WARNING: THIS IS A TRIAL UNDER THE YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

COURT FILE NO.: CR-21-248 (Hamilton)

DATE: 2021-10-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

R.O.

The Honourable Justice Catrina Braid

Brett Moodie and Lisa Ellins,

Counsel for the Crown/Respondent

Lindsay Daviau and John Rosen,

Counsel for the Applicant

HEARD: August 16 and 17, 2021

RULING ON JURY SELECTION PROCEDURES

I. OVERVIEW

[1] R.O. is a young person who is charged with second-degree murder and has elected trial by judge and jury. The trial is scheduled to take place before me commencing November 8, 2021, for four weeks.

[2] R.O. has brought an application for directions related to the jury selection procedures. In these reasons, I shall refer to R.O. as “the applicant”. In order to comply with the Youth Criminal Justice Act, S.C. 2002, c. 1, I have used initials in these reasons to refer to the applicant and other witnesses. When questions are asked and instructions are given to the jury, I will use full names.

[3] For the reasons set out below, the following jury selection procedures shall be implemented in this case:

1. There will be liberal pre-screening of prospective jurors under s. 632(c) of the Criminal Code, R.S.C., 1985, c. C-46, including screening of those who are unable to preside due to the nature of the offence. If there are questions regarding the person’s employment (for example, if they are retired), counsel should raise those questions when the person initially comes to the front of the courtroom.

2. The jury panel will be advised of the health and safety protocols in place due to the COVID-19 pandemic.

3. In my opening remarks to the jury panel, I will provide an instruction regarding the applicant’s status as a young person under the Youth Criminal Justice Act.

4. The jury panel will receive a general anti-bias instruction that includes instruction on the concept of unconscious bias. These instructions will be repeated and expanded in the opening to the jury, once selected.

5. Following the general anti-bias instructions, the jury panel will receive instructions to explain the process that will occur in the courtroom, including the challenge for cause.

6. Questions on the challenge for cause will address the potential for bias as it relates to pretrial publicity. The challenge questions will be focused, and will not include an open-ended basket question.

7. Jurors and prospective jurors will be excluded during the challenge for cause. Each prospective juror will enter the courtroom individually to be questioned.

8. The questions will not be given to prospective jurors in advance.

9. As the trial judge, I will decide the challenge for cause. There may be a rare situation where counsel will be requested to make submissions.

10. I will ask the challenge questions.

11. The stand aside power may be used to address potential bias or other grounds of partiality. Once a juror is found to be acceptable after the challenge for cause, I will turn to counsel to ask if there are any submissions. If counsel do not wish to make submissions, the prospective juror shall be sworn as a juror. If counsel wish to make submissions pursuant to s. 633 of the Criminal Code, I will invite the prospective juror to leave the courtroom and then invite the parties to make submissions or propose defined questions, where appropriate. There must be some objective rationale for standing the juror aside. If the prospective juror is stood aside, reasons will be given. The prospective juror will then be invited back into the courtroom and may be asked further questions. They will either be directed to stand aside or be sworn as a juror to try the case.

[4] In these reasons, I will provide an overview of the allegations and the pretrial publicity. Next, I will briefly summarize the recent changes to the jury selection procedure. Finally, I will provide my analysis and reasons for each step of the jury selection procedure that is set out above.

II. THE ALLEGATIONS AND PRETRIAL PUBLICITY

[5] The applicant, R.O., and the deceased, D.S., were grade nine students at Sir Winston Churchill Secondary School in Hamilton. D.S. was bullied at school by another male student. The applicant and D.S. did not know each other prior to the incident, and the applicant was not involved in the bullying.

[6] On October 7, 2019, there was a confrontation across the street from the high school. After this confrontation, D.S. pursued two boys to an area behind the high school, one of whom was the applicant’s brother, B.D. The applicant ran toward the scene with a large knife. He eventually located D.S. and his brother behind the school.

[7] The applicant stopped, leaving his shoes and a backpack on the sidewalk. He approached D.S. from behind and stabbed D.S. once in the back with a large hunting knife.

[8] D.S. ran a few yards, collapsed and died shortly thereafter. D.S.’s mother saw these events from her car.

[9] The applicant fled and hid the knife under a bush. The knife was recovered.

[10] The applicant and his brother, B.D., were arrested on October 7, 2019, a few blocks away from the scene. Both were charged with first-degree murder. In August 2020, the charge against B.D. was withdrawn at the request of the Crown. In January 2021, the applicant was ordered discharged on the charge of first-degree murder and ordered to stand trial for second-degree murder.

[11] The death of D.S. and the arrest of the applicant attracted intense media attention in local and national headlines. Information about this case has been reported in all forms of news media, including news articles, social media, YouTube, and other Internet platforms. The intense media attention spurred a public outcry to end bullying in schools. Many of the articles contain interviews with witnesses, including inaccurate information from various sources regarding the homicide.

III. RECENT CHANGES TO THE JURY SELECTION PROCEDURE

[12] Recent amendments to the Criminal Code have changed jury selection procedures. The trial judge is now fully invested in the process of the selection of the jury.

[13] The Supreme Court of Canada addressed many of the changes in R. v. Chouhan, 2021 SCC 26. Five sets of reasons and different practical perspectives have left much of the processes to the trial and appellate courts below to settle in the individual cases before them. While the Supreme Court in Chouhan was divided, the majority endorsed anti-bias instructions and a modestly liberalized approach to the challenge for cause, albeit one that respects juror privacy. The ultimate goal is to secure an impartial and unbiased jury.

[14] Following Chouhan, decisions were released by my colleagues Pomerance J. in R. v. Bhogal, 2021 ONSC 4925, and Goodman J. in R. v. Martin, 2021 ONSC 5333. Those decisions provide practical directions regarding how the amendments to the jury selection process are to be implemented. I agree with much of the analysis set out in those rulings.

IV. ANALYSIS

1. Liberal Pre-Screening of Prospective Jurors Under 632(c)

[15] At any time before the commencement of a trial, the judge may order that any juror be excused from jury service for reasons of personal interest in the matter to be tried; relationship with the judge, witness or other participants; personal hardship; or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused: see s. 632(c) of the Criminal Code.

[16] In the opening address to the jury panel, the usual general instructions shall be read out to the entire panel, including the well-established factors that may make a potential juror ineligible or unsuitable to serve in this case. I will ask them to advise me when they come to the front of the courtroom if any of the following applies to them: knowledge of witnesses or other participants, knowledge of the case, prior involvement in or knowledge of similar offences, citizenship requirement, ability to hear, understanding the language of the trial, juror health, or personal hardship.

[17] Counsel shall provide a list of potential witnesses or others whose names may be mentioned, as well as any places that will be central to the case. I will read out those names and will also direct that a copy of the list is placed on the table near the microphone so that the jury panel members can review the list.

[18] I recognize that sometimes, the grounds for requesting to be excused involve personal issues that they would prefer not to be said in open court. A pad and pen will be available so that they can write out the reason and provide me with the note when they come to the front of the courtroom. They will be told that, once I read the note, it may be that the note they provide to me will be shown to Crown counsel, defence counsel and the accused Mr. O. if they wish the opportunity to read it themselves. I can then decide if the grounds in the note would excuse them as a juror in this case.

[19] If there are questions regarding the person’s employment (for example, if they are retired), counsel should raise those questions when the person initially comes to the front of the courtroom.

[20] There shall be liberal pre-screening of prospective jurors under s. 632(c) of the Criminal Code. When each prospective juror enters the courtroom, I will ask each them if there is any reason they cannot serve. If they say no, then the challenge for cause process will begin.

2. COVID-19 Instructions

[21] The jury panel will be advised of the health and safety protocols in place due to the COVID-19 pandemic. I will provide the instructions regarding COVID-19 from the Canadian Judicial Council model jury instructions, with modifications tailored to this specific case and to the protocols in place at the Hamilton Sopinka courthouse. Once the jury is selected, I will provide further instructions regarding COVID-19 health and safety protocols.

3. YCJA Instruction

[22] Defence counsel has suggested that an instruction be given to the jury regarding the applicant’s status as a young person. I will provide the following instruction in my opening remarks to the jury panel:

Mr. O. is charged as a young person under the Youth Criminal Justice Act or YCJA. The YCJA governs how Canada deals with young persons ages 12 to 17 who are in trouble with the law. This Act protects the rights of youth, including the right to privacy. Earlier this morning, I made publication bans in this case. It is against the law for anyone to publish the name of a young person charged with or found guilty of an offence, or any information that could let the public identify the young person. In addition, it is against the law for anyone to publish the name of a young person if it would identify them as having been the victim of, or as having appeared as a witness in connection with, an offence alleged to have been committed by a young person. In this case, that means that no one can publish Mr. O’s name, the name of the deceased or any witness who is 17 years of age or younger.

At times during this trial, you may hear me, the Crown or defence counsel referring to Mr. O. as “the young person” rather than using the words “the accused”. When an individual is charged under the YCJA, they are usually referred to as the young person.

4. Anti-Bias Instructions

[23] The clear majority in Chouhan directed that jurors be instructed as to the effects of bias, prejudice and/or stereotypes, both conscious and unconscious. The Supreme Court of Canada recognized that unconscious bias in individuals may result in preconceived notions that they may not be aware of, and that jurors ought to be alerted and focused on the potential for such bias or stereotyping. Anti-bias instructions are a useful tool to achieve juror impartiality. The anti-bias instructions ought to come early, before the presentation of evidence, and at any other time the judge deems appropriate, including the opening instructions to the jury panel: see Chouhan, at para. 53.

[24] The parties agree that the court should give a general anti-bias instruction. I agree that this is appropriate. The parties also agree that there are no characteristics in this case that would require specific anti-bias instructions. Therefore, the jury panel will receive a general anti-bias instruction that includes instruction on the concept of unconscious bias.

[25] I will therefore provide the following instruction in my opening remarks to the jury panel:

I have already mentioned to you that the proper administration of justice requires jurors to approach their task with an open mind. They must decide cases in an unbiased and impartial manner, and without preconceived ideas. For this reason, jurors are asked to swear an oath or make an affirmation to give a true verdict based on the evidence. That is why jurors cannot have a personal interest in the case they are deciding and cannot have a close relationship with any of the parties.

At some level, we all make assumptions and have beliefs, perceptions, and stereotypes about certain things or certain types of persons. These beliefs, assumptions, perceptions, and stereotypes are often based on factors such as a person’s gender, race, ethnicity, religion, sexual orientation, age or employment status. I will refer to them simply as negative feelings and assumptions. Sometimes we are aware of these negative feelings and assumptions in ourselves or in others. However, there are other negative feelings and assumptions based on these personal characteristics that are unconscious ones. We may have them without being fully aware of them.

Our negative feelings and assumptions about personal characteristics like race or gender, whether we are aware of them or not, can affect how we believe or disbelieve things we see or are told, or how we react to those things. All human beings experience unconscious biases, but these biases can be overcome through self-reflection and introspection.

If you are chosen as a juror in this case, you will have to make a conscious effort to resist, and help other jurors to resist, jumping to conclusions based on negative feelings or assumptions about gender, race, ethnicity, religion, sexual orientation, age or employment status. Our system of justice is premised on the belief that once you recognize a negative feeling or assumption, you can and will set it aside. Your sworn duty as a juror will be to decide this case with an open mind based only on an impartial assessment of the evidence received in the courtroom.

Impartiality requires active work. It requires that you be aware of your own personal beliefs and experiences, and that you be equally open to the views of others. If you are selected as a juror, it will be your duty to identify and set aside any prejudices or stereotypes that might affect your decision in this case.

[26] I will also provide the following instruction to the jury once selected, which expands on the instructions given earlier:

As judges we must, at all times, be impartial, which means that we must approach the trial with an open mind and without preconceived ideas. Approach your duties without sympathy or prejudice and be prepared to give judgment only on the evidence heard in this courtroom and upon the law as I give it to you. You must calmly and dispassionately consider the whole of the evidence in the light of my instructions before giving a verdict.

You will appreciate that since you are fulfilling an important public duty as judges, it is important that every member of this community be able to see that you have properly discharged your obligations and that there has been a fair and unbiased trial.

In my opening remarks to the jury panel, I stressed the importance of jurors approaching their task with an open mind and deciding cases in an unbiased and impartial manner. At some level, we all make assumptions and have beliefs, perceptions, and stereotypes about certain things or certain types of persons. We may be aware of some of these biases, but unaware of others. If you are chosen as a juror in this case, you will have to make a conscious effort to resist, and help other jurors to resist, jumping to conclusions based on both conscious and unconscious negative feelings or assumptions about gender, race, ethnicity, religion, sexual orientation, age or employment status. Your sworn duty as a juror will be to decide this case with an open mind based only on an impartial assessment of the evidence received in the courtroom.

I won’t repeat what I said again. But I will mention three things you can do to help you identify and set aside bias:

1. Throughout the course of this trial, you will be invited by me and by counsel to make use of the same common sense that you use every day in deciding the issues in this case, including whether witnesses know what they are talking about and are telling the truth. However, you must be willing to carefully examine the particular “common sense” that you are relying on in order to ensure that it is not based on biases or prejudices about certain people or certain groups, including unconscious biases that you may not even be aware of. Resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies or stereotypes.

2. When you deliberate at the end of the trial, take the time you need to reflect carefully and thoughtfully about the evidence. Think about why you are making the decision you are making and examine it for bias. Reconsider your first impressions of the people and the evidence in this case. If the people involved in this case were from different backgrounds, for example, richer or poorer, more or less educated, older or younger, or of a different gender, gender identity, race, religion, or sexual orientation, would you still view them, and the evidence, the same way?

3. Listen to one another. One of the great strengths of our system of trial by jury is that it brings together twelve lay persons who come from different backgrounds and who will view this case in light of their own experiences, insights and assumptions. Listening to different perspectives may help you to better identify the possible effects of hidden biases. Help one another to identify and resist the effect of unconscious bias.

5. Introduction to the Courtroom Process

[27] Following the general anti-bias instructions, I will provide the following instructions to the jury panel to explain the process that will occur in the courtroom:

Your jury panel numbers have been randomly drawn from the drum. You will each enter the courtroom one at a time, and will come to the front to speak to me. At that time, you will have an opportunity to tell me if there is any reason that may prevent you from sitting as a juror. I will then ask you some questions relating to things you might have read or seen in the media about this case. It is very important that you do not attempt to conduct any research about this case or speak to fellow jury panel members, friends or families about this case. It is essential that jurors in this case keep an open mind and decide this case solely on the evidence that you hear and see in the courtroom and the law as I explain it to you.

6. Challenge for Cause Questions

[28] Under section 638(1)(b) of the Criminal Code, a party is entitled to challenge for cause on the ground that a juror may not be impartial. The test is whether there is a realistic potential that the jury pool may contain people who are not impartial in the sense that, even after receiving proper instructions from the trial judge, they may not be able to set aside their prejudice and decide fairly between the Crown and the accused: see R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 31.

[29] The challenge for cause can be directed at any personal characteristics that might trigger bias, not just race. The onus to establish the need for a challenge is not onerous. Expert evidence is not necessarily required: see Chouhan, at paras. 61 and 62.

[30] In this case, the parties agree that there ought to be a challenge for cause based on pretrial publicity and they have agreed on the preamble. However, they disagree in terms of the scope and wording of the questions that can be asked.

[31] The following is the preamble and questions proposed by the defence:

QUESTIONS FOR PROSPECTIVE JURORS PROPOSED BY DEFENCE

PREAMBLE

In this case, the accused, R.O. and the deceased D.S. were Grade 9 students at Sir Winston Churchill Collegiate in Hamilton. The case attracted considerable media attention and has been the subject of many news reports and postings on social media. The news reports also discuss bullying in schools, which may or may not apply in this case.

In deciding whether Crown counsel has proved the charge of second-degree murder against R.O., a juror must be able to judge the evidence without bias, prejudice, or partiality. In other words, a juror must be ready, willing and able to decide the case with an open and fair mind, free from outside influences or concerns, solely upon the evidence heard at trial and the instructions of the trial judge, in accordance with the juror’s oath or affirmation.

As part of the jury selection process, you will be asked a series of questions. Every prospective juror will be asked the same questions. Please answer fully and frankly to the questions asked. If you do not understand a question or require clarification, please feel free to ask.

1. Have you seen, heard or read anything about this case, or about the accused R.O., in any form of media, for example, radio, television, the internet, newspapers or magazines, or through discussions with others, including discussions on social media, at school or at work?

2. Whether or not you may have seen, heard, read, discussed or communicated, have you formed an opinion about the case or about the possible guilt or innocence of R.O.?

3. If you have knowledge of the case, or have formed an opinion about it, how difficult would it be for you to set aside your knowledge or opinion and decide this case solely on the evidence at trial and on the legal instructions the judge will provide to the jury?

4. If selected as a juror, are you prepared to follow all of the trial judge’s instructions regarding the case, and in particular a direction (1) not to conduct online research about the case, (2) not to read or listen to news reports, other media and internet reports or comments about the case, and (3) not to discuss the case with anyone, including friends and family members, other than your fellow jurors?

5. Is there any reason you can think of that might prevent or make it difficult for you to act as a juror in this case?

[32] The challenge for cause can be asked when there is a realistic potential for partiality. The trial judge has broad discretion to determine how the challenge for cause should proceed, and how far parties may go in asking questions. The court must balance the competing interests of an accused person’s right to a fair trial by an impartial jury while protecting the privacy interests of prospective jurors: see Chouhan, at paras. 62 and 66.

[33] To ensure that the applicant receives a fair trial, a robust challenge for cause is necessary to address concerns about juror partiality and bias based on news and social media surrounding this case. Questions on the challenge for cause will address the potential for bias as it relates to pretrial publicity of the allegations and whether or not a prospective juror is able to set that information and/or beliefs aside.

[34] The Supreme Court of Canada explicitly declined to adopt the kind of highly intrusive questioning for challenges for cause that can be seen in the United States: see Chouhan, at para.121.

[35] The challenge questions must be focused. With respect to proposed question #3, I find that the question should be more definitive to require a yes or no answer, or a brief explanation. The question should be rephrased as follows: “If you have knowledge of the case, or have formed an opinion about it, would you be able to set aside your knowledge or opinion and decide this case solely on the evidence at trial and on the legal instructions the judge will provide to the jury?” Crafting a question that is more focused will minimize any intrusion on the juror’s privacy while still ensuring a fair trial for the applicant.

[36] Question #5 has been described as a “basket question”. When proposing challenge for cause questions, counsel must demonstrate that there is a reasonable possibility of bias or prejudicial attitude that warrants a specific challenge. In this case, the reasonable possibility of bias arises because of the pretrial publicity.

[37] There are many safeguards built into the jury selection process. In addition, the court will conduct liberal pre-screening of potential jurors pursuant to s. 632(c) of the Criminal Code and there will be opportunities for jurors to raise any other issues. I find that the basket question is open-ended and is not sufficiently focused on the issue that is the basis for the challenge, namely pretrial publicity. As such, it unnecessarily infringes on the prospective jurors’ privacy.

[38] Therefore, question #3 will be replaced by the question set out in italics above, and question #5 will be removed. Otherwise, the preamble and questions will follow the wording as proposed by defence.

7. Jurors and Prospective Jurors Excluded During Challenge for Cause

[39] As a rule, prospective jurors should be subject to the challenge for cause individually. Trial judges should 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. The purpose of this expanded procedure is not 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: see Chouhan, at para. 67.

[40] The jurors will be excluded during questioning, and each prospective juror will enter the courtroom individually to be questioned. This is particularly important in this case because of the pretrial publicity. In response to the challenge questions, prospective jurors may tell the court what they have heard about the case and their opinion about it, which would then taint any other panel members or jurors who are present.

8. Questions Will Not Be Given to Prospective Jurors in Advance

[41] The parties agree that the questions should not be given to prospective jurors in advance.

[42] In Bhogal, Pomerance J. ordered the questions be distributed to the potential jurors in advance, for the purpose of taking time and engaging in self-examination and reflection. However, I agree with and adopt two concerns expressed by Goodman J. in Martin, at para. 41: 1) There may be a prospective juror who has a conscious bias and wants to avoid giving a candid answer, or a prospective juror who does not want to serve. Once alerted to the questions in advance, they will have more time to ruminate and consider an effective answer; 2) A spontaneous response is likely to produce a more accurate answer. Prospective jurors are witnesses during the challenge for cause process and, as with other witnesses, they should not be given the questions in advance.

[43] It is preferable to get a spontaneous response. The questions will not be provided to prospective jurors in advance.

9. Trial Judge Will Decide the Challenge for Cause

[44] As the trial judge, I will be the arbiter of the challenge for cause, pursuant to s. 640(1) of the Criminal Code. There may be a rare situation where counsel will be requested to make submissions.

10. Trial Judge Will Ask the Challenge Questions

[45] The applicant submits that the trial judge should not ask the challenge for cause questions, since those questions are designed to elicit evidence that the judge will use to decide the challenge for cause. Defence counsel states that, if the trial judge asks the challenge for cause questions, they will be cut out of jury selection. I do not accept this submission.

[46] The parties in criminal trials have many opportunities to raise and address concerns about juror partiality and bias. First, counsel can assist trial judges to craft jury charges and mid-trial instructions that caution against the risk that bias, racial or otherwise, will taint the integrity of the jury's deliberations. Second, the challenge for cause provisions under s. 638 of the Criminal Code continue to provide a robust mechanism for accused persons to raise concerns about a potential juror's partiality. Counsel play a significant role in crafting the questions regarding the challenge for cause. Third, the amended stand aside power under s. 633 of the Criminal Code further accounts for any gap that may have been left by the abolition of peremptory challenges. Counsel have the right to make submissions regarding the exercise of the stand aside power: see Chouhan, at para. 47.

[47] In Chouhan, the Supreme Court of Canada stated that 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: see Chouhan at para. 67.

[48] I agree with and adopt the reasoning of Pomerance J. in Bhogal. There is a certain symmetry in the notion of an impartial person adjudicating impartiality. When questions are posed by the trial judge, it will convey to the prospective juror that impartiality is not something that any particular party wants, but that it is an inherent requirement of the trial process. It is something desired by everyone: see Bhogal, at para. 48.

[49] Therefore, I will ask the challenge questions.

11. The Stand Aside Power

[50] Section 633 of the Criminal Code permits a juror to be stood aside. A trial judge, whether on her own initiative or at the request of counsel, may stand a prospective juror aside to maintain public confidence in the administration of justice. There must be an objectively reasonable justification for the stand asides.

[51] This juror is not excused and may later be called upon for selection if the panel is otherwise exhausted: see s. 641(1) of the Criminal Code.

[52] 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. Independence and impartiality are important to maintain public confidence in the administration of justice. Stand asides provide a means to exclude jurors who the trial judge believes might be partial but have nevertheless survived the challenge for cause: see Chouhan, at paras. 68 and 70.

[53] Through their life experience, lawyers and judges can readily identify prospective jurors who are clearly not well-suited to jury service. Peremptory challenges were a useful means of eliminating those prospective jurors from the 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: see R. v. Campbell, 2019 ONSC 6285, at para. 35.

[54] The stand aside power may be used to address potential bias or other grounds of partiality. It will not, however, be used as a tool by which to secure a representative jury. It also cannot be used as a pseudo-peremptory challenge.

[55] The trial judge can stand jurors aside only when necessary to maintain public confidence in the administration of justice. Public confidence is assessed from the perspective of a reasonable and informed person who, in the context of jury selection, will know of the many safeguards that go into 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 in 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, public confidence will not easily be lost in the jury selection process: see Chouhan, at para. 72.

[56] In this case, once a juror is found to be acceptable after the challenge for cause, I will turn to counsel and ask if they wish to make submissions. If counsel do not wish to make submissions, the prospective juror will be sworn as a juror.

[57] If counsel wish to make submissions, I will invite the prospective juror to leave the courtroom while I hear submissions from the parties. I may invite the parties to make submissions or propose defined questions, where appropriate. There must be some objective rationale for standing the juror aside. If I determine that the prospective juror should be stood aside, reasons will be given. The prospective juror will then be invited back into the courtroom and may be asked further questions. They will either be directed to stand aside or be sworn as a juror to try the case.

V. CONCLUSION

[58] These reasons have set out the directions relating to jury selection procedures to be implemented in this trial. A robust challenge for cause process, the use of the stand aside provisions guided by the general principles set out in Chouhan, and the other procedures set out above will safeguard the goal of an impartial and unbiased jury.

Braid J.

Released: October 7, 2021

COURT FILE NO.: CR-21-248 (Hamilton)

DATE: 2021-10-07

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

R.O.

RULING ON JURY SELECTION PROCEDURES

Braid, J.

Released: October 7, 2021