Court File and Parties

COURT FILE NO.: CR-17-22 DATE: 20180704 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Leonard Borne

BEFORE: E. Koke

COUNSEL: Lindsay A.J. Santerre, Counsel for the Crown John Raftery, Counsel for the Accused

HEARD: May 24, 2011

Endorsement

Introduction

[1] This is an application by the accused, Mr. Borne for an order permitting a challenge for cause in his jury trial. Mr. Borne alleges that the “proposed jurors may not be impartial based upon wide spread movements which are inconsistent with the presumption of innocence in sexual assault cases, resulting in a juror not being indifferent between the Queen and the accused contrary to s. 638(1)(b) of the Criminal Code of Canada.”

The Charges

[2] Mr. Borne has pleaded not guilty to 8 charges. Two of the charges are indecent assault, two are charges of exposing his genital organs to a person under the age of 16, two are charges of sexual assault, and two are charges of sexual touching of a person under the age of 16.

The Evidence

[3] The Applicant relies on one item of evidence in his application, an article written by Christie Blatchford and published in the newspaper, the National Post entitled: With #MeToo, we have lost the presumption of innocence. A caption under the title reads: This is where we are now. An execution, then no trial. Just an execution. You can forget about process, due or otherwise.

[4] In the article Ms. Blatchford refers to a number of men who have been publically discredited on social media or in the press as a result of unproven allegations of sexual misconduct made against them by various women. She also refers to an article by Moira Donegan, the author of an online spreadsheet listing the names of men who have been “outed”, on the basis of such unproven allegations. Ms. Blatchford writes: It (the article), made another presumption too – that women are invariably truth tellers. This runs so contrary to common sense and my own experience – and to my own flawed nature – that I was gobsmacked.

[5] Ms. Blatchford does not refer to any situations where the presumption appears to have been abandoned in a criminal case.

[6] In his oral submissions, counsel for the Applicant asked the court to take judicial notice of the fact that changes have occurred in society with respect to how people view sexual offences by men against women. These views are highlighted by the “Me Too” movement and are characterized by slogans such as “believe the victim”. Counsel argues that these changes are such that they challenge the presumption that jurors are impartial with respect to sexual offences, and they require that the court permit jurors to be challenged for cause in his client’s jury trial.

[7] Crown Counsel agrees that there have been attitudinal changes in the community with respect to sexual offences. However, she disagrees that they demonstrate widespread bias. She argues that to the extent that these changes have resulted in bias, such biases can be dealt with through established safeguards which form an integral part of any jury trial, including the instructions to the jury panel, the preliminary instructions to the jury, mid trial instructions, the final submissions and arguments by counsel and the jury charge.

[8] Crown Counsel refers to the decision of the Ontario Court of Appeal in R v. Betker (1997), 115 C.C.C. (3d) 421. In Betker the appellant appealed the decision of the trial judge who had refused to allow him to challenge the jury for cause in a case involving a number of sexual offences. The Court of Appeal upheld the decision of the trial judge, finding that the established safeguards provided protection against biases, and noted by way of example that the trial judge made the following comments in his opening instructions to the jury:

Now ladies and gentlemen, as I have already indicated to you that this case involves a case of alleged sexual acts by a father against a daughter, and if you should find that you have some problem with setting aside any biases, prejudices or partiality that you may hold, and those biases, prejudices or partialities might affect an open, fair and impartial mind, when you are called to the jury box, before you are asked to look upon the accused, I would ask you to indicate to me that you have a problem and you may come forward then and discuss the matter with me.

[9] Crown counsel suggests that I also deal with the issue of any potential bias resulting from the influence of the Me Too movement in my opening instructions.

Analysis

[10] Where a challenge for cause is sought, the burden is on the Applicant to satisfy the court that there is a realistic potential that a jury pool may contain potential jurors who are not impartial in the sense that, even upon proper instruction by the trial judge, jurors may not be able to set aside their prejudice and decide fairly between the Crown and accused, despite trial safeguards: see R. v. Find, 2001 SCC 32, at para. 31.

[11] The Applicant must provide an evidentiary foundation that there is: (1) widespread bias within the community; and (2) some jurors may be incapable of setting aside such bias, despite trial safeguards. A trial judge can also take judicial notice of widespread bias within the community: see Find, at para. 32.

[12] These two components of the challenge for cause test reflect, respectively, the attitudinal and behavioural components of partiality: see R. v. Parks (1993), 84 C.C.C. (3d) 353 at pp. 364-365; Betker, at pp. 435-36.

[13] Despite the two part test, the overarching consideration is whether there exists a realistic potential for partial juror behaviour and the two components serve only to ensure that all aspects of the issue are examined, and to assist in determining whether some jurors may decide the case on the basis of preconceived attitudes or beliefs, rather than the evidence placed before them: see Find at para. 33.

(a) Is there Widespread Bias within the Community?

[14] For the court to take judicial notice of the fact that the Me Too movement has contributed to widespread bias against persons charged with sexual offences, the bias would have to be so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted.

[15] It has been my observation that the believe the victim slogan has often been used to underscore the fact that the testimony of victims of sexual offences has historically been subject to a number of now discredited myths. It is now generally acknowledged that these myths have existed, and that they have had a negative and unfair influence on how such testimony has been received in the courtroom. These myths have now been addressed through legislative changes to the Criminal Code, which have changed the way that trials involving sexual offences are conducted, and are designed to rid the judicial process of such biases.

[16] It has also been my observation that when the believe the victim slogan is referred to in the public realm there has been no suggestion that the presumption of innocence in criminal sexual assault cases should be abandoned. Rather, it is used in an attempt to convince society that a women’s testimony in a case involving a sexual offence should be taken seriously, and not that such testimony should be free from scrutiny by the trier of fact. I agree with Ms. Blatchford such phrases, when taken literally, defy common sense and human experience, and I believe that most members of the community would concur with this view.

[17] The Me Too movement is a relatively new movement. In my view, the degree to which it has influenced society remains uncertain. I expect that the movement has served to draw attention to the prevalence of sexual offences, and as encouragement to victims to seek help and redress. However, in the absence of more information about the movement than that provided to me by the Applicant, I am unable to take judicial notice that the movement has contributed to widespread bias towards persons accused of sexual offences, or that such widespread bias exists. I am of the view that any issues of bias which have not been dealt with by way of the aforementioned legislative changes can be handled effectively from the bench by the trial judge in his instructions to the jury.

[18] In conclusion, I find that the evidence falls short of grounding judicial notice of widespread bias against a person accused of a sexual offence, notwithstanding recent changes in attitude by members of Canadian society towards sexual offences. At best, it establishes that sexual offences, not unlike other serious offences, elicits strong attitudes and emotions and that it is the desire of the public that such offences are dealt with justly and fairly.

(b) Is it Reasonable to Infer that Some Jurors May be Incapable of Setting Aside Their Biases despite Trial Safeguards?

[19] Given the difficulty of proving facts which establish that widespread bias might exist in this case, I will move onto the second component of the test and consider the potential impact, if any, of any bias on juror behaviour.

[20] In the event that some jurors may not be impartial, I am not convinced that the best way to protect the judicial process from potential bias in the circumstances of this case is through the challenge for cause procedure. The procedure is far from being foolproof or effective, and is best suited for a limited number of cases. Persons who may never have sat in a court of law are suddenly, without any advance warning and without being vetted, asked to swear an oath and then become triers of fact in relation to very difficult issues, which include a determination of whether answers given by potential jurors reflect a bias and whether such potential jurors are capable of setting aside their biases. These are difficult questions which involve new and challenging concepts for many potential jurors.

[21] Although there may be merit to using the challenge for cause procedure to deal with race related prejudices, it is my view that the existing safeguards can best protect against the type of potential bias in this case. These existing safeguards provide that the judge presiding over the trial can explore the issue of bias with a juror, and then make the final determination as to whether the juror is capable of setting aside his or her bias.

[22] Like the trial judge in Betker, supra, I am quite prepared to address the issue of bias resulting from the recent attitudinal changes to sexual offences in my opening statement to the jury panel, and during the jury selection as necessary. As already noted, there are other protections in place as well. In my view, this approach will best ensure that those jurors who may be biased can be identified, following which it can be determined whether they are capable of setting their bias aside.

Decision

[23] For the above reasons, I am dismissing Mr. Borne’s application.

Koke J. Date: July 4, 2018