ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10677
DATE: 2012/03/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – DAVID HATCH
J. Spangenberg, for the Crown
D. Crawford and M. Hilliard, for the Accused
HEARD: February 27, 28, 29, March 1 & 2, 2012
rADY J.
ruling
Introduction
[ 1 ] The accused seeks an order permitting a challenge for cause in this case. Mr. Hatch is charged with the first degree murder of Marie Roberts on January 31, 2010. It is alleged that Mr. Hatch used a long gun to kill Ms. Roberts. Mr. Hatch had a legally obtained firearms certificate and he purchased a .22 calibre Savage Arms rifle at Wholesale Sports in Calgary, Alberta. He legally transported the firearm to London.
[ 2 ] The defence wishes to ask prospective jurors a series of questions along the following lines:
Do you have any feelings re Long Gun laws? If so what are they?
Do you own a Long Gun, or do members of your family, or close friends?
Do you think your gun laws are too strict or too loose? Because of the above, do you think that would affect your ability to properly decide this case?
Do you think that if we had stricter gun regulation it would reduce homicides?
Do you feel that the Long Gun Registry should be scrapped?
Are you aware that many people in rural areas have unregistered Long Guns?
[ 3 ] The Crown opposes the application.
The Evidence
[ 4 ] In support of the application, the defence called Mr. Lazarevich, a retired OPP officer who now works for Eagle Investigations as a private investigator. Mr. Lazarevich prepared a report dated February 15, 2012, which outlines the investigation that he undertook to determine public opinion on firearms.
[ 5 ] Mr. Lazarevich testified that his first step was to conduct an internet search on a variety of sites, including rcmp-grc.ca; statcan.gc.ca; angus-reid.com; justice.gc.ca; gallup.com and others. He also spoke with an acquaintance at the OPP in the provincial weapons unit.
[ 6 ] Mr. Lazarevich noted that a number of the sites that he visited did not differentiate between long guns and handguns but rather used the generic description “firearms”.
[ 7 ] He used the information on these sites to compile statistics respecting responses given to several questions. For example, 54% felt gun control would reduce crime but 44% did not. It was said that 84% was in favour of the general public, hunters and trap shooters owning a gun. Forty-five percent were reported to consider it should be illegal to own a handgun or a long gun while 40% considered it should be legal. There was a brief description of different attitudes to firearms broken down by geographic regions in Canada.
[ 8 ] Mr. Lazarevich then conducted a live public opinion poll. He interviewed 138 people at the Suncoast Mall in Goderich, Ontario and he telephoned 75 people in Toronto, having obtained telephone numbers from the directory, apparently at random.
[ 9 ] He then analyzed the responses to various questions. For example, 90% of those interviewed were in favour of the general public, hunters and trap shooters owning a gun. Forty percent considered it should be illegal to own a long gun, while 60% were in favour of long gun ownership.
[ 10 ] He expressed the view from personal experience that many persons living in rural areas have unsecured long guns.
[ 11 ] He arrived at the following conclusions, which I quote verbatim:
• It makes no difference if the juror is male or female
• A person’s geography makes a difference because people from Quebec have the most hard line attitude towards firearms, closely followed by people from Ontario and British Columbia. People from Alberta, the Prairie provinces and Atlantic Canada were the most tolerant.
• Additionally people from rural areas are more tolerant of long guns where it is estimated that 50% of long guns are not registered and it is common to have unsecured long guns in residences.
• The majority feels it is okay to have a long gun
• The majority favour a ban on handguns
• The majority do not see gun violence as a more serious problem
• The majority feels there should be a jail sentence if a firearm is used in a crime
Analysis
[ 12 ] As a general proposition, an accused does not have a right to empanel a favourable jury: R. v. Sherratt (1991), 1991 86 (SCC) , 63 C.C.C. (3d) 193 (S.C.C.). Jurors who swear an oath are presumed to perform their duty without bias or partiality and the presumption of impartiality is only rebutted by evidence of a “realistic potential for the existence of partiality:” R. v. Sherratt , supra.
[ 13 ] The seminal case on offence based challenges is R. v. Find, 2001 SCC 32 () , [2001] 1 S.C.R. 863. In that case, the accused appealed the trial judge’s decision refusing to permit him to challenge for cause. The appeal was dismissed. The court made a number of observations, which are paraphrased in the following paragraphs.
[ 14 ] 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, otherwise described as partiality. To establish a realistic potential for juror partiality, the applicant must satisfy the court of two things: (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.
[ 15 ] The first branch of the test deals with the existence of a material bias, while the second is concerned with the potential effect of the bias on the trial process. The paramount consideration, in all cases, is whether a realistic potential exists for partial juror behaviour.
[ 16 ] The first branch involves two concepts: “bias” and “widespread.” “Bias” 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 determined in the context of a specific case.
[ 17 ] The second concept, “widespread,” relates to the prevalence 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 ameliorating effect of the trial judge’s instructions and the trial process itself.
[ 18 ] The decision to allow or deny an application to challenge for cause is within 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.
[ 19 ] 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.
[ 20 ] In Find , 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 people; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
[ 21 ] Of course, in this case, there is evidence before the court touching on the issue and there is no request that judicial notice be taken.
[ 22 ] In my view, the evidence falls well short of establishing that there is a reasonable prospect of partiality. The evidence does not support the contention that there is a widespread bias in the community respecting the ownership of a long gun. In fact, the evidence, such as it is, seems to support the opposite conclusion. The majority are said to believe “it is okay to have a long gun”.
[ 23 ] While Mr. Lazarevich was well intentioned, the evidence that he offered the court is not reliable for a variety of reasons. First, it was not clear to me how he formulated the percentages derived from the various websites. Were they averages? Did all the sites have the same questions? There was no information respecting how old this information is or who was sampled for their responses. Some information was discounted because of their pro firearm orientation. Importantly, some of the sites did not differentiate between long guns and handguns. Some of Mr. Lazarevich’s information was anecdotal.
[ 24 ] Second, Mr. Lazarevich’s live poll was not scientific and involved a sampling of a very small segment of the population in Huron County and Metropolitan Toronto. There was no information respecting attitudes in Middlesex County where this trial is being held.
[ 25 ] Accordingly, the application is dismissed.
Justice H. A. Rady
Released: March 8, 2012
COURT FILE NO.: 10677
DATE: 2012/03/08
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN v. DAVID JOHN HATCH RULING Rady J.
Released: March 8, 2012