COURT FILE NO.: CR-18-1242-00
DATE: 2023 12 11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Robert Tremblay, for the Crown
- and -
Sylvie MARSHALL
Martin Reesink and Sharayer Rajabi, for the Applicant/Defendant
HEARD: November 1, 2023
RULING
MIRZA J.
INTRODUCTION
[1] A criminal court has an obligation to consider evidence about how bias can cause a juror to be prejudiced. Whether the bias is unconscious, systemic, or rooted in myths and stereotypes, it may undermine trial fairness. Bias that is subtle or hidden can still be profoundly detrimental to a fair trial.
[2] Myths and stereotypes undermine substantive equality and have a negative impact on human dignity. Even misunderstandings about human behaviour rooted in ignorance can be detrimental and cause a juror to discharge their duty in a prejudicial and unfair manner.
[3] Depending on the bias to be addressed and the dynamics of the case, both challenge for cause questions and jury instructions may be necessary.
[4] A challenge for cause is intended to address the risk of bias of jurors. It is conditional on the requisite evidentiary foundation and identification of focused questions that advance trial fairness.
[5] Tailored anti-bias jury instructions can also effectively address the risk of misuse of evidence in a manner that is responsive to the trial record. Anti-bias instructions to the panel are followed by specific directions to the jury that has been selected during the trial.
[6] In this case, I find that customized instructions are the superior approach since the relevant foundational circumstances are unclear, contested and can only be established at trial.
OVERVIEW:
[7] The Applicant/ Defendant, Sylvie Marshall, is charged with importation of cocaine on June 15, 2017. Her jury trial is scheduled for January 24, 2024.
[8] The Applicant brings a motion to challenge jurors for cause pursuant to section 638(1) (b) of the Criminal Code, RSC 1985, c C-46.
[9] She seeks to ask jurors about bias against women involved in abusive relationships. The Applicant intends to advance a duress defence.
[10] The Applicant submits there are two types of bias applicable to this case: i) the prejudicial view that a victim of abuse can simply leave a violent relationship; and ii) duress is only justified when the danger is imminent for an abused woman.
[11] Before providing an analysis, I will summarize the proposed questions that frame the motion.
APPLICANT’S PROPOSED QUESTIONS
First Proposal:
[12] The Applicant submitted a first series of potential questions for the court’s consideration. Then in a factum filed November 10, 2023, after oral argument, the Applicant revised their questions. This was not objected to by the Crown. The Crown’s response was filed on November 14, 2023. Despite my request, neither side produced cases where questions in this context or an analogous area have been ruled to be acceptable.
[13] The Applicant’s first proposal was to ask a single question, to each of the jurors, prior to their being empaneled, as follows:
i) Are you aware of your partiality against women who stay in abusive relationships and if you are, are you ready to work on it, during the unfolding of the trial, so that you maintain an impartial mindset throughout the trial?
[14] In the alternative, the Applicant submitted that the following questions be put to each juror:
a) Are you aware of women who are in long-term domestic abuse relationships?
b) Do you believe that women who are in abusive relationships can end their situation by leaving their abusive partner?
c) If you are partial against women who stay with their abusers do you believe that you can overcome your partiality?
d) If you believe that you can overcome your partiality against women who stay in abusive relationships, will you, during the unfolding of the trial, work consciously to maintain an impartial attitude towards the accused?
Second Proposal:
[15] In follow-up written submissions, the Applicant’s proposed the following revised set of questions and pre-amble:
ii. Sylvie Marshall is charged with importing cocaine into Canada. The evidence will show that Sylvie Marshall is a victim of intimate partner violence.
a) Do you believe that women who survive intimate partner violence are responsible for their own abuse?
b) Do you believe that women who have survived intimate partner violence are responsible for the failure to end the relationship?
c) Would your ability to judge this case without bias, prejudice or partiality be affected by the fact that the accused is a woman who was or remained in a relationship of intimate partner violence?
POSITIONS
[16] At trial, the Applicant intends to advance the defence of duress. The defence will seek to establish that the Applicant is a victim of intimate partner violence and that she experiences symptoms of “Battered Woman Syndrome” (also known as Battered Person Syndrome).
[17] Counsel for the Applicant submits that there is widespread reasoning bias against women that remain in abusive relationships. This is based on myths and stereotypes about how women that experience intimate partner violence should respond to their abusive partners.
[18] Affidavits from the Applicant, her brother and a friend were filed as part of this motion. They contain limited information. There is no medical or expert diagnosis or opinion that was submitted.
[19] The Applicant’s counsel submits that the proposed questions address the myths, stereotypes and bias that pose a risk to the impartiality of jurors.
[20] The Crown opposes the application. They submit that the applicability of the duress defence is contingent on the evidence to be contested at trial. Further, there is no evidence that there is widespread bias on this issue. There is a presumption of juror impartiality. Even if there is bias, the trial process safeguards of jury instructions are sufficient. They argue that the challenge for cause questions presume the Applicant is a victim of abuse when those very circumstances have not been established. Even if the Applicant was in an abuse relationship, that circumstance may not be the reason the offence was committed.
[21] In supplementary written submissions, the Crown maintained this primary argument against the questions, but argued that in the alternative, a series of different questions could be asked to prospective jurors. The Crown’s questions are attached as Appendix A. The Applicant did not provide a reply position to the Crown’s set of questions.
THE LAW
Criminal Code (R.S.C., 1985, c. C-46)
Section 638(1)
A prosecutor or an accused is entitled to any number of challenges on the ground that
(a) the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to;
(b) a juror is not impartial;
(c) a juror has been convicted of an offence for which they were sentenced to a term of imprisonment of two years or more and for which no pardon or record suspension is in effect;
(d) a juror is not a Canadian citizen;
(e) a juror, even with the aid of technical, personal, interpretative or other support services provided to the juror under section 627, is physically unable to perform properly the duties of a juror; or
(f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 to be tried before a judge and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be.
No other ground
(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).
Test for Challenge for Cause
[22] The test for allowing an application to challenge for cause is set out in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 45:
45 Ultimately, the decision to allow or deny an application to challenge for cause falls to the discretion of the trial judge. However, judicial discretion should not be confused with judicial whim. Where a realistic potential for partiality exists, the right to challenge must flow: Williams, supra, at para. 14. If in doubt, the judge should err on the side of permitting challenges. Since the right of the accused to a fair trial is at stake, “[i]t is better to risk allowing what are in fact unnecessary challenges, than to risk prohibiting challenges which are necessary”: Williams, supra, at para. 22.
[23] In Find, at para. 47, the Supreme Court described the different ways that widespread bias and the link to juror conduct can be established:
47 The first branch of the inquiry – establishing relevant widespread bias– requires evidence, judicial notice or trial events demonstrating a pervasive bias in the community. The second stage of the inquiry – establishing a behavioural link between widespread attitudes and juror conduct – may be a matter of proof, judicial notice, or simply reasonable inference as to how bias might influence the decision-making process: Williams, supra, at para. 23.
[24] Bias refers to an attitude that could lead jurors to discharge their function in the case at hand in a prejudicial and unfair manner. Find, at para. 35.
[25] It must be shown is that the bias could, as a matter of logic and experience, incline a juror to a certain party or conclusion in a manner that is unfair. Find, at para. 36.
[26] In R. v. Chouhan, 2021 SCC 26, 459 DLR (4th) 193, the Supreme Court provided further guidance with respect to both challenge for cause questions and anti-bias jury instructions. The focus in that case was racial bias and discrimination.
[27] In Chouhan, the Court “faced up to the fact” that racial prejudice and discrimination exists, and the risk of racial prejudice must be directly addressed in the selection of jurors through questioning and more robust instructions dealing with unconscious bias.
[28] When it comes to challenge for cause, bias is not presumed. However, the burden to be met to justify questioning is not onerous; a reasonable possibility that bias or prejudice exist in the community are sufficient. The questions must be available when the experience of the trial judge, with input from counsel, establishes a realistic potential for partiality. The trial judge retains significant discretion to decide appropriate questions.
[61] Accordingly, this case presents an opportunity to comment on the procedure for challenges for cause given our growing knowledge of the ways in which unconscious bias can affect the impartiality of a juror. This Court has “faced up to” the fact that racial prejudice and discrimination are present in society and must be directly addressed in the selection of jurors (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 1). 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.
[62] 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 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, at para. 55; Find, at para. 45).
[63] In our view, the challenge for cause procedure is itself a vehicle for promoting active self‑consciousness and introspection that militate against unconscious biases. The prospective juror, who, when empanelled, steps into an adjudicative role must bring to bear a degree of impartiality similar to that of judges. Impartiality requires active and conscientious work. It is not a passive state or inherent personality trait. It requires jurors to be aware of their own personal beliefs and experiences, and to be “equally open to, and conside[r] the views of, all parties before them” (R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 40). Given these principles, the questioning on a challenge for cause ought to be able to explore the juror’s willingness to identify unconscious bias and strive to cast it aside when serving on the jury (Find, at para. 40).
[64] 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.
ANALYSIS
Foundation
[29] The Applicant argues that the purpose of the challenge for cause is to screen out jurors who hold bias against female accused that suffer from intimate partner violence and experience symptoms of Battered Person Syndrome.
[30] As an initial finding, I accept that biases towards women that are victims of abuse is deserving of ongoing evaluation to protect against improper reasoning by judges and juries.
[31] Criminal courts have a duty to strengthen their recognition of deep-rooted myth-based reasoning against women and eliminate its prejudicial impact. There is no doubt that there is still considerable work to be done. R. v. Barton, 2019 SCC 33, [2019] 2 SCR 579 at para. 1.
[32] Intimate partner violence continues to be a major societal problem. It is rooted in historical and contemporary discrimination and oppression.
[33] In Ahluwalia v. Ahluwalia, 2023 ONCA 476, in the context of family law, the Court of Appeal acknowledged the widespread and devastating impact of intimate partner violence:
[1] Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise.[1] What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.
[34] With the importance of the justice system combatting this dire problem acknowledged, the issue before this court is whether the challenge for cause questions proposed by the defence are based on a sufficient evidentiary foundation and are fair to the trial process.
[35] A problem with the application is the absence of an adequate foundation. On this record, there is insufficient information about the Defendant’s experience with abuse and its relevance to the defence of duress.
[36] The Applicant submits that she was a victim of abuse relying on brief affidavits of her own, brother, and friend. They were disclosed to the Crown shortly before the motion.
[37] The Applicant’s affidavit is brief, two pages. It does not describe the partners’ relevant relationship history, dynamics or circumstances, including at the time of the alleged offence.
[38] In a cursory manner, the Applicant’s affidavit highlights two serious incidents at paras. 7 and 13:
(7) Steve Brisebois has assaulted me more times than I can remember, culminating in his stabbing me in Costa Rica, in March 2014.
(13) In August 2016, Mr. Steve Brisbois tried to strangle me.
[39] The application states that the stabbing was reported to the police and disclosure of police reports pertaining to her partner’s contacts with the police have been requested. Those materials are not before me. It is not clear if they attract privacy interests of third parties. The admissibility of those records has not been determined. No transcripts of other relevant criminal proceedings involving her partner were filed.
[40] The Applicant’s partner’s criminal record is submitted which includes crimes of violence. Those entries are not explained adequately in the affidavit to establish their relevance. In addition to a brief description of being a victim of abuse, the Applicant’s affidavit includes a photo of a scar which she claims is the result of being stabbed in 2014 by her partner. As noted above, this incident is not described with any reasonable particulars.
[41] The affidavit of the Applicant’s friend, Marie-Claude Dion, describes reuniting with the Applicant in 2008. That is the only year mentioned. Ms. Dion describes observing the Applicant experiencing tension, fear, yelling, intimidation from her partner. She claims to have witnessed incidents where the Applicant’s partner pushed her against a wall and he hit his hand against the table. There is no year mentioned as to when these incidents transpired.
[42] The affidavit of the Applicant’s brother, Patrick Marshall, states that he is a a truck-driver and the CBSA insisted on interviewing him about his sister. He met with CBSA officials and told them that the Applicant’s partner put her up to the criminal activity. He claims that in the past he took his sister into his home when she came to him crying about her partner. He also claims to have seen a cut on his sister’s left forearm, and at other times, bruising. He describes the Applicant’s partner as a violent alcoholic. No years or timeline are provided about the purported incidents or observations.
[43] In totality, the affidavits are vague. They include hearsay. They do not describe the particular circumstances of abuse from which the Applicant claims bias and prejudice may arise. The time periods are not identified. It is not clear that the incidents are proximate to the time period of the charges.
[44] Allowing room for legal argument later about what is reasonably proximate in this context, it is still critical for there to be evidence of proximity for the abuse to be relevant to the commission of the offence.
[45] The Applicant’s limited explanation in her own affidavit is likely for tactical reasons. Regardless of the reasons, it is insufficient.
[46] The essentials of the alleged abuse: what happened, when, why and where will have to be established. The relevant circumstances are unknown including but not limited to: a description of the couple’s history together, reasonable details about the incidents of the alleged abuse (physical, emotional, psychological), frequency, victimization of others, and proximity to the offence before the court.
[47] The Applicant did not adduce professional expert opinions to establish that she suffers from Battered Person Syndrome or associated symptoms at the specific time of the offence. Still, it was submitted that she will claim she has symptoms. How this argument will be advanced in an admissible manner is uncertain. There is no notice of expert evidence.
[48] To be clear, expert evidence is not required for a challenge for cause. However, the absence of a formal diagnosis or expert evidence speaks to the reality that it is not a forgone conclusion that evidence pertinent to the bias issue will in fact be heard or admitted. It also raises whether her claims of Battered Person Syndrome can be put before the jury without a diagnosis by a qualified professional. This may have to be litigated before the trial judge.
[49] Based on the right to silence and the presumption of innocence, the Applicant is under no obligation to call evidence on this issue at trial. As a result, it cannot be presumed that the required foundation will ultimately be advanced.[^1]
[50] The Crown does not concede that the contents of the Applicant’s affidavit and those of her brother and friend are truthful or admissible. They will challenge the witnesses’ credibility should they be called to testify. In essence, the key facts are to be determined at trial.
[51] To permit the proposed questions to be put to potential jurors, implies the Defendant’s claims of abuse will be heard when that may not happen. The Applicant’s brother and friend may not be called as witnesses.
[52] The Applicant’s second set of proposed questions state “the evidence will show that Sylvie Marshall is a victim of intimate partner violence.”
[53] This preface, without an adequate foundation, is prejudicial to the fair trial process. It suggests that the claims of abuse will be established, and they are relevant.
[54] If the defence does not establish the abuse this may raise concerns in the juror’s minds as to why they were told the evidence will show she was a victim of abuse but it did not materialize. That would be an unacceptable consequence, difficult to correct with an instruction that reaches back to the challenge for cause process.
[55] In my view, the absence of a sufficient foundation in this particular case, and prejudice of permitting the questions, is determinative to dismiss the motion.
Myths, Stereotypes and Prejudice
[56] Despite my concerns with the thin application, I will proceed to discuss the existence of bias and the questions proposed. This is intended to explain the reasons that if the appropriate evidentiary foundation is established at trial, jury instructions are appropriate.
[57] The Applicant admittedly did not submit current reliable scholarly materials, reports, or expert evidence to support the existence of widespread bias against women suffering abuse. The Applicant concedes that they have only filed a few dated articles from twenty or more years ago and mostly from the United States.
[58] This specific category of challenge for cause has not been dealt with before in any reported decision brought to my attention.[^2]
[59] The overall lack of current information is a factor connected to the court’s ability to fairly evaluate the existence of the bias and how best to address it through trial procedures and questions.
[60] However, I recognize that expert evidence about widespread bias is not necessary, particularly when a form of bias, prejudice or discrimination is well-established or rooted in the experience of the administration of justice.
[61] As noted at the outset, I am satisfied that it is not debatable that women are predominant victims of intimate partner violence and this intolerable problem persists in current Canadian society.[^3] “The gravity, indeed, the tragedy of domestic violence can hardly be overstated”. R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at para. 32; R. v. Butcher, 2020 NSCA 50 para. 180.[^4]
[62] I find that victims of abuse may be subject to myths, misunderstandings, or stereotypes about their responses to abuse, including the reasons for remaining in complicated relationships mired by violence.
[63] A myth or stereotype may reasonably include that a victim of abuse, should or could simply leave the relationship. The flawed reasoning continues that if they remain with their partner or leave, and then go back to an abusive partner, this could imply that their claims of abuse are less credible, accurate, and worthy of belief.[^5]
[64] The risks of this type of improper reasoning were identified in Lavallee at para. 53, in support of the admissibility of expert evidence:
…The [page884] obvious question is if the violence was so intolerable, why did the appellant not leave her abuser long ago? This question does not really go to whether she had an alternative to killing the deceased at the critical moment. Rather, it plays on the popular myth already referred to that a woman who says she was battered yet stayed with her batterer was either not as badly beaten as she claimed or else she liked it. Nevertheless, to the extent that her failure to leave the abusive relationship earlier may be used in support of the proposition that she was free to leave at the final moment, expert testimony can provide useful insights.
[65] The circumstances of an abusive relationship may be relevant to duress and impact a trier of fact’s determination of whether the victim of abuse had a reasonable apprehension of harm and a safe avenue of escape at the time they committed the offence.
[66] In my view, after taking into consideration the trial evidence, honed and robust jury instructions will address the risks concerning proper and improper use of the evidence. Chouhan, at paras. 49-52; See also R. v. White, 2011 SCC 13, [2011] 1 SCR 433 at paras. 54-60. I will further explain the use of responsive jury instructions later.
[67] The Applicant submits that there is another myth or bias. In particular, that a defence of duress is justified only when danger is imminent for an abused woman.
[68] This amounts to a legal argument about how duress should be contextually interpreted based on the trial evidence. The trial judge will be better situated to consider this issue for jury instructions based on more fulsome submissions and a complete trial record.
Proposed Questions
[69] Having accepted there is a reasonable potential for partiality, I will now turn to a discussion of the Applicant’s proposed questions.
[70] A challenge for cause is intended to be pro-actively address bias to ensure the jury is properly selected in furtherance of a fair trial.
[71] I find that the Applicant’s two sets of proposed questions are not capable of helping the trial judge to assess efficiently and fairly if a juror is biased and harbours prejudice in a manner that compromises trial fairness.
[72] As mentioned above, I am concerned that the Applicant’s challenge for cause questions seek to pre-emptively introduce Battered Person Syndrome to bolster duress and are therefore not fair.
[73] The proposed questions are premised on contested facts and law to be determined at trial. Also, the questions are premised on controversy. They are not based on bias and prejudice associated with an individual’s characteristics or established stereotypes about the offence alleged.
[74] As noted above, there is no obligation on the defence to call evidence at trial. In this case, the Applicant’s counsel says that she will testify. This is ultimately the Applicant’s decision, not counsel.
[75] Even if she intends to testify at this time, her perspective could change and no fault could be placed with the Defendant given the constitutional right to silence and the presumption of innocence.
[76] On this record, I find that the proposed questions are not acceptable.
[77] The first set of questions do not promote the active and conscientious work required to achieve impartiality. See Chouhan, at para. 63; R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), at para. 92.
[78] The first proposed question presumes individualized partiality. “Are you aware of your partiality against women who stay in abusive relationships…”. [^6]
[79] This question also implies that evidence of the Applicant remaining in an abusive relationship will be heard at trial.
[80] The further set of questions in the first proposal has other problems.
[81] Question 1 (a) is too broad. It does not assist the judge or counsel to determine whether the juror should be accepted or excused.
[82] Question 1(b) is insufficiently clear and specific. It invites more questions from a potential juror about what the circumstances are that they are being asked to respond to, before answering.
[83] Questions 1(c) and 1(d) do not identify the nature of the partiality to be set aside. I recognize that they are to be considered together with the other questions.
[84] In totality, the questions do not help the judge or counsel to determine whether a potential juror should be accepted or excused based on their answer.
[85] The second set of proposed questions starts with an improper pre-amble that presumes facts that are in issue: “The evidence will show that Sylvie Marshall is a victim of intimate partner violence.” As noted earlier, the application record does not reliably establish this to be accurate (or necessarily relevant) and it cannot be said that it will be inevitably proven.
[86] Question 2(a) and 2(b) ask jurors - do you believe that woman who survive intimate partner violence are responsible for their abuse; and responsible for the failure to end their relationship. 2(c) builds off the same assumptions that the Defendant is a survivor of intimate partner violence.
[87] In addition to insufficiently establishing the background, the Applicant’s affidavit does not adequately explain if she did remain in the relationship and if so why.
[88] On this record, it would be inappropriate to put to potential jurors questions based on a presumption of the existence of partner abuse and Battered Person Syndrome. To do so potentially reaches into the fact-finding process to be dealt with at trial.
[89] I have considered the Crown’s alternative submission based on the decision of R. v . Rushton, [2022] O.J. No. 6090 (S.C.J.)
[90] Rushton was included by the Crown in their supplementary materials to support an alternative submission that if their primary submission opposing the challenge for cause was rejected by the court, different questions could potentially be used. See Appendix A for a list of the Crown’s alternative questions.
[91] I find that the Applicant’s case is distinguishable from Rushton, where the judge found mental illness is a characteristic of the accused.
[92] In Rushton, the Crown conceded the potential prejudice or bias with respect to persons with mental illnesses. The defence also wanted to ask questions pertaining to public prejudice about a defence of not criminally responsible on the basis of mental disorder (NCRMD). The defendant was charged with second degree murder and intended to advance NCRMD. The defence applied to challenge for cause on the basis that the jury pool may contain people who are not impartial in relation to issues of mental health and in particular, the defence of NCRMD.
[93] The Crown did not oppose the question directed at potential prejudice or bias on the basis of mental illness. The Crown opposed a question directed at probing the jurors' views on the legal defence of NCRMD.
[94] The defendant filed current materials that demonstrated negative public attitudes and prejudicial political statements about the defence of NCRMD, including that it should be abolished.
[95] Justice Forestell did not permit the defendant’s proposed question. However, the court did allow two different questions: one with respect to a bias against persons with mental illnesses, and another directed at attitudes with respect to the defence of NCRMD.
Mental Illness
You may also hear evidence that Mr. Rushton has a mental illness.
Ask yourself whether you have any beliefs or pre-conceived notions about people with mental illnesses. If you do, would you be able to set those beliefs aside and decide this case based solely on the evidence at trial and the instructions that I provide to you as the trial judge?
I mentioned earlier that sometimes people have unconscious bias about people with mental illnesses without being fully aware of them. If you are chosen to be a member of the jury in this case, are you willing to remain mindful of the possibility that you might have such unconscious biases and make the effort to set them aside?
Defence of NCRMD
Preamble: The jury in this trial will hear evidence about whether Mr. Rushton had a mental disorder that made him incapable of appreciating the nature and consequences of his acts or of knowing that his acts were wrong. This is referred to as a defence of Not Criminally Responsible on account of Mental Disorder. I will be giving detailed instructions about the law on this defence. You must be willing and able to follow my instructions on this important point of law.
Do you have strong personal beliefs or pre-conceived notions about the defence of Not Criminally Responsible on account of Mental Disorder such that it would likely be too difficult for you to follow my instructions about the law?
I mentioned earlier that sometimes people have unconscious biases without being fully aware of them. If you are chosen to be a member of the jury in this case, are you willing to remain mindful of the possibility that you might have such unconscious biases about the defence of Not Criminally Responsible on account of Mental Disorder and make the effort to set them aside?
[96] In the case before me, there is no evidence that the defence of duress is subject to negative attitudes.
[97] Also, in NCRMD cases, the trial unfolds in a different procedural manner. Expert medical/psychiatric evidence about mental disorders is a central feature of the trial. Disclosure of each party’s expert opinions is required by the Criminal Code and rules of procedure. The parties proceed into the trial with particulars of the Defendant’s background and illness.
[98] In many NCRMD cases, the existence of the Defendant having a mental illness is not in issue. It is the impact of the illness on the accused at the relevant time that are contested. In dispute in that context is whether there is a mental disorder such that the defendant is not criminally responsible.
[99] In the case before me, whether the Defendant is a victim of intimate partner violence by her partner and if so, the impact of those circumstances on the commission of the offence charged, are heavily contested.
[100] I find that the Crown’s different set of proposed questions are not acceptable. The questions start with two preambles that place in the jurors’ minds that they may hear evidence from the Defendant that she was a victim of abuse and this will be contested. For the reasons already discussed, given the right to silence, this may have negative unintended consequences that should be avoided. If this defence is not advanced, the questions may backfire on the accused by raising expectations. Similarly, if the Defendant decides to take a different path in their defence, which they are entitled to do, this may unnecessarily raise questions about why this was not pursued by the Defendant.
Tailored Instructions
[101] In contrast, tailored jury instructions based on the evidence at trial are appropriate to address the risk of bias, prejudice, and improper reasoning. Once the evidentiary basis for the instructions is clear, with the benefit of counsel’s submissions, instructions may be delivered in a responsive manner. Chouhan, at paras. 56-58.
[102] Consistent with the Supreme Court’s direction in Chouhan, the jury instructions will continue during the course of the trial to address bias in a manner that is responsive to the evidence and law.
[103] Only at trial will the judge be able to assess the circumstances and context on a proper record.
[104] The law of duress instruction requires the jury to assess the reasonableness of the responses of the defendant to the threats by an abuser and the nexus of the abuse to the commission of the offence. Accordingly, the jury instruction will necessarily require a contextual instruction.
[105] For duress, the issue is not what an outsider would have reasonably perceived but what the Defendant reasonably perceived, given her specific situation and her experience as established on the trial evidence. Lavallee, at paras. 51-52; R. v. Ryan, 2013 SCC 3, [2013] 1 SCR 14.
[106] In Ryan, at para. 81, the Supreme Court established the defence of duress is available when a person commits an offence while under compulsion of a threat made for the purpose of compelling him or her to commit that offence.
• There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party.
• The accused must reasonably believe that the threat will be carried out.
• There is no safe way to avoid the harm threatened or safe avenue of escape. This element is evaluated on a modified objective standard.
• Did the threat cause the accused to commit the offence.
This part asks the jury to decide whether a reasonable person in the same circumstances and with defendant’s personal characteristics, such as age, gender (and), background would have committed the offence.
• Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.
• The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association. [emphasis added]
[107] Unlike cases, where a person’s characteristic that triggers bias is self-evident or not reasonably in dispute, the circumstances concerning the background to the commission of the offence will be contested.
[108] This reality distinguishes this case from a conventional challenge for cause that seeks to ask questions about bias about an accused or witness’ race, religion, ethnicity, orientation or other characteristic that is established.
[109] To be clear, in this ruling, I am not making a categorical finding that questions that address bias relevant to viable defences are not appropriate. It is essential to keep an open mind about how to combat bias in jury trials. In a case with a proper foundation with appropriate questions, the challenge for cause may be justified.
[110] At the hearing, I asked the parties for alternative questions that address my concerns and that may be better suited. I ordered additional submissions. Despite their respective efforts, I am not satisfied the requisite foundation or appropriate alternatives were presented.
[111] In some cases the court can use its discretion to revise the questions to ensure fairness after input of the parties. I am not able to do so with this limited record. It is the Applicant’s onus to present the requisite evidence and submit suitable questions subject to the court’s final discretion.
CONCLUSION
[112] The application is dismissed. The proposed questions are denied.
[113] Since the trial is in late January, I will leave the door partially open. Should there be a change in circumstances such as new information, and the parties’ consent to revised challenge for cause question(s) that adheres to the concerns in my ruling, they shall submit it to the court on or before the trial readiness date. The proposal shall be subject to the trial judge’s discretion.
[114] Moving forward, the parties shall be ready at trial with submissions and case law to assist the trial judge with jury instructions.
Mirza J.
Released: December 11, 2023
COURT FILE NO.: CR-18-1242-00
DATE: 2023 12 11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Robert Tremblay, for the Crown
- and –
Sylvie MARSHALL
Martin Reesink and Sharayer Rajabi, for the Defendant
RULING
Mirza J.
Released: December 11, 2023
APPENDIX A – Crown’s Alternative Position
Should the Court disagree with the Respondent’s original position, it asks that questions
be asked, in line with Rushton, as follows:
a. The accused may call evidence that she committed the offence because she was the victim of abuse.
b. The question of whether she was in fact abused, and its effect on her behavior, will be a matter of fact to be decided by the Jury during trial.
c. For purpose of Jury selection only, ask yourself whether you have any beliefs or pre-conceived notions about victims of abuse. If you do, would you be able to set those beliefs aside and decide this case based solely on the evidence at trial and the instructions that I provide to you as the trial judge?
d. I mentioned earlier that sometimes people have unconscious bias about victims of abuse without being fully aware of them. If you are chosen to be a member of the jury in this case, are you willing to remain mindful of the possibility that you might have such unconscious biases and make the effort to set them aside?
[^1]: The fact that the defendant has the right to remain silent is a distinct circumstance from the Crown calling a complainant or witness in a domestic or sexual assault trial where the trial process necessitates that the allegations of abuse that ground the charges on the indictment will be called by the prosecution.
[^2]: Counsel for the parties were asked for written submissions and additional case law. No cases dealing with challenge for cause proposed by an accused or the Crown from any jurisdiction were submitted.
[^3]: Conroy, Shana. 2021. “Section 3: Police-reported intimate partner violence in Canada, 2019.” In Family violence in Canada: A statistical profile, 2019. Juristat. Statistics Canada Catalogue no. 85-002-X.; cited in Government of Canada, Fact Sheet: Intimate Partner Violence. Fall 2020. Updated Statistics Fall 2021.
[^4]: My use of the term gender is intended to be reflective of how the motion was framed but is inclusive of all individuals impacted by violence irrespective of how they self-identify.
[^5]: This type of improper reasoning is potentially applicable to victims of all backgrounds, genders and orientations.
[^6]: In the Applicant’s factum, they acknowledged this presumption which contributed to their revised set.