge, in a brief oral ruling, dismissed the application on the basis that it simply “doesn’t fall anywhere near the dicta of the Court of Appeal in Regina v. Parks” (in R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353, the Ontario Court of Appeal held that the accused was entitled to challenge potential jurors for cause on the basis of racial prejudice).

[7] Later, during the process of empanelling the jury, a potential juror spontaneously offered that he had two children, stating “I just don’t think I could separate myself from my feelings towards them and separate the case”. This prospective juror was peremptorily challenged, and defence counsel renewed the request to challenge for cause, to no avail. The appellant was tried and convicted on 17 of the 21 counts.

[8] The appellant appealed on the ground, inter alia, that the trial judge erred in not allowing challenges for cause. The spontaneous admission of the potential juror during the selection process was the only evidence relied upon before the Ontario Court of Appeal. The majority, per McMurtry C.J.O., held that this admission did not demonstrate a realistic potential for partiality and offered no evidentiary basis for allowing challenges for cause: (1999), 1999 CanLII 2270 (ON CA), 126 O.A.C. 261, at para. 8. Since no other evidence was led, the appellant could succeed only if the court could take judicial notice of a widespread bias in the community in relation to sexual offences of this kind. The majority held that judicial notice could not be taken of that fact, for the reasons articulated in R. v. K. (A.) (1999), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641, a judgment released concurrently. Moldaver J.A. dissented on the challenge for cause issue, also relying on his reasons from K. (A.). Since both opinions import the substance of their reasons from the companion case of K. (A.), it is necessary to consider this case in some detail.

[9] K. (A.) involved two brothers charged with the sexual assault of children aged 4 to 12 years at the time of the alleged assaults. The majority of the Court of Appeal, per Charron J.A., upheld the trial judge’s decision to deny challenges for cause, while allowing the appeal on other grounds. Charron J.A. emphasized the distinction between racial prejudice and prejudice against persons charged with sexual assault, arguing that the first goes to a want of indifference towards the accused while the second relates to a want of indifference towards the nature of the crime. The connection between racial prejudice and a particular accused is direct and logical, whereas “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 into partiality in respect of the accused” (para. 41). She rejected the argument that this Court’s decision in Williams, supra, expanded the right to challenge for cause. While Williams recognized the possibility of bias arising from the nature of an offence, it did not eliminate the need to show a realistic potential for partiality, which remains the governing test for challenges for cause. This test was not met in the case before the court.

[10] Charron J.A. found little support for the accused’s application in statistics indicating widespread sexual abuse in Canadian society. These statistics, she observed, only demonstrate the prevalence of abuse; they do not indicate a resultant bias, let alone the nature of that bias or its impact on jury deliberation. To her mind, they did not support the inference that there exists a realistic risk of juror partiality. As to the appellant’s contention that widespread attitudes about sexual offences may cause jurors to act contrary to their oath, Charron J.A. concluded that the material before the court did not describe the alleged attitudes, or indicate how they would affect juror behaviour. She noted that the work of Professor Neil Vidmar, often advanced in support of the concept of generic prejudice, is the subject of heated debate and suffers from a number of flaws, most notably a lack of attention to the impact of juror attitudes on deliberation behaviour.

[11] Charron J.A. also found that the presence of “strong feelings, opinions and beliefs” is not so notorious as to be the subject of judicial notice – in fact, it was unclear exactly what beliefs and opinions were being targeted for judicial notice. Beliefs and opinions regarding allegations of sexual abuse are all over the map: some believe children never lie about abuse, others believe that children are especially susceptible to the influence of adults, and that their testimony should not be relied upon; some believe the trial system to be stacked in favour of the accused, others the complainant. Even if these opinions and beliefs are accepted as widespread, they are likely to be diffused in deliberation. The existence of feelings, opinions and beliefs about the crime of sexual assault does not translate into partiality – jurors are neither presumed, nor desired, to function as blank slates.

[12] Finally, Charron J.A. remained unconvinced by evidence that a high proportion of prospective jurors were successfully challenged for cause in cases where challenges were allowed. She found it “impossible to draw any meaningful inference from the answers provided by the jurors when confronted with general questions such as those found . . . in this case and in other cases relied upon” (K. (A.), supra, at para. 51). Many of the responses demonstrated nothing more than that the candidate would have difficulty hearing the case. No meaningful direction had been provided by the trial judge on the nature of jury duty or the meaning of impartiality, and no distinction drawn between partiality and the beliefs, emotions and opinions that influence all decision making.

[13] Moldaver J.A., dissenting on this issue, was satisfied that a “realistic potential” of juror partiality arises from the nature of sexual assault charges, grounding a right in the accused to challenge prospective jurors for cause. Considering the evidence in its entirety, and taking judicial notice of what he found to be notorious facts, he made a number of preliminary findings: (1) sexual abuse impacts a large percentage of the population, supporting a reasonable inference that any jury panel may contain victims, perpetrators and people closely associated with them; (2) the effects of sexual abuse, or wrongful allegations, are potentially devastating and lifelong; (3) sexual assault tends to be committed along gender lines; (4) women and children have been subjected to systemic discrimination, including in the justice system – recent changes have gone too far for some, but not far enough for others; (5) where challenges for cause have been permitted, literally hundreds of potential jurors have been found partial; and (6) unlike many crimes, a wide variety of stereotypes and beliefs surround the crime of sexual abuse.

[14] Moldaver J.A. concluded that these factors, in combination, raised a realistic concern about juror partiality. At the very least, they left him in doubt, which should be resolved in favour of the accused: Williams, supra, at para. 22. While asserting that challenges for cause based on the nature of the offence are exceptional, he concluded that “unlike other crimes, by its nature, the crime of sexual abuse can give rise to intense and deep-seated biases that may be immune to judicial cleansing and highly prejudicial to an accused” (K. (A.), supra, at para. 189).

[15] Two arguments held particular sway with Moldaver J.A. First, he accepted that the high incidence of juror disqualification where challenges for cause were allowed disclosed the existence of a widespread bias against persons charged with sexual assault. Second, he adopted Professor David Paciocco’s theory that the prevalence of sexual assault and the politicization of this offence have created two groups of people, “dogmatists” and “victims”, both of which contain people who may be unable to set aside their political convictions or experiences with abuse to render an impartial decision.

III - Relevant Statutory and Constitutional Provisions

[16] Criminal Code, R.S.C. 1985, c. C‑46

638. (1) A prosecutor or an accused is entitled to any number of challenges on the ground that

(b) a juror is not indifferent between the Queen and the accused;

(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).

Canadian Charter of Rights and Freedoms

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

IV - Issue

[17] Did the nature of the charges against the accused give rise to the right to challenge jurors for cause on the ground of partiality?

V - Analysis

A. Overview of the Jury Selection Process

[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 CanLII 11 (SCC), [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 CanLII 86 (SCC), [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.

[26] The Canadian system of selecting jurors may be contrasted with procedures prevalent in the United States. In both countries the aim is to select a jury that will decide the case impartially. The Canadian system, however, starts from the presumption that jurors are capable of setting aside their views and prejudices and acting impartially between the prosecution and the accused upon proper instruction by the trial judge on their duties. This presumption is displaced only where potential bias is either clear and obvious (addressed by judicial pre-screening), or where the accused or prosecution shows reason to suspect that members of the jury array may possess biases that cannot be set aside (addressed by the challenge for cause process). The American system, by contrast, treats all members of the jury pool as presumptively suspect, and hence includes a preliminary voir dire process, whereby prospective jurors are frequently subjected to extensive questioning, often of a highly personal nature, to guide the respective parties in exercising their peremptory challenges and challenges for cause.

[27] The respective benefits and costs of the different approaches may be debated. With respect to benefits, it is unclear that the American system produces better juries than the Canadian system. As Cory J. observed in R. v. G. (R.M.), 1996 CanLII 176 (SCC), [1996] 3 S.C.R. 362, at para. 13, we possess “a centuries-old tradition of juries reaching fair and courageous verdicts”. With respect to costs, jury selection under the American system takes longer and intrudes more markedly into the privacy of prospective jurors. It has also been suggested that the extensive questioning permitted by this process, while aimed at providing an impartial jury, is open to abuse by counsel seeking to secure a favourable jury, or to indoctrinate jurors to their views of the case (see Schulman and Myers, supra, at p. 429).

[28] The ultimate requirement of a system of jury selection is that it results in a fair trial. A fair trial, however, should not be confused with a perfect trial, or the most advantageous trial possible from the accused’s perspective. As I stated in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 193, “[w]hat constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process. . . . What the law demands is not perfect justice, but fundamentally fair justice”. See also R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80, at para. 72; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362; R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 14. At the same time, occasional injustice cannot be accepted as the price of efficiency: M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, at para. 32; R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281.

[29] These are the considerations that must guide us in assessing whether the appellant in this case has established the right to challenge for cause. Challenges for cause that will serve no purpose but to increase delays and intrude on prospective jurors’ privacy are to be avoided. As the Ontario Court of Appeal cautioned in R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279, at p. 291: “[t]rials should not be unnecessarily prolonged by speculative and sometimes suspect challenges for cause”. However, if there exists reason to believe that the jury pool may be so tainted by incorrigible prejudices that the trial may not be fair, then challenges for cause must be allowed.

B. The Test: When Should Challenges for Cause Be Granted Under Section 638(1)(b)?

1. The Test for Partiality

[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), 1997 CanLII 1902 (ON CA), 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), 1996 CanLII 8297 (ON SC), 3 C.R. (5th) 70 (Ont. Ct. (Gen. Div.)); R. v. Mattingly (1994), 1994 CanLII 7556 (ON SC), 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.

2. Proof: How a Realistic Potential for Partiality May Be Established

[46] 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.

[47] 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.

[48] In this case, the appellant relies heavily on proof by judicial notice. Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055.

[49] The scientific and statistical nature of much of the information relied upon by the appellant further complicates this case. Expert evidence is by definition neither notorious nor capable of immediate and accurate demonstration. This is why it must be proved through an expert whose qualifications are accepted by the court and who is available for cross-examination. As Doherty J.A. stated in R. v. Alli (1996), 1996 CanLII 4010 (ON CA), 110 C.C.C. (3d) 283 (Ont. C.A.), at p. 285: “[a]ppellate analysis of untested social science data should not be regarded as the accepted means by which the scope of challenges for cause based on generic prejudice will be settled”.

C. Were the Grounds for Challenge for Cause Present in this Case?

[50] To challenge prospective jurors for cause, the appellant must displace the presumption of juror impartiality by showing a realistic potential for partiality. To do this, the appellant must demonstrate the existence of a widespread bias arising from the nature of the charges against him (the “attitudinal” component), that raises a realistic potential for partial juror behaviour despite the safeguards of the trial process (the “behavioural” component). I will discuss each of these requirements in turn as they apply to this case.

1. Widespread Bias

[51] In this case, the appellant alleges that the nature and the circumstances of the offence with which he is charged give rise to a bias that could unfairly incline jurors against him or toward his conviction. He further alleges that this bias is widespread in the community. In support of this submission, the appellant relies on the following propositions from Moldaver J.A.’s dissent in K. (A.), supra, at para. 166. The parties generally agree on these facts, but dispute the conclusions to be drawn from them:

• Studies and surveys conducted in Canada over the past two decades reveal that a large percentage of the population, both male and female, have been the victims of sexual abuse. From this, it is reasonable to infer that any given jury panel may contain victims of sexual abuse, perpetrators and people closely associated with them.

• The harmful effects of sexual abuse can prove devastating not only to those who have been victimized, but those closely related to them. Tragically, many victims remain traumatized and psychologically scarred for life. By the same token, for those few individuals who have been wrongfully accused of sexual abuse, the effects can also be devastating.

• Sexual assault tends to be committed along gender lines. As a rule, it is women and children who are victimized by men.

• Women and children have been subjected to systemic discrimination reflected in both individual and institutional conduct, including the criminal justice system. As a result of widespread media coverage and the earnest and effective efforts of lobby groups in the past decade, significant and long overdue changes have come about in the criminal justice system. For some, the changes have not gone far enough; for others, too far.

• Where challenges for cause have been permitted in cases involving allegations of sexual abuse, literally hundreds of prospective jurors have been found to be partial by the triers of fact. In those cases where trial judges have refused to permit the challenge, choosing instead to vet the panel at large for bias, the numbers are equally substantial.

• Unlike many crimes, there are a wide variety of stereotypical attitudes and beliefs surrounding the crime of sexual abuse.

[52] While the parties agree on these basic facts, they disagree on whether they demonstrate widespread bias. The appellant called no evidence, expert or otherwise, on the incidence or likely effect of prejudice stemming from the nature of the offences with which he is charged. Instead, he asks the Court to take judicial notice of a widespread bias arising from allegations of the sexual assault of children. The Crown, by contrast, argues that the facts on which it agrees do not translate into bias, much less widespread bias.

[53] The appellant relies on the following: (a) the incidence of victimization and its effect on members of the jury pool; (b) the strong views held by many about sexual assault and the treatment of this crime by the criminal justice system; (c) myths and stereotypes arising from widespread and deeply entrenched attitudes about sexual assault; (d) the incidence of intense emotional reactions to sexual assault, such as a strong aversion to the crime or undue empathy for its victims; (e) the experience of Ontario trial courts, where hundreds of potential jurors in such cases have been successfully challenged as partial; and (f) social science research indicating a “generic prejudice” against the accused in sexual assault cases. He argues that these factors permit the Court to take judicial notice of widespread bias arising from charges of sexual assault of children.

[54] It is worth reminding ourselves that at this stage we are concerned solely with the nature and prevalence of the alleged biases (i.e., the “attitudinal” component), and not their amenability to cleansing by the trial process, which is the focus of the “behavioural” component.

(a) Incidence of Victimization

[55] The appellant argues that the prevalence and potentially devastating impact of sexual assault permit the Court to conclude that any given jury pool is likely to contain victims or those close to them who may harbour a prejudicial bias as a consequence of their experiences.

[56] The Crown acknowledges both the widespread nature of abuse and its potentially traumatic impact. Neither of these facts is in issue. Nor is it unreasonable to conclude from these facts that victims of sexual assault, or those close to them, may turn up in a jury panel. What is disputed is whether this widespread victimization permits the Court to conclude, without proof, that the victims and those who share their experience are biased, in the sense that they may harbour prejudice against the accused or in favour of the Crown when trying sexual assault charges.

[57] The only social science research before us on the issue of victim empathy is a study by R. L. Wiener, A. T. Feldman Wiener and T. Grisso, “Empathy and Biased Assimilation of Testimonies in Cases of Alleged Rape” (1989), 13 Law & Hum. Behav. 343. The appellant cites this study for the proposition that those participants acquainted in some way with a rape victim demonstrated a greater tendency, under the circumstances of the study, to find a defendant guilty. However, as the Crown notes, this study offers no evidence that victim status in itself impacts jury verdicts. In fact, the study found no correlation between degree of empathy for rape victims and tendency to convict, nor did it find higher degrees of victim empathy amongst those persons acquainted with rape victims. Further, the study was limited to a small sample of participants. It made no attempt to simulate an actual jury trial, and did not involve a deliberation process or an actual verdict. In the absence of expert testimony, tested under cross-examination, as to the conclusions properly supported by this study, I can only conclude that it provides little assistance in establishing the existence of widespread bias arising from the incidence of sexual assault in Canadian society.

[58] Moldaver J.A. concluded that the prevalence of sexual assault in Canadian society and its traumatic and potentially lifelong effects, provided a realistic basis to believe that victims of this crime may harbor intense and deep-seated biases. In arriving at this conclusion, he expressly relied on an unpublished article by Professor David Paciocco, “Challenges for Cause in Jury Selection after Regina v. Parks: Practicalities and Limitations”, Canadian Bar Association - Ontario, February 11, 1995, which he quoted at para. 176 for the proposition that “[o]ne cannot help but believe that these deep scars would, for some, prevent them from adjudicating sexual offence violations impartially”.

[59] This is, however, merely the statement of an assumption, offered without a supporting foundation of evidence or research. Courts must approach sweeping and untested “common sense” assumptions about the behaviour of abuse victims with caution: see R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 (per L’Heureux-Dubé J., dissenting in part); R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at pp. 870-72 (per Wilson J.). Certainly these assumptions are not established beyond reasonable dispute, or documented with indisputable accuracy, so as to permit the Court to take judicial notice of them.

[60] I conclude that 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.

(b) Strongly Held Views Relating to Sexual Offences

[61] The appellant submits that the politicized and gender-based nature of sexual offences gives rise to firmly held beliefs, opinions and attitudes that establish widespread bias in cases of sexual assault.

[62] This argument found favour with Moldaver J.A. in K. (A.). Moldaver J.A. judicially noticed the tendency of sexual assault to be committed along gender lines. He also took judicial notice of the systemic discrimination women and children have faced in the criminal justice system, and the fact that recent reforms have gone too far for some and not far enough for others. From this foundation of facts, he inferred that the gender-based and politicized nature of sexual offences leads to a realistic possibility that some members of the jury pool, as a result of their political beliefs, will harbour deep-seated and virulent biases that might prove resistant to judicial cleansing. Quoting from the work of Professor Paciocco, Moldaver J.A. emphasized that strong political convictions and impartiality are not necessarily incongruous, but that for some “feminists” “commitment gives way to zealotry and dogma”. The conviction that the justice system and its rules are incapable of protecting women and children, it is argued, may lead some potential jurors to disregard trial directions and rules safeguarding the presumption of innocence. Little regard for judicial direction can be expected from “those who see the prosecution of sexual offenders as a battlefront in a gender based war” (para. 177).

[63] The appellant supports this reasoning, adding that the polarized, politically charged nature of sexual offences results in two prevalent social attitudes: first, that the criminal justice system is incapable of dealing with an “epidemic” of abuse because of its male bias or the excessive protections it affords the accused; and second, that conviction rates in sexual offence cases are unacceptably low. These beliefs, he alleges, may jeopardize the accused’s right to a fair trial. For example, jurors harbouring excessive political zeal may ignore trial directions and legal rules perceived as obstructing the “truth” of what occurred, or may simply “cast their lot” with the victim. All this, the appellant submits, amounts to widespread bias in the community incompatible with juror impartiality.

[64] The appellant does not deny that jurors trying any serious offence may hold strong views about the relevant law. Nor does he suggest such views raise concerns about bias in the trial of most offences. Few rules of criminal law attract universal support, and many engender heated debate. The treatment of virtually all serious crimes attracts sharply divided opinion, fervent criticism, and advocacy for reform. General disagreement or criticism of the relevant law, however, does not mean a prospective juror is inclined to take the law into his or her own hands at the expense of an individual accused.

[65] The appellant’s submission reduces to this: while strong views on the law do not ordinarily indicate bias, an exception arises in the case of sexual assaults on children. The difficulty, however, is that there is nothing in the material that supports this contention, nor is it self-evident. There is no indication that jurors are more willing to cross the line from opinion to prejudice in relation to sexual assault than for any other serious crime. It is therefore far from clear that strongly held views about sexual assault translate into bias, in the required sense of a tendency to act in an unfair and prejudicial manner.

[66] Moreover, assuming that the strong views people may hold about sexual assault raise the possibility of bias, how widespread such views are in Canadian society remains a matter of conjecture. The material before the Court offers no measure of the prevalence in Canadian society of the specific attitudes identified by the appellant as corrosive of juror impartiality. Some people may indeed believe that the justice system is faltering in the face of an epidemic of abuse and that perpetrators of this crime too often escape conviction; yet, it is far from clear that these beliefs are prevalent in our society, let alone that they translate into bias on a widespread scale.

(c) Myths and Stereotypes About Sexual Offences

[67] The appellant suggests that the strong views that surround the crime of sexual assault may contribute to widespread myths and stereotypes that undermine juror impartiality. In any given jury pool, he argues, some people may reason from the prevalence of abuse to the conclusion that the accused is likely guilty; some may assume children never lie about abuse; and some may reason that the accused is more likely to be guilty because he is a man.

[68] Again, however, the proof falls short. Although these stereotypical beliefs clearly amount to bias that might incline some people against the accused or toward conviction, it is neither notorious nor indisputable that they enjoy widespread acceptance in Canadian society. Myths and stereotypes do indeed pervade public perceptions of sexual assault. Some favour the accused, others the Crown. In the absence of evidence, however, it is difficult to conclude that these stereotypes translate into widespread bias.

(d) Emotional Nature of Sexual Assault Trials

[69] The appellant asks the Court to take judicial notice of the emotional nature of sexual assault trials and to conclude that fear, empathy for the victim, and abhorrence of the crime establish widespread bias in the community. His concern is that jurors, faced with allegations of sexual assaults of children, may act on emotion rather than reason. This is particularly the case, he suggests, for past victims of abuse, for whom the moral repugnancy of the crime may be amplified. He emphasizes that the presumption of innocence in criminal trials demands the acquittal of the “probably” guilty. An intense aversion to sexual crimes, he argues, may incline some jurors to err on the side of conviction in such circumstances. Undue empathy for the victim, he adds, may also prompt a juror to “validate” the complaint with a guilty verdict, rather than determine guilt or innocence according to the law.

[70] Crimes commonly arouse deep and strong emotions. They represent a fundamental breach of the perpetrator’s compact with society. Crimes make victims, and jurors cannot help but sympathize with them. Yet these indisputable facts do not necessarily establish bias, in the sense of an attitude that could unfairly prejudice jurors against the accused or toward conviction. Many crimes routinely tried by jurors are abhorrent. Brutal murders, ruthless frauds and violent attacks are standard fare for jurors. Abhorred as they are, these crimes seldom provoke suggestions of bias incompatible with a fair verdict.

[71] One cannot automatically equate strong emotions with an unfair and prejudicial bias against the accused. Jurors are not expected to be indifferent toward crimes. Nor are they expected to remain neutral toward those shown to have committed such offences. If this were the case, prospective jurors would be routinely and successfully challenged for cause as a preliminary stage in the trial of all serious criminal offences. Instead, we accept that jurors often abhor the crime alleged to have been committed – indeed there would be cause for alarm if representatives of a community did not deplore heinous criminal acts. It would be equally alarming if jurors did not feel empathy or compassion for persons shown to be victims of such acts. These facts alone do not establish bias. There is simply no indication that these attitudes, commendable in themselves, unfairly prejudice jurors against the accused or toward conviction. They are common to the trial of many serious offences and have never grounded a right to challenge for cause.

[72] Recognizing this fact, the appellant and the intervener Criminal Lawyers’ Association (“CLA”) contend that allegations of sexual offences against children incite emotional reactions of an intensity above and beyond those invoked by other criminal acts. Such offences, they contend, stand alone in their capacity to inflame jurors and cloud reason. Moldaver J.A., dissenting in K. (A.), distinguished sexual offences from most other despicable criminal acts, on the basis that “sexual assault trials tend to be emotionally charged, particularly in cases of child abuse, where the mere allegation can trigger feelings of hostility, resentment and disgust in the minds of jurors” (para. 188).

[73] The proposition that sexual offences are generically different from other crimes in their ability to arouse strong passion is not beyond reasonable debate or capable of immediate and accurate demonstration. As such, it does not lend itself to judicial notice. Nor was evidence led on this issue. Some may well react to allegations of a sexual crime with emotions of the intensity described by the appellant. Yet how prevalent such emotions are in Canadian society remains a matter of conjecture. The Court simply cannot reach conclusions on these controversial matters in an evidentiary vacuum. As a result, the appellant has not established the existence of an identifiable bias arising from the emotionally charged nature of sexual crimes, or the prevalence of this bias should it in fact exist.

(e) The History of Challenges for Cause in Ontario

[74] The appellant refers this Court to the experience of Ontario trial courts where judges have allowed defence counsel to challenge prospective jurors for cause in cases involving allegations of sexual assault: see Vidmar, supra, at p. 5; D. M. Tanovich, D. M. Paciocco, S. Skurka, Jury Selection in Criminal Trials: Skills, Science, and the Law (1997), at pp. 239-42. These sources, cataloguing 34 cases, indicate that hundreds of potential jurors have been successfully challenged for cause as not indifferent between the Crown and the accused. It is estimated that 36 percent of the prospective jurors challenged were disqualified.

[75] The appellant argues that the fact that hundreds of prospective jurors have been found to be partial is in itself sufficient evidence of widespread bias arising from sexual assault trials. This is proof, he asserts, that the social realities surrounding sexual assault trials give rise to prejudicial beliefs, attitudes and emotions on a widespread scale in Canadian communities.

[76] The Crown disagrees. It argues first, that the survey lacks validity because of methodological defects, and second, that even if the results are accepted, the successful challenges do not demonstrate a widespread bias, but instead may be attributed to other causes.

[77] The first argument against the survey is that its methodology is unsound. The Crown raises a number of concerns: the survey is entirely anecdotal, not comprehensive or random; not all of the questions asked of prospective jurors are indicated; there is no way in which to assess the directions, if any, provided by the trial judge, especially in relation to the distinction between strong opinions or emotions and partiality; and no comparative statistics are provided contrasting these results with the experience in other criminal law contexts. The intervener CLA concedes that the survey falls short of scientific validity, but contends that it nevertheless documents a phenomena of considerable significance. Hundreds of prospective jurors disqualified on the grounds of bias by impartial triers of fact must, it is argued, displace the presumption of juror impartiality. Nonetheless, the lack of methodological rigour and the absence of expert evidence undermine the suggestion that the Ontario experience establishes widespread bias.

[78] The second argument against the survey is that the questions asked were so general, and the information elicited so scarce, that no meaningful inference can be drawn from the responses given by challenged jurors or from the number of potential jurors disqualified. Charron J.A., for the majority in K. (A.), observed that prospective jurors in that case received no meaningful instruction on the nature of jury duty or the meaning and importance of impartiality. Further, they often indicated confusion at the questions posed to them or asked that the questions be repeated. In the end, numerous prospective jurors were disqualified for offering little more than that they would find it difficult to hear a case of this nature, or that they held strong emotions about the sexual abuse of children.

[79] The challenge for cause process rests to a considerable extent on self-assessment of impartiality by the challenged juror, and the response to questions on challenge often will be little more than an affirmation or denial of one’s own ability to act impartially in the circumstances of the case. In the absence of guidance, prospective jurors may conflate disqualifying bias with a legitimate apprehension about sitting through a case involving allegations of sexual abuse of children, or the strong views or emotions they may hold on this subject.

[80] Where potential jurors are challenged for racial bias, the risk of social disapprobation and stigma supports the veracity of admissions of potential partiality. No similar indicia of reliability attach to the frank and open admission of concern about one’s ability to approach and decide a case of alleged child sexual abuse judiciously. While a prospective juror’s admission of racial prejudice may suggest partiality, the same cannot be said of an admission of abhorrence or other emotional attitude toward the sexual abuse of children. We do not know whether the potential jurors who professed concerns about serving on juries for sexual assault charges were doing so because they were biased, or for other reasons. We do not know whether they were told that strong emotions and beliefs would not in themselves impair their duty of impartiality, or whether they were informed of the protections built into the trial process.

[81] In fact, the number of prospective jurors disqualified, although relied on as support for judicial notice of widespread bias, is equally consistent with the conclusion that the challenge processes, despite the best intentions of the participants, disqualified prospective jurors for acknowledging the intense emotions, beliefs, experiences and misgivings anyone might experience when confronted with the prospect of sitting as a juror on a case involving charges of sexual assault of children. As discussed, the mere presence of strong emotions and opinions cannot be equated automatically with bias against the accused or toward conviction.

[82] It follows that the survey of past challenge for cause cases involving charges of sexual assault does not without more establish widespread bias arising from these charges.

(f) Social Science Evidence of “Generic Prejudice”

[83] The appellant argues that social science research, particularly that of Vidmar, supports the contention that social realities, such as the prevalence of sexual abuse and its politically charged nature, translate into a widespread bias in Canadian society.

[84] In Williams, supra, the Court referred to Vidmar’s research in concluding that the partiality targeted by s. 638(1)(b) was not limited to biases arising from a direct interest in the proceeding or pre-trial exposure to the case, but could arise from any of a variety of sources, including the “nature of the crime itself” (para. 10). However, recognition that the nature of an offence may give rise to “generic prejudice” does not obviate the need for proof. Labels do not govern the availability of challenges for cause. Regardless of how a case is classified, the ultimate issue is whether a realistic possibility exists that some potential jurors may try the case on the basis of prejudicial attitudes and beliefs, rather than the evidence offered at trial. The appellant relies on the work of Vidmar for the proposition that such a possibility does in fact arise from allegations of sexual assault.

[85] Vidmar is known for the theory of a “generic prejudice” against accused persons in sexual assault trials and for the conclusion that the attitudes and beliefs of jurors are frequently reflected in the verdicts of juries on such trials. However, the conclusions of Vidmar do not assist in finding widespread bias. His theory that a “generic prejudice” exists against those charged with sexual assault, although in the nature of expert evidence, has not been proved. Nor can the Court take judicial notice of this contested proposition. With regard to the behaviour of potential jurors, the Court has no foundation in this case to draw an inference of partial juror conduct, as discussed in more detail below, under the behavioural stage of the partiality test.

[86] Vidmar himself acknowledges the limitations of his research. He concedes that the notion of “generic prejudice” lacks scientific validity, and that none of the studies he relies on actually asked the questions typically asked of Canadian jurors, including whether they can impartially adjudicate guilt or innocence in a sexual assault trial: Vidmar, supra. Moreover, the authorities Vidmar relies on are almost exclusively “confined to examination of public attitudes towards certain criminal acts, especially child sexual abuse. Not surprisingly, it appears the public is quite disapproving of persons who have sexually abused children, and of such conduct itself”: R. v. Hillis, [1996] O.J. No. 2739 (Gen. Div.) (QL), at para. 7. While judicial notice may be taken of the uncontested fact that sexual crimes are almost universally abhorred, this does not establish widespread bias arising from sexual assault trials.

[87] The attempt of Vidmar and others to conduct scientific research on jury behaviour is commendable. Unfortunately, research into the effect of juror attitudes on deliberations and verdicts is constrained by the almost absolute prohibition in s. 649 of the Criminal Code against the disclosure by jury members of information relating to the jury’s proceedings. More comprehensive and scientific assessment of this and other aspects of the criminal law and criminal process would be welcome. Should Parliament reconsider this prohibition, it may be that more helpful research into the Canadian experience would emerge. But for now, social science evidence appears to cast little light on the extent of any “generic prejudice” relating to charges of sexual assault, or its relationship to jury verdicts.

(g) Conclusions on the Existence of a Relevant, Widespread Bias

[88] Do the factors cited by the appellant, taken together, establish widespread bias arising from charges relating to sexual abuse of children? In my view, they do not. The material presented by the appellant, considered in its totality, falls short of grounding judicial notice of widespread bias in Canadian society against the accused in such trials. At best, it establishes that the crime of sexual assault, like many serious crimes, frequently elicits strong attitudes and emotions.

[89] However, the two branches of the test for partiality are not watertight compartments. Given the challenge of proving facts as elusive as the nature and scope of prejudicial attitudes, and the need to err on the side of caution, I prefer not to resolve this case entirely at the first, attitudinal stage. Out of an abundance of caution, I will proceed to consider the potential impact, if any, of the alleged biases on juror behaviour.

2. Is it Reasonable to Infer that Some Jurors May Be Incapable of Setting Aside Their Biases Despite Trial Safeguards?

[90] The fact that members of the jury pool may harbour prejudicial attitudes, opinions or feelings is not, in itself, sufficient to support an entitlement to challenge for cause. There must also exist a realistic possibility that some jurors may be unable or unwilling to set aside these prejudices to render a decision in strict accordance with the law. This is referred to as the behavioural aspect of the test for partiality.

[91] The applicant need not always adduce direct evidence establishing this link between the bias in issue and detrimental effects on the trial process. Even in the absence of such evidence, a trial judge may reasonably infer that some strains of bias by their very nature may prove difficult for jurors to identify and eliminate from their reasoning.

[92] This inference, however, is not automatic. Its strength varies with the nature of the bias in issue, and its amenability to judicial cleansing. In Williams, the Court inferred a behavioural link between the pervasive racial prejudice established on the evidence and the possibility that some jurors, consciously or not, would decide the case based on prejudice and stereotype. Such a result, however, is not inevitable for every form of bias, prejudice or preconception. In some circumstances, the appropriate inference is that the “predispositions can be safely regarded as curable by judicial direction”: Williams, supra, at para. 24.

[93] Fundamental distinctions exist between the racial prejudice at issue in Williams and a more general bias relating to the nature of the offence itself. These differences relate both to the nature of these respective biases, and to their susceptibility (or resistance) to cleansing by the trial process. It may be useful to examine these differences before embarking on a more extensive consideration of the potential effects on the trial process, if any, of the biases alleged in the present case.

[94] The first difference is that race may impact more directly on the jury’s decision than bias stemming from the nature of the offence. As Moldaver J.A. stated in Betker, supra, at p. 441, “[r]acial prejudice is a form of bias directed against a particular class of accused by virtue of an identifiable immutable characteristic. There is a direct and logical connection between the prejudice asserted and the particular accused”. By contrast, the aversion, fear, abhorrence, and beliefs alleged to surround sexual assault offences may lack this cogent and irresistible connection to the accused. Unlike racial prejudice, they do not point a finger at a particular accused.

[95] Second, trial safeguards may be less successful in cleansing racial prejudice than other types of bias, as recognized in Williams. As Doherty J.A. observed in Parks, supra, at p. 371: “[i]n deciding whether the post-jury selection safeguards against partiality provide a reliable antidote to racial bias, the nature of that bias must be emphasized”. The nature of racial prejudice – in particular its subtle, systemic and often unconscious operation – compelled the inference in Williams that some people might be incapable of effacing, or even identifying, its influence on their reasoning. In reaching this conclusion, the Court emphasized the “invasive and elusive” operation of racial prejudice and its foundation “on preconceptions and unchallenged assumptions that unconsciously shape the daily behaviour of individuals” (paras. 21-22).

[96] The biases alleged in this case, by contrast, may be more susceptible to cleansing by the rigours of the trial process. They are more likely to be overt and acknowledged than is racial prejudice, and hence more easily removed. Jurors are more likely to recognize and counteract them. The trial judge is more likely to address these concerns in the course of directions to the jury, as are counsel in their addresses. Offence-based bias has concerned the trial process throughout its long evolution, and many of the safeguards the law has developed may be seen as a response to it.

[97] Against this background, I turn to the question of whether the biases alleged to arise from the nature of sexual assault, if established, might lead jurors to decide the case in an unfair and prejudicial way, despite the cleansing effect of the trial process.

[98] First, the appellant contends that some jurors, whether victims, friends of victims, or simply people holding strong views about sexual assault, may not be able to set aside strong beliefs about this crime – for example, that the justice system is biased against complainants, that there exists an epidemic of abuse that must be halted, or that conviction rates are too low – and decide the case solely on its merits. Some jurors, he says, may disregard rules of law that are perceived as obstructing the “truth” of what occurred. Others may simply “cast their lot” with groups that have been victimized. These possibilities, he contends, support a reasonable inference that strong opinions may translate into a realistic potential for partial juror conduct.

[99] This argument cannot succeed. As discussed, strongly held political views do not necessarily suggest that jurors will act unfairly in an actual trial. Indeed, passionate advocacy for law reform may be an expression of the highest respect for the rule of law, not a sign that one is willing to subvert its operation at the expense of the accused. As Moldaver J.A. eloquently observed in Betker, supra, at p. 447, “the test for partiality is not whether one seeks to change the law but whether one is capable of upholding the law...”.

[100] 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.

[101] The appellant also contends that myths and stereotypes attached to the crime of sexual assault may unfairly inform the deliberation of some jurors. However, strong, sometimes biased, assumptions about sexual behaviour are not new to sexual assault trials. Traditional myths and stereotypes have long tainted the assessment of the conduct and veracity of complainants in sexual assault cases – the belief that women of “unchaste” character are more likely to have consented or are less worthy of belief; that passivity or even resistance may in fact constitute consent; and that some women invite sexual assault by reason of their dress or behaviour, to name only a few. Based on overwhelming evidence from relevant social science literature, this Court has been willing to accept the prevailing existence of such myths and stereotypes: see, for example, Seaboyer, supra; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at pp. 669-71; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 94-97.

[102] Child complainants may similarly be subject to stereotypical assumptions, such as the belief that stories of abuse are probably fabricated if not reported immediately, or that the testimony of children is inherently unreliable: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43; N. Bala, "Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System", in W. S. Tarnopolsky, J. Whitman and M. Ouellette, eds., Discrimination in the Law and the Administration of Justice (1993), 231.

[103] These myths and stereotypes about child and adult complainants are particularly invidious because they comprise part of the fabric of social “common sense” in which we are daily immersed. Their pervasiveness, and the subtlety of their operation, create the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors.

[104] Yet the prevalence of such attitudes has never been held to justify challenges for cause as of right by Crown prosecutors. Instead, we have traditionally trusted the trial process to ensure that such attitudes will not prevent jurors from acting impartially. We have relied on the rules of evidence, statutory protections, and guidance from the judge and counsel to clarify potential misconceptions and promote a reasoned verdict based solely on the merits of the case.

[105] Absent evidence to the contrary, there is no reason to believe that stereotypical attitudes about accused persons are more elusive of these cleansing measures than stereotypical attitudes about complainants. It follows that the myths and stereotypes alleged by the appellant, even if widespread, provide little support for any inference of a behavioural link between these beliefs and the potential for juror partiality.

[106] Finally, the appellant argues that the strong emotions evoked by allegations of sexual assault, especially in cases involving child complainants, may distort the reasoning of some jurors. He emphasizes that a strongly held aversion to the offence may incline some jurors to err on the side of conviction. Others may be swayed by “undue empathy” for the alleged victim, perceiving the case as a rejection or validation of the complainant’s claim, rather than a determination of the accused’s guilt or innocence according to law.

[107] Again, absent evidence, it is highly speculative to suggest that the emotions surrounding sexual crimes will lead to prejudicial and unfair juror behaviour. As discussed, the safeguards of the trial process and the instructions of the trial judge are designed to replace emotional reactions with rational, dispassionate assessment. Our long experience in the context of the trial of other serious offences suggests that our faith in this cleansing process is not misplaced. The presumption of innocence, the oath or affirmation, the diffusive effects of collective deliberation, the requirement of jury unanimity, specific directions from the trial judge and counsel, a regime of evidentiary and statutory protections, the adversarial nature of the proceedings and their general solemnity, and numerous other precautions both subtle and manifest – all collaborate to keep the jury on the path to an impartial verdict despite offence-based prejudice. The appellant has not established that the offences with which he is charged give rise to a strain of bias that is uniquely capable of eluding the cleansing effect of these trial safeguards.

[108] It follows that even if widespread bias were established, we cannot safely infer, on the record before the Court, that it would lead to unfair, prejudicial and partial juror behaviour. This is not to suggest that an accused can never be prejudiced by the mere fact of the nature and circumstances of the charges he or she faces; rather, the inference between social attitudes and jury behaviour is simply far less obvious and compelling in this context, and more may be required to satisfy a court that this inference may be reasonably drawn. The nature of offence-based bias, as discussed, suggests that the circumstances in which it is found to be both widespread in the community and resistant to the safeguards of trial may prove exceptional. Nonetheless, I would not foreclose the possibility that such circumstances may arise. If widespread bias arising from sexual assault were established in a future case, it would be for the court in that case to determine whether this bias gives rise to a realistic potential for partial juror conduct in the community from which the jury pool is drawn. I would only caution that in deciding whether to draw an inference of adverse effect on jury behaviour the court should take into account the nature of the bias and its susceptibility to cleansing by the trial process.

VI - Conclusion

[109] 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 – indeed, even revulsion and abhorrence. Such is the nature of the trial process. 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. I agree with the majority of the Court of Appeal that the appellant has not established that the trial judge erred in refusing to permit him to challenge prospective jurors for cause.

[110] I would dismiss the appeal and affirm the conviction.

Appeal dismissed.

Solicitors for the appellant: Pinkofsky Lockyer, Toronto; Sapone & Cautillo, Toronto.

Solicitor for the respondent: The Ministry of the Attorney General, Toronto.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Edelson & Associates, Ottawa.

Solicitor for the intervener the Attorney General for Alberta: The Attorney General for Alberta, Edmonton.