COURT FILE NO.: CR14-2310 DATE: 2016/05/12
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Gurpreet Ronald and Bhupinderpal Gill Defendants
Counsel: Brian Holowka and Jason Neubauer, for the Crown Michael Smith and Jessica Abou-Eid, for the Defendant, Gurpreet Ronald James Harbic, for the Defendant Bhupinderpal Gill
HEARD: May 10, 2016
Ruling on CHALLENGE FOR CAUSE
Parfett J.
[1] The accused in this matter seek an order permitting challenges for cause of the prospective jurors based on the following grounds:
- Race: the accused are East Indian
- Religion: the accused are Sikh
- Pre-trial publicity: Ms. Ronald alleges that extensive pre-trial publicity creates a risk that potential jurors will not be impartial;
- Marital infidelity: the accused are alleging there is societal bias against adulterers;
- Employment: Mr. Gill is alleging there is a realistic potential for bias among employees of OC Transpo and their families.
[2] The parties are in agreement that a challenge for cause is appropriate on the basis of race and religion. The question that has been agreed upon is the following:
As the judge will tell you, in deciding whether or not the prosecution has proven the charge against an accused, a juror must judge the evidence of the witnesses without bias, prejudice or partiality.
Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the persons charged are East Indian Sikh?
[3] The parties are also in agreement that in order to preserve the impartiality of the jurors it is appropriate to use the selection procedure as set out in s. 640(2.1) and (2.2) of the Criminal Code, R.S.C. 1985, c. C-46.
[4] The Crown opposes challenge for cause on the basis of pre-trial publicity, marital infidelity and employment.
Background
[5] The accused, Bhupinderpal Gill and Gurpreet Ronald, are jointly charged with the first degree murder of Mr. Gill’s wife, Jagtar Gill. On January 29, 2014, Mrs. Gill was found dead in her home. She had been beaten and stabbed.
[6] At the time of Mrs. Gill’s death, Mr. Gill was out shopping with his daughter and nephew. However, shortly after the death the police learned of an affair between Mr. Gill and Ms. Ronald. A ruse led them to discover that DNA left at the scene belonged to Ms. Ronald.
Legal Principles
[7] Section 638(1)(b) of the Criminal Code provides that a prosecutor or an accused is entitled to any number of challenges on the ground that a juror is not indifferent between the Queen and the accused.
[8] This section was considered by the Supreme Court of Canada in R. v. Sherratt, [1991] 1 S.C.R. 509, where the purpose of the procedure was indicated as follows:
As to challenges for cause, they are properly used to rid the jury of prospective members who are not indifferent or who otherwise fall within [s. 638], of the Code, but they stray into illegitimacy if used merely, without more, to over- or under-represent a certain class in society or as a “fishing expedition” in order to obtain personal information about the juror.
[9] The test for whether a challenge for cause should be permitted is not whether the ground of alleged partiality will create partiality in a juror, but “rather whether it could create that partiality which would prevent a juror from being indifferent as to the result.” In essence, the issue is whether there is a realistic potential for the existence of partiality.
[10] In R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32, the Supreme Court of Canada re-visited the issue of challenge for cause and added that not only was it important for the applicant to show there was a realistic potential for bias, but also that even with proper instructions from the trial judge the potential jurors might not be able to set aside their prejudice.
[11] Consequently, the Court in Find stated that the applicant must demonstrate first, “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.”
[12] The applicant can demonstrate the existence of community bias in a number of ways: “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.”
[13] When the court is asked to take judicial notice of certain facts, it is important to remember the scope of the procedure. As noted in R. v. Williams, [1998] 1 S.C.R. 1128,
Judicial notice is the acceptance of a fact without proof. It applies to two kinds of facts: (1) facts which are so notorious as not [to] be the subject of dispute among reasonable persons; and (2) facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy.
[14] When the issue of pre-trial publicity is being raised as a potential ground for a challenge for cause, it not just the extent of the publicity that matters, it is also the timing and content of the publicity. As noted in Sherratt,
Lawton J. in R. v. Kray draws a valuable distinction, in pre-trial publicity cases, between mere publication of the facts of a case and situations where the media misrepresents the evidence, dredges up and widely publicizes discreditable incidents from an accused’s past or engages in speculation as to the accused’s guilt or innocence.
Analysis
[15] The Applicants filed a number of internet searches relating to this case. These searches reveal that there has been extensive media interest in this case. The most recent internet search demonstrated that the media interest – which had died down – is ramping up again as the date the trial is to start draws near. One recent example of media interest filed by the Applicants uses evocative language, emphasizes lurid aspects of the case and pre-supposes the guilt of the accused. Counsel advised the court that similar language and approaches have been used in other media reports.
[16] In my view, the pre-trial publicity in this case meets the test for requiring a challenge for cause and the following question can be asked of potential jurors:
Do you recall having seen, heard or read any information about this case on television, radio, newspaper or the internet? If so, would any opinion you may have formed based on this information prevent you from deciding this case based solely on the evidence at trial and according to the instructions of the trial judge?
[17] On the other hand, I do not find the Applicants have demonstrated there exists any widespread bias in the community against persons who engage in extramarital affairs. Counsel asked me to take judicial notice of the existence of such a bias. I cannot do so. It is possible that members of the community may have strong opinions on the subject, but the nature of those opinions is not a matter that is so well-known it is not a subject of dispute. Nor is it a matter that is readily ascertainable by accessing impeccable sources.
[18] Moreover, I do not find that the Applicants have demonstrated that if such a bias exists, those who hold that bias might be incapable of setting it aside and deciding this case fairly. The comments of the trial judge in R. v. Davy, 2015 ONCA 26 (with changes to reflect the facts in this case) are apposite: “[w]hile I accept that there may be an element of society that is potentially biased against [those who engage in extramarital affairs], I am not persuaded that such individuals are incapable of setting aside their bias on instructions from the trial judge.”
[19] Finally, no evidentiary basis was provided to me to suggest that the ‘rumours and gossip’ Mr. Gill’s counsel suggested abounded in the OC Transpo workplace exists, let alone that these ‘rumours and gossip’ would render potential jurors unable to fairly decide the case on the evidence presented in court.
Conclusion
[20] In conclusion, challenges for cause will be permitted on the basis of race, religion and pre-trial publicity. The questions to be asked are those outlined in paragraphs 2 and 16.
Madam Justice Julianne Parfett
Released: May 12, 2016