PRE-TRIAL RULING ON CHALLENGE FOR CAUSE

STOTHART J.

[1] The applicant, Montana Lewis, is charged with one count of first-degree murder alleged to have occurred on November 12, 2020. His jury trial is scheduled to commence November 18, 2024, in Sault Ste. Marie and is expected to continue for approximately three weeks.

[2] The applicant brings this application seeking to challenge potential jurors for cause on the basis of race and pre-trial publicity. The applicant is an Indigenous male.

[3] The Crown agrees to a challenge for cause on the basis of the race. It opposes the application on the basis of pre-trial publicity.

Legal principles to be applied

[4] In R. v. Chouhan, 2021 SCC 26, the Supreme Court of Canada upheld amendments made to the Criminal Code, R.S.C. 1985, c. C-46 with respect to the jury selection process. In doing so, the Supreme Court highlighted opportunities that exist in criminal trials to raise and address concerns about juror partiality and bias. First, in appropriate cases, trial judges should consider crafting jury instructions and charges that caution against the risk that bias, racial or otherwise, will taint the integrity of the jury’s deliberations. Second, the challenge for cause provisions may provide a mechanism to raise concerns about a potential juror’s partiality. Third, the stand-aside powers may account for any gap that may have been left by the abolition of peremptory challenges: R. v. Chouhan at para. 47.

[5] It has now become common practice that in cases where specific biases, prejudices and/or stereotypes may reasonably be expected to arise in a particular case, that the jury panel receive preliminary instructions on general and specific biases that might affect their decision making. These instructions include specific references to the concept of unconscious bias.

[6] When tailoring bias instructions to a specific trial, trial judges are directed to consider the relevance of context and the harmful nature of stereotypical assumptions or myths. While there is no “magic formula”, trial judges should identify the characteristics of the parties or witnesses that “give rise to the risk of unconscious bias, dispel common stereotypes, and direct jurors to decide the case with an open mind based on the evidence before them”: R. v. Chouhan, at paras. 56-58.

Challenge for cause

[7] Section 638(1) of the Criminal Code gives the prosecutor and the accused the right to challenge prospective jurors for cause on the grounds that the juror is not impartial. The test to be applied in determining whether to allow a challenge for cause is whether there is a realistic potential of partiality. A wide range of circumstances can create a risk of prejudice and discrimination and are the proper subject of questioning on a challenge for cause: R. v. Chouhan, 2021 SCC 26 at para. 61.

[8] The party seeking to challenge for cause does not face an onerous burden. They 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 which could taint the impartiality of the jurors: R. v. Chouhan at para. 62.

Challenge for cause on the basis of race

[9] It is now well recognized that racial prejudice and discrimination are present in society, and these must be directly addressed in the selection of jurors: R. v. Chouhan, at para. 61.

[10] Our courts have long recognized that bias against Indigenous persons is a reality in our society and justice system. On that basis, courts have regularly permitted jurors to be challenged for cause in relation to an accused’s Indigenous background: R. v. Williams, 1998 CanLII 782 (S.C.C.)

Challenges for cause on the basis of pre-trial publicity

[11] In some circumstances, the nature and extent of pre-trial publicity may raise concerns of potential partiality. In circumstances where pre-trial publicity could potentially have the effect of destroying a prospective juror’s indifference between the Crown and the accused, a party may seek to challenge for cause on that basis: R. v. Sherratt 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509; R. v. Zundal (No. 1) (1987), 1987 CanLII 121 (ON CA), 31 C.C.C. (3d) 97, leave to appeal refused [1987] 1 S.C.R. xii.

[12] The party seeking to challenge for cause on the basis of pre-trial publicity, does not face an onerous burden. The party must simply point to some evidence that the particular publicity and notoriety of the accused could potentially have the effect of destroying the juror’s indifference between the Crown and the accused: R. v. Sherratt. at para. 63.

[13] While not an onerous burden, mere publication of the facts of a case prior to trial will not provide a sufficient basis to embark upon a challenge for cause. A party seeking challenge for cause must point to some realistic potential for the existence of partiality flowing from the pre-trial publicity: R. v. Sherratt, at para. 64.

[14] In its analysis, a court must consider all of the circumstances surrounding the pre-trial publicity and whether it could potentially lead to partiality on the part of prospective jurors: R. v. Sherratt, at para. 64.

Questions to be asked on a challenge for cause

[15] In formulating the questions to be asked as part of a challenge for cause, the overarching goal is to ensure that the questions asked provide a robust mechanism for screening out partiality while at the same time respecting the fundamental principle of respect for juror privacy. Ultimately the challenge for cause process must balance the accused’s right to a fair trial by an impartial jury, while also protecting the privacy interests of prospective jurors: R. v. Chouhan, para. 66.

Analysis

[16] The Crown and applicant agree that there should be a challenge for cause on the basis of race. As such, I need not go further in my analysis on this issue.

Should there be a challenge for cause on the basis of pre-trial publicity

[17] The applicant has provided copies of four on-line media publications regarding this matter. Two are from the Sault Star and two are from Sootoday.com.

[18] The two articles from the Sault Star are dated November 17, 2020, and December 23, 2020. The first article names the applicant and reports that he has been charged with first degree murder. It reports that the accused and the victim knew each other and states that police had been called to Muriel Drive with reports of an altercation and found that a young man had been stabbed. The article reports that Samuel Graham died in hospital shortly after the incident.

[19] The December 23, 2020, article reports that the accused is charged with obstructing justice and breach of recognizance for contacting someone he was supposed to avoid and telling that person not to talk about an ongoing police investigation.

[20] The Soo Today articles are dated June 23, 2022, and August 10, 2022. The June 23, 2022, article reports that a preliminary hearing was held and completed into the stabbing death of Samuel Graham. It repeats the same details set out in the Sault Star article on November 17, 2020, and reports that a publication ban prohibits reporting any evidence heard during the preliminary hearing.

[21] The August 10, 2022, article reports that the applicant has been committed to stand trial on a charge of first-degree murder. The article adds that about thirty people, family members and friends of the victim and accused were present in the large courtroom to hear the judge’s decision on whether the Crown had enough evidence for the applicant to be committed to stand trial. The article reports that the applicant sat hunched over in the prisoner’s box during the half hour it took for the Judge to read her decision. The article repeats the same details set out in the Sault Star November 17, 2020, article.

[22] The applicant has also filed a Facebook post, dated August 27, 2023. The post appears to have been authored by the victim’s parents and expresses their grief at the loss of their son and their hope that the justice system will find extreme justice for their son. The post expresses that the Crown has been working very hard on the case and the detective has been present for the family. The post goes on to express that they will need the support of their friends and family. The post has 170 reactions, 65 comments and 2 shares. The comments express support for the family and a desire for justice for the victim.

[23] With respect to the online media reports, I find the reporting to be fair and neutral. The details are brief and there are no expressions of opinion with respect to the applicant’s guilt. The articles repeat that there is a publication ban which prevents them from reporting any details provided in the court proceedings. The media reports are minimal in number, amounting to only four reports over a span of four years. They do not speculate about the accused’s guilt.

[24] With respect to the social media post, I find the post to be a normal and natural expression by the parents of a child who has died in tragic circumstances who are seeking the support of their friends and family. Their desire for justice for their son is completely understandable. The post does not appear to have been shared widely, having only been shared twice. The parties agree that one would have to actively search to find this post on Facebook using the name of the victim. In my view, there is little likelihood that individuals who do not know the victim would be searching through the internet to find this one Facebook post.

[25] When I consider the online media reporting and the Facebook post, I find that there is no realistic potential for the existence of partiality amongst the jury panel flowing from the pre-trial publicity. The media reporting has been minimal and fair. There is nothing in the materials that is misleading, inflammatory, or refers to evidence that would be excluded at trial. The one Facebook post is unlikely to have had any widespread distribution.

[26] I am not satisfied that the applicant has met the low threshold of establishing the need for challenge for cause on the basis of pre-trial publicity.

What questions should be asked on the challenge for cause based on race

[27] The applicant and the Crown agree that proposed jurors should be asked the following question:

As I instructed you this morning, in deciding whether or not the prosecution has proved the charge against an accused, a juror must judge the evidence of the witnesses without bias, prejudice, or partiality. Bias may be based on attitudes and stereotypes related to the personal characteristics of certain persons or groups. You may not even be aware that you have a particular bias. Might your ability to judge the evidence in this case be affected by the fact that the person charged is Indigenous?

[28] They also agree that a second question should be asked as follows:

If you are chosen to be a member of the jury in this case, will you remain mindful of the possibility that you may have unconscious biases, and will you make efforts to identify any such biases, set them aside, and judge the case fairly and objectively?

[29] Where the parties disagree is with respect to the answer to the first question. The applicant submits that the jurors should be asked “which answer most accurately reflects your answer to the question: (a) I would not be able to judge the case fairly; (b) I might be able to judge the case fairly; (c) I would be able to judge the case fairly; and (d) I do not know if I would be able to judge the case fairly”.

[30] The Crown submits that the answer to the first question should be a “yes” or “no” answer.

[31] In support of his position that the answers should be multiple choice, the applicant relies on R. v. Douse 2009 CanLII 34990 (ON SC), [2009] O.J. No. 2874 (ONSC).

[32] In R. v. Douse, the court received evidence from three experts with respect to racism, non-conscious racism, and what types of questions are more effective at identifying these issues as part of jury selection. Some of the social science research relied on studies about the jury selection process in the United States. Other evidence relied on telephone surveys conducted in Ontario and mock jury studies using university students as jurors. In his decision, Justice Durno provided an extensive analysis of the expert evidence proffered and his conclusions based on it. Ultimately Justice Durno accepted some of the expect evidence and rejected other aspects of it and decided that multiple choice answers should be offered to the jury in that case.

[33] I asked counsel if they had found any other legal decision in Canada, post-Chouhan, where multiple choice answers to the Parks question were approved of. Candidly, they advised that they had not.

[34] The Supreme Court in R. v. Chouhan, recognized that the challenge for cause process will likely require more probing or sophisticated questions than have traditionally been asked to screen potential jurors for subconscious stereotypes and assumptions. However, in their reasons, Justices Moldaver and Brown cautioned that trial judges who permit questions beyond the Parks formulation, be mindful of the need to balance an accused’s right to a fair trial, while also protecting the privacy interests of prospective jurors by ensuring questions permit only a limited incursion into their privacy: R. v. Chouhan, at para. 66.

[35] Unlike R. v. Douse, I have not had the benefit of receiving expert evidence on this application with respect to the proposed multiple-choice answers. I do not know if they provide a more fulsome screening on the issues of conscious and subconscious bias, stereotypes, and racism.

[36] I do have some concern with asking jurors to “rate” their ability to put aside conscious and unconscious bias. My concern is that the answers proposed, particularly (b) and (d) are vague and may require follow up questions to clarify the answer. This will require a further intrusion into the juror’s privacy.

[37] For example, if a juror answered (b) or (d) should they be automatically excluded? What does the juror mean when they say they “might” be able to judge the case fairly. Do they mean they could “if provided with appropriate direction and instruction”? The answers “might be able to” and “I don’t know” may be indicative of a juror who is more attuned to their unconscious bias. They may recognize the need to remain mindful of unconscious bias and be willing to abide by proper jury instruction. This is not a partial juror.

[38] I find the multiple-choice answers proposed by the applicant in this case to be vague and unwieldy. I also find they run the real risk of requiring a more invasive form of questioning to determine what the juror means by their answer.

[39] I am satisfied that in this case the questions agreed upon by the parties, when coupled with the trial judge’s instructions, provide a fair and balanced approach to the issue of challenge for cause on the basis of race. I find that the questions are more appropriately answered by way of a yes or no answer, which are clear answers that do not require follow up or more intrusive questioning of the jurors.

[40] For these reasons, the application for challenge for cause on the basis of race is allowed. The application for challenge for cause on the basis of pre-trial publicity is dismissed.

[41] The following questions shall be asked on the challenge for cause:

[42] It is expected that these questions would be answered with a yes or no answer.

[43] I acknowledge that a juror may ask that the question be asked again or clarified by the trial judge. If clarification is required, the parties are free to make further submissions to the trial judge on this issue.

The Honourable Madam Justice S.K. Stothart

Released: October 2, 2024

COURT FILE NO.: CR-22-8636

DATE: 2024-10-02

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

Respondent

– and –

Montana Lewis

Applicant

Ruling on challenge for cause

S.K. Stothart J.

Released: October 2, 2024

R. v. Lewis, 2024 ONSC 5430

Case Summary

PRE-TRIAL RULING ON CHALLENGE FOR CAUSE

Legal principles to be applied

Challenge for cause

Challenge for cause on the basis of race

Challenges for cause on the basis of pre-trial publicity

Questions to be asked on a challenge for cause

Analysis

Should there be a challenge for cause on the basis of pre-trial publicity

What questions should be asked on the challenge for cause based on race

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2

Legislation 1