Court File and Parties

Court File No.: CR-19-4707 Date: 2021-07-13 Ontario Superior Court of Justice

Between:

Her Majesty the Queen

– and –

Jitesh Bhogal Accused

Counsel:

Kimberley M. Bertholet and Ilana L. Mizel, for the Crown

Peter Thorning and Maureen Salama, for the Applicant

Heard: June 30 and July 2, 2021

Ruling on jury selection procedures

Pomerance J.:

[1] Jitesh Bhogal is charged with first degree murder. His trial is scheduled to commence on October 11, 2021. I have heard submissions from Crown and defence as to how the jury selection process should unfold in the wake of R. v. Chouhan, 2021 SCC 26 [Chouhan]. This is my ruling on those issues.

THE BACKDROP: CHANGES TO JURY SELECTION

[2] Recent amendments to the Criminal Code, R.S.C. 1985, c. C-46, have changed jury selection procedures. Among other things, Parliament did away with peremptory challenges by defence and Crown. A controversial change, the Supreme Court of Canada has affirmed that it does not violate constitutional principles. In R. v. Chouhan, the majority ruled that it was open to Parliament to abolish peremptory challenges, and that the change is procedural, applying retrospectively. The peremptory challenge is now, for all intents and purposes, an historical artifact.

[3] That is not the end of the jury selection story. There were other statutory amendments. A challenge for cause is now to be decided by the trial judge, rather than lay triers, as in the past. The power to stand aside jurors has been expanded to allow for stand aside “where necessary to maintain, public confidence in the administration of justice.”

[4] Yet other changes flow from judicial pronouncements in Chouhan. Some justices ruled that, while it was open to Parliament to do away with peremptory challenges, other procedures must now fill the gap. Jury instructions, pre-screening of the jury panel, the challenge for cause, and the stand aside power are tools that can be used to address juror partiality. At the same time, Justices Moldaver and Brown imposed some limitations on these tools. For example, they ruled that the stand aside power is not to be used for purposes of securing a representative jury. As it was put in para. 47:

Finally, before proceeding to the s. 11(f) issue, and given the parties’ and interveners’ extensive submissions on these matters, we wish to highlight the opportunities that the parties in criminal trials have to raise and address concerns about juror partiality and bias. First, in appropriate cases, trial judges should consider crafting jury charges and mid‑trial instructions that caution against the risk that bias, racial or otherwise, will taint the integrity of the jury’s deliberations. Second, the challenge for cause provisions under s. 638 of the Criminal Code continue to provide a robust mechanism for accused persons to raise concerns about a potential juror’s partiality. Third, the amended stand‑aside power under s. 633 of the Criminal Code further accounts for any gap that may have been left by the abolition of peremptory challenges. We discuss each of these in turn, but emphasize that, contrary to the views expressed by our colleague Martin J., our reasons on these matters do not constitute unnecessary obiter dicta. In light of our colleague Abella J.’s conclusion — echoing the submissions of many interveners — that the constitutionality of the abolition of peremptory challenges depends upon the trial judge’s “vigorou[s] exercise” of challenges for cause and the stand‑aside power, we find it necessary to explain the limits of these powers. We must also respectfully emphasize, however, that, contrary to the views of Côté J. (para. 231), Mr. Chouhan’s s. 11(d) rights were not prejudiced because his trial proceeded without the guidance we provide below.

[5] The Chouhan court was fractured on many issues. The judgment consists of five separate sets of reasons. It would appear that seven of nine justices endorsed the use of anti-bias instructions; seven of nine appeared to endorse a modestly liberalized approach to the challenge for cause, albeit one that respects juror privacy; four of nine expressly held that the stand aside power could be used to address reasonable apprehensions of bias; four of nine proposed limits on the challenge for cause; and five of nine proposed limits on the stand aside power, holding that it could not be used to secure a representative petit jury.

[6] On the basis of Chouhan, I find that the following procedures are available to ensure juror impartiality in this case:

• The jury panel will receive instructions on general and specific biases that might affect decision making in this case. The panel will also be instructed on the concept of unconscious bias. These instructions will be repeated and expanded in the opening to the jury, once selected.
• There will be liberal pre-screening of prospective jurors under s. 632(c), including screening of those who are unable to preside due to the nature of the offence: see Chouhan.
• The stand-aside power may be used to address potential bias or other grounds of partiality. It will not, however, be used as a tool by which to secure a representative jury.
• Questions on the challenge for cause will address the potential for bias as it relates to:
  • the accused’s status as an east Indian man, charged with a violent crime against a white women;
  • drug users; and
  • the Indigenous status of Crown witnesses.
• The challenge will not canvass free-standing bias relating to violent crime.
• Jurors will be excluded during questioning.

[7] I will deal with a number of these procedures in the reasons that follow.

ANTI-BIAS INSTRUCTIONS

[8] While the court in Chouhan was divided on many issues, a clear majority directed that jurors be instructed about the need to conquer the effect of bias, prejudice, preconceptions, and/or stereotypes. Anti-bias instructions are a tool by which to achieve juror impartiality. As was held by Moldaver and Brown JJ. at para. 49: “impartiality is inherently attuned to the concept of bias.”

[9] Anti-bias instructions are to be given “wherever specific biases, prejudices, and stereotypes may reasonably be expected to arise in the particular case” (Chouhan, para. 49 quoting from Barton, at para. 203). One of the groundbreaking features of Chouhan is the judicial recognition of implicit or unconscious bias as a factor in human decision making. Unconscious bias consists of beliefs and perceptions that operate beneath our level of awareness. Research has determined that we are all, as human beings, biased in some respects. We bring our own personal perspective to the task of decision making. This is the wellspring of what we call “common sense”. However, it is also an opaque repository of unproven fact, intuition, conjecture, inherited wisdom, and other mental baggage. Implicit biases tend to be deeply embedded in the psyche, but can be brought to the surface through active introspection. Unconscious bias is not a character flaw; it is a function of being human. What is important is to recognize its existence and minimize its effects.

[10] Therefore, prospective jurors must be told about both conscious and unconscious bias. Chouhan directs that anti-bias instructions be given early in the process, as early as the outset of jury selection. I propose to provide such instructions to the jury panel before questioning on the challenge for cause begins. I will repeat these instructions, with appropriate modifications, when instructing the jury at the outset of trial.

GENERAL ANTI-BIAS INSTRUCTIONS

[11] The general anti-bias instruction will consist of the following:

Every juror must be impartial, which means that every juror must approach the trial with an open mind and without preconceived ideas.

We all have beliefs and assumptions that affect our perception of the world. These perceptions can create a bias for or against others based on their personal characteristics [such as gender, race, ethnicity, sexual orientation, or employment status]. We may be aware of some of these biases, but unaware of others.

No matter how unbiased we think we are, we look at others and filter what they say through the lens of our own personal background and experiences. Unconscious biases may be based on stereotypes or feelings that one has about a particular group, namely, traits that one associates with that group.[^1] All human beings experience unconscious biases, but these biases can be overcome through self-reflection and introspection.

If you are selected as a juror, you will be asked to identify and set aside any biases in order to judge the evidence presented at trial fairly without bias, prejudice, sympathy or partiality.

Jurors are judges of the facts and must approach the case with an open mind, one that is free from bias, prejudice, sympathy[^2] or partiality. Impartiality requires active work. It requires that you be aware of your own personal beliefs and experiences, and that you be equally open to the views of others. If you are selected as a juror, it will be your duty to identify and set aside any prejudices or stereotypes that might affect your decision in this case.

There are things that jurors can do to help identify and set aside unconscious bias. If you are chosen as a juror you will be instructed to:

1. Take the time you need to reflect carefully and thoughtfully about the evidence.
2. Think about why you are making the decision you are making and examine it for bias. Reconsider your first impressions of the people and the evidence in this case. If the people involved in this case were from different backgrounds, for example, richer or poorer, more or less educated, older or younger, or of different gender, gender identity, race, religion, or sexual orientation, would you still view them, and the evidence, the same way?
3. Listen to one another. Jurors come from different backgrounds and will view this case in light of their own insights, assumptions, and biases. Listening to different perspectives may help you to better identify the possible effects of hidden biases. Help one another to identify and resist the effect of unconscious bias.
4. Resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, or stereotypes.

SPECIFIC ANTI-BIAS INSTRUCTION

[12] Chouhan also directs that there be instruction on specific biases and stereotypes that might arise in a given case. As it was put by Moldaver and Brown JJ., at para. 56: “When tailoring bias instructions to a specific trial, trial judges and counsel should consider the relevance of context and the harmful nature of stereotypical assumptions or myths.” While there is no “magic formula” (para. 58), trial judges should identify the characteristics of parties or witnesses “that give rise to the risk of unconscious bias, dispel common stereotypes, and direct the jurors to decide the case with an open mind based on the evidence before them” (para. 58). The court noted, as an example, the anti-bias instructions posited by the court in R. v. Barton, 2019 SCC 33, 54 C.R. (7th) 231, a case involving the murder of an Indigenous sex worker.

[13] In this case, various characteristics call for specific anti-bias instructions. They include the following:

• Bias against men of East Indian heritage;
• The need to dispel harmful stereotypes including:
  • The stereotype that men of colour are more prone to violence than white men;
  • The stereotype that men of colour are highly sexualized and therefore more likely to commit sexual offences;
  • The stereotype that men of colour are prone to commit crimes against white women;
• Bias against drug users and the stereotype that persons who consume drugs are likely to commit violent crimes.

[14] Crown counsel have asked for a specific anti-bias instruction as it relates to two Crown witnesses who are Indigenous. This instruction will address general biases against the Indigenous population. It will aim to dispel offensive stereotypes such as the notion that Indigenous individuals are more prone to criminality, or less worthy of belief.

[15] These instructions present something of a conundrum. On the one hand, we are instructing jurors not to apply stereotypes, and to rid their minds of such biases. On the other hand, we are articulating the harmful stereotypes – giving voice to the very perceptions that we want jurors not to think about. It is conceivable that some individuals might find the recitation of stereotypes to be offensive in and of itself. For example, a racialized juror juror could find it unsettling or insulting to hear the judge recite negative traits associated with his or her group.

[16] One way of addressing this is to be very clear about why the stereotypes are being identified and to stress that the intention is to dispel them, rather than offer them any legitimacy.

[17] For example:

I am going to identify some of the harmful and erroneous stereotypes that are sometimes applied to persons with certain characteristics. You may find these statements to be offensive. Unfortunately, these views are held by some people. They have no place in a courtroom, where the decision must be based solely on the evidence and the instructions of the trial judge. When you hear the evidence, and when you are deliberating on the case, you must ensure that you are not being influenced, on a conscious or unconscious level, by any of these generalizations. Knowing what they are can help you guard against them.

Stereotypes have no place in our legal system, where all persons are entitled to be judged on their individual character, not on assumptions about them based on their race, ethnic background or other personal characteristics.

[18] The hope is that these instructions will impress upon the prospective and chosen jurors the importance of impartiality, and the fact that it is not so much a state of being as it is an active event. These instructions will also set the stage for the challenge for cause. I will turn to that now.

CHALLENGE FOR CAUSE

Chouhan

[19] In Chouhan, Moldaver and Brown JJ. offered the following comments regarding challenge for cause at paras. 61, 62, 64 and 66:

…We therefore acknowledge that a wide range of characteristics — not just race — can create a risk of prejudice and discrimination, and are the proper subject of questioning on a challenge for cause.

While widespread bias cannot be presumed in all cases, the parties do not face an onerous burden for raising a challenge for cause. The accused person or the Crown must merely demonstrate a reasonable possibility that bias or prejudicial attitudes exist in the community, with respect to relevant characteristics of the accused or victim, and could taint the impartiality of the jurors. In most cases, expert evidence will not be necessary: challenges for cause must be available wherever the experience of the trial judge, in consultation with counsel, dictates that, in the case before them, a realistic potential for partiality arises. The trial judge necessarily enjoys significant discretion to determine how and under what circumstances the presumption of impartiality will be displaced, and how far the parties may go in the questions that are asked on a challenge for cause (Spence, at para. 24; R. v. Williams, [1998] 1 S.C.R. 1128, at para. 55; Find, at para. 45).

Appropriate questions on a challenge for cause will ask prospective jurors for their opinion as it relates to salient aspects of the case. For instance, counsel may point to characteristics of the accused, complainant or victim, such as race, addiction, religion, occupation, sexual orientation or gender expression, and ask prospective jurors whether, in light of such characteristics, they would have difficulty judging the case solely on the evidence and the trial judge’s instructions, because they hold an opinion about such characteristics that on careful reflection, they do not believe they could put aside. Before posing that question to jurors, trial judges ought to call each individual juror’s attention to the possibility of unconscious bias and impartiality. It should be stressed that the mischief is not in acknowledging a difficulty setting aside unconscious bias, but in failing to acknowledge such a difficulty where one exists.

The Parks question itself permits only limited incursions into juror privacy, and further developments in the challenge for cause process must continue to balance “the accused’s right to a fair trial by an impartial jury, while also protecting the privacy interests of prospective jurors” (Williams, at para. 53 (emphasis added); Spence, at para. 24; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 30). It is for this reason that the jurisprudence has long resisted the temptation to move the Canadian law regarding juror privacy closer to that of the U.S. system. In concluding that it is “unclear that the [U.S.] system produces better juries than the Canadian system”, this Court has pointed to the high degree of protection of and respect for juror privacy, and our concern to prevent “abuse by counsel seeking to secure a favourable jury, or to indoctrinate jurors to their views of the case” (Find, at para. 27; see also, R. v. G. (R.M.), [1996] 3 S.C.R. 362). Any future developments should account for these precedents.

[20] Martin J. also commented at paras. 119-121 on the need to consider challenges that go beyond the narrow confines of the Parks question, though she disagreed with placing any limits on the process at this point in time:

R. v. Parks (1993), 15 O.R. (3d) 324 (C.A.), does not describe the only questions available on a challenge for cause. Indeed, trial judges are afforded the latitude to depart from the Parks-style formula where appropriate to ensure juror impartiality. This Court has encouraged trial judges to “err on the side of caution and permit prejudices to be examined” through the challenge for cause process (Williams, at para. 22; see also Parks, at p. 335, and R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 45).

It is true that when questioning prospective jurors on their biases, the privacy interests of those persons must be respected (Kokopenace, at para. 74, per Moldaver J.; at para. 156, per Karakatsanis J.; and at para. 227, per Cromwell J. (dissenting but not on this point)). With good reason, this Court has explicitly declined to adopt the kind of highly intrusive questioning for challenges for cause that can be seen in the United States (Find, at para. 27). Yet privacy is just one interest to be weighed against others (V. MacDonnell, “The Right to a Representative Jury: Beyond Kokopenace” (2017), 64 Crim. L.Q. 334, at p. 346).

This Court has also warned against setting a threshold for accessing challenges for cause that “would catch only the grossest forms of racial prejudice” (Williams, at para. 39). Indeed, some scholars question whether the Parks formula captures anything beyond “the grossest forms of racial prejudice”, and whether it fosters the kind of introspection and self-consciousness it should (see K. Roach, Canadian Justice, Indigenous Justice: The Gerald Stanley and Colten Boushie Case (2019), at p. 92; D. M. Tanovich, “The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System” (2008), 40 S.C.L.R. (2d) 656, at p. 683). Ultimately, in deciding whether to allow challenges for cause and in settling on the form of permissible questioning, courts must be allowed to exercise their discretion in accordance with the wording and purpose of s. 638(1)(b), the accused’s right to a fair and impartial tribunal, and Charter values, including substantive equality (Williams, at para. 49).

[21] I draw the following principles from these passages:

1. The challenge for cause can be directed at any personal characteristics that might trigger bias, not just race.
2. The onus to establish the need for a challenge is not onerous.
3. Expert evidence is not necessarily required.
4. Challenge for cause must be available “wherever the experience of the trial judge, in consultation with counsel, dictates that, in the case before them, a realistic potential for partiality arises” (para. 62).
5. The trial judge enjoys a broad discretion to determine how the challenge for cause should proceed, and how far parties may go in asking questions.
6. The process adopted must balance “the accused’s right to a fair trial by an impartial jury, while also protecting the privacy interests of prospective jurors.”

CHALLENGE FOR CAUSE IN THIS CASE

Defence Questions

[22] Even before Chouhan, the accused was entitled to a race-based challenge for cause. The accused is a man of colour, and the victim was a white woman. The defence now wishes to supplement the traditional Parks question by canvassing bias against drug users and violent crime.

[23] The defence will also seek to ask questions based on pre-trial publicity, but has not yet filed that application.

[24] Initially, the defence proposed the following questions:

Preamble:

On June 10, 2018, [the victim] was killed in her home in Windsor. The accused, Jitesh Bhogal, is charged with first degree murder in connection with her death.

The Prosecution will allege that the death was committed by an act of violence after Mr. Bhogal consumed a quantity of a controlled substance.

[The victim] was a white woman. The accused is an East Indian man.

As the judge will tell you, in deciding whether or not the prosecution has proven the charge beyond a reasonable doubt against an accused, a juror must judge the evidence of the witnesses without bias, prejudice or partiality.

As a prospective juror, you bring with you experiences, beliefs, and opinions, some of which may be unconscious. The issue before us today is not whether these beliefs are correct or proper, but whether you will try to identify them and set them aside and judge the evidence presented at trial fairly without bias, prejudice, or partiality.

We will now ask you some questions about this issue. Think carefully before answering.

Questions:

Q1: Do you have any biases or prejudices regarding people charged with violent crimes?

Are you able to identify those biases and judge the evidence in this trial without bias, prejudice or partiality?

Q2: Do you have any biases or prejudices regarding people who consume controlled substances?

Are you able to identify those biases and judge the evidence in this trial without bias, prejudice or partiality?

Q3: Do you have any biases or prejudices regarding East Indian men?

Are you able to identify those biases and judge the evidence in this trial without bias, prejudice or partiality?

Q4: Do you have any biases or prejudices regarding visible minorities charged with violent crimes against a white person?

Are you able to identify those biases and judge the evidence in this trial without bias, prejudice or partiality?

[25] There was some refinement of these questions by counsel during the course of oral argument. Counsel agreed that prospective jurors should not be asked “are you able to identify those biases?” Worded in that way, some might think that they are being asked to articulate what their bias is. That is neither necessary nor desirable. It is the very sort of attitudinal probing that has traditionally been rejected by Canadian courts. While Chouhan directs that challenges for cause be robust, it also directs that attention be paid to juror privacy. Little is gained by having jurors speak their biases – beliefs that they may be embarrassed about – aloud. In any event, the question is not how the bias precisely manifests. If there is bias (the attitudinal question), the test is whether the prospective juror is able to identify and set aside that bias, deciding the case solely on the basis of the evidence and the instructions of the trial judge (the behavioural question).

[26] How, then, might the questions be framed? The overarching goal is to ensure that the challenge for cause is a robust mechanism for screening out partiality, but the questions do not have to do all of the heavy lifting. The challenge for cause is made more meaningful by the anti-bias instructions that will precede the questioning. These instructions will sensitize prospective jurors to the issues and explain, in some detail, what the questions are trying to get at. They will imbue the questions with a meaning that they may not have carried in the past. This is a holistic exercise. We are now telling prospective jurors about bias before asking them about bias. This is bound to make the challenge for cause a more effective tool.

[27] I do not see Chouhan to be directing a radical change in the language of the questions. Moldaver and Brown JJ. offered the following example of what the question might look like (para. 64):

For instance, counsel may point to characteristics of the accused, complainant or victim, such as race, addiction, religion, occupation, sexual orientation or gender expression, and ask prospective jurors whether, in light of such characteristics, they would have difficulty judging the case solely on the evidence and the trial judge’s instructions, because they hold an opinion about such characteristics that on careful reflection, they do not believe they could put aside. [Emphasis added.]

[28] Borrowing from this language, I propose the following formulation of the questions on the challenge for cause:

You will recall my earlier instructions about the need for jurors to identify and set aside biases, stereotypes, prejudices, and other assumptions when deciding this case. As a prospective juror, you bring with you experiences, beliefs, and opinions, some of which may be unconscious. The issue before us today is not whether these beliefs are correct or proper, but whether you can set them aside so that they do not affect your decision in this case. As a juror, you must decide the case without bias prejudice or partiality. You must decide the case based solely on the evidence and the instructions of the trial judge.

In this case, the accused, Jitesh Bhogal, is an East Indian man. The victim was a white woman. The crime charged is one that alleges both physical and sexual violence. You will hear evidence about drug use by some individuals, including the accused.

I will now ask you some questions. Listen carefully and take your time in answering. please answer yes or no.

If you do not understand the question, please let me know.

1. Ask yourself whether you have any beliefs or pre-conceived notions about men of East Indian descent. If you do, would you be able to set those beliefs aside and decide the case based solely on the evidence at trial and the instructions of the trial judge?
2. Ask yourself whether you have any beliefs or pre-conceived notions about whether men of colour are more likely to engage in crimes of physical or sexual violence? If you do, would you be able to set those beliefs aside and decide the case based solely on the evidence at trial and the instructions of the trial judge?
3. Ask yourself whether you have any beliefs or pre-conceived notions about men of colour charged with crimes against white women. If you do, would you be able to set those beliefs aside and decide the case based solely on the evidence at trial and the instructions of the trial judge?
4. Ask yourself whether you have any beliefs or pre-conceived notions about people who use drugs. If you do, would you be able to set those beliefs aside and decide the case based solely on the evidence at trial and the instructions of the trial judge?

[29] The questions set out above refer to conscious beliefs and pre-conceived notions. A different question will be asked about unconscious bias, for reasons to follow. Similarly, I am not going to ask a free-standing question about violent crime, for reasons that I will soon outline.

CONSCIOUS V. UNCONSCIOUS BIAS

[30] The concept of unconscious bias is critically important for all decision makers, jurors and judges alike. As human beings, we are prone to applying stereotypes, assumptions and other “short-cuts” in order to deal with the barrage of stimuli that we confront in our daily lives. Whatever benefit these short cuts might offer outside the courtroom, they have no place in criminal or other trials, where decisions must be free from prejudicial, erroneous and/or extraneous considerations.

[31] Therefore, jurors must be educated on unconscious or implicit bias – the extent to which biases and stereotypes may operate on an unconscious level and even run counter to one’s consciously held beliefs. Unconscious bias is no less dangerous that conscious bias. If anything, it is all the more insidious for its hidden character.

[32] While unconscious bias must be addressed in the impartiality equation, it may call for different questions than does conscious bias. Where a bias is conscious, a prospective juror can meaningfully ask themselves whether they can set that bias aside. Where bias is unconscious, it is more difficult to get at the issue. How does someone determine whether they can identify and set aside something that is not yet in their conscious mind? That exercise is rather hypothetical and speculative. Moreover, the concept of unconscious bias may be new to many individuals on the jury panel. This may be the first time that some have thought about the existence of unconscious beliefs and biases. Those individuals may underestimate their ability to identify and set aside those beliefs. It may seem a daunting task for the uninitiated.

[33] The current understanding is that unconscious bias can be overcome through disciplined self-reflection and introspection. The idea is that, just as we all experience unconscious bias, we are all equipped to identify and set aside such bias if we apply ourselves to the task. Biases buried deep in the psyche are not going to magically surface during the challenge for cause. Confronting unconscious bias is a process; a developing state of awareness rather than a burning bush revelation. The hope is that jurors will identify and check their unconscious beliefs as evidence is heard, as the case is subjectively evaluated, as the case is discussed in the jury room, and as deliberations move toward verdict.

[34] Therefore, when it comes to unconscious bias, the question is not whether prospective jurors believe that they are able to set aside their bias. They may not be in a position to accurately answer that question. The better question is whether they are willing to work toward that goal. Is the prospective juror willing to accept that they have unconscious bias (the attitudinal component) and is the prospective juror committed to identifying and setting aside unconscious assumptions and stereotypes that might affect their decision making (the behavioural component)?

[35] The question might be framed as follows:

I have already instructed you about unconscious bias – perceptions, attitudes or feelings that you may not be aware of now, but that may arise during the trial. If chosen as a juror, do you promise to examine whether you are being influenced by unconscious bias, and take steps to set such bias aside, to the best of your ability?

OFFENCE-BASED CHALLENGE

[36] The defence initially sought to ask prospective jurors whether they have a bias about violent crime. It is said that this is critical as it relates to the types of stereotypes that might be invoked when a man of colour is charged with a crime against a white woman. The idea is to address the notion that racialized men are more likely than non-racialized men to act out in a violent fashion. I agree with the defence that this is one of the offensive stereotypes that must be addressed in the challenge for cause. Indeed, I would go further and amend the question to include reference to sexual as well as physical violence.

[37] There is already a question that asks about violence in the context of racial stereotypes. That question addresses the biases of concern in this case. I do not see the need for a separate stand-alone question that asks about violent crime. Given the decision of the Supreme Court of Canada in R. v. Find, 2001 SCC 32, and the language of Chouhan, I find that the stand-alone question is neither desirable nor appropriate.

[38] In R. v. Find, the Supreme Court of Canada ruled that prospective jurors should not be asked if they have views about sexual offences against children, the crime charged in that case. The court offered many sound reasons for rejecting that line of inquiry. Among them were the following:

• It is not uncommon for jurors to have strong feelings about crime: “Many crimes routinely tried by jurors are abhorrent. Brutal murders, ruthless frauds and violent attacks are standard fare for jurors. Abhorred as they are, these crimes seldom provoke suggestions of bias incompatible with a fair verdict” (para. 70);
• There is no indication that strong feelings about crime translate into bias. “Instead, we accept that jurors often abhor the crime alleged to have been committed – indeed there would be cause for alarm if representatives of a community did not deplore heinous criminal acts. It would be equally alarming if jurors did not feel empathy or compassion for persons shown to be victims of such acts. These facts alone do not establish bias. There is simply no indication that these attitudes, commendable in themselves, unfairly prejudice jurors against the accused or toward conviction. They are common to the trial of many serious offences and have never grounded a right to challenge for cause.” (para. 71);
• Unlike racial prejudice, strong feelings about a crime do not translate into bias against the accused. As Moldaver J.A. stated in Betker, supra, at p. 441, “[r]acial 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”. By contrast, the aversion, fear, abhorrence, and beliefs alleged to surround sexual assault offences may lack this cogent and irresistible connection to the accused. Unlike racial prejudice, they do not point a finger at a particular accused” (para. 94);
• Strong feelings about a crime are more susceptible to cleansing. “The biases alleged in this case, by contrast, may be more susceptible to cleansing by the rigours of the trial process. They are more likely to be overt and acknowledged than is racial prejudice, and hence more easily removed. Jurors are more likely to recognize and counteract them. The trial judge is more likely to address these concerns in the course of directions to the jury, as are counsel in their addresses. Offence-based bias has concerned the trial process throughout its long evolution, and many of the safeguards the law has developed may be seen as a response to it” (para.95).

[39] In Chouhan, the court recognized an expanded discretion in the trial judge to allow challenges for cause, based on the individual circumstances of the case. However, I do not read Chouhan as authorizing offence-based challenges for cause. To the contrary, the court focussed on prejudicial attitudes “with respect to relevant characteristics of the accused or victim” (para. 62). It spoke of challenges based on “characteristics of the accused, complainant or victim, such as race, addiction, religion, occupation, sexual orientation or gender expression” (para. 64). In other words, the Chouhan court contemplated that the challenge will be based on characteristics of individuals, and not characteristics of an offence.

[40] Finally, there are other processes by which to identify persons who cannot serve as jurors due to the nature of the crime. I have already addressed, above, the pre-screening process authorized by s. 632(c) of the Criminal Code. The instructions to the jury panel will identify the nature of the crime. Those who have had an experience with an offence of this nature, or are close to someone who has had such an experience, or otherwise believe that it would be a hardship to preside at a trial of this nature, are eligible to be excused on that basis.

[41] In Chouhan, certain justices ruled that the power to excuse jurors under s.632(c) of the Code can be used to screen reasonable apprehensions of bias, even after the challenge for cause has taken place. As Moldaver and Brown JJ. stated at paras. 35-36:

The Court of Appeal noted, too, that s. 632(c) permits trial judges to excuse jurors for reasons of “personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused”. While the power to excuse jurors is not a substitute for a challenge for cause (Sherratt, at pp. 533‑34), trial judges routinely excuse jurors at the outset of jury selection for a number of reasons. For instance, jurors who would find it “too difficult” to serve given the nature of the offences at issue in the trial are often excused (see R. v. B.(A.) (1997), 33 O.R. (3d) 321 (C.A.), at p. 443), as are jurors who are “obviously partial” because they know a party in the trial or a witness who will testify (R. v. Hubbert (1975), 11 O.R. (2d) 464 (C.A.), at pp. 292‑93; Barrow, at p. 709).

These procedures are important. They provide a mechanism for removing jurors whose impartiality is or may be in question, for any number of reasons, including that the jurors are unable to set aside a racial or other bias against the accused or complainant or they feel unable to sit through a trial involving the crimes at issue. In so doing, the procedures collectively ensure that each accused receives a fair trial before an independent and impartial jury, as required by s. 11(d) of the Charter. The abolition of peremptory challenges does not infringe this right.

INDIGENOUS STATUS OF CROWN WITNESSES

[42] The Crown has asked that the jury panel be given a specific anti-bias instruction on Indigenous status, as two of the key Crown witnesses are Indigenous. I am quite prepared to offer that instruction and agree that it is important in the context of this case.

[43] The Crown has also now requested a challenge for cause based on the witness’ Indigenous status. The Crown initially declined to request a challenge for cause, on the basis that this has not traditionally been done with respect to witnesses, as distinct from the accused or victim.

[44] It is true that challenges are not often based on the status of witnesses. However, I see no reason why a challenge should not be available on that basis. Bias can certainly taint credibility assessments. Moreover, prospective jurors will be asked questions about other forms of bias. Omitting anti-Indigenous bias from the questions could leave the impression that some biases are more or less important than others.

[45] Therefore, I direct that a question on the challenge be directed at the Indigenous status of Crown witnesses, in the same format as those set out above.

WHO WILL ASK THE QUESTIONS?

[46] In Chouhan, the court contemplated that the trial judge would ask prospective jurors the questions on a challenge for cause. As Moldaver and Brown JJ. stated at para. 67:

. . . Bill C‑75 directs that the trial judge, rather than a layperson, will be the arbiter of the challenge for cause (Criminal Code, s. 640(1)). As such, in our view, it would be appropriate for the trial judge — as an impartial person adjudicating impartiality — to put the challenge for cause questions to the prospective juror. Counsel should, of course, be consulted on the content of such questions before they are posed.

[47] Mr. Thorning, counsel for Mr. Bhogal, has asked that he put the questions to prospective jurors. He acknowledges that the court in Chouhan contemplated that questioning might be carried out by the trial judge. However, he argues that Chouhan does not foreclose the possibility that defence counsel could discharge that role.

[48] There is a certain symmetry in the notion of “an impartial person adjudicating impartiality”. When questions are posed by the trial judge, it is clear that the question of partiality is not a partisan issue. It is not something that is merely desired by the defence, or by the Crown. It is an inherent requirement of the trial process. It is something desired by everyone, whatever their role may be.

[49] I accept that the Supreme Court did not mandate that the trial judge ask the questions. However, in ruling that it is “appropriate” for the trial judge to ask the questions, it is open to inference that the court saw alternate procedures to be inappropriate or, at least, less appropriate. I appreciate that text of Supreme Court decisions should not be read like the text of statutes. Nonetheless, I do read the dicta on this issue as directing that the correct interlocutor is the trial judge, rather than counsel.

[50] Therefore, I will ask the questions on the challenge for cause.

ADVANCE WARNING OF THE QUESTIONS

[51] Counsel for Mr. Bhogal have asked that prospective jurors be given advance notice of the questions that will be asked on the challenge for cause. I agree that this is the correct approach.

[52] Prospective jurors should have the opportunity to engage in self-examination and reflection before answering the challenge for cause question. Some might think that there is a benefit in spontaneity – that persons will more likely answer truthfully if there is no time to concoct. This, for example, is the rationale behind the res gestae exception to the hearsay rule. However, the question here is not whether there is time to concoct. Were someone inclined to falsely portray themselves as partial to avoid jury service, they are probably best disqualified in an event. The question here is whether the prospective juror is in a position to answer questions honestly and accurately. In this regard, spontaneity may be the enemy of accuracy. The questions on the challenge call for a degree of self-awareness that is best achieved if there is time to think, reflect and search one’s conscience.

[53] In order to ensure that there is no contamination, prospective jurors will be instructed not to discuss the questions with one another while waiting to be called into the courtroom.

CONCLUSION

[54] Because I have modified the questions proposed by counsel, I am prepared to hear further submissions on the precise language that I have chosen, should counsel wish to offer such submissions to the court.

Original signed by Justice Renee M. Pomerance

Renee M. Pomerance Justice

Released: Delivered orally and in writing July 13, 2021

Court File No.: CR-19-4707 Date: 2021-07-13 Ontario Superior Court of Justice

Her Majesty the Queen – and – Jitesh Bhogal

Ruling on jury selection procedures Pomerance J.

Released: Delivered orally and in writing – July 13, 2021

[^1]: See R. v. Chouhan, 2021 SCC 26, at para. 55, citing A. Roberts, “(Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias” (2012), 44 Conn. L. Rev. 827, at p. 833. [^2]: R. v. Barton, 2019 SCC 33, at para. 195.