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Criminal - Jury Charge - Anti-bias

. R. v. Necan

In R. v. Necan (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's appeal where the only issue was intent to murder:

The court considered whether the jury charge was inadequate wrt it's 'anti-bias' aspect, here where the appellant was indigenous:

[26] As is customary, the jury charge contained general opening instructions to the jury, touching on how they should approach their duties. One such instruction included a somewhat typical caution about guarding against being influenced by “sympathy, prejudice or fear”. The draft instruction was as follows:

You must consider the evidence and make your decision without sympathy, prejudice or fear. You must not be influenced by public opinion. We expect and are entitled to your impartial assessment of the evidence. That was the promise you made and the oath you took or affirmation you gave after you were accepted by the parties as jurors, and they have the right to expect nothing less.

[27] This instruction closely tracks the standard instruction on “Irrelevance of Prejudice and Sympathy” found in David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 ed. (Toronto: Thomson Reuters, 2023), at p. 44 (Preliminary 18).

[28] Although neither party expressed concern over the content of this instruction, the defence requested more. Specifically, defence counsel asked that the trial judge add two sentences to the instruction as follows:

Nicholas Necan is a First Nations man. You must judge the evidence in this case without bias, prejudice or partiality.

[29] Although the trial Crown took no issue with the suggested addition, the trial judge expressed some concern over the first proposed sentence, that “Nicholas Necan is a First Nations man.” The trial judge asked counsel to address why that sentence should be included in the charge.

[30] Defence counsel responded that the wording had been derived from a “sort of mutation, or an amendment to the typical Parks challenge for cause type wording”, changed to be a statement rather than a question. By this, I understand counsel to mean that they borrowed the language from the standard Parks question, which focusses in on determining whether a potential juror’s “ability to judge the evidence in the case without bias, prejudice or partiality” would be affected by x: see R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), at p. 331. For instance, the question approved by this court in Parks, at p. 331, was: “[w]ould your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is a black and the deceased is a white man?” See also R. v. Campbell (1999), 1999 CanLII 2688 (ON CA), 139 C.C.C. (3d) 258 (C.A.), at paras. 2-8.

[31] Defence counsel, who acknowledged that the defence had not requested a challenge for cause at the time of jury selection, maintained that the proposed addition to the charge would cause the jurors to reflect on the issue of racial prejudice.

[32] Ultimately, the trial judge was willing to instruct the jury in accordance with the requested sentence about eschewing “bias, prejudice or partiality” in their deliberations, but said that there was no need to state what he considered to be “abundantly obvious” to all based upon the testimony at trial: that Mr. Necan was a First Nations man. Accordingly, the trial judge left the first requested sentence out of the final instruction but incorporated the second sentence. For the sake of clarity, the relevant portion of the final jury charge merits being reproduced:

You must consider the evidence and make your decision without sympathy, prejudice or fear. You must not be influenced by public opinion. You must judge the evidence in this case without bias, without prejudice and without partiality. We expect and are entitled to your impartial assessment of the evidence. That was the promise you made and the oath you took, or affirmation you gave after you were accepted by the parties as jurors, and they have the right to expect nothing less. [Emphasis added.]

....

(c) Analysis

(i) The Applicable Legal Principles from Barton and Chouhan

[40] The law pertaining to when an anti-bias instruction should be given has evolved substantially since this jury was charged in February 2018. It is important not to lose sight of the fact that when the jury was charged, Barton and Chouhan had not even been argued, let alone resolved.

[41] With that said, both Barton and Chouhan provide helpful guidance on how the administration of criminal justice can better respond to the concerning fact that bias continues to pose a risk to fair and impartial juror deliberations. The criminal justice system has long addressed concerns about bias infecting juror deliberations. However, until Barton and Chouhan, the response had been largely directed toward biases that jurors were aware of or held deliberately – what I refer to in these reasons as conscious bias. For example, the challenge for cause procedure and the standard Parks question asked during a challenge for cause have historically been targeted at identifying those jurors who would have difficulty or be unwilling to set aside conscious biases – ones they are aware of – when fulfilling their duties as jurors.

[42] In the more recent past, the law has evolved to reflect a more advanced understanding of how biases operate, including at the unconscious level. It is now recognized that even jurors without conscious biases may hold unconscious biases that can infect their deliberations: Chouhan, at para. 49, per Moldaver and Brown JJ. The fact is that even well-meaning people can unwittingly carry biases, springing from conscious and unconscious beliefs, assumptions and perceptions about the traits associated with a particular group: Chouhan, at para. 53, per Moldaver and Brown JJ.

[43] Unconscious bias is particularly insidious because, by definition, it is concealed and can be directed at anything, including race, ethnicity, sexual orientation, religion, gender, and much more. And, unlike a conscious bias, an unconscious bias allows the holder of that bias to quite unintentionally act on it and, in fact, propagate it.

[44] When it comes to jury trials, we expect jurors to act impartially, arriving at their verdict based solely upon the evidence elicited and the instructions given by the trial judge. Where a juror holds a conscious or unconscious bias, it can have the effect of undermining the impartiality that is so necessary to ensuring a fair trial.

[45] So, what can we do about it?

[46] There are several mechanisms that can be used to address concerns over partiality.

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

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

[49] As I will return to later in these reasons, the appellant did not pursue a challenge for cause in this case.

[50] Another mechanism for addressing concerns over partiality, and specifically how partiality can arise from unconscious bias, is the jury instruction. It is beyond dispute that jury instructions can act as an additional safeguard when it comes to pushing back against biases, whether racially motivated or otherwise, and whether conscious or unconscious in nature.

[51] Accordingly, both Barton and Chouhan provide guidance on jury instructions as they relate to protecting and promoting juror impartiality by combatting conscious and unconscious biases.

[52] Barton and Chouhan make clear that anti-bias instructions should be given wherever “specific biases, prejudices, and stereotypes … may reasonably be expected to arise in the particular case”: Chouhan, at para. 50; Barton, at para. 203. The need for these instructions to be directed at both conscious and unconscious biases that “may taint the integrity of jury deliberations” is clear: Chouhan, at para. 50, per Moldaver and Brown JJ. As for unconscious biases, the key is to attempt through the instruction to expose them – biases, prejudices and stereotypes – all of which may “lurk beneath the surface, thereby allowing all justice system participants to address them head-on – openly, honestly and without fear”: Chouhan, at para. 49, per Moldaver and Brown JJ., citing Barton, at para. 197. See also: Barton, at para. 201; R. v. Bhogal, 2021 ONSC 4925, 73 C.R. (7th) 351; R. v. Douse, 2022 ONSC 3228; R. v. Smith, 2021 ONSC 6173.

[53] Encouraging jurors to approach their duties with a healthy dose of introspection, and to confront and set aside prejudices, may involve both general and specific instructions. Whether either, or both, type of instruction is necessary will depend on the circumstances of the case and must be determined in consultation with the parties: Chouhan, at para. 50, per Moldaver and Brown JJ. Indeed, Moldaver and Brown JJ. in Chouhan characterized the submissions of counsel as “integral” to crafting a specific anti-bias instruction: at para. 58.

[54] Where such instructions are required, they should be delivered early in the trial before evidence has been elicited: Chouhan, at para. 53, per Moldaver and Brown JJ. While there is nothing to preclude a further instruction later in the trial or during the charge to the jury at the end of the case, it is best to get the jury doing the work of confronting any possible biases before they start hearing and considering evidence. Examples of such preliminary instructions include: “Duties of Jurors” in Watt’s Manual of Criminal Jury Instructions, at pp. 36-38 (Preliminary 15); Canadian Judicial Council, Model Jury Instructions: Preliminary Instructions (2021), online (pdf): National Judicial Institute .

[55] In summary, the combined message from Barton and Chouhan is that conscious and unconscious bias continues to exist. Where bias exists, it threatens impartiality, which in turn threatens trial fairness. Where it arises, it is up to all justice participants to keep an open mind as to how to address concerns over bias. One of the means to do so, is by way of a challenge for cause. Another important mechanism to combat bias is through carefully crafted jury instructions, ones that encourage jurors to engage in the hard work necessary to challenge themselves by engaging in a degree of self-awareness about what might lurk below the surface.

The court continues at paras 61-71 to consider these issues in light of the case facts and events.