R. v. Find,  1 S.C.R. 863, 2001
Karl Find Appellant
Her Majesty The Queen Respondent
The Attorney General for Alberta and
the Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Find
Neutral citation: 2001 SCC 32.
File No.: 27495.
2000: October 13; 2001: May 24.
Present: McLachlin C.J. and L’Heureux‑Dubé,
Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Criminal law – Jurors – Right to challenge for
cause – Nature of offence – Whether charges of sexual assault against children
raise realistic possibility of juror partiality entitling accused to challenge
for cause – Criminal Code, R.S.C. 1985, c. C‑46, s. 638(1)(b).
The accused was charged with 21 counts of sexual
offences involving complainants ranging between 6 and 12 years of age at the
time of the alleged offences. Prior to jury selection, he applied to challenge
potential jurors for cause, arguing that the nature of the charges against him
gave rise to a realistic possibility that some jurors might be unable to try
the case against him impartially and solely on the evidence before them. The
trial judge rejected the application. The accused was tried and convicted on
17 of the 21 counts. The majority of the Court of Appeal dismissed the
accused’s appeal, upholding the trial judge’s ruling not to permit the accused
to challenge prospective jurors for cause.
Held: The appeal should be dismissed. The nature of the charges
against the accused did not give rise to the right to challenge prospective
jurors for cause on the ground of partiality.
Section 638(1)(b) of the Criminal Code
permits a party to challenge for cause where a prospective juror is not
indifferent between the Crown and accused. Lack of indifference constitutes
partiality. 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.
The first branch of the test is concerned with the existence of a material
bias, while the second is concerned with the potential effect of the bias on
the trial process. However, the overarching consideration, in all
cases, is whether there exists a realistic potential for partial juror
behaviour. The first branch involves two concepts: “bias” and “widespread”.
“Bias” in the context of challenges for cause refers to an attitude that could
lead jurors to decide the case in a prejudicial and unfair manner. Prejudice
capable of unfairly affecting the outcome of the case is required. Bias is not
determined at large but in the context of the specific case and may flow from a
number of different attitudes. The second concept, “widespread”, relates to
the prevalence or incidence of the bias in question. The bias must be sufficiently
pervasive in the community to raise the possibility that it may be harboured by
members of a jury pool. If widespread bias is shown, the second branch of the
test requires an accused to show that some jurors may not be able to set aside
their bias despite the cleansing effect of the trial judge’s instructions and
the trial process itself. Ultimately, the decision to allow or deny an
application to challenge for cause falls to the discretion of the trial judge.
Where a realistic potential for partiality is shown to exist, the right to
challenge must follow. If in doubt, the judge should err on the side of
permitting challenges. Since jurors are presumed to be impartial, in order to
rebut the presumption of impartiality, a party must call evidence or ask the
trial judge to take judicial notice of facts, or both. In addition, the judge
may draw inferences from events that occur in the proceedings and may make
common sense inferences about how certain biases, if proved, may affect the
decision‑making process. The accused did not call any evidence in
support of his application but relied heavily on proof by judicial notice. 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
Here, the material presented by the accused falls
short of grounding judicial notice of widespread bias in Canadian society
against an accused in sexual assault trials. First, while the widespread
nature of abuse and its potentially traumatic impact are not disputed,
widespread victimization, standing alone, fails to establish widespread bias
that might lead jurors to discharge their task in a prejudicial and unfair
manner. Second, strong views about a serious offence do not ordinarily
indicate bias and nothing in the material supports the contention, nor is it
self‑evident, that an exception arises in the case of sexual assaults on
children. Third, there was also no proof that widespread myths and stereotypes
undermine juror impartiality. While stereotypical beliefs might incline some
jurors against an accused, it is not notorious or indisputable that they enjoy
widespread acceptance in Canadian society. Fourth, although crimes arouse deep
and strong emotions, one cannot automatically equate strong emotions with an
unfair and prejudicial bias against the accused. Jurors are not expected to be
indifferent toward crimes. Strong emotions are common to the trial of many
serious offences and have never grounded a right to challenge for cause. The
proposition that sexual offences are generically different from other crimes in
their tendency to arouse strong passions is debatable, and does not, therefore,
lend itself to judicial notice. Fifth, the survey of past challenge for cause
cases involving sexual offences does not, without more, establish widespread
bias arising from sexual assault charges. The number of prospective jurors
disqualified, although relied on as support for judicial notice of widespread
bias, is equally consistent with the conclusion that the challenge processes
disqualified prospective jurors for acknowledging the intense emotions,
beliefs, experiences and misgivings anyone might experience when confronted
with the prospect of sitting as a juror on a case involving charges of sexual
offences against children. Lastly, the theory of “generic prejudice” against
accused persons in sexual assault trials has not been proved, nor could
judicial notice be taken of the proposition that such prejudice exists. While
judicial notice could be taken of the fact that sexual crimes are almost
universally abhorred, this does not establish widespread bias arising from
sexual assault trials.
Although the accused failed to satisfy the first
branch of the test for partiality, it is prudent to consider the second branch,
as the two parts are not watertight compartments. It is open to a trial judge
reasonably to infer, in the absence of direct evidence, that some strains of
bias by their very nature may prove difficult for jurors to identify and
eliminate from their reasoning. The strength of the inference varies with the
nature of the bias in issue, and its amenability to judicial cleansing.
Fundamental distinctions exist between racial bias and the more general bias
relating to the nature of the offence itself. Firstly, racial bias may impact
more directly on a jury’s decision than bias stemming from the nature of the
offence because it is directed against a particular class of accused by virtue
of an identifiable immutable characteristic. Secondly, trial safeguards may be
less successful in cleansing racial prejudice because of its subtle, systemic
and often unconscious operation. Bias directed toward the nature of the
offence, however, is more susceptible to cleansing by the rigours of the trial
process because it is more likely to be overt and acknowledged. The trial
judge is more likely to address these concerns in the course of directions to
the jury. Moreover, many of the safeguards the law has developed may be seen
as a response to this type of bias. In the absence of evidence that strongly
held beliefs or attitudes may affect jury behaviour in an unfair manner, it is
difficult to conclude that they could not be cleansed by the trial process. It
is speculative to assume that jurors will act on their beliefs to the detriment
of an accused, in violation of their oath or affirmation, the presumption of
innocence and the directions of the trial judge. As well, absent evidence to
the contrary, there is no reason to believe that stereotypical attitudes about
accused persons charged with a crime of a sexual nature are more elusive of the
cleansing measures than stereotypical attitudes about complainants. It follows
that such myths and stereotypes, even if widespread, provide little support for
any inference of a behavioural link between these beliefs and the potential for
juror partiality. Finally, absent evidence, it is highly speculative to
suggest that the emotions surrounding sexual crimes will lead to prejudicial
and unfair juror behaviour. The safeguards of the trial process and the
instructions of the trial judge are designed to replace emotional reactions
with rational, dispassionate assessment. Our long experience in the context of
the trial of other serious offences suggests that our faith in this cleansing
process is not misplaced. The accused failed to establish that sexual offences
give rise to a strain of bias that is uniquely capable of eluding the cleansing
effect of trial safeguards.
Applied: R. v.
Williams,  1 S.C.R. 1128; R. v. Parks (1993), 84 C.C.C. (3d)
353; R. v. Sherratt,  1 S.C.R. 509; R. v. Betker (1997),
115 C.C.C. (3d) 421; referred to: R. v. K. (A.) (1999), 45 O.R.
(3d) 641; R. v. Barrow,  2 S.C.R. 694; R. v. G. (R.M.),
 3 S.C.R. 362; R. v. O’Connor,  4 S.C.R. 411; R. v.
Carosella,  1 S.C.R. 80; R. v. Lyons,  2 S.C.R. 309; R.
v. Harrer,  3 S.C.R. 562; M. (A.) v. Ryan,  1 S.C.R.
157; R. v. Leipert,  1 S.C.R. 281; R. v. Hubbert (1975), 29
C.C.C. (2d) 279; R. v. L. (R.) (1996), 3 C.R. (5th) 70; R. v.
Mattingly (1994), 28 C.R. (4th) 262; R. v. Potts (1982), 66 C.C.C.
(2d) 219; R. v. Alli (1996), 110 C.C.C. (3d) 283; R. v. Seaboyer,
 2 S.C.R. 577; R. v. Lavallée,  1 S.C.R. 852; R. v.
Hillis,  O.J. No. 2739 (QL); R. v. Osolin,  4
S.C.R. 595; R. v. Ewanchuk,  1 S.C.R. 330; R. v. W. (R.),
 2 S.C.R. 122; R. v. D.D.,  2 S.C.R. 275, 2000 SCC 43.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
Criminal Code, R.S.C. 1985, c. C‑46, ss. 626 to 644, 629(1), 632 [am. 1992,
c. 41, s. 2], 634, 638(1)(b), (2), 640(2), 649, 658(1).
Bala, N. “Double Victims:
Child Sexual Abuse and the Canadian Criminal Justice System”, in W. S.
Tarnopolsky, J. Whitman and M. Ouellette, eds., Discrimination in
the Law and the Administration of Justice. Montreal: Thémis, 1993, 231.
Canada. Law Reform Commission. Studies
on the Jury. “Jury Selection”, by Perry Schulman and Edward R. Myers.
Ottawa: The Commission, 1979.
Granger, Christopher. The
Criminal Jury Trial in Canada, 2nd ed. Scarborough, Ontario: Carswell,
New Oxford Dictionary of English. Oxford:
Clarendon Press, 1998, “bias”.
Paciocco, David. “Challenges for
Cause in Jury Selection after Regina v. Parks: Practicalities and
Limitations”. Toronto: Canadian Bar Association ‑ Ontario,
February 11, 1995.
Sopinka, John, Sidney N.
Lederman, and Alan W. Bryant. The Law of Evidence in Canada, 2nd
ed. Toronto: Butterworths, 1999.
Tanovich, David M.,
David M. Paciocco, and Steven Skurka. Jury Selection in Criminal
Trials: Skills, Science, and the Law. Concord, Ontario: Irwin Law, 1997.
Vidmar, Neil. “Generic Prejudice
and the Presumption of Guilt in Sex Abuse Trials” (1997), 21 Law & Hum.
Wiener, Richard L.,
Audrey T. Feldman Wiener, and Thomas Grisso. “Empathy and Biased
Assimilation of Testimonies in Cases of Alleged Rape” (1989), 13 Law &
Hum. Behav. 343.
APPEAL from a judgment of the Ontario Court of Appeal
(1999), 126 O.A.C. 261,  O.J. No. 3295 (QL), dismissing the
accused’s appeal from his conviction on 17 counts relating to sexual offences.
David M. Tanovich and
Umberto Sapone, for the appellant.
Jamie Klukach and
Jennifer Woollcombe, for the respondent.
David M. Paciocco,
for the intervener the Criminal Lawyers’ Association (Ontario).
Written submission by Jack Watson, Q.C.,
for the intervener the Attorney General for Alberta.
The judgment of the Court was delivered by
Chief Justice –
I - Introduction
Trial by jury is a cornerstone
of Canadian criminal law. It offers the citizen the right to be tried by an
impartial panel of peers and imposes on those peers the task of judging fairly
and impartially. Since our country’s earliest days, Canadian jurors have met
this challenge. Every year in scores
of cases, jurors, instructed that they must be impartial between the
prosecution and the accused, render fair and carefully deliberated verdicts.
Yet some cases may give rise to real fears that,
despite the safeguards of the trial
process and the directions of the trial judge,
some jurors may not be able to set aside personal views and function
The criminal law has developed procedures to address this possibility. One of the most important is the
right of the accused to challenge a potential juror “for cause” where
legitimate concerns arise. This Court recently held that widespread prejudice
against the accused’s racial group may permit an accused to challenge for
cause: R. v. Williams,  1 S.C.R. 1128. In this appeal we
are asked to find that charges of sexual assault of children similarly evoke
widespread prejudice in the community and also entitle the accused to challenge
prospective jurors for cause.
At stake are two important values. The first is the right to a fair
trial by an impartial jury under s. 11(d) of the Canadian Charter of
Rights and Freedoms. The second is the need to maintain an efficient trial
process, unencumbered by needless procedural hurdles. Our task is to set out
guidelines that ensure a fundamentally fair trial without unnecessarily
complicating and lengthening trials and increasing the already heavy burdens
placed on jurors.
The appellant was charged with sexual assault of children. Before the
jury was empanelled, he applied to challenge the potential jurors for cause.
The nature of the charges against him, he contended, gave rise to a realistic possibility that some prospective
jurors might harbour such prejudice
that they would be unable to act impartially and try the case solely on the
evidence before them. The trial judge rejected this request, as did the
majority of the Ontario Court of
Appeal. Before this Court, the
appellant reasserts his claim that the denial of the right to challenge for
cause violated s. 638(1)(b) of
the Criminal Code, R.S.C. 1985, c. C-46, and deprived him of his Charter
right to a fair trial.
I conclude that the
appellant has not established the right to challenge for cause. No basis has
been shown to support the conclusion that charges of sexual assault against
children raise a realistic possibility of juror partiality entitling the
accused to challenge for cause. Accordingly, the appeal must be dismissed.
II - History
of the Case
The appellant was tried on 21 counts of sexual assault involving
three complainants, who ranged between the
ages of 6 and 12 at the time of the
alleged offences. Prior to jury selection, defence counsel applied to
challenge potential jurors for cause. No evidence was led in support of this application;
rather, defence counsel contended a realistic potential for juror partiality arose from the ages of the
alleged victims, the high number of alleged assaults, and the alleged use of
violence. Defence counsel proposed that the
following questions be put to potential jurors:
Do you have strong feelings about the
issue of rape and violence on young children?
If so, what are those feelings based
Would those strong feelings concerning
the rape and violence on young children prevent you from giving Mr. Find a fair
trial based solely on the evidence given during the trial of this case?
judge, in a brief oral ruling, dismissed the application on the basis that it
simply “doesn’t fall anywhere near the dicta of the Court of Appeal in Regina
v. Parks” (in R. v. Parks (1993),
84 C.C.C. (3d) 353, the Ontario Court of Appeal held that the accused was
entitled to challenge potential jurors for cause on the basis of racial
Later, during the process of empanelling the jury, a potential juror spontaneously offered that
he had two children, stating “I just
don’t think I could separate myself from my feelings towards them and separate
the case”. This prospective juror was peremptorily challenged, and defence
counsel renewed the request to challenge for cause, to no avail. The appellant
was tried and convicted on 17 of the 21 counts.
The appellant appealed on the ground, inter alia, that the
trial judge erred in not allowing challenges
for cause. The spontaneous admission of the potential
juror during the selection process was the only evidence relied upon before the Ontario Court of
Appeal. The majority, per McMurtry C.J.O.,
held that this admission did not demonstrate a realistic potential for
partiality and offered no evidentiary basis for allowing challenges for cause:
(1999), 126 O.A.C. 261, at para. 8. Since no other evidence was led, the appellant could succeed only if the
court could take judicial notice of a widespread bias in the community in
relation to sexual offences of this kind. The majority held that judicial
notice could not be taken of that fact, for the reasons articulated in R. v. K. (A.) (1999), 45 O.R. (3d) 641, a
judgment released concurrently. Moldaver J.A. dissented on the challenge for
cause issue, also relying on his reasons from K. (A.). Since both opinions import the substance of their
reasons from the companion case of K. (A.), it is necessary to consider
this case in some detail.
K. (A.) involved
two brothers charged with the sexual
assault of children aged 4 to
12 years at the time of the alleged assaults. The majority of the Court
of Appeal, per Charron J.A., upheld the
trial judge’s decision to deny
challenges for cause, while allowing the appeal on other grounds. Charron J.A.
emphasized the distinction between racial prejudice and prejudice against
persons charged with sexual assault, arguing that the first goes to a want of indifference towards the
accused while the second relates to a want of indifference towards the nature
of the crime. The connection between
racial prejudice and a particular accused is direct and logical, whereas “strong attitudes about a particular crime, even when
accompanied by intense feelings of hostility and resentment towards
those who commit the crime, will rarely, if ever, translate into partiality in
respect of the accused” (para. 41). She rejected
the argument that this Court’s decision in Williams,
supra, expanded the right to challenge for cause. While Williams recognized the possibility
of bias arising from the nature of an offence, it did not eliminate the
need to show a realistic potential for partiality, which remains the governing test
for challenges for cause. This test
was not met in the case before the court.
Charron J.A. found little
support for the accused’s application
in statistics indicating widespread sexual abuse in Canadian society. These
statistics, she observed, only demonstrate the prevalence of abuse; they do not
indicate a resultant bias, let alone the nature of that bias or its impact on
jury deliberation. To her mind, they did not support the inference that there
exists a realistic risk of juror partiality. As to the appellant’s contention that widespread attitudes about sexual
offences may cause jurors to act contrary to their oath, Charron J.A. concluded
that the material before the court did not describe the alleged
attitudes, or indicate how they would affect juror behaviour. She noted that
the work of Professor Neil Vidmar, often advanced in support of the concept of
generic prejudice, is the subject of heated debate and suffers from a number of
flaws, most notably a lack of attention to the impact of juror attitudes on
Charron J.A. also found that the presence of “strong feelings,
opinions and beliefs” is not so notorious as
to be the subject of judicial notice –
in fact, it was unclear exactly what beliefs and opinions were being targeted
for judicial notice. Beliefs and opinions regarding allegations of sexual abuse
are all over the map: some believe children never lie about abuse, others
believe that children are especially susceptible to the influence of adults,
and that their testimony should not be relied upon; some believe the trial
system to be stacked in favour of the accused, others the complainant. Even if
these opinions and beliefs are accepted as widespread, they are likely to be
diffused in deliberation. The existence of feelings, opinions and beliefs
about the crime of sexual assault does not translate into partiality – jurors are neither presumed, nor desired, to
function as blank slates.
Finally, Charron J.A. remained unconvinced by evidence that a high proportion of prospective jurors were
successfully challenged for cause in cases where challenges were allowed. She
found it “impossible to draw any
meaningful inference from the answers provided by the jurors when confronted
with general questions such as those found . . . in this case and in other
cases relied upon” (K. (A.),
supra, at para. 51). Many of the responses demonstrated nothing more than
that the candidate would have difficulty hearing the case. No meaningful
direction had been provided by the trial judge on the nature of jury duty or
the meaning of impartiality, and no distinction drawn between partiality and
the beliefs, emotions and opinions that influence all decision making.
Moldaver J.A., dissenting on this
issue, was satisfied that a “realistic
potential” of juror partiality arises
from the nature of sexual assault charges, grounding a right in the accused to
challenge prospective jurors for cause. Considering the evidence in its
entirety, and taking judicial notice of what
he found to be notorious facts, he made a
number of preliminary findings: (1)
sexual abuse impacts a large percentage of the population, supporting a
reasonable inference that any jury panel may contain victims, perpetrators and
people closely associated with them; (2) the effects of sexual abuse, or
wrongful allegations, are potentially devastating and lifelong; (3) sexual
assault tends to be committed along gender lines; (4) women and children have
been subjected to systemic discrimination, including in the justice system –
recent changes have gone too far for some, but not far enough for others; (5)
where challenges for cause have been
permitted, literally hundreds of potential jurors have been found partial; and
(6) unlike many crimes, a wide variety of stereotypes and beliefs surround the
crime of sexual abuse.
Moldaver J.A. concluded that
these factors, in combination, raised a realistic concern about juror partiality. At the very least, they left him
in doubt, which should be
resolved in favour of the accused: Williams,
supra, at para. 22. While asserting that challenges for cause
based on the nature of the offence are exceptional, he concluded that “unlike other crimes, by
its nature, the crime of sexual abuse can give rise to intense and deep-seated
biases that may be immune to judicial cleansing and highly prejudicial to an accused” (K. (A.), supra,
at para. 189).
Two arguments held particular sway with Moldaver J.A. First, he
accepted that the high incidence of juror disqualification where
challenges for cause were allowed disclosed
the existence of a widespread bias against
persons charged with sexual assault. Second, he adopted Professor David Paciocco’s theory that the
prevalence of sexual assault and the politicization of this offence have created two groups of people, “dogmatists”
and “victims”, both of which contain people
who may be unable to set aside their political convictions or
experiences with abuse to render an impartial decision.
III - Relevant
Statutory and Constitutional Provisions
Criminal Code, R.S.C.
1985, c. C‑46
638. (1) A prosecutor or an accused is
entitled to any number of challenges on the ground that
. . .
juror is not indifferent between the Queen and the accused;
. . .
(2) No challenge for cause shall be allowed on a
ground not mentioned in subsection (1).
Canadian Charter of Rights and Freedoms
11. Any person charged with an offence has
. . .
(d) to be presumed
innocent until proven guilty according to law in a fair and public hearing by
an independent and impartial tribunal;
IV - Issue
Did the nature of the charges against the accused give rise to the right
to challenge jurors for cause on the ground of
V - Analysis
A. Overview of the Jury Selection Process
To provide context and guidance to the
determination of this issue, it is necessary to consider the process of jury
selection and the place of challenges for cause in that process.
The jury selection process falls into two stages. The first is the “pre-trial” process, whereby a
panel (or “array”) of prospective jurors is organized and made
available at court sittings as a pool from which trial juries are selected.
The second stage is the “in-court” process, involving the selection of a trial jury
from this previously prepared panel. Provincial and federal jurisdictions
divide neatly between these two stages: the first stage is governed by
provincial legislation, while the second stage falls within the exclusive domain
of federal law (see C. Granger, The
Criminal Jury Trial in Canada (2nd ed. 1996), at pp. 83-84; R. v. Barrow,
 2 S.C.R. 694, at pp. 712-13).
Both stages embody procedures designed
to ensure jury impartiality. The “pre-trial” stage advances this objective by randomly
assembling a jury pool of appropriate candidates from the greater community.
This is assured by provincial legislation addressing qualifications for jury
duty; compilation of the jury list; the summoning of panel members; selection
of jurors from the jury list; and conditions for being excused from jury duty.
These procedures furnish, so far as possible, a representative jury pool: R.
v. Sherratt,  1 S.C.R. 509, at pp. 525-26; P. Schulman and E. R.
Myers, “Jury Selection”, in Studies on the Jury (1979), a report to
the Law Reform Commission of Canada at p. 408.
The “in-court” process is governed
by ss. 626 to 644 of the Criminal Code. Its procedures directly address
juror impartiality. The selection of the jury from the assembled pool of
potential jurors occurs in an open courtroom, with the accused present. The
jury panel is brought into the courtroom and the trial judge makes a few
opening remarks to the panel. Provided the validity of the jury panel itself
is not challenged (pursuant to the grounds listed in s. 629(1)), the Registrar
reads the indictment, the accused enters a plea, and the empanelling of the
jury immediately begins: see Sherratt, supra, at pp. 519-22.
Members of the jury pool may be excluded from the jury in two ways
during the empanelling process. First, the trial judge enjoys a limited
preliminary power to excuse prospective
jurors. This is referred to as “judicial pre-screening” of the jury array. At common law, the trial judge was empowered
to ask general questions of the panel to uncover manifest bias or personal
hardship, and to excuse a prospective
juror on either ground. Today in Canada, the judge typically raises these
issues in his remarks to the panel, at which point those in the pool who may
have difficulties are invited to identify themselves. If satisfied that
a member of the jury pool should not serve
either for reasons of manifest bias or hardship, the trial judge may excuse
that person from jury service.
Judicial pre-screening at common law developed
as a summary procedure for expediting jury selection where the prospective
juror’s partiality was uncontroversial, such as where he or she had an interest in
the proceedings or was a relative of a witness or the accused: Barrow,
supra, at p. 709. The consent of both parties to the judicial
pre-screening was presumed, provided the reason for discharge was “manifest” or
obvious. Otherwise, the challenge for cause procedure applied: Sherratt, supra, at p. 534. In 1992,
s. 632 of the Criminal Code was enacted to address judicial
pre-screening of the jury panel. This provision allows the judge, at
any time before the trial commences, to excuse a prospective juror for personal
interest, relationship with the judge, counsel, accused or prospective
witnesses, or personal hardship or
other reasonable cause.
The second way members of the jury may
be excluded during the empanelling process is upon a challenge of the
prospective juror by the Crown or the accused. Both parties are entitled to
challenge potential members of the jury as these prospective jurors are called
to “the book”. Two types of challenge are available to both the
Crown and the accused: (1) a limited number of peremptory challenges without
providing reasons pursuant to s. 634; and (2) an unlimited number of challenges
for cause, with leave of the judge, on one of the grounds enumerated under s.
638(1) of the Criminal Code.
One ground for challenge for cause is that a prospective juror is “not indifferent between the Queen and the accused”: Criminal Code, s. 638(1)(b).
If the judge is satisfied that a realistic potential for juror partiality
exists, he or she may permit the requested challenges for cause. If challenged
for cause, the impartiality of the candidate is tried by two triers of fact,
usually two previously sworn jurors: Criminal Code, s. 640(2). Absent
elimination, the juror is sworn and takes his or her place in the jury
box. After the full complement of 12 jurors
is empanelled, the accused is placed in their charge, and the trial commences.
The Canadian system of selecting jurors may be contrasted with
procedures prevalent in the United States. In
both countries the aim is to select a jury that will decide the case
impartially. The Canadian system, however, starts from the presumption that
jurors are capable of setting aside their views and prejudices and acting
impartially between the prosecution and the accused upon proper instruction by
the trial judge on their duties. This presumption is displaced only where
potential bias is either clear and obvious (addressed by judicial
pre-screening), or where the accused or prosecution shows reason to suspect
that members of the jury array may possess biases that cannot be set aside
(addressed by the challenge for cause process). The American system, by
contrast, treats all members of the jury pool as presumptively suspect, and
hence includes a preliminary voir dire process, whereby prospective
jurors are frequently subjected to extensive questioning, often of a highly
personal nature, to guide the respective parties in exercising their peremptory
challenges and challenges for cause.
The respective benefits and costs of the different approaches may be debated.
With respect to benefits, it is unclear that the American system produces
better juries than the Canadian system. As Cory J. observed in R. v. G.
(R.M.),  3 S.C.R. 362, at para. 13,
we possess “a centuries-old tradition
of juries reaching fair and courageous verdicts”. With respect to costs, jury selection under the American
system takes longer and intrudes more markedly
into the privacy of prospective jurors. It has also been suggested that
the extensive questioning permitted by this process, while aimed at providing
an impartial jury, is open to abuse by counsel seeking to secure a favourable
jury, or to indoctrinate jurors to their views of the case (see Schulman and
Myers, supra, at p. 429).
The ultimate requirement of a system of jury selection is that it results in a fair trial. A fair trial, however, should
not be confused with a perfect trial, or the most advantageous trial possible
from the accused’s perspective. As I
stated in R. v. O’Connor,  4 S.C.R. 411, at para. 193, “[w]hat constitutes a fair trial takes into
account not only the perspective of the accused, but the practical limits of
the system of justice and the lawful interests of others involved in the
process. . . . What the law demands is not perfect justice, but fundamentally
fair justice”. See also R. v. Carosella,
 1 S.C.R. 80, at para. 72; R. v. Lyons,  2 S.C.R. 309, at p.
362; R. v. Harrer,  3 S.C.R. 562, at para. 14. At the same time,
occasional injustice cannot be accepted as the price of efficiency: M.
(A.) v. Ryan,  1 S.C.R. 157, at
para. 32; R. v. Leipert,  1 S.C.R. 281.
These are the considerations that must guide us in assessing
whether the appellant in this case has
established the right to challenge for cause. Challenges for cause that will
serve no purpose but to increase delays and intrude on prospective jurors’ privacy are to be avoided. As the Ontario Court of
Appeal cautioned in R. v. Hubbert (1975), 29 C.C.C. (2d) 279, at p. 291:
“[t]rials should not be unnecessarily
prolonged by speculative and sometimes suspect challenges for cause”. However, if there exists reason to believe that
the jury pool may be so tainted by incorrigible prejudices that the trial may
not be fair, then challenges for cause must be allowed.
The Test: When Should Challenges for Cause Be Granted Under Section
1. The Test for Partiality
Section 638(1)(b) of the Code
permits a party to challenge for cause on the ground that “a juror is not
indifferent between the Queen and the accused”. Lack of indifference may be
translated as “partiality”. Both terms
describe a predisposed state of mind inclining a juror prejudicially and
unfairly toward a certain party or conclusion: see Williams, supra,
at para. 9.
In order to challenge for cause under s. 638(1)(b),
one must show a “realistic potential”
that the jury pool may contain people who are not impartial, in the sense that
even upon proper instructions by the trial judge they may not be able to set
aside their prejudice and decide fairly between the Crown and the accused: Sherratt,
supra; Williams, supra, at para. 14.
As a practical matter, 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. These two
components of the challenge for cause test reflect, respectively, the attitudinal
and behavioural components of partiality: Parks, supra, at
pp. 364-65; R. v. Betker (1997), 115 C.C.C. (3d) 421 (Ont. C.A.),
at pp. 435-36.
These two components of the test
involve distinct inquiries. The first is concerned with the existence of a
material bias, and the second with the potential effect of the bias on the
trial process. However, the overarching consideration, in all cases, is
whether there exists a realistic potential for partial juror behaviour. The
two components of this test serve to ensure that all aspects of the issue are
examined. They are not watertight compartments, but rather guidelines for
determining whether, on the record before the court, a realistic possibility
exists that some jurors may decide the case on the basis of preconceived
attitudes or beliefs, rather than the evidence placed before them.
The test for partiality involves
two key concepts: “bias” and “widespread”. It is important to understand how
each term is used.
The New Oxford Dictionary of English (1998), at p. 169, defines
“bias” as “prejudice in favour of or against one thing, person, or group
compared with another, especially in a way considered to be unfair”. “Bias”,
in the context of challenges for cause, refers to an attitude that could lead
jurors to discharge their function in the case at hand in a prejudicial and unfair manner.
It is evident from the definition of bias that not every emotional or
stereotypical attitude constitutes bias. Prejudice capable of unfairly
affecting the outcome of the case is required. Bias is not determined at
large, but in the context of the specific case. What must be shown is a bias
that could, as a matter of logic and experience, incline a juror to a certain
party or conclusion in a manner that is unfair. This is determined without
regard to the cleansing effect of trial safeguards and the direction of the
trial judge, which become relevant only at the second stage consideration of
the behavioural effect of the bias.
Courts have recognized that “bias” may flow from a number of different
attitudes, including: a personal interest in the matter to be tried (Hubbert,
supra, at p. 295; Criminal Code,
s. 632); prejudice arising from prior exposure to the case, as in
the case of pre-trial publicity (Sherratt, supra, at p. 536); and
prejudice against members of the accused’s social or racial group (Williams,
supra, at para. 14).
In addition, some have suggested that bias may result from the nature
and circumstances of the offence with which the accused is charged: R. v. L.
(R.) (1996), 3 C.R. (5th) 70 (Ont. Ct. (Gen. Div.)); R. v. Mattingly (1994),
28 C.R. (4th) 262 (Ont. Ct. (Gen. Div.)); N.
Vidmar, “Generic Prejudice and the
Presumption of Guilt in Sex Abuse Trials”
(1997), 21 Law & Hum. Behav. 5. In Williams, supra,
at para. 10, this Court referred to Vidmar’s suggestion that bias might, in
some cases, flow from the nature of the offence. However, the Court has not,
prior to this case, directly considered this kind of bias.
The second concept, “widespread”, relates to the prevalence or
incidence of the bias in question. Generally speaking, the alleged bias must
be established as sufficiently pervasive in the community to raise the
possibility that it may be harboured by one or more members of a representative
jury pool (although, in exceptional circumstances, a less prevalent bias may
suffice, provided it raises a realistic potential of juror partiality: Williams,
supra, at para. 43). If only a few individuals in the community hold
the alleged bias, the chances of this bias tainting the jury process are
negligible. For this reason, a court must
generally be satisfied that the alleged bias is widespread in the community
before a right to challenge for cause may flow.
If widespread bias is shown, a second question arises: may some jurors
be unable to set aside their bias despite the cleansing effect of the judge’s
instructions and the trial process? This is the behavioural component of the
test. The law accepts that jurors may enter the trial with biases. But the
law presumes that jurors’ views and biases will be cleansed by the trial
process. It therefore does not permit a party to challenge their right to sit
on the jury because of the existence of widespread
Trial procedure has evolved over the centuries to counter biases. The
jurors swear to discharge their functions impartially. The opening addresses
of the judge and the lawyers impress upon jurors the gravity of their task, and
enjoin them to be objective. The rules of process and evidence underline the
fact that the verdict depends not on this or that person’s views, but on the
evidence and the law. At the end of the day, the jurors are objectively
instructed on the facts and the law by the judge, and sent out to deliberate in
accordance with those instructions. They are asked not to decide on the basis
of their personal, individual views of the evidence and law, but to listen to
each other’s views and evaluate their own inclinations in light of those views
and the trial judge’s instructions. Finally, they are told that they must not
convict unless they are satisfied of the accused’s guilt beyond a reasonable
doubt and that they must be unanimous.
It is difficult to conceive stronger antidotes than these to emotion,
preconception and prejudice. It is against the backdrop of these safeguards
that the law presumes that the trial process will cleanse the biases jurors may
bring with them, and allows challenges for cause only
where a realistic potential
exists that some jurors may not be able to function impartially, despite the rigours of the trial process.
It follows from what has been said that “impartiality” is not the same
as neutrality. Impartiality does not require that the juror’s mind be a blank
slate. Nor does it require jurors to jettison all opinions, beliefs, knowledge
and other accumulations of life experience as
they step into the jury box. Jurors are human beings, whose life experiences
inform their deliberations. Diversity is essential to the jury’s
functions as collective decision-maker and representative conscience of the
community: Sherratt, supra, at pp. 523-24. As Doherty J.A.
observed in Parks, supra, at p. 364, “[a] diversity of
views and outlooks is part of the genius of the jury system and makes jury
verdicts a reflection of the shared values of the community”.
To treat bias as permitting challenges for cause, in the absence of a link with partial juror behaviour, would exact a
heavy price. It would erode the threshold for entitlement defined in Sherratt
and Williams, and jeopardize the representativeness of the
jury, excluding from jury service people who could bring valuable experience
and insight to the process. Canadian law holds that “finding out what kind of juror the person called is
likely to be – his personality,
beliefs, prejudices, likes or dislikes”
is not the purpose of challenges for cause: Hubbert, supra, at p.
289. The aim is not favourable jurors, but impartial jurors.
Ultimately, the decision to
allow or deny an application to challenge for cause falls to the discretion of
the trial judge. However, judicial discretion should not be confused with
judicial whim. Where a realistic potential for partiality exists, the right to
challenge must flow: Williams, supra, at para. 14. If in
doubt, the judge should err on the side of permitting challenges. Since the right of the accused to a fair trial is at
stake, “[i]t is better to risk allowing
what are in fact unnecessary challenges, than to risk prohibiting challenges
which are necessary”: Williams, supra,
at para. 22.
How a Realistic Potential for Partiality May Be Established
A party may displace the presumption of juror impartiality by
calling evidence, by asking the judge to take judicial notice of facts, or
both. In addition, the judge may draw inferences from events that occur in the
proceedings and may make common sense inferences about how certain biases, if
proved, may affect the decision-making process.
The first branch of the inquiry – establishing relevant widespread bias– requires evidence, judicial notice or trial
events demonstrating a pervasive bias in the
community. The second stage of the inquiry – establishing a behavioural link between widespread attitudes
and juror conduct – may be a matter of proof, judicial notice, or simply
reasonable inference as to how bias might influence
the decision-making process: Williams, supra, at para. 23.
In this case, the appellant relies heavily on proof by judicial notice.
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: R. v.
Potts (1982), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S. N. Lederman
and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p.
The scientific and statistical
nature of much of the information relied upon
by the appellant further complicates this case. Expert evidence is by
definition neither notorious nor capable of immediate and accurate
demonstration. This is why it must be proved through an expert whose
qualifications are accepted by the court and who is available for
cross-examination. As Doherty J.A. stated in R. v. Alli (1996), 110
C.C.C. (3d) 283 (Ont. C.A.), at p. 285:
“[a]ppellate analysis of untested social science data should not be regarded as
the accepted means by which the scope of challenges for cause based on generic
prejudice will be settled”.
C. Were the Grounds for Challenge for Cause Present in
To challenge prospective jurors
for cause, the appellant must displace the presumption of juror impartiality by
showing a realistic potential for partiality. To do this, the appellant must
demonstrate the existence of a widespread bias arising from the nature of the
charges against him (the “attitudinal” component), that raises a realistic potential for
partial juror behaviour despite the safeguards of the trial process (the “behavioural”
component). I will discuss each of these requirements in turn as they apply to
In this case, the appellant alleges
that the nature and the circumstances of the offence with which he is
charged give rise to a bias that could
unfairly incline jurors against him
or toward his conviction. He further alleges that this bias is
widespread in the community. In support of this submission, the appellant
relies on the following propositions from
Moldaver J.A.’s dissent in K. (A.),
supra, at para. 166. The parties generally agree on these facts, but dispute the conclusions to be drawn from them:
and surveys conducted in Canada over the past two decades reveal that a large
percentage of the population, both male and female, have been the victims of
sexual abuse. From this, it is reasonable to infer that any given jury panel
may contain victims of sexual abuse, perpetrators and people closely associated
harmful effects of sexual abuse can prove devastating not only to those who
have been victimized, but those closely related to them. Tragically, many
victims remain traumatized and psychologically scarred for life. By the
same token, for those few individuals who have been wrongfully accused of
sexual abuse, the effects can also be devastating.
assault tends to be committed along gender lines. As a rule, it is women and
children who are victimized by men.
and children have been subjected to systemic discrimination reflected in both
individual and institutional conduct, including the criminal justice system. As
a result of widespread media coverage and the earnest and effective efforts of
lobby groups in the past decade, significant and long overdue changes have come
about in the criminal justice system. For some, the changes have not gone far
enough; for others, too far.
challenges for cause have been permitted in cases involving allegations of
sexual abuse, literally hundreds of prospective jurors have been found to be
partial by the triers of fact. In those cases where trial judges have refused
to permit the challenge, choosing instead to vet the panel at large for bias,
the numbers are equally substantial.
many crimes, there are a wide variety of stereotypical attitudes and beliefs
surrounding the crime of sexual abuse.
While the parties agree on these basic facts, they disagree on whether
they demonstrate widespread bias. The appellant called no evidence, expert or
otherwise, on the incidence or likely effect of prejudice stemming from the
nature of the offences with which he is charged. Instead,
he asks the Court to take judicial
notice of a widespread bias arising from allegations of the sexual assault of
children. The Crown, by contrast, argues that the facts on which it
agrees do not translate into bias, much less widespread bias.
The appellant relies on the following: (a) the incidence of
victimization and its effect on members of the jury pool; (b) the strong views
held by many about sexual assault and the treatment of this crime by the
criminal justice system; (c) myths and stereotypes arising from widespread and
deeply entrenched attitudes about sexual assault; (d) the incidence of intense
emotional reactions to sexual assault, such as a strong aversion to the crime or
undue empathy for its victims; (e) the experience of Ontario trial
courts, where hundreds of potential jurors in such cases have been successfully
challenged as partial; and (f) social science research indicating a “generic
prejudice” against the accused in sexual assault cases. He argues that these
factors permit the Court to take judicial notice of widespread bias arising
from charges of sexual assault of
It is worth reminding ourselves that at
this stage we are concerned solely with the nature and prevalence of the
alleged biases (i.e., the “attitudinal” component), and not their amenability to cleansing
by the trial process, which is the focus of the “behavioural” component.
(a) Incidence of Victimization
The appellant argues that the prevalence and potentially devastating
impact of sexual assault permit the Court to conclude
that any given jury pool is likely to contain victims or those close to them
who may harbour a prejudicial bias as a consequence of their experiences.
The Crown acknowledges both the widespread nature of abuse and
its potentially traumatic impact.
Neither of these facts is in issue. Nor is it
unreasonable to conclude from these facts that victims of sexual assault, or
those close to them, may turn up in a jury panel. What is disputed is whether
this widespread victimization permits the Court to conclude, without proof,
that the victims and those who share their experience are biased, in the sense
that they may harbour prejudice against the accused or in favour of the Crown when
trying sexual assault charges.
The only social science research before
us on the issue of victim empathy is a study by R. L. Wiener, A. T. Feldman
Wiener and T. Grisso, “Empathy and
Biased Assimilation of Testimonies in Cases of Alleged Rape” (1989), 13 Law & Hum. Behav. 343.
The appellant cites this study for the proposition that those participants
acquainted in some way with a rape victim demonstrated a greater tendency,
under the circumstances of the study, to find a defendant guilty. However, as
the Crown notes, this study offers no evidence that victim status in itself
impacts jury verdicts. In fact, the study found no correlation between degree
of empathy for rape victims and tendency to convict, nor did it find higher
degrees of victim empathy amongst those persons acquainted with rape victims.
Further, the study was limited to a small sample of participants. It made no
attempt to simulate an actual jury trial, and did not involve a deliberation
process or an actual verdict. In the absence of expert testimony, tested under
cross-examination, as to the conclusions
properly supported by this study, I can only conclude that it provides little
assistance in establishing the existence of widespread bias arising from the
incidence of sexual assault in Canadian society.
Moldaver J.A. concluded that the prevalence of sexual assault in
Canadian society and its traumatic and potentially lifelong effects, provided a
realistic basis to believe that victims of this crime may harbor intense and
deep-seated biases. In arriving at this conclusion, he expressly relied on an unpublished article by Professor David
Paciocco, “Challenges for Cause in Jury Selection after Regina v. Parks:
Practicalities and Limitations”, Canadian Bar Association - Ontario, February
11, 1995, which he quoted at para. 176 for the proposition that “[o]ne cannot
help but believe that these deep scars would, for some, prevent them from
adjudicating sexual offence violations impartially”.
This is, however, merely the statement of an assumption, offered without
a supporting foundation of evidence or research. Courts must approach sweeping
and untested “common sense” assumptions about the behaviour of abuse victims
with caution: see R. v. Seaboyer, 
2 S.C.R. 577 (per L’Heureux-Dubé J., dissenting in part); R. v. Lavallee,
 1 S.C.R. 852, at pp. 870-72 (per Wilson J.). Certainly these
assumptions are not established beyond reasonable dispute, or documented with
indisputable accuracy, so as to permit the Court to take judicial notice
I conclude that while widespread
victimization may be a factor to be considered, standing alone it fails to
establish widespread bias that might lead jurors to discharge their task in a
prejudicial and unfair manner.
Held Views Relating to Sexual Offences
The appellant submits that the politicized and gender-based nature of sexual offences gives rise to firmly held
beliefs, opinions and attitudes that establish widespread bias in cases of
This argument found favour with Moldaver
J.A. in K. (A.). Moldaver J.A.
judicially noticed the tendency of sexual assault to be committed along gender
lines. He also took judicial notice of the systemic discrimination women and
children have faced in the criminal justice system, and the fact that recent
reforms have gone too far for some and not far enough for others. From this
foundation of facts, he inferred that the gender-based and politicized nature
of sexual offences leads to a realistic possibility that some members of the
jury pool, as a result of their political beliefs, will harbour
deep-seated and virulent biases that might prove resistant to judicial
cleansing. Quoting from the work of Professor
Paciocco, Moldaver J.A. emphasized that strong political convictions and
impartiality are not necessarily incongruous, but that for some “feminists” “commitment gives way to zealotry and dogma”. The conviction that the justice system and its
rules are incapable of protecting women and children, it is argued, may lead
some potential jurors to disregard trial directions and rules safeguarding the
presumption of innocence. Little regard for judicial direction can be expected
from “those who see the prosecution of
sexual offenders as a battlefront in a gender based war” (para. 177).
The appellant supports this reasoning, adding that the polarized,
politically charged nature of sexual offences results in two prevalent social
attitudes: first, that the criminal justice system is incapable of dealing with
an “epidemic” of abuse because of its male bias or the excessive protections it affords the accused; and second, that
conviction rates in sexual offence cases are unacceptably low. These beliefs,
he alleges, may jeopardize the accused’s
right to a fair trial. For example, jurors harbouring excessive political zeal
may ignore trial directions and legal rules perceived as obstructing the “truth” of
what occurred, or may simply “cast
their lot” with the victim. All
this, the appellant submits, amounts to
widespread bias in the community incompatible with juror impartiality.
The appellant does not deny that jurors trying any serious
offence may hold strong views about the relevant law. Nor does he suggest such
views raise concerns about bias in the trial of most offences. Few rules of criminal law attract universal support,
and many engender heated debate. The treatment of virtually all serious crimes
attracts sharply divided opinion, fervent criticism, and advocacy for reform.
General disagreement or criticism of the relevant law, however, does not mean a prospective juror is inclined to take the
law into his or her own hands at the expense of an individual accused.
The appellant’s submission reduces to this: while strong views on
the law do not ordinarily indicate bias, an exception arises in the case of
sexual assaults on children. The difficulty, however, is that there is nothing
in the material that supports this contention, nor is it self-evident. There
is no indication that jurors are more willing to cross the line from opinion to
prejudice in relation to sexual assault than for any other serious crime. It
is therefore far from clear that strongly held views about sexual assault
translate into bias, in the required sense of a tendency to act in an unfair
and prejudicial manner.
Moreover, assuming that the strong views people may hold about sexual
assault raise the possibility of bias,
how widespread such views are in Canadian society remains a matter of conjecture. The
material before the Court offers no measure of the prevalence in Canadian
society of the specific attitudes identified by the appellant as corrosive of
juror impartiality. Some people may indeed believe that the justice system is
faltering in the face of an epidemic of abuse and that perpetrators of this
crime too often escape conviction; yet, it is far from clear that these beliefs
are prevalent in our society, let alone that they translate into bias on a
and Stereotypes About Sexual Offences
The appellant suggests that the strong views that surround the
crime of sexual assault may contribute to widespread myths and stereotypes that
undermine juror impartiality. In any given
jury pool, he argues, some people may reason from the prevalence of abuse to
the conclusion that the accused is likely guilty; some may assume children
never lie about abuse; and some may reason that the accused is more likely to
be guilty because he is a man.
Again, however, the proof falls short. Although
these stereotypical beliefs clearly amount to bias that might incline some
people against the accused or toward conviction, it is neither notorious nor
indisputable that they enjoy widespread acceptance in Canadian society. Myths
and stereotypes do indeed pervade public perceptions of sexual assault. Some
favour the accused, others the Crown. In the absence of evidence, however, it
is difficult to conclude that these stereotypes translate into widespread bias.
Nature of Sexual Assault Trials
The appellant asks the Court to take judicial notice of the
emotional nature of sexual assault trials and to conclude that fear, empathy
for the victim, and abhorrence of the crime establish widespread bias in the
community. His concern is that jurors, faced with allegations of sexual
assaults of children, may act on emotion rather than reason. This is particularly
the case, he suggests, for past victims of abuse, for whom the moral repugnancy
of the crime may be amplified. He emphasizes that the presumption of innocence in criminal trials demands the acquittal of
the “probably” guilty. An intense aversion to sexual crimes, he
argues, may incline some jurors to err on the side of conviction in such
circumstances. Undue empathy for the victim, he adds, may also prompt a juror
to “validate” the complaint with a guilty verdict, rather than
determine guilt or innocence according to the law.
Crimes commonly arouse deep and
strong emotions. They represent a fundamental breach of the perpetrator’s compact with society. Crimes make victims, and
jurors cannot help but sympathize with them. Yet these indisputable facts do
not necessarily establish bias, in the sense of an attitude that could unfairly
prejudice jurors against the accused or toward conviction. Many crimes
routinely tried by jurors are abhorrent. Brutal murders, ruthless frauds and
violent attacks are standard fare for jurors. Abhorred as they are, these
crimes seldom provoke suggestions of bias incompatible with a fair verdict.
One cannot automatically equate strong
emotions with an unfair and prejudicial bias against
the accused. Jurors are not expected to be indifferent toward crimes. Nor are
they expected to remain neutral toward those shown to have committed such
offences. If this were the case, prospective jurors would be routinely and
successfully challenged for cause as a preliminary stage in the trial of all
serious criminal offences. Instead, we accept that jurors often abhor the
crime alleged to have been committed –
indeed there would be cause for alarm if representatives of a community did not
deplore heinous criminal acts. It would be equally alarming if jurors did not
feel empathy or compassion for persons shown to be victims of such acts. These
facts alone do not establish bias. There is simply no indication that these
attitudes, commendable in themselves, unfairly prejudice jurors against the
accused or toward conviction. They are common to the trial of many serious
offences and have never grounded a right to challenge for cause.
Recognizing this fact, the appellant and the intervener Criminal Lawyers’ Association (“CLA”)
contend that allegations of sexual
offences against children incite emotional reactions of an intensity above
and beyond those invoked by other criminal acts. Such offences, they contend, stand alone in their capacity to
inflame jurors and cloud reason. Moldaver J.A., dissenting in K. (A.),
distinguished sexual offences from most other despicable criminal acts, on the
basis that “sexual assault trials tend to be emotionally charged, particularly
in cases of child abuse, where the mere allegation can trigger feelings of
hostility, resentment and disgust in the minds
of jurors” (para. 188).
The proposition that sexual offences
are generically different from other crimes in their ability to arouse strong
passion is not beyond reasonable debate or capable of immediate and accurate
demonstration. As such, it does not lend itself to judicial notice. Nor was
evidence led on this issue. Some may well react to allegations of a sexual
crime with emotions of the intensity described by the appellant. Yet how
prevalent such emotions are in Canadian society remains a matter of
conjecture. The Court simply cannot reach conclusions on these
controversial matters in an evidentiary vacuum. As a result, the appellant has
not established the existence of an identifiable bias arising from the
emotionally charged nature of sexual crimes, or the prevalence of this bias
should it in fact exist.
(e) The History of Challenges for Cause in
The appellant refers this Court to the experience of Ontario trial courts where judges have allowed
defence counsel to challenge prospective jurors for cause in cases involving
allegations of sexual assault: see Vidmar, supra, at p. 5; D. M.
Tanovich, D. M. Paciocco, S. Skurka, Jury Selection in Criminal Trials:
Skills, Science, and the Law (1997),
at pp. 239-42. These sources,
cataloguing 34 cases, indicate that hundreds of potential jurors have been
successfully challenged for cause as not indifferent between the Crown and the
accused. It is estimated that 36 percent of the prospective jurors challenged
The appellant argues that the
fact that hundreds of prospective jurors have been found to be partial is in
itself sufficient evidence of
widespread bias arising from sexual assault trials. This is proof, he asserts,
that the social realities surrounding sexual assault trials give rise to
prejudicial beliefs, attitudes and emotions on a widespread scale in Canadian
The Crown disagrees. It argues first, that the survey lacks
validity because of methodological defects, and second, that even if the results are accepted, the successful
challenges do not demonstrate a widespread
bias, but instead may be attributed to
The first argument against the survey is that its methodology is unsound. The Crown raises a number of
concerns: the survey is entirely anecdotal, not comprehensive or random;
not all of the questions asked of prospective jurors are indicated; there is no
way in which to assess the directions, if any, provided by the trial judge,
especially in relation to the distinction between strong opinions or emotions
and partiality; and no comparative statistics are provided contrasting these results
with the experience in other criminal law contexts. The intervener CLA
concedes that the survey falls short of scientific validity, but contends that it nevertheless documents a phenomena of
considerable significance. Hundreds of prospective jurors disqualified on the
grounds of bias by impartial triers of fact must, it is argued, displace the presumption of juror impartiality.
Nonetheless, the lack of methodological rigour and the absence of expert
evidence undermine the suggestion that the Ontario experience establishes
The second argument against the survey is that the questions
asked were so general, and the information elicited so scarce, that no
meaningful inference can be drawn from the responses given by challenged jurors
or from the number of potential jurors
disqualified. Charron J.A., for the majority in
K. (A.), observed that prospective
jurors in that case received no meaningful instruction on the nature of jury
duty or the meaning and importance of impartiality. Further, they often
indicated confusion at the questions posed to them or asked that the questions
be repeated. In the end, numerous prospective jurors were disqualified for
offering little more than that they would find it difficult to hear a case of
this nature, or that they held strong emotions about the sexual abuse of
The challenge for cause process rests to a
considerable extent on self-assessment of impartiality by the
challenged juror, and the response to questions on challenge often will
be little more than an affirmation or denial of one’s own ability to act
impartially in the circumstances of the case. In the absence of guidance,
prospective jurors may conflate disqualifying bias with a legitimate
apprehension about sitting through a case involving allegations of sexual abuse
of children, or the strong views or emotions
they may hold on this subject.
Where potential jurors are challenged for racial bias, the risk
of social disapprobation and stigma supports the veracity of admissions of
potential partiality. No similar indicia of reliability attach to the frank
and open admission of concern about one’s ability to approach and decide a case
of alleged child sexual abuse judiciously. While
a prospective juror’s admission of
racial prejudice may suggest partiality, the same cannot be said of an
admission of abhorrence or other emotional attitude toward the sexual abuse of
children. We do not know whether the potential jurors who professed concerns
about serving on juries for sexual assault charges were doing so because they
were biased, or for other reasons. We do not know whether they were told that strong
emotions and beliefs would not in themselves impair their duty of impartiality,
or whether they were informed of the
protections built into the trial process.
In fact, the number of prospective
jurors disqualified, although relied on as support for judicial notice of
widespread bias, is equally
consistent with the conclusion that the challenge processes, despite the best
intentions of the participants,
disqualified prospective jurors for acknowledging the intense emotions,
beliefs, experiences and misgivings anyone might experience when confronted
with the prospect of sitting as a juror on a case involving charges of sexual
assault of children. As discussed, the mere
presence of strong emotions and opinions cannot be equated automatically with
bias against the accused or toward conviction.
It follows that the survey of past
challenge for cause cases involving charges of sexual assault does not
without more establish widespread bias arising from these charges.
(f) Social Science Evidence of “Generic
The appellant argues that social science research, particularly
that of Vidmar, supports the contention that
social realities, such as the prevalence of sexual abuse and its politically
charged nature, translate into a widespread bias in Canadian society.
In Williams, supra, the
Court referred to Vidmar’s research in
concluding that the partiality targeted by s. 638(1)(b) was not
limited to biases arising from a direct interest in the proceeding or pre-trial
exposure to the case, but could arise from any of a variety of sources,
including the “nature of the crime itself” (para. 10). However, recognition that the nature of an offence may give
rise to “generic prejudice” does not obviate the need for proof. Labels do not
govern the availability of challenges for cause. Regardless of how a case is
classified, the ultimate issue is whether a realistic possibility exists that
some potential jurors may try the case
on the basis of prejudicial attitudes and beliefs, rather than the evidence
offered at trial. The appellant relies
on the work of Vidmar for the proposition that such a possibility does in fact
arise from allegations of sexual assault.
Vidmar is known for the theory of a
“generic prejudice” against accused persons in sexual assault trials and for the conclusion that the
attitudes and beliefs of jurors are frequently reflected in the verdicts of
juries on such trials. However, the
conclusions of Vidmar do not assist in finding widespread bias. His theory
that a “generic prejudice” exists against those charged with sexual assault, although
in the nature of expert evidence, has
not been proved. Nor can the Court take judicial notice of this contested proposition. With regard to the behaviour of potential jurors,
the Court has no foundation in this case to draw an inference of partial juror
conduct, as discussed in more detail below, under the behavioural stage of the
Vidmar himself acknowledges the limitations of his research. He
concedes that the notion of “generic prejudice” lacks scientific validity, and
that none of the studies he relies on actually asked the questions typically
asked of Canadian jurors, including whether they can impartially adjudicate
guilt or innocence in a sexual assault trial: Vidmar, supra. Moreover, the authorities Vidmar relies on are
almost exclusively “confined to
examination of public attitudes towards certain criminal acts, especially child
sexual abuse. Not surprisingly, it appears the public is quite disapproving of
persons who have sexually abused children, and of such conduct itself”: R. v. Hillis,  O.J. No. 2739
(Gen. Div.) (QL), at para. 7.
While judicial notice may be taken of the uncontested fact that sexual crimes
are almost universally abhorred, this does not establish widespread bias
arising from sexual assault trials.
The attempt of Vidmar and others to conduct scientific research
on jury behaviour is commendable. Unfortunately, research into the effect of
juror attitudes on deliberations and verdicts is constrained by the almost absolute prohibition in s. 649 of the Criminal
Code against the disclosure by jury
members of information relating to the jury’s proceedings. More comprehensive
and scientific assessment of this and other aspects of the criminal law and
criminal process would be welcome. Should Parliament reconsider this
prohibition, it may be that more helpful research into the Canadian experience would emerge. But for now, social
science evidence appears to cast little light on the extent of any “generic
prejudice” relating to charges of
sexual assault, or its relationship to jury verdicts.
on the Existence of a Relevant, Widespread Bias
Do the factors cited by the appellant, taken together, establish
widespread bias arising from charges relating
to sexual abuse of children? In my view, they do not. The material
presented by the appellant, considered in its totality, falls short of
grounding judicial notice of widespread bias in Canadian society against the
accused in such trials. At best, it
establishes that the crime of sexual assault, like many serious crimes,
frequently elicits strong attitudes and emotions.
However, the two branches of the test for partiality are not watertight
compartments. Given the challenge of proving facts as elusive as the nature
and scope of prejudicial attitudes, and
the need to err on the side of caution, I prefer not to resolve this case
entirely at the first, attitudinal stage. Out of an abundance of caution, I will proceed to consider the potential
impact, if any, of the alleged biases on juror behaviour.
2. Is it Reasonable to Infer that Some Jurors May Be Incapable of Setting Aside Their
Biases Despite Trial Safeguards?
The fact that members of the jury pool may harbour prejudicial
attitudes, opinions or feelings is not, in itself, sufficient to support an
entitlement to challenge for cause. There
must also exist a realistic possibility that some jurors may be unable
or unwilling to set aside these prejudices to render a decision in strict
accordance with the law. This is referred to as the behavioural aspect of the
test for partiality.
The applicant need not always adduce
direct evidence establishing this link between the bias in issue and
detrimental effects on the trial process. Even in the absence of such
evidence, a trial judge may reasonably infer that some strains of bias by their
very nature may prove difficult for jurors to identify and eliminate from their
This inference, however, is not
automatic. Its strength varies with the nature of the bias in issue, and its
amenability to judicial cleansing. In Williams, the Court inferred a
behavioural link between the pervasive racial prejudice established on the
evidence and the possibility that some jurors, consciously or not, would decide
the case based on prejudice and stereotype. Such a result, however, is not
inevitable for every form of bias, prejudice or preconception. In some circumstances,
the appropriate inference is that the “predispositions
can be safely regarded as curable by judicial direction”: Williams, supra, at para. 24.
Fundamental distinctions exist between
the racial prejudice at issue in Williams and a more general bias
relating to the nature of the offence itself. These differences relate both to
the nature of these respective biases, and to their susceptibility (or
resistance) to cleansing by the trial process. It may be useful to examine
these differences before embarking on a more extensive consideration of the
potential effects on the trial process, if any, of the biases alleged in the
The first difference is that race may impact more directly on the jury’s
decision than bias stemming from the nature of the offence. As Moldaver J.A.
stated in Betker, supra, at p. 441, “[r]acial prejudice is a form
of bias directed against a particular class of accused by virtue of an
identifiable immutable characteristic. There is a direct and logical
connection between the prejudice asserted and the particular accused”. By
contrast, the aversion, fear, abhorrence, and
beliefs alleged to surround sexual assault offences may lack this cogent and
irresistible connection to the accused.
Unlike racial prejudice, they do not point a finger at a particular accused.
Second, trial safeguards may be less successful in cleansing racial
prejudice than other types of bias, as
recognized in Williams. As Doherty J.A. observed in Parks, supra,
at p. 371: “[i]n deciding whether the
post-jury selection safeguards against partiality provide a reliable antidote
to racial bias, the nature of that bias must be emphasized”. The nature of racial prejudice – in particular its subtle, systemic and often
unconscious operation – compelled the inference in Williams that some
people might be incapable of effacing, or even identifying, its influence on
their reasoning. In reaching this conclusion, the Court emphasized the
“invasive and elusive” operation of racial prejudice and its foundation “on
preconceptions and unchallenged assumptions that unconsciously shape the daily
behaviour of individuals” (paras. 21-22).
The biases alleged in this case,
by contrast, may be more susceptible to
cleansing by the rigours of the trial process. They are more likely to
be overt and acknowledged than is racial prejudice, and hence more easily
removed. Jurors are more likely to recognize and counteract them. The trial judge is more likely to
address these concerns in the course of
directions to the jury, as are counsel in
their addresses. Offence-based bias has concerned the trial process
throughout its long evolution, and many of the safeguards the law has developed
may be seen as a response to it.
Against this background, I turn to the question of whether the
biases alleged to arise from the nature of sexual assault, if established,
might lead jurors to decide the case in an unfair and prejudicial way, despite
the cleansing effect of the trial process.
First, the appellant contends that some jurors, whether victims, friends
of victims, or simply people holding strong views about sexual assault, may not
be able to set aside strong beliefs about this crime – for example, that the
justice system is biased against complainants, that there exists an epidemic of
abuse that must be halted, or that conviction
rates are too low – and decide the case
solely on its merits. Some jurors, he says, may disregard rules of law that
are perceived as obstructing the “truth” of what occurred. Others may simply “cast their lot”
with groups that have been victimized. These possibilities, he contends,
support a reasonable inference that strong opinions may translate into a
realistic potential for partial juror conduct.
This argument cannot succeed. As
discussed, strongly held political views do not necessarily suggest that jurors
will act unfairly in an actual trial. Indeed, passionate advocacy for law
reform may be an expression of the highest respect for the rule of law, not a
sign that one is willing to subvert its operation at the expense of the
accused. As Moldaver J.A. eloquently observed in Betker, supra,
at p. 447, “the test for partiality is
not whether one seeks to change the law but whether one is capable of upholding
In the absence of evidence that such beliefs and attitudes may
affect jury behaviour in an unfair manner,
it is difficult to conclude that they will not be cleansed by the trial
process. Only speculation supports the proposition that jurors will act on general opinions and beliefs to
the detriment of an individual accused, in disregard of their oath or
affirmation, the presumption of innocence, and the directions of the trial
The appellant also contends that
myths and stereotypes attached to the crime of sexual assault may unfairly
inform the deliberation of some jurors. However, strong, sometimes biased,
assumptions about sexual behaviour are not new to sexual assault trials.
Traditional myths and stereotypes have long tainted the assessment of the conduct
and veracity of complainants in sexual assault cases – the belief that women of “unchaste”
character are more likely to have consented or are less worthy of belief; that
passivity or even resistance may in fact constitute consent; and that some women
invite sexual assault by reason of their dress or behaviour, to name only a
few. Based on overwhelming evidence from relevant social science literature,
this Court has been willing to accept the prevailing existence of such myths
and stereotypes: see, for example, Seaboyer, supra; R.
v. Osolin,  4 S.C.R. 595, at pp.
669-71; R. v. Ewanchuk,  1 S.C.R. 330, at paras. 94-97.
Child complainants may similarly
be subject to stereotypical assumptions, such as the belief that stories of
abuse are probably fabricated if not reported immediately, or that the
testimony of children is inherently unreliable: R. v. W. (R.),  2
S.C.R. 122; R. v. D.D.,  2 S.C.R. 275, 2000 SCC 43; N. Bala,
"Double Victims: Child Sexual Abuse and the Canadian Criminal Justice
System", in W. S. Tarnopolsky, J. Whitman and M. Ouellette, eds., Discrimination
in the Law and the Administration of Justice (1993), 231.
These myths and stereotypes
about child and adult complainants are particularly invidious because they
comprise part of the fabric of social “common
sense” in which we are daily immersed.
Their pervasiveness, and the subtlety of their operation, create the risk that
victims of abuse will be blamed or unjustly discredited in the minds of both
judges and jurors.
Yet the prevalence of such attitudes has never been held to justify challenges for cause as of
right by Crown prosecutors. Instead, we have traditionally trusted the trial
process to ensure that such attitudes will not prevent jurors from acting
impartially. We have relied on the rules of evidence, statutory protections,
and guidance from the judge and counsel to clarify potential misconceptions and
promote a reasoned verdict based solely on the merits of the case.
Absent evidence to the contrary,
there is no reason to believe that stereotypical attitudes about accused
persons are more elusive of these cleansing measures than stereotypical
attitudes about complainants. It follows that the myths and stereotypes
alleged by the appellant, even if widespread, provide little support for any
inference of a behavioural link between these beliefs and the potential for
Finally, the appellant argues
that the strong emotions evoked by allegations of sexual assault, especially in
cases involving child complainants, may distort the reasoning of some jurors.
He emphasizes that a strongly held aversion to the offence may incline some
jurors to err on the side of conviction. Others may be swayed by “undue empathy”
for the alleged victim, perceiving the case as a rejection or validation of the
complainant’s claim, rather than a
determination of the accused’s guilt or
innocence according to law.
Again, absent evidence, it is highly
speculative to suggest that the emotions surrounding sexual crimes will
lead to prejudicial and unfair juror behaviour. As discussed, the safeguards of the trial process and the
instructions of the trial judge are designed to replace emotional reactions
with rational, dispassionate assessment. Our long experience in the context of
the trial of other serious offences suggests that our faith in this cleansing
process is not misplaced. The presumption of innocence, the oath or
affirmation, the diffusive effects of collective deliberation, the requirement
of jury unanimity, specific directions from the trial judge and counsel, a
regime of evidentiary and statutory protections, the adversarial nature of the
proceedings and their general solemnity, and numerous other precautions both
subtle and manifest – all collaborate
to keep the jury on the path to an impartial verdict despite offence-based
prejudice. The appellant has not established that the offences with
which he is charged give rise to a strain of bias that is uniquely capable of eluding
the cleansing effect of these trial safeguards.
It follows that even if widespread bias were established, we cannot
safely infer, on the record before the Court,
that it would lead to unfair, prejudicial and partial juror behaviour. This is
not to suggest that an accused can never be prejudiced by the mere fact of the
nature and circumstances of the charges he or she faces; rather, the inference
between social attitudes and jury behaviour is simply far less obvious and
compelling in this context, and more may be required to satisfy a court that
this inference may be reasonably drawn. The
nature of offence-based bias, as discussed, suggests that the circumstances in
which it is found to be both widespread in the community and resistant to the
safeguards of trial may prove exceptional. Nonetheless, I would not foreclose
the possibility that such circumstances may arise. If widespread bias
arising from sexual assault were established in a future case, it would be for
the court in that case to determine whether
this bias gives rise to a realistic potential for partial juror conduct in the
community from which the jury pool is drawn. I would only caution that
in deciding whether to draw an inference of adverse effect on jury behaviour
the court should take into account the nature of the bias and its
susceptibility to cleansing by the trial process.
VI - Conclusion
The case for widespread bias arising from the nature of charges of
sexual assault on children is tenuous. Moreover, even if the appellant had
demonstrated widespread bias, its link to actual juror behaviour is
speculative, leaving the presumption that it would be cleansed by the trial
process firmly in place. Many criminal trials
engage strongly held views and stir up powerful emotions – indeed, even revulsion and abhorrence. Such is the
nature of the trial process. Absent proof, we cannot simply assume that strong
beliefs and emotions translate into a realistic potential for partiality,
grounding a right to challenge for cause. I agree with the majority of the
Court of Appeal that the appellant has not established that the trial judge
erred in refusing to permit him to challenge prospective jurors for
I would dismiss the appeal and affirm the conviction.
Solicitors for the appellant: Pinkofsky Lockyer, Toronto;
Sapone & Cautillo, Toronto.
Solicitor for the respondent: The Ministry of the
Attorney General, Toronto.
Solicitors for the intervener the Criminal Lawyers’ Association
(Ontario): Edelson & Associates, Ottawa.
Solicitor for the intervener the Attorney General for
Alberta: The Attorney General for Alberta, Edmonton.