WARNING

The Court hearing this matter directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court File and Parties

COURT FILE NO.: 21-44 DATE: 2023/01/03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – K. P.

Counsel: Isabel Blanchard for the Crown/Respondent Neha Chugh, for the Defendant/Applicant

HEARD: November 22, 2022

Bramwell, J.

Introduction

[1] The Applicant applies pursuant to s. 638(1)(b) of the Criminal Code to challenge for cause prospective jurors at her upcoming trial on an Indictment alleging one count of sexual assault.

[2] The Applicant is transgender and that is the basis upon which she seeks to challenge prospective jurors for cause.

[3] For the reasons set out below, I find that the Applicant has met the onus upon her to establish that there is a reasonable possibility that bias or prejudicial attitudes exist in the community with respect to transgender people and that those attitudes could taint the impartiality of the jurors.

The Evidence

[4] The Applicant called Elizabeth Quenville as a witness on this Application. Ms. Quenville also swore an affidavit which was filed as an exhibit.

[5] Ms. Quenville’s evidence is summarized as follows:

a. She is the president of Diversity Cornwall, a non-profit organization in Cornwall, Ontario that has been active since 2016. Ms. Quenville joined the organization in 2017 and has been president since 2018.

b. Diversity Cornwall seeks to promote equality and wellness for 2SLGBTQ+ individuals in the Stormont, Dundas and Glengarry area through community events, education and advocacy. It serves the interests of the 2SLGBTQ+ community and allies. It seeks to make spaces in Cornwall and surrounding areas more inclusive.

c. Ms. Quenville grew up in Cornwall and now lives in nearby Long Sault, Ontario with her partner and their children who are 4 and 6 years old.

d. Ms. Quenville experienced discrimination when she came out as gay at the age of 25.

e. She receives information daily from community members who are experiencing discrimination because of their gender identity.

f. Ms. Quenville’s 6-year-old child is non-binary and experiences discrimination daily at school in the form of bullying by other children and a lack of intervention by the school. The child faces discrimination around the clothes and makeup they wear, the bathroom they use and the refusal of the school staff and other children to use their chosen pronouns when referring to them.

g. The Board of Directors of Diversity Cornwall (the Board) is comprised of two transgender people. They assisted Ms. Quenville in gathering information about the experiences of transgender members of the Cornwall community for the purposes of her affidavit and her testimony in court.

h. All individuals who shared their experiences with Ms. Quenville and the Board expressed fear about their identities becoming public and so asked to remain anonymous.

i. Various examples of discrimination faced by transgender people in Cornwall were provided including:

i. Consistent misuse of their stated correct pronouns, including while accessing public services such as in a hospital;

ii. Fear of using public washrooms, especially when alone, because of harassment and being questioned. This was noted to be especially prevalent when a person’s physical appearance doesn’t match the stereotypical view of how women or men should look and the fear was exacerbated in pre-operative transgender individuals. The fear and hostility projected onto transgender people is believed to stem from a misconception that transgender people are more likely to commit a sexual assault while using the washroom or are seeking out sexual contact when using a public washroom;

iii. Having difficulty accessing medications at the pharmacy due to the disconnect between the transgender person’s gender expression and the pharmacist’s preconceived notion of who should be taking particular medications;

iv. Those attending school being denied the safe use of appropriate washrooms while there and the school not using the stated correct pronouns;

v. Online bullying and harassment including when Diversity Cornwall advertises an event on social media. Hostility is particularly directed at transgender members of the organization and includes criticism of them for having children, name calling and rejection. As an example, “Drag Story Time” at the Cornwall Public Library was criticized for influencing children negatively, based on incorrect stereotypes about transgender people. A local journalist accused Diversity Cornwall of attempting to brainwash local children by hosting Drag Story Time. Some of the online attacks have been levelled at Ms. Quenville’s own non-binary child. They have also included retired members of the Cornwall Police Service mocking photos of youth members of Diversity Cornwall;

vi. Transgender members of the Cornwall community report receiving discriminatory comments online when seeking chest binders;

vii. Transgender members of the Cornwall community report feeling unsafe in communal or rooming houses. In one case, a person placed in a rooming house by their employer while on a temporary work visa was mocked relentlessly by the other tenants of the house for dressing in drag and they were also told that in the countries the roommates came from, the transgender person would be killed which was interpreted by the transgender person as a threat;

viii. There are young people who are forced to leave their family home because of their gender identity. Diversity Cornwall works closely with child welfare agencies in the community on this issue. Ms. Quenville and her partner do this work and in fact have themselves fostered several young people in their home who have been forced out of their own family home because of their gender identity; and

ix. Members of the transgender community frequently report being harassed by neighbours.

j. Sunday, November 20, 2022 was the Trans Day of Remembrance which honours lives lost to transphobia. This is a global event.

k. Diversity Cornwall hosts vigils that members of the public are welcome to attend when there is an event that targets members of the 2SLGBTQ+ community such as the nightclub shooting that happened in Colorado Springs on a weekend proximate to the Application. Ms. Quenville noted that very few people show up to such vigils and those who do are members of the Board, a few members of Cornwall City Council and a few transgender members of Diversity Cornwall.

l. Ms. Quenville also noted that in the days following the Colorado Springs nightclub shooting, someone posted a joke on Diversity Cornwall’s website making light of the mass shooting of people in a nightclub who were targeted because of their gender identification and/or sexual orientation.

m. Diversity Cornwall hosts several events in Cornwall including the annual PRIDE celebration, transgender and non-binary swimming sessions, Drag Story Time, the PRIDE prom, holiday events and drag comedy shows. Ms. Quenville noted that the swimming sessions can be difficult for the transgender and non-binary participants given the clothing typically worn to swim and that fact that some swimmers may be pre-operative while others may not. This has led to a need to have the windows at the public pool blacked out during these sessions to prevent members of the public from seeing into the facility while these sessions are happening.

n. With respect to the online commentary directed at Diversity Cornwall, there are usually 1-2 comments every time Diversity Cornwall posts something. Then, what is posted is shared in groups that are closed to Ms. Quenville and Diversity Cornwall and the posts are further mocked in the closed groups. Ms. Quenville sees the evidence of this when the comments are reposted with all the negative commentary attached.

o. Ms. Quenville notes that when the Seaway News, a local news outlet, posts something about a Diversity Cornwall initiative, there will be about 80 comments and about half will be positive and half will be negative. She noted that events relating directly to the transgender and non-binary community tend to receive more negative commentary than those directed at events for those who are lesbian, gay or bisexual.

p. Ms. Quenville is confident, based on her own experiences, including as the mother of a non-binary child and from her work with Diversity Cornwall that transgender individuals in Cornwall, Ontario face widespread discrimination.

The Applicant’s Position

[6] The Applicant argues that the decision of the Supreme Court of Canada in R. v. Chouhan, 2021 SCC 26 (Chouhan) speaks to an expanded role for challenges for cause now that peremptory challenges have been abolished.

[7] The Applicant argues that because this is a sexual assault case and the evidence will necessarily involve references to the genitalia of the parties involved, including the Applicant’s, the Applicant’s gender identification and sexual orientation will be front and centre and it is of critical importance that the jury be impartial.

[8] The Applicant asks the Court to take judicial notice of transphobia in our community and relies on para. 48 of the Supreme Court of Canada’s decision in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 (Find). She points to comments made by our Prime Minister on the Trans Day of Remembrance as well as in a statement released by the White House after the Colorado Springs shooting as support for the proposition that transphobia in the community is indisputable.

[9] The Applicant argues that Ms. Quenville’s evidence establishes that there is a widespread bias in Cornwall against transgender people. She argues that the test as set out in Find is whether there is a realistic potential that jurors may not be impartial and that the evidentiary threshold is low.

[10] The Applicant argues that while the decision in Find instructs that the privacy of jurors should not be invaded by intrusive questions that could compel them to reveal private information about their own, for example, sexual orientation or gender identification, the decision in Chouhan at para. 66 makes it clear that properly worded questions in a challenge for cause do not need to step beyond a limited and permissible incursion into a potential juror’s views and only for the purpose of ensuring an impartial jury, which is of paramount importance.

[11] In relying on Chouhan, the Applicant submits that it represents the “high water mark” of challenge for cause cases now. She argues that even the dissenting justices in that case identified sexual orientation as being part of a standard class of bases for challenges for cause.

[12] In distinguishing R. v. Lopez, 2021 ABQB 247 (Lopez), a case relied on by the Crown, the Applicant points out that in that case, the Crown sought to challenge potential jurors for cause on the issue of gender identification because the complainant’s identified gender had changed between the time of the alleged offences and the time of the trial.

[13] The Applicant points out that on the facts of the case before this court, which involve allegations of group sexual activity involving some individuals who identify as cisgendered and others who do not, puts gender fluidity much more front and centre in the analysis of credibility and reliability than the facts in Lopez did because in Lopez, the change in gender identification came after the alleged offences.

[14] The Applicant argues that in the present case, if she elects to testify, she will have to provide the jury with her version of events, including about the sexual acts in question and doing so will provide the jury with an account that deviates from that provided to date by the complainant. The Applicant asserts that while the Crown says that the complainant’s account doesn’t involve the Applicant’s genitals being unclothed or involved during the sexual assault, that is only the complainant’s account and the Applicant’s account, if she elects to tender it, will be quite different and will involve her talking about her penis.

[15] The Applicant points out that as a pre-operative transgender person, not only does she have a penis, but she also speaks in a voice that would commonly be associated with that of a man. These facts, if heard by an partial juror, could cause her to be perceived as less credible and/or reliable.

[16] With respect to Lopez, the Applicant points out that the Crown in that case, which is a case from northern Alberta, relied on data about transphobia from Ontario.

[17] Lastly, the Applicant argues that Lopez was decided without the benefit of the Supreme Court of Canada’s decision in Chouhan and, had it been, it likely would have been and should have been decided differently, with the challenge for cause being allowed.

[18] The Applicant argues that Ms. Quenville’s evidence shows that the bias against transgender people is widespread in that it can be seen in educators and pharmacists and in the fact that pool windows need to be blackened and the fact that only a few people come out to vigils.

[19] The Applicant argues that given that the jury is not going to be hearing about cisgendered sexual activity but instead will be hearing graphic details about sexual activity taking place between one cisgendered male, one cisgendered female and the transgender Applicant, the concern is that a partial juror or jurors who is/are biased against transgender people will be more apt to conclude that the Applicant is more likely to have committed the alleged sexual offence because she is transgendered.

The Respondent’s Position

[20] The Respondent argues that the facts of the present case do not engage concerns about potential juror bias against transgender people as the Applicant argues. The Respondent submits that the complainant’s statement to the police only references the Applicant’s gender orientation and genitalia as a way of distinguishing for police which of the two people she had described as sexually assaulting her had done what.

[21] The Respondent submits that the complainant does not describe the Applicant as being unclothed during the alleged offence and does not describe the Applicant’s genitalia as being involved in the alleged offence which is an allegation of cunnilingus being performed on the complainant without her consent. The Respondent submits that the Applicant does not refer to her own genitalia as being involved when she gives her own version of events to the police in her statement either.

[22] The Respondent argues that the evidence tendered by the Applicant does not establish that there is a widespread bias in the community as is required by para. 39 of Find.

[23] The Respondent does not deny that the Applicant has established that there are some people in the community who display a bias against transgender people but she queries whether a widespread bias has been demonstrated.

[24] Essentially the Respondent argues that while the Applicant has provided anecdotal evidence of some bias experienced by some members of the transgender community in Cornwall, she has not met the threshold for establishing widespread bias.

[25] The Respondent argues that there is a flip side to the anecdotal evidence called by the Applicant. School staff have tried their best to address the washroom issue for Ms. Quenville’s child. While one pharmacist wouldn’t dispense medication to a transgender person, another was supportive. While some people write negative comments online, others write supportive comments.

[26] The Respondent also points out that the Applicant’s gender identification was known and accepted by the other people involved in the alleged offence and by the other partygoers at the party where it happened. The Respondent points to this as acceptance of the Applicant by her peers and asks the Court to find that the peer group of the Applicant is representative of what is anticipated in the panel from which the petit jury will be selected.

[27] Lastly, the Respondent argues that any bias that a juror may harbour against the Applicant as a transgender person can be neutralized with strong jury instructions and that there is a presumption, as set out in Find, that jurors will follow those instructions and judge the evidence in compliance with their oath.

The Law

[28] To succeed on an application to challenge potential jurors for cause, a realistic potential for juror partiality on a ground effectively articulated in the application must be established: R. v. Sherratt, [1991] 1 S.C.R. 509 (Sherratt), para. 64.

[29] Establishing a realistic potential for juror partiality generally requires establishing that a widespread bias exists in the community and that some jurors may be incapable of setting aside this bias, despite trial safeguards including instructions from the trial judge, to render an impartial decision: Find, para. 32.

[30] Bias is defined as “prejudice capable of unfairly affecting the outcome of the case” and is determined in the context of the specific case. The bias must be shown to be one that “could, as a matter of logic and experience, incline a juror to a certain party or conclusion in a manner that is unfair”: Find, para. 36.

[31] Owing to the nature of a partiality allegation, the facts of each case will be significant: Sherratt, para. 38.

[32] To establish that a bias is widespread, it must be established as “sufficiently pervasive in the community to raise the possibility that it may be harboured by one or more members of a representative jury pool: Find, para. 39.

[33] The relevant community for the establishment of a realistic potential for juror partiality is the community from which the jury pool is drawn: R. v. Williams, [1998] 1 S.C.R. 1128 (Williams), para. 41.

[34] The impact of widespread bias and the unfairness that it can bring to bear on the accused’s right to a fair trial can be direct or indirect. As McLachlin, J. noted in Williams, at paras. 27-28:

Evidence of widespread racial prejudice may, depending on the nature of the evidence and the circumstances of the case, lead to the conclusion that there is a realistic potential for partiality. The potential for partiality is irrefutable where the prejudice can be linked to specific aspects of the trial, like a widespread belief that people of the accused's race are more likely to commit the crime charged. But it may be made out in the absence of such links.

Racial prejudice against the accused may be detrimental to an accused in a variety of ways. The link between prejudice and verdict is clearest where there is an "interracial element" to the crime or a perceived link between those of the accused's race and the particular crime. But racial prejudice may play a role in other, less obvious ways. Racist stereotypes may affect how jurors assess the credibility of the accused. Bias can shape the information received during the course of the trial to conform with the bias: see Parks, supra, at p. 372. Jurors harbouring racial prejudices may consider those of the accused's race less worthy or perceive a link between those of the accused's race and crime in general. In this manner, subconscious racism may make it easier to conclude that a black or aboriginal accused engaged in the crime regardless of the race of the complainant: see Kent Roach, "Challenges for Cause and Racial Discrimination" (1995), 37 Crim. L.Quarterly 410, at p. 421.

[35] The nature of the bias at issue is directly related to the likelihood that the bias will be effectively cleansed by the trial process. Biases, such as racial prejudice, that are directed against a “particular class of accused by virtue of an identifiable immutable characteristic” which results in a “direct and logical connection between the prejudice asserted and the particular accused” may well be more resistant that other biases such as the “aversion, fear, abhorrence, and beliefs alleged to surround sexual assault offences” because the latter lacks a “cogent and irresistible connection to the accused.” In other words, biases that are rooted in an identifiable, immutable characteristic of the accused such as race, “point a finger” at a particular accused while other biases, rooted in more general aversions such as those against sexual assault offences, do not: Find, para. 94.

[36] Trial safeguards may also be less successful in cleansing racial prejudice than other types of bias because the nature of racial prejudice is such that its “subtle, systemic and often unconscious operation [compels] the inference … that some people might be incapable of effacing, or even identifying its influence on their reasoning [as a result of] the invasive and elusive operation of racial prejudice and its foundation ‘on preconceptions and unchallenged assumptions that unconsciously shape the daily behaviour of individuals’”: Find, para. 95; Williams, para. 20-21.

[37] Where widespread racial bias is shown, it may be reasonable for the trial judge to infer that some potential jurors will have difficulty identifying and/or eliminating their biases, even without any concrete evidence that that will, in fact, be the case. Where the bias involves a predisposition or prejudice as complex and insidious as racial prejudice, the trial judge should not assume that her instructions will neutralize it: Williams, para. 23-24.

[38] In its recent decision in Chouhan, the Supreme Court describes a growth in the collective knowledge and understanding about the ways in which unconscious bias can affect juror partiality and acknowledges 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”: para. 61.

[39] The burden on the party seeking to challenge for cause is not an onerous one and, in most cases, expert evidence will not be necessary. In Chouhan, Moldaver, J. and Brown, J. writing for themselves and Wagner, C.J. stated the test at para. 62 simply as “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.” This suggests that evidence may not be necessary at all.

[40] It should perhaps be noted that in Chouhan, Martin, J., writing for himself as well as Justices Karakatsanis and Kasirer agreed with Wagner, CJ, Moldaver, and Brown, JJ.’s decision but felt that the comments regarding the role of challenges for cause, among other things, were properly characterized as obiter. However, Justices Moldaver, Brown and Chief Justice Wagner specifically rejected the characterization of their comments, including on the topic of challenge for cause, as obiter.

[41] Wagner, CJ, Moldaver and Brown, JJ. in Chouhan specifically reference sexual orientation and gender expression in the list of characteristics of the accused that could form the basis for appropriate questions on a challenge for cause: para. 64.

[42] When a challenge for cause is allowed, trial judges who permit questions beyond the Parks formulation must remain mindful of the fundamental principle of respect for jurors’ privacy. The accused’s fair trial rights must continue to be balanced with the privacy interests of prospective jurors: Chouhan, para. 66.

[43] Applications to challenge for cause engage not only s. 638(1)(b)(2) of the Criminal Code but also s. 7, 11(d) and 15(1) of the Charter: Williams, para. 8.

[44] The connection between the accused’s s. 11(d) Charter protected right to be tried by an independent and impartial jury and the statutory right to challenge potential jurors for cause was articulated by McLachlin, J. in Williams at para. 47 as follows:

The challenge for cause is an essential safeguard of the accused's s. 11(d) Charter right to a fair trial and an impartial jury. A representative jury pool and instructions from counsel and the trial judge are other safeguards. But the right to challenge for cause, in cases where it is shown that a realistic potential exists for partiality, remains an essential filament in the web of protections the law has woven to protect the constitutional right to have one's guilt or innocence determined by an impartial jury. If the Charter right is undercut by an interpretation of s. 638(1)(b) that sets too high a threshold for challenges for cause, it will be jeopardized.

[45] Where a trial judge is in doubt about the ability of judicial instructions to cleanse the trial process of bias, the trial judge should err on the side of caution and permit the challenge for cause. It is better to risk unnecessary challenges than to risk prohibiting necessary ones: Williams, para. 22.

Analysis

[46] Ms. Quenville’s evidence establishes that there are some people living in the community of Cornwall who harbour bias against transgender people and that those people can be found in a broad cross section of the community that includes school staff, pharmacists, hospital workers, journalists, online commentators and parents of some transgender youth.

[47] To establish widespread bias, the Applicant does not have to establish that most people living in Cornwall harbour biased views against transgender people or that most of the school staff, pharmacists, hospital workers, journalists, online commentators and parents of some transgender youth do. In keeping with the guidance in Find, the Applicant merely must establish that one or more members of a representative jury pool may harbour such bias.

[48] In my view, Ms. Quenville’s evidence establishes that there is a realistic possibility that at least one member of a representative jury pool in Cornwall, Ontario may harbour bias or prejudice against a transgender accused.

[49] Given this finding, it is unnecessary for me to address the Applicant’s submission that I should take judicial notice of a widespread bias against transgender people and I will therefore not engage in that analysis.

[50] I find that the impact of the realistic potential for widespread bias that has been established could be either direct or indirect. It could be direct in the sense that there may be a widespread belief that transgender people are more likely to commit sexual assaults. As an example, there is Ms. Quenville’s evidence that much of the hostility directed at transgender people using public washrooms that may not appear to “match” their outward physical characteristics while matching their gender identification is rooted in a stereotype that transgender people use public washrooms to seek out sexually gratifying contact and/or to commit sexual assaults. Closely linked to this stereotype is one in which transgender people are “sexual deviants” who disproportionately engage in what some may characterize as “non-traditional” sexual practices.

[51] The hostility directed at transgender people over the use of a public bathroom cannot be rooted in a simple wish to not use a bathroom facility used by a member of what may outwardly appear to be the other or a different gender because anyone who shares a home with at least one person of another gender is almost guaranteed to share a bathroom space with that person at least some of the time. In other words, we don’t generally have bathrooms in our homes reserved according to gender. This suggests that, as Ms. Quenville testifies, the hostility directed at transgender people who seek to use washrooms that don’t appear to “match” their gender in the eyes of others has, at its roots, a belief that there is something inherently dangerous or suspect in using a bathroom facility used by a transgender person.

[52] The impact of the realistic potential for widespread bias against the transgender Applicant could be indirect or less obvious as well. As described, with respect to racial prejudice in Williams, I find that negative stereotypes about transgender people may affect how jurors assess the credibility of the accused. As MacLachlin, J. noted at para. 28 of Williams, “bias can shape the information received during the course of the trial to conform with the bias.” Jurors harbouring prejudice against transgender people may, as they may with respect to those of another race, consider transgender people less worthy overall or they may believe there is a link between transgender people and crime in general.

[53] Having found that the Applicant has established a realistic potential for widespread bias I must then consider whether the bias against transgender people may not be able to be set aside by one or more jurors, despite trial safeguards such as specific anti-bias instructions, to render an impartial decision.

[54] I find that given that the Applicant is clearly identifiable as a transgender person due to her physical characteristics and her voice and given that the prejudice that is directed against transgender people is directed against them as a “particular class of accused by virtue of an identifiable immutable characteristic” as described in para. 94 of Find, it is likely that the bias will be less susceptible to the cleansing sought to be achieved by judicial instructions and other trial safeguards.

[55] I find that it is appropriate in this case, as MacLachlin, J. suggested in Williams at paras. 23-24 it might be appropriate in a case of racial prejudice, to infer that some potential jurors will have difficulty identifying and/or eliminating their biases, even without any concrete evidence having been called that this will, in fact, be the case. I find that the bias against transgender people is complex and insidious as it is in the case of racial prejudice.

[56] In my view, the Supreme Court of Canada’s decision in Chouhan makes it clear that our expanded collective knowledge and understanding of the causes and manifestations of unconscious bias support the expansion of the challenge for cause analysis to a wider range of characteristics related to the accused, beyond race: para. 64.

[57] It is important to note that even if I were in doubt as to whether judicial instructions could cleanse the trial process of bias, that doubt should be resolved in the Applicant’s favour and I should err on the side of caution.

Conclusion

[58] The Applicant has met the onus on her, which is not an onerous one, to establish that the basis for the exercise of her statutory right to challenge potential jurors for cause in this case has been met.

[59] During the challenge for cause process, a preamble to the challenge question as suggested by Justices Moldaver and Brown at para. 64 of Chouhan will be read to each potential juror prior to the challenge for cause question being posed.

[60] Each prospective juror will then be asked the challenge for cause question in the absence of the rest of the panel and any jurors sworn to that point.

[61] Following the guidance of Justices Moldaver and Brown as set out in para. 64 of Chouhan, the following question will be posed by counsel for the Applicant to each prospective juror as the challenge for cause question:

The accused in this case is a transgender person. Would you have difficulty judging this case solely on the evidence you hear in the case and on the trial judge’s instructions because you hold an opinion about transgender people that on careful reflection, you do not believe you can put aside?

[62] I also intend to give anti-bias instructions as discussed at paras. 48-59 and 65 of Chouhan and I will be seeking the input of the parties as to the content and timing of those instructions at the upcoming trial management conference.

The Honorable Justice L. Bramwell Released: January 3, 2023

COURT FILE NO.: 21-44 DATE: 2023/01/03 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – K.P. decision on Challenge for cause The Honourable Justice Lia Bramwell Released: January 3, 2023