COURT FILE NO.: CR-19-30000281
DATE: 20210914
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TAUFIQ STANLEY
Accused
Donna Kellway and Joshua Chan, Counsel for the Crown
Dirk Derstine and Laura Remigio, Counsel for the accused
HEARD: September 7, 2021
M.A. CODE J.
REASONS FOR JUDGeMENT
A. OVERVIEW
[1] The trial of the accused Taufiq Stanley (hereinafter, Stanley) on a charge of first degree murder is about to commence with jury selection. The trial was previously scheduled to proceed in November 2020 but it was adjourned, just prior to jury selection, when the Covid-19 pandemic worsened and all jury trials were suspended by order of the Chief Justice.
[2] I heard a number of pre-trial Motions in October and November 2020, prior to the previously scheduled trial date. Two of those Motions resulted in written judgements that are relevant to the present judgement, which relates to a further pre-trial Motion that I heard on September 7, 2021. The first of these two earlier judgements related to “Prior Discreditable Conduct”, namely, Stanley’s alleged possession of the two firearms used in the murder, during the time period shortly before the murder. See: R. v. Stanley, 2020 ONSC 6673. The second of the earlier judgements related to “Jury Selection”, in particular, Stanley’s request to challenge jurors for cause. See: R. v. Stanley, 2020 ONSC 6876.
[3] There has been a significant development in the law relating to jury selection, since the adjournment of the previously scheduled trial. On June 25, 2021, the Supreme Court released its Reasons for Judgement in R. v. Chouhan (2021), 2021 SCC 26, 401 C.C.C. (3d) 1 (S.C.C.). The Court upheld the constitutionality of Parliament’s 2019 amendments to the Criminal Code relating to jury selection, held that those amendments applied retrospectively, and provided some guidance on how the amendments should be applied. The 2019 amendments abolished peremptory challenges, abolished lay triers of challenges for cause, and gave the trial judge power to decide challenges for cause and to exercise an expanded stand-aside power.
[4] As a result of the Chouhan decision, counsel for Stanley filed a revised pre-trial Motion concerning jury selection and challenge for cause on September 3, 2021. He submitted that the law had changed, as a result of Chouhan, and that I should re-visit the decision I previously made in November 2020 relating to jury selection in this case. I agree that the law has changed and that my earlier decision needs to be reconsidered in certain areas. After hearing oral argument on September 7, 2021, I reserved judgement. These are my Reasons on the renewed or revised jury selection Motion.
B. THE INITIAL JURY SELECTION MOTION HEARD IN NOVEMBER 2020
[5] The original Notice of Application filed by Stanley on September 14, 2020 sought to challenge prospective jurors for cause pursuant to s. 638(1)(b) on grounds that “a juror is not impartial.” The two bases for lack of partiality were pre-trial publicity and race (the accused Stanley is Black). The Crown did not oppose either of these two bases for the requested challenge for cause and they both had obvious merit. The proposed form of the questions was also not contentious. In particular, the question relating to racial bias was based on the “standard” formulation that emerged from R. v. Parks (1993), 1993 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont. C.A.). In addition, the three questions relating to pre-trial publicity were all agreed to.
[6] At the time when Stanley’s above Notice of Application was filed, the accused was still entitled to 20 peremptory challenges, pursuant to the old s. 634(2)(b) of the Criminal Code. The Court of Appeal had held that the 2019 amendments, abolishing peremptory challenges, applied prospectively and that a trial such as the present one was governed by the old legislation. See: R. v. Chouhan (2020), 2020 ONCA 40, 384 C.C.C. (3d) 215 at paras. 210-212 (Ont. C.A.). However, on October 7, 2020, the Supreme Court heard the Crown’s appeal from that decision, allowed the appeal on the same day with Reasons to follow, and held that peremptory challenges had been abolished retrospectively.
[7] As a result of the above developments, the challenge for cause process acquired much greater significance as it is now the only basis for the accused to challenge prospective jurors. Two days after the Supreme Court decision, on October 9, 2020, Stanley filed a second Notice of Application that now sought to ask an expanded series of challenge for cause questions relating to race and bias, as opposed to the single Parks question that had previously been proposed. This second Application evolved somewhat during the hearing, especially after Stanley’s counsel consulted with an acknowledged expert in the field of social science research methodology and systemic racism in the criminal justice system. That expert, Professor Scot Wortley, testified before me on November 4, 2020.
[8] Professor Wortley’s testimony at the above hearing, the initial racial bias surveys and questions that he proposed, and the four questions that Professor Wortley and counsel for Stanley eventually settled on by the end of the hearing in November 2020 are all summarized in my Reasons for Judgement in R. v. Stanley, supra at paras. 9-24. I will refer to this judgement as Stanley (Jury Selection) and it is cited at para. 2 above. At the end of the hearing, I held that the first three proposed questions would not be permitted as they asked purely attitudinal questions related to crime rates and Black people. In addition, they unduly invaded juror privacy by probing “personal feelings, opinions, and beliefs.” However, I allowed Professor Wortley’s and counsel’s fourth proposed question, with some revisions. This question had been tested in a “mock jury” study at York University and had been found to be more effective than the “standard” Parks question, for reasons that were explained by Professor Wortley. See: R. v. Stanley (Jury Selection), supra at paras. 41-53. That permitted question was as follows:
As the judge will tell you, in deciding whether or not the prosecution has proved the charge against an accused, a juror must judge the evidence of the witnesses without bias, prejudice, or partiality. Might your ability to judge the evidence in this case be affected by the fact that the person charged is Black?
C. THE REVISED JURY SELECTION MOTION HEARD IN SEPTEMBER 2021
[9] As noted above, the Supreme Court released its Reasons in Chouhan on June 25, 2021, which provided guidance about the new jury selection process. In addition, there have been two judgements released by members of this Court, setting out their views on the post-Chouhan jury selection process. See: R. v. Bhogal, 2021 ONSC 4925 per Pomerance J.; R. v. Martin, 2021 ONSC 5333 per Goodman J.
[10] I responded to the above developments in the law by revising the “Opening Instructions to the Jury Panel” that I had previously circulated to counsel in November 2020. I also revised the question relating to racial bias that I had permitted in my November 2020 Reasons (set out above at para. 8), and I added a second question about unconscious bias. Finally, I revised the “Preliminary Instructions to the Petit Jury,” all based on my reading of Chouhan. I circulated these draft revised documents to counsel on September 2 and 3, 2021, in advance of the September 7, 2021 hearing of Stanley’s renewed jury selection Motion.
[11] Stanley’s renewed jury selection Motion filed on September 3, 2021 requested the following: various instructions to the panel of prospective jurors and to the petit jury; three additional questions on the challenge for cause; and certain uses of the new judicial stand-aside power. Much of this was uncontroversial and was consistent with the above three draft documents that I had circulated prior to the hearing. The one contentious area, where I heard full submissions, concerned the three additional challenge for cause questions that were proposed. They were framed as follows in the Notice of Application:
You will recall in 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, Taufiq Stanley, is a black man. He is alleged to be one of two shooters. You will hear evidence that he illegally possessed two firearms near to the time of the shooting.
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 questions, please let me know.
Ask yourself whether you have any beliefs or pre-conceived notions about black men. 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?
Ask yourself whether you have any beliefs or pre-conceived notions about whether black men are more likely to engage in crimes of 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?
Ask yourself whether you have any beliefs or pre-conceived notions about people who illegally possess firearms. 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?
[12] It can be seen that the preamble to these three proposed questions recites an important piece of evidence in the case, namely, the fact that Stanley “illegally possessed two firearms near to the time of the shooting.” The third proposed question then asks prospective jurors “whether you have any beliefs or preconceived notions about people who illegally possess firearms” and whether the prospective juror is “able to set those beliefs aside.” This third proposed question was not amongst any of the questions that counsel and Professor Wortley had proposed during the November 2020 hearing. The evidence relating to Stanley’s prior possession of two firearms is discussed extensively in the Reasons for Judgement cited above at para. 2 relating to “Prior Discreditable Conduct”. I ruled that the evidence relating to possession of the guns (which are alleged to be the two murder weapons) was admissible but that it required editing of much of the surrounding criminal and disreputable conduct on these two earlier occasions. The extent of the editing would depend on whether there were any admissions forthcoming from the defence relating to the fact of possession. The negotiations over these admissions were still ongoing at the time of the jury selection Motion that I heard on September 7, 2021. I also ruled that a limiting instruction would be required concerning the permissible and impermissible uses of the evidence of prior possession of the two firearms. See: R. v. Stanley, supra at paras. 26-30 and 40-44. I will refer to this judgement as Stanley (Prior Discreditable Conduct).
[13] Unlike this new third question concerning “people who illegally possess firearms”, the first two questions set out above bear some resemblance to the questions that were previously proposed at the November 2020 hearing. The first question is another reformulation of the Parks question, although it differs from the reformulation of the Parks question that Professor Wortley had proposed in his fourth question, based on the York University “mock jury” study. The second question is somewhat similar to Professor Wortley’s first, second, and third proposed questions as it seeks to probe opinions and beliefs about crime rates amongst Black men.
D. ANALYSIS
(i) Instructions to the Jury Panel and to the Petit Jury, the revised question about racial bias, and the additional proposed question about unconscious bias
[14] As noted above at para. 10, I circulated new drafts of the proposed “Opening Instructions to the Jury Panel” and “Preliminary Instructions to the Petit Jury”, as well as a revised draft of the question I had already permitted about racial bias and a new proposed question about unconscious bias, in advance of the September 7, 2021 hearing. These three documents reflected my reading of the Chouhan decision. They all proved to be uncontroversial and counsel for Stanley made generally similar proposals in his revised Notice of Application filed on September 3, 2021. I will review these various aspects of the new post-Chouhan jury selection process first, because they are not controversial.
[15] The plurality judgement in R. v. Chouhan, supra at paras. 53-4, authored by Moldaver and Brown JJ., stated the following about opening instructions to the jury panel:
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” (A. Roberts, “(Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias” (2012), 44 Conn. L. Rev. 827, at p. 833).
Trial judges should exhort jurors to approach their weighty task with a heavy dose of self‑consciousness and introspection. Jurors must identify and set aside prejudices or stereotypes when considering the evidence of any given witness and when reaching a verdict (see, generally, G. A. Ferguson and M. R. Dambrot, CRIMJI: Canadian Criminal Jury Instructions (4th ed. (loose‑leaf)), vol. 1, at pp. 1.02A‑1 to 1.02A‑7; M. K. Thompson, “Bias on Trial: Towards an Open Discussion of Racial Stereotypes in the Courtroom” (2018), 5 Mich. St. L. Rev. 1243, at pp. 1301‑6). [Emphasis added].
[16] In an effort to carry out the above direction from the Court, I intend to instruct the panel of prospective jurors as follows, when explaining the challenge for cause process:
This part of the process is a very important step, in order to ensure that bias or partiality plays no role in a juror’s decision-making at trial. Let me give you some further general instructions in relation to this issue. Each one of us brings our own beliefs, assumptions, and perceptions to this court room. Some of these beliefs, assumptions, and perceptions relating to certain people or certain groups may be based on characteristics such as race, ethnicity, gender, age, education, sexual orientation, religion, employment status, or some other personal characteristic.
I will refer to these kinds of assumptions about certain personal characteristics as biases. They may be negative biases or positive biases. It is sometimes the case that we are not even aware that we have one or more of these biases. A bias may be based on implicit attitudes or feelings that we have about a particular group, or a bias may be based on stereotypes or traits that we associate with a particular group. It is critical, if you are chosen to become a member of the jury, that you be willing and able to set aside any such bias, whether due to attitudes or stereotypes. You must, as well, approach your duties mindful of the possibility that you may have biases that you are not aware of. If you are chosen to be a member of the jury, you must resolve to not allow bias of any kind to affect any decision that you have to make in relation to the evidence and issues in this case, and to make all of your decisions fairly and objectively and impartially. You must also resolve to work diligently to identify any unconscious bias that may affect your reasoning.
[17] The Court in Chouhan held that in appropriate cases similar instructions should be given to the petit jury, once the jurors have been selected. For example, the plurality judgement of Moldaver and Brown JJ. stated the following (R. v. Chouhan, supra at paras. 58-9):
The trial judge must be alive to the particularities of each individual trial that might present the danger of a juror being influenced by unconscious bias. Recognizing that there is no “magic formula”, trial judges should identify the characteristics of the parties or the 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 (Ferguson and Dambrot, at p. 1.02A‑7). The submissions of counsel will be integral to this process.
Such instructions should not be taken as criticizing past or future jurors. They merely recognize that the benefit of human experience which the jury brings to the criminal process can also be tainted by prejudices and stereotypes. Indeed, this Court has recognized that “[w]hen jurors are sworn and empanelled, Canadian society tasks them with a weighty responsibility: deciding whether, on the evidence put before them, the accused is guilty or not. This task is not easy — it requires patience, judgment, and careful analysis” (Barton, at para. 195). These instructions continue to emphasize the disposition of self‑consciousness and introspection that jurors must maintain in discharging their duties. [Emphasis added].
[18] Once again, in an effort to carry out the above direction from the Court, I intend to instruct the chosen jurors as follows, at a point in the preliminary instructions when jurors’ reliance on “common sense and experience” is being addressed:
To make your decision, you should consider carefully, and with an open mind, all of the evidence that is presented during the trial and you should consider it as a whole. In the end, it will be up to you to decide how much or how little you believe of the testimony that you hear. You may believe everything a witness says, some of it, or none of it. I wish I could tell you that there is a magic formula that you could apply to determine how much or how little to believe of a witness’ testimony or how much to rely on it or what weight to give it in the context of all the other evidence, but there is no such magic formula. When you watch and listen to testimony, and later when you go to your jury room to decide the case, you use the same common sense and experience that you use every day in deciding whether people reliably know what they are talking about, whether they are telling the truth, and how much weight to give to what they are saying.
In relation to this instruction that I have just given you, that is, to rely on your “common sense and experience”, I want to repeat and elaborate on the earlier instruction that I gave you prior to jury selection, in my opening address to the entire panel of prospective jurors. You will recall that I warned you that we all bring a set of beliefs, assumptions, and perceptions to this court room based on the experience of our lives. In principle, there is nothing wrong with this. Indeed, one of the great strengths of our system of trial by jury is that it brings together twelve lay persons from all walks of life, who are able to pool all of their common sense and experience and listen to each other’s views. However, you must be willing to rigorously examine the particular “common sense and experience” that you are relying on, when deciding this case, in order to ensure that it is not based on biases or prejudices about certain people or certain groups.
In this regard, remember that I warned you about unconscious biases, that you may not even be aware of. And remember that I warned you about racial prejudices against young Black males. You were questioned about these matters, prior to being selected, and you swore (or affirmed) that you would not be affected by any such bias or prejudice and that you would make real efforts to identify any unconscious biases, to set them aside, and to judge the case fairly and objectively on the basis of the evidence and my instructions on the law. As the trial progresses, and during your deliberations, reflect on these promises that you gave to the Court and think carefully about your own reasoning processes. Consider whether any biased assumptions or generalizations are playing some role in your reasoning, reflect on whether you jumped too quickly to a conclusion because of some personal attitude or preference, and listen carefully to your fellow jurors who may have a different perspective that is not affected by any bias or prejudice. In other words, use the gravity, the solemnity, and the safeguards of the trial process to help cleanse your own reasoning of any biases or prejudices [my emphasis].
[19] When discussing the challenge for cause process, the plurality judgement of Moldaver and Brown JJ. recommended that a question related to unconscious bias ought to be included. This new or additional question had not been part of the “standard” Parks question and it was not part of Professor Wortley’s fourth question, which I had already permitted (R. v. Chouhan, supra at para. 63):
In our view, the challenge for cause procedure is itself a vehicle for promoting active self‑consciousness and introspection that militate against unconscious biases. The prospective juror, who, when empanelled, steps into an adjudicative role must bring to bear a degree of impartiality similar to that of judges. Impartiality requires active and conscientious work. It is not a passive state or inherent personality trait. It requires jurors to be aware of their own personal beliefs and experiences, and to be “equally open to, and conside[r] the views of, all parties before them” (R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 40). Given these principles, the questioning on a challenge for cause ought to be able to explore the juror’s willingness to identify unconscious bias and strive to cast it aside when serving on the jury (Find, at para. 40). [Emphasis added].
[20] As a result of the above direction from the Chouhan decision, I re-drafted the question that I had already permitted as an alternative to the “standard” Parks question (based on Professor Wortley’s fourth question) and I drafted an additional question about unconscious bias (based on a question used by Justices MacDonnell and Dambrot in their most recent murder trials). These two questions were as follows:
As I instructed you this morning, in deciding whether or not the prosecution has proved the charge against an accused, a juror must judge the evidence of the witnesses without bias, prejudice, or partiality. Bias may be based on attitudes or stereotypes related to the personal characteristics of certain persons or groups. You may not even be aware that you have a particular bias. Might your ability to judge the evidence in this case be affected by the fact that the person charged is Black?
If you are chosen to be a member of the jury in this case, will you remain mindful of the possibility that you may have unconscious biases, and will you make efforts to identify any such biases, set them aside, and judge the case fairly and objectively?
[21] The above revisions to the post-Chouhan jury selection process were generally agreed to by both parties. I should note that I have only set out passages from the plurality judgement of Moldaver and Brown JJ., when discussing these issues. It is clear that Martin J.’s concurring judgement (on behalf of three members of the Court), agreed with these parts of the plurality judgement (See: R. v. Chouhan, supra at para. 110).
(ii) Two post-Chouhan procedural issues
[22] There were two procedural issues related to the post-Chouhan challenge for cause process that were briefly argued at the September 7, 2021 hearing. The first issue was whether the challenge for cause questions should now be asked by the trial judge and not by counsel. In R. v. Chouhan, supra at para. 67, the plurality judgement stated the following in relation to this issue:
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 (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.
[23] Moldaver and Brown JJ.’s use of the word “appropriate”, in the above context, means “peculiar (to); inherent, characteristic; specifically suitable (for, to); proper, fitting.” See: The New Shorter Oxford English Dictionary (Oxford University Press, 1993), Vol. 1 at p. 103. In addition to this apparent direction from the Court, there are sound policy reasons for the trial judge to ask the challenge question or questions. It will send a clear message to the prospective jurors that partiality is a concern of the Court and is not just a matter that concerns counsel. It will also enhance the gravity and solemnity of the inquiry. Finally, it will allow the trier who must decide the challenge to make direct eye contact with the prospective juror, when asking the challenge questions. Both parties agreed that the trial judge should ask the challenge questions. For all the above reasons, I will ask the challenge questions.
[24] The second procedural issue was whether the broad subject matter of the challenge for cause questions should be communicated to the prospective jurors in advance, in the opening instructions to the jury panel, or whether they should first learn the nature of the inquiry when the questions are asked. Prior to Chouhan, some judges adopted the former approach and some adopted the latter approach. There was no real unanimity. The argument in favour of the former approach is that it allows for careful thought and reflection, before the prospective jurors answer the questions. The argument in favour of the latter approach is that it may produce more spontaneous and truthful answers. Mr. Derstine, counsel for Stanley, favoured the latter approach on balance, although he did not take a strong or forceful position on the issue. Ms. Kellway, on behalf of the Crown, favoured the former approach, although she too did not argue the point strenuously.
[25] In my view, both the plurality and concurring judgements in R. v. Chouhan, supra at paras. 53-4, 58-9, and 110, implicitly favour the former approach. Both judgements stressed the importance of “unconscious biases”, in the modern understanding of prejudice and partiality. In this regard, they repeatedly emphasized the need for “self-consciousness and introspection” by both prospective jurors and jurors, in order to expose these biases. It is hard to see how “self-consciousness and introspection” can occur during a challenge for cause if the prospective juror is not told the general nature of the inquiry in advance. As a result, I will instruct the prospective jurors as follows in my Opening to the Jury Panel (at a point immediately after the general instructions on bias and prejudice set out above at para. 16):
In this particular case, the accused person Taufiq Stanley is a young Black male. The particular concern that I propose to ask each juror about is the possibility that racial bias about young Black males, including unconscious racial bias, could affect a juror’s ability to judge the evidence objectively and decide the case fairly. I will be asking these questions to help us select a jury that will be truly impartial. I am going to make these inquiries of every prospective juror. No one is being singled out. I will also be asking questions about whether any pre-trial publicity about the case, that you have read or heard, has affected your ability to judge the case fairly and impartially. Finally, I will be asking a question about your ability to follow my instructions about evidence relating to the illegal possession of firearms.
[26] In relation to the two procedural issues discussed above – who should ask the challenge questions and whether they should be disclosed in a general way in the opening to the jury panel – the two decisions of this Court in R. v. Bhogal, supra and R. v. Martin, supra have taken opposing positions. It can be seen that I agree with Pomerance J. on both of these issues.
(iii) The scope of the new stand-aside power
[27] The 2019 Criminal Code amendments expanded the judge’s power to stand aside prospective jurors by adding a new criterion, namely, “maintaining public confidence in the administration of justice.” There was initially some disagreement between the parties about the scope of this new power, and I heard argument on the point at the September 7, 2021 hearing. However, by the end of the hearing both parties were in agreement as to the scope of s. 633, subject to some unforeseen potential use of the new power arising during the jury selection process.
[28] The initial source of dispute, on which I heard argument, was whether this new stand-aside power could be used to enhance the diversity of the petit jury. It is clear that the plurality judgement of four members of the Court rejected this approach (see: R. v. Chouhan, supra at paras. 74-82). It is equally clear that Abella J. took the view that the stand-aside power could and should be used to “actively promote jury diversity” (see: R. v. Chouhan, supra at paras. 162-4). The concurring majority judgement of three members of the Court did not ultimately decide the issue but appeared to express some sympathy for the suggested use proposed by Abella J. (see: R. v. Chouhan, supra at paras. 105 and 111-118). Mr. Derstine’s initial submission on behalf of Stanley was, therefore, that the Court was evenly divided on the issue of using stand asides to promote diversity and that the dissenting judgement of Coté J. became determinative, if she expressed a view on this issue. Mr. Derstine argued that Coté J.’s dissent was diametrically opposed to the four-member plurality judgement and could not be read as agreeing with Moldaver and Brown JJ. concerning the scope of the new stand-aside power. However, by the end of the hearing Mr. Derstine conceded that in the concluding paragraph of her Reasons, Coté J. expressly adopted the approach of Moldaver and Brown JJ. on this issue when she stated the following (see: R. v. Chouhan, supra at para. 316):
As it stands, the amended s. 633 of the Code is not an adequate replacement for peremptory challenges because it fails to protect the core jury characteristics of impartiality, representativeness and competence in the same way that peremptory challenges have. I agree with Moldaver and Brown JJ. that crafting guidance to trial judges on how and when they can use stand asides to promote diversity is a difficult task. There are many types of diversity, and diversity means different things to different people. However, promoting diversity is not a task that s. 633 clearly requires. Section 633 provides that a trial judge may direct a juror to stand by for reasons of “maintaining public confidence in the administration of justice”. While the evidence is clear that peremptory challenges were a tool that racialized and other marginalized persons used to improve the representativeness and competence of juries, I cannot read s. 633 as empowering judges to do the same. Nor am I certain that judges are even capable of performing this role. As I have shown above, “[a] jury that may do for a particular defendant in a particular case may be unsuitable for a different defendant in a different case”. Different accused persons will have different views of what a representative jury is and what makes a jury representative. I therefore join Moldaver and Brown JJ., who speak for a majority of the Court in their conclusion that s. 633 cannot be used to promote or enhance the diversity of the petit jury. Again, I would not venture suggestions as to what should replace peremptory challenges. I leave that to Parliament and the provincial assemblies. [Emphasis added].
[29] In conclusion on this point, I am of the view that a 5-4 majority of the Court decided in Chouhan that the new stand-aside power cannot be used to proactively promote diversity on the petit jury. In this regard, I again agree with Pomerance J. in R. v. Bhogal, supra at para. 5.
[30] Once this preliminary issue was resolved, both parties agreed that there are two well established uses to which the stand-aside power can be put, namely, in cases of doubt as to partiality and in cases of incompetence. In relation to the former use of the stand-aside power, the plurality judgement in Chouhan cited an earlier decision of Moldaver J., when he was a member of the Court of Appeal, and stated (see R. v. Chouhan, supra at para. 70):
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 5660 (ON CA), 143 C.C.C. (3d) 367 (Ont. C.A.), at paras. 63‑64). [Italics in the original].
[31] In relation to the power to vet prospective jurors in furtherance of the “competence” requirement for service on a jury, Karakatsanis J. gave the unanimous judgement of the Court in R. v. Davey (2012), 2012 SCC 75, 293 C.C.C. (3d) 265 at paras. 30-31 (S.C.C.) and stated:
Our jury system is based upon trial by one’s peers: twelve randomly chosen, representative jurors. The jury reflects the common sense, the values, and the conscience of the community. The selection process must ensure an independent, impartial, and competent jury. It must promote public confidence in the jury’s verdict, and in the administration of criminal justice. It should also, to the extent possible, protect the legitimate privacy interests of prospective jurors. See R. v. Church of Scientology (1997), 1997 16226 (ON CA), 33 O.R. (3d) 65 (Ont. C.A.), at pp. 120-21; R. v. Kakegamic, 2010 ONCA 903, 272 O.A.C. 205 (Ont. C.A.), at paras. 42-44; R. v. Teerhuis-Moar, 2007 MBQB 165, 217 Man. R. (2d) 270 (Man. Q.B.), at paras. 117-125.
Challenges for cause and the court vetting process in ss. 626 to 644 of the Criminal Code are designed to ensure a jury that is eligible, impartial and competent. Subsequent to the amendments to the jury selection process following this Court’s decision in R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91 (S.C.C.), neither party has the right to select a jury, or has the positive power to shape a jury. Jurors are selected at random, and randomness ensures representativeness: R. v. Sherratt, 1991 86 (SCC), [1991] 1 S.C.R. 509 (S.C.C.), at p. 525. As officers of the court, all counsel have a responsibility to uphold the Charter right, as guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms, to an independent and impartial jury. Either party can challenge a juror for cause, based on objective grounds. [Emphasis added].
Boswell J. of this Court stated the following in R. v. Campbell, 2019 ONSC 6285 at paras. 100-101, specifically in relation to the new s. 633 power to stand aside prospective jurors:
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. [Emphasis added].
Also see: R. v. Chouhan, supra at paras. 20 and 275-9; R. v. Bain (1992), 1992 111 (SCC), 69 C.C.C. (3d) 481 at 493-4 and 498-9 (S.C.C.) per Gonthier J. dissenting, but not on this point; R. v. Yumnu (2012), 2012 SCC 73, 290 C.C.C. (3d) 323 at para. 71 (S.C.C.); R. v. Gayle (2001), 2001 4447 (ON CA), 154 C.C.C. (3d) 221 at para. 56 (Ont. C.A.); R. v. Muse, 2019 ONSC 6119 at paras. 50-51.
[32] In conclusion concerning the new stand-aside power in s. 633, I am satisfied that it can be used in cases where partiality remains in doubt after the challenge for cause and in cases of “incompetence”, as that term is explained in the case law. I will hear submissions from counsel in relation to the exercise of this power, after the challenge for cause questions have been answered and the prospective juror has been asked to briefly step outside the court room. There may be some additional unforeseen uses of the power that arise during the jury selection process. I should add that in my view the requirement relating to “competence” that is discussed above, is also a “reasonable cause” to excuse a prospective juror, pursuant to s. 632(c). In this way, it should generally be unnecessary to stand aside a prospective juror who is not competent.
(iv) The three challenge for cause questions requested by Stanley in the September 2021 Notice of Application
[33] It can be seen from the above analysis and history of this matter, that there were many areas of agreement or lack of controversy concerning the post-Chouhan jury selection process. The one difficult and disputed area concerned the three challenge for cause questions proposed in Stanley’s renewed jury selection Notice of Application filed on September 3, 2021. I will address each of these three proposed questions in turn. They are based to a considerable extent on questions permitted by Pomerance J. in R. v. Bhogal, supra at para. 28.
[34] Before setting out my analysis of the three new questions proposed in the Notice of Application filed on September 3, 2021, it should be stressed at the outset that the s. 638(1)(b) Motion seeking challenge for cause had already been allowed. It had been allowed on both requested bases, namely, pre-trial publicity and racial bias. Five questions had been approved, three relating to pre-trial publicity and two relating to racial bias (including unconscious bias). The form of these five questions had been substantially agreed to. When evaluating the three new questions proposed in the most recent Notice of Application, their appropriateness must be assessed in the context of the questions that had already been approved.
[35] Turning to the first proposed question, set out above at para. 11, it was adopted directly from the first question permitted by Pomerance J. in R. v. Bhogal, supra at para. 28. By the end of the September 7, 2021 hearing before me, the Crown and the defence had agreed that this question generally covers the same ground as Professor Wortley’s fourth question, which had already been permitted and revised (set out above at paras. 8 and 20). In other words, they are alternatives and the only issue is which of the two formulations is preferable. They are both attempts to improve on the “standard” Parks question. The Crown was critical of the Bhogal formulation and Mr. Derstine did not disagree in the end with the Crown’s critique. In particular, the question is double-barreled and its second part is based on a positive answer to the first part of the question. This is likely to create confusion, especially amongst prospective jurors who are not biased. For these reasons, the Crown submitted that the question I had already formulated, based on Professor Wortley’s fourth question, was preferable. Mr. Derstine did not disagree although he submitted that the preamble to the question should be supplemented by adding some of the content from Pomerance J.’s preamble in Bhogal. Ms. Kellway, on behalf of the Crown, did not object to expanding the preamble.
[36] In my view, the question that I have already permitted is preferable to the Bhogal formulation. I agree with the Crown’s above summarized critique of that particular formulation of the Parks question. In addition, I repeat the reasoning previously set out in R. v. Stanley (Jury Selection), supra at paras. 48-9 which explains my preference for the question that has already been permitted:
It will be recalled that the fourth question is derived from the Schuller “mock jury” study at York University, where it was found to be more effective than the “standard” Parks question. It is similar to the Parks question but it omits the kind of strong judgemental language that can deter self-reporting of bias, according to Professor Wortley. It is said to be a more “reflective” and more “open-ended” format than the “standard” Parks question. When the question is preceded by the Parks preamble, as I have ruled above at para. 44, it will incorporate the requisite behavioural component of “partiality”.
It can be seen that the fourth question has many advantages over the first three questions: it has been tested and found to be effective; it includes the behavioural component of “partiality”, once the Parks preamble is included; it does not “attempt to probe personal feelings, opinions, and beliefs”; and it resembles the well-established Parks question, with some minor modifications that Professor Wortley has explained and justified.
[37] In terms of the preamble to the question, which Mr. Derstine seeks to expand, I am concerned that a lengthy preamble (like the one in Bhogal) can detract from the need to focus prospective jurors on the question. Nevertheless, I have made some additions in an effort to find a balance between the important instructions that are set out in the preamble and the eventual question. The entire preamble and question will read as follows:
As I instructed you this morning, in deciding whether or not the prosecution has proved the charge against an accused person, a juror must judge the evidence of the witnesses without bias, prejudice, or partiality. Bias may be based on attitudes or stereotypes related to the personal characteristics of certain persons or groups. You may not even be aware that you have a particular bias. All prospective jurors bring their own beliefs, assumptions, and perceptions to the court room. They must be able to set aside any biases. [Ask prospective juror to face Mr. Stanley and then ask the question]. Thinking about your own beliefs, might your ability to judge the evidence in this case be affected by the fact that the person charged is Black?
[38] Turning to the second question, also set out above at para. 11, it was also adopted directly from a question permitted by Pomerance J. in R. v. Bhogal, supra at para. 28. Mr. Derstine acknowledged that this question inquires into prospective jurors’ beliefs about crime rates and Black people. He also acknowledged that I had ruled against this kind of question in R. v. Stanley (Jury Selection), supra at paras. 9-19 and 41-48. However, he submitted that Chouhan has now opened the door to the question. The Crown, on the other hand, opposed the question. She submitted that it is an inquiry into crime rates, it is a form of offence-based challenge, and to the extent that it relates to racial bias it is redundant (because the already permitted question about race will necessarily have addressed this issue).
[39] In my view, the second question suffers from some of the same deficiencies as the first question, discussed above. It is double-barreled and its second part is based on a positive response to the first part. As with the first question, this formulation of the issue being addressed may result in confusion. In addition, the question (or two-part question) fundamentally involves an inquiry into crime rates amongst a particular racial demographic. Professor Wortley provided helpful testimony at the hearing in November 2020 about the utility of this kind of inquiry, as a tool for exposing prospective jurors who harbour racist biases. In summary, he testified that three separate questions are required if this inquiry is to be effective. Professor Wortley’s first proposed question at the November 2020 hearing was similar to the second Bhogal question that is now proposed. Both of these questions ask whether the prospective juror believes that Black people are “more likely” to be involved in certain criminal activity. I summarized Professor Wortley’s testimony about the utility of this kind of question as a screening tool for racist attitudes and beliefs in R. v. Stanley (Jury Selection), supra at paras. 13-14.
Professor Wortley testified that his first proposed question is a preliminary screening tool. It does not ask the prospective juror about bias but about a statistical relationship between crime and a particular ethnic or racial group … If the prospective juror understood the question as referring to “gun crime”, Professor Wortley testified that it would be accurate to reply “yes”, based on his own statistical research. He elaborated on this point in his report, as follows:
… if asked Question One, I would respond that I do believe that Black people are more involved in some types of crime (street crime and violence), but under-represented in other types of criminal behaviour (corporate and financial-sector crimes). I would base this answer on my knowledge of crime statistics and the criminological literature;
Given the above reasoning, acknowledging that there is some correlation between race and crime is some circumstances, Professor Wortley testified that the first question does little on its own. It requires follow-up questions that inquire into the reason why the prospective juror believes there is a relationship between race and crime, in order to uncover any racist reasons for the juror’s belief in such a relationship. [Emphasis added].
[40] Given Professor Wortley’s well reasoned view, that this question about any correlation between race and crime is not useful on its own in exposing racist beliefs, he recommended two further questions. These further much more nuanced inquiries into beliefs about crime rates and Black people, as recommend by Professor Wortley, are not part of the proposed Bhogal formulation. For this reason, the Bhogal formulation of the question is less useful than the three questions about crime rates and Black people that I previously disallowed in November 2020. There is nothing in Chouhan that suggests support for an inquiry into beliefs about crime rates and certain demographic groups, in furtherance of a challenge for cause into partiality. As a result, I re-affirm the analysis of this issue set out in my November 10, 2020 Reasons. Furthermore, I agree with the Crown that the broad and open-ended question that I have already permitted, asking whether the prospective juror “might … be affected by the fact that [Stanley] is Black”, necessarily captures the kind of bias that the further question about crime rates is also trying to address. For all these reasons, the second question proposed in the most recent Notice of Application is not allowed.
[41] The third question proposed in the September 3, 2021 Notice of Application is the most difficult. It is also set out above at para. 11. It asks prospective jurors if they have beliefs “about people who illegally possess firearms” and whether those beliefs could be set aside. The preamble informs the prospective juror that, “You will hear evidence that [Stanley] illegally possessed two firearms near to the time of the shooting.” Mr. Derstine submitted that this question is analogous to the fourth question permitted by Pomerance J. in R. v. Bhogal, supra at para. 28, asking prospective jurors if they have beliefs “about people who use drugs”. In that case, the preamble to the questions stated that the jurors would “hear evidence about drug use by some individuals, including the accused”. Mr. Derstine submitted that Stanley is not charged with a s. 95 firearms offence and that the proposed question is, therefore, not an offence-based question that would run afoul of the general prohibition against this kind of question in R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97 (S.C.C.). He further submitted that Stanley will make an admission that he was in possession of two handguns (alleged by the Crown to be the two murder weapons), shortly before the murder. As a result of this anticipated admission, Mr. Derstine submitted that possession of firearms has become an “immutable characteristic” of the accused for purposes of this case, analogous to the “characteristics of the accused … such as race, addiction, religion, occupation, sexual orientation or gender expression” referred to in R. v. Chouhan, supra at para. 64. When this proposition was challenged during oral argument, Mr. Derstine made a somewhat narrower argument about the nature of the inquiry that the proposed question is aimed at. He submitted that Stanley’s admitted illegal possession of two handguns is a highly discreditable item of evidence and that prospective jurors should be vetted in order to determine whether they will be able to follow the careful limiting instructions that will be given in the Charge to the Jury about the permissible and impermissible uses of this evidence. Mr. Derstine agreed that the proposed question might have to be re-drafted in order to address this more focused concern.
[42] On behalf of the Crown, Ms. Kellway made her submissions after the lunch recess. She advised that during the recess, she and Mr. Derstine had finally arrived at an Agreed Statement of Fact concerning Stanley’s possession of two different illegal firearms on April 2 and 13, 2017, shortly before the April 15, 2017 homicide. The gun possessed on April 13, 2017 was undoubtedly one of the two murder weapons used on April 15, 2017. This negotiation between the parties had been ongoing for the past year, since I released my judgement admitting evidence of Stanley’s alleged possession of two firearms. In that judgement, the parties were encouraged to reach agreement on admissions that would allow for editing of the most prejudicial aspects of this body of evidence. See: R. v. Stanley (Prior Discreditable Conduct), supra at paras. 29-30 and 41-44. In light of the significant admissions now being made, Ms. Kellway agreed that the proposed challenge for cause question could and should address whether prospective jurors had strong personal views about illegal firearms that would make it too difficult for them to follow instructions about the permissible and impermissible uses of this evidence.
[43] As noted above, this is a difficult issue and its proper resolution is a close judgement call. In my view, the way that the proposed question is framed in the September 3, 2021 Notice of Application (as set out at para. 11 above) is objectionable for a number of reasons. First of all, I agree that technically the question is not the most obvious kind of offence-based challenge, given that Stanley is charged with murder and the question inquires into attitudes about “illegally possessed firearms.” Nevertheless, the question seeks to explore attitudes about a particular kind of dangerous crime that is immediately antecedent to murder, namely, the admitted illegal possession of a particular handgun on April 13, 2017 that was used by someone to commit what was undoubtedly a murder on April 15, 2017. The question, as framed, is subject to many of the same objections as set out in R. v. Find, supra. In particular, prospective jurors who hold strong views about the illegal possession of handguns are not biased or partial for this reason alone. As McLachlin C.J.C. put it, speaking for the unanimous Court in R. v. Find, supra at paras. 64 and 70: “jurors trying any serious offence may hold strong views about the relevant law”; and “crimes commonly arouse deep and strong emotions”.
[44] The second objection to the question, as framed, is that it tends to inquire into how a prospective juror might weigh two particularly important pieces of evidence to be tendered by the Crown at trial. A prospective juror who regards the illegal possession of firearms, especially handguns, as a particularly serious crime may be inclined to give that evidence more weight than a prospective juror who is not particularly concerned about the illegal possession of firearms. This kind of question resembles the American approach to jury selection which has repeatedly been rejected in Canada on the basis that it is “open to abuse by counsel seeking to secure a favourable jury, or to indoctrinate jurors to their views of the case” [emphasis added]. See: R. v. Find, supra at para. 27; R. v. Chouhan, supra at paras. 66 and 120.
[45] The third objection to the question, as framed, is that it does not relate to personal or immutable characteristics of the accused, the witnesses, or the victim. Although the plurality judgement of Moldaver and Brown JJ. in R. v. Chouhan, supra at paras. 61-64 stated that prospective jurors may be questioned “for their opinion as it relates to salient aspects of the case” [emphasis added], they immediately illustrated what they meant in this regard by referring to “characteristics of the accused” such as “race, addiction, religion, occupation, sexual orientation or gender expression.” They also indicated what they meant in one of the immediately preceding paragraphs when they described how they were expanding challenges for cause: “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” [emphasis added]. In other words, the characteristics of the accused, witnesses, or victim that are relevant to inquiries into partiality are analogous to “race” because they give rise to “discrimination”. The concurring majority judgement of Martin J. understood the plurality judgement in this way, stating: “Their guidance on these points reflects a contextualized approach that looks beyond overt and intentional discrimination to structural and unconscious bias that may undermine trial fairness, juror impartiality and equality for accused persons and victims”; and “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”, citing the Court’s earlier decision in Williams [emphasis added]. See: R. v. Chouhan, supra at paras. 110 and 121; R. v. Williams (1998), 1998 782 (SCC), 124 C.C.C. (3d) 481 at para. 49 (S.C.C.) where the unanimous Court held that the s. 638(1)(b) challenge for cause power “should be read in light of the fundamental rights to … equality before and under the law”.
[46] Applying the above principles from Chouhan and Williams, there is nothing about the illegal possession of a handgun (or handguns) that relates to equality or immutable personal characteristics that could form the basis for discrimination. In one of its leading equality rights decisions, Corbiere v. Canada, 1991 63 (SCC), [1991] 2 S.C.R. 203 at para. 13, the Court explained what is meant by “immutable characteristics” that are analogous to “race” (per McLachlin J., as she then was, and Bastarache J., speaking for the majority):
What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 — race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making. [Emphasis added].
[47] In my view, the decision to possess an illegal handgun is not a characteristic “that we cannot change or that the government has no legitimate interest in expecting us to change.” Questioning prospective jurors about their attitudes and beliefs relating to illegal firearms does not relate to partiality due to some kind of discriminatory stereotype that is analogous to race. Pomerance J.’s inclusion of “drug use” in the fourth question that she permitted in Bhogal, on which Stanley relies as the basis for questioning about attitudes towards illegal gun possession, is not an apt analogy. Drug use often overlaps with addiction, disability, and mental health, which appear to have been arguably immutable personal characteristics of the accused (and the witnesses) in that particular case.
[48] For all these reasons, the third proposed question in the September 2021 Notice of Application, as presently framed, is not an appropriate question and it is not permitted. As noted above, Mr. Derstine acknowledged that this question could be re-drafted in a narrower way, focusing on the prospective juror’s ability to follow limiting instructions about the permissible and impermissible uses of the evidence relating to Stanley’s admitted possession of illegal firearms. He ultimately agreed with the Crown’s position in this regard.
[49] This narrower suggested form of the proposed third question, on which the parties agreed, would undoubtedly be an improvement on the original way in which the question was framed. It remains troubling because many criminal trials involve difficult evidence law instructions in the Charge to the Jury, relating to permissible and impermissible uses of a particular item of evidence. There was no authority cited by the parties, or known to me, for using the challenge for cause process in order to vet the jury in relation to their ability to follow a difficult instruction about evidence law. What perhaps makes this case exceptional, and justifies a narrower question in relation to this issue, is that the evidence relating to Stanley’s prior possession of two illegal firearms is a particularly important piece of evidence, it is highly discreditable, it is the subject of an admission, the effect of the admission is that Stanley was undoubtedly in possession of one of the two murder weapons two days prior to the murder, the only live issue in the case is the identity of the two perpetrators, and the limiting instruction is not conceptually or intuitively easy for a lay person to follow. On the other hand, this kind of question, if permitted, would arguably relate more to the analytical and intellectual competence of the prospective juror than it does to the prospective juror’s partiality.
[50] As stated above, this is a close judgement call but out of an abundance of caution I have attempted to draft an acceptable version of the narrower question that was agreed to by the parties (they did not provide a revised draft, although they described its parameters in general terms). I will allow the question, given that the Supreme Court has twice unanimously held that trial judges should “risk allowing what are in fact unnecessary challenges” and “err on the side of caution” in this area, in light of the arguably exceptional circumstances of this case that are set out above. See: R. v. Williams, supra at para. 22; R. v. Find, supra at para. 45; R. v. Chouhan, supra at para. 119. I am also influenced by the fact that we are early in the post-Chouhan period. Trial judges are picking juries under a new process and some experimentation and some variation is inevitable, so that we learn what works from actual experience. In this regard, Durno J. in Douse was willing to experiment with a new multiple choice format for the Parks question, “subject to a re-assessment after it was used in court” [emphasis added]. See: R. v. Douse (2009), 2009 34990 (ON SC), 246 C.C.C. (3d) 227 at para. 223 (Ont. S.C.J.). I will do the same in the present case and learn whether this kind of question is, in fact, helpful.
[51] The re-drafted question is as follows:
The jury at this trial will hear evidence that the accused person, Taufiq Stanley, admits that he was in possession of two illegal firearms shortly before the alleged murder. One of these two firearms was admittedly used by one of the two alleged perpetrators who shot and killed the deceased. I will be giving you careful instructions about the law relating to the permissible and the impermissible uses of this evidence concerning Mr. Stanley’s possession of illegal firearms. You must be willing and able to follow my instructions on this important point of law. Do you have strong personal beliefs or opinions about the illegal possession of firearms such that it would likely be too difficult for you to follow my instructions about this evidence? [my emphasis].
E. CONCLUSION
[52] For all the reasons set out above, Stanley’s revised Notice of Application dated September 3, 2021, seeking to challenge prospective jurors for cause, is allowed in part as follows:
(i) the Opening to the Jury Panel has been revised (as set out above at paras.16 and 25);
(ii) the Preliminary Instructions to the Petit Jury have been revised (as set out above at para. 18);
(iii) the variation on the Parks question that I permitted after the earlier November 2020 hearing, based on Professor Wortley’s evidence and the York University “mock jury” study, has now been further revised (as set out above at para. 20);
(iv) a further question related to unconscious bias has been added (as set out above at para. 20);
(v) a further question related to the prospective juror’s ability to follow instructions about Stanley’s admitted possession of illegal firearms has been added (as set out above at para. 51);
(vi) the first and second questions proposed in the September 3, 2021 Notice of Application have not been allowed.
M.A. Code J.
Released: September 14, 2021
COURT FILE NO.: CR-19-30000281
DATE: 20210914
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TAUFIQ STANLEY
Accused
REASONS FOR JUDGeMENT
M.A. Code J.
Released: September 14, 2021