Court File and Parties
Oshawa Court File No.: CR-17-14461 Date: 20180822 Ontario Superior Court of Justice
Between: Her Majesty The Queen – and – T.J. Defendant/Applicant
Counsel: Mareike Newhouse, for the Crown Alan Risen, for the Defendant/Applicant
Heard: June 13, 2018
Publication Restriction Notice
Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person.
Reasons for Decision
DE SA J.:
Overview
[1] The accused has brought an application to question potential jurors pursuant to s. 638(1)(b) of the Criminal Code of Canada.
[2] Given its prevalence, the Applicant argues that the “Me Too” Movement (the Movement) has potentially affected the impartiality of prospective jurors, and makes jurors more likely to convict. He takes the position that he should have the opportunity to question jurors on whether the Movement has affected their ability to make decisions impartially.
[3] The Crown opposes the application largely on the basis that the accused’s complaints amount to a challenge based on the type of the offence. The Supreme Court in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, has expressly rejected attempts at offence based challenges. Accordingly, the Crown asks that the application be dismissed.
[4] For the reasons outlined below, I dismiss the application.
The Me Too Movement
[5] The evidence filed on the application is limited. For the most part, the Applicant requests that I take judicial notice of the prevalence of the “Me Too” Movement and its message.
[6] The Applicant also relies on various articles, and commentary from news media primarily from American media. For example, the Applicant cites a recent article in The New Yorker where a journalist wrote,
Me Too is the power of numbers across time: the difference between a single victim, whose lone account might not be believed, and the choruses of “Me Too” that make each individual’s account that much more believable. When it comes down to it, #MeToo itself constitutes an evidentiary claim of sorts: what you say happened to you happened to me, too, and so it is more likely that we are both telling the truth.
[7] The Applicant also relies on a recent CNN report dealing with the Bill Cosby trial, where the report stated:
As Bill Cosby faced a retrial for allegedly drugging and sexually assaulting a woman in 2004, there was a question as to whether the #MeToo and Time’s UP movements against sexual abuse would factor into his case. Hollywood seems to believe the answer is a resounding “yes”.
[8] The Applicant also points out that courts from this country have recognized the prevalence of the Me Too Movement, and have implicitly acknowledged its potential impact on the impartiality of jurors. Schreck J. in R. v. C.C., 2018 ONSC 1262, [2018] O.J. No. 1030 noted at para. 52:
The trial took place at a time when issues of sexual misconduct against women are very much in the public eye. There are numerous media reports about what has come to be described as the “Me Too” movement, in which people, especially women, are increasingly willing to disclose instances of sexual misconduct that have befallen them and where there has been a decrease in the social stigmatization that previously impeded such disclosure. Some proponents of the “Me Too” movement, including several politicians and media personalities, have suggested that women who make allegations of sexual misconduct should be presumed to be telling the truth. There are numerous social media communications with the “hashtag” (a marker identifying a specific topic of interest) “#believewomen” or “#IBelieveSurvivors”. [Emphasis added.]
Analysis
[9] The Criminal Code, R.S.C. 1985, c. C-46, provides for: the right to challenge for cause based on partiality (s. 638(1)(b)); the form in which the challenge may be presented (s. 639); and the way in which the validity of the challenge is to be determined (s. 640).
[10] The threshold question is not whether the ground of alleged partiality will create such 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 the end, there must exist a realistic potential for the existence of partiality, on a ground sufficiently articulated in the application, before the challenger should be allowed to proceed. R. v. Sherratt, [1991] 1 S.C.R. 509, .
[11] The threshold test for a party to exercise the right to challenge for cause is a minimal standard. Nevertheless, there must be an air of reality to the inquiry. As explained in R. v. Parks, [1993] O.J. No. 2157, , the threshold test set down in Sherratt is both a recognition of the validity of the "presumption" that jurors will do their duty in accordance with their oath, and a recognition of the limits of that presumption. [1]
[12] The courts have made clear that partiality is not simply a strong feeling on the part of a prospective juror regarding a topic of social importance in a civilized and democratic society. There must be some articulable reason for believing that such a strong belief, even bias, would carry with it real potential that, because of such a view, the juror might fail to be indifferent as to the result.
[13] Questions which seek to do no more than establish that a potential juror has beliefs, opinions or biases which may operate for or against a particular party cannot establish partiality: Prospective jurors may not be challenged on general grounds relating to opinions and beliefs. R. v. Find, infra, para. 109. In other words, a “fishing expedition” in order to extract personal information about a juror has been judicially proscribed (R. v. Sherratt, supra, per L’Heureux-Dubé, J.).
[14] In R v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, the accused was charged with 21 counts of sexual offences involving complainants ranging between 6 and 12 years of age at the time of the alleged offences. Prior to jury selection, he applied to challenge potential jurors for cause, arguing that the nature of the charges against him gave rise to a realistic possibility that some jurors might be unable to try the case against him impartially and solely on the evidence before them. The trial judge rejected the application. The accused was tried and convicted on 17 of the 21 counts. The matter was appealed.
[15] The Supreme Court found that the trial judge did not err in refusing to permit the accused to challenge for cause because of the nature of the offences with which he was charged. Much like this case, the accused did not call any evidence in support of his application but relied heavily on proof by judicial notice. The Supreme Court found that the case for widespread bias arising from the nature of the charges of sexual assault on children was tenuous and, in any event, its link to actual juror behaviour was speculative, leaving the presumption that any bias would be cleansed by the trial process firmly in place. The Court explained at paras. 98-100:
First, the appellant contends that some jurors, whether victims, friends of victims, or simply people holding strong views about sexual assault, may not be able to set aside strong beliefs about this crime – for example, that the justice system is biased against complainants, that there exists an epidemic of abuse that must be halted, or that conviction rates are too low – and decide the case solely on its merits. Some jurors, he says, may disregard rules of law that are perceived as obstructing the “truth” of what occurred. Others may simply “cast their lot” with groups that have been victimized. These possibilities, he contends, support a reasonable inference that strong opinions may translate into a realistic potential for partial juror conduct.
This argument cannot succeed. As discussed, strongly held political views do not necessarily suggest that jurors will act unfairly in an actual trial. Indeed, passionate advocacy for law reform may be an expression of the highest respect for the rule of law, not a sign that one is willing to subvert its operation at the expense of the accused. As Moldaver J.A. eloquently observed in Betker, supra, at p. 447, “the test for partiality is not whether one seeks to change the law but whether one is capable of upholding the law...”.
In the absence of evidence that such beliefs and attitudes may affect jury behaviour in an unfair manner, it is difficult to conclude that they will not be cleansed by the trial process. Only speculation supports the proposition that jurors will act on general opinions and beliefs to the detriment of an individual accused, in disregard of their oath or affirmation, the presumption of innocence, and the directions of the trial judge. [Emphasis added.]
[16] Similarly, in R. v. Betker, , [1997] O.J. No. 1578 (cited with approval in R. v. Find), the Ontario Court of Appeal held that the nature of the charge standing alone is generally not a basis for a challenge for cause. Strong attitudes about a particular crime will rarely if ever translate into partiality in respect of an accused.
[17] The Betker case concerned allegations of sexual assault by a father against a daughter. Defence counsel applied under s. 638(1)(b) to challenge each prospective juror for cause on the basis that there existed a realistic possibility that one or more of the prospective jurors would, because of the nature of the charges, not be impartial between the Crown and the accused.
[18] The defense presented social science evidence including: (1) sexual victimization statistics and (2) the “Skurka survey” and other related materials concerning negative public attitudes towards sexual assault. The trial judge refused to permit the challenge for cause, and the accused was convicted. The Ontario Court of Appeal dismissed the accused’s appeal. In commenting on the issue, Moldaver J.A. explained:
But even if the appellant is correct in his assertion that in cases of sexual assault, it is the nature of the crime itself that gives rise to potential partiality and not the evidence led in support of it, I remain unconvinced that the threshold tests for pre-trial partiality under s. 638(1)(b) have been met. In my view, the appellant's argument is fundamentally flawed in that it fails to recognize the principled distinction between a want of indifference towards the accused and a want of indifference towards the nature of the crime. In this respect, I agree with the submissions of Ms. Reid on behalf of the Crown that the racial prejudice at issue in Parks is conceptually different from strongly held views about a particular crime.
Racial prejudice is a form of bias directed against a particular class of accused by virtue of an identifiable immutable characteristic. There is a direct and logical connection between the prejudice asserted and the particular accused. In contrast, the prejudice asserted by the appellant involves negative views about a type of crime and not a type of person. In my opinion, there is no direct and logical connection that translates views about a particular crime into prejudice against a specific accused such that jurors would disregard their oath and render a verdict based on something other than the evidence and the legal instruction provided by the trial judge.
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. [Emphasis added.]
[19] In my view, the same analysis would apply in the context of the challenge raised by the accused in this case. Much of the media coverage and reports referenced by the accused demonstrate the prevalence of sexual assault in our society, and a reinvigorated societal recognition of its unacceptability. The media coverage encourages woman to come forward in reporting such crimes. Indeed, to a large extent, the “Me Too” Movement is an attempt to rectify existing misconceptions and stereotypes which have prevailed in our society regarding this type of conduct. To create a social awareness of the unacceptability of this crime, and the need to treat it with the same seriousness as we do any other. The Movement is largely directed at ensuring the “collective conscience” is consistent with our legal understanding of sexual assault, and ultimately that individuals understand the importance of the rule of law, and its protections for all. Ironically, the Movement that the accused impugns is directed at undoing public misconceptions and stereotypes that are directly at odds with the rule of law.
[20] Regardless of one’s opinions on the “Me Too” Movement, our system has trusted that juries will comply with their duties in the face of the prevailing public opinion. To question the ability of jurors in this regard is to question the viability of the jury system itself. Indeed, the system has not allowed for challenges to be mounted by the Crown for stereotypes that worked against complainants in the past. We have traditionally trusted the trial process to ensure that such attitudes will not prevent jurors from acting impartially. In Find at paras. 102-104, the Court commented in a similar vein in the context of offences against children as follows:
Child complainants may similarly be subject to stereotypical assumptions, such as the belief that stories of abuse are probably fabricated if not reported immediately, or that the testimony of children is inherently unreliable.
These myths and stereotypes about child and adult complainants are particularly invidious because they comprise part of the fabric of social “common sense” in which we are daily immersed. Their pervasiveness, and the subtlety of their operation, create the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors.
Yet the prevalence of such attitudes has never been held to justify challenges for cause as of right by Crown prosecutors. Instead, we have traditionally trusted the trial process to ensure that such attitudes will not prevent jurors from acting impartially. We have relied on the rules of evidence, statutory protections, and guidance from the judge and counsel to clarify potential misconceptions and promote a reasoned verdict based solely on the merits of the case.
[21] In my view, an increased awareness of such issues has no apparent connection to a risk of partiality against the accused. On the contrary, it merely reinforces the need for jurors to treat the offences and their duties in trying the case as serious ones. I see no basis to have concerns that the jury will treat the presumption of innocence with any less vigour. These two principles are not mutually exclusive. Rather, they are both directed at ensuring that juries fulfil their mandate. I adopt the comments of the Supreme Court in Find at para. 107:
Again, absent evidence, it is highly speculative to suggest that the emotions surrounding sexual crimes will lead to prejudicial and unfair juror behaviour. As discussed, the safeguards of the trial process and the instructions of the trial judge are designed to replace emotional reactions with rational, dispassionate assessment. Our long experience in the context of the trial of other serious offences suggests that our faith in this cleansing process is not misplaced. The presumption of innocence, the oath or affirmation, the diffusive effects of collective deliberation, the requirement of jury unanimity, specific directions from the trial judge and counsel, a regime of evidentiary and statutory protections, the adversarial nature of the proceedings and their general solemnity, and numerous other precautions both subtle and manifest – all collaborate to keep the jury on the path to an impartial verdict despite offence-based prejudice. The appellant has not established that the offences with which he is charged give rise to a strain of bias that is uniquely capable of eluding the cleansing effect of these trial safeguards.
[22] I dismiss the application.
Justice C.F. de Sa
Released: August 22, 2018
Footnote: