COURT OF CANADA
Citation: R. v. Spence,  3
S.C.R. 458, 2005 SCC 71
Majesty The Queen
Canadian Legal Clinic
Major, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
(paras. 1 to 79)
Binnie J. (Major, LeBel,
Deschamps, Fish, Abella and Charron JJ. concurring)
Spence,  3 S.C.R. 458, 2005 SCC 71
The Queen Appellant
Sean Spence Respondent
Canadian Legal Clinic Intervener
as: R. v. Spence
citation: 2005 SCC 71.
2005: June 9;
2005: December 2.
Major, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from
the court of appeal for ontario
Criminal law — Interracial crime — Selection of
jury — Challenge for cause — Racial prejudice — Fair
trial — Black accused charged with robbing East Indian
man — Trial judge permitting defence to challenge jurors for cause on
basis of potential bias against accused, but refusing to extend challenge for
cause to include race of complainant — Whether trial judge’s refusal
to include “interracial” nature of crime in challenge for cause deprived
accused of his right to impartial jury and to fair trial — Whether
within trial judge’s discretion to limit challenge for cause.
Criminal law — Evidence — Limits of judicial
notice — Social facts — Black accused charged with robbing
East Indian man — Whether court can take judicial notice that jurors
have “natural sympathy” for victims of same race.
A black accused was charged with robbing an East Indian man. The
accused sought to challenge potential jurors for cause, arguing that jurors who
are East Indian may feel a natural sympathy for a victim of the same race and
that race‑based sympathy for the victim aggravates or compounds the
potential racial prejudice against a black accused. The trial judge permitted
the defence to challenge potential jurors for cause on the basis of potential
bias against a black accused but, exercising his discretion, refused to extend
the challenge to include the race of the complainant, as he regarded the
“interracial” element on the facts of this case to be irrelevant. At trial,
the accused was convicted. On appeal, he argued that he was deprived of his
right to an impartial jury and therefore to a fair trial. The majority of the
Court of Appeal set aside the conviction, holding that if an accused who is
entitled to challenge the jury for cause wishes to include the interracial
nature of the crime in the question for potential jurors, he is entitled to
have the question posed in that way.
Held: The appeal should be allowed and the conviction restored.
It was up to the defence to show an “air of reality” to the assertion
that the complainant’s East Indian origin has the realistic potential of
aggravating jurors’ prejudice against the black accused. This burden was
not met. While it was open to the trial judge to include the “interracial”
aspect of the crime in the challenge for cause, neither the case law, nor the
studies on which the case law is based, compelled him to exercise his
discretion in that way. [41‑42]
People called for jury duty benefit from a presumption that they will
do their duty without bias or partiality. To rebut the presumption, there must
exist a realistic potential for the existence of partiality, on a ground
sufficiently articulated in the application, before the challenge for cause
should be allowed to proceed. To establish a realistic potential for juror
partiality generally requires satisfying the court that: (1) a
widespread bias exists in the community; and (2) some jurors may be
incapable of setting aside this bias, despite trial safeguards, to render an
impartial decision. Where widespread racial bias is shown, the second element
may be inferred and need not necessarily be established by reports or
studies.    
The studies and reports cited in the Parks decision do not
establish a realistic possibility that a potential juror who could impartially
judge the accused despite his being black would lose that impartiality on
realizing that the victim was East Indian. Parks does not hold that a
potential “sympathy factor” exists between jurors and complainants in all
situations where both are members of the same visible minority. The general
statements made in the case law about interracial crime have to be considered
in their context. Those cases dealt with interracial crime as a potentially
aggravating circumstance in the minds of the white majority against a member of
a visible minority. They do not support a generalized conclusion that race‑based
natural sympathy affects all trials where the accused, complainant, principal
witnesses and jurors are not all of the same race.   
In this case, the majority of the Court of Appeal pushed judicial
notice beyond its proper limits. While courts have properly taken notice of
the widespread existence of racism, and the likelihood that anti‑black
racism is aggravated when the alleged victim is white, there is no similar
consensus that “everybody knows” a juror of a particular race is likely to
favour a complainant or witness of the same race, despite the trial safeguards
and the trial judge’s instruction to the contrary.  
The permissible scope of judicial notice varies according to the nature
of the issue under consideration, and the closer a fact approaches the
dispositive issue the more a court ought to insist on compliance with the
stricter criteria for judicial recognition. Under the strict criteria accepted
by this Court in Find, a court may properly take judicial notice of
facts that are either (1) so notorious or generally accepted as not to be
the subject of debate among reasonable persons, or (2) capable of
immediate and accurate demonstration by resort to readily accessible sources of
indisputable accuracy.  [60‑61]
It could be argued that the requirements of judicial notice accepted in
Find should be relaxed in relation to such matters as laying a factual
basis for the exercise of a discretion to permit challenges for cause. These
are matters difficult to prove, and they do not strictly relate to the
adjudication of guilt or innocence, but rather to the framework within which
that adjudication is to take place. Such non‑adjudicative facts are now
generally called “social facts” when they relate to the fact‑finding
process and “legislative facts” in relation to legislation or judicial policy.
In dealing with “legislative” facts and “social” facts, greater scope
may be given to judicial notice, but a court must still ask itself whether the
alleged fact would be accepted by reasonable people who have properly informed
themselves on the topic as not subject to reasonable dispute for the purpose
for which it is to be used, keeping in mind that the need for reliability and
trustworthiness increases directly with the centrality of the “fact” to the
disposition of the issue in question. 
Here, the Court is asked to make some fundamental shifts in the laws’ understanding
of how juries function and how the selection of their members should be
approached. To take judicial notice of the “social facts” of the race‑based
“natural sympathy” theory would be dispositive of the appeal, yet these facts
are neither notorious nor easily verified by reference to works of indisputable
accuracy, nor the subject of informed consensus. To take judicial notice of
such matters for this purpose would be to take even a generous view of judicial
notice a leap too far. 
On the existing state of the law, it was within the trial judge’s
discretion to limit the challenge of potential jurors to the race of the
accused. The right to challenge for cause is not automatic. In each case, the
trial judge must determine whether there is an air of reality to the challenge
on the particular circumstances of each case. Here, while the fact the accused
was black called for a challenge for cause on that basis, the additional fact
of the complainant being of East Indian origin was not shown to compound the
prejudice and, therefore, did not need to be the subject of a separate inquiry
to potential jurors. On the facts, a broader inquiry would certainly have been
permissible, but it was not an error of law for the trial judge to draw the line
where he did.  [71‑72]
Trial fairness trumps technicalities. If the trial judge were
persuaded that the appearance of fairness to the respondent accused required
the full Parks question, he ought to have permitted it, regardless of
his recollection of the Parks question, the state of the social science
or the nuanced limits of judicial notice. The question, however, is where the
Court draws the “fairness” line. Here, the only issue of importance to the
defence was identification. Neither the race of the complainant nor his
testimony of what happened shed any light on identification. In the
circumstances of this case the trial judge did not think that leaving out the
interracial element was unfair. That was a determination he was entitled to
Distinguished: R. v. Parks (1993),
84 C.C.C. (3d) 353; R. v. Williams, 
1 S.C.R. 1128; R. v. Koh (1998), 131 C.C.C.
(3d) 257; R. v. Campbell (1999),
139 C.C.C. (3d) 258; R. v. Wilson (1996), 107 C.C.C.
(3d) 86; referred to: R. v. Vermette, 
1 S.C.R. 985; Hubbert v. The Queen, 
2 S.C.R. 267; R. v. Corbett,  1 S.C.R. 670; R.
v. Sherratt,  1 S.C.R. 509; R. v. Find, 
1 S.C.R. 863, 2001 SCC 32; Reference re Alberta Statutes,
 S.C.R. 100; Montréal (City of) v. Arcade Amusements Inc.,
 1 S.C.R. 368; Tolley v. Fry, 
1 K.B. 467; Whirlpool Corp. v. Camco Inc., 
2 S.C.R. 1067, 2000 SCC 67; R. v. Parnell (1995),
98 C.C.C. (3d) 83; Campbell v. Royal Bank of Canada, 
S.C.R. 85; Clinton v. Jones, 520 U.S. 681 (1997); R.
v. Zundel (1987), 31 C.C.C. (3d) 97; R. v. Lavallee,
 1 S.C.R. 852; Moge v. Moge, 
3 S.C.R. 813; R. v. Wells,  1 S.C.R. 207,
2000 SCC 10; R. v. Gladue,  1 S.C.R. 688; Public
School Boards’ Assn. of Alberta v. Alberta (Attorney General), 
3 S.C.R. 845; Danson v. Ontario (Attorney General), 
2 S.C.R. 1086; R. v. Advance Cutting & Coring Ltd., 
3 S.C.R. 209, 2001 SCC 70; R. v. Sharpe, 
1 S.C.R. 45, 2001 SCC 2; R. v. Butler, 
1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada
(Minister of Justice),  2 S.C.R. 1120,
2000 SCC 69; Hays v. Weiland (1918), 43 D.L.R. 137; Reid
v. Telegram Publishing Co.,  O.R. 418; Drabinsky v. Maclean‑Hunter
Ltd. (1980), 28 O.R. (2d) 23; McInnis v. University Students’
Council of University of Western Ontario (1984), 14 D.L.R.
(4th) 126; Moysa v. Alberta (Labour Relations Board),  1 S.C.R. 1572;
R. v. Malmo‑Levine,  3 S.C.R. 571,
2003 SCC 74; Canadian Foundation for Children, Youth and the Law
v. Canada (Attorney General),  1 S.C.R. 76,
2004 SCC 4; Symes v. Canada,  4 S.C.R. 695; Waldick
v. Malcolm,  2 S.C.R. 456; Stoffman v. Vancouver General
Hospital,  3 S.C.R. 483; R. v. Penno, 
2 S.C.R. 865; MacKay v. Manitoba, 
2 S.C.R. 357.
Statutes and Regulations Cited
Canadian Charter of
Rights and Freedoms, ss. 11(d), (f).
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 638, 649.
Bagby, R. Michael, and
Neil A. Rector. “Prejudicial Attitudes in a Simulated Legal Context”
(1991), 11 Health L. Can. 94.
British Columbia. Cariboo‑Chilcotin Justice
Inquiry. Report on the Cariboo‑Chilcotin Justice Inquiry.
Victoria: The Inquiry, 1993.
Canada. Multiculturalism and Citizenship. Eliminating
Racial Discrimination in Canada. Ottawa: Supply and Services Canada,
Canada. Royal Commission on Aboriginal
Peoples. Bridging the Cultural Divide: A Report on Aboriginal People
and Criminal Justice in Canada. Ottawa: The Commission, 1996.
Davis, Kenneth Culp. Administrative
Law Treatise, 2nd ed., vol. 3.
San Diego: K. C. Davis, 1980.
Johnson, Sheri Lynn. “Black Innocence and the
White Jury” (1984‑1985), 83 Mich. L. Rev. 1611.
L’Heureux‑Dubé, Claire. “Re‑examining
the Doctrine of Judicial Notice in the Family Law Context” (1994), 26 Ottawa L. Rev. 551.
Lewis, Stephen. Stephen Lewis Report on Race
Relations in Ontario. Toronto: Government of Ontario, 1992.
McCormick, Charles T. “Judicial Notice” (1951‑1952),
5 Vand. L. Rev. 296.
Morgan, Edmund M. “Judicial Notice” (1943‑1944),
57 Harv. L. Rev. 269.
Nova Scotia. Royal Commission on the Donald Marshall,
Jr., Prosecution, vol. 1, Findings and Recommendations.
Halifax: The Commission, 1989.
Paciocco, David M., and Lee Stuesser. The
Law of Evidence, 2nd ed. Toronto: Irwin Law, 1999.
Sopinka, John, Sidney N. Lederman and
Alan W. Bryant. The Law of Evidence in Canada, 2nd ed.
Toronto: Butterworths, 1999.
Thayer, James B. “Judicial Notice and the Law
of Evidence” (1889‑1890), 3 Harv. L. Rev. 285.
Wigmore, John Henry. Evidence in Trials at
Common Law, vol. 9. Revised by James H. Chadbourn.
Boston: Little, Brown & Co., 1981.
APPEAL from a judgment of the Ontario Court of Appeal (Weiler, Laskin
and Feldman JJ.A.) (2004), 73 O.R. (3d) 81, 191 O.A.C. 285,
190 C.C.C. (3d) 277, 24 C.R. (6th) 108,  O.J.
No. 4449 (QL), setting aside a conviction for robbery and other offences
and ordering a new trial. Appeal allowed.
Jennifer Woollcombe and Deborah L. Krick,
for the appellant.
Christopher Hicks and Catriona Verner, for the
Marie Chen and Margaret Parsons, for the
The judgment of the Court was delivered by
Binnie J. — The
administration of justice has faced up to the fact that racial prejudice and
discrimination are intractable features of our society and must be squarely
addressed in the selection of jurors. In furtherance of the guarantee of a
“fair” hearing before an “independent and impartial tribunal” provided by
s. 11(d) of the Canadian Charter of Rights and Freedoms, and
despite a presumption of juror impartiality, the courts have in recent years
expanded the use of the challenge for cause. Under this procedure, a potential
jury member may be asked as a preliminary matter whether, taking into account
the race of the accused, that individual, if sworn as a juror, would be
“indifferent between the Queen and the accused” (Criminal Code, R.S.C.
1985, c. C-46, s. 638). This has led to broad acceptance of the Parks
Would your ability to judge the evidence in the case without bias,
prejudice or partiality be affected by the fact that the person charged is
. . . black . . . and the deceased is a white man?
(Approved in R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.),
at p. 359, per Doherty J.A.)
In this case,
both the complainant and the person accused of robbing him were members of
visible minorities, the accused being black and the complainant being East
Indian. The courts acknowledge that East Indians along with other visible
minorities have been subject to widespread racial prejudice in Canada. The
trial judge permitted the defence to challenge for cause on the basis of
potential bias against a black accused, but refused to extend the challenge to
include the race of the complainant, as he regarded the “interracial” element
on the facts of this case to be irrelevant. The defence says it ought to have
been allowed to ask:
Would your ability to judge the evidence in this case without bias,
prejudice or partiality be affected by the fact that the accused person is a
black man charged with robbing an East Indian person? [Emphasis added.]
The question before us is whether on the facts of this case the trial
judge’s refusal to permit the “interracial” element of the Parks
question deprived the respondent of his right to an impartial jury and
therefore to a fair trial. This, in turn, requires us to consider why
the interracial nature of a crime may be relevant to juror partiality. How
does racial prejudice against East Indians, for which an accused East
Indian may be entitled to challenge potential jurors for cause, aggravate or
compound potential racial prejudice against a black accused? What, if
any, is the link?
The studies relied upon by the court in Parks and the cases that
followed suggested that bias against a black accused may be aggravated where
the accused is said to have “crossed the colour line” against a victim who
belongs to the white majority. That is not the case here. The defence says
that while the fact that the complainant is East Indian may not aggravate racial
bias against a black accused (indeed on the view denounced in Parks it
might make the complainant a less sympathetic figure, or less worthy of
belief), the “interracial” nature of the crime is still relevant because we
live in an era of multiracial juries. Potential members of the jury who are
East Indian, he says, may feel a “natural sympathy” or empathy for a victim of
the same race. The “interracial question”, he says, is “just a natural
progression of concern for a fair trial where there are people of different
races in a courtroom” (transcript, at p. 19). Race-based sympathy for the
victim compounds the prejudice against the accused, he contends.
The debate thus gravitates to the issue of potential juror partiality in
favour of certain complainants by certain jurors based on their shared
racial background. The defence theory has nothing at bottom to do with visible
minorities. It is a general theory of race partiality applicable to jurors of
all races and, it seems, to all multiracial trials. Neither the defence nor
the Crown adduced any evidentiary basis for or against this proposition. We
are asked to accept the theory based entirely on the prior case law and the
application of judicial notice.
The courts have acknowledged that racial prejudice against visible
minorities is so notorious and indisputable that its existence will be admitted
without any need of evidence. Judges have simply taken “judicial notice” of
racial prejudice as a social fact not capable of reasonable dispute: R. v.
Williams,  1 S.C.R. 1128. It is not at all apparent, however, that
as defence counsel put it in oral argument, “a potential juror, seeing a victim
of his or her own race, there might be that sympathy, natural sympathy, or
tendency to favour someone of your own race, [whether] minorities or
majorities” (transcript, at p. 6). Such a proposition, it seems to me, takes
us beyond the legitimate sphere of judicial notice. There “might” be the
“natural sympathy” suggested by the defence, but there might not be. Moreover,
if such a “positive” partiality exists, will it not be neutralized by the
solemn procedures of the trial and strict instructions from the trial judge?
That is the question.
The ramifications of the defence position are many. If race-based
“positive sympathy” exists as a serious factor in the case of a complainant,
can jurors deal impartially with individuals of the same (or different) race
who appear in court as police officers, expert witnesses or others in the
course of the trial? McLachlin J. (as she then was) said in Williams
that “[a] prejudiced juror might be inclined to favour non-aboriginal Crown
witnesses against the aboriginal accused” (para. 29). Feldman J.A., speaking
for the majority in the court below, expressly flagged this as a possible basis
for a challenge for cause:
It may be that in the appropriate case, where it is the race of the
witnesses that may affect a juror’s approach to the trial, a challenge based
on that issue could be considered. [Emphasis added.]
((2004), 73 O.R. (3d) 81, at para. 25)
logic of the defence argument, it seems, is that courts should take judicial
notice of a “realistic possibility” of racial partiality in every case where
the jurors, accused, complainant and witnesses are not all of the same race.
Might this race-centred view of the jury system be pushed into other areas of
discrimination? Do Catholics or Hindus more readily believe witnesses who are
disclosed to be of the same faith? Do male jurors “empathize” more with male
complainants than with female complainants? Does this empathy translate into
real (or reasonably perceived) bias? Is race a more powerful motivator than
these other sources of potential bias? Our traditional belief was that the
diversity of 12 jurors would iron out and diffuse such individual variations.
In my view, with respect, the majority judgment of the Ontario Court of
Appeal in this case pushed judicial notice beyond its proper limits. The
respondent’s argument proceeded on the basis of questions to which neither
evidence, nor judicial notice properly taken, supplied answers. The prior case
law, read in context, does not support the need for a broad entitlement in
every case to challenges for cause based on racial sympathy as
distinguished from potential racial hostility. The interracial nature
of a crime may be a factor (as with the white victims in Parks and Williams),
but it is not necessarily so. On the existing state of the law, it was within
the trial judge’s discretion to limit the challenge of potential jurors to the
race of the accused. A broader inquiry (such as was sought by the defence)
would certainly have been permissible on the facts, but it was not an error of
law for the trial judge to draw the line where he did.
I would therefore allow the appeal, set aside the new trial ordered by
the Court of Appeal and restore the conviction. The appeal against sentence
found favour with Laskin J.A., the dissenting judge in the Court of Appeal, but
was not commented on by the majority and was not pursued in this Court. The
sentence appeal should therefore be returned to the Court of Appeal for
On June 28, 2000 at 1:06 a.m., an order was placed for a pizza and
chicken wings for delivery to a Toronto apartment. Mr. Qaisar Saleem, the
deliveryman, is of East Indian origin. He arrived at the building between 1:35
and 1:45 a.m., took the elevator, and began walking towards the apartment at
the end of the hallway beside the stairwell. A first assailant emerged from the
stairwell apparently holding a pistol. He was described as a black man and with
a cloth over his face. The complainant could only see his eyes and could not
identify him or any of the other assailants. A second masked man then emerged
from the stairwell, also apparently armed. Three more masked men then emerged,
but without weapons. The last three assailants grabbed the complainant’s arms,
seized the pizza and took Mr. Saleem’s money and receipts from his pockets.
Two of them took Mr. Saleem into the stairwell where they bound his hands and
stuffed a cloth in his mouth. They removed Mr. Saleem’s wallet and some change
from his pockets. As they left, they loosened the bonds that tied him.
The police found chicken bones and five Pizza Pizza receipts in the
stairwell at about 4:00 a.m. that morning. Three fingerprints belonging to the
respondent were found on the receipt for the delivery to the building. A fourth
print belonged to another man who was charged as a young offender. The
respondent turned himself in to the police on August 7, 2000 in response to an
outstanding warrant for his arrest. His father lived in the apartment building
where the robbery occurred.
Although the phone call ordering the food was traced to a cellular phone
owned by a man not connected to the case, there had been a brief call a few
minutes earlier to the same pizza store from a cellular phone which the police
said could be circumstantially linked to the respondent. That same cellular
phone was used in connection with another robbery that took place on July 5,
for which the respondent was later charged but tried separately.
Challenge for Cause
The respondent was initially arraigned on March 18, 2002 on two counts
of robbery of pizza deliverymen: the July 5, 2000 robbery (where the victim was
white) and the June 28, 2000 robbery (where the victim was East Indian). The
respondent did not deny that the robberies had occurred. The only issue was
whether he could properly be identified as the perpetrator.
Before successfully applying for a severance of the two charges, the
respondent sought to challenge potential jurors for cause, based on the fact
that he is black and the victims were white and East Indian respectively. The
trial judge allowed a question based on the fact that the accused is black, but
would not allow the additional enquiry addressing the race of the victim(s) or
the resulting interracial nature of the crimes. (At the time of the challenge,
of course, the potential jurors would not know the race of the accused, the
complainant or the witnesses unless they were told.)
The trial judge mistakenly remembered the Parks question as
relating only to the colour of the accused, not the colour of the complainant.
However, he made it clear that in the exercise of his discretion he was
limiting the challenge in this case to the race of the accused regardless of
what the Ontario Court of Appeal had said in Parks:
MR. GIOURGAS: Your Honour, just for clarification
sake. Are you suggesting that I look at Parks and if, in fact, it does
say “white” then I can re-address the issue with Your Honour, or —
THE COURT: I think you should look at it first. I
don’t recall anything about the word “white” being in the Parks question
at all. And if it is, I am not going to permit it. It’s whether or not
the prospective juror can try the accused without bias or prejudice by reason
of the fact that his skin colour happens to be black, period.
MR. GIOURGAS: Yes, Your Honour.
(Appellant’s Record, at pp. 71‑72 (emphasis added))
The Crown says
that the defence should have renewed its application after the trial severance,
but it seems clear that the trial judge had reached a firm conclusion, and
there is no reason to think he would have allowed the interracial question in
the case of an East Indian victim alone when he had refused it in the case of
white and East Indian victims jointly. The question that was put to the
potential jury members was therefore as follows:
Would your ability to judge the evidence in this case without bias,
prejudice or partiality be affected by the fact that the accused person is a
(Appellant’s Record, at p. 100)
The trial judge warned potential jurors: “In this trial, you will see a
process occur whereby it is hoped and expected that anyone who may harbour any
bias or prejudice simply by reason of the skin colour of Mr. Spence will not be
able to serve here as jurors. That is called what we, in our language, describe
as a challenge for cause” (Appellant’s Record, at p. 93). He continued: “The
question is designed to eliminate anyone who under oath by the answer to the
question put is not a person who is capable of deciding
the — listening to the evidence and deciding a verdict without bias
or prejudice by reason of the fact that the colour of Mr. Spence’s skin happens
to be black” (Appellant’s Record, at pp. 95-96). The jury, duly sworn,
returned a verdict of guilty.
of Appeal for Ontario
and Weiler JJ.A. for the Majority
Feldman J.A. ruled that where an accused who is entitled to challenge
the jury for cause wishes to include the interracial nature of the crime in the
question for potential jurors, the accused is entitled to have the question
posed in that way. The Crown submitted that the race of the victim was
irrelevant to the crime, and the attack was targeted simply on whoever happened
to deliver the pizza, but Feldman J.A. noted that Parks did not require
that the crime be racially motivated. The Crown also submitted that the case
did not turn “to any degree” on the credibility of the complainant, but Feldman
J.A. pointed out that a challenge for cause is not premised on anything as
specific as whether the victim or the accused will even testify (para. 25).
Feldman J.A. rejected the further argument that where there are two
racial minorities involved, there is no imbalance and no need to raise the
interracial nature of the crime as a basis for potential partiality. She cited
Doherty J.A. in Parks that “there is a realistic possibility that
jurors’ verdicts are affected by the race of the accused where that accused is
of a different race than the juror. This possibility is greater in crimes
involving interracial violence where the victim is of the same race as the
juror” (para. 28). In Feldman J.A.’s view, it is not only an association of
the white majority with the Crown that may result in partiality, but any racist
or stereotypical views about the accused or the victim that may influence a
potential juror’s approach to the assessment of the evidence or to the outcome
of the trial, together with an inability by that potential juror to put those
views to the side (para. 29). Where the accused is a member of a visible
minority, there is no longer a need for counsel to file an evidentiary record
to support a finding that racism exists against that visible minority in order
to support a challenge for cause: R. v. Koh (1998), 131 C.C.C. (3d) 257
(Ont. C.A.). The majority allowed the appeal, set aside the conviction, and
ordered a new trial.
Laskin J.A. stated that although the interracial question requested by
defence counsel was certainly not objectionable, and may even have been
desirable, the trial judge did not improperly exercise his discretion in
refusing to allow it. In his view, the question permitted by the trial judge
adequately protected Mr. Spence’s right to an impartial jury and, therefore, to
a fair trial (para. 48). The context in which the courts in Williams,
Parks and R. v. Campbell (1999), 139 C.C.C. (3d) 258 (Ont. C.A.),
approved the “interracial” question differed profoundly from the context of
this appeal. In cases where the accused is a member of a minority community
and the victim is white, one can readily understand how the interracial nature
of the crime may increase the potential for juror partiality and why,
therefore, a question that includes the race of the victim is essential to
ensure a fair trial (paras. 57-59).
Laskin J.A. did not agree however that the fact that the victim in this
case is East Indian created a realistic possibility of juror partiality.
Potential jurors are presumed to be indifferent or impartial; that presumption
must be displaced before they can be dismissed for cause. In Williams and
Parks, the court took judicial notice of certain facts on the basis of
numerous studies and other social science evidence demonstrating racial
prejudice. Here, however, Laskin J.A. did not believe the court was justified
in taking judicial notice that where the victim is East Indian and the accused
is black, the interracial nature of the crime, separately from the accused’s
race, increases the potential for juror partiality (paras. 60-65).
With respect to the sentence appeal, the trial judge all but ignored the
accused’s prospects for rehabilitation in sentencing him to four years of
incarceration. After crediting him with one year for his pre-trial custody,
Laskin J.A. would have reduced his sentence for the robbery to two and one-half
years (paras. 80-85).
Our criminal law is premised on the ability of 12 jurors to do their job
with “indifference” as between the Crown and the accused. We do not start with
the idea that it is up to the potential juror to demonstrate his or her
impartiality. Our procedures in this respect differ from the American
approach. In this country, people called for jury duty benefit from a
presumption that they will do their duty without bias or partiality: R. v.
Vermette,  1 S.C.R. 985; Hubbert v. The Queen,  2 S.C.R.
267; R. v. Corbett,  1 S.C.R. 670.
Our collective experience is that when men and women are given a role in
determining the outcome of a criminal prosecution, they take the responsibility
seriously; they are impressed by the jurors’ oath and the solemnity of the
proceedings; they feel a responsibility to each other and to the court to do
the best job they can; and they listen to the judge’s instructions because they
want to decide the case properly on the facts and the law. Over the years,
people accused of serious crimes have generally chosen trial by jury in the
expectation of a fair result. This confidence in the jury system on the part
of those with the most at risk speaks to its strength. The confidence is
reflected in the Charter guarantee of a trial by jury for crimes (other
than military offences) that carry a penalty of five years or more (s. 11(f)).
The presumption of impartiality may be rebutted by satisfying the trial
judge that “on a ground sufficiently articulated in the application” there is
in the case of some potential jurors a “realistic potential for . . .
partiality” (R. v. Sherratt,  1 S.C.R. 509, at p. 536). In Sherratt,
the articulated ground was pre-trial publicity. The Court stated the rule
The threshold question is not whether the ground of alleged partiality will
create such partiality in a juror, but rather whether it could create
that partiality which would prevent a juror from being indifferent as to the
result. In the end, there must exist a realistic potential for the existence
of partiality, on a ground sufficiently articulated in the application,
before the challenger should be allowed to proceed. [Emphasis added;
In determining how and in what circumstances that presumption is
displaced, and how far challenges for cause may be pushed, a good deal of
discretion is necessarily reposed in the trial judge (Williams, at
para. 55; R. v. Find,  1 S.C.R. 863, 2001 SCC 32, at para.
45). Moreover, the trial judge is given a good deal of latitude in supervising
the challenge process so as not unnecessarily to invade the privacy of the
potential jurors, or unnecessarily to prolong the trial. This does not mean a
trial judge can act on idiosyncratic personal views, or take into account
irrelevant factors (R. v. Wilson (1996), 107 C.C.C. (3d) 86 (Ont.
C.A.)), or ignore relevant factors, but it does mean that allowing a challenge
for cause to proceed is not “automatic” even in matters touching on race (Williams,
at para. 41).
Part of the legitimacy of the jury as an institution lies, as stated, in
the diversity of the background, attitudes and life experiences of its
members. An accused may more readily identify with this group of people who
represent a cross-section of the community, and be more accepting of its
verdict, than would be the case with a judge alone. At the same time, the
courts recognize that racist prejudices are “corrosive” of the required
indifference, and a juror’s inability to put aside such attitudes is not an
acceptable element of the permitted diversity (Williams, at para. 22).
The challenge for cause procedure is about the only tool available to an accused
to root out and expose such racism where there is a “realistic potential” of
its existence. The benefits of its exercise, where warranted, are at least
threefold. The procedure eliminates from the panel potential jurors who
cannot, in good conscience and under oath, give a negative answer to the
question. It also brings home to the other jurors the potentially insidious
effect of racial stereotyping, and thirdly it provides the accused (and members
of visible minorities generally) palpable assurance that the law takes
seriously the overriding objective of empanelling an impartial jury (Parks,
at pp. 379-80, and Koh, at para. 43).
Find teaches that establishing a realistic potential for juror
partiality generally requires satisfying the court on two matters: (1) that a
widespread bias exists in the community; and (2) that some jurors may be
incapable of setting aside this bias, despite trial safeguards, to render an
impartial decision. In Find itself, an accused charged with sexual
abuse of children sought to challenge potential jurors for cause on the basis
that some people may not be able to remain impartial in the face of natural
revulsion for the nature of the offences and empathy for the victims (paras.
53, 57 and 59). This argument, which has some resemblance to the “natural
sympathy” argument mounted here, was rejected (para. 57).
In the present case, the respondent says that a challenge limited to his
own race was not enough. He was entitled to the “interracial question” to
bring out Mr. Qaisar Saleem’s race, as well as his own, for whatever
complications that might entail in the cognitive or emotional reaction of
potential jurors. The respondent supported by the intervener, rests his case
on four propositions:
1. The “interracial” crime issue is determined in his favour by prior
authority including Williams in this Court and the Ontario Court of
Appeal quartet of Parks, Wilson, Koh and Campbell.
2. To the extent that this case requires an extension of the
principles accepted in those decisions, the extension is justified by social
science evidence such as that reviewed in Parks, of which judicial
notice can be taken.
3. The trial judge exceeded his discretion in rejecting the “full” Parks
question on the facts of this case.
4. In any event, trial fairness, and the appearance of trial fairness,
required that the full Parks question be put.
A. Did Prior Case Law Entitle the Respondent to
Have the “Interracial” Aspect of the Crime Included in the Challenge for Cause?
The respondent relies on the following observation of McLachlin J.
in Williams, at para. 28:
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.
Williams involved an aboriginal man charged with robbery of a
white employee of a pizza store. He crossed the “colour line” and the concern
was that this could aggravate any existing underlying prejudice against
aboriginals. Williams formulated the question to be asked in evaluating
an application to challenge for cause as follows: “whether there is reason to
suppose that the jury pool may contain people who are prejudiced [the
attitudinal component] and whose prejudice might not be capable of being
set aside on directions from the judge [the behavioural component]” (para. 32
(emphasis in original)).
1. Step One: The Existence of Widespread Racial Prejudice
If it is demonstrated that there is widespread prejudice in the
community then it is reasonable to infer that the jury pool, being
representative of the community, will include some individuals who harbour such
prejudices. In Williams, the Court took judicial notice of the findings
of the Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide:
A Report on Aboriginal People and Criminal Justice in Canada (1996), at p.
33; Royal Commission on the Donald Marshall, Jr., Prosecution,
vol. 1, Findings and Recommendations (1989), at p. 162; Report
on the Cariboo-Chilcotin Justice Inquiry (1993), at p. 11.
Parks was a case of second degree murder in which the accused was
black and the victim was white. As in this appeal, there was no suggestion that
the crime was racially motivated or that race would play any part in the
defence (p. 361). Nevertheless, Doherty J.A. concluded on the first step that
“[r]acism, and in particular anti‑black racism, is a part of our
community’s psyche” (p. 369). He continued:
A significant segment of our community holds overtly racist views. A
much larger segment subconsciously operates on the basis of negative racial
stereotypes. Furthermore, our institutions, including the criminal justice
system, reflect and perpetuate those negative stereotypes. These elements
combine to infect our society as a whole with the evil of racism. Blacks are
among the primary victims of that evil. [p. 369]
The studies cited by Doherty J.A. amply support his conclusion that the
use of negative racist stereotypes is widespread in our society (a more recent
Angus Reid poll suggested that 45 percent of Canadians identify visible
minorities, particularly blacks and Vietnamese, with crime: see Koh, at
paras. 9 and 22). A brief survey of the studies reviewed in Parks on
the first (attitudinal) question provides a flavour of what was at issue. Eliminating
Racial Discrimination in Canada (1989) demonstrated that people who are
non-white or have a definite speaking accent suffer prejudice in finding a good
job, getting promoted and being paid fairly (p. 7), and in the housing
market (p. 10). Doherty J.A. went on to lay particular emphasis on a
report by Mr. Stephen Lewis, as an adviser on race relations to the
Premier of Ontario. In June 1992, Lewis wrote (and Doherty J.A. quoted, at
pp. 367-68) as follows:
First, what we are dealing with, at root, and
fundamentally, is anti‑Black racism. While it is obviously true
that every visible minority community experiences the indignities and wounds of
systemic discrimination throughout Southern Ontario, it is the Black
community which is the focus. It is Blacks who are being shot, it is Black
youth that is unemployed in excessive numbers, it is Black students who are
being inappropriately streamed in schools, it is Black kids who are
disproportionately dropping‑out, it is housing communities with large
concentrations of Black residents where the sense of vulnerability and
disadvantage is most acute, it is Black employees, professional and non‑professional,
on whom the doors of upward equity slam shut. Just as the soothing balm of
“multiculturism” cannot mask racism, so racism cannot mask its primary target.
(Stephen Lewis Report on Race Relations in Ontario (1992),
In Parks, Doherty J.A. also referred, at p. 367, to a study
prepared for the Royal Commission on the Donald Marshall, Jr., Prosecution by
W. Head and D. H. Clairmont which demonstrated racial
discrimination against blacks and Micmacs in Nova Scotia’s criminal justice
system. Reference was also made to a number of reports of the federal and
provincial human rights commissions which detail instances of racial
discrimination. Doherty J.A. was satisfied, on the initial question of
attitude, that racial prejudice was deep, widespread and difficult to dislodge
Finlayson J.A. subsequently held in Koh that the potential of
such prejudice extends to “visible minorities” generally, and that judicial
notice can and should be taken of this fact. There is no evidence, and no
suggestion from the defence here, that there is any particular antipathy in
Canada between people who are black and people who are East Indian (or Asians
generally). Mr. Qaisar Saleem as an East Indian falls within the protected
group of visible minorities. The question is how sensitivity to Mr. Saleem’s
racial origins aggravated or otherwise altered the jeopardy of the accused
respondent on the facts of this case.
2. Step Two: Is the Generic Prejudice Thus
Identified Likely to Result in Aberrant Juror Behaviour Despite the Judge’s
Instructions to Deal Impartially With the Case on the Basis of the Facts and
It is not enough to demonstrate a source of prejudice. Rather, to meet
the threshold test, it must also be shown that there is a “realistic
possibility” that some individuals called for jury duty might not be capable of
setting aside their bias on instructions from the judge (the “behavioural”
component). This second step need not necessarily be established by reports or
Where widespread racial bias is shown, it may well be reasonable for the
trial judge to infer that some people will have difficulty identifying and
eliminating their biases. [Emphasis added.]
(Williams, at para. 23; see also paras. 36 and 38.)
considered reasonable on the facts of Williams to infer not only that
widespread racial bias against aboriginals could lead to partiality, but that
the accused having crossed the “colour line” against a white victim might
further aggravate the prejudice. These inferences were made against a long and
problematic history in parts of British Columbia between whites and aboriginal
people, intensified “in recent years as a result of developments in such areas
as land claims and fishing rights” (para. 58).
The deeper and more ingrained the prejudice, the more difficult it may
be to control. In Williams, McLachlin J. had this to say:
We should not assume that instructions from the judge or other
safeguards will eliminate biases that may be deeply ingrained in the
subconscious psyches of jurors. Rather, we should acknowledge the destructive
potential of subconscious racial prejudice by recognizing that the post-jury
selection safeguards may not suffice. [para. 22]
The material examined by Doherty J.A. in Parks to determine
whether jurors with a racist outlook could set aside their bias in the context
of a criminal trial (i.e., the behavioural issue) was not, he
acknowledged, as satisfactory as the material on the first (attitudinal)
issue. However, looking at a range of studies both in the United States and
Canada involving black accused and white victims, he concluded, at p. 373:
Even accepting that these studies suffer from the
inadequacies detailed by the critics, they clearly go at least so far as to
indicate that there is a realistic possibility that jurors’ verdicts are
affected by the race of the accused where that accused is of a different race
than the juror.
Doherty J.A. then offered the generalization that lies at the heart of
the present appeal (at p. 373):
This possibility is greater in crimes involving interracial violence
where the victim is of the same race as the juror.
It seems to me impossible to detach this conclusion from the black/white
context which the studies addressed, and with which Parks itself was
concerned. For example, both Williams, at para. 11, and Parks,
at p. 364, cite S. L. Johnson, “Black Innocence and the White Jury”
(1984-1985), 83 Mich. L. Rev. 1611, which, at pp. 1634 et seq.
analyses a number of U.S. studies that evaluate the impact of the race of the
victim on the trial outcome of a black accused. The author suggests these
studies “pose the possibility of a cumulative effect of the race of the
defendant and the race of the victim, such that the black defendant on
trial for a crime against a white victim is doubly disadvantaged” (p.
1634 (emphasis added)). Similarly, when Doherty J.A.’s dictum was
accepted by this Court in Williams, it was in the context of an
aboriginal accused and a white victim. In both Parks and Williams,
the concern of the respective courts was with the possibility that the
interracial nature of the crime might exacerbate the already strong prejudice against
the black or aboriginal accused. There is nothing in the record to suggest
that the fact that the complainant is East Indian would exacerbate racist
emotions against the black accused. In any event, that is not the respondent’s
argument. He is worried about a “natural sympathy” that might be felt by an
East Indian juror for an East Indian victim, thereby indirectly creating
further prejudice that would be applicable to any accused of a different
Parks is a leading authority in this area, but its conclusions
cannot be extended, as the respondent would ask, to include a potential
“sympathy factor” between jurors and complainants in all situations where both
are members of visible minorities. I do not suggest that no such link exists.
I conclude only that it is not established by the studies and reports cited in Parks.
As stated, Mr. Qaisir Saleem and the respondent suffer the burden of
discrimination against visible minorities. It is up to the defence to show an
“air of reality” to the assertion that Mr. Saleem’s racial origin has the
realistic potential of aggravating prejudice against the respondent. This
burden was met in Williams and Parks with respect to a white
victim whose complaint was expected in each case to be heard by a predominantly
white jury, but the potential for bias is not assessed in the abstract. It
must be looked at in the context of the facts and issues of a particular case (Find,
at para. 36).
Almost all of the case law since Parks has relied on Doherty
J.A.’s pioneering analysis. Little that is new in the nature of empirical
studies or analysis is referred to in subsequent judgments or was adduced by
the parties here. Parks showed that a black accused has reason to fear
that some members of the Toronto community may be wrongly influenced by the
colour of his or her skin. The studies relied on there do not, however, show a
realistic possibility that a potential juror who could impartially judge the
accused despite his being black (the question that was asked here) would lose
that impartiality on realizing that the victim was East Indian (the
“interracial question” that was refused). A further step or inference would be
In Wilson, the second of the quartet of Ontario Court of Appeal cases
on this subject, McMurtry C.J.O. extended the Parks analysis and
concluded that “the question permitted by this court in Parks with the
appropriate modification should be allowed in any jury trial in Ontario where
the accused is black” (p. 94).
In Koh, the third in the series, the accused were Chinese
charged with various drug-trafficking offences. The defence provided
affidavits from experts and an Angus Reid Group Poll to demonstrate racism
against visible minorities. Finlayson J.A. found that this evidence was only
“marginally relevant to the issue in question” (para. 24). Nevertheless, he
held that “in spite of the absence of compelling evidence in support of the
Sherratt threshold test, it is not to be doubted that racist sentiment
against persons of Chinese origin is present amongst the residents of Toronto
and in sufficient numbers to raise serious concerns” (para. 25). Thus, the
court ruled, Ontario courts should allow a challenge for cause question by a
member of any visible racial minority without formal proof of community
prejudice (para. 28).
I stress visible when referring to minorities, because I accept the
submission of the intervener that distinctions between the various ethnic
groups that make up the Asian community are unhelpful. The prejudice, where it
occurs, is triggered by skin colour. The same would apply to all visible non‑Caucasian
minorities. [Emphasis added; para. 30.]
the defence had not asked for the “interracial” question (para. 8), and
the court did not address the issue.
The last case in the Ontario quartet relied upon by the respondent is Campbell.
In that case, the appellant, a black man, was charged with sexually assaulting
a 16-year-old white woman. The trial judge permitted counsel to ask a question
based on the fact that the appellant was black. However, as here, he refused to
permit counsel to include in the question any reference to the fact that the
complainant was white. The black/white situation was covered by Parks
and in that context, the Ontario Court of Appeal stated (at p. 262):
There may be potential jurors who would consider that they would be
able to reach an impartial verdict in the case of a black accused but not in
the case where the victim of the alleged violence is white. At the time of the
challenge for cause in this case, the potential jurors would not have known the
colour of the complainant. The question permitted by the trial judge failed to
inquire into the critical concern of partiality that may flow solely from the
interracial nature of the offence.
the context was black/white relations and once again the concern was that the
allegation of the assault was against a white woman across the colour line. It
was feared that before a predominantly white jury, this would be an
inflammatory feature of a situation already infused with racial prejudice.
The respondent argues that racial prejudice is not the exclusive
preserve of white people. This is undoubtedly true, but the earlier case law
dealt with white victims and accused persons drawn from different visible
minorities. The reasoning in those cases did not extend, because it did not
need to extend, to consider the further step of whether the dynamics as between
people who all belong to visible minorities, and who do not share the same historical
experience as in the studies analysed in Parks, are necessarily the
Accordingly, I conclude that neither the Ontario quartet of Parks,
Wilson, Koh and Campbell, nor the studies on which they
are based, cover the present case. To the extent that interracial crime was
involved, it was treated (as is Williams) as a circumstance potentially
aggravating (in the minds of the white majority) existing prejudice against a
member of a visible minority. The general statements made in those cases about
“interracial” crime have to be considered in that context. I do not think the
observations in Campbell about the inflammatory effect of an alleged
sexual assault by a black man of a 16-year-old white girl can simply be
transposed to the allegation of a robbery by a black accused of an East Indian
pizza deliveryman, especially where the defence argument here has to do not
with race-based hostility but with a general theory of race-based “natural
B. To the Extent This Case Requires an
Extension of the Principles Accepted in Those Decisions, Is the Extension
Justified by Matters of Which Judicial Notice Can Be Taken?
It is not to be doubted that evidence of how and to what
extent racial discrimination affects the behaviour of jurors is difficult
to come by, as noted by Finlayson J.A. in Koh (paras. 28 and 41). The
intervener, African Canadian Legal Clinic, in a useful submission that went
beyond the more case law oriented argument of the respondent, urged the Court
to fill the evidentiary gap with the taking of judicial notice that where the
complainant is also a member of a visible minority
[r]acial bias can affect the fairness of the trial process
. . . for example affecting juror assessment of credibility and
weight of the evidence, shaping information received during the trial,
consideration of the accused’s propensity for criminality, and favouring of the
Crown or witnesses. During the trial process stereotypes relating to both the
complainant and the accused may interact and affect a potential juror. The
operation of biases in this context is potentially harmful, unpredictable, and
can skew the outcome in innumerable ways.
Juror impartiality may arise from a favouring of the
victim over the accused because the victim is from the same racialized group as
the juror. [paras. 34-35]
In taking this broad approach to judicial notice, the intervener was
perhaps invoking the work of the great American expert on the law of evidence,
Professor James Thayer, who wrote in 1890 that “courts may and should notice
without proof, and assume as known by others, whatever, as the phrase is, everybody
knows” (“Judicial Notice and the Law of Evidence” (1889-1890), 3 Harv. L.
Rev. 285, at p. 305 (emphasis added)). In taking this view, he is largely
supported by Dean Wigmore. (See Wigmore on Evidence, vol. 9
(Chadbourn rev. 1981), at p. 732.) From time to time, similarly broad
statements have issued from this Court. No less strict a judge than
Duff C.J. was prepared in 1938 to take judicial notice of “facts which are
known to intelligent persons generally”: Reference re Alberta Statutes,
 S.C.R. 100, at p. 128. More recently Beetz J. in Montréal (City
of) v. Arcade Amusements Inc.,  1 S.C.R. 368, took judicial notice of
a number of “facts” dealing with the habits and lifestyles of children and
adolescents on the basis that judges “cannot disregard” such obvious things
that are part of our everyday experience:
The courts cannot be unaware that children and adolescents generally
have limited financial resources, amounts given to them by their parents for
meals, transportation and other small expenses, or earned for work usually done
after school on a part-time basis. The courts cannot disregard the attraction
which amusement machines and amusement halls are likely to exert on children
and adolescents, or the difficulty characteristic of their age group which such
young persons may have in resisting them, both while they have money and when
they run out of it. [pp. 382-83]
Professor Thayer’s view was that “[i]n conducting a process of judicial
reasoning, as of other reasoning, not a step can be taken without assuming
something which has not been proved” (pp. 287-88). I would add the comment of
It is difficult to know what judges are allowed to know, though they
are ridiculed if they pretend not to know.
(Tolley v. Fry,  1 K.B. 467 (C.A.), at p. 475)
This is true,
so far as it goes. The Court’s judgment in Whirlpool Corp. v. Camco Inc.,
 2 S.C.R. 1067, 2000 SCC 67, for instance, talked at length about the
functioning of clothes washing machines, even though no washing machine had
been filed as a trial exhibit, and no special instruction about their general
operations was offered through the expert witnesses. It was just that
Thayer’s approach to judicial notice has its role but I do not think it
helps us to solve the issue posed by the African Canadian Legal Clinic. There
are at least three difficulties standing in its way. Firstly what “everybody
knows” may be wrong. Until Parks, “everybody” knew the solemnity of a
criminal trial and careful jury instructions from the judge meant there was
little possibility that potential jurors in Toronto would be influenced by
racial prejudice (Doherty J.A., at p. 360 of Parks, cites a number of
trial decisions where race-based challenges for cause were rejected for that
reason). Common law judges in early Tudor England would presumably have taken
judicial notice of the “fact” that the sun revolves around the earth.
Secondly, there is the problem of trial fairness. Where do these facts come
from and how are the parties going to address them? How can parties who are
prejudiced by the taking of judicial notice rebut what “everybody” knows unless
a plausible source is put to them for their comment and potential
disagreement? (See R. v. Parnell (1995), 98 C.C.C. (3d) 83 (Ont. C.A.),
at p. 94.) A third problem is that judges occasionally contradict each other
about some “fact” that “everybody” knows, even on the same court in the same
case. Thus, in Campbell v. Royal Bank of Canada,  S.C.R. 85,
Martland and Ritchie JJ., dissenting, pointed out, at p. 91, that the
majority and dissenting judges in the court below had taken judicial notice of
flatly contradictory facts, namely whether it was usual or unusual to find
water in substantial quantities on the floor of a Manitoba bank in wintertime.
More dramatically, in Clinton v. Jones, 520 U.S. 681 (1997), where the
issue before the Supreme Court of the United States was whether a sitting
President is entitled to automatic immunity during his term of office with
respect to private conduct prior to his election to the presidency, the court
stated with confidence with respect to the Paula Jones affair that “it appears
to us highly unlikely to occupy any substantial amount of petitioner’s time”
While courts have accepted the widespread existence of racism, and the
likelihood that anti-black racism is aggravated when the alleged victim is
white, there is no similar consensus that “everybody knows” a juror of a
particular race is likely to favour a complainant or witness of the same race,
despite the trial safeguards and the trial judge’s instruction to the contrary.
Still less can it be said that such favouritism satisfies the more
stringent test of judicial notice adopted by this Court in Find, at
para. 48, per McLachlin C.J.:
Judicial notice dispenses with the need for proof of facts that are
clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed
are not proved by evidence under oath. Nor are they tested by cross‑examination.
Therefore, the threshold for judicial notice is strict: a court may properly
take judicial notice of facts that are either: (1) so notorious or generally
accepted as not to be the subject of debate among reasonable persons; or (2)
capable of immediate and accurate demonstration by resort to readily accessible
sources of indisputable accuracy . . . .
This stricter formulation adopted in Find was originally put
forward by Professor E. M. Morgan in “Judicial Notice” (1943-1944), 57 Harv.
L. Rev. 269. Morgan, in common with other critics, took the view that the
Thayer formulation of judicial notice was too broad. It allowed the courts to
make too much use of out-of-court information, and did not sufficiently
recognize the limitations on a judge imposed by the adversarial process and
fair trial considerations. The narrower Morgan view is found in
J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of
Evidence in Canada (2nd ed. 1999), at p. 1055, and
D. M. Paciocco and L. Stuesser, The Law of Evidence (2nd ed.
1999), at p. 285. I do not think the African Canadian Legal Clinic’s view of
race-based sympathy for victims (or partiality in favour of certain witnesses)
is so notoriously correct as “not to be the subject of debate among reasonable
persons”. Nor is it capable of immediate demonstration by resort to “readily
accessible sources of indisputable accuracy” (Find, at para. 48).
Unlike Professor Thayer, for whom judicial notice created a rebuttable
presumption of accuracy, Professor Morgan (at p. 273) necessarily concluded
that if certain facts were properly made subject to judicial notice, they were,
by definition, not open to rebuttal. In this, he was supported by Professor
C. T. McCormick, who wrote that “a ruling that a fact will be judicially
noticed precludes contradictory evidence”; see “Judicial Notice” (1951-1952), 5
Vand. L. Rev. 296, at p. 322. In R. v. Zundel (1987), 31
C.C.C. (3d) 97 (Ont. C.A.), the court said that “[t]he generally accepted
modern view . . . is that where the court takes judicial notice of a
matter, the judicial notice is final” (p. 150). On this view, acceptance
through judicial notice of the broad race-based thesis of the intervener African
Canadian Legal Clinic would not only stretch the elasticity of judicial notice,
it would create a set of irrebutable presumptions about how individuals called
to jury duty can be expected to think. If there is one thing most of the
social science studies agree upon, it is that much work remains to be done in
Canada within the limits imposed by s. 649 of the Criminal Code to
clarify our working assumptions about jury behaviour.
It could be argued that the requirements of judicial notice accepted in Find
should be relaxed in relation to such matters as laying a factual basis for the
exercise of a discretion to permit challenges for cause. These are matters
difficult to prove, and they do not strictly relate to the adjudication of
guilt or innocence, but rather to the framework within which that adjudication
is to take place. Such non-adjudicative facts are now generally called “social
facts” when they relate to the fact-finding process and “legislative facts” in
relation to legislation or judicial policy. Juror partiality is a question of
fact, and what the African Canadian Legal Clinic invites us to do is to take
judicial notice of the “social facts” of different aspects of racism.
“Social fact” evidence has been defined as social science research that
is used to construct a frame of reference or background context for deciding
factual issues crucial to the resolution of a particular case: see, e.g., C.
L’Heureux-Dubé, “Re-examining the Doctrine of Judicial Notice in the Family Law
Context” (1994), 26 Ottawa L. Rev. 551, at p. 556. As with their better
known “legislative fact” cousins, “social facts” are general. They are not
specific to the circumstances of a particular case, but if properly linked to
the adjudicative facts, they help to explain aspects of the evidence. Examples
are the Court’s acceptance of the “battered wife syndrome” to explain the
wife’s conduct in R. v. Lavallee,  1 S.C.R. 852, or the effect of
the “feminization of poverty” judicially noticed in Moge v. Moge, 
3 S.C.R. 813, at p. 853, and of the systemic or background factors that have
contributed to the difficulties faced by aboriginal people in both the criminal
justice system and throughout society at large in R. v. Wells,  1
S.C.R. 207, 2000 SCC 10, at para. 53, and in R. v. Gladue,  1
S.C.R. 688, at para. 83.
No doubt there is a useful distinction between “adjudicative facts” (the
where, when and why of what the accused is alleged to have done) and “social
facts” and “legislative facts” which have relevance to the reasoning process
and may involve broad considerations of policy: Paciocco and Stuesser, at p.
286. However, simply categorizing an issue as “social fact” or “legislative
fact” does not license the court to put aside the need to examine the
trustworthiness of the “facts” sought to be judicially noticed. Nor are
counsel encouraged to bootleg “evidence in the guise of authorities”: Public
School Boards’ Assn. of Alberta v. Alberta (Attorney General),  3
S.C.R. 845, at para. 3.
The distinction between legislative and adjudicative facts was
formulated by the astute administrative law expert, Kenneth Culp Davis, who
thought it important to distinguish for purposes of judicial notice between
“adjudicative” fact (where he thought the Morgan criteria should apply) and
“legislative” fact (where he tended to side with Thayer): K. C. Davis, Administrative
Law Treatise (2nd ed. 1980), vol. 3, at p. 139. The proof of
facts about widespread racism in the community, and whether or not it is so
strong as to create a “realistic possibility” of overcoming a juror’s presumed
impartiality, has to do with juries in general and judicial policy towards
their composition. Such matters, according to Sopinka J., “are subject to less
stringent admissibility requirements” (Danson v. Ontario (Attorney General),
 2 S.C.R. 1086, at p. 1099). The “less stringent” standard was not
Professor Davis’ useful distinction between adjudicative facts and
legislative facts is part of his larger insight, highly relevant for present
permissible scope of judicial notice should vary according to the nature of the
issue under consideration. For example, more stringent proof may be called
for of facts that are close to the center of the controversy between the
parties (whether social, legislative or adjudicative) as distinguished from
background facts at or near the periphery.
To put it another way, the closer the fact approaches the dispositive
issue, the more the court ought to insist on compliance with the stricter
Morgan criteria. Thus in Find, the Court’s consideration of alleged
juror bias arising out of the repellant nature of the offences against the
accused did not relate to the issue of guilt or innocence, and was not
“adjudicative” fact in that sense, but nevertheless the Court insisted on
compliance with the Morgan criteria because of the centrality of the issue, which
was hotly disputed, to the disposition of the appeal. While some learned
commentators seek to limit the Morgan criteria to adjudicative fact (see,
e.g., Paciocco and Stuesser, at p. 286; McCormick, at p. 316), I believe
the Court’s decision in Find takes a firmer line. I believe a review of
our jurisprudence suggests that the Court will start with the Morgan criteria,
whatever may be the type of “fact” that is sought to be judicially noticed.
The Morgan criteria represent the gold standard and, if satisfied, the “fact”
will be judicially noticed, and that is the end of the matter.
If the Morgan criteria are not satisfied, and the fact is
“adjudicative” in nature, the fact will not be judicially recognized,
and that too is the end of the matter.
It is when dealing with social facts and legislative facts that the
Morgan criteria, while relevant, are not necessarily conclusive. There are
levels of notoriety and indisputability. Some legislative “facts” are
necessarily laced with supposition, prediction, presumption, perception and
wishful thinking. Outside the realm of adjudicative fact, the limits of
judicial notice are inevitably somewhat elastic. Still, the Morgan criteria
will have great weight when the legislative fact or social fact approaches the
dispositive issue. For example, in R. v. Advance Cutting & Coring Ltd.,
 3 S.C.R. 209, 2001 SCC 70, LeBel J. observed:
The fact that unions intervene in political social
debate is well known and well documented and might be the object of judicial
notice. . . .
Taking judicial notice of the fact that Quebec
unions have a constant ideology, act in constant support of a particular cause
or policy, and seek to impose that ideology on their members seems far more
controversial. It would require a leap of faith and logic, absent a proper
factual record on the question. [paras. 226-27]
See also Gladue,
at para. 83.
The reality is that in many Charter cases (for example), the
adjudicative facts are admitted. It is the legislative facts or social facts
that are likely to prove dispositive (e.g., R. v. Sharpe,  1
S.C.R. 45, 2001 SCC 2; R. v. Butler,  1 S.C.R. 452; Little
Sisters Book and Art Emporium v. Canada (Minister of Justice),  2
S.C.R. 1120, 2000 SCC 69). The Court in those cases was rightly careful to
keep judicial notice on a relatively short leash, while at the same time
acknowledging that facts cannot be demonstrated with greater precision than the
subject matter permits.
When asked to take judicial notice of matters falling between the high
end already discussed where the Morgan criteria will be insisted upon, and the
low end of background facts where the court will likely proceed (consciously or
unconsciously) on the basis that the matter is beyond serious controversy, I
believe a court ought to ask itself whether such “fact” would be accepted by
reasonable people who have taken the trouble to inform themselves on the topic
as not being the subject of reasonable dispute for the particular purpose
for which it is to be used, keeping in mind that the need for reliability
and trustworthiness increases directly with the centrality of the “fact” to the
disposition of the controversy. Thus, for example, journalists claim that
“everybody knows” some important news sources will dry up unless their identity
can be kept secret. On that basis, some courts have been prepared to refuse
(or delay) compelling journalists to disclose confidential sources for the
purpose of defamation proceedings, e.g., Hays v. Weiland (1918), 43
D.L.R. 137 (Ont. C.A.); Reid v. Telegram Publishing Co.,  O.R. 418
(S.C.); Drabinsky v. Maclean-Hunter Ltd. (1980), 28 O.R. (2d) 23 (H.C.);
McInnis v. University Students’ Council of University of Western Ontario
(1984), 14 D.L.R. (4th) 126 (Ont. H.C.), leave to appeal to Divisional Court
refused, at p. 127. However, when the issue of compelled disclosure of
confidential sources became dispositive in Moysa v. Alberta (Labour
Relations Board),  1 S.C.R. 1572, the Court declined to recognize any
Charter entitlement for journalists to refuse to disclose “secret”
sources before an administrative tribunal, at p. 1581, per Sopinka J.:
While judicial notice may be taken of self-evident facts, I am not
convinced that it is indisputable that there is a direct relationship between
testimonial compulsion and a “drying-up” of news sources as alleged by the
appellant. The burden of proof that there has been a violation of s. 2(b)
rests on the appellant. Absent any evidence that there is a tie between the
impairment of the alleged right to gather information and the requirement that
journalists testify before the Labour Relations Board, I cannot find that there
has been a breach of s. 2(b) in this case.
Both of these examples dealt with the “legislative facts” underlying a
claimed rule giving effect to journalistic privilege. For the purposes of
regulating procedures in defamation proceedings, the courts were prepared to
accept as a reasonable generalization that failure to respect confidential
sources would “chill” the gathering of news, which would not be in the public
interest. In Moysa, however, for the very different purpose of
considering whether the underlying “legislative fact” was sufficiently beyond
controversy to support a claim to entrenchment as a Charter privilege,
the generalization was subjected to closer scrutiny.
Here, the respondent and the African Canadian Legal Clinic are asking
the Court to make some fundamental shifts in the law’s understanding of how
juries function and how the selection of their members should be approached.
Their submissions carry us well beyond the specific context in which Williams
and Parks were decided. The facts of which they ask us to take judicial
notice would be dispositive of the appeal; yet they are neither notorious nor
easily verified by reference to works of “indisputable accuracy”. We are urged
to pile inference onto inference. To take judicial notice of such matters for
this purpose would, in my opinion, be to take even a generous view of
judicial notice a leap too far. We do not know whether a favourable predisposition
based on race — to the extent it exists — is any more
prevalent than it is for people who share the same religion, or language, or
national origin, or old school. On the present state of our knowledge, I think
we should decline, at least for now, to proceed by way of judicial notice down
the road the African Canadian Legal Clinic has laid out for us.
I would add this comment: in R. v. Malmo-Levine,  3 S.C.R.
571, 2003 SCC 74, a majority of our Court expressed a preference for social
science evidence to be presented through an expert witness who could be
cross-examined as to the value and weight to be given to such studies and
reports. This is the approach that had been taken by the litigants in Sharpe,
Little Sisters, Malmo-Levine itself and subsequently in Canadian
Foundation for Children, Youth and the Law v. Canada (Attorney General),
 1 S.C.R. 76, 2004 SCC 4. We said in Malmo-Levine that
courts should nevertheless proceed cautiously to take judicial notice
even as “legislative facts” of matters . . . are reasonably open to
dispute, particularly where they relate to an issue that could be dispositive .
. . . [para. 28]
that even legislative and social “facts” should be established by expert
testimony rather than reliance on judicial notice was also made in cases as
different from one another as Find, Moysa, Danson, at
p. 1101, Symes v. Canada,  4 S.C.R. 695, Waldick v.
Malcolm,  2 S.C.R. 456, at pp. 472-73, Stoffman v. Vancouver
General Hospital,  3 S.C.R. 483, at pp. 549-50, R. v. Penno,
 2 S.C.R. 865, at pp. 881-82, and MacKay v. Manitoba, 
2 S.C.R. 357. Litigants who disregard the suggestion proceed at some risk.
I accept that, as Finlayson J.A. pointed out in Koh, sometimes
expert testimony is hard to come by and may in any event be beyond the
resources of the particular litigants. As will be seen, I think such
considerations in the context of challenges for cause are better addressed as
part of the court’s concern for trial fairness and the necessary perception of
fairness, rather than being allowed to dilute the principled exercise of
C. Did the Trial Judge Exceed His Discretion in
Rejecting the “Full” Parks Question on the Facts of This Case?
In Find, McLachlin C.J. stated emphatically:
Ultimately, the decision to allow or deny an
application to challenge for cause falls to the discretion of the trial
judge. [Emphasis added; para. 45.]
In Williams, McLachlin J. had affirmed the “wide discretion”
of trial judges (para. 13), and held:
Ultimately, it is within the discretion of the trial
judge to determine whether widespread racial prejudice in the community, absent
specific “links” to the trial, is sufficient to give an “air of reality” to the
challenge in the particular circumstances of each case. [Emphasis
added; para. 30.]
Thus, even in
the case of an aboriginal accused charged with robbery of a white person, the
right to challenge for cause would not be “automatic” (para. 41).
It is true that in the Ontario quartet the Court of Appeal in Parks,
Wilson, Campbell and Koh concluded that the trial judge
had erred in the exercise of his discretion, but occasional errors in the
exercise of a discretion do not undermine the reality of its existence. Here
the trial judge misremembered the Parks question, but he made it clear
that regardless of the wording of the Parks question he would not
allow the “interracial” element to be pursued because he did not consider it
relevant. In each case, the trial judge must determine whether there is an
“air of reality” to the challenge “in the particular circumstances of each
case” (Williams, at para. 30). As did Laskin J.A., I conclude that on
“the particular circumstances” of this case it cannot be said that the trial
judge exceeded the scope of his discretion in proceeding as he did.
D. In Any Event, Did Trial Fairness and the
Appearance of Trial Fairness Require the Full Parks Question Be Put?
Much of the reasoning in Parks is related to fairness,
perceptions of fairness, and the need to maintain confidence in the jury system
in all parts of the community. On this point, the Royal Commission on the
Donald Marshall, Jr., Prosecution had this to say:
At the moment, Blacks and Natives clearly do feel
aggrieved by their treatment at all levels of the justice system: by police,
Crown prosecutors, defence lawyers, government officials and judges. Blacks and
Natives believe that those working in the system — from top to
bottom — lack sensitivity in dealing with members of visible minority
groups. They believe they have no stake in what they regard as the “White man’s
. . .
It is difficult, perhaps impossible, to measure the
extent to which this perception is based on reality. But that, in our view, is
not the issue. Nova Scotians must have confidence that the legal system is fair
and unbiased. If a large segment of the population does not accept that
proposition, then the system itself must accept some responsibility and must
begin the process of change. [pp. 151 and 184]
In Williams, the accused had filed an affidavit that stated, in
part, “I . . . hope that the 12 people that try me are not Indian
haters” (para. 3). The Court held that, as a matter of judicial policy,
[i]t is better to risk allowing what are in fact unnecessary
challenges, than to risk prohibiting challenges which are
necessary . . . . [para. 22]
In Koh, Finlayson J.A. spoke of the need for “the appearance
of trial fairness, both in the eyes of the accused and members of minority
groups” (para. 43 (emphasis added)).
Trial fairness trumps technicalities. If the trial judge were persuaded
that the appearance of fairness to the respondent accused required the full Parks
question, he ought to have permitted it, regardless of his recollection of the Parks
question, the state of the social science or the nuanced limits of judicial
notice. The question, however, is where the Court draws the “fairness” line.
In the Johnson article, cited above and referred to both in Williams and
Parks, reference is made to a study investigating the effect of the
defense lawyer’s race on the determination of his client’s guilt. The
study found a consistent anti-black defence lawyer bias (p. 1635). Does
“fairness” require that the race of counsel be included in the Parks
question? Then there is the study by R. M. Bagby and N. A. Rector,
“Prejudicial Attitudes in a Simulated Legal Context” (1991), 11 Health L.
Can. 94, referred to by Doherty J.A. in Parks. They reported a
study in which English speaking Canadians were provided with a modified court
transcript of a rape trial whereby the ethnicity of the defendant and the
victim were varied. The study found that English speaking Canadians viewed
French speaking Canadians more positively than either English or native
Canadians. The victim was viewed more positively when she was French, and the
accused was seen as more guilty when the victim was French. Can such
complications of race and ethnicity be followed up as a matter of fairness
without embracing the American model which, to date, Canadian courts have
declined to do?
It may be that race is a more powerful, corrosive and unmanageable
factor than any of these other potential sources of discrimination,
particularly at the level of visible minorities. But in this case, with
respect, I do not think fairness to the accused or the vitally necessary appearance
of fairness was compromised. The only issue of importance to the defence was
identification. Neither the race of the complainant nor his testimony of what
happened shed any light on identification. In the circumstances of this case,
the trial judge did not think that leaving the “interracial” element out of the
Parks question was unfair. That is a determination he was entitled to
make. We should not interfere simply because we might have concluded in his
place that greater reassurance might have been given to the accused had the
full Parks question been put.
For the reasons given, I conclude that on the facts of this case, it was
within the discretion of the trial judge to decline a challenge for cause
targeting the “interracial element” of the crime. While the fact that the
accused was black justified a challenge for cause on that basis, the additional
fact that the pizza deliveryman in this case was of East Indian origin did not
compound the prejudice and therefore did not need to be the subject of a
separate inquiry to potential jurors.
I therefore would allow the appeal, set aside the decision of the
Ontario Court of Appeal and restore the conviction. The case is to be remitted
to the Ontario Court of Appeal to deal with the respondent’s appeal with
respect to sentence.
Solicitor for the appellant: Ministry of the Attorney
Solicitors for the respondent: Hicks, Block, Adams,
Solicitor for the intervener: African Canadian Legal