Court File and Parties

COURT FILE NO.: CR-21-5249 DATE: 20230524 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Shanice Wynter and Kahli Johnson-Phillips Accused

Counsel: Bryan Pillon and Jayme Lesperance, for the Crown Anthony Bryant, Counsel for Shanice Wynter Michael Moon and Nicole DeBellefeuille, Counsel for Kahli Johnson-Phillips

Publication Ban

Pursuant to s. 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict, or until further order of the court.

Ruling on Application – Challenge for Cause

s. 638(1) OF THE CRIMINAL CODE

HEBNER J.

[1] This is an application brought by the defence, under s. 638(1)(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, for an order permitting certain challenge for cause questions, on the ground that there is a reasonable possibility that the prospective jurors will not be indifferent as between the accused and His Majesty the King, in this case.

[2] Counsel have agreed on the need for race-based questions and publicity-based questions. The questions agreed upon, as well as the anti-bias instructions to be given to the jury panel, are attached hereto.

[3] The issues that are not on consent, and were the subject of argument, are:

1. The need for a question respecting partiality towards the police (a Barnes question); and
2. Who will ask the questions?

[4] This is my ruling on those issues.

Barnes Question

[5] In R. v. Chouhan, 2021 SCC 26, the Supreme Court invites trial judges to embark on a robust challenge for cause process that “will require more probing questions than have traditionally been asked to properly screen for subconscious stereotypes and assumptions” (para. 160). At para. 161, Abella J. said that the process will require “new questions, and new formats, with trial judges asking questions that they believe, based on their common sense and judicial experience, will assist in rooting out biases.”

[6] In this case, the defence requests a challenge for cause question contemplated in R. v. Barnes (1999), 46 OR (3d) 116. In that case, the accused was charged with offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The accused sought to ask prospective jurors whether they would be more likely to believe the testimony of a police officer than an “ordinary” person. The trial judge refused the request and the appeal from this decision was dismissed. Moldaver J.A. (as he then was) said that the evidence filed did not meet the threshold test for partiality. To meet the threshold test “it must also be shown that such individuals might not be capable of setting aside their bias on instructions from the judge”. He went on to say, at paragraph 57:

In short, apart from cases where racial prejudice is a live issue, there is simply no evidence from which it can be inferred that potential jurors who hold the police in high regard might not be capable of setting aside their beliefs on directions from the trial judge.

[7] In R. v. Kerr, [1995] OJ No 4535, the accused sought to ask the following question:

Would you be more likely to believe the testimony of a police officer, just because he is a police officer, than you would the testimony of an ordinary person?

[8] Trafford J. allowed a similar question by reason of the particular circumstances of that case as described in paragraph 16 of the ruling:

At para. 16, Trafford J. said:

Absent the recent media coverage of the arrest of the four members of the Metropolitan Toronto Police Service arising from an allegation of fabricating evidence against a suspect in a drug investigation and of the comments by Professor Derschowits, I would be disinclined to permit this challenge for cause. In ordinary cases, where the jury is called upon to assess the credibility of a police officer and of an accused, the comments by the trial judge at the outset of the trial and the instructions given to the jury at the conclusion of the trial would be sufficient to buttress the presumptive effect of the oath and to avoid any such challenge for cause. This case, however, is a different one. The recent coverage on the issue of the integrity of police officers, to the level where it has been the subject of discussion and comments in editorials and, I infer, by ordinary citizens, this coverage, discussion and commentary may have resulted in this panel of prospective jurors including someone who is so strongly affected by his or her beliefs as to render the oath of no effect. There is, in the unique context of this case, a realistic potential for partiality, based upon attitude toward the police. I hasten to add, however, that the attitude may be as much against the police as it may be in support of them. A properly cast question must reflect this reasonable possibility as well.

[9] Trafford J. approved the following question:

Do you have any beliefs or opinions about the reliability of police officers, either in support of or in opposition to them, that would prevent you from judging the evidence in this case without bias, prejudice, or partiality?

[10] In this case, the defendants allege systemic racism on the part of the Peel Regional Police Service. The evidence is in the form of three documents proferred by the defendants and marked exhibits on the pre-trial motions.

1. The first document is a memorandum of Understanding between the Ontario Human Rights Commission and the Peel Regional Police dated October 14, 2020. At page 3 of the report, the following statement appears: “PRP (Peel Regional Police) and PRPSB (Peel Regional Police Services Board) recognizes that systemic racism exists in Peel.” The memorandum goes on to set out proposed remedies to eliminate racial profiling in law enforcement.
2. The second document is an August 3, 2022, Peel Regional Police report on the use of force in 2021. The data on the use of force by the person’s race appears at pages 10 and 11 of the report. It is disclosed that the 2016 Peel Region population is comprised of, among other, 34.9% white persons and 9.9% black persons. In 2021, 31.1% of the police use of force incidents were against black persons and 27.67% were against white persons. The police use of force against black persons was grossly disproportionate to the black population.
3. The data set out in the August 3, 2022, report was the subject of a CBC news article posted August 26, 2022. This news report is the third document. The byline reads “New data presented to the Region of Peel’s Police Services Board Friday shows that Peel Police used about 3.2 times more force on Black people in 2021 than their share of the population”.

[11] The Crown intends to call many Peel Regional Police officers at the trial of this matter. Mr. Moon has advised that he plans to explore the issue of systemic racism with those officers. Mr. Moon and Mr. Bryant have both stated that the defence will be “it wasn’t me”. It is unclear exactly how racism will factor into that defence but that it will be a factor is clear.

[12] There is evidence that systemic racism, particularly against black persons, exists in the Peel Regional Police Services. The media has covered the issue in Peel. The question proposed by the defence focuses on the attitude of prospective jurors toward the police. Much like Trafford J. in Kerr, I find that the media coverage may have resulted in the panel of prospective jurors including someone who is strongly affected by his or her beliefs.

[13] This seems to be the type of case that Moldaver J. had in mind when, in Barnes, he opined that this type of question may be appropriate when racial prejudice is in issue. The media coverage puts the question of partiality in play. This is the case even though the trial is not in Peel but in Windsor. With media coverage available online, one can be exposed to it anywhere.

[14] Like Trafford J., I find that in the unique circumstances of this case, a question to address the potential for partiality either for or against police officers is appropriate. I will permit the following question:

Ask yourself if you have any beliefs or opinions about the reliability of police officers, either in support of or in opposition to them. If you do, would you be able to set those beliefs or opinions aside and decide this case based solely on the evidence at trial and my instructions?

Who Should Ask the Questions?

[15] Mr. Bryant, on behalf of Ms. Wynter, submits that defence counsel should ask the race-based questions as it is the defendants’ challenge for cause and the challenge relates to the personal characteristics of the defendants.

[16] In R. v. Chouhan, 2021 SCC 26 at para. 67, Justices Moldaver and Brown (Wagner C.J. concurring) said:

Bill C-75 directs that the trial judge, rather than a layperson, will be the arbiter of the challenge for cause. As such, in our view, it would be appropriate for the trial judge – as an impartial person adjudicating impartiality – to put the challenge for cause questions to the prospective juror.

[17] In R. v. Smith, 2021 ONSC 6173, the accused was charged with second degree murder. The accused was black. A challenge for cause with race-based questions was allowed. On the point of who should ask the questions, Peterson J. concluded that it should be the trial judge. I take the following from that decision:

• The trial judge has the discretion to determine who will ask the questions. Chouhan does not foreclose the possibility of defence counsel doing so.
• Under the new jury selection regime put in place by Bill C-75, trial judges should decide the appropriate procedure to be adopted based on the particular circumstances of the case.

[18] In R. v. Bhogal, 2021 ONSC 4925, Pomerance J. determined that she ought to ask the challenge for cause questions rather than counsel for the defendant so as to avoid a signal that the potential of racial bias against the accused is primarily the concern of the defence. At para. 48, she said:

When questions are posed by the trial judge, it is clear [to the prospective jurors] that partiality is not a partisan issue. It is not something that is merely desired by the defence, or by the Crown. It is an inherent requirement of the trial process. It is something desired by everyone, whatever their role may be.

[19] In Smith, at para. 35, Petersen J. said:

Moreover, there is value in having the trial judge ask the questions because it communicates to prospective jurors the critical importance that the Court places on taking active steps to ensure that the accused has a fair trial with an impartial jury, given the prevalence of anti-Black racism in society.

[20] I reach the same conclusion as Petersen J. and Pomerance J. I will ask the questions so as to communicate to prospective jurors the critical importance of ensuring an impartial jury in this trial.

[21] The questions, and the anti-bias instructions to the panel, are attached hereto.

Original Signed by “Justice P.L. Hebner” Pamela L. Hebner Justice

Released: May 24, 2023

COURT FILE NO.: CR-21-5249 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – Shanice Wynter and Kahli Johnson-Phillips RULING ON APPLICATION – CHALLENGE FOR CAUSE s. 638(1) OF THE CRIMINAL CODE Hebner J.

Released: May 24, 2023