Wednesday, September 23, 2009

Media Release for Oct 22 Media Conference

Please note that due to unexpected logistical problems, the media conference did not occur quite as anticipated in this release. However, this was what was sent to the media on Oct. 21, and this article was one of the pieces that resulted.

NEW CAMPAIGN BY JOHN MOORE AGAINST UNJUST CONVICTION


SUDBURY, ONTARIO, October 21, 2009 – On Thursday, October 22, 2009, Justice and Freedom for John Moore will host a media conference to unveil a new campaign seeking a review of John Moore's unjust conviction for second degree murder. The event will be at the office of the Aboriginal Peoples Alliance of Northern Ontario (APANO), 66 Elm Street, Sudbury, at 11 am

The media conference will feature speakers who have signed on to a new statement in support of Moore's demand for a federal review of his unjust conviction. These speakers come out of the local Native, trade union, and education sectors. They will include Susan Cole of APANO; John Closs, President of the Sudbury and District Labour Council; Will Morin, local indigenous activist and educator; Rene Fortin, retired activist from the Canadian Union of Public Employees; and Gary Kinsman, Professor of Sociology at Laurentian University. Moore himself will also speak abou the new campaign, and about his recent participation in the Organizing for Justice Conference in Ottawa.

Moore has been actively involved in struggles for social justice in Sudbury for many years. Convicted under a law that was ruled unconstitutional in another case in the late '80s, John continues to have his life and his opportunities limited by a conviction by an all-white jury for a crime that even the courts admit he was not present for. Yet the federal government has steadfastly refused to review this injustice, and a new support committee, Justice and Freedom for John Moore, has begun to build a broader campaign in support of Moore. Already organizations and prominent individuals from Sudbury and from across North America have begun to sign onto the statement calling on the federal government to end its stonewalling and to conduct a review of Moore's conviction. The statement reads:

John C. Moore, an Ojibway man from Serpent River First Nation, was convicted of second degree murder in 1978. This happened despite the fact that he was not present when the crime was committed and had no role whatsoever in perpetrating it, and was based solely on him having spent time earlier that day with the individuals who committed the crime. His trials were tainted with systemic racism. The law under which he was convicted was ruled unconstitutional in 1987, and noone would be convicted under similar circumstances today. Yet Moore continues to bear the burden of the stigma of this conviction. He must regularly report to a parole officer and must ask permission if he wishes to leave the city of Sudbury, Ontario, which is impeding his freedom of movement and his capacity to find meaningful work. For all of these reasons, and in recognition of the long history of indigenous people being targeted unfairly by the Canadian justice system, we, the individuals and groups listed below, call upon the Government of Canada to conduct a review of Moore's conviction.


Initial signers include the Sudbury and District Labour Council, the Canadian Union of Postal Workers (CUPW), the Indigenous Peoples Solidarity Movement (Ottawa), Sudbury Against War and Occupation, the Ontario Coalition Against Poverty, and the Laurentian Association of Mature and Part-time Students. Along with the speakers listed above, local individual signers include many ordinary Sudburians as well as Glenn Thibeault, MP. Individual signers from beyond Sudbury include Roxanne Dunbar-Ortiz, an author and long-time indigenous activist based in San Francisco; Charles C. Roach, a lawyer and long-time activist based in Toronto's African-Canadian communities; Dave Bleakney, a National Union Representative with CUPW; Doreen Spence, an activist and Cree elder based in Calgary; and Joan Kuyek, a community organizer and author based in Ottawa.

Justice and Freedom for John Moore is a committee composed of Moore himself and some of his core supporters from the Sudbury area. For more information, please call ________ at ___-___-____ or or email ______@_____________. For ongoing information about the campaign, please see http://justiceandfreedomforjohnmoore.blogspot.com/.

Tuesday, September 22, 2009

Sudbury Star Article: Ottawa students plan Moore documentary

Ottawa students plan Moore documentary
by Bob Vaillancourt, from The Sudbury Star, October 23, 2009.

A group of University of Ottawa students is making a documentary on Sudburian John Moore's struggle to clear himself of what he says is a wrongful murder conviction.

Moore, 53, was convicted in the June 30, 1978, death of taxi driver Donald Lanthier in Sault Ste. Marie and was sentenced to prison for life.

He is on parole after being released from prison in 1987 after nearly a decade behind bars in a federal prison.

Moore was in Ottawa last week participating in a panel conference on indigenous struggles against racism when he met Samantha Pollock and two other students from the university, who became interested in his case. They decided to make the documentary as part of their journalism studies.

Pollock will be in town this weekend shooting scenes for the documentary. She and her colleagues have already shot Moore in various locales in Ottawa, including the Parliament building, the Supreme Court of Canada building and the offices of the federal justice minister.

Moore has started a blog at justiceandfreedomforjohnmoore. blogs pot.comin which he invites people to sign a petition calling on the federal government to review his case.

Already, the campaign has garnered dozens of signatures, some as far away as San Francisco.

"When we get enough people to sign up, then we can send it to the justice minister and say, 'look. The people that signed up for this blog, they want you to do something and do something fast and stop stonewalling.' "

Reading "all those people's names is just kind a cool," Moore said.

As a result of his presentation in Ottawa last week, Moore was invited back to Ottawa next week to speak at the "Celebration of First Peoples in Canada" event at Saint Paul University.

Moore's conviction was based on the fact that he was with the two men who killed Lanthier hours before the slaying.

The prosecuting attorney argued that, as a result, he must have known what was going to happen and did nothing to stop the killing.

In 1987, the same year that Moore made day parole, the Supreme Court of Canada struck down that section of the law as being unconstitutional.

Moore said he began his campaign to clear his name in 1983 with a letter to then Justice minister Mark McGuigan.

"I got a 10-minute meeting," but no results, said Moore.

He didn't stop there. Moore has dealt with justice ministers and their staff through two governing parties.

And even though the law under which he was convicted was ruled unconstitutional, he has been unsuccessful in having his conviction overturned.

"They (justice department officials) keep telling me there is nothing new" to warrant intervention in his conviction, he said.

Moore said he gets the feeling from his dealings with just ice department officials that they feel any relief granted him would have to be applied to anyone else who was convicted under the unconstitutional law.

Sunday, September 13, 2009

Speaking Engagements by John So Far

The following is a list of speaking engagements that John has done so far about his case and about issues of racism in the justice system more generally. If you know of a group that would be interested in hearing him speak, please let us know!

  • Metro Guy-Concordia, School of Community and Public Affairs, Montreal.
  • Montreal Native Friendship Centre
  • Celebration of First People in Canada, Saint Paul University, Ottawa
  • Organizing for Justice Conference, Ottawa
  • Will Morin's Class, University of Sudbury
  • Gary Kinsman's Sociology Class, Laurentian University, Sudbury
  • Aboriginal People's Alliance, Sudbury
  • Paula's Psychology class, Cambrian College, Sudbury
  • Native Correctional Workers program, Cambrian College, Sudbury
  • Native Studies program, Cambrian College, Sudbury
  • St. Benedict Catholic Secondary School, Sudbury
  • Ecoloe Intermediary Camplain, Chelmsford
  • Lockerby Composite School, Sudbury
  • Barbara Burton's Law class, University of Sudbury
  • Native Social Work class, University of Sudbury

Saturday, September 12, 2009

The following is the judgment in the case, R. v. Vaillncourt, in which the Supreme Court of Canada ruled unconstitutional the section under which John Moore was convicted. Though this ruling was made in 1987, nothing has been done to rectify the injustice represented by John's earlier conviction under the disallowed section. This material has been obtained from Supreme Court website.

R. v. Vaillancourt, [1987] 2 S.C.R. 636



Yvan Vaillancourt Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General for Ontario Intervener


indexed as: r. v. vaillancourt

File No.: 18963.

1986: December 10; 1987: December 3.

Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.

*Chouinard J. took no part in the judgment.


on appeal from the court of appeal for quebec

Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Presumption of innocence ‑‑ Constructive murder ‑‑ Death caused by accomplice during robbery ‑‑ Proof of intentional dangerous conduct causing death substituted for proof of mens rea with respect to death of victim ‑‑ Accused's conviction possible notwithstanding existence of reasonable doubt on essential element ‑‑ Whether s. 213(d) of the Criminal Code violates ss. 7 or 11(d) of the Charter ‑‑ If so, whether such violation justifiable under s. 1 of the Charter.



Criminal law ‑‑ Constructive murder ‑‑ Fundamental justice ‑‑ Presumption of innocence ‑‑ Death caused by accomplice during robbery ‑‑ Proof of intentional dangerous conduct causing death substituted for proof of mens rea with respect to death of victim ‑‑ Accused's conviction possible notwithstanding existence of reasonable doubt on essential element ‑‑ Whether s. 213(d) of the Criminal Code violates ss. 7 or 11(d) of the Charter ‑‑ If so, whether such violation justifiable under s. 1 of the Charter.



During an armed robbery in a pool hall, appellant's accomplice shot and killed a client. The accomplice managed to escape but appellant was arrested and convicted of second degree murder as a party to the offence pursuant to ss. 21(2) and 213(d) of the Criminal Code. Section 213(d) provides that "Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit ... robbery ... whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if ... he uses a weapon or has it upon his person during or at the time he commits or attempts to commit the offence ... and the death ensues as a consequence." At his trial before judge and jury, appellant testified that at the time of the robbery, he was certain that the gun in possession of the accomplice was not loaded. He stated that they had agreed to commit the robbery armed only with knives and when, on the night of the crime, the accomplice arrived with a gun he insisted that it be unloaded. The accomplice removed three bullets from the gun and gave them to the appellant. Appellant's glove containing the three bullets was recovered by the police at the scene of the crime. The Court of Appeal dismissed appellant's appeal from conviction. In this Court, he challenged the constitutional validity of s. 213(d) of the Criminal Code. This appeal raises two constitutional questions: (1) Is section 213(d) of the Code inconsistent with either ss. 7 or 11(d) of the Charter and, therefore, of no force or effect? (2) If not, is the combination of ss. 21 and 213(d) of the Code inconsistent with either ss. 7 and 11(d) of the Charter and is s. 21 therefore of no force or effect in the case of a charge under s. 213(d)?



Held (McIntyre J. dissenting): The appeal should be allowed and a new trial ordered. The first constitutional question should be answered in the affirmative. No answer was given to the second constitutional question.



Per Dickson C.J. and Estey, Lamer and Wilson JJ.: Prior to the enactment of the Charter, Parliament had full legislative powers with respect to criminal law, including the determination of the essential elements of any given crime. But the Charter has restricted these powers. Under section 7, if a conviction will result in a deprivation of the life, liberty or security of the person of the accused, then Parliament must respect the principles of fundamental justice. One of these principles is that a minimum mental state is an essential element of an offence. However, because of the special nature of the stigma attached to a conviction for murder, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime. While the current view of the justices is that such a conviction cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight, for the purpose of this appeal, it is sufficient to say that, as a principle of fundamental justice, there cannot be a conviction in the absence of proof beyond a reasonable doubt of at least objective foreseeability.



The presumption of innocence in s. 11(d) of the Charter is offended when an accused may be convicted despite the existence of a reasonable doubt on an essential element of the offence. Where Parliament substituted proof of a different element for proof of an essential element, such substitution is constitutionally valid if, upon proof beyond reasonable doubt of the substituted element, it would be unreasonable for the trier of fact or a jury not to be satisfied beyond a reasonable doubt of the existence of the essential element. Therefore, an accused cannot be found guilty of murder absent proof beyond a reasonable doubt of at least objective foreseeability, and a murder provision which allows a conviction in the absence of proof beyond reasonable doubt of at least that essential element infringes ss. 7 and 11(d) of the Charter.



In the present case, s. 213(d) of the Code is prima facie in violation of ss. 7 and 11(d) of the Charter. The mens rea required for s. 213 consists of the mens rea for the underlying offence and the intent to commit one of the acts set forth in paras. (a) to (d). Section 213 does not completely exclude the need to prove any objective foreseeability. Rather, it has substituted for proof beyond a reasonable doubt of objective foreseeability, if that is the essential element, proof beyond a reasonable doubt of certain forms of intentional dangerous conduct causing death. But this substitution is not constitutionally valid because it is still possible that, notwithstanding proof beyond a reasonable doubt of the matters set forth in paras. (a) and (d), a jury could reasonably be left in doubt as to whether the accused ought to have known that death was likely to ensue.



Section 213(d) cannot be saved by s. 1 of the Charter. It is clear that Parliament's objective to deter the use or carrying of a weapon in the commission of certain offences, because of the increased risk of death, was of sufficient importance for the purpose of s. 1. However, the measures adopted were not reasonable and demonstrably justifiable. While these measures appear to be rationally connected to the objective, they unduly impair the rights and freedoms in question. Indeed, it is not necessary to convict of murder persons who did not intend or foresee the death and who could not even have foreseen the death in order to deter others from using or carrying weapons. If Parliament wishes to deter the use or carrying of weapons, it should, as in s. 83 of the Code, punish the use or carrying of weapons.



Per Beetz and Le Dain JJ.: For the reasons given by Lamer and La Forest JJ., s. 213(d) of the Criminal Code does not conform to the principles of fundamental justice entrenched in the Charter and cannot be saved under s. 1. For the reasons given by Lamer J., s. 213(d) also violates s. 11(d) of the Charter and cannot be justified under s. 1. Given these conclusions, it is not necessary to decide whether there exists a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight.



Per La Forest J.: Because of the stigma attached to a conviction for murder, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime, namely one referable to causing death. In addition to the intention to cause death, this can include a closely related intention such as intention to cause bodily harm likely to result in death combined with recklessness as to that result. It is sufficient to say in this case that the mental element required by s. 213(d) of the Criminal Code is so remote from the intention specific to murder that a conviction under that paragraph violates fundamental justice. The provision is so broad that under it a person may be found guilty of murder even though the death was the result of an accident.



Section 213(d) of the Code cannot be saved by s. 1 of the Charter. The objective of discouraging the use of weapons in the commission of crimes can be achieved by means other than attaching the stigma of a conviction for murder to a person who has caused death in the circumstances like those described in the provision.



Per McIntyre J. (dissenting): The two constitutional questions should be answered in the negative. Parliament has decided that possession and use of weapons in the course of the commission of offences is a gravely aggravating factor and has chosen to term a killing arising in the circumstances described in s. 213(d) as murder. While it may be illogical to characterize an unintentional killing as murder, no principle of fundamental justice is offended because serious criminal conduct, involving the commission of a crime of violence resulting in the killing of a human being, is classified as murder and not in some other manner.



In this case, the accused was properly convicted of murder under the combined effect of ss. 21(2) and 213(d) of the Code. The terms of s. 21(2) were fully met as there was evidence of the accused's active participation in the commission of the robbery, the underlying offence. The section gives expression to a principle of joint criminal liability long accepted and applied in the criminal law, and there is no basis upon which one could exempt conduct which attracts criminal liability, under s. 213 of the Code, from the application of that principle.



Cases Cited



By Lamer J.



Considered: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Corporation of the City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; disapproved: R. v. Bezanson (1983), 8 C.C.C. (3d) 493; referred to: R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Swietlinski v. The Queen, [1980] 2 S.C.R. 956; Reference re Validity of s. 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, aff'd [1951] A.C. 179; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Vasil, [1981] 1 S.C.R. 469; R. v. Trinneer, [1970] S.C.R. 638; R. v. Farrant, [1983] 1 S.C.R. 124; R. v. Ancio, [1984] 1 S.C.R. 225; People v. Aaron, 299 N.W.2d 304 (1980); State v. Doucette, 470 A.2d 676 (1983); Sir John Chichester's Case (1647), Aleyn 12, 82 E.R. 888; Hull's Case (1664), Kelyng, J. 40; R. v. Plummer (1702), Kelyng, J. 109, 84 E.R. 1103; R. v. Woodburne and Coke (1722), 16 St. Tr. 53.



By La Forest J.



Referred to: Rowe v. The King, [1951] S.C.R. 713.



By McIntyre J. (dissenting)



R. v. Munro and Munro (1983), 8 C.C.C. (3d) 260; R. v. Trinneer, [1970] S.C.R. 638; R. v. Ancio, [1984] 1 S.C.R. 225.



Statutes and Regulations Cited



Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d).



Constitution Act, 1867, s. 91(27).



Criminal Code, R.S.C. 1970, c. C‑34, ss. 21(2), 83 [rep. & subs. 1976‑77, c. 53, s. 3], 205(5)(a), 212(a)(i), (ii), (c), 213 [am. 1974‑75‑76, c. 93, s. 13; c. 105, s. 29 item 1(4)].



Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11 (U.K.)



Authors Cited



Burns, Peter and R. S. Reid. "From Felony Murder to Accomplice Felony Attempted Murder: The Rake's Progress Compleat?" (1977), 55 Can. Bar Rev. 75.



Canada. Law Reform Commission. Homicide (Working Paper 33). Ottawa, 1984.



Canada. Law Reform Commission. Recodifying Criminal Law (Report 30). Ottawa, 1986.



Coke, Sir Edward. The Third Part of the Institutes of the Laws of England. London: W. Clarke & Sons, 1817.



Dalton, Michael. Countrey Justice. London, 1619.



East, Edward Hyde. Pleas of the Crown, vol. 1. London, 1803.



Edwards, J. Ll. J. "Constructive Murder in Canadian and English Law" (1961), 3 Crim. L.Q. 481.



Foster, Sir Michael. Crown Law. Oxford, 1762.



Grant, Isabel and A. Wayne MacKay. "Constructive Murder and the Charter: In Search of Principle" (1987), 25 Alta. L. Rev. 129.



Hale, Sir Matthew. History of the Pleas of the Crown, vol. 1, 1736.



Hawkins, William. Pleas of the Crown, vol. 1, 1716.



Hooper, Anthony. "Some Anomalies and Developments in the Law of Homicide" (1967), 3 U.B.C. L. Rev. 55.



Lanham, David. "Felony Murder‑‑Ancient and Modern" (1983), 7 Crim. L.J. 90.



Mewett, Alan W. and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.



Parker, Graham. An Introduction to Criminal Law. Toronto: Methuen, 1977.



Perkins, Rollin M. and Ronald N. Boyce. Criminal Law, 3rd ed. Mineola, N.Y.: Foundation Press, 1982.



Stephen, Sir James Fitzjames. A History of the Criminal Law of England, vol. 3. London: MacMillan & Co., 1883.



Stephen, Sir James Fitzjames. Stephen's Digest of the Criminal Law, 9th ed. By Lewis Frederick Sturge. London: Sweet & Maxwell, 1950.



Stuart, Don. Canadian Criminal Law. Toronto: Cars‑ wells, 1982.



Willis, John. "Case and Comment" (1951), 29 Can. Bar Rev. 784.



APPEAL from a judgment of the Quebec Court of Appeal (1984), 31 C.C.C. (3d) 75, dismissing the accused's appeal from his conviction on a charge of second degree murder. Appeal allowed and new trial ordered, McIntyre J. dissenting.



Michel Marchand and Michael Brind'Amour, for the appellant.



Bernard Laprade and Jean‑François Dionne, for the respondent.



James K. Stewart, for the intervener.



The judgment of Dickson C.J. and Estey, Lamer and Wilson JJ. was delivered by



Lamer J.‑‑



Introduction



1 Vaillancourt was convicted of second degree murder following a trial before a judge and jury in Montréal. He appealed to the Quebec Court of Appeal, arguing that the judge's charge to the jury on the combined operation of ss. 213(d) and 21(2) of the Criminal Code, R.S.C. 1970, c. C‑34, was incorrect. His appeal was dismissed and the conviction was affirmed: (1984), 31 C.C.C. (3d) 75. Before this Court, he has challenged the constitutional validity of s. 213(d) alone and in combination with s. 21(2) under the Canadian Charter of Rights and Freedoms.



The Facts



2 For the purposes of this appeal, the Crown does not contest the following statement of the facts.



3 The appellant and his accomplice committed an armed robbery in a pool hall. The appellant was armed with a knife and his accomplice with a gun. During the robbery, the appellant remained near the front of the hall while the accomplice went to the back. There was a struggle between the accomplice and a client. A shot was fired and the client was killed. The accomplice managed to escape and has never been found. The appellant was arrested at the scene.



4 In the course of his testimony, the appellant said that he and his accomplice had agreed to commit this robbery armed only with knives. On the night of the robbery, however, the accomplice arrived at their meeting place with a gun. The appellant said that he objected because, on a previous armed robbery, his gun had discharged accidentally, and he did not want that to happen again. He insisted that the gun be unloaded. The accomplice removed three bullets from the gun and gave them to the appellant. The appellant then went to the bathroom and placed the bullets in his glove. The glove was recovered by the police at the scene of the crime and was found at trial to contain three bullets. The appellant testified that, at the time of the robbery, he was certain that the gun was unloaded.



Constitutional Questions



5 Before this Court, the following constitutional questions were formulated:



1. Is section 213(d) of the Criminal Code inconsistent with the provisions of either s. 7 or s. 11(d) of the Canadian Charter of Rights and Freedoms, and, therefore, of no force or effect?



2. If not, is the combination of s. 21 and s. 213(d) of the Criminal Code inconsistent with the provisions of either s. 7 or s. 11(d) of the Canadian Charter of Rights and Freedoms and is s. 21 of the Criminal Code therefore of no force or effect in the case of a charge under s. 213(d) of the Criminal Code?



The Law



Narrowing the Issue



6 The appellant has framed his attack on s. 213(d) of the Code in very wide terms. He has argued that the principles of fundamental justice require that, before Parliament can impose any criminal liability for causing a particular result, there must be some degree of subjective mens rea in respect of that result. This is a fundamental question with far reaching consequences . If this case were decided on that basis, doubt would be cast on the constitutional validity of many provisions throughout our Criminal Code, in particular s. 205(5)(a), whereby causing death by means of an unlawful act is culpable homicide, and s. 212(c) whereby objective foreseeability of the likelihood of death is sufficient for a murder conviction in certain circumstances.



7 However, the appellant was convicted under s. 213(d) and the constitutional question is limited to this provision. In my opinion, the validity of s. 213(d) can be decided on somewhat narrower grounds. In addition, the Attorney General of Canada has seen fit not to intervene to support the constitutionality of s. 213(d), which is clearly in jeopardy in this case, though he may have intervened to support ss. 205(5)(a) and 212(c) and other similar provisions. I will thus endeavour not to make pronouncements the effect of which will be to predispose in obiter of other issues more properly dealt with if and when the constitutionality of the other provisions is in issue. I do, however, find it virtually impossible to make comments as regards s. 213(d) that will not have some effect on the validity of the rest of s. 213 or that will not reveal to some extent my views as regards s. 212(c). However, the validity of those sections and of paras. (a) to (c) of s. 213 is not in issue here and I will attempt to limit my comments to s. 213(d).



8 The appellant has also challenged the combined operation of ss. 21(2) and 213(d). Given my decision on the validity of s. 213(d) and in view of the importance of s. 21(2) and the absence of the Attorney General of Canada, I do not find it necessary or advisable to deal with s. 21(2) in this appeal.



Analysis of s. 213(d)



Section 213(d) in the Context of the Murder Provisions



9 It is first necessary to analyze s. 213(d) in the context of the other murder provisions in the Code in order to determine its true nature and scope. Murder is defined as a culpable homicide committed in the circumstances set out at ss. 212 and 213 of the Code. There is a very interesting progression through s. 212 to s. 213 with respect to the mental state that must be proven.



10 The starting point is s. 212(a)(i), which provides:



212. Culpable homicide is murder



(a) where the person who causes the death of a human being



(i) means to cause his death,



This clearly requires that the accused have actual subjective foresight of the likelihood of causing the death coupled with the intention to cause that death. This is the most morally blameworthy state of mind in our system.



11 There is a slight relaxation of this requirement in s. 212(a)(ii), which provides:



212. Culpable homicide is murder



(a) where the person who causes the death of a human being



...



(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;



Here again the accused must have actual subjective foresight of the likelihood of death. However, the Crown need no longer prove that he intended to cause the death but only that he was reckless whether death ensued or not. It should also be noted that s. 212(a)(ii) is limited to cases where the accused intended to cause bodily harm to the victim.



12 Section 212(c) provides:



212. Culpable homicide is murder



...



(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.



In part, this is simply a more general form of recklessness and thus the logical extension of s. 212(a)(ii), in that it applies when the accused "does anything that he knows . . . is likely to cause death" (emphasis added). However, there is also a further relaxation of the mental element required for murder in that it is also murder where the accused "does anything that he . . . ought to know is likely to cause death" (emphasis added). This eliminates the requirement of actual subjective foresight and replaces it with objective foreseeability or negligence.



13 The final relaxation in the definition of murder occurs at s. 213:



213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 76 (piratical acts), 76.1 (hijacking an aircraft), 132 or subsection 133(1) or sections 134 to 136 (escape or rescue from prison or lawful custody), 143 or 145 (rape or attempt to commit rape), 149 or 156 (indecent assault), subsection 246(2) (resisting lawful arrest), 247 (kidnapping and forcible confinement), 302 (robbery), 306 (breaking and entering) or 389 or 390 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if



(a) he means to cause bodily harm for the purpose of



(i) facilitating the commission of the offence, or



(ii) facilitating his flight after committing or attempting to commit the offence,



and the death ensues from the bodily harm;



(b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom;



(c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom; or



(d) he uses a weapon or has it upon his person



(i) during or at the time he commits or attempts to commit the offence, or



(ii) during or at the time of his flight after committing or attempting to commit the offence,



and the death ensues as a consequence.



Under this provision, it is murder if the accused causes the victim's death while committing or attempting to commit one of the enumerated offences if he performs one of the acts in paras. (a) to (d). Proof that the accused performed one of the acts in paras. (a) to (d) is substituted for proof of any subjective foresight or even objective foreseeability of the likelihood of death.



14 I should add that there appears to be a further relaxation of the mental state when the accused is a party to the murder through s. 21(2) of the Code as in this case. However, as I have said, it is sufficient to deal with s. 213(d) in order to dispose of this appeal.



The Historical Development of s. 213



15 Although the concept of felony murder has a long history at common law, a brief review of the historical development of s. 213 indicates that its legitimacy is questionable.



16 In the early history of English criminal law, murdrum or murder referred to a secret killing or the killing of a Dane or, later, a Norman by an Englishman and to the fine levied on the township where the killing occurred. By the early 14th century, the fines had been abandoned and murder had come to be the name used to describe the worst kind of homicide. The expression "malice aforethought" was subsequently adopted to distinguish murder from manslaughter, which denoted all culpable homicides other than murder. Malice aforethought was not limited to its natural and obvious sense of premeditation, but would be implied whenever the killing was intentional or reckless. In these instances, the malice was present and it is the premeditation which was implied by law.



17 Coke took this one step further and implied both the malice and the premeditation in cases where the death occurred in the commission of an unlawful act. He wrote in The Third Part of the Institutes of the Laws of England (London: W. Clarke & Sons, 1817), at p. 56:



Unlawfull. If the act be unlawful it is murder. As if A. meaning to steale a deere in the park of B, shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a bush: this is murder, for that the act was unlawfull, although A. had no intent to hurt the boy, nor knew not of him. But if B. the owner of the park had shot at his own deer, and without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure, and no felony.



So if one shoot at any wild fowle upon a tree, and the arrow killeth any reasonable creature afar off, without any evill intent in him, this is per infortunium: for it was not unlawful to shoot at the wilde fowle: but if he had shot at a cock or hen, or any tame fowle of another mans, and the arrow by mischance had killed a man, this had been murder, for the act was unlawfull.



18 Coke's statement of the unlawful act murder rule has been much criticized. Stephen demonstrated that Coke's statement was not supported by the authorities cited (A History of the Criminal Law of England (1883), vol. 3, at pp. 57‑58). Further, a recent author has suggested that Coke's statement was just "a slip of the quill" and that Coke intended to say that accidental killing by an unlawful act was manslaughter (see D. Lanham, "Felony Murder‑‑Ancient and Modern" (1983), 7 Crim. L.J. 90, at pp. 92‑94). Other 17th century writers (Dalton, Countrey Justice (1619), at pp. 225‑26, and Hale, History of the Pleas of the Crown (1736), vol. 1, at p. 475) and cases (Sir John Chichester's Case (1647), Aleyn 12, 82 E.R. 888, and Hull's Case (1664), Kelyng, J. 40) rejected the unlawful act murder rule as set out by Coke. Despite all of this, Coke's doctrine seems to have been accepted by the writers and the cases in the 18th century, and their only contribution was to limit it to killings in the course of felonies (see R. v. Plummer (1702), Kelyng, J. 109, 84 E.R. 1103, at p. 1107; Hawkins, Pleas of the Crown (1716), vol. 1, ch. 29, s. 11; R. v. Woodburne and Coke (1722), 16 St. Tr. 53; Foster, Crown Law (1762), at p. 258; East, Pleas of the Crown (1803), vol. 1, at p. 255). Of course, at that time, both the underlying felony and the murder were punishable by death, so the definition of a homicide in the course of a felony as a murder had little practical effect.



19 In the 19th century, the felony murder rule was accepted as part of the common law (see Stephen's Digest of the Criminal Law (9th ed. 1950), art. 264(c)). However, the rule was strongly criticized by Stephen, who labelled it "cruel" and "monstrous" (A History of the Criminal Law of England, supra, at p. 75).



20 Despite the rule's questionable origins and the subsequent criticisms, s. 175 of the English Draft Code of 1879 included a restricted form of felony murder which was subsequently adopted in the first Canadian Criminal Code in 1892. Through subsequent amendments, this provision has been widened and it is now s. 213. It is more restricted than the common law rule in that it is limited to deaths occurring in the commission of certain enumerated offences and it requires that the accused have committed one of the acts set out in paras. (a) to (d).



21 Section 213 and its predecessors in the Code have long been subject to academic criticism (see J. Willis, "Case and Comment" (1951), 29 Can. Bar Rev. 784, at pp. 794‑96; J. Ll. J. Edwards, "Constructive Murder in Canadian and English Law" (1961), 3 Crim. L.Q. 481, at pp. 506‑9; A. Hooper, "Some Anomalies and Developments in the Law of Homicide" (1967), 3 U.B.C. L. Rev. 55, at pp. 75‑77; P. Burns and R. S. Reid, "From Felony Murder to Accomplice Felony Attempted Murder: The Rake's Progress Compleat?" (1977), 55 Can. Bar Rev. 75, at pp. 103‑5; G. Parker, An Introduction to Criminal Law (1977), at pp. 145‑48; D. Stuart, Canadian Criminal Law (1982), at pp. 222‑25; I. Grant and A. W. MacKay, "Constructive Murder and the Charter: In Search of Principle" (1987), 25 Alta. L. Rev. 129; cf. A. W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at p. 545). It has also been subject to judicial criticism. In R. v. Farrant, [1983] 1 S.C.R. 124, Dickson J., as he then was, wrote that s. 213 seemed harsh (p. 130). In R. v. Ancio, [1984] 1 S.C.R. 225, dealing with the mens rea of attempted murder, McIntyre J. wrote at pp. 250‑51:



It was argued, and it has been suggested in some of the cases and academic writings on the question, that it is illogical to insist upon a higher degree of mens rea for attempted murder, while accepting a lower degree amounting to recklessness for murder. I see no merit in this argument. The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent. If there is any illogic in this matter, it is in the statutory characterization of unintentional killing as murder. [Emphasis added.]



22 Finally, the Law Reform Commission of Canada criticized s. 213 in Homicide (1984), Working Paper 33, at pp. 47‑51, and excluded the notion of constructive murder from its Draft Criminal Code (Recodifying Criminal Law (1986), Report 30, cl. 6(3), at p. 54).



Felony Murder in Other Jurisdictions



23 Felony murder is a peculiarly common law concept which appears to be unknown outside a small circle of common law jurisdictions, and it has not fared well in those jurisdictions. In the United Kingdom, where the rule originated, it was abolished by the Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11 (U.K.) The rule is still quite widespread in the United States, though it is said to be in decline (R. M. Perkins and R. N. Boyce, Criminal Law (3rd ed. 1982), at p. 70). The rule has been abolished by statute or by the courts in several jurisdictions (see People v. Aaron, 299 N.W.2d 304 (Mich. 1980), State v. Doucette, 470 A.2d 676 (Vt. 1983)), and it has been downgraded to manslaughter in others. In addition, the courts and the legislatures have limited the scope of the common law rule by limiting the felonies to which it is applicable, requiring some degree of mens rea with respect to the death, establishing affirmative defences or limiting the punishments available. The rule also exists in New Zealand and certain Australian states but it is narrower and abolition has been recommended in some jurisdictions.



Section 213(d) and the Charter



24 This appeal calls into play two principles of fundamental justice.



The First Principle: The Essential Elements of Certain Crimes and s. 7 of the Charter



25 Prior to the enactment of the Charter, Parliament had full legislative power with respect to "The Criminal Law" (Constitution Act, 1867, s. 91(27)), including the determination of the essential elements of any given crime. It could prohibit any act and impose any penal consequences for infringing the prohibition, provided only that the prohibition served "a public purpose which can support it as being in relation to criminal law" (Reference re Validity of s. 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, at p. 50; appeal to the Privy Council dismissed, [1951] A.C. 179). Once the legislation was found to have met this test, the courts had very little power to review the substance of the legislation. For example, in R. v. Corporation of the City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, Dickson J., as he then was, held that, when an offence was criminal in the true sense, there was a presumption that the prosecution must prove the mens rea. However, it was always open to Parliament expressly to relieve the prosecution of its obligation to prove any part of the mens rea, as it is said to have done in s. 213 of the Code with respect to the foreseeability of the death of the victim. It is thus clear that, prior to the enactment of the Charter, the validity of s. 213 could not have been successfully challenged.



26 However, federal and provincial legislatures have chosen to restrict through the Charter this power with respect to criminal law. Under section 7, if a conviction, given either the stigma attached to the offence or the available penalties, will result in a deprivation of the life, liberty or security of the person of the accused, then Parliament must respect the principles of fundamental justice. It has been argued that the principles of fundamental justice in s. 7 are only procedural guarantees. However, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, this Court rejected that argument and used s. 7 to review the substance of the legislation. As a result, while Parliament retains the power to define the elements of a crime, the courts now have the jurisdiction and, more important, the duty, when called upon to do so, to review that definition to ensure that it is in accordance with the principles of fundamental justice.



27 This Court's decision in Re B.C. Motor Vehicle Act stands for the proposition that absolute liability infringes the principles of fundamental justice, such that the combination of absolute liability and a deprivation of life, liberty or security of the person is a restriction on one's rights under s. 7 and is prima facie a violation thereof. In effect, Re B.C. Motor Vehicle Act acknowledges that, whenever the state resorts to the restriction of liberty, such as imprisonment, to assist in the enforcement of a law, even, as in Re B.C. Motor Vehicle Act, a mere provincial regulatory offence, there is, as a principle of fundamental justice, a minimum mental state which is an essential element of the offence. It thus elevated mens rea from a presumed element in Sault Ste. Marie, supra, to a constitutionally required element. Re B.C. Motor Vehicle Act did not decide what level of mens rea was constitutionally required for each type of offence, but inferentially decided that even for a mere provincial regulatory offence at least negligence was required, in that at least a defence of due diligence must always be open to an accused who risks imprisonment upon conviction. In Sault Ste. Marie, Dickson J. stated at pp. 1309‑10:



Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law.



It may well be that, as a general rule, the principles of fundamental justice require proof of a subjective mens rea with respect to the prohibited act, in order to avoid punishing the "morally innocent". It must be remembered, however, that Dickson J. was dealing with the mens rea to be presumed in the absence of an express legislative disposition, and not the mens rea to be required in all legislation providing for a restriction on the accused's life, liberty or security of the person. In any event, this case involves criminal liability for the result of an intentional criminal act, and it is arguable that different considerations should apply to the mental element required with respect to that result. There are many provisions in the Code requiring only objective foreseeability of the result or even only a causal link between the act and the result. As I would prefer not to cast doubt on the validity of such provisions in this case, I will assume, but only for the purposes of this appeal, that something less than subjective foresight of the result may, sometimes, suffice for the imposition of criminal liability for causing that result through intentional criminal conduct.



28 But, whatever the minimum mens rea for the act or the result may be, there are, though very few in number, certain crimes where, because of the special nature of the stigma attached to a conviction therefor or the available penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime. Such is theft, where, in my view, a conviction requires proof of some dishonesty. Murder is another such offence. The punishment for murder is the most severe in our society and the stigma that attaches to a conviction for murder is similarly extreme. In addition, murder is distinguished from manslaughter only by the mental element with respect to the death. It is thus clear that there must be some special mental element with respect to the death before a culpable homicide can be treated as a murder. That special mental element gives rise to the moral blameworthiness which justifies the stigma and sentence attached to a murder conviction. I am presently of the view that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight. Given the effect of this view on part of s. 212(c), for the reasons I have already given for deciding this case more narrowly, I need not and will not rest my finding that s. 213(d) violates the Charter on this view, because s. 213(d) does not, for reasons I will set out hereinafter, even meet the lower threshold test of objective foreseeability. I will therefore, for the sole purpose of this appeal, go no further than say that it is a principle of fundamental justice that, absent proof beyond a reasonable doubt of at least objective foreseeability, there surely cannot be a murder conviction.



The Second Principle: s. 11(d) and the Burden of Persuasion



29 The presumption of innocence in s. 11(d) of the Charter requires at least that an accused be presumed innocent until his guilt has been proven beyond a reasonable doubt: Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 357; R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 120‑21. This means that, before an accused can be convicted of an offence, the trier of fact must be satisfied beyond reasonable doubt of the existence of all of the essential elements of the offence. These essential elements include not only those set out by the legislature in the provision creating the offence but also those required by s. 7 of the Charter. Any provision creating an offence which allows for the conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes ss. 7 and 11(d).



30 Clearly, this will occur where the provision requires the accused to disprove on a balance of probabilities an essential element of the offence by requiring that he raise more than just a reasonable doubt. It is for this reason that this Court struck down the reverse onus provision in s. 8 of the Narcotic Control Act, R.S.C. 1970, c. N‑1, in Oakes, supra.



31 Sections 7 and 11(d) will also be infringed where the statutory definition of the offence does not include an element which is required under s. 7. As Dickson C.J. wrote for the majority of the Court in Oakes, supra, at pp. 132‑33:



In general one must, I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11(d). If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue. [Emphasis added.]



It is clear from this passage that what offends the presumption of innocence is the fact that an accused may be convicted despite the existence of a reasonable doubt on an essential element of the offence, and I do not think that it matters whether this results from the existence of a reverse onus provision or from the elimination of the need to prove an essential element. With respect, the Nova Scotia Court of Appeal was thus clearly incorrect when it stated in R. v. Bezanson (1983), 8 C.C.C. (3d) 493, at p. 508:



In my view, there was no attempt by Parliament to reverse the onus of proof under s. 213, and s. 11(d) of the Charter has no application. Parliament has not reversed the burden of proof, it has simply omitted what the appellant argues is an essential element from the definition of the offence so that no evidence is required at all on that issue.



The omission of an essential element does bring s. 11(d) into play.



32 Finally, the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. In my view, this will be constitutionally valid only if upon proof beyond reasonable doubt of the substituted element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element. If the trier of fact may have a reasonable doubt as to the essential element notwithstanding proof beyond a reasonable doubt of the substituted element, then the substitution infringes ss. 7 and 11(d).



33 Given the first principle I have enunciated earlier and my assumption for the sole purpose of disposing of this appeal with respect to objective foreseeability, an accused cannot be found guilty of murder absent proof beyond a reasonable doubt of that element, and a murder provision which allows a conviction in the absence of proof beyond reasonable doubt of at least that essential element infringes ss. 7 and 11(d).



Application of the Principles to s. 213



34 The mens rea required for s. 213 consists of the mens rea for the underlying offence and the intent to commit one of the acts set forth in paras. (a) to (d) (Swietlinski v. The Queen, [1980] 2 S.C.R. 956). Section 213 does not impose on the accused the burden of disproving objective foreseeability. Further, it does not completely exclude the need to prove any objective foreseeability. Rather, s. 213 has substituted for proof beyond a reasonable doubt of objective foreseeability, if that is the essential element, proof beyond a reasonable doubt of certain forms of intentional dangerous conduct causing death.



35 The question is, therefore, can Parliament make this substitution without violating ss. 7 and 11(d)? As I have discussed earlier, if Parliament frames the section so that, upon proof of the conduct, it would be unreasonable for a jury not to conclude beyond a reasonable doubt that the accused ought to have known that death was likely to ensue, then I think that Parliament has enacted a crime which is tantamount to one which has objective foreseeability as an essential element, and, if objective foreseeability is sufficient, then it would not be in violation of s. 7 or s. 11(d) in doing so in that way. The acid test of the constitutionality of s. 213 is this ultimate question: Would it be possible for a conviction for murder to occur under s. 213 despite the jury having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue? If the answer is yes, then the section is prima facie in violation of ss. 7 and 11(d). I should add in passing that if the answer is no, then it would be necessary to decide whether objective foreseeability is sufficient for a murder conviction. However, because in my view the answer is yes and because I do not want to pass upon the constitutionality of s. 212(c) in this case, I will not address that issue.



36 To varying degrees it can be said that in almost any case a jury satisfied beyond a reasonable doubt that an accused has done one of the prohibited acts described in paras. (a) to (d) will be satisfied beyond a reasonable doubt that the accused ought to have known that death was likely to be caused. But not always. Indeed, as a first example, drunkenness would under certain circumstances leave the jury in doubt in that regard. The rule as regards the effect of drunkenness on objective foreseeability was unanimously laid down by this Court in R. v. Vasil, [1981] 1 S.C.R. 469, a murder prosecution under s. 212(c). This Court addressed the issue at some length and then summarized its conclusion as follows, per Lamer J. at pp. 500‑501:



(5) Whilst the test under 212(c) is objective and the behaviour of the accused is to be measured by that of the reasonable man, such a test must nevertheless be applied having regard, not to the knowledge a reasonable man would have had of the surrounding circumstances that allegedly made the accused's conduct dangerous to life, but to the knowledge the accused had of those circumstances;



(6) As a result, drunkenness, though not relevant in the determination of what a reasonable man, with the knowledge the accused had of those circumstances, would have anticipated, is relevant in the determination of the knowledge which the accused had of those circumstances.



It is clear to me that under s. 213 as drafted there will be cases where the effect of drunkenness on an accused's knowledge of the circumstances would leave a jury with a reasonable doubt as to whether the accused ought to have known of the likelihood of death ensuing, even though it has been proven beyond a reasonable doubt that the accused actually did one of the acts described under paras. (a) to (d).



37 A second example, and this case amply illustrates the point, is the accused who is brought into s. 213 not as a principal but through the operation of s. 21(2) of the Criminal Code. In R. v. Trinneer, [1970] S.C.R. 638, this Court had the opportunity to consider the combined operation of ss. 21(2) and 213 (s. 202 at the time). Cartwright C.J., delivering the judgment of the Court, stated at pp. 645‑46.



At the risk of repetition, it is my opinion that on the true construction of s. 202 and s. 21(2) as applied to the circumstances of this case it was necessary to support a verdict of guilty against the respondent that the Crown should establish (i) that it was in fact a probable consequence of the prosecution of the common purpose of the respondent and Frank to rob Mrs. Vollet that Frank for the purpose of facilitating the commission of the robbery would intentionally cause bodily harm to Mrs. Vollet, (ii) that it was known or ought to have been known to the respondent that such consequence was probable and (iii) that in fact Mrs. Vollet's death ensued from the bodily harm. It was not necessary for the Crown to establish that the respondent knew or ought to have known that it was probable that Mrs. Vollet's death would ensue. [Emphasis added.]



It is clear that an accused can be convicted of murder under the combined operation of ss. 21(2) and 213 in circumstances where the death was not objectively foreseeable. As section 21(2) requires proof of objective foreseeability, the culprit, in my view, must be s. 213.



38 These two examples suffice, in my view, for one to conclude that notwithstanding proof beyond a reasonable doubt of the matters set forth in paras. (a) to (d) a jury could reasonably be left in doubt as regards objective foreseeability of the likelihood that death be caused. In other words, s. 213 will catch an accused who performs one of the acts in paras. (a) to (d) and thereby causes a death but who otherwise would have been acquitted of murder because he did not foresee and could not reasonably have foreseen that death would be likely to result. For that reason, s. 213 prima facie violates ss. 7 and 11(d). It is thus not necessary to decide whether objective foreseeability is sufficient for murder as s. 213 does not even meet that standard. This takes us to s. 1 for the second phase of the constitutional inquiry.



Section 1



39 Finding that s. 213 of the Criminal Code infringes ss. 7 and 11(d) of the Charter does not end the inquiry on the constitutional validity of s. 213. Any or all of paras. (a) to (d) of s. 213 can still be upheld as a reasonable limit "demonstrably justified in a free and democratic society" under s. 1 of the Charter.



40 In this case and at this stage of the inquiry, we need only consider para. (d) of s. 213. The criteria to be assessed under s. 1 have been set out by this Court in several cases, particularly R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, and R. v. Oakes, supra. First, the objective which the measures are designed to serve must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom" (Big M Drug Mart, supra, at p. 352). Through s. 213(d) of the Code, Parliament intended to deter the use or carrying of a weapon in the commission of certain offences, because of the increased risk of death. In my view, it is clear that this objective is sufficiently important.



41 In addition, the measures adopted must be reasonable and demonstrably justified. The measures adopted appear to be rationally connected to the objective: indiscriminately punishing for murder all those who cause a death by using or carrying a weapon, whether the death was intentional or accidental, might well be thought to discourage the use and the carrying of weapons. I believe, however, that the measures adopted would unduly impair the rights and freedoms in question (see Big M Drug Mart, supra, at p. 352). It is not necessary to convict of murder persons who did not intend or foresee the death and who could not even have foreseen the death in order to deter others from using or carrying weapons. If Parliament wishes to deter the use or carrying of weapons, it should punish the use or carrying of weapons. A good example of this is the minimum imprisonment for using a firearm in the commission of an indictable offence under s. 83 of the Criminal Code. In any event, the conviction for manslaughter which would result instead of a conviction for murder is punishable by, from a day in jail, to confinement for life in a penitentiary. Very stiff sentences when weapons are involved in the commission of the crime of manslaughter would sufficiently deter the use or carrying of weapons in the commission of crimes. But stigmatizing the crime as murder unnecessarily impairs the Charter right.



42 In my view, therefore, s. 213(d) of the Code is not saved by s. 1.



Conclusion



43 As a result of the foregoing, I would answer the first constitutional question in the affirmative, as s. 213(d) violates both s. 7 and s. 11(d) of the Charter, and I would declare s. 213(d) of the Criminal Code to be of no force or effect. I would, for the reasons which I have given, decline to answer the second constitutional question. It follows that the appeal must be allowed, the appellant's conviction for murder set aside, and a new trial ordered.



The reasons of Beetz and Le Dain JJ. were delivered by



44 Beetz J.‑‑For the reasons given by Justice Lamer and Justice La Forest, I agree that s. 213(d) of the Criminal Code does not conform to the principles of fundamental justice entrenched in the Canadian Charter of Rights and Freedoms and cannot be saved under s. 1. I also agree with Lamer J. that s. 213(d) of the Code violates s. 11(d) of the Charter and cannot be justified under s. 1 of the Charter.



45 Given these conclusions, I do not find it necessary to decide whether there exists a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight.



46 I would dispose of the appeal in the manner proposed by Lamer J. and answer the first constitutional question as he does. I would also decline to answer the second constitutional question.



The following are the reasons delivered by



47 McIntyre J. (dissenting)‑‑I have had the advantage of reading the reasons for judgment in this appeal prepared by my colleague, Lamer J. I find myself unable to agree with his disposition of the appeal and, with the greatest respect for his view on the matter, I would dismiss the appeal and answer both constitutional questions in the negative.



48 My colleague has set out the facts of the case. They need not be repeated here. It is evident as well from his reasons that, save for the Canadian Charter of Rights and Freedoms, he is in agreement that the appellant would be properly convicted of murder under the combined effect of s. 21(2) and s. 213(d) of the Criminal Code. He would allow the appeal essentially on the basis that a conviction for murder which will result in the deprivation of liberty or security of the person of the accused can only be upheld if, in accordance with the terms of s. 7 of the Charter, it is procured in accordance with the principles of fundamental justice. While Parliament has the power to define the elements of a crime, in his view the courts must now review that definition to insure that it is in accordance with the principles of fundamental justice. These principles would require that there be no murder conviction without proof of a mens rea of at least objective foreseeability of death. Such foreseeability is not a necessary requirement under s. 213(d) of the Code.



49 I am not prepared to accept the proposition that s. 213(d) of the Criminal Code admits of a conviction for murder without proof of objective foreseeability of death or the likelihood of death, but in the view I take of this case it is not necessary to reach a firm conclusion on that point. The Crown sought the conviction of Vaillancourt on the basis of the interaction of s. 21(2) and s. 213(d) of the Code. For the Crown to succeed in such a prosecution, it would be required to prove that the accused and another had formed an intention in common to carry out an unlawful purpose and to assist each other therein. In addition, in the circumstances of this case, the Crown would be required to prove that the appellant knew or ought to have known that his associate was armed with a pistol and would, if necessary, use it during the commission of the offence or the attempt to commit the offence, or during his flight after committing or attempting to commit the offence, and that as a consequence a death occurred: see R. v. Munro and Munro (1983), 8 C.C.C. (3d) 260 (per Martin J.A.), at p. 301, and the pre‑Charter case in this Court in R. v. Trinneer, [1970] S.C.R. 638.



50 It must be recognized at the outset that Parliament has decided that the possession and use of weapons, particularly firearms, in the course of the commission of offences is a gravely aggravating factor. Experience has shown that the presence of firearms leads to personal injury and loss of life. Parliament has chosen to term a killing arising in the circumstances described here as "murder". In R. v. Munro and Munro, supra, Martin J.A., speaking for the Ontario Court of Appeal (Arnup, Martin and Houlden JJ.A.), said this, at p. 293:



Under the provisions of s. 213(d) liability for murder attaches if death ensues as a consequence of the use of the weapon or as a consequence of the possession of a weapon which he has on his person. Manifestly, s. 213(d) is very stringent, but it is equally obvious that Parliament intended to create a stringent basis of liability where death ensued as a consequence of the use or possession of a weapon which the offender has upon his person during the commission or attempted commission of certain offences or the offender's flight after the commission or attempted commission of the offence. It is clear that Parliament intended to provide a strong deterrent to the carrying of weapons in the commission of certain crimes because of the high risk to life which experience has shown attends such conduct.



51 The principal complaint in this case is not that the accused should not have been convicted of a serious crime deserving of severe punishment, but simply that Parliament should not have chosen to call that crime "murder". No objection could be taken if Parliament classified the offence as manslaughter or a killing during the commission of an offence, or in some other manner. As I have observed before (see R. v. Ancio, [1984] l S.C.R. 225, at p. 251), while it may be illogical to characterize an unintentional killing as murder, no principle of fundamental justice is offended only because serious criminal conduct, involving the commission of a crime of violence resulting in the killing of a human being, is classified as murder and not in some other manner. As Martin J.A. said in R. v. Munro and Munro, supra, at p. 301:



This legislation has frequently been criticized as being harsh, but that is a matter for Parliament and not for the courts.



I would refer, as well, to the words found in A. W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at pp. 544‑45:



Section 213 and the concept of constructive murder have been much criticized and, in fact, abolished in many jurisdictions. The criticism is that it imposes liability for murder in situations where death was not intended nor even, in some cases, foreseen. But murder is a legal concept; it does not have to be defined in terms of intentional killing, and even under s. 212 the definition is not this narrow. The policy behind s. 213 is to put the risk of killing a victim during the course of the commission of certain offences upon the offender to a higher degree than if it were merely classified as manslaughter. In any case, with the present distinction between murder punishable by death and murder punishable by life imprisonment now abolished, much of the criticism loses its force. It was the thought of someone being executed for a non‑intended homicide that led to the feeling that the definition of murder should somehow be limited to the old common law concept of "murder with malice aforethought".



52 As has been noted, the appellant's conviction is based on a combination of s. 21(2) and s. 213(d) of the Criminal Code. There was in this case evidence of active participation in the commission of the robbery, the underlying offence, and the terms of s. 21(2) were fully met. It must be accepted that the section gives expression to a principle of joint criminal liability long accepted and applied in the criminal law. I am unable to say upon what basis one could exempt conduct which attracts criminal liability, under s. 213 of the Criminal Code, from the application of that principle. In R. v. Munro and Munro, supra, Martin J.A. said, at p. 301:



Patently, Parliament has decided that the carrying of weapons during the commission of certain crimes, such as robbery, so manifestly endangers the lives of others, that one who joins a common purpose to commit one of the specified offences and who knows or ought to know that his accomplice has upon his person a weapon which he will use if needed, must bear the risk if death, in fact, ensues as a consequence of the use or possession of the weapon during the commission of one of the specified offences or during the flight of the offender after the commission or attempted commission of the underlying offence . . .



In my view, Martin J.A. has stated the policy considerations which have motivated Parliament in this connection and I would not interfere with the Parliamentary decision. I would, therefore, dismiss the appeal and answer the two constitutional questions in the negative.



The following are the reasons delivered by



53 La Forest J.‑‑I have had the advantage of reading the judgment of Lamer J. and would dispose of the appeal in the manner proposed by him. I am in agreement with him that because of the stigma attached to a conviction for murder, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime, namely one referable to causing death. In addition to the intention to cause death, this can include a closely related intention such as intention to cause bodily harm likely to result in death combined with recklessness as to that result. Whether and how much further the intention can be extended it is not necessary to explore for the purposes of this case. It is sufficient to say that the mental element required by s. 213(d) of the Criminal Code is so remote from the intention specific to murder (which intention is what gives rise to the stigma attached to a conviction for that crime) that a conviction under that paragraph violates fundamental justice. All the provision requires is an intention to commit another crime and to possess a weapon while carrying out this intention or in fleeing afterwards. The provision is so broad that under it a person may be found guilty of murder even though the death was the result of an accident. This occurred in Rowe v. The King, [1951] S.C.R. 713, and more extreme examples can easily be imagined. The section is thus not only remote from the mens rea specific to murder, but even removes its actus reus as traditionally defined; see I. Grant and A. W. MacKay, "Constructive Murder and the Charter: In Search of Principle" (1987), 25 Alta. L. Rev. 129.



54 As my colleague notes, the objective of discouraging the use of weapons in the commission of crimes can be achieved by means other than attaching the stigma of a conviction for murder to a person who has caused death in the circumstances like those described in the provision.



Appeal allowed and new trial ordered, McIntyre J. dissenting.



Solicitor for the appellant: Michel Marchand, Montréal.



Solicitor for the respondent: Bernard Laprade, Montréal.



Solicitor for the intervener: The Ministry of the Attorney General, Toronto.
The following is the judgment in the case R. v. Williams, in which the Supreme Court of Canada ruled that judges must act on the basis of acknowledging the existence of widespread racism in Canadian society when applying the rules for selecting and instructing juries. John considers this ruling very relevant to his own case, given that the juries in both of his trials were entirely white despite the fact that the trials occurred in an area where lots of Native people live. This material has been obtained from Supreme Court website.

R. v. Williams, [1998] 1 S.C.R. 1128



Victor Daniel Williams Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada,
the Attorney General for Ontario,
Aboriginal Legal Services of Toronto Inc.,
the African Canadian Legal Clinic,
the Urban Alliance on Race Relations (Justice)
and the Criminal Lawyers’ Association (Ontario) Interveners


Indexed as: R. v. Williams


File No.: 25375.


1998: February 24; 1998: June 4.



Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for british columbia



Criminal law ‑‑ Trial ‑‑ Procedure ‑‑ Challenge for cause ‑‑ Racial bias ‑‑ Whether prospective jurors can be questioned as to racial bias ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 638, 649 ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 15(1).



The accused, an aboriginal, pleaded not guilty to a robbery charge and elected a trial by judge and jury. The trial judge at the first trial allowed questions to be put to potential jurors but the Crown successfully applied for a mistrial on the basis of procedural errors and the “unfortunate publicity” of the jury selection process. At the second trial, the judge who heard the accused’s motion for an order permitting him to challenge jurors for cause dismissed the motion. The judge who presided at the trial dismissed a renewed application and did not warn the jury, either in his opening or closing addresses, to be aware of or to disregard any bias or prejudice that they might feel towards the accused as a native person. The Court of Appeal dismissed an appeal from conviction. The courts below accepted that there was widespread prejudice against aboriginal people in the community. At issue here is whether the evidence of widespread bias against aboriginal people in the community raises a realistic potential of partiality.



Held: The appeal should be allowed.



The prosecution and the defence are entitled to challenge potential jurors for cause on the ground of partiality. Candidates for jury duty are presumed to be indifferent or impartial and this presumption must be displaced before they can be challenged and questioned. Usually the party seeking the challenge calls evidence substantiating the basis of the concern. Alternatively, where the basis of the concern is widely known and accepted, the law of evidence may permit a judge to take judicial notice of it. The judge has a wide discretion in controlling the challenge process and should permit challenges if there is a realistic possibility that the jury pool may contain people whose racial prejudice might incline them to favour the Crown rather than the accused in deciding the matters that fall to them in the course of the trial.



Judicial directions to act impartially cannot always be assumed to be effective in countering racial prejudice. Where doubts are raised, the better policy is to err on the side of caution and permit prejudice to be examined. A motion to challenge for cause therefore need not be dismissed if there was “no concrete evidence” that any of the prospective jurors could not set aside their biases. The expectation that jurors usually behave in accordance with their oaths does not obviate the need to permit challenges for cause where it is established that the community suffers from widespread prejudice against people of the accused’s race sufficient to create a realistic potential for partiality.



The contention that there need be some evidence of bias of a particular nature and extent against aboriginal persons, or even further, that racial prejudice in the community must be linked to specific aspects of the trial, is unduly restrictive. Evidence of widespread racial prejudice may, depending on the nature of the evidence and the circumstances of the case, lead to the conclusion that there is a realistic potential for partiality. The potential for partiality is irrefutable where the prejudice can be linked to specific aspects of the trial, like a widespread belief that people of the accused’s race are more likely to commit the crime charged.



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. Racial prejudice may also play a role in other, less obvious ways such as how jurors assess the credibility of the accused.



The trial judge has the discretion 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. It is impossible to provide an exhaustive catalogue of those circumstances. Where specific “links” to the trial exist, the trial judge must allow the challenge to proceed.



Section 638(2) of the Criminal Code requires two inquiries and entails two different decisions. The first stage is the inquiry before the judge to determine whether challenges for cause should be permitted. The test at this stage is whether there is a realistic potential or possibility for partiality. If the judge permits challenges for cause, a second inquiry occurs on the challenge itself. The defence may question potential jurors as to whether they harbour prejudices against people of the accused’s race, and if so, whether they are able to set those prejudices aside and act as impartial jurors. At this stage, the question to be determined by the triers is whether the candidate in question will be able to act impartially.



Section s. 638(1)(b) is intended to prevent persons who may not be able to act impartially from sitting as jurors. This object cannot be achieved if the evidentiary threshold for challenges for cause is set too high. To require evidence that some jurors will be unable to set their prejudices aside is to ask the impossible. Similarly, extreme prejudice is a poor indicator of a realistic danger or potential of partiality. Widespread racial prejudice is not exceptional.



The appropriate evidentiary standard on applications to challenge for cause based on racial prejudice is a “realistic potential for partiality” (the rule in R. v. Sherratt). Absent evidence to the contrary, where widespread prejudice against people of the accused’s race is demonstrated at a national or provincial level, it will often be reasonable to infer that such prejudice is replicated at the community level. Prejudice less than widespread might in some circumstances meet this test.



A judge’s discretion to allow challenge for cause must be exercised in accordance with the Canadian Charter of Rights and Freedoms. Section s. 638(1)(b) should be read in light of the fundamental rights to a fair trial by an impartial jury and to equality before and under the law. The rule in Sherratt suffices to maintain these rights without adopting the United States model or a variant on it. It protects the accused’s right to a fair trial by an impartial jury and the privacy interests of prospective jurors while avoiding lengthening trials or increasing their cost.



Cases Cited



Applied: R. v. Sherratt, [1991]1 S.C.R. 509; R. v. Parks (1993), 84 C.C.C. (3d) 353; referred to: R. v. Hubbert (1975), 29 C.C.C. (2d) 279; R. v. Zundel (No. 1) (1987), 31 C.C.C. (3d) 97; Aldridge v. United States, 283 U.S. 308 (1931); R. v. B. (A.) (1997), 33 O.R. (3d) 321; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.



Statutes and Regulations Cited



Canadian Charter of Rights and Freedoms, s. 7, 11(d), 15(1).

Criminal Code, R.S.C.,1985, c. C‑46, ss. 638, 649.





Authors Cited



British Columbia. Cariboo-Chilcotin Justice Inquiry. Report on the Cariboo-Chilcotin Justice Inquiry. Victoria: The Inquiry, 1993.



Burton, William C. Legal Thesaurus, 2nd ed. Toronto: Maxwell Macmillan Canada, 1992.



Canada. Royal Commission on Aboriginal Peoples. Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada. Ottawa: The Commission, 1996.



Canadian Bar Association. Committee on Imprisonment and Release. Locking Up Natives in Canada: A Report of the Committee of the Canadian Bar Association on Imprisonment and Release. Ottawa: The Association, 1988.



Johnson, Sheri Lynn. “Black Innocence and the White Jury” (1985), 83 Mich. L. Rev. 1611.



Nova Scotia. Royal Commission on the Donald Marshall, Jr. Prosecution: Findings and Recommendations, vol. 1. Halifax: The Commission, 1989.



Pfeiffer, Jeffrey. “Reviewing the Empirical Evidence on Jury Racism: Findings of Discrimination or Discriminatory Findings?” (1990), 69 Neb. L. Rev. 230.



Roach, Kent. “Challenges for Cause and Racial Discrimination” (1995), 37 Crim. L.Q. 410.



Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.



Tanovich, David M., David M. Paciocco and Steven Skurka. Jury Selection in Criminal Trials. Concord, Ont.: Irwin Law, 1997.



Vidmar, Neil. “Pretrial prejudice in Canada: a comparative perspective on the criminal jury” (1996), 79 Jud. 249.



APPEAL from a judgment of the British Columbia Court of Appeal (1996), 75 B.C.A.C. 135, 123 W.A.C. 135, 134 D.L.R. (4th) 519, 106 C.C.C. (3d) 215, 48 C.R. (4th) 97, [1997] 1 C.N.L.R. 153, [1996] B.C.J. No. 926 (QL), dismissing an appeal from conviction by Vickers J. sitting with jury, [1994] B.C.J. No. 3160 (QL), after a judgment by Esson C.J. on a motion to challenge for cause (1994), 90 C.C.C. (3d) 194, 30 C.R. (4th) 277, [1995] 3 C.N.L.R. 178, [1994] B.C.J. No. 1301 (QL). Appeal allowed.

Joseph J. Blazina, for the appellant.



Dirk Ryneveld, Q.C., and George Ivanisko, for the respondent.



Graham Garton, Q.C., for the intervener the Attorney General of Canada.



Ian R. Smith, for the intervener the Attorney General for Ontario.



Kent Roach and Noelle Spotton, for the intervener Aboriginal Legal Services of Toronto Inc.



Steven M. Hinkson and Julian K. Roy, for the intervener the African Canadian Legal Clinic.



Julian N. Falconer and Richard Macklin, for the intervener the Urban Alliance on Race Relations (Justice).



James Lockyer, for the intervener the Criminal Lawyers’ Association (Ontario).



//McLachlin J.//



The judgment of the Court was delivered by



McLachlin J. --



Introduction

1 Victor Daniel Williams, an aboriginal, was charged with the robbery of a Victoria pizza parlour in October, 1993. Mr. Williams pleaded not guilty and elected a trial by judge and jury. His defence was that the robbery had been committed by someone else, not him. The issue on this appeal is whether Mr. Williams has the right to question (challenge for cause) potential jurors to determine whether they possess prejudice against aboriginals which might impair their impartiality.



2 The Criminal Code, R.S.C., 1985, c. C-46, s. 638, provides that “an accused is entitled to any number of challenges on the ground that . . . a juror is not indifferent between the Queen and the accused”. The section confers discretion on the trial judge to permit challenges for cause. The judge should do so where there is a realistic potential of juror partiality. The evidence in this case established widespread racial prejudice against aboriginals. I conclude that in the circumstances of this case, that prejudice established a realistic potential of partiality and that the trial judge should have exercised his discretion to allow the challenge for cause.



History of the Proceedings



The First Trial



3 At his first trial, Williams applied to question potential jurors for racial bias under s. 638 of the Code. In support of his application, he filed materials alleging widespread racism against aboriginal people in Canadian society and an affidavit which stated, in part, “[I] hope that the 12 people that try me are not Indian haters”. Hutchison J. ruled that Williams had met the threshold test and allowed potential jurors to be asked two questions:



(1) 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 an Indian?



(2) 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 an Indian and the complainant is white?



On a number of occasions, Hutchison J. allowed additional questions to clarify responses to the first two questions. Forty-three panel members were questioned and 12 were dismissed for risk of bias. The Crown applied for a mistrial on the basis of procedural errors, including use of the same two jurors on all the challenges, coupled with “unfortunate publicity” of the jury selection process. The accused objected, arguing that the Crown was seeking a new trial in order to obtain reversal of the challenge for cause ruling. The trial judge replied that he doubted this would happen, given the case law, and granted the Crown’s application for a mistrial.



The Second Trial (1994), 90 C.C.C. (3d) 194



4 Williams’ motion for an order permitting him to challenge jurors for cause was heard by Esson C.J. In support of the application, Williams called four witnesses and filed the ruling of Hutchison J. on the right to challenge for cause and a transcript of the jury selection proceedings. Esson C.J. found, at p. 198, that the evidence tended to support the view “that natives historically have been and continue to be the object of bias and prejudice which, in some respects, has become more overt and widespread in recent years as the result of tensions created by developments in such areas as land claims and fishing rights”. He acknowledged that there was a reasonable possibility that a potential juror would be biased against an aboriginal person charged with robbery of a white person. He also accepted that the test for challenge for cause is “reasonable possibility” of influence by bias, or partiality: see R. v. Sherratt, [1991] 1 S.C.R. 509.



5 However, Esson C.J. rejected the argument that the widespread bias against Natives created a reasonable possibility of partiality sufficient to support a challenge for cause. “[I]t does not follow, in the absence of anything more than the race of the accused, that there is a realistic possibility that a juror would be influenced by such a bias in carrying out the solemn duty of deciding whether the accused is guilty of the crime charged” (at p. 206). In other words, Esson C.J. held that while there was a reasonable possibility that potential jurors would be biased against Williams, there was no reasonable possibility that this bias would translate into partiality at the trial, because jurors can be expected to put aside their biases and because the jury system provides effective safeguards against such biases. In his view, the law presumes impartiality, and evidence of general bias in the community is insufficient to displace this presumption. Esson C.J. buttressed this conclusion with a cost-benefit analysis. In his view, the cost and disruption that would result from allowing challenges for cause on the basis of racial bias in the community would far outweigh the putative benefit of supposedly fairer trials. He distinguished R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.), where challenge for cause on account of racial bias had been allowed, on the ground that the evidence there showed not only racial bias, but a widespread perception in the community of Toronto that black people were linked to violent crime.



6 Vickers J. presided at the trial. He dismissed a renewed application to challenge potential jurors for cause. Neither in his opening to the jury nor in his closing address to the jury did he instruct the jury that it ought to be aware of or disregard any bias or prejudice that they might feel towards Williams as a native person. Williams called evidence to support his defence that another aboriginal person, not he, had committed the robbery. The jury convicted Williams. Williams appealed to the Court of Appeal on the issue of challenge for cause.





The Court of Appeal (1996), 106 C.C.C. (3d) 215



7 The Court of Appeal, per Macfarlane J.A., agreed with Esson C.J. that there is a presumption of juror impartiality, and that it is not discharged by evidence of general bias in the community against persons of the accused’s race. To discharge the presumption, evidence of racist attitudes that would have particular significance in relation to a criminal trial is required. It dismissed the appeal, at pp. 229-30, because “there are no studies . . . in the evidence which conclude that persons in a jury setting may be inclined to find that an aboriginal person is more likely to have committed a crime than a non-aboriginal person”. It held that while procedural cost cannot diminish the right to a fair trial, Esson C.J.’s cost-benefit analysis was collateral and did not vitiate his decision. The appeal was dismissed and the conviction upheld.



Statutory and Constitutional Provisions





8 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



. . .



(b) a 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



7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.



11. Any person charged with an offence has the right



. . .



(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;



15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.



Analysis



What is the Rule?



The Prevailing Canadian Approach to Jury Challenges for Lack of Indifference Between the Crown and the Accused



9 The prosecution and the defence are entitled to challenge potential jurors 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”, the term used by the Courts below. “Lack of indifference” or “partiality”, in turn, refer to the possibility that a juror’s knowledge or beliefs may affect the way he or she discharges the jury function in a way that is improper or unfair to the accused. A juror who is partial or “not indifferent” is a juror who is inclined to a certain party or a certain conclusion. The synonyms for “partial” in Burton’s Legal Thesaurus (2nd ed. 1992), at p. 374, illustrate the attitudes that may serve to disqualify a juror:



bigoted, . . . discriminatory, favorably disposed, inclined, influenced, . . . interested, jaundiced, narrow-minded, one-sided, partisan, predisposed, prejudiced, prepossessed, prone, restricted, . . . subjective, swayed, unbalanced, unequal, uneven, unfair, unjust, unjustified, unreasonable.





10 The predisposed state of mind caught by the term “partial” may arise from a variety of sources. Four classes of potential juror prejudice have been identified — interest, specific, generic and conformity: see Neil Vidmar, “Pretrial prejudice in Canada: a comparative perspective on the criminal jury” (1996), 79 Jud. 249, at p. 252. Interest prejudice arises when jurors may have a direct stake in the trial due to their relationship to the defendant, the victim, witnesses or outcome. Specific prejudice involves attitudes and beliefs about the particular case that may render the juror incapable of deciding guilt or innocence with an impartial mind. These attitudes and beliefs may arise from personal knowledge of the case, publicity through mass media, or public discussion and rumour in the community. Generic prejudice, the class of prejudice at issue on this appeal, arises from stereotypical attitudes about the defendant, victims, witnesses or the nature of the crime itself. Bias against a racial or ethnic group or against persons charged with sex abuse are examples of generic prejudice. Finally, conformity prejudice arises when the case is of significant interest to the community causing a juror to perceive that there is strong community feeling about a case coupled with an expectation as to the outcome.



11 Knowledge or bias may affect the trial in different ways. It may incline a juror to believe that the accused is likely to have committed the crime alleged. It may incline a juror to reject or put less weight on the evidence of the accused. Or it may, in a general way, predispose the juror to the Crown, perceived as representative of the “white” majority against the minority-member accused, inclining the juror, for example, to resolve doubts about aspects of the Crown’s case more readily: see Sheri Lynn Johnson, “Black Innocence and the White Jury” (1985), 83 Mich. L. Rev. 1611. When these things occur, a juror, however well intentioned, is not indifferent between the Crown and the accused. The juror’s own deliberations and the deliberations of other jurors who may be influenced by the juror, risk a verdict that reflects, not the evidence and the law, but juror preconceptions and prejudices. The aim of s. 638 of the Code is to prevent effects like these from contaminating the jury’s deliberations and hence the trial: see R. v. Hubbert (1975), 29 C.C.C. (2d) 279 (Ont. C.A.). The aim, to put it succinctly, is to ensure a fair trial.



12 The practical problem is how to ascertain when a potential juror may be partial or “not indifferent” between the Crown and the accused. There are two approaches to this problem. The first approach is that prevailing in the United States. On this approach, every jury panel is suspect. Every candidate for jury duty may be challenged and questioned as to preconceptions and prejudices on any sort of trial. As a result, lengthy trials of jurors before the trial of the accused are routine.



13 Canada has taken a different approach. In this country, candidates for jury duty are presumed to be indifferent or impartial. Before the Crown or the accused can challenge and question them, they must raise concerns which displace that presumption. Usually this is done by the party seeking the challenge calling evidence substantiating the basis of the concern. Alternatively, where the basis of the concern is “notorious” in the sense of being widely known and accepted, the law of evidence may permit a judge to take judicial notice of it. This might happen, for example, where the basis of the concern is widespread publicity of which the judge and everyone else in the community is aware. The judge has a wide discretion in controlling the challenge process, to prevent its abuse, to ensure it is fair to the prospective juror as well as the accused, and to prevent the trial from being unnecessarily delayed by unfounded challenges for cause: see Hubbert, supra.



14 Judicial discretion, however, must be distinguished from judicial whim. A judge exercising the discretion to permit or refuse challenges for cause must act on the evidence and in a way that fulfills the purpose of s. 638(1)(b) — to prevent persons who are not indifferent between the Crown and the accused from serving on the jury. Stated otherwise, a trial judge, in the exercise of the discretion, cannot “effectively curtail the statutory right to challenge for cause”: see R. v. Zundel (No. 1) (1987), 31 C.C.C. (3d) 97, at p. 135 (leave to appeal refused [1987] 1 S.C.R. xii). To guide judges in the exercise of their discretion, this Court formulated a rule in Sherratt, supra: the judge should permit challenges for cause where there is a “realistic potential” of the existence of partiality. Sherratt was concerned with the possibility of partiality arising from pre-trial publicity. However, as the courts in this case accepted, it applies to all requests for challenges based on bias, regardless of the origin of the apprehension of partiality.



15 Applying Sherratt to the case at bar, the enquiry becomes whether in this case, the evidence of widespread bias against aboriginal people in the community raises a realistic potential of partiality.



Identifying the Evidentiary Threshold



16 Esson C.J. and the Court of Appeal applied the test of “realistic potential” of partiality. However, they took a different view from that of Hutchison J. as to when the evidence establishes a realistic potential of partiality. The debate before us divided on the same lines.



17 The Crown argues that evidence of widespread racial bias against persons of the accused’s race does not translate into a “realistic potential” for partiality. There is a presumption that jurors will act impartially, whatever their pre-existing views. Evidence of widespread bias does not rebut that presumption. More is required. The Crown does not detail what evidence might suffice. However, it emphasizes that the evidence must point to not only bias, but also partiality, or bias that may affect the outcome. What is required, in the Crown’s submission, is concrete evidence showing prejudice that would not be capable of being set aside at trial. The Crown interprets Parks, supra, where challenges for cause for racial bias in the community were permitted, as being an exceptional case where the nature and extent of the racial bias was sufficiently extreme to establish a reasonable possibility of partiality.



18 The defence takes a different view. First, it argues that Sherratt, supra, establishes that the right to challenge for cause is not exceptional or extraordinary or extreme. Second, it suggests that evidence of widespread prejudice against aboriginals in the community suffices to raise a “realistic potential” for partiality, entitling the accused to question potential jurors as to their prejudices as to whether they will be able to set them aside in discharging their duty as jurors. In the defence submission, the evidentiary threshold proposed by the Crown, Esson C.J. and the Court of Appeal is too high.



19 In my respectful view, the positions of the Crown, Esson C.J. and the Court of Appeal reflect a number of errors that lead to the evidentiary threshold for challenges for cause being set too high. I will discuss each of these in turn.



(1) The Assumption that Prejudice Will be Judicially Cleansed



20 Underlying the Crown’s submissions (as well as the judgments of Esson C.J. and the Court of Appeal) is the assumption that generally jurors will be able to identify and set aside racial prejudice. Only in exceptional cases is there a danger that racial prejudice will affect a juror’s impartiality. In contrast, the defence says that jurors may not be able to set aside racial prejudices that fall short of extreme prejudice. Is it correct to assume that jurors who harbour racial prejudices falling short of extreme prejudice will set them aside when asked to serve on a jury? A consideration of the nature of racial prejudice and how it may affect the decision-making process suggests that it is not.



21 To suggest that all persons who possess racial prejudices will erase those prejudices from the mind when serving as jurors is to underestimate the insidious nature of racial prejudice and the stereotyping that underlies it. As Vidmar, supra, points out, racial prejudice interfering with jurors’ impartiality is a form of discrimination. It involves making distinctions on the basis of class or category without regard to individual merit. It rests on preconceptions and unchallenged assumptions that unconsciously shape the daily behaviour of individuals. Buried deep in the human psyche, these preconceptions cannot be easily and effectively identified and set aside, even if one wishes to do so. For this reason, it cannot be assumed that judicial directions to act impartially will always effectively counter racial prejudice: see Johnson, supra. Doherty J.A. recognized this in Parks, supra, at p. 371:



In deciding whether the post-jury selection safeguards against partiality provide a reliable antidote to racial bias, the nature of that bias must be emphasized. For some people, anti-black biases rest on unstated and unchallenged assumptions learned over a lifetime. Those assumptions shape the daily behaviour of individuals, often without any conscious reference to them. In my opinion, attitudes which are engrained in an individual’s subconscious, and reflected in both individual and institutional conduct within the community, will prove more resistant to judicial cleansing than will opinions based on yesterday’s news and referable to a specific person or event.







22 Racial prejudice and its effects are as invasive and elusive as they are corrosive. 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. Where doubts are raised, the better policy is to err on the side of caution and permit prejudices to be examined. Only then can we know with any certainty whether they exist and whether they can be set aside or not. It is better to risk allowing what are in fact unnecessary challenges, than to risk prohibiting challenges which are necessary: see Aldridge v. United States, 283 U.S. 308 (1931), at p. 314, and Parks, supra.



23 It follows that I respectfully disagree with the suggestion in R. v. B. (A.) (1997), 33 O.R. (3d) 321 (C.A.), at p. 343, that a motion to challenge for cause must be dismissed if there is “no concrete evidence” that any of the prospective jurors “could not set aside their biases”. 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. It is therefore reasonable to permit challenges for cause. This is not to suggest that a prospective juror who on a challenge for cause admits to harbouring a relevant racial prejudice must necessarily be rejected. It is for the triers on the challenge for cause to determine: (1) whether a particular juror is racially prejudiced in a way that could affect his or her partiality; and (2) if so, whether the juror is capable of setting aside that prejudice.



24 Parliament itself has acknowledged that jurors may sometimes be unable to set aside their prejudices and act impartially between the Crown and the accused, despite our hope and expectation that they will do so. It is implicit in s. 638(2) that in Parliament’s view, jurors may harbour knowledge and prejudices that may not be entirely offset by the trial judge’s direction to decide the case impartially on the evidence. If judicial cleansing were a complete answer to the preconceptions and predispositions of jurors, there would be no need for s. 638(1)(b). Trial judges may conclude that some predispositions can be safely regarded as curable by judicial direction. However, s. 638(1)(b) reminds us that judicial cleansing is not always a complete answer. Where the predisposition is one as complex and insidious as racial prejudice, we should not assume without more that the judges’ instructions will always neutralize it.



25 This Court rejected the argument that prejudice based on pre-trial publicity could be cured by the safeguards in the trial process in Sherratt, supra, at p. 532, per L’Heureux-Dubé J.:



While it is no doubt true that trial judges have a wide discretion in these matters and that jurors will usually behave in accordance with their oaths, these two principles cannot supersede the right of every accused person to a fair trial, which necessarily includes the empanelling of an impartial jury.



The same may be said of many forms of prejudice based on racial stereotypes. The expectation that jurors usually behave in accordance with their oaths does not obviate the need to permit challenges for cause in circumstances such as the case at bar, where it is established that the community suffers from widespread prejudice against people of the accused’s race.



(2) Insistence on the Necessity of a Link Between the Racist Attitude and the Potential for Juror Partiality





26 The Court of Appeal, per Macfarlane J.A., stated that the existence of a significant degree of racial bias in the community from which the panel is drawn is, by itself, not sufficient to allow a challenge for cause because bias cannot be equated with partiality. The court held that in order for the appellant to be successful, there must be some evidence of bias against aboriginal persons which is of a particular nature and extent; evidence which only displays a “general bias” against a racial group is insufficient to warrant a challenge for cause. The Crown goes even further, arguing that racial prejudice in the community must be linked to specific aspects of the trial in order to support a challenge for cause. More particularly, it asserts that where, as here, the defence was that another aboriginal committed the crime, race could have no relevance because the jury was obliged to decide between two aboriginals.



27 I cannot, with respect, accept this contention. In my view, it is unduly restrictive. Evidence of widespread racial prejudice may, depending on the nature of the evidence and the circumstances of the case, lead to the conclusion that there is a realistic potential for partiality. The potential for partiality is irrefutable where the prejudice can be linked to specific aspects of the trial, like a widespread belief that people of the accused’s race are more likely to commit the crime charged. But it may be made out in the absence of such links.



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. Racist stereotypes may affect how jurors assess the credibility of the accused. Bias can shape the information received during the course of the trial to conform with the bias: see Parks, supra, at p. 372. Jurors harbouring racial prejudices may consider those of the accused’s race less worthy or perceive a link between those of the accused’s race and crime in general. In this manner, subconscious racism may make it easier to conclude that a black or aboriginal accused engaged in the crime regardless of the race of the complainant: see Kent Roach, “Challenges for Cause and Racial Discrimination” (1995), 37 Crim. L.Q. 410, at p. 421.



29 Again, a prejudiced juror might see the Crown as non-aboriginal or non-black and hence to be favoured over an aboriginal or black accused. The contest at the trial is between the accused and the Crown. Only in a subsidiary sense is it between the accused and another aboriginal. A prejudiced juror might be inclined to favour non-aboriginal Crown witnesses against the aboriginal accused. Or a racially prejudiced juror might simply tend to side with the Crown because, consciously or unconsciously, the juror sees the Crown as a defender of majoritarian interests against the minority he or she fears or disfavours. Such feelings might incline the juror to resolve any doubts against the accused.



30 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. The following excerpt from Parks, supra, at pp. 378-79, per Doherty J.A., states the law correctly:



I am satisfied that in at least some cases involving a black accused there is a realistic possibility that one or more jurors will discriminate against that accused because of his or her colour. In my view, a trial judge, in the proper exercise of his or her discretion, could permit counsel to put the question posed in this case, in any trial held in Metropolitan Toronto involving a black accused. I would go further and hold that it would be the better course to permit that question in all such cases where the accused requests the inquiry.



There will be circumstances in addition to the colour of the accused which will increase the possibility of racially prejudiced verdicts. It is impossible to provide an exhaustive catalogue of those circumstances. Where they exist, the trial judge must allow counsel to put the question suggested in this case.





31 At the second stage of the actual challenge for cause, the issue of how any prejudice may play out in the context of the trial comes to the forefront. The triers may conclude that the connection between a prospective juror’s prejudices and the trial are so small that they cannot realistically translate into partiality. Conversely, the triers might conclude that a prospective juror’s beliefs that people of the accused’s race are more likely than others to commit the type of crime alleged are highly indicative of partiality. Such considerations, while not essential to finding a right to challenge for cause, may be determinative on the challenge for cause itself.



(3) Confusion Between the Two Phases of the Challenge for Cause Process



32 Section 638(2) requires two inquiries and entails two different decisions with two different tests. The first stage is the inquiry before the judge to determine whether challenges for cause should be permitted. The test at this stage is whether there is a realistic potential or possibility for partiality. The question is whether there is reason to suppose that the jury pool may contain people who are prejudiced and whose prejudice might not be capable of being set aside on directions from the judge. The operative verbs at the first stage are “may” and “might”. Since this is a preliminary inquiry which may affect the accused’s Charter rights (see below), a reasonably generous approach is appropriate.



33 If the judge permits challenges for cause, a second inquiry occurs on the challenge itself. The defence may question potential jurors as to whether they harbour prejudices against people of the accused’s race, and if so, whether they are able to set those prejudices aside and act as impartial jurors. The question at this stage is whether the candidate in question will be able to act impartially. To demand, at the preliminary stage of determining whether a challenge for cause should be permitted, proof that the jurors in the jury pool will not be able to set aside any prejudices they may harbour and act impartially, is to ask the question more appropriate for the second stage.



34 The Crown conflates the two stages of the process. Instead of asking whether there is a potential or possibility of partiality at the stage of determining the right to challenge for cause, it demands proof that widespread racism will result in a partial jury. The assumption is that absent such evidence, no challenge for cause should be permitted. This is not the appropriate question at the preliminary stage of determining the right to challenge for cause. The question at this stage is not whether anyone in the jury pool will in fact be unable to set aside his or her racial prejudices but whether there is a realistic possibility that this could happen.



(4) Impossibility of Proving That Racism in Society Will Lead to Juror Partiality



35 To require the accused to present evidence that jurors will in fact be unable to set aside their prejudices as a condition of challenge for cause is to set the accused an impossible task. It is extremely difficult to isolate the jury decision and attribute a particular portion of it to a given racial prejudice observed at the community level. Jury research based on the study of actual trials cannot control all the variables correlated to race. Studies of mock juries run into external validity problems because they cannot recreate an authentic trial experience: see Jeffrey E. Pfeiffer, “Reviewing the Empirical Evidence on Jury Racism: Findings of Discrimination or Discriminatory Findings?” (1990), 69 Neb. L. Rev. 230. As recognized by Doherty J.A. in Parks, supra, at p. 366, “[t]he existence and extent of [matters such as] racial bias are not issues which can be established in the manner normally associated with the proof of adjudicative facts”.



36 “Concrete” evidence as to whether potential jurors can or cannot set aside their racial prejudices can be obtained only by questioning a juror. If the Canadian system permitted jurors to be questioned after trials as to how and why they made the decisions they did, there might be a prospect of obtaining empirical information on whether racially prejudiced jurors can set aside their prejudices. But s. 649 of the Code forbids this. So, imperfect as it is, the only way we have to test whether racially prejudiced jurors will be able to set aside their prejudices and judge impartially between the Crown and the accused, is by questioning prospective jurors on challenges for cause. In many cases, we can infer from the nature of widespread racial prejudice, that some jurors at least may be influenced by those prejudices in their deliberations. Whether or not this risk will materialize must be left to the triers of impartiality on the challenge for cause. To make it a condition of the right to challenge to cause is to require the defence to prove the impossible and to accept that some jurors may be partial.



(5) Failure to Read s. 638(1)(b) Purposively



37 The object of s. 638(1)(b) must be to prevent persons who may not be able to act impartially from sitting as jurors. This object cannot be achieved if the evidentiary threshold for challenges for cause is set too high.



38 As discussed above, to ask an accused person to present evidence that some jurors will be unable to set their prejudices aside is to ask the impossible. We may infer in many cases, however, from the nature of racial prejudice, that some prospective jurors, in a community where prejudice against people of the accused’s race is widespread, may be both prejudiced and unable to identify completely or free themselves from the effects of those prejudices. It follows that the requirement of concrete evidence that widespread racism will cause partiality would not fulfill the purpose of s. 638(1)(b).



39 Similarly, an evidentiary threshold of extreme prejudice would fail to fulfill the object of s. 638(1)(b). Extreme prejudice is not the only sort of prejudice that may render a juror partial. Ordinary “garden-variety” prejudice has the capacity to sway a juror and may be just as difficult to detect and eradicate as hatred. A threshold met only in exceptional cases would catch only the grossest forms of racial prejudice. Less extreme situations may raise a real risk of partiality. Yet there would be no screening of jurors in those situations. The aim of the section -- to permit partial jurors to be identified and eliminated -- would be only partially achieved. The exceptional nature of a situation is a poor indicator of whether there is a realistic danger or potential of partiality. Widespread racial prejudice is by definition not exceptional. Indeed, the very fact that it is not exceptional may add to a concern that some members of the jury pool may possess attitudes that may interfere with the impartial discharge of their obligations.



40 This raises the question of what evidentiary standard is appropriate on applications to challenge for cause based on racial prejudice. The appellant appears to accept the standard of widespread racial prejudice in the community. Interveners, however, urge a lower standard. One suggestion is that all aboriginal accused should have the right to challenge for cause. Another is that any accused who is a member of a disadvantaged group under s. 15 of the Charter should have the right to challenge for cause. Also possible is a rule which permits challenge for cause whenever there is bias against the accused’s race in the community, even if that bias is not general or widespread.



41 A rule that accords an automatic right to challenge for cause on the basis that the accused is an aboriginal or member of a group that encounters discrimination conflicts from a methodological point of view with the approach in Sherratt, supra, that an accused may challenge for cause only upon establishing that there is a realistic potential for juror partiality. For example, it is difficult to see why women should have an automatic right to challenge for cause merely because they have been held to constitute a disadvantaged group under s. 15 of the Charter. Moreover, it is not correct to assume that membership in an aboriginal or minority group always implies a realistic potential for partiality. The relevant community for purposes of the rule is the community from which the jury pool is drawn. That community may or may not harbour prejudices against aboriginals. It likely would not, for example, in a community where aboriginals are in a majority position. That said, absent evidence to the contrary, where widespread prejudice against people of the accused’s race is demonstrated at a national or provincial level, it will often be reasonable to infer that such prejudice is replicated at the community level.



42 On the understanding that the jury pool is representative, one may safely insist that the accused demonstrate widespread or general prejudice against his or her race in the community as a condition of bringing a challenge for cause. It is at this point that bigoted or prejudiced people have the capacity to affect the impartiality of the jury.



43 I add this. To say that widespread racial prejudice in the community can suffice to establish the right to challenge for cause in many cases is not to rule out the possibility that prejudice less than widespread might in some circumstances meet the Sherratt test. The ultimate question in each case is whether the Sherratt standard of a realistic potential for partiality is established.



(6) Failure to Interpret s. 638(1)(b) in Accordance with the Charter



44 Parliament’s laws should be interpreted in a way that conforms to the constitutional requirements of the Charter: see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. More particularly, where Parliament confers a discretion on a judge, it is presumed that Parliament intended the judge to exercise that discretion in accordance with the Charter: see Slaight, supra. This applies to the discretion conferred on trial judges by s. 638(2) of the Code.



45 The s. 11(d) of the Charter guarantees to all persons charged in Canada the right to be presumed innocent “until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. A Charter right is meaningless, unless the accused is able to enforce it. This means that the accused must be permitted to challenge potential jurors where there is a realistic potential or possibility that some among the jury pool may harbour prejudices that deprive them of their impartiality.



46 This Court in Sherratt, supra, at p. 525, per L’Heureux-Dubé J., asserted the need for guarantees, as opposed to presumptions, of impartiality if Charter rights are to be respected:





The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place.



Doherty J.A. in Parks, supra, at p. 362, similarly underlined the need for safeguards of the accused’s s. 11(d) Charter rights:



The accused’s statutory right to challenge potential jurors for cause based on partiality is the only direct means an accused has to secure an impartial jury. The significance of the challenge process to both the appearance of fairness, and fairness itself, must not be underestimated.



47 The challenge for cause is an essential safeguard of the accused’s s. 11(d) Charter right to a fair trial and an impartial jury. A representative jury pool and instructions from counsel and the trial judge are other safeguards. But the right to challenge for cause, in cases where it is shown that a realistic potential exists for partiality, remains an essential filament in the web of protections the law has woven to protect the constitutional right to have one’s guilt or innocence determined by an impartial jury. If the Charter right is undercut by an interpretation of s. 638(1)(b) that sets too high a threshold for challenges for cause, it will be jeopardized.



48 The accused’s right to be tried by an impartial jury under s. 11(d) of the Charter is a fair trial right. But it may also be seen as an anti-discrimination right. The application, intentional or unintentional, of racial stereotypes to the detriment of an accused person ranks among the most destructive forms of discrimination. The result of the discrimination may not be the loss of a benefit or a job or housing in the area of choice, but the loss of the accused’s very liberty. The right must fall at the core of the guarantee in s. 15 of the Charter that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination”.



49 Section s. 638(1)(b) should be read in light of the fundamental rights to a fair trial by an impartial jury and to equality before and under the law. A principled exercise of discretion in accordance with Charter values is required: see Sherratt, supra.



50 Although allowing challenges for cause in the face of widespread racial prejudice in the community will not eliminate the possibility of jury verdicts being affected by racial prejudice, it will have important benefits. Jurors who are honest or transparent about their racist views will be removed. All remaining jurors will be sensitized from the outset of the proceedings regarding the need to confront racial prejudice and will help ensure that it does not impact on the jury verdict. Finally, allowing such challenges will enhance the appearance of trial fairness in the eyes of the accused and other members of minority groups facing discrimination: see Parks, supra.



(7) The Slippery Slope Argument



51 The Crown concedes that practical concerns cannot negate the right to a fair trial. The Court of Appeal also emphasized this. Yet behind the conservative approach some courts have taken, one detects a fear that to permit challenges for cause on the ground of widespread prejudice in the community would be to render our trial process more complex and more costly, and would represent an invasion of the privacy interests of prospective jurors without a commensurate increase in fairness. Some have openly expressed the fear that if challenges for cause are permitted on grounds of racial prejudice, the Canadian approach will quickly evolve into the approach in the United States of routine and sometimes lengthy challenges for cause of every juror in every case with attendant cost, delay and invasion of juror privacy.



52 In my view, the rule enunciated by this Court in Sherratt, supra, suffices to maintain the right to a fair and impartial trial, without adopting the United States model or a variant on it. Sherratt starts from the presumption that members of the jury pool are capable of serving as impartial jurors. This means that there can be no automatic right to challenge for cause. In order to establish such a right, the accused must show that there is a realistic potential that some members of the jury pool may be biased in a way that may impact negatively on the accused. A realistic potential of racial prejudice can often be demonstrated by establishing widespread prejudice in the community against people of the accused’s race. As long as this requirement is in place, the Canadian rule will be much more restrictive than the rule in the United States.



53 In addition, procedures on challenges for cause can and should be tailored to protect the accused’s right to a fair trial by an impartial jury, while also protecting the privacy interests of prospective jurors and avoiding lengthening trials or increasing their cost.



54 In the case at bar, the accused called witnesses and tendered studies to establish widespread prejudice in the community against aboriginal people. It may not be necessary to duplicate this investment in time and resources at the stage of establishing racial prejudice in the community in all subsequent cases. The law of evidence recognizes two ways in which facts can be established in the trial process. The first is by evidence. The second is by judicial notice. Tanovich, Paciocco and Skurka observe that because of the limitations on the traditional forms of proof in this context, “doctrines of judicial notice [will] play a significant role in determining whether a particular request for challenge for cause satisfies the threshold test”: see Jury Selection in Criminal Trials (1997), at p. 138. Judicial notice is the acceptance of a fact without proof. It applies to two kinds of facts: (1) facts which are so notorious as not be the subject of dispute among reasonable persons; and (2) facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy: see Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at p. 976. The existence of racial prejudice in the community may be a notorious fact within the first branch of the rule. As Sopinka, Lederman and Bryant note, at p. 977, “[t]he character of a certain place or of the community of persons living in a certain locality has been judicially noticed”. Widespread racial prejudice, as a characteristic of the community, may therefore sometimes be the subject of judicial notice. Moreover, once a finding of fact of widespread racial prejudice in the community is made on evidence, as here, judges in subsequent cases may be able to take judicial notice of the fact. “The fact that a certain fact or matter has been noted by a judge of the same court in a previous matter has precedential value and it is, therefore, useful for counsel and the court to examine the case law when attempting to determine whether any particular fact can be noted”: see Sopinka, Lederman and Bryant, supra, at p. 977. It is also possible that events and documents of indisputable accuracy may permit judicial notice to be taken of widespread racism in the community under the second branch of the rule. For these reasons, it is unlikely that long inquiries into the existence of widespread racial prejudice in the community will become a regular feature of the criminal trial process. While these comments are not necessarily limited to challenges for cause, the question whether they are applicable to other phases of the criminal trial is not to be decided in the present case.



55 At the stage of the actual challenge for cause, the procedure is similarly likely to be summary. The trial judge has a wide discretion in controlling the process to prevent its abuse, to ensure that it is fair to the prospective juror as well as to the accused, and to avoid the trial’s being unnecessarily prolonged by challenges for cause: see Hubbert, supra. In the case at bar, Hutchison J. at the first trial confined the challenge to two questions, subject to a few tightly controlled subsidiary questions. This is a practice to be emulated. The fear that trials will be lengthened and rendered more costly by upholding the right to challenge for cause where widespread racial prejudice is established is belied by the experience in Ontario since the ruling in Parks, supra. The Criminal Lawyers’ Association (Ontario), an intervener, advised that in those cases where the matter arises, an average of 35-45 minutes is consumed. The Attorney General for Ontario did not contradict this statement and supports the appellant’s position.



56 While cost-benefit analyses cannot ultimately be determinative, permitting challenges for cause on the basis of widespread prejudice against persons of the accused’s race seems unlikely to lengthen or increase significantly the cost of criminal trials. Nor, properly managed, should it unduly impinge on the rights of jurors. As Doherty J.A. stated in Parks, supra, at p. 379:





In reaching my conclusion I have not relied on a costs/benefit analysis. Fairness cannot ultimately be measured on a balance sheet. . . . The only “cost” is a small increase in the length of the trial. There is no “cost” to the prospective juror. He or she should not be embarrassed by the question; nor can the question realistically be seen as an intrusion into a juror’s privacy.



Summary



57 There is a presumption that a jury pool is composed of persons who can serve impartially. However, where the accused establishes that there is a realistic potential for partiality, the accused should be permitted to challenge prospective jurors for cause under s. 638(1)(b) of the Code: see Sherratt, supra. Applying this rule to applications based on prejudice against persons of the accused’s race, the judge should exercise his or her discretion to permit challenges for cause if the accused establishes widespread racial prejudice in the community.



Conclusion



58 Although they acknowledged the existence of widespread bias against aboriginals, both Esson C.J. and the British Columbia Court of Appeal held that the evidence did not demonstrate a reasonable possibility that prospective jurors would be partial. In my view, there was ample evidence that this widespread prejudice included elements that could have affected the impartiality of jurors. Racism against aboriginals includes stereotypes that relate to credibility, worthiness and criminal propensity. As the Canadian Bar Association stated in Locking up Natives in Canada: A Report of the Committee of the Canadian Bar Association on Imprisonment and Release (1988), at p. 5:



Put at its baldest, there is an equation of being drunk, Indian and in prison. Like many stereotypes, this one has a dark underside. It reflects a view of native people as uncivilized and without a coherent social or moral order. The stereotype prevents us from seeing native people as equals.





There is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system: see Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, at p. 33; Royal Commission on the Donald Marshall, Jr., Prosecution: Findings and Recommendations, vol. 1 (1989), at p. 162; Report on the Cariboo-Chilcotin Justice Inquiry (1993), at p. 11. Finally, as Esson C.J. noted, tensions between aboriginals and non-aboriginals have increased in recent years as a result of developments in such areas as land claims and fishing rights. These tensions increase the potential of racist jurors siding with the Crown as the perceived representative of the majority’s interests.

59 In these circumstances, the trial judge should have allowed the accused to challenge prospective jurors for cause. Notwithstanding the accused’s defence that another aboriginal person committed the robbery, juror prejudice could have affected the trial in many other ways. Consequently, there was a realistic potential that some of the jurors might not have been indifferent between the Crown and the accused. The potential for prejudice was increased by the failure of the trial judge to instruct the jury to set aside any racial prejudices that they might have against aboriginals. It cannot be said that the accused had the fair trial by an impartial jury to which he was entitled.



60 I would allow the appeal and direct a new trial.



Appeal allowed.



Solicitors for the appellant: McCullough, Parsons, Victoria.



Solicitor for the respondent: The Attorney General of British Columbia, Victoria.



Solicitor for the intervener the Attorney General of Canada: The Attorney General of Canada, Ottawa.



Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.



Solicitor for the intervener Aboriginal Legal Services of Toronto Inc.: Aboriginal Legal Services of Toronto Inc., Toronto.



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



Solicitors for the intervener the Urban Alliance on Race Relations (Justice): Falconer, Macklin, Toronto.



Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Pinkofsky, Lockyer, Toronto.