BARRIE
COURT FILE NO.: CR-12-220
DATE: 20141208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDREW KEENE
Defendant
M. Flosman and S. Tarcza, for the Crown
M. Eisen and N. Riley, for the Defendant
HEARD: November 12, 2014
RULING RE CHALLENGE FOR CAUSE
MULLIGAN J.:
[1] On October 20, 2011, Andrew Keene was charged with first degree murder of Alexandra Flanagan. He was also charged with indignity to a human body. He now faces charges of second degree murder and indignity to a human body. The Crown and defence brought a number of applications, seeking rulings before the jury is empanelled for the trial scheduled to commence in June of 2015. The Crown alleges that Mr. Keene murdered Alexandra Flanagan in his Barrie apartment in July of 2007, following which he dismembered her body and distributed the body parts to various locations in Barrie.
[2] The defence brought an application for an order allowing a Challenge for Cause based on pre-trial publicity. In support of its application, the defence filed a number of media articles surrounding the death of Alexandra Flanagan and subsequent investigations and proceedings.
[3] Crown and Defence have reached an agreement regarding the defence application for a challenge for cause. The basis for the challenge is the allegation that there has been a significant amount of pre-trial publicity in the community with respect to circumstances surrounding the death of Alexandra Flanagan. Crown and defence have agreed on most of the wording in the challenge for cause questions as proposed by defence. There is agreement with respect to questions #1 through #5. There is some disagreement with respect to proposed question #6 which states:
Whether or not you have heard about this case, would the allegations that Alexandra Flanagan was murdered by Mr. Keene and the allegations that he dismembered her body, leaving body parts in three wooded areas in the City of Barrie affect your ability to decide this case without bias, prejudice or sympathy.
Defence Position
[4] The defence position is that this question is appropriate and warranted under the circumstances.
Position of the Crown
[5] The Crown’s position is that this is an offence-based question and therefore not permitted, based on the Court of Appeal’s guidance in R. v. Betker, 1997 1902 (ON CA), [1997] O.J. No. 1578.
Analysis
[6] Counsel for the defence filed a casebook of authorities in support of its request for a challenge for cause questions for the jury panel. The questions focus on the issue of a potential juror’s knowledge of the case through publicity, potentially impacting their indifference between the Crown and the accused. However, in this case, the Crown has agreed to questions #1 to #5 as proposed by the defence. It is question #6, which requires closer scrutiny as to whether or not it is an offence-based question.
[7] To provide context, the five questions agreed upon by the Crown as submitted by the defence are as follows:
Have you seen, heard or read anything about this case, from the television, radio or newspapers?
Have you seen or read anything on the Internet about this case?
Have you talked about this case with anyone, or heard anybody talk about it?
(If applicable) As a result of anything you have seen, heard or read, have you formed an opinion about the innocence or guilt of Mr. Keene?
(If applicable) Despite any opinion that you may have formed, would you be able to set that opinion aside and decide the case only on the evidence at trial and according to the instructions of the trial judge?
[8] The issue of an offence-based question was reviewed in Betker in the context of a challenge for cause. That case dealt with a sexual assault and potential questions of the jury panel about their preconceived notions of sexual assault. In describing this type of prejudice as “generic prejudice”, the Court of Appeal stated at para. 56:
Generic prejudice is not specific to a particular accused. Rather, it involves general beliefs, attitudes and biases held by a juror that prevent him or her from deciding the case with a fair and impartial mind regardless of the facts of the particular case.
As the Court further elaborated at paras. 70-72:
The appellant’s argument is fundamentally flawed in that it fails to recognize the principled distinction between a want of indifference toward the accused and a want of indifference toward the nature of the crime.
To be more precise, I am of the view that strong attitudes about a particular crime, even when accompanied by intense feelings of hostility and resentment towards those who commit the crime, will rarely, if ever, translate into partiality in respect of the accused.
[9] The Court of Appeal provided further guidance to trial judges at para. 79:
… Trial judges would be well advised to alert the entire panel to the nature of the charges and invite those prospective jurors who would find it too difficult to sit as a juror to identify themselves. Once identified, the prospective juror should be excused on account of personal hardship in accordance with s.632 of the Criminal Code.
[10] Watts Ontario Specimen Jury Charges (Criminal) (2005) provides such a general instruction to be given to the panel prior to proceeding with the challenge for cause. Preliminary 4-B Prior Involvement in or Knowledge of Similar Offences states:
The offences are:
If you or someone you know has ever been accused of any offence of this nature, or a victim of such offence, or otherwise involved in a similar offence or experience, please raise your hand and come to the front of the courtroom.
We do not wish to embarrass anyone by asking questions about personal matters. At the same time, we need to know about these things, because they may make it too difficult for you to perform jury duty in this case. If you come forward, I will discuss your situation with you.
[11] The Supreme Court of Canada had an opportunity to review Betker in R. v. Find, 2001 SCC 32, [2001] S.C.J. No. 34. The court considered the issue of challenge for cause for publicity, and provided an overview of this aspect of jury selection process. The court considered two ways that potential jurors could be excused from the process.
[12] The first was the trial judge’s limited preliminary power to excuse perspective jurors. As the court stated at paras. 22 and 23:
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.
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.
[13] The court then reviewed the second basis for excluding perspective jurors: the challenge for cause procedure. In considering this issue, the court noted the following fundamental principle of Canadian law. At para. 26, McLachlin C.J. stated:
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).
[14] In the case before it, the Court noted that the appellant called no evidence, expert or otherwise, with respect to prejudice stemming from the nature of the offence. The Court concluded at para. 109:
… 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… 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.
[15] In R. v. Sandham, 2009 22574 (ON SC), [2009] O.J. No. 1853, T.A. Heeney J. allowed an offence-based question. The question allowed was:
Whether or not you have heard about this case, would the allegations, namely, that a total of eight men were shot and killed, all but one execution style, affect your ability to decide this case without bias, prejudice or partiality?
[16] It appears that the Crown did not oppose the questions. The Court noted at para. 21 that:
The Crown concedes that an “offence-based” challenge is appropriate in this case, and I agree. The event in question, involving the mass homicide of eight individuals, is virtually without precedent in this province. It is an event of such shocking dimensions that some jurors might find it impossible to deal with it dispassionately and with a completely open mind.
[17] In my view, question #6 should not be submitted to the proposed jurors as part of the challenge for cause questions. It is an offence-based question which would be an attempt to discern whether the proposed jurors are indifferent as between the Crown and the type of offence charged. The issue can be addressed at the pre-screening stage for those jurors who may identify themselves as having prior involvement in or knowledge of similar offences. In my view, the defence has not overcome the presumption that potential jurors cannot set aside their views and prejudices after receiving proper instruction from the trial judge.
[18] The defence application for challenge for cause questions is granted, save and except for proposed question #6. Crown and defence have also agreed to certain other modifications in the preamble of the proposed questions if necessary, based on the outcome of the defence application to exclude the “Mr. Big” evidence or to exclude the accused’s statement to the police.
MULLIGAN J.
Released: December 8, 2014