COURT FILE NO.: CR-17-10000701-000 and CR-17-10000826-0000
DATE: 20191001
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
GAVIN MacMILLAN
– and –
ENZO DE JESUS CARRASCO
Rick Nathanson and Pamela Santora, for the Crown
Sean Robichaud and Chantelle LaFitte, for Gavin MacMillan
Uma Kancharla, for Enzo de Jesus Carrasco
HEARD: September 25, 2019
By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.
M. Dambrot J.:
[1] This ruling concerns an application by the accused MacMillan to challenge prospective jurors for cause in relation to their knowledge of the #IBelieveHer social media hashtag.
BACKGROUND
[2] The applicant is charged in an indictment with three offences: gang sexually assaulting the complainant (s. 272(1)(d) of the Criminal Code); administering a stupefying or overpowering drug to the complainant to enable the commission of the sexual assault (s. 246(b) of the Code); and forcibly confining the complainant (s. 279(2) of the Code). He and his co-accused, Mr. De Jesus Carrasco, whom I will refer to, in accordance with his preference, as Mr. De Jesus, are being tried by me with a jury.
[3] The offences alleged against Mr. MacMillan took place in a bar owned by Mr. MacMillan and managed by Mr. De Jesus. There has been a significant amount of pre-trial publicity in connection with this matter, including both unfavourable news reports about the case and lobbying efforts to bring about a boycott of the applicant’s business.
[4] Some of the lobbying efforts have been accompanied by the hashtag #IBelieveHer. On December 21, 2016, Now, a Toronto magazine, published an article that discussed a planned boycott of the applicant’s bar. The article included the statement that “[a]nti-sex assault advocates and local members of the food and drink industry have been vocal about the charges under the hashtag #IBelieveHer.” In addition, in an article published by iheartradio.ca on December 20, 2016, a co-founder of the Sexual Assault Action Coalition was quoted as saying:
Why doesn’t this establishment already have anti-harassment and anti-violence policies and procedures? Why aren’t their staff already trained? Why aren’t the owners already trained and uphold (sic) human dignity and human value? Although yes, potentially, depending on the court outcome, these men might be let out of the charges, but we believe her. We stand in solidarity with her. I think the bigger picture is that why aren’t these procedures and protocols already in place? Why do we have to start a petition to get them to be transparent and safe to the general public?
THE APPLICATION
[5] The applicant has applied to challenge for cause on the basis of partiality. In his application, which includes his written argument, he asked to be permitted to ask two types of questions of prospective jurors. First, he wishes to ask them, separately, if they had seen or heard anything about this case or about Mr. MacMillan which they cannot ignore and which will effect their ability to try this case impartially: (1) in newspapers and magazines; (2) on radio; (3) on television; and (4) on computer or on electronic means of communication. He also proposes asking two additional questions on this first issue, namely: (5) as a result of any pre-trial publicity have you formed any opinion about Mr. MacMillan’s guilt or innocence; and (6) if you were chosen as a juror would your opinion prevent you from giving a fair and impartial verdict based only on the evidence you see in the court and the judge’s instructions?
[6] Second, the applicant asked to be permitted to ask the following two questions that concern the “Me Too” movement and the #IBelieveHer social media hashtag: (7) Do you know about, or have knowledge of, the “Me Too” movement; and (8) “Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by your beliefs about the #metoo movement, the #ibelieveher or similar hashtags and movements in the public and mainstream media?”
[7] The Crown concedes that in this case, the applicant should be permitted to ask questions arising from the pre-trial publicity in this case, albeit in much smaller compass. The Crown resists the Me Too questions.
THE ARGUMENT
[8] In the applicant’s written argument, with respect to the questions related to the “Me Too” movement, the applicant argued that he has genuine and legitimate concerns that some prospective jurors may pre-judge his guilt solely because of the media’s portrayal of sexual assault complainants since the formation of movements involving the hashtag #IBelieveHer.
[9] More specifically, the applicant argued that in recent years, the hashtags such as #MeToo and #BelieveWomen have become prevalent. Many people have been convicted by the court of public opinion before trial, when in the eyes of the law they are presumed innocent. As a result, the applicant is faced with the very real possibility that when being judged by his peers, some of them, by virtue of the fact that they have biases towards believing the complainant, may not be able to render an impartial decision.
[10] In oral argument, the applicant conceded that this argument could not succeed in light of the caselaw, but instead sought to ask a more limited question relating to the #IBelieveHer hashtag. I intend, nonetheless, to consider the written argument, because it underlies and informs the ultimate, more limited argument.
ANALYSIS
Pre-trial Publicity
[11] With respect to the pre-trial publicity questions, I agree with the Crown that the proposed questions are repetitive and prolix. I see no reason to ask separate but virtually identical questions about different forms of media. I see no reason to ask jurors whether or not they can ignore what they have seen or heard in addition to whether or not what they have seen or heard will affect their impartiality. I see no reason to ask a separate question that amplifies that an impartial verdict is one based on the evidence adduced in court and the judge’s instructions, when that concept can readily be incorporated into two simple questions. The applicant does not resist these changes to his proposal.
[12] As a result, I will permit the following questions, together with a preamble to the proposed question that I have expanded to better situate the subject matter:
Mr. MacMillan and Mr. De Jesus are charged with sexually assaulting a young woman at the College Street Bar in Toronto in December 2016 and two related offences. There has been some media coverage of this case.
Question 1:
Have you read, seen or heard anything about this case in the media, whether in a newspaper, a magazine, on television or the radio, or on the internet? You only need to answer yes or no to this question.
Question 2 (to be asked only if the answer to Question 1 is “yes”):
Would your ability to judge the evidence in the case fairly and impartially, based only on the evidence received in the courtroom and His Honour’s instructions to you, be affected by what you have read, seen or heard?
Me Too
[13] A consideration of the propriety of the originally proposed questions on the Me Too movement requires a return to principle to ascertain the framework for making this determination.
[14] Section 11(f) of the Canadian Charter of Rights and Freedoms enshrines the right of any person charged with a serious offence, that is, an offence where the maximum punishment is imprisonment for five years or a more severe punishment, to the benefit of trial by jury. This right would be a hollow one if it did not also embrace the right to an impartial jury (R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509). That right is buttressed by the right guaranteed by s. 11(d) of the Charter to be presumed innocent until proven guilty by an independent and impartial tribunal.
[15] Both the pre-trial and the in-court aspects of the jury selection process embody procedures designed to ensure jury impartiality (R. v. Find, 2001 SCC 32 at paras. 18-21). The in-court aspects of the jury selection process that enhance jury impartiality include judicial pre-screening of the jury array as authorized by s. 632 of the Code, the power to stand jurors by when jurors are called during the jury selection process authorized by s. 633 of the Code, and the challenge for cause process authorized by 638-640 of the Code. Section 638(1)(b), as amended effective September 19, 2019, permits a party to challenge for cause on the grounds that “a juror is not impartial.” A juror is partial if the juror has a predisposed state of mind inclining the juror prejudicially and unfairly towards a certain party or conclusion (Find, at para. 31).
[16] In order to make a challenge for cause, a party must show a realistic potential that the jury pool may contain people who are not impartial, in the sense that even under proper instructions by the trial judge, they may not be able to set aside the prejudice and decide fairly between the Crown and the accused (Find, para. 31). I see nothing in the recent amendments to the jury selection provisions in the Code, and particularly in the elimination of peremptory challenges, that supports the argument that the caselaw should be jettisoned and an expanded approach to the right to challenge for cause be adopted.
[17] It remains the case that it is not the purpose of challenges for cause to find out what kind of juror the person called is likely to be, including the juror’s personality, beliefs, prejudices, likes or dislikes (Find, para. 44). Jurors are presumed to be impartial. Except for race-based challenges, challenges for cause are not for the asking. A party seeking to make a challenge for cause must displace the presumption of juror impartiality, and may do so by calling evidence, by asking the judge to take judicial notice of facts, or both, and then asking the judge to draw common sense inferences (Find, para. 46).
[18] Establishing a realistic potential for juror partiality generally requires satisfying the trial judge of two matters: (1) that a widespread bias exists in the community (the attitudinal component of partiality); and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision (the behavioural component of partiality). While distinct, the two components are not watertight. The overarching consideration, in all cases, is whether there exists a realistic potential for partial juror behaviour – does a realistic possibility exist that some jurors may decide the case on the basis of preconceived attitudes or beliefs, rather than the evidence placed before them (R. v. Betker (1997), 1997 CanLII 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.), at pp. 435-36; and Find, paras. 32-33).
[19] With respect to the attitudinal component of the test, bias in the context of challenge for cause does not refer to every emotional or stereotypical attitude that could be imagined. It refers to an attitude that could lead jurors in the case at hand to discharge their function in a prejudicial and unfair manner. It can flow from attitudes such as personal interest, prior exposure to the case and racial prejudice. It cannot flow simply from the nature of the particular offence alleged (Find, paras. 35-38 and 65-66).
[20] The requirement that the bias must be widespread requires the applicant to establish that the bias is as sufficiently pervasive in the community to raise the possibility that it may be harboured by one or more members of a representative jury pool. If only a few members of the community hold the alleged bias, the chances of it tainting the process are negligible (Find, para. 39).
[21] With respect to the behavioural component of the test, it is important to note that the law accepts that jurors may enter the trial with biases, but presumes that jurors’ views and biases will be cleansed by the very strong antidotes to emotion, preconception and prejudice that are enshrined in the trial process. These were described in Find, at para. 41, as follows:
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 be 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 trial judge's instructions. Finally, they are told that they must not convict unless they are satisfied of the accused's guilt beyond a reasonable doubt and that they must be unanimous.
[22] As a consequence, the mere existence of bias does not justify challenges for cause in the absence of a link with partial jury behaviour. In the end, where it appears that a realistic potential for partiality exists, the right to challenge must flow. If in doubt, the judge should err on the side of permitting challenges (Find, para. 45).
[23] I turn to this case. I begin by saying that I am unable to see a meaningful distinction between this case and Find. It is useful to remember what Find was about.
[24] Find was charged with sexually assaulting children. Before the jury was empanelled, he applied to challenge the prospective jurors for cause. He argued that the nature of the charges against him gave rise to a realistic possibility that some prospective jurors might harbour such prejudice that they would be unable to act impartially and try the case solely on the evidence before them. The trial judge rejected this request, as did the majority of the Court of Appeal for Ontario. Moldaver J.A., as he then was, dissented.
[25] On appeal to the Supreme Court of Canada, Find argued that the nature and the circumstances of the offence with which he was charged gave rise to a bias that could unfairly incline jurors against him or toward his conviction, and that this bias was widespread in the community. However, he called no evidence, expert or otherwise, on the incidence or likely effect of prejudice stemming from the nature of the offences with which he is charged. Instead, he asked the Court to take judicial notice of a widespread bias arising from allegations of the sexual assault of children.
[26] In support of this position, the appellant relied on: (a) the incidence of victimization and its effect on members of the jury pool; (b) the strong views held by many about sexual assault and the treatment of this crime by the criminal justice system; (c) myths and stereotypes arising from widespread and deeply entrenched attitudes about sexual assault; (d) the incidence of intense emotional reactions to sexual assault, such as a strong aversion to the crime or undue empathy for its victims; (e) the experience of Ontario trial courts, where hundreds of potential jurors in such cases have been successfully challenged as partial; and (f) social science research indicating a “generic prejudice” against the accused in sexual assault cases. He argued that these factors permit the Court to take judicial notice of widespread bias arising from charges of sexual assault of children. The Supreme Court concluded that none of this established widespread bias that might lead jurors to discharge their task in a prejudicial and unfair manner (Find, para. 60).
[27] Significantly, for this case, in Find, the appellant argued that the politicized and gender-based nature of sexual offences gives rise to firmly held beliefs, opinions and attitudes that establish widespread bias in cases of sexual assault. This argument found favour with Moldaver J.A. In the course of his reasons, quoting from the work of Professor Paciocco, Moldaver J.A. emphasized that strong political convictions and impartiality are not necessarily incongruous, but that for some “feminists”, “commitment gives way to zealotry and dogma”. They hold the conviction that the justice system and its rules are incapable of protecting women and children. Moldaver J.A. expressed the view that this may lead some potential jurors to disregard trial directions and rules safeguarding the presumption of innocence, and asserted that little regard for judicial direction can be expected from “those who see the prosecution of sexual offenders as a battlefront in a gender based war” (Find, para. 61-62).
[28] The appellant supported this reasoning at the Supreme Court, adding:
… the polarized, politically charged nature of sexual offences results in two prevalent social attitudes: first, that the criminal justice system is incapable of dealing with an “epidemic” of abuse because of its male bias or the excessive protections it affords the accused; and second, that conviction rates in sexual offence cases are unacceptably low. These beliefs … may jeopardize the accused’s right to a fair trial. For example, jurors harbouring excessive political zeal may ignore trial directions and legal rules perceived as obstructing the “truth” of what occurred, or may simply “cast their lot” with the victim. All this … amounts to widespread bias in the community incompatible with juror impartiality (See Find, para. 63).
[29] The Supreme Court rejected this argument, stating, at paras. 65-66:
[65] The appellant's submission reduces to this: while strong views on the law do not ordinarily indicate bias, an exception arises in the case of sexual assaults on children. The difficulty, however, is that there is nothing in the material that supports this contention, nor is it self-evident. There is no indication that jurors are more willing to cross the line from opinion to prejudice in relation to sexual assault than for any other serious crime. It is therefore far from clear that strongly held views about sexual assault translate into bias, in the required sense of a tendency to act in an unfair and prejudicial manner.
[66] Moreover, assuming that the strong views people may hold about sexual assault raise the possibility of bias, how widespread such views are in Canadian society remains a matter of conjecture. The material before the Court offers no measure of the prevalence in Canadian society of the specific attitudes identified by the appellant as corrosive of juror impartiality. Some people may indeed believe that the justice system is faltering in the face of an epidemic of abuse and that perpetrators of this crime too often escape conviction; yet, it is far from clear that these beliefs are prevalent in our society, let alone that they translate into bias on a widespread scale.
[30] I note that here the evidentiary foundation for the allegation of widespread bias in this case is skimpier. Indeed, there is virtually no evidence to support the applicant’s position. The applicant’s argument comes down to this. Since Find, the Me Too movement has come into being, and the hashtags #MeToo and #BelieveWomen have become prevalent. We now “know” that many people have been convicted by the court of public opinion before trial, when in the eyes of the law they are presumed innocent. This establishes the prerequisites to challenge for cause: that a widespread bias exists in the community and that some jurors may be incapable of setting aside this bias, despite trial safeguards, and render an impartial decision. The applicant’s argument can only be seen as a call for judicial notice. As a result, it is necessary to consider the limits of judicial notice.
[31] In Find, the Court explained the limits of judicial notice in this context, at para. 48:
In this case, the appellant relies heavily on proof by judicial notice. Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055.
[32] I consider that this remains the correct approach to the issues here, even in light of the decision in R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458. While the requirements of judicial notice may be relaxed somewhat in the case of social facts which may be difficult to prove, this does not permit the Court to set aside the need to examine the trustworthiness of the “facts” sought to be judicially noticed.
[33] In this case, I do not doubt that I can take notice of the existence and growth of the so-called Me Too movement, that, in general terms, it is a movement against sexual assault and sexual harassment, that it has spread as a hashtag or social movement on social media, that it attempts to help reveal the widespread prevalence of sexual assault and sexual harassment and to show those who have experienced sexual assault and sexual harassment that they are not alone. It emphasizes that women have the right to say no to sexual contact and to report unwanted behaviour. I also have no difficulty in taking notice that #IBelieveHer and similar hashtags have gained greater popularity recently, and that those who use them do so in an effort to show support for survivors of sexual assault, to call out the problems in the justice system and to encourage people to speak up about their experiences. Me Too and #IBelieveHer are international phenomena, and both have a presence in Canada.
[34] In my view, the foregoing at least approaches, and perhaps even exceeds the limits of judicial notice. Much of what the applicant relies on goes beyond what is so notorious or generally accepted as not to be the subject of debate among reasonable persons, or capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. I do of course know that there are people who urge believing victims. The extent to which there are people who believe that victims should always at least presumptively be believed is unknown to me, and certainly not beyond debate. I have no basis to conclude that such a belief is widespread. The extent to which those who hold this view believe that it applies in a criminal trial and defeats the presumption of innocence is equally unknown to me, and equally not beyond debate. I have no basis to conclude that such a belief is widespread. It is therefore very far from clear that strongly held views about sexual assault translate into bias, in the required sense of a tendency to act in an unfair and prejudicial manner.
[35] In the end, there is simply an insufficient basis in this case for me to take judicial notice of a realistic possibility of juror partiality. As a consequence, the applicant has failed to satisfy me that the attitudinal component of the test has been met. Far less has the applicant established the behavioural component of the test. Even if I were to assume that there is widespread bias in favour of complainants in sexual assault prosecutions, there is no basis for me to take judicial notice that some jurors would be incapable of setting aside this bias, despite trial safeguards, and render an impartial decision. Such a conclusion is clearly not so notorious or generally accepted as not to be the subject of debate and is not capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. Evidence is necessary. None has been offered.
[36] Accordingly, had the applicant not modified his position, I would not have permitted a challenge for cause on this basis.
[37] I am fortified in my conclusion by the decisions of two judges of this Court to the same effect in R. v. T.J., 2018 ONSC 5001 and R. v. Borne, 2018 ONSC 3733, and the decisions of three judges of the Alberta Court of Queen’s Bench to the same effect in R v. Fuhr, 2018 ABQB 230, R v. Shirvastava, 2018 ABQB 245, and R v. Way, 2019 ABQB 366.
[38] This brings me to the applicant’s modified position.
#IBelieveHer
[39] The applicant now asks that he be permitted to interpolate a third question of prospective jurors between the two I have permitted. If a juror says that they have read, seen or heard anything about this case in the media, whether in a newspaper, a magazine, on television or the radio, or on the internet, he wishes to then ask:
Are you familiar with what the social media hashtag “#IBelieveHer” means, and if so, have you heard it used in any social media as it relates to this case?
[40] I confess that as a matter of logic, I see no point to the question. The question would only be asked if a prospective juror has been exposed to pre-trial publicity about this case. Such jurors will then be asked if their ability to judge the evidence in the case fairly and impartially, based only on the evidence received in the courtroom and my instructions, would be affected by what they have read, seen or heard. I fail to see what is added by interposing a question asking jurors if they know what #IBelieveHer means and, if so, whether they have seen it used in relation to this case. Regardless of whether or not they know what the hashtag means and have seen it used in connection with this case, they will be asked whether whatever they have read, seen or heard will affect their ability to judge the case fairly and impartially.
[41] When I asked counsel for the applicant what the question would add, she first noted that the evidentiary record in this case links the #IBelieveHer hashtag to the accused. It follows, she said, that upon being asked question 2, a juror who remembered that he or she had heard about this case, but forgotten the association with the hashtag, would then have that association brought to mind, and presumably then remember that as a result they would be unable to decide the case fairly. I find it hard to imagine that there could be such a person. I am unconvinced by this argument.
[42] On the other hand, being permitted to ask question 2 might effectively amount to being permitted through the back door to ask the abandoned Me Too question. Question 2, followed by question 3, connects knowledge of the #IBelieveHer hashtag to the ability to be fair and impartial, as the withdrawn questions 7 and 8 did. Question 2 is impermissible on the evidentiary record in this case for the same reasons. The occasional reference in the pre-trial publicity in this case to the #IBelieveHer hashtag does not change the calculus.
DISPOSITION
[43] The proposed questions concerning pre-trial publicity, as modified, will be permitted. The proposed question concerning #IBelieveHer will not be permitted.
[44] I simply note, for completeness, that I have permitted the accused De Jesus to challenge for cause on the basis of race.
M. DAMBROT J.
RELEASED: October 1, 2019
COURT FILE NO.: CR-17-10000701-000 and CR-17-10000826-0000
DATE: 20191001
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
GAVIN MacMILLAN
– and –
ENZO DE JESUS CARRASCO
REASONS FOR DECISION
DAMBROT J.
RELEASED: October 1, 2019