RULING
MULLIGAN J., S.C.J. (orally)
[1] The plaintiff brings a motion to challenge members of the jury panel for cause. The jury was selected on November 12, 2013, before McCarthy J., who selected all juries for the Civil Sittings in Barrie, which commenced November 12, 2013. It is clear that the motion materials were not before McCarthy J., and he was not requested to rule on such a motion prior to the jury being picked and the panel dismissed. However, I accept that the issue was raised by plaintiff in discussions with defence counsel.
[2] The jury panel having been dismissed, the plaintiff seeks the following relief. The plaintiff wishes to ask a discreet question of each of the jurors. There are six jurors plus two alternates. I pause to note that the jurors have already been sworn or affirmed, and they were administered the following oath: "You swear that you shall well and truly try the issues joined between the parties and a true verdict given, according to the evidence, so help you God."
[3] The affidavit filed in support of this motion indicates that the plaintiff has had three abortions, although in submissions, it may be that the plaintiff has had two abortions and a third procedure which may have terminated a pregnancy. No affidavit was filed by the plaintiff, indicating whether or not these abortions were either medically necessary or simply a personal choice by the plaintiff to terminate a pregnancy.
[4] In support of this position, the plaintiff filed an affidavit stating, "Abortion is a highly charged political issue and many Canadians hold strong views for and against abortion." The plaintiff also filed as part of that affidavit, various polls and surveys about Canadians' views on abortion. In addition, the affidavit makes reference to Parliament's recent debate about reopening the abortion issue.
[5] It is evident from reviewing this material that Canadians have mixed views about abortion. According to the EKOS poll, 27 percent of Canadians were identified as pro-life, or in other words, against abortion. But an Abacus survey noted, "Over one in two Canadians (52 percent) said that they support the right of women to make choices about their own bodies while 17 percent said they support legal abortion, but only in extreme circumstances."
[6] Counsel for the defendants oppose the relief sought, indicating there is no statutory right to such questioning and it therefore is subject to judicial discretion. Counsel also point out to the potential for all manner of questions to be asked of jurors, including questions by the defence, such as any bias they may have against, for example, truck drivers. Counsel point out that the survey data indicates that there is no overwhelming bias one way or the other, as to Canadians' views on this issue.
THE LAW
[7] Questioning of juries about bias in criminal matters has become common place if counsel can satisfy a trial judge that it is reasonable to make such inquiry. Questions are often asked to determine if there is racial bias, or questions may be asked about pre-trial publicity.
[8] In a civil context, the Divisional Court dealt with the issue in Kayhan v. Greve, [2008] O.J. No. 2699. The Divisional Court reviewed an issue where the trial judge had struck a jury notice on the grounds that a Muslim-Canadian woman of Afghani descent would not receive a fair trial. The Divisional Court set aside that decision and remitted the matter back to trial. The Divisional Court dealt with the existing ability of a trial judge to embark in limited pre-screening of a jury panel and the trial judge's limited ability to take judicial notice of polarizing issues in the community. The Court also made reference to the Supreme Court of Canada's decision in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863.
[9] I will deal with that case in a moment, but the Divisional Court noted at para. 36, "Furthermore, the behavioural link between the existence of a lack of impartiality and the inability to set those biases aside, was not established." The Divisional Court noted that a challenge for cause was not prohibited, but provided the following note of caution at paras. 41-42. The Court stated:
What are the ramifications for a challenge for cause in civil matters? First of all, there is the potential as the appellant suggests, of never having civil jury cases in Ontario involving members of minority groups who may feel aggrieved. This, in our view, is a wholly untenable result and does not accord with Canada's reputation as an open and tolerant multicultural society.
The other ramification is that there would be considerable delay and expense involved in many civil cases in larger urban areas. Evidence would need to be brought to the attention of the trial judge on issues of potential prejudice. We already have a civil system that is seriously overloaded, and to this extent, challenges for cause in civil cases would not do anything but to increase the current backlog.
[10] R. v. Find, supra, a criminal case, provides further context for considerations which are applicable to civil trials. The Supreme Court suggested a two-step process to the analysis of whether or not a challenge for cause question would be appropriate. The first issue is whether or not there is sufficient evidence before the Court to determine if widespread bias is shown. The Court then stated at para. 40:
The 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.
[11] As the Court noted at para. 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 the 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 instructions from the trial judge.
[12] As the Court concluded at para. 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. I remind myself that that case was in the criminal context.
CONCLUSION
[13] It is clear that this is a matter for judicial discretion. I am not satisfied on the material before me that there is widespread bias in our community against individuals who may have had abortions for whatever reason. The statistics submitted indicate that Canadians may have strong views on either side of the question.
[14] In my view, to request to ask questions of a juror, ignores the cleansing effect that a full trial would have on a juror who may have some pre-conceived notions, and would ignore the instructions that jurors would receive from the trial judge, and the education they would receive by counsel throughout the trial.
[15] Although the plaintiff suggests that it would be a simple matter to ask one question of the jurors, it opens the possibility of a floodgate of questions of jurors from plaintiffs and defendants. Kayhan v. Greve suggests that this seriously raises the possibility of delay, increasing the backlog of civil cases. It is obvious that if questions were allowed, plaintiffs or defendants may have questions about such issues as sexual orientation or other prejudices that may exist against individuals based on any number of factors, including race, religion or occupations.
[16] In Kayhan v. Greve, I note that concurring Kiteley J., suggested that the issue of challenge for cause in civil cases was a matter which needed a legislative response. That case was decided in 2008 and counsel have not brought to my attention any legislative response which would derogate from the judge's discretion to deny a challenge for cause questions to a jury panel, let alone a jury that has already been picked and sworn to uphold its duty.
[17] Consequently, I would dismiss the plaintiff's motion.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
EVIDENCE ACT
I, Janice Crane, certify that this document is a true and accurate transcript in the recording of MacNeil v. Parry et al in the Superior Court of Justice, held at Courtroom No. 3, Barrie Courthouse, 75 Mulcaster Street, Barrie, Ontario, taken from Recordings 3811-03-20131113-100858, which has been certified in Form 1.
*This certification does not apply to the Reasons for Judgment, which were judicially edited.
23 November 2013 __________________________
J.L. Crane
Certified Court Reporter
MACNEIL v. PARRY 2013 ONSC 7273
Court File No. 10-0261
ONTARIO
SUPERIOR Court of Justice
BETWEEN:
KATHLEEN ROSE MACNEIL
Plaintiff
-and-
RACHAEL PARRY, DEREK JOHN ROGERS, CECELIA LEE,
RICHARD DESOUSA, BRADLEY CONLEY, JAMES SCOTT HARTMAN
and 2058441 ONTARIO LIMITED
Defendants
HEARD BEFORE THE HONOURABLE JUSTICE g.m. mulligan
on November 13, 2013, at coutroom no. 3,
Barrie courthouse, Barrie, ontario
RULING
APPEARANCES:
M. Elkin Counsel for Plaintiff
J. Beleskey Counsel for Defendant Rachael Parry
M. Smith Counsel for Defendants Derek Rogers
and Cecelia Lee
A. Curry Counsel for Defendants James Hartman and 2058441 Ontario Limited
A. Lee Counsel for Defendants Richard DeSousa and Bradley Conley