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Criminal - Jury - Impartiality. R. v. Kovacs
In R. v. Kovacs (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from "three counts of assault, one count of assault with a weapon and one count of unlawful confinement".
The court considered a jury selection 'impartiality' issue, here dwelling on CCC 632 ['Excusing jurors']:B. JURY SELECTION
[17] The appellant argues that the trial judge erred in failing to ask a prospective juror whether her personal connection with intimate partner violence would prevent her from being impartial.
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(1) The Questionnaire
[18] At the outset of jury selection, the trial judge instructed the panel about the procedure to be used to select the jury, and the eligibility requirements for serving as a juror. She also instructed the jury about a questionnaire that panel members had been asked to fill out. One of the questions – #14 – asked about prior exposure to offences involving intimate partner violence. It asked whether they, someone they are related to, or someone they are closely connected to had ever been accused of, or been a victim of, intimate partner violence. Prospective jurors were asked to check off either “yes” or “no”.
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(2) ANALYSIS
(1) SCOPE OF SECTION 632 OF THE CODE
[25] I agree with the appellant that the trial judge’s view of s. 632 of the Code was too narrow. Section 632 permits trial judges to screen the panel not only for hardship, but also for obvious partiality. Obvious partiality may arise from knowing a party or witness to the proceedings, or it may arise from a life experience that predisposes an individual to hold opinions about the offence to be tried.
[26] Moldaver and Brown JJ. addressed the breadth of s. 632(c) in R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136. They expressly held that the power to excuse jurors under s. 632(c) includes the power to screen for reasonable apprehensions of bias. As they put it, “[w]hile the power to excuse jurors is not a substitute for a challenge for cause, trial judges routinely excuse jurors at the outset of jury selection for a number of reasons”, including “jurors who are obviously partial because they know a party in the trial or a witness who will testify”: para. 35 (internal citations and quotation marks omitted). They described these procedures as an important mechanism “for removing jurors whose impartiality is or may be in question, for any number of reasons”, thereby “ensur[ing] that each accused receives a fair trial before an independent and impartial jury”: para. 36.
[27] This is consistent with the Supreme Court’s view that s. 632 empowers judges to ask prospective jurors general questions to uncover “manifest bias or personal hardship”: Find, at paras. 22-23. It follows that s. 632 is not exclusively concerned with hardship. It is also a tool for screening manifest or obvious partiality.
[28] Hardship and bias are related but distinct concepts. They may or may not co-exist. A person may not be able to serve as a juror due to childcare responsibilities, a scheduled surgery, or a pre-paid planned vacation. In such instances, jury service might pose a hardship. It would not, however, carry with it a concern about bias or partiality.
[29] In other instances, hardship and bias may operate in tandem. If a prospective juror has been accused of the offence at issue, the victim of such an offence, or is close to someone who has been one or the other, it might be psychologically difficult for them to sit through the trial evidence. Serving as a juror could pose a hardship because they might be forced to relive or remember a painful experience. But this same circumstance may also spark a concern about bias.
[30] Prior experience with the charged offence may or may not prevent a prospective juror from approaching the evidence with an open mind. He or she may have formed opinions about the subject matter of the trial. Where those opinions are difficult to resist or set aside, the prospective juror can and should be excused for obvious partiality. If, on the other hand, the individual can set aside any pre-conceived opinions, and decide the case based solely on the evidence and the instructions of the trial judge, the prior experience does not detract from impartiality: R. v. Zhou, 2024 ONCA 658, at para 51.
[31] Against this backdrop, the follow-up question proposed by counsel in this case could have been asked as part of the pre-screening process authorized by s. 632. That would not have amounted to an offence-based challenge for cause. Screening for obvious partiality under s. 632 is distinct from the challenge for cause power under s. 638. Section 632 provides a separate mechanism for evaluating individuals’ suitability for jury service. It does not require a showing of widespread prejudice within the community. It does not involve an inquiry into every member of the jury panel. And it is not designed to resolve controversial allegations of partiality: R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at p. 534. But it does empower the trial judge to excuse a prospective juror when there is obvious reason to do so, regardless of any co-existing challenge for cause.[1]
[32] The trial judge applied an overly narrow interpretation of s. 632 by concluding that it could only authorize screening for hardship. The question is whether, and to what extent, this interpretation led to error in the jury selection process. ....
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(1) No error: The discretionary nature of jury selection
[34] Trial judges enjoy a broad discretion to determine how prospective jurors should be screened under s. 632. It would have been open to the trial judge in this case to ask juror #2 whether her experiences with intimate partner violence affected her ability to be impartial. But it would also have been open to the trial judge, in the exercise of her discretion, to conclude that the inquiry was unnecessary. That is, it would have been reasonable for the trial judge to conclude that, given her instructions to the panel, prospective jurors would have understood the importance of impartiality and the need for each of them to search their conscience and identify any perceived impediments to jury service.
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[38] Just as the law presumes that jurors are capable of understanding and applying judicial instructions during trial, so too must it accept that prospective jurors are capable of understanding judicial instructions before trial. That includes the instructions that define eligibility for jury service. The trial judge used a jury questionnaire in this case. Questionnaires are not used in every jurisdiction, nor, within any jurisdiction, by all trial judges. But nothing turns on its use in this case. Whether or not a jury questionnaire is used, the process trusts prospective jurors to listen to the eligibility requirements and to identify any reason why they cannot or should not serve.
[39] That process worked here. The message was clear. If someone had a bias or had formed opinions about the case, they were to disclose that to the court. Four jurors did just that and were excused. Juror #2 raised no concern about partiality, and nothing in the record suggests that she was incapable of acting impartially.
[40] The Charter does not promise a favourable or partial jury: R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at p. 720; Sherratt, at p. 532; R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777, at para. 71; Chouhan, at para. 20. It does not guarantee the fairest procedures imaginable: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362. It guarantees the right to a fair trial, before an independent and impartial jury. There is no basis for concluding that the participation of juror #2 affected the fairness of the appellant’s trial or his right to an independent and impartial jury. Therefore, the trial judge’s interpretation of s. 632 did not affect the integrity of the jury selection process, or the impartiality of the jury chosen to hear the case. On this analysis, there was no reversible error calling for the intervention of this court. . 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.
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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.
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