|
Criminal - Jury - Impartiality. 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.
Here the court considered 'jury impartiality':[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.
....
Presumption of juror impartiality over the ages
[58] There exists a deep body of jurisprudence that reflects a strong and well-earned presumption of juror impartiality. Even recognizing, as I do, that there is a concerning degree of racism that continues to infect society, and that we could do a much better job at confronting that racism, the fact is that jurors are still properly presumed to act impartially: R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 53; Spence, at para. 21; and Williams, at paras. 17, 57. This presumption is both a reflection of and a testament to the fact that when 12 citizens are brought together to judge a case, they take their responsibilities seriously and have historically lived up to the trust placed in them: Barton, at para. 177; see also R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 692-693.
[59] There is nothing in either Barton or Chouhan that has shaken the jurisprudential foundation for our confidence in the jury system as a fundamental pillar of the administration of criminal justice. Nor is there anything in these decisions that would support the conclusion that generalized anti-bias instructions, of the nature that existed before Chouhan and Barton were written and of the nature given in this case, have no role to play in cultivating juror impartiality. While specific anti-bias instructions of the nature discussed in Chouhan and Barton can certainly “add a layer of protection”, the absence of such instructions should not be equated with a presumption of partiality. Nor should the anti-bias, anti-prejudice, and anti-partiality instructions that have been historically given be seen as having no value. To the contrary, as Moldaver J. specifically addressed in Barton, at paras. 176-77:When sworn in, all 12 jurors took an oath that they would perform their duties in a fair, impartial, and unbiased manner, and that they would render a true verdict according to the evidence. The trial judge reminded the jurors of this in his final instructions: he explained that they must examine the evidence “without sympathy or prejudice for or against anyone involved in these proceedings” and that “[this] means you must now make good on your promise to put aside whatever biases or prejudices you may hold or feel” …. Admittedly, these safeguards are not a panacea — and I acknowledge that specific instructions addressing particular types of prejudice can provide an additional layer of protection going forward ... .
That said, we should not be too quick to assume that they play no role in fostering impartial and unbiased reasoning. To conclude otherwise would be to assume that such instructions, which have been repeated to juries through the ages, were of no value and amounted to little more than lip service. I refuse to go there. To do so would be to lose sight of the well-established jurisprudence of this Court expressing our strong faith in the institution of the jury and our firmly held belief that juries perform their duties according to the law and the instructions they are given [citations omitted]. This is not a form of blind faith; rather, it is a reflection of the well-earned trust and confidence that has been built up over centuries of experience in courtrooms throughout the Commonwealth. The institution of the jury is a fundamental pillar of our criminal justice system. We erode our confidence in this bedrock institution at our own peril.
|
