COURT FILE NO.: CR 20-152
DATE: 2021-08-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
– and –
SHAWN MARTIN
Accused
A. Grady for the Crown
J. McCulligh, for the Accused
HEARD: July 29 and August 3, 2021
A. J. Goodman J.:
JURY SELECTION PROCEDURES
[1] This case is the first criminal jury trial being held in the Central South Region in 2021 and, having the benefit of written reasons from the Supreme Court of Canada in R. v. Chouhan, 2021 SCC 26, (“Chouhan”), it is prudent to augment my oral rulings with written reasons outlining the rationale and procedures being utilized in this case for the selection of the petit jury with a challenge for cause.
[2] This ruling follows my previous decision in R. v. Josipovic, 2020 ONSC 6300, which dealt with jury selection and challenge for cause procedures in view of the Supreme Court of Canada’s October 7, 2020 ruling, albeit without reasons. The selection for the jury in the Josipovic case followed the Supreme Court’s declaration in Chouhan by a matter of mere days.
[3] In the case at bar, the accused is charged with six counts, to wit; did exercise control, direction, or influence over the movements of L.C. for the purpose of exploiting or facilitating the exploitation of her; did receive a financial or material benefit knowing that it was derived directly or indirectly from the commission of an offence under subsection 279.01(1); did knowingly advertise an offer to provide sexual services for consideration x2; did unlawfully commit an assault upon L.C., and uttering a threat to cause bodily harm, all contrary to their relevant provisions of the Criminal Code, R.S.C. 1985, c. C-46.
[4] Counsel agree there has been scarce practical direction on how the various sections in Part XX of the Criminal Code related to jury selection are to be implemented. Counsel have provided draft questions and their input for the challenge for cause and jury selection process.
[5] I have also had the benefit of reviewing Pomerance J.’s recent decision in the case of R. v. Bhogal, 2021 ONSC 4925. I agree with much of my colleague’s assessments, including her reference to the “fractured ruling” arising out of the Supreme Court’s decision in Chouhan. I also adopt much of the approach taken in that case as to the legislative and judicial interpretation of the revised jury selection legislation, albeit with three notable exceptions as to procedure, which I will address momentarily in these reasons.
The Application of the Jury Selection Provisions:
[6] In Bhogal, Pomerance J. discussed the ambit of Chouhan along with the backdrop to the changes to the jury selection process as a result of Bill C-75. It would be of little utility to echo those very instructive comments in these reasons.
[7] Counsel recognize that trial judges are now more integrated into the challenge for cause process, to an extent that did not exist prior to September 19, 2019.
[8] Given the foregoing, it is a challenge to assess and implement a practical application of jury selection arising out of Chouhan. Indeed, in Chouhan, the Supreme Court was split, with five separate sets of reasons. As Pomerance J. stated in Bhogal, at para. 5:
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.
The Practical Application of the Jury Selection Procedures to this Case:
[9] As mentioned, while the Supreme Court in Chouhan was divided, it appears that the majority directed that jurors be instructed as to the effects of bias, prejudice and/or stereotypes, both conscious and unconscious.
[10] In Bhogal, at para. 9, Pomerance J. explains that there is now judicial recognition that implicit or unconscious bias is a factor in human decision making. The Supreme Court opined on the issue of unconscious bias.
[11] The Supreme Court of Canada judicially recognized and accepted that unconscious bias in individuals may result in innate bias or preconceived notions that they may not be aware of. In addressing the issue, the Supreme Court attempts to drive home the meaningful notion that while unconscious bias, is by definition nebulous and esoteric, jurors ought to be alerted and focussed on the potential for such bias or stereotyping.
[12] As Moldaver J. stated at para. 53 of Chouhan:
Where anti‑bias instructions are required, they ought to come early, before the presentation of evidence, and at any other time that the trial judge deems appropriate, including when the panel of prospective jurors is assembled in the courtroom at the outset of jury selection. We suggest that trial judges begin by pointing out that as members of society, each juror brings a variety of beliefs, assumptions, and perceptions to the court room. These assumptions will often be based on characteristics such as gender, race, ethnicity, sexual orientation, or employment status. Trial judges ought to highlight that jurors may be aware of some of their biases while being unaware of others. These unconscious biases may be based on implicit attitudes, namely “feelings that one has about a particular group”, or stereotypes, namely “traits that one associates with a particular group”…
[13] Hence, when applicable, trial judges are directed to instruct potential juror to actively reflect upon their thought processes, belief system and dive down deep into their personal views, assumptions, stereotypical thinking and myths, whatever their degree, when called to the bar for presentation as a potential juror, principally when a challenge for cause is raised. Again, I cannot say it any better than Pomerance J. expressed in Bhogal, at para. 9, that “[i]implicit biases tend to be deeply embedded in the psyche, but can be brought to the surface through active introspection”.
[14] Therefore, I adopt into my instructions to the entire panel the general anti-bias instructions found in Bhogal, at para. 11, with some modifications as follows:
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. All human beings experience unconscious biases, but these biases can be overcome through self-reflection and introspection.
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, religion, ethnic background or other personal characteristics.
If you are selected as a juror, you will be asked 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 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 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:
Take the time you need to reflect carefully and thoughtfully about the evidence. Think about why you are making the decision you are making. 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?
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.
If you are selected as a juror, you must resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, or stereotypes.
[15] I also adopt the specific anti-bias rationale discussed in Bhogal, at para. 12.
Challenge for Cause:
[16] In my reading of Chouhan, it appears that the challenge for cause question enjoys an expansive approach. According to Martin J. at paras. 119 and 121, (writing on behalf of three judges):
With respect to challenges for cause, I agree with my colleagues Moldaver and Brown JJ. that R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 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).
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).
[17] Thus, I intend to embrace a liberal approach to counsel’s suggestions for the challenge, within the parameters or constraints set by the Supreme Court about a representative jury.
[18] Jury instructions need be modified as each case will turn on its own circumstances, now including the background of potential witnesses to be called, the characteristics and background of the accused along with the nature of the occurrence as the case may be.
[19] Despite my colleague’s learned reasons, I adopt a difference approach than Pomerance J.’s on this last point and two other issues.
[20] First, I take a different approach to the direction found at para. 39 of Bhogal, wherein Pomerance J. opines that Chouhan does not permit a challenge for cause based on the nature of the offence. It is true that the Supreme Court in Chouhan focused on the relevant characteristic of the accused or victim and provided examples, but was silent on this specific point.
[21] I find that the door is open to address and advance such an inquiry, albeit with privacy interests in mind. In Chouhan, at para. 66, Moldaver J. writes:
While we agree that the Parks question was never intended to be the only question available on a challenge for cause (R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.)), we caution that trial judges who permit questions beyond the Parks formulation must be mindful of the fundamental principle of respect for jurors’ privacy upon which our system of jury selection has “long been based” (Kokopenace, at para. 74, per Moldaver J.; at para. 155, per Karakatsanis J.; and at para. 227, per Cromwell J. (dissenting but not on this point)). 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).
[22] Moldaver J. provides the trial judge with the discretion to conduct the challenge for cause procedure. He states at para. 62::
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.
[23] At para. 64, Moldaver J. goes on to provide some examples:
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.(citations omitted).
[24] I do not read this as foreclosing the need for trial judges to be cognizant and adapt to the circumstances of each case, which may include offence-based questions in order to achieve the objectives of an impartial juror during the challenge for cause in the appropriate case.
[25] With the discretion afforded trial judges on the challenge for cause, there may be occasions, such as in this case, where the offence-based question is entirely appropriate and need be posed to the prospective jurors. In this trial, the victim is black and an alleged sex trade worker. The offence in question is predicated upon her employment, and as such, the two concepts are intertwined and therefore ought to be canvassed by the challenge for cause process.
[26] The second area where I adopt a different approach than that found in Bhogal is the direction that the trial judge ought to pose the challenge for cause question. In my experience, I have never posed the challenge for cause question, and find that Chouhan does not necessarily alter that perspective.
[27] Paragraph 64 of Chouhan, reproduced here, states:
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.(emphasis added).
[28] I also note that Moldaver J.’s comments at para. 67 of Chouhan:
We raise two final points regarding challenges for cause. First, Bill C 75 directs that the trial judge, rather than a layperson, will be the arbiter of the challenge for cause. 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. Secondly, in trials involving challenges for cause, trial judges should as a rule exercise their power to exclude jurors from the court room during the selection process, pursuant to s. 640(2) of the Criminal Code. (emphasis added).
[29] In my view, these emphasized statements appear to suggest that a trial judge has discretion to adopt the approach that is best suited to ensure justice is promoted within a given trial. Indeed, I do not read these emphasized comments as foreclosing the possibility of trial judges departing from the traditional approach and assume the role of questioner, where circumstances warrant, for example, in the case of a self-represented accused.
[30] In a similar vein, I do not read those comments as mandating the trial judge pose the questions. One should still bear in mind the dangers or risks inherent when the judge descending into the arena, assuming the role of inquisitor as well a trier. In my opinion, it is incumbent on the judge, as any trier, to be focused on the evidence and make a determination rather than being implicated in the elicitation of the evidence. In our adversarial system of justice, the trier generally is to stay out of the figurative arena where possible. The goal is to preserve as much as possible the appearance of objective neutrality, free from bias: R. v. Hamilton, 2011 ONCA 399. In my view, this can be addressed and likely eliminated with counsel posing the questions.
[31] Moreover, when juxtaposing as against paras. 64 and 67 of Chouhan, I interpret the language contained in para. 67 which states that it “would be appropriate”, as discretionary and non-binding on trial judges and merely one suggestive approach.
[32] Given that the jurors will be brought in individually, there is no harm in defence counsel posing all of the questions. In the appropriate case, I have directed both Crown and defence to share in that task.
[33] However, it also bears mentioning that there are at least two exceptions to when the trial judge posing a question to the potential juror. First, a judge may ask a question at any time for clarification purposes. Second, as I mentioned in in Josipovic, at paras. 61-63, the circumstances of that case necessitated a final overarching question be posed to the juror unrelated to the publicity or for that matter, any Parks-type question regarding bias and impartiality. Under the rubric of the stand-by provision, there was an additional question posed to the juror:
Is there any other reason you can think of that would make it difficult for you to serve as an impartial juror and determine this case on the evidence alone and the instructions of the trial judge?
[34] This question was framed broadly but was premised on the fact that the trial was held during the COVID-19 pandemic. While there was a general instruction about the pandemic protocols, this question facilitated a direct opportunity for a potential juror to focus on any issue, including any concerns about sitting on a jury during the pandemic, with additional requirements imposed to comply with government protocols, that could impact on one’s ability to fully and fairly discharge the duties of a juror.
[35] I raise this point only to suggest that there may be other circumstances warranting a more robust series of questions to be posed within the challenge for cause or, for that matter the stand-by authority.
[36] Chouhan endorses the broad discretion afforded trial judges as to how the challenge for cause questions should proceed and how much leeway lawyers may enjoy in posing questions to potential jurors.
[37] Nothing in the particular circumstances of this case before me warrants my posing the primary questions for the challenge for cause. As mentioned earlier, I reserve the well-established right of any trial judge to pose clarifying questions in response to the prospective juror’s answers for the challenge.
[38] Finally, with respect, I must differ with the approach taken by my colleague in Bhogal, at paras. 51 and 52. This is in relation to addressing the challenge questions being distributed to the potential jurors in advance, for the purpose of taking time and engaging “in self-examination and reflection”.
[39] In my experience and to my knowledge it has been a standard and widely- accepted practice for many years to exclude all prospective jurors from the challenge for cause questioning process, and to have each potential juror appear before the bar individually. Why? Because the concept was that responses provided with other potential jurors present could taint the process and result in a-less-than robust, honest, spontaneous response to questions being posed by counsel. As far as I am aware, at no time were the challenge for cause questions provided in advance to each potential juror presumably as a result of these concerns.
[40] While silent on the issue, at para. 67 of Chouhan, Moldaver J. endorses the approach of prospective jurors being subject to the challenge individually:
…Secondly, in trials involving challenges for cause, trial judges should as a rule exercise their power to exclude jurors from the court room during the selection process, pursuant to s. 640(2) of the Criminal Code . Jurors would be understandably reluctant to acknowledge a bias or prejudice publicly, and therefore, the risk of empanelling a biased juror increases where exclusion orders are not made…After all, the purpose of this expanded procedure is not to expose potential jurors as “racists” or to single them out publicly for their biases, but rather to foster candid reflection on their part about their ability to consider the evidence impartially. This approach will target both explicit racism and more subtle forms of racial prejudice (see Martin J.’s reasons, at para. 121).
[41] As an extension of this logic, two concerns arise. First, if someone has a conscious bias, once alerted to the question, if they want to avoid giving a candid answer, or help to ensure their desired non-service as the case may be, this procedure outlined in Bhogal provides more time to ruminate to consider an effective answer. Clearly, all jurors must be treated equally and fairly. I am concerned that if the entire panel receives the question in advance, the first potential juror may be treated differently than the 20th juror, who has more time to consider the questions.
[42] Second, I diverge from my colleague’s opinion that “spontaneity may be the enemy of accuracy”. As noted by Pomerance J., the concept of res gestae runs contrary to the notion that spontaneity may not be accurate or honest.
[43] Yet, no one can deny the possibility that first answers may not always be truthful as witnesses and individuals in everyday life sometimes seek to clarify their initial response. However, our system of justice is generally premised on probabilities and trends in favour that an initial spontaneous answer to a question, not provided in advance, is likely to be more honest and accurate. It is the reason why questions put in cross-examination are not provided in advance and why witnesses are not permitted to speak with other during their testimony.
[44] There is ample time for accurate responses from a prospective juror, being present in the court, having heard the question along with the prior instructions from the trial judge, to approach the task for the first time with candor and care. If he or she gets it wrong, there is an opportunity to correct oneself.
[45] In my opinion, a spontaneous response is likely to produce a more accurate answer. The questions ought thus be posed for the first time to each juror after they are brought forward individually to the book to be sworn or affirmed in the courtroom. Again, recall that the jurors have already been told to reflect upon their own potential biases or prejudices in advance of being randomly called forward. One should not lose sight of the fact that perspective jurors are witnesses during the challenge for cause process.
[46] For this trial, the primary questions during the challenge for cause process will be posed by counsel (either defence or defence and Crown) to each potential juror. In accordance with the usual practice, such questions shall not be disseminated or provided in advance to the potential jurors.
The Challenge for Cause:
[47] When I get to this section of my general instructions to the panel, I will advise them much along these lines as outlined in Bhogal, with some modifications:
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 life experiences, beliefs, and opinions, some of which may be unconscious. Of course, we can only focus on our conscious awareness but the notion of unconscious bias brings home the necessity to think hard about your own beliefs and values towards other persons and reflect upon them.
It is not whether these beliefs are correct or proper, but the issue before us today is 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.
During the challenge for cause, counsel will ask you some questions. Listen carefully. Take your time in answering. You must answer the question honestly. You may answer the question with a yes of no, or in any manner you deem appropriate to express yourself. If you do not understand the question, please let me know.
[48] During the actual challenge for cause process, counsel will pose the questions to each potential juror with the preamble:
As His Honour advised you, a juror 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, Shawn Martin, is a Black man. The alleged victim is a Black woman. The crimes charged allege physical violence, threats of violence, and exploitation in the context of sex work.
Do you have any bias, beliefs or pre-conceived notions about Black men?
(If yes), 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?
Do you have any beliefs or pre-conceived notions about Black men being more prone to violence or violence against women?
(If yes), would you be able to set those beliefs aside and decide the case based solely on the evidence at trial and the instruction of the trial judge?
Do you have any beliefs about people who engage in sex work, that is compensation for sexual services or whether you have pre-conceived notions that Black men are more likely to be involved in the sex trade?
(If yes), would you be able to set those beliefs aside and decide the case based solely on the evidence and the instructions of the trial judge?
Do you have any beliefs or pre-conceived notions about people who pay for sexual services or people who are compensated for sexual services?
(If yes), 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?
Stand-by provision:
[49] Section 633 of the Criminal Code is re-drafted to provide further assistance in ensuring the constitutional requirement, an impartial jury. It does not mean that a party can implore a judge to abuse the stand-aside power as a pseudo- peremptory challenge. However, it does mean that there may be a basis to inquire of jurors pursuant to this provision and with the guidance from the Supreme Court in Chouhan.
Procedure:
[50] Prior to the arraignment, at this stage of jury trials, members of the panel will be advised about the health and safety protocols in place due to the COVID-19 pandemic. I will also introduce the anti-bias instructions at the outset, (reproduced at para. 14 of this ruling).
[51] After arraignment, the usual general instructions will be read out to the entire panel(s), including the well-established factors that may make a potential juror ineligible or unsuitable to serve in this case. Section 632 provides that:
The judge may, at any time before the commencement of a trial, order that any juror be excused from jury service, whether or not the juror has been called pursuant to subsection 631(3) or (3.1) or any challenge has been made in relation to the juror, for reasons of
(a) personal interest in the matter to be tried;
(b) relationship with the judge presiding over the jury selection process, the judge before whom the accused is to be tried, the prosecutor, the accused, the counsel for the accused or a prospective witness; or
(c) personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused.
[52] Trial judges have a wide discretion under this section of the Criminal Code to excuse jurors for a variety of reasons. This is premised on a juror self-identifying one or more of these elements to the judge.
[53] In my view, nothing substantial has been reformed in s. 632 from what had transpired in the time prior to Bill C-75. A judge instructs the panel (or smaller groups of jurors) as to the various factors that may make one unsuitable or ineligible to serve on a jury.[^1] Again, the onus is on the juror to self-identify.
[54] Turning next to the specific challenge for cause procedure, amongst the general directions, I will make brief mention again of the anti-bias instruction (referenced at para. 47 of this ruling).
[55] Before commencing with the selection, the Registrar shall deliver the admonishment. Members of the panel will leave the courtroom and will return back to the courtroom individually and will be called to the book for presentation as a potential juror in the random order selected.
[56] The self-identifying inquiry under s. 632 is conducted before the challenge. Upon furnishing the basis upon which the particular juror believes that one or more of the factors apply to him or her, he or she may be excused or deferred by the trial judge.
[57] If the juror is not excused or deferred, that individual moves on to the next stage of the process: the challenge for cause.
[58] After the challenge for cause questions are posed by counsel, the trial judge makes the determination as a trier of the challenge. I do not seek any input from counsel, however, there may be a rare situation where the Crown or defence might be requested to provide advice.
[59] If the juror is deemed not acceptable, that individual is either excused or deferred. If the juror is deemed acceptable, the next phase involves potential consideration of the stand-by provision, and any further questions, if applicable.
[60] It bears repeating that the revised s. 633 now stipulates that the judge may direct a juror “to stand by for reasons of personal hardship, maintaining public confidence in the administration of justice or any other reasonable cause”.
[61] When the previous stand-aside procedure was invoked, it generally occurred after a triggering event: a question arising from the juror’s ability to understand the language of trial, a health issue or perhaps exceptional hardship to serve being claimed. Notably, in the exercise of the authority found in the former provision, a determination was usually made by a judge after – but not always - hearing submissions from counsel.
[62] In Chouhan, Abella J., at para. 159, states:
In order to avoid bias and discrimination, the new jury selection system entrusts trial judges to vigorously exercise their authority in accordance with the Charter to ensure that Canadian juries are, and are perceived to be, impartial and representative…[m]aintaining public confidence in the administration of justice. The key phrase is “maintaining public confidence in the administration of justice.
[63] While the practical application of this stand-by provision is left to be determined, Moldaver J. provided the tools for trial judges to utilize this residual stand-aside authority. At para. 62 of Chouhan, he held:
We are of the view that the “maintaining public confidence in the administration of justice” standard provides an effective analytical yardstick to address a variety of residual concerns in the jury selection process. In particular, the stand‑aside power can provide a means to exclude jurors whom the judge, the accused, or the Crown believe might be partial but who have nevertheless survived a challenge for cause. In this respect, the amended provision builds upon the case law that has recognized that the stand‑aside power provides an “element of flexibility” to the jury selection process by allowing trial judges to exclude jurors who might be partial (R. v. Krugel (2000), 2000 CanLII 5660 (ON CA), 143 C.C.C. (3d) 367 (Ont. C.A.), at paras. 63‑64).
[64] I observe that Moldaver J. disagreed with Abella J. on several points, including the use of the stand aside provision to promote diversity. Moldaver J. provides guidance as to the contours of the revised stand aside provision, as found at paras. 71-72 of Chouhan:
It will be for trial courts and courts of appeal to determine, on a case by case basis, the contours of the trial judge’s discretion to stand aside jurors to “maintain[n] public confidence in the administration of justice”, but we wish to make it clear what this amended power cannot be used for.
First, in all cases, the trial judge must maintain a resolute focus on the language that Parliament chose in amending the stand aside provision: trial judges can stand aside jurors only where necessary to “maintai[n] public confidence in the administration of justice”. Public confidence is assessed from the perspective of a reasonable and informed person (R. v. St‑Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 87), who, in the context of jury selection, will know of the many safeguards that go to ensuring the independence and impartiality of the jury and the fairness of the trial, including: the dedicated provincial efforts to create representative jury rolls, the vital principle of randomness that undergirds all aspects of jury selection, the challenge for cause process that removes potential jurors for partiality, the trial judge’s instructions targeting implicit and unconscious bias, and the rigours of the trial process itself. Given these and other safeguards, which we have canvassed at length above, public confidence will not easily be lost in the jury selection process (citations omitted).
[65] As I held in Josipovic at para. 31, endorsing Boswell J.’s sage ruling in R. v. Campbell, 2019 ONSC 6285, at para. 35, the use of stand-asides in relation to the concept of “competent juries” is important and meaningful. To this end, Boswell J. explains the following at paras. 100 and 101 of Campbell:
Every now and then, a prospective juror appears who is clearly not well-suited to jury service. Lawyers and judges alike, through their life experience, are able to readily identify them. Peremptory challenges were a useful means of eliminating them from the jury panel.
Competent juries are necessary to maintain public confidence in the administration of justice. Where a trial judge has concerns about the competency of a prospective juror, it is appropriate to exercise the discretion to stand that juror aside.
[66] In my opinion, the use of the term “a competent juror” is still material and does not go down the road of a pseudo-peremptory challenge. The trial judge's discretion has been enhanced to allow for a juror to stand-by for the purpose of “maintaining public confidence in the administration of justice”.
[67] This discretion remains with the trial judge on some objective rationale and avoids the stereotypical thinking and reasoning that was criticized with the peremptory challenge. I am satisfied in the appropriate circumstances, a trial judge, whether on his or her own initiative or at request of counsel, can exercise the residual power under s. 633 at any time, albeit requiring a commitment to place some reasons on the record. From my read of Chouhan, the direction from the Supreme Court is not inconsistent with this analysis.
[68] Practically speaking, it is understood that there may be other considerations, apart from a juror’s verbal responses, demeanour or otherwise, that could suggest his or her unsuitability, which may not necessarily be captured by the usual challenge for cause framework.
[69] Thus, the trial judge has a role to ensure whether a certain juror is “competent” to act as a juror in a specific case by ensuring that the public trust and confidence in the administration of justice is maintained. Where a trial judge has concerns about the competency of a prospective juror, it is appropriate to exercise the discretion to stand that juror aside. In order to achieve that objective, the judge may act on his or her own initiative, or on advice of counsel. The judge may invite the parties to make further inquiries, propose defined questions and make submissions, where appropriate, albeit on the basis of some objectively reasonable justification.
[70] I am of the view that s. 633 may facilitate such further inquiry, as long as counsel can demonstrate an objectively reasonable justification. The specific inquiry may be modified in each particular case. It may also involve other probing questions that flow from the case or the juror’s responses.
[71] If additional questions are posed and if necessary, upon receipt of the answer, I will turn to counsel to determine if they wish to make submissions as to whether or not I should stand-aside the juror. If counsel do not wish to make submissions, he or she will be sworn as a juror.
[72] If counsel signal that they want to make submissions, for whatever reason, then I will invite the prospective juror to leave the courtroom while I hear argument. After that, I will invite the prospective juror back into the courtroom and either ask further questions, direct him or her to stand aside, or have the individual sworn as a juror to try the case.
[73] Finally, once the jury is put-in-charge of the accused, during the course of my preliminary instructions to the jury, they will be reminded about the anti-bias instructions as suggested in Bhogal.
Conclusion:
[74] A robust and concomitant application of the enhanced challenge for cause process and stand-by provisions guided by the general principles espoused in Chouhan provides both the Crown and the accused a meaningful opportunity to participate in the jury selection process, to safeguard an impartial jury, while at the same time engaging the accused’s fair trial rights.
A.J. Goodman J.
Date: August 3, 2021
COURT FILE NO.: CR 20-152
DATE: 2021-08-03
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SHAWN MARTIN
JURY SELECTION PROCEDURES
A. J. GOODMAN, J.
Released: August 3, 2021
[^1]: For the purposes of this written ruling, I do not intend to reference my standard jury instructions to the panel.