R. v. Spence, 2005 SCC 71, [2005] 3 SCR 458

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant

and

Sean Spence

Respondent

and

African Canadian Legal Clinic

Intervener

Coram: Major, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. Spence, [2005] 3 S.C.R. 458, 2005 SCC 71

Her Majesty The Queen                                                                                  Appellant

v.

Sean Spence                                                                                                  Respondent

and

African Canadian Legal Clinic                                                                       Intervener

Indexed as:  R. v. Spence

Neutral citation:  2005 SCC 71.

File No.:  30642.

2005:  June 9; 2005:  December 2.

Present:  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. [21] [23] [26] [35]

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. [40] [42] [47]

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. [7] [52]

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. [53] [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. [56]

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. [65]

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. [67]

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. [7] [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 make. [76‑77]

Cases Cited

Distinguished:  R. v. Parks (1993), 84 C.C.C. (3d) 353; R. v. Williams, [1998] 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, [1988] 1 S.C.R. 985; Hubbert v. The Queen, [1977] 2 S.C.R. 267; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Sherratt, [1991] 1 S.C.R. 509; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32; Reference re Alberta Statutes, [1938] S.C.R. 100; Montréal (City of) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; Tolley v. Fry, [1930] 1 K.B. 467; Whirlpool Corp. v. Camco Inc., [2000] 2 S.C.R. 1067, 2000 SCC 67; R. v. Parnell (1995), 98 C.C.C. (3d) 83; Campbell v. Royal Bank of Canada, [1964] 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, [1990] 1 S.C.R. 852; Moge v. Moge, [1992] 3 S.C.R. 813; R. v. Wells, [2000] 1 S.C.R. 207, 2000 SCC 10; R. v. Gladue, [1999] 1 S.C.R. 688; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [1999] 3 S.C.R. 845; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Butler, [1992] 1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; Hays v. Weiland (1918), 43 D.L.R. 137; Reid v. Telegram Publishing Co., [1961] 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), [1989] 1 S.C.R. 1572; R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4; Symes v. Canada, [1993] 4 S.C.R. 695; Waldick v. Malcolm, [1991] 2 S.C.R. 456; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; R. v. Penno, [1990] 2 S.C.R. 865; MacKay v. Manitoba, [1989] 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 .

Authors Cited

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, 1989.

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, [2004] 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 respondent.

Marie Chen and Margaret Parsons, for the intervener.

The judgment of the Court was delivered by

1                                   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 question:

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.]

2                                   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?

3                                   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. 

4                                   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.

5                                   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, [1998] 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.

6                                   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)

The eventual 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.

7                                   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. 

8                                   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 disposition.

I.  Facts

9                                   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.

10                               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.

11                               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.

The Challenge for Cause

12                               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.

13                               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.)

14                               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 black man?

(Appellant’s Record, at p. 100)

15                               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.

II.  Court of Appeal for Ontario

A.  Feldman and Weiler JJ.A. for the Majority

16                               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).

17                               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.

B.  Laskin J.A. (Dissenting)

18                               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).

19                               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).

20                               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).

III.  Analysis

21                               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, [1988] 1 S.C.R. 985; Hubbert v. The Queen, [1977] 2 S.C.R. 267; R. v. Corbett, [1988] 1 S.C.R. 670.

22                               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)).

23                               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, [1991] 1 S.C.R. 509, at p. 536).  In Sherratt, the articulated ground was pre-trial publicity.  The Court stated the rule thus:

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; p. 536.]

24                               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, [2001] 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). 

25                               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).

26                               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). 

27                               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?

28                               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. [Emphasis added.]

29                               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

30                               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.

31                               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]

32                               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.  [Emphasis added.]

(Stephen Lewis Report on Race Relations in Ontario (1992), p. 2)

33                               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 (p. 371).

34                               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 the Law?

35                               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 studies:

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.)

It was 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).

36                               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]

37                               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.

38                               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.

39                               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 race. 

40                               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.

41                               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).

42                               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 required.

43                               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).

44                               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.]

In Koh, the defence had not asked for the “interracial” question (para. 8), and the court did not address the issue.

45                               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.

Once again, 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.

46                               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 same.

47                               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 sympathy”.

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?

48                               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]

49                               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, [1938] S.C.R. 100, at p. 128.  More recently Beetz J. in Montréal (City of) v. Arcade Amusements Inc., [1985] 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]

50                               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 Scrutton L.J.:

It is difficult to know what judges are allowed to know, though they are ridiculed if they pretend not to know. 

(Tolley v. Fry, [1930] 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., [2000] 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 “everyone” knew.

51                               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, [1964] 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” (p. 702).

52                               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.

53                               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 . . . .

54                               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).

55                               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.

56                               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. 

57                               “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, [1990] 1 S.C.R. 852, or the effect of the “feminization of poverty” judicially noticed in Moge v. Moge, [1992] 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, [2000] 1 S.C.R. 207, 2000 SCC 10, at para. 53, and in R. v. Gladue, [1999] 1 S.C.R. 688, at para. 83.

58                               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), [1999] 3 S.C.R. 845, at para. 3.

59                               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), [1990] 2 S.C.R. 1086, at p. 1099).  The “less stringent” standard was not defined.

60                               Professor Davis’ useful distinction between adjudicative facts and legislative facts is part of his larger insight, highly relevant for present purposes, that

the 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.

61                               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.

62                               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.

63                               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., [2001] 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.

64                               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, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Butler, [1992] 1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 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.

65                               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., [1961] 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), [1989] 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.

66                               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.

67                               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.

68                               I would add this comment: in R. v. Malmo-Levine, [2003] 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), [2004] 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]

The suggestion 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, [1993] 4 S.C.R. 695, Waldick v. Malcolm, [1991] 2 S.C.R. 456, at pp. 472-73, Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, at pp. 549-50, R. v. Penno, [1990] 2 S.C.R. 865, at pp. 881-82, and MacKay v. Manitoba, [1989] 2 S.C.R. 357.  Litigants who disregard the suggestion proceed at some risk.

69                               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 judicial notice.

C.  Did the Trial Judge Exceed His Discretion in Rejecting the “Full” Parks Question on the Facts of This Case?

70                               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.]

71                               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). 

72                               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?

73                               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 justice system”.

. . .

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]

74                               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]

75                               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)).

76                               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?

77                               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.

IV.  Conclusion

78                               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.

79                               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.

Appeal allowed.

Solicitor for the appellant:  Ministry of the Attorney General, Toronto.

Solicitors for the respondent:  Hicks, Block, Adams, Toronto.

Solicitor for the intervener:  African Canadian Legal Clinic, Toronto.