COURT FILE NO.: 18-13546
DATE: 2021/11/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Steven Constantine Hanssen
Accused
Counsel:
Bailey Rudnick for the Crown
Accused, Self-Represented
Meaghan McMahon, Amicus Curiae
HEARD: November 8, 2021
RULING ON CHALLENGE FOR CAUSE
ANNE LONDON-WEINSTEIN J.
[1] Steven Hanssen is charged with attempt to commit arson and mischief in relation to an incident on November 21, 2018 where he is alleged to have attempted to set fire to a rooming house on Woodroffe Avenue where he and several of his roommates resided.
[2] Mr. Hanssen is self-represented. He elected to be tried by a jury. He sought to challenge the jury for cause in relation to his status as a person on the autism spectrum. I permitted his challenge, although at the time I made this ruling I had a reservation regarding the extent of potential prejudice against persons on the autism spectrum in the community. His application to challenge the jury for cause was brought just before the trial was due to start, so I ruled and indicated I would provide my reasons later. These are my reasons.
[3] Following the direction of the Supreme Court of Canada in R. v. Chouhan, 2021 SCC 26, 401 C.C.C. (3d) 1, I adopted a liberal approach and permitted the challenge. In the single panel from which this jury was selected, some potential jurors indicated that the fact that the defendant was on the autism spectrum would potentially impact their ability to try the case fairly.
[4] These are my reasons for ruling in favour of granting the challenge for cause and a brief description of the procedure employed in posing the question to potential jurors.
Background: Changes to Jury Selection:
[5] Peremptory challenges to the jury have been eliminated through amendments to the Criminal Code, R.S.C. 1985, c. C-46. In Chouhan, the Supreme Court affirmed that the elimination of peremptory challenges does not violate constitutional principles. The change was determined to be procedural, operating retrospectively.
[6] There are other changes to the jury selection regime. A challenge for cause is now to be decided by the trial judge instead of the lay triers, as in the past. The ability to stand aside jurors has been expanded to allow for a stand aside "where necessary to maintain public confidence in the administration of justice."
[7] The Chouhan court was divided on many of the issues. The judgment by the court consists of five separate sets of reasons. A majority of the judges endorsed a more liberalized approach to the challenge for cause, albeit one that respects juror privacy.
[8] Following Chouhan, I charged the jury panel on the concept of conscious and unconscious bias. I related the issue of conscious and unconscious bias to the fact that they would be asked a question related to their ability to try the case fairly and set aside any negative beliefs they may hold regarding persons who are on the autism spectrum. I warned them about the danger of relying on prejudices or stereotypes that could affect their decision in this case, and pointed out that if selected they would decide the case without resort to bias related to attitudes or stereotypes in relation to persons on the autism spectrum. Chouhan directs that an instruction be given related to the specific biases and stereotypes that might arise in a given case: at para. 56.
[9] The threshold for raising a challenge for cause is not an onerous one. Mr. Hanssen must merely demonstrate a reasonable possibility that bias or prejudicial attitudes exist in the community, with respect to relevant characteristics of the person charged, or the complainant, which could taint the impartiality of jurors: Chouhan, at paras. 61-62, 64, and 66.
[10] The Supreme Court noted that in most cases, expert evidence will not be required. Challenges for cause must be available wherever the experience of the trial judge, in consultation with counsel, dictates that, in the case before them, a realistic potential for partiality arises.
[11] A trial judge has significant discretion to determine how and under what circumstances the presumption of partiality may be displaced, and how far the parties may go in the questions that are asked on a challenge for cause: see R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 24; R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128, at para. 55; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 45, as cited in R. v. Bhogal, 2021 ONSC 4925, at para. 19.
[12] Like Goodman J. in R. v. Martin, 2021 ONSC 5333, I found that Chouhan endorses an expansive approach to the challenge for cause question. As noted at para. 16 of Martin, in Chouhan, Martin J., writing on behalf of three judges, wrote at paras. 119 and 121:
[119] With respect to challenges for cause, I agree with my colleagues Moldaver and Brown JJ. that R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), does not describe the only questions available on a challenge for cause. Indeed, trial judges are afforded the latitude to depart from the Parks-style formula where appropriate to ensure juror impartiality. This Court has encouraged trial judges to "err on the side of caution and permit prejudices to be examined" through the challenge for cause process (Williams, at para. 22; see also Parks, at p. 335, and R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 45).
[121] Ultimately, in deciding whether to allow challenges for cause and in settling on the form of permissible questioning, courts must be allowed to exercise their discretion in accordance with the wording and purpose of s. 638(1)(b), the accused's right to a fair and impartial tribunal, and Charter values, including substantive equality (Williams, at para. 49).
[13] The case before me involved a self-represented individual who had a clear idea of how he wished to conduct his case. He expressed a strong preference for minimal judicial involvement in the challenge for cause process. In the particular circumstances of this case, I permitted Mr. Hanssen and the Crown to take turns asking the question. I am aware that in Chouhan, the court indicated that it would be appropriate that the trial judge pose the question.
[14] In Martin, Goodman J. noted the comments of Moldaver J. at para. 67 of Chouhan:
We raise two final points regarding challenges for cause. First, Bill C-75 directs that the trial judge, rather than a layperson, will be the arbiter of the challenge for cause (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. Secondly, in trials involving challenges for cause, trial judges should as a rule exercise their power to exclude jurors from the court room during the selection process, pursuant to s. 640(2) of the Criminal Code.
[15] I found that in this particular case it would not be appropriate for me to pose the question, given Mr. Hanssen's concerns. In exercising my trial management powers in the way that I did, I attempted to maintain the appearance of objective neutrality generally and specifically in the eyes of Mr. Hanssen whose trial fairness rights are at issue. In Martin, Goodman J., found that a trial judge has the discretion to adopt the approach that is best suited to ensure justice is promoted within a given trial. Goodman J. wrote at paras. 29-30 of Martin:
In a similar vein, I do not read those comments as mandating the trial judge pose the questions. One should still bear in mind the dangers or risks inherent when the judge descending into the arena, assumes the role of inquisitor as well as trier. In my opinion, it is incumbent on the judge, as any trier, to be focused on the evidence and make a determination rather than being implicated in the elicitation of the evidence. In our adversarial system of justice, the trier generally is to stay out of the figurative arena where possible. The goal is to preserve as much as possible the appearance of objective neutrality, free from bias: R. v. Hamilton, 2011 ONCA 399.
[16] Goodman J. also found that the maintenance of the appearance of objective neutrality was best addressed and likely eliminated with counsel posing the question.
[17] In Martin, Goodman J. found no harm in permitting defence counsel to ask all of the questions, given that jurors would be brought in on an individual basis. In the appropriate case, he found that both the Crown and the defence could share that task: at para. 32.
[18] In this case, Mr. Hanssen is an individual with Asperger's Syndrome. He was strongly opposed to my involvement in posing the question. His views are not determinative of the issue, however I did give them consideration.
[19] In my view, the promotion of fairness in the selection process was enhanced by permitting Mr. Hanssen to question jurors himself. He alternated asking the question with crown counsel.
[20] Finally, I had the jurors brought in individually to be challenged. As in Martin, I did not permit jurors to view the specific question posed in advance. I did advise them in my general remarks to the jury panel that they would be asked a question and that it related to the ability to judge fairly, specifically in light of the fact that Mr. Hanssen is on the autism spectrum. However, the actual question posed, which was more nuanced, was not provided to them. Again, this was done in collaboration with counsel and Mr. Hanssen. In this case, Mr. Hanssen preferred that the question not be provided to the panel in advance and I saw no reason to depart from his reasoning that the spontaneous nature of the question may prompt a truthful answer. I note that Goodman J., also did not provide the question in advance in Martin.
Anne London-Weinstein J.
Released: November 24, 2021
COURT FILE NO.: 18-13546
DATE: 2021/11/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
– and –
Steven Constantine Hanssen Accused
RULING ON CHALLENGE FOR CAUSE
Anne London-Weinstein J.
Released: November 24, 2021