R. v. Calloo, 2026 ONSC 1262

CITATION: R. v. Calloo, 2026 ONSC 1262

COURT FILE NO.: CR-24-6352

DATE: 20260305

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Malique Calloo

Applicant

George Spartinos and Craig Houle, for the Crown

Adam Weisberg and Samiyyah Ganga, for the Applicant

HEARD: January 30, 2026

RULING ON CHALLENGE FOR CAUSE APPLICATION

CARROCCIA J.:

INTRODUCTION

1The Applicant, Malique Calloo, is charged with second degree murder, and his trial is scheduled to commence with the selection of a jury on March 16, 2026.

2Mr. Calloo is a Black man of Jamaican descent. He has brought an application to challenge the prospective jury members for cause pursuant to s. 638(1)(b) of the Criminal Code on two grounds. First, on the basis that they may not be impartial due to racial prejudice or discrimination, and secondly, because they may have been influenced by pre-trial publicity.

3The onus on the applicant to establish that there is the potential for either conscious or unconscious bias to support a challenge for cause is not high. In fact, courts have long recognized that racial prejudice and bias may be present in our society and should be addressed in the jury selection process, see: R. v. Chouhan, 2021 SCC 26 at para. 61.

4It is also recognized that prospective jurors may not be impartial on the basis that they may have formed opinions related to the guilt or innocence of an accused person due to pretrial publicity.

5The Crown recognizes the existence of the potential for bias in relation to both grounds and does not oppose a race-based challenge for cause or a challenge on the basis of pretrial publicity. Where the parties disagree however, is on the questions that should be asked in relation to the challenge for cause.

THE POSITIONS OF THE PARTIES

6The applicant submits that the questions to be asked of the prospective jurors should be asked by the presiding judge but should require that they provide more than just yes or no answers. It is submitted that the questions proposed by the applicant delve a little deeper in order to require the jurors to engage in some introspection without imposing unnecessarily on their privacy.

7The applicant submits that following a preamble, each potential juror should be asked three questions relating to the potential for bias on the basis of race. The first question asks them to choose between possible answers. The question is set out as follows:

Some people believe that members of certain racial or ethnic groups are more likely than others to commit crimes of violence. Do you believe that Black men are more likely than other men to commit violent crimes? Which of the following answers most accurately reflects what you believe:

a) I strongly agree.

b) I agree, but not strongly.

c) I disagree, but not strongly.

d) I strongly disagree.

e) I don’t know.

8The applicant suggests the following question be asked as well:

As a result of attitudes that some people have grown up with, or experiences they have had, it may be more difficult for them to attempt to judge the evidence of the witnesses without bias, prejudice or partiality. Might you be even slightly hesitant in your ability to judge the case fairly given that Mr. Calloo is Black? Which answer most accurately reflects your answer to that 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.

9The applicant suggests that a third question be asked with a preamble that reminds jurors that while we all have unconscious biases, if selected as a juror, they will be asked to set those beliefs, assumptions and biases aside. The suggested question is:

If you are selected as a juror, you will be asked to identify and set aside any biases in order to judge the evidence presented at trial fairly without bias, prejudice, sympathy or partiality.

Which of the following most accurately reflects your confidence in your ability to follow this instruction:

a) I would not be able to set aside my own biases and judge the case fairly.

b) I will try to set aside my biases and judge the case fairly but do not know if I can.

c) I am confident that I would be able to set aside my biases and judge the case fairly.

10As it relates to pretrial publicity, the applicant’s suggested questions ask the jurors to reveal whether they have heard, seen or read anything about the case in any form of media and if they have, whether they have formed an opinion about the guilt or innocence of the applicant. The next question asks whether the juror, if he or she has formed an opinion, would be able to set that opinion aside and judge the case based solely on the evidence at trial and the instructions of the trial judge.

11The Crown takes the position that the proposed questions relating to the race-based challenge go too far. The Crown submits that the questions which I proposed, which are almost identical to the questions which Pomerance J. determined were appropriate in R v. Bhogal, 2021 ONSC 4925, are the types of questions that should be asked. Those questions address the reason for the potential for bias without imposing unnecessarily upon a juror’s privacy.

12The Crown submits that the multiple-choice style answers to the questions proposed by the applicant may result in confusion to the jurors and their answers would be hard to gauge. For instance, if a juror were to answer that they “strongly agree” or “agree but not strongly” with the belief that Black men are more likely to engage in violent crime, further questions would have to be asked.

13As it relates to the proposed questions relating to pretrial publicity, the Crown prefers the questions which I suggested but does not take significant issue with the wording proposed by the applicant.

THE APPLICABLE LEGAL PRINCIPLES

14In Chouhan, the Court recognized that the challenge for cause procedure itself is “a vehicle for promoting active self-consciousness and introspection that militate against unconscious bias” (Chouhan at para. 63).

15The Court recognized that the standard Parks¹ questions in cases where there is the potential for bias were never intended to be only permissible questions on a challenge for cause, but they go on to caution trial judges that whatever questions are asked must balance the accused’s right to a fair trial by an impartial jury while protecting the privacy interests of prospective jurors.

16In Chouhan, Martin J. (Karakatsanis J. and Kasirer J. concurring) recognizes that the Supreme Court has explicitly declined to adopt the “highly intrusive” questioning on challenges for cause that are used in the United States. She states that presiding judges must be allowed to exercise their discretion in determining permissible questions in accordance with s. 638(1)(b) of the Code (at para. 120-121).

17Pomerance J. (as she then was) in Bhogal at para. 25 declined to ask potential jurors questions on a challenge for cause that asked them to “articulate what their bias is”. She found those types of questions neither necessary nor desirable. She concluded:

… In any event, the question is not how the bias precisely manifests. If there is bias (the attitudinal question), the test is whether the prospective juror is able to identify and set aside that bias, deciding the case solely on the basis of the evidence and the instructions of the trial judge (the behavioural question).

18More recently in R. v. Necan, 2024 ONCA 751 at paras. 47-48, the Court of Appeal reviewed the manner in which both conscious and unconscious bias should be addressed in a jury trial to ensure juror impartiality. They stated:

47For example, a fundamental tool for addressing the concern over potential partiality is through a robust challenge for cause procedure, a procedure which allows for the exclusion of those who cannot be impartial. The risk of prejudice and discrimination is properly the subject of a challenge for cause. It is for the trial judge, in a broad exercise of discretion, to determine the parameters of a challenge for cause in circumstances suggesting a realistic potential for partiality: Chouhan, at para. 62, per Moldaver and Brown JJ.; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 24; and R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 at para. 45.

48As for unconscious bias, there is nothing wrong, and indeed much right, with reminding prospective jurors, before the challenge is put, or even when there is no challenge for cause, that they must engage in an exercise of introspection and that being an impartial juror demands “active and conscientious work”: Chouhan, at paras. 53-55, 63. Bearing this in mind, jurors who face a challenge for cause should be encouraged to reflect on unconscious biases that they may hold, and to challenge themselves to cast those aside during their service as a juror: see Chouhan, at para. 63, per Moldaver and Brown JJ.; Find, at para. 40.

19The applicant referred the court to the decision in R. v. Zameer #5, 2024 ONSC 4884. In that case, Mr. Zameer who was a brown, Muslim man was on trial for the murder of a white police officer. A challenge for cause was brought on the basis of the potential for bias due to pretrial publicity, the race, colour and ethnicity of the accused and connections to and beliefs about police officers.

20There was no dispute that that a challenge for cause should proceed on all three categories. As in this case, defence counsel requested that following a preamble, the wording of the challenge for cause questions include multiple choice answers that asked jurors to state their beliefs ranging from “I strongly agree” to “I don’t know” in response to a question about whether brown men or Muslim men were “more likely than other men to commit certain types of violent crimes”.

21Molloy J. declined to put those questions to the jurors and did not use the multiple-choice format. She stated at para. 24 of her decision:

24There is both an attitudinal and behavioural aspect to whether a juror can be impartial. The issue to be determined on a challenge for cause is not whether a person has an attitude based on a prejudicial bias or stereotype, but whether that person would set aside preconceived ideas or beliefs and make a decision based solely on the evidence, without regard to such prejudiced thinking. There is a solid line of authority for not permitting questions that are inquisitorial in nature and are based only on the attitudinal aspect of partiality: see R. v. Stanley #1, 2020 ONSC 6876, at paras. 26, 34, 37, 41-42, and 47-48 and the cases referred to therein.

FORMAT OF THE CHALLENGE FOR CAUSE QUESTIONS

22I agree that the challenge for cause ought to proceed on both grounds identified by the applicant and which are not disputed by the Crown.

23The applicant is a Black man and of Jamaican descent. It is recognized that despite our best efforts, there remains both overt and systemic anti-Black racism in our society that can have a profound and insidious impact.² Accordingly, a challenge on the basis of race is necessary in this case to ensure that those jurors who might hold biases against Black men, which they cannot set aside, are eliminated from the jury selection process.

24As it relates to pretrial publicity, counsel for the applicant provided the court with a number of newspaper articles and stories reported on the websites of local news agencies that described the accused as “one of Canada’s most wanted fugitives”. In another story on a news website, the officer in charge of the investigation states that that there is “little doubt of [Mr.] Calloo’s direct involvement in the shooting”.

25Both of those circumstances support the need for a challenge for cause, and accordingly, the application will be granted.

26In this case, there is also a need to address unconscious bias. Potential jurors must be reminded that even if they do not hold conscious biases, they may hold unconscious biases that might impact upon their deliberations. It is for this reason that I will include in my opening instructions to the jury panel, and in my opening to the jury a reminder of the need to engage in introspection and reflection to avoid bias in any form in addition to the requirement that jurors must set aside any preconceived ideas, or beliefs to decide the case impartially.

27The challenge for cause procedure allows for the exclusion of those persons who cannot be impartial. The issue is not whether potential jurors hold certain beliefs, but rather whether they are able to set their beliefs aside and decide the case based only on the evidence at trial and my instructions.

28While there is wide latitude in relation to the questions to be asked on a challenge for cause, inquisitorial questions that require a juror to disclose their own personal beliefs have repeatedly been found to be inappropriate and too intrusive. There is a presumption that jurors will carry out their duties in accordance with instructions provided.

29After considering the submissions of both the applicant and the Crown, I find that the multiple-choice format of the challenge questions suggested by the applicant is not appropriate. It is intrusive to a juror’s privacy, it requires them to articulate any opinions that they may espouse and the questions may be confusing. I decline to permit the questions to be asked in that format.

30The race-based challenge questions will include a preamble reminding potential jurors of the need to set aside biases and will ask jurors whether they will be able to set any preconceived opinions, biases and beliefs aside without asking them to identify whether they hold any such biases.

31The questions related to pretrial publicity will be more direct because I believe it is necessary to identify whether a juror has formed an opinion about the guilt or innocence of the accused based on pretrial publicity. The actual opinion does not matter, what matters is whether that juror will be able to set aside any opinion they have formed and decide the case based on the evidence and instructions.

32Potential jurors will first be asked the following standard question:

Is there any reason due to personal hardship, medical reasons being closely connected to someone involved in the trial, or the nature of the charge that you cannot serve on this jury?

33While this does not form part of the challenge for cause, it will permit the court to screen potential jurors who may not be impartial due to personal experiences that cause a potential juror to hold opinions that they cannot set aside. This may be because they know someone involved in the proceedings or may have had some involvement in an offence of this nature. This form of question is permitted by virtue of s. 632 of the Code, see R. v. Kovacs, 2025 ONCA 49 at paras. 25, and 27.

34Provided that there is no reason that the potential juror is unable to serve each will be asked the following challenge for cause questions.

Preamble:

You will recall my earlier instructions about the need for jurors to identify and set aside biases, stereotypes, prejudices, and other assumptions when deciding this case. As a prospective juror, you bring with you experiences, beliefs, and opinions, some of which may be unconscious.

The issue before us today is not whether these beliefs are correct or proper, but whether you can set them aside so that they do not affect your decision in this case. As a juror, you must decide the case without bias prejudice or partiality. You must decide the case based solely on the evidence and the instructions of the trial judge.

In this case, the accused, Malique Calloo, is a Black man. The deceased is a Black man. The crime involves allegations of violence.

I will now ask you some questions. Listen carefully and take your time in answering. Please answer yes or no. If you do not understand the question, please let me know.

Race-based questions:

1. Ask yourself whether you have any beliefs or pre-conceived notions about Black men. If you do, would you be able to set those beliefs aside and decide the case based solely on the evidence at trial and the instructions of the trial judge?

2. Ask yourself whether you have any beliefs or pre-conceived notions about whether Black men are more likely to commit crimes of violence? If you do, would you be able to set those beliefs aside and decide the case based solely on the evidence at trial and the instructions of the trial judge?

Pre-trial publicity questions:

3. Have you seen, heard or read anything about this case, or about Malique Calloo or the deceased, Daniel Squalls, in any form of media, for example on television, in newspapers, radio, the internet, on social media or through any other sources, including discussion with others?

If the answer is yes,

4. Based on the information you have about this case, have you formed any opinion about the guilt or innocence of the accused, Malique Calloo?

If the answer is yes,

5. If you have formed an opinion about this case, would you be able to set aside those opinions and decide this case based solely on the evidence at trial and the instructions of the trial judge?

35Depending upon the answers to any of those questions, it may be necessary for the court to make further inquiries of a juror. In that way, the court will ensure that the potential juror understands what is being asked and gives a thoughtful answer. After the questions are asked, and before a juror is sworn or affirmed, counsel will have an opportunity to make submissions if they wish the court to ask further questions or if they have any concerns about a potential juror. This will ensure that an impartial jury is selected.

36If there is any issue with the wording of the questions I intend to ask, I will permit counsel to make further submissions.

XXXXXXXXXXXXXXXXXXXX

Maria V. Carroccia

Justice

Released: March 5, 2026

CITATION: R. v. Calloo, 2026 ONSC 1262

Footnotes

1. 1R. v. Parks, 1993 3383 (ON CA), 15 O.R. (3d) 324 (C.A.)
2. 2R. v. Morris, 2021 ONCA 680 at para. 1