COURT FILE NO.: CR-21-174 DATE: 20230623

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Applicant – and – Nathaniel Veltman Respondent

Counsel: Fraser Ball and Jennifer Moser, for the Provincial Crown Sarah Shaikh and Lisa Matthews, for the Federal Crown

Christopher Hicks and Peter Ketcheson, for the Respondent

HEARD: January 23, 24, 25, 26, 27, 2023, February 1, and 2, 2023

RULING ON CHALLENGE FOR CAUSE

POMERANCE J.

[1] Crown and defence agree that there must be screening of prospective jurors to ensure that the integrity of the fact-finding process is not harmed by the introduction of extrinsic information or contaminated by the influence of conscious and/or unconscious bias.

GENERAL PRINCIPLES

[2] In R. v. Chouhan, 2021 SCC 26 (“Chouhan”), the Supreme Court of Canada affirmed the need for robust measures designed to screen out partiality. The court endorsed a flexible approach, that allows the trial judge to tailor the challenge for cause to meet the particular circumstances of the case.

[3] In Chouhan, Moldaver and Brown JJ. offered the following comments regarding challenge for cause at paras. 61, 62, 64 and 66:

…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.

While widespread bias cannot be presumed in all cases, the parties do not face an onerous burden for raising a challenge for cause. The accused person or the Crown must merely demonstrate a reasonable possibility that bias or prejudicial attitudes exist in the community, with respect to relevant characteristics of the accused or victim, and could taint the impartiality of the jurors. In most cases, expert evidence will not be necessary: 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. The trial judge necessarily enjoys significant discretion to determine how and under what circumstances the presumption of impartiality will be displaced, and how far the parties may go in the questions that are asked on a challenge for cause (Spence, at para. 24; R. v. Williams, [1998] 1 S.C.R. 1128, at para. 55; Find, at para. 45).

Appropriate questions on a challenge for cause will ask prospective jurors for their opinion as it relates to salient aspects of the case. For instance, counsel may point to characteristics of the accused, complainant or victim, such as race, addiction, religion, occupation, sexual orientation or gender expression, and ask prospective jurors whether, in light of such characteristics, they would have difficulty judging the case solely on the evidence and the trial judge’s instructions, because they hold an opinion about such characteristics that on careful reflection, they do not believe they could put aside. Before posing that question to jurors, trial judges ought to call each individual juror’s attention to the possibility of unconscious bias and impartiality. It should be stressed that the mischief is not in acknowledging a difficulty setting aside unconscious bias, but in failing to acknowledge such a difficulty where one exists.

The Parks question itself permits only limited incursions into juror privacy, and further developments in the challenge for cause process must continue to balance “the accused’s right to a fair trial by an impartial jury, while also protecting the privacy interests of prospective jurors” (Williams, at para. 53 (emphasis added); Spence, at para. 24; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 30). It is for this reason that the jurisprudence has long resisted the temptation to move the Canadian law regarding juror privacy closer to that of the U.S. system. In concluding that it is “unclear that the [U.S.] system produces better juries than the Canadian system”, this Court has pointed to the high degree of protection of and respect for juror privacy, and our concern to prevent “abuse by counsel seeking to secure a favourable jury, or to indoctrinate jurors to their views of the case” (Find, at para. 27; see also, R. v. G. (R.M.), [1996] 3 S.C.R. 362). Any future developments should account for these precedents.

[4] Martin J. also commented at paras. 119-121 on the need to consider challenges that go beyond the narrow confines of the Parks question, though she disagreed with placing any limits on the process at this point in time:

R. v. Parks (1993), 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).

It is true that when questioning prospective jurors on their biases, the privacy interests of those persons must be respected (Kokopenace, at para. 74, per Moldaver J.; at para. 156, per Karakatsanis J.; and at para. 227, per Cromwell J. (dissenting but not on this point)). With good reason, this Court has explicitly declined to adopt the kind of highly intrusive questioning for challenges for cause that can be seen in the United States (Find, at para. 27). Yet privacy is just one interest to be weighed against others (V. MacDonnell, “The Right to a Representative Jury: Beyond Kokopenace” (2017), 64 Crim. L.Q. 334, at p. 346).

This Court has also warned against setting a threshold for accessing challenges for cause that “would catch only the grossest forms of racial prejudice” (Williams, at para. 39). Indeed, some scholars question whether the Parks formula captures anything beyond “the grossest forms of racial prejudice”, and whether it fosters the kind of introspection and self-consciousness it should (see K. Roach, Canadian Justice, Indigenous Justice: The Gerald Stanley and Colten Boushie Case (2019), at p. 92; D. M. Tanovich, “The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System” (2008), 40 S.C.L.R. (2d) 656, at p. 683). 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).

[5] I draw the following principles from these passages:

1. The challenge for cause can be directed at any personal characteristic that might trigger bias, not just race.
2. The onus to establish the need for a challenge is not onerous.
3. Expert evidence is not necessarily required.
4. Challenge 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”.
5. The trial judge enjoys a broad discretion to determine how the challenge for cause should proceed, and how far parties may go in asking questions.
6. The process adopted must balance “the accused’s rights to a fair trial by an impartial jury, while also protecting the privacy interests of prospective jurors”.

THE CHALLENGE IN THIS CASE

[6] While the parties in this case agree on the need for a robust challenge, the devil, as they say, is in the details. The question is how to best eradicate potential sources of bias in this case, while respecting juror privacy. Given the nature of the allegations, and the breadth of pre-trial publicity, the challenge for cause in this case will necessarily be more extensive than is usually the case.

[7] Some of the issues to be addressed are as follows:

a. How best to determine whether, given the nature of the allegations, prospective jurors will find it too difficult to dispassionately discharge their duties; b. How best to screen bias against those who hold bias; c. Whether the accused is entitled to a challenge based on the fact that he is a white Christian male; and d. How best to address publicity, and statements made about this case by public officials;

I will deal with each of these in turn.

A. THE NATURE OF THE ALLEGATIONS

[8] Counsel for the accused posited that jurors be asked, in the challenge for cause, whether they would find it too difficult to serve, given the disturbing nature of the allegations. I understand the basis for this request. The allegations are disturbing as are certain aspects of the evidence. The question is whether jurors should be screened on their ability to serve on a case of this nature.

[9] There are two important, yet distinct, components to this issue:

a. Concern about undue hardship flowing from exposure to the case; and b. Concern about the ability of prospective jurors to act impartially in the face of the evidence.

[10] Dealing first with personal hardship, it may be that, for some individuals, exposure to the evidence in this case could trigger psychological harm. Such individuals should be excused from service on the basis of personal hardship. There has been an increasing recognition that jurors are affected by the evidence that they hear in criminal courtrooms. Counselling services are now made available to jurors to assist them in processing their experiences. A new amendment to the Criminal Code carves out an exception to jury secrecy, allowing jurors to speak about deliberations to health care professionals: see s. 649(2)(c) of the Criminal Code.

[11] The impact of a trial may be exacerbated by personal circumstances. We traditionally ask whether prospective jurors have been involved in a similar case or know of someone who has experience with a similar case or similar circumstances. For example, if a person has previously been the victim of a racist act, the evidence in this case may trigger a reaction based on that prior experience. A person who has lost a family member to violence might be deeply and adversely affected by jury service in this case.

[12] In these instances, we are concerned about causing harm to those who are chosen as jurors. We are also concerned about whether those individuals can properly discharge their duties in a genuinely impartial manner. However, the latter concern does not mean that this should be addressed in the challenge for cause. Rather this is the type of issue that is best addressed through the screening of the panel.

[13] In Chouhan, certain justices ruled that the power to excuse jurors under s. 632(c) of the Criminal Code can be used to screen reasonable apprehensions of bias, even after the challenge for cause has taken place. As Moldaver and Brown JJ. stated at paras. 35-36:

The Court of Appeal noted, too, that s. 632(c) permits trial judges to excuse jurors for reasons of “personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused”. While the power to excuse jurors is not a substitute for a challenge for cause (Sherratt, at pp. 533‑34), trial judges routinely excuse jurors at the outset of jury selection for a number of reasons. For instance, jurors who would find it “too difficult” to serve given the nature of the offences at issue in the trial are often excused (see R. v. B.(A.) (1997), 33 O.R. (3d) 321 (C.A.), at p. 443), as are jurors who are “obviously partial” because they know a party in the trial or a witness who will testify (R. v. Hubbert (1975), 11 O.R. (2d) 464 (C.A.), at pp. 292‑93; Barrow, at p. 709).

These procedures are important. They provide a mechanism for removing jurors whose impartiality is or may be in question, for any number of reasons, including that the jurors are unable to set aside a racial or other bias against the accused or complainant or they feel unable to sit through a trial involving the crimes at issue. In so doing, the procedures collectively ensure that each accused receives a fair trial before an independent and impartial jury, as required by s. 11(d) of the Charter. The abolition of peremptory challenges does not infringe this right.

[14] I propose to screen the jury panel by identifying the nature of the case and the allegations and by asking whether persons feel that they are unable to serve in a case of this nature. I do not propose to ask if people will find it “difficult”. In the context of this case, asking if it would be “difficult” could exclude more persons from the jury pool than is appropriate. It might be a rare individual who would not find it difficult to hear about the death of four members of a family, and the injuries suffered by the young child who survived.

[15] Difficulty or distaste is not the issue. The test is not whether jury service is easy or enjoyable – the question is whether it would have an undue impact on the psychological or physical health of a prospective juror. The question is whether jurors are unable to sit on this trial given the nature of the allegations. This is to protect prospective jurors from harm, and it is also to protect the accused’s rights to a fair trial.

[16] This trial may elicit emotional reactions on the part of jurors. They will be instructed that they must act diligently to identify and set aside emotion, deciding the case based on the evidence, evaluated by means of on logic, reason and common sense. Some individuals may find the nature of the allegations to be so overwhelming as to result in harm. Those individuals should be excused as part of the screening process.

[17] In some respects, this inquiry might be seen to resemble an offence-based challenge. In the case of R. v. Find, 2001 SCC 32 (“Find”), the Supreme Court of Canada held that challenges should not be presented on this basis. Judges of this court have diverged on whether offence-based challenges are permissible in the wake of Chouhan. In R. v. Bhogal, 2021 ONSC 4925, I ruled that Chouhan did not change the law as it was stated in Find. I will not repeat that analysis here, save to note that the reasoning in Find would appear to remain good law. The issue is not whether jurors have views about first degree murder or terrorism allegations. One might presume that most people do. The issue here is whether jurors are able to tolerate exposure to the allegations and maintain impartiality in the face of the allegations.

[18] Therefore, the challenge for cause will not inquire into whether jurors would find it “difficult” to serve in this case. The potential impact of the evidence and allegations will be canvassed during the screening of the panel and will be framed in terms of anticipated hardship and potential bias, rather than anticipated difficulty.

B. BIAS AGAINST THOSE WHO HOLD BIAS

[19] This case presents a curious twist as it relates to bias.

[20] The jury will be instructed that they are to act without conscious and/or unconscious bias. The jury will be given the standard instructions directed by the Supreme Court of Canada in Chouhan, and as proposed by the Canadian Judicial Council model jury instructions. Jurors will be alerted to the dangers of both general and specific bias, as it might arise in the context of this case. Jurors will be instructed that stereotypes and other racist or discriminatory thought processes have no place in a Canadian courtroom.

[21] The twist in this case is that the charges against the accused allege that he acted out of bias – intense bias manifesting as hatred toward members of the Muslim community. It is therefore important that jurors be unbiased, not only when it comes to immutable characteristics of the persons in this case, but also when it comes to judging persons alleged to be biased themselves. It is critical that jurors not act on assumptions or pre-conceived notions about persons who hold extremist right wing views associated with white supremacy.

[22] The accused’s motivation is one of the central issues to be determined at the trial. His statements to police and the documents found in his apartment espouse extremist right-wing views, replete with statements of racial bias. The jury will consider this evidence in assessing whether the Crown has proved the elements of first-degree murder. However, they must not engage in impermissible reasoning. The jury must not conclude that, because the accused held these views, he is a bad person and for that reason guilty of the alleged crimes. The jury must not conclude that he is guilty because he is the type of person to commit the offences before the court. The jury must not act on beliefs or assumptions about individuals who hold extremist views. The jury must exclusively on the evidence presented, as evaluated through a lens of logic, reason and common sense.

[23] In other words, the jury must consider the evidence of the accused’s alleged biases without engaging in biased thinking of their own. Therefore, there will be a question on the challenge for cause that asks jurors whether they can set aside any biases that they may have against persons who hold extremist, right-wing views associated with white supremacy.

C. RACE AND RELIGION

[24] The defence also seeks a challenge asking whether jurors have bias against “white Christian males”. The crown initially agreed with this question, but subsequently took a different view, asking the court to dismiss this particular request. The Crown, in its argument, points out that there is no evidence to indicate widespread community bias against white Christian individuals. The Crown says that there is no reason to believe that these characteristics are such as to trigger conscious or unconscious bias.

[25] Chouhan makes clear that formal evidence is no longer an integral element of a challenge for cause application. As it was put in Chouhan at para. 62, in most cases, expert evidence will not be necessary and challenges for cause will be available where the experiences of the trial judge, in consultation with counsel, dictates there is a realistic potential for partiality.

[26] While there is no need for formal evidence, there must be a logical or common sense basis for the inquiry. There is no basis for believing that there is widespread bias against white Christian men in Canadian society. Were it otherwise, we would see challenges for cause in all trials involving accused persons with these characteristics. The real issue here is whether there is bias against white Christian men who adhere to extreme right-wing views rooted in white supremacism.

[27] There is no reason to separate the accused’s status as a white Christian male from his status as someone who adheres to extremist views. It is the latter characteristic that may trigger adverse sentiment. Therefore, it is sensible to combine these characteristics into a single question. It is also important to highlight the interracial nature of the alleged crimes, and a specific question will be aimed at that feature of the case.

D. PRE-TRIAL PUBLICITY

[28] The charges in this case have attracted significant media attention, in Ontario, across Canada, and around the globe. Described as a hate crime, these events have been the wellspring for initiatives designed to combat islamophobia. Within the City of London and elsewhere, there have been vigils and marches to remember those who died in the crash. High ranking politicians, including the Mayor of London, the Premier of Ontario, and the Prime Minister of Canada have commented about the case. On June 6, 2022, the Secretary of the Ontario Cabinet sent an email to all members of the Ontario Public Service in which she commented on this case. Finally, beyond conventional media sources, this case has been the subject of extensive commentary on social media and other internet sites.

[29] Against this backdrop, it is clear that the accused is entitled to a challenge for cause based on pre-trial publicity.

[30] It will be difficult to find jurors who know nothing about this case. However, that is not the stated goal. Were it so, it would decimate the pool of the persons eligible to serve as jurors in this case. The goal is not to screen out knowledge, but rather, partiality. Partiality has two components: attitudinal and behavioural. The attitudinal component asks if the person has formed any views about the case or persons involved in it. The behavioural component asks whether, if the person has formed a view, he or she set that view aside, and decide the case based solely on the evidence and instructions of the trial judge. Whatever someone may know or perceive about the case, they are eligible to serve as a juror if they are able to set aside any extrinsic information and/or pre-conceived notions about the case.

[31] How is this issue best addressed? Initially, the defence posited that jurors be asked specifically about statements made by the Prime Minister, the Premier of Ontario and the Mayor of London. During oral submissions, counsel for the accused agreed that it is neither necessary nor desirable to refer to the public officials by name. To do so would do more to contribute to, rather than cure, the designated mischief. To refer to public officials by name could pique curiosity and present a temptation to look up what specific officials said about the case. It could draw attention to the very statements that we wish jurors to disregard. Therefore, it seems to me that most prudent course is to ask about public statements, without providing detail about what was said by whom.

[32] It would be anomalous if the effect of the challenge for cause was to identify and highlight the very statements and news reports that we seek to keep out of the jury room.

[33] On the issue of vigils and marches, the defence initially requested that prospective jurors be asked whether they attended vigils or marches aimed at commemorating the victims in this case. During oral submissions, counsel for the accused withdrew that request. It seems to me that it may nonetheless be appropriate to ask whether prospective jurors participated in such events. This is not because such participation necessarily equates with partiality. The expression of sympathy toward tragedy is a human reaction that is not necessarily inconsistent with objectivity. However, such conduct could give rise to partiality, and it is appropriate to consider that potential in crafting the challenge for cause.

[34] I note that vigils and marches have taken place in both London and Windsor, and they have occurred as recently as a few weeks ago, on June 6, 2023, to commemorate the second anniversary of the event. This type of question probes juror privacy, but only to a very limited extent. As the person who will try the challenge of each prospective jurors, based on their answers to the questions, I believe that this additional piece of information will assist in screening out partiality. It may also prompt jurors to evaluate their own attitudes and reactions, by considering why they participated in such events and the extent to which they can set aside any relevant views.

THE CHALLENGE

[35] On the basis of the above, I propose that the following serve as the challenge for cause in this case:

You will recall my earlier instructions about the need for jurors to identify and set aside biases, stereotypes, prejudices, and other assumptions when deciding this case. As a prospective juror, you bring with you 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.

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 question, please let me know.

Have you seen read or heard anything about this case in print media, broadcast media, social media, email communications, or any other source of information?

Are you aware of any comments made by public figures about this case?

Have you attended any vigils, marches or other events relating to this case? (Events, including leaving flowers, mural design etc.)

If you have received information about this case, from any source, would you be able to set such information aside, and decide this case impartially, based solely on the evidence and the instructions of the trial judge.

If you have formed any opinions about this case, including opinions about the guilt or innocence of the accused, would you be able to set those opinions aside and decide this case impartially, based solely on the evidence and the instructions of the trial judge.

Would your ability to decide this case impartially, based solely on the evidence and the instructions of the trial judge, be affected by the fact that the accused is a white Christian man accused of having extremist right wing views associated with white supremacy?

Would your ability to decide this case impartially, based solely on the evidence and the instructions of the trial judge, be affected by the fact that the accused is a white Christian man accused of violent crimes, including crimes of terrorism, against persons of Pakistani descent of the Muslim community?

I have already instructed you about unconscious bias - perceptions, attitudes or feelings that you may not be aware of now, but that may arise during the trial. If chosen as a juror, do you promise to examine whether you are being influenced by unconscious bias, and take steps to set such bias aside, to the best of your ability?

Original Signed by “Justice R.M. Pomerance” Renee M. Pomerance Justice

Released: June 23, 2023