R. v. Find

R. v. Find
Collection
Supreme Court Judgments
Date
2001-05-24
Neutral citation
2001 SCC 32
Report
[2001] 1 SCR 863
Case number
27495
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 27495
Decision Content
R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32
Karl Find Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Alberta and
the Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Find
Neutral citation: 2001 SCC 32.
File No.: 27495.
2000: October 13; 2001: May 24.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Criminal law – Jurors – Right to challenge for cause – Nature of offence – Whether charges of sexual assault against children raise realistic possibility of juror partiality entitling accused to challenge for cause – Criminal Code, R.S.C. 1985, c. C‑46, s. 638(1) (b).
The accused was charged with 21 counts of sexual offences involving complainants ranging between 6 and 12 years of age at the time of the alleged offences. Prior to jury selection, he applied to challenge potential jurors for cause, arguing that the nature of the charges against him gave rise to a realistic possibility that some jurors might be unable to try the case against him impartially and solely on the evidence before them. The trial judge rejected the application. The accused was tried and convicted on 17 of the 21 counts. The majority of the Court of Appeal dismissed the accused’s appeal, upholding the trial judge’s ruling not to permit the accused to challenge prospective jurors for cause.
Held: The appeal should be dismissed. The nature of the charges against the accused did not give rise to the right to challenge prospective jurors for cause on the ground of partiality.
Section 638(1) (b) of the Criminal Code permits a party to challenge for cause where a prospective juror is not indifferent between the Crown and accused. Lack of indifference constitutes partiality. Establishing a realistic potential for juror partiality generally requires satisfying the court on two matters: (1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision. The first branch of the test is concerned with the existence of a material bias, while the second is concerned with the potential effect of the bias on the trial process. However, the overarching consideration, in all cases, is whether there exists a realistic potential for partial juror behaviour. The first branch involves two concepts: “bias” and “widespread”. “Bias” in the context of challenges for cause refers to an attitude that could lead jurors to decide the case in a prejudicial and unfair manner. Prejudice capable of unfairly affecting the outcome of the case is required. Bias is not determined at large but in the context of the specific case and may flow from a number of different attitudes. The second concept, “widespread”, relates to the prevalence or incidence of the bias in question. The bias must be sufficiently pervasive in the community to raise the possibility that it may be harboured by members of a jury pool. If widespread bias is shown, the second branch of the test requires an accused to show that some jurors may not be able to set aside their bias despite the cleansing effect of the trial judge’s instructions and the trial process itself. Ultimately, the decision to allow or deny an application to challenge for cause falls to the discretion of the trial judge. Where a realistic potential for partiality is shown to exist, the right to challenge must follow. If in doubt, the judge should err on the side of permitting challenges. Since jurors are presumed to be impartial, in order to rebut the presumption of impartiality, a party must call evidence or ask the trial judge to take judicial notice of facts, or both. In addition, the judge may draw inferences from events that occur in the proceedings and may make common sense inferences about how certain biases, if proved, may affect the decision‑making process. The accused did not call any evidence in support of his application but relied heavily on proof by judicial notice. The threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
Here, the material presented by the accused falls short of grounding judicial notice of widespread bias in Canadian society against an accused in sexual assault trials. First, while the widespread nature of abuse and its potentially traumatic impact are not disputed, widespread victimization, standing alone, fails to establish widespread bias that might lead jurors to discharge their task in a prejudicial and unfair manner. Second, strong views about a serious offence do not ordinarily indicate bias and nothing in the material supports the contention, nor is it self‑evident, that an exception arises in the case of sexual assaults on children. Third, there was also no proof that widespread myths and stereotypes undermine juror impartiality. While stereotypical beliefs might incline some jurors against an accused, it is not notorious or indisputable that they enjoy widespread acceptance in Canadian society. Fourth, although crimes arouse deep and strong emotions, one cannot automatically equate strong emotions with an unfair and prejudicial bias against the accused. Jurors are not expected to be indifferent toward crimes. Strong emotions are common to the trial of many serious offences and have never grounded a right to challenge for cause. The proposition that sexual offences are generically different from other crimes in their tendency to arouse strong passions is debatable, and does not, therefore, lend itself to judicial notice. Fifth, the survey of past challenge for cause cases involving sexual offences does not, without more, establish widespread bias arising from sexual assault charges. The number of prospective jurors disqualified, although relied on as support for judicial notice of widespread bias, is equally consistent with the conclusion that the challenge processes disqualified prospective jurors for acknowledging the intense emotions, beliefs, experiences and misgivings anyone might experience when confronted with the prospect of sitting as a juror on a case involving charges of sexual offences against children. Lastly, the theory of “generic prejudice” against accused persons in sexual assault trials has not been proved, nor could judicial notice be taken of the proposition that such prejudice exists. While judicial notice could be taken of the fact that sexual crimes are almost universally abhorred, this does not establish widespread bias arising from sexual assault trials.
Although the accused failed to satisfy the first branch of the test for partiality, it is prudent to consider the second branch, as the two parts are not watertight compartments. It is open to a trial judge reasonably to infer, in the absence of direct evidence, that some strains of bias by their very nature may prove difficult for jurors to identify and eliminate from their reasoning. The strength of the inference varies with the nature of the bias in issue, and its amenability to judicial cleansing. Fundamental distinctions exist between racial bias and the more general bias relating to the nature of the offence itself. Firstly, racial bias may impact more directly on a jury’s decision than bias stemming from the nature of the offence because it is directed against a particular class of accused by virtue of an identifiable immutable characteristic. Secondly, trial safeguards may be less successful in cleansing racial prejudice because of its subtle, systemic and often unconscious operation. Bias directed toward the nature of the offence, however, is more susceptible to cleansing by the rigours of the trial process because it is more likely to be overt and acknowledged. The trial judge is more likely to address these concerns in the course of directions to the jury. Moreover, many of the safeguards the law has developed may be seen as a response to this type of bias. In the absence of evidence that strongly held beliefs or attitudes may affect jury behaviour in an unfair manner, it is difficult to conclude that they could not be cleansed by the trial process. It is speculative to assume that jurors will act on their beliefs to the detriment of an accused, in violation of their oath or affirmation, the presumption of innocence and the directions of the trial judge. As well, absent evidence to the contrary, there is no reason to believe that stereotypical attitudes about accused persons charged with a crime of a sexual nature are more elusive of the cleansing measures than stereotypical attitudes about complainants. It follows that such myths and stereotypes, even if widespread, provide little support for any inference of a behavioural link between these beliefs and the potential for juror partiality. Finally, absent evidence, it is highly speculative to suggest that the emotions surrounding sexual crimes will lead to prejudicial and unfair juror behaviour. The safeguards of the trial process and the instructions of the trial judge are designed to replace emotional reactions with rational, dispassionate assessment. Our long experience in the context of the trial of other serious offences suggests that our faith in this cleansing process is not misplaced. The accused failed to establish that sexual offences give rise to a strain of bias that is uniquely capable of eluding the cleansing effect of trial safeguards.
Cases Cited
Applied: R. v. Williams, [1998] 1 S.C.R. 1128; R. v. Parks (1993), 84 C.C.C. (3d) 353; R. v. Sherratt, [1991] 1 S.C.R. 509; R. v. Betker (1997), 115 C.C.C. (3d) 421; referred to: R. v. K. (A.) (1999), 45 O.R. (3d) 641; R. v. Barrow, [1987] 2 S.C.R. 694; R. v. G. (R.M.), [1996] 3 S.C.R. 362; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Harrer, [1995] 3 S.C.R. 562; M. (A.) v. Ryan, [1997] 1 S.C.R. 157; R. v. Leipert, [1997] 1 S.C.R. 281; R. v. Hubbert (1975), 29 C.C.C. (2d) 279; R. v. L. (R.) (1996), 3 C.R. (5th) 70; R. v. Mattingly (1994), 28 C.R. (4th) 262; R. v. Potts (1982), 66 C.C.C. (2d) 219; R. v. Alli (1996), 110 C.C.C. (3d) 283; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Lavallée, [1990] 1 S.C.R. 852; R. v. Hillis, [1996] O.J. No. 2739 (QL); R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 11 (d).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 626 to 644 , 629(1) , 632 [am. 1992, c. 41, s. 2], 634, 638(1)(b), (2), 640(2), 649, 658(1).
Authors Cited
Bala, N. “Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System”, in W. S. Tarnopolsky, J. Whitman and M. Ouellette, eds., Discrimination in the Law and the Administration of Justice. Montreal: Thémis, 1993, 231.
Canada. Law Reform Commission. Studies on the Jury. “Jury Selection”, by Perry Schulman and Edward R. Myers. Ottawa: The Commission, 1979.
Granger, Christopher. The Criminal Jury Trial in Canada, 2nd ed. Scarborough, Ontario: Carswell, 1996.
New Oxford Dictionary of English. Oxford: Clarendon Press, 1998, “bias”.
Paciocco, David. “Challenges for Cause in Jury Selection after Regina v. Parks: Practicalities and Limitations”. Toronto: Canadian Bar Association ‑ Ontario, February 11, 1995.
Sopinka, John, Sidney N. Lederman, and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
Tanovich, David M., David M. Paciocco, and Steven Skurka. Jury Selection in Criminal Trials: Skills, Science, and the Law. Concord, Ontario: Irwin Law, 1997.
Vidmar, Neil. “Generic Prejudice and the Presumption of Guilt in Sex Abuse Trials” (1997), 21 Law & Hum. Behav. 5.
Wiener, Richard L., Audrey T. Feldman Wiener, and Thomas Grisso. “Empathy and Biased Assimilation of Testimonies in Cases of Alleged Rape” (1989), 13 Law & Hum. Behav. 343.
APPEAL from a judgment of the Ontario Court of Appeal (1999), 126 O.A.C. 261, [1999] O.J. No. 3295 (QL), dismissing the accused’s appeal from his conviction on 17 counts relating to sexual offences. Appeal dismissed.
David M. Tanovich and Umberto Sapone, for the appellant.
Jamie Klukach and Jennifer Woollcombe, for the respondent.
David M. Paciocco, for the intervener the Criminal Lawyers’ Association (Ontario).
Written submission by Jack Watson, Q.C., for the intervener the Attorney General for Alberta.
The judgment of the Court was delivered by
The Chief Justice –
I - Introduction
1 Trial by jury is a cornerstone of Canadian criminal law. It offers the citizen the right to be tried by an impartial panel of peers and imposes on those peers the task of judging fairly and impartially. Since our country’s earliest days, Canadian jurors have met this challenge. Every year in scores of cases, jurors, instructed that they must be impartial between the prosecution and the accused, render fair and carefully deliberated verdicts. Yet some cases may give rise to real fears that, despite the safeguards of the trial process and the directions of the trial judge, some jurors may not be able to set aside personal views and function impartially.
2 The criminal law has developed procedures to address this possibility. One of the most important is the right of the accused to challenge a potential juror “for cause” where legitimate concerns arise. This Court recently held that widespread prejudice against the accused’s racial group may permit an accused to challenge for cause: R. v. Williams, [1998] 1 S.C.R. 1128. In this appeal we are asked to find that charges of sexual assault of children similarly evoke widespread prejudice in the community and also entitle the accused to challenge prospective jurors for cause.
3 At stake are two important values. The first is the right to a fair trial by an impartial jury under s. 11 (d) of the Canadian Charter of Rights and Freedoms . The second is the need to maintain an efficient trial process, unencumbered by needless procedural hurdles. Our task is to set out guidelines that ensure a fundamentally fair trial without unnecessarily complicating and lengthening trials and increasing the already heavy burdens placed on jurors.
4 The appellant was charged with sexual assault of children. Before the jury was empanelled, he applied to challenge the potential jurors for cause. The nature of the charges against him, he contended, gave rise to a realistic possibility that some prospective jurors might harbour such prejudice that they would be unable to act impartially and try the case solely on the evidence before them. The trial judge rejected this request, as did the majority of the Ontario Court of Appeal. Before this Court, the appellant reasserts his claim that the denial of the right to challenge for cause violated s. 638(1) (b) of the Criminal Code, R.S.C. 1985, c. C-46 , and deprived him of his Charter right to a fair trial.
5 I conclude that the appellant has not established the right to challenge for cause. No basis has been shown to support the conclusion that charges of sexual assault against children raise a realistic possibility of juror partiality entitling the accused to challenge for cause. Accordingly, the appeal must be dismissed.
II - History of the Case
6 The appellant was tried on 21 counts of sexual assault involving three complainants, who ranged between the ages of 6 and 12 at the time of the alleged offences. Prior to jury selection, defence counsel applied to challenge potential jurors for cause. No evidence was led in support of this application; rather, defence counsel contended a realistic potential for juror partiality arose from the ages of the alleged victims, the high number of alleged assaults, and the alleged use of violence. Defence counsel proposed that the following questions be put to potential jurors:
Do you have strong feelings about the issue of rape and violence on young children?
If so, what are those feelings based on?
Would those strong feelings concerning the rape and violence on young children prevent you from giving Mr. Find a fair trial based solely on the evidence given during the trial of this case?
The trial judge, in a brief oral ruling, dismissed the application on the basis that it simply “doesn’t fall anywhere near the dicta of the Court of Appeal in Regina v. Parks” (in R. v. Parks (1993), 84 C.C.C. (3d) 353, the Ontario Court of Appeal held that the accused was entitled to challenge potential jurors for cause on the basis of racial prejudice).
7 Later, during the process of empanelling the jury, a potential juror spontaneously offered that he had two children, stating “I just don’t think I could separate myself from my feelings towards them and separate the case”. This prospective juror was peremptorily challenged, and defence counsel renewed the request to challenge for cause, to no avail. The appellant was tried and convicted on 17 of the 21 counts.
8 The appellant appealed on the ground, inter alia, that the trial judge erred in not allowing challenges for cause. The spontaneous admission of the potential juror during the selection process was the only evidence relied upon before the Ontario Court of Appeal. The majority, per McMurtry C.J.O., held that this admission did not demonstrate a realistic potential for partiality and offered no evidentiary basis for allowing challenges for cause: (1999), 126 O.A.C. 261, at para. 8. Since no other evidence was led, the appellant could succeed only if the court could take judicial notice of a widespread bias in the community in relation to sexual offences of this kind. The majority held that judicial notice could not be taken of that fact, for the reasons articulated in R. v. K. (A.) (1999), 45 O.R. (3d) 641, a judgment released concurrently. Moldaver J.A. dissented on the challenge for cause issue, also relying on his reasons from K. (A.). Since both opinions import the substance of their reasons from the companion case of K. (A.), it is necessary to consider this case in some detail.
9 K. (A.) involved two brothers charged with the sexual assault of children aged 4 to 12 years at the time of the alleged assaults. The majority of the Court of Appeal, per Charron J.A., upheld the trial judge’s decision to deny challenges for cause, while allowing the appeal on other grounds. Charron J.A. emphasized the distinction between racial prejudice and prejudice against persons charged with sexual assault, arguing that the first goes to a want of indifference towards the accused while the second relates to a want of indifference towards the nature of the crime. The connection between racial prejudice and a particular accused is direct and logical, whereas “strong attitudes about a particular crime, even when accompanied by intense feelings of hostility and resentment towards those who commit the crime, will rarely, if ever, translate into partiality in respect of the accused” (para. 41). She rejected the argument that this Court’s decision in Williams, supra, expanded the right to challenge for cause. While Williams recognized the possibility of bias arising from the nature of an offence, it did not eliminate the need to show a realistic potential for partiality, which remains the governing test for challenges for cause. This test was not met in the case before the court.
10 Charron J.A. found little support for the accused’s application in statistics indicating widespread sexual abuse in Canadian society. These statistics, she observed, only demonstrate the prevalence of abuse; they do not indicate a resultant bias, let alone the nature of that bias or its impact on jury deliberation. To her mind, they did not support the inference that there exists a realistic risk of juror partiality. As to the appellant’s contention that widespread attitudes about sexual offences may cause jurors to act contrary to their oath, Charron J.A. concluded that the material before the court did not describe the alleged attitudes, or indicate how they would affect juror behaviour. She noted that the work of Professor Neil Vidmar, often advanced in support of the concept of generic prejudice, is the subject of heated debate and suffers from a number of flaws, most notably a lack of attention to the impact of juror attitudes on deliberation behaviour.
11 Charron J.A. also found that the presence of “strong feelings, opinions and beliefs” is not so notorious as to be the subject of judicial notice – in fact, it was unclear exactly what beliefs and opinions were being targeted for judicial notice. Beliefs and opinions regarding allegations of sexual abuse are all over the map: some believe children never lie about abuse, others believe that children are especially susceptible to the influence of adults, and that their testimony should not be relied upon; some believe the trial system to be stacked in favour of the accused, others the complainant. Even if these opinions and beliefs are accepted as widespread, they are likely to be diffused in deliberation. The existence of feelings, opinions and beliefs about the crime of sexual assault does not translate into partiality – jurors are neither presumed, nor desired, to function as blank slates.
12 Finally, Charron J.A. remained unconvinced by evidence that a high proportion of prospective jurors were successfully challenged for cause in cases where challenges were allowed. She found it “impossible to draw any meaningful inference from the answers provided by the jurors when confronted with general questions such as those found . . . in this case and in other cases relied upon” (K. (A.), supra, at para. 51). Many of the responses demonstrated nothing more than that the candidate would have difficulty hearing the case. No meaningful direction had been provided by the trial judge on the nature of jury duty or the meaning of impartiality, and no distinction drawn between partiality and the beliefs, emotions and opinions that influence all decision making.
13 Moldaver J.A., dissenting on this issue, was satisfied that a “realistic potential” of juror partiality arises from the nature of sexual assault charges, grounding a right in the accused to challenge prospective jurors for cause. Considering the evidence in its entirety, and taking judicial notice of what he found to be notorious facts, he made a number of preliminary findings: (1) sexual abuse impacts a large percentage of the population, supporting a reasonable inference that any jury panel may contain victims, perpetrators and people closely associated with them; (2) the effects of sexual abuse, or wrongful allegations, are potentially devastating and lifelong; (3) sexual assault tends to be committed along gender lines; (4) women and children have been subjected to systemic discrimination, including in the justice system – recent changes have gone too far for some, but not far enough for others; (5) where challenges for cause have been permitted, literally hundreds of potential jurors have been found partial; and (6) unlike many crimes, a wide variety of stereotypes and beliefs surround the crime of sexual abuse.
14 Moldaver J.A. concluded that these factors, in combination, raised a realistic concern about juror partiality. At the very least, they left him in doubt, which should be resolved in favour of the accused: Williams, supra, at para. 22. While asserting that challenges for cause based on the nature of the offence are exceptional, he concluded that “unlike other crimes, by its nature, the crime of sexual abuse can give rise to intense and deep-seated biases that may be immune to judicial cleansing and highly prejudicial to an accused” (K. (A.), supra, at para. 189).
15 Two arguments held particular sway with Moldaver J.A. First, he accepted that the high incidence of juror disqualification where challenges for cause were allowed disclosed the existence of a widespread bias against persons charged with sexual assault. Second, he adopted Professor David Paciocco’s theory that the prevalence of sexual assault and the politicization of this offence have created two groups of people, “dogmatists” and “victims”, both of which contain people who may be unable to set aside their political convictions or experiences with abuse to render an impartial decision.
III - Relevant Statutory and Constitutional Provisions
16 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
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;
IV - Issue
17 Did the nature of the charges against the accused give rise to the right to challenge jurors for cause on the ground of partiality?
V - Analysis
A. Overview of the Jury Selection Process
18 To provide context and guidance to the determination of this issue, it is necessary to consider the process of jury selection and the place of challenges for cause in that process.
19 The jury selection process falls into two stages. The first is the “pre-trial” process, whereby a panel (or “array”) of prospective jurors is organized and made available at court sittings as a pool from which trial juries are selected. The second stage is the “in-court” process, involving the selection of a trial jury from this previously prepared panel. Provincial and federal jurisdictions divide neatly between these two stages: the first stage is governed by provincial legislation, while the second stage falls within the exclusive domain of federal law (see C. Granger, The Criminal Jury Trial in Canada (2nd ed. 1996), at pp. 83-84; R. v. Barrow, [1987] 2 S.C.R. 694, at pp. 712-13).
20 Both stages embody procedures designed to ensure jury impartiality. The “pre-trial” stage advances this objective by randomly assembling a jury pool of appropriate candidates from the greater community. This is assured by provincial legislation addressing qualifications for jury duty; compilation of the jury list; the summoning of panel members; selection of jurors from the jury list; and conditions for being excused from jury duty. These procedures furnish, so far as possible, a representative jury pool: R. v. Sherratt, [1991] 1 S.C.R. 509, at pp. 525-26; P. Schulman and E. R. Myers, “Jury Selection”, in Studies on the Jury (1979), a report to the Law Reform Commission of Canada at p. 408.
21 The “in-court” process is governed by ss. 626 to 644 of the Criminal Code . Its procedures directly address juror impartiality. The selection of the jury from the assembled pool of potential jurors occurs in an open courtroom, with the accused present. The jury panel is brought into the courtroom and the trial judge makes a few opening remarks to the panel. Provided the validity of the jury panel itself is not challenged (pursuant to the grounds listed in s. 629(1) ), the Registrar reads the indictment, the accused enters a plea, and the empanelling of the jury immediately begins: see Sherratt, supra, at pp. 519-22.
22 Members of the jury pool may be excluded from the jury in two ways during the empanelling process. First, the trial judge enjoys a limited preliminary power to excuse prospective jurors. This is referred to as “judicial pre-screening” of the jury array. At common law, the trial judge was empowered to ask general questions of the panel to uncover manifest bias or personal hardship, and to excuse a prospective juror on either ground. Today in Canada, the judge typically raises these issues in his remarks to the panel, at which point those in the pool who may have difficulties are invited to identify themselves. If satisfied that a member of the jury pool should not serve either for reasons of manifest bias or hardship, the trial judge may excuse that person from jury service.
23 Judicial pre-screening at common law developed as a summary procedure for expediting jury selection where the prospective juror’s partiality was uncontroversial, such as where he or she had an interest in the proceedings or was a relative of a witness or the accused: Barrow, supra, at p. 709. The consent of both parties to the judicial pre-screening was presumed, provided the reason for discharge was “manifest” or obvious. Otherwise, the challenge for cause procedure applied: Sherratt, supra, at p. 534. In 1992, s. 632 of the Criminal Code was enacted to address judicial pre-screening of the jury panel. This provision allows the judge, at any time before the trial commences, to excuse a prospective juror for personal interest, relationship with the judge, counsel, accused or prospective witnesses, or personal hardship or other reasonable cause.
24 The second way members of the jury may be excluded during the empanelling process is upon a challenge of the prospective juror by the Crown or the accused. Both parties are entitled to challenge potential members of the jury as these prospective jurors are called to “the book”. Two types of challenge are available to both the Crown and the accused: (1) a limited number of peremptory challenges without providing reasons pursuant to s. 634; and (2) an unlimited number of challenges for cause, with leave of the judge, on one of the grounds enumerated under s. 638(1) of the Criminal Code .
25 One ground for challenge for cause is that a prospective juror is “not indifferent between the Queen and the accused”: Criminal Code, s. 638(1) (b). If the judge is satisfied that a realistic potential for juror partiality exists, he or she may permit the requested challenges for cause. If challenged for cause, the impartiality of the candidate is tried by two triers of fact, usually two previously sworn jurors: Criminal Code, s. 640(2) . Absent elimination, the juror is sworn and takes his or her place in the jury box. After the full complement of 12 jurors is empanelled, the accused is placed in their charge, and the trial commences.
26 The Canadian system of selecting jurors may be contrasted with procedures prevalent in the United States. In both countries the aim is to select a jury that will decide the case impartially. The Canadian system, however, starts from the presumption that jurors are capable of setting aside their views and prejudices and acting impartially between the prosecution and the accused upon proper instruction by the trial judge on their duties. This presumption is displaced only where potential bias is either clear and obvious (addressed by judicial pre-screening), or where the accused or prosecution shows reason to suspect that members of the jury array may possess biases that cannot be set aside (addressed by the challenge for cause process). The American system, by contrast, treats all members of the jury pool as presumptively suspect, and hence includes a preliminary voir dire process, whereby prospective jurors are frequently subjected to extensive questioning, often of a highly personal nature, to guide the respective parties in exercising their peremptory challenges and challenges for cause.
27 The respective benefits and costs of the different approaches may be debated. With respect to benefits, it is unclear that the American system produces better juries than the Canadian system. As Cory J. observed in R. v. G. (R.M.), [1996] 3 S.C.R. 362, at para. 13, we possess “a centuries-old tradition of juries reaching fair and courageous verdicts”. With respect to costs, jury selection under the American system takes longer and intrudes more markedly into the privacy of prospective jurors. It has also been suggested that the extensive questioning permitted by this process, while aimed at providing an impartial jury, is open to abuse by counsel seeking to secure a favourable jury, or to indoctrinate jurors to their views of the case (see Schulman and Myers, supra, at p. 429).
28 The ultimate requirement of a system of jury selection is that it results in a fair trial. A fair trial, however, should not be confused with a perfect trial, or the most advantageous trial possible from the accused’s perspective. As I stated in R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 193, “[w]hat constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process. . . . What the law demands is not perfect justice, but fundamentally fair justice”. See also R. v. Carosella, [1997] 1 S.C.R. 80, at para. 72; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362; R. v. Harrer, [1995] 3 S.C.R. 562, at para. 14. At the same time, occasional injustice cannot be accepted as the price of efficiency: M. (A.) v. Ryan, [1997] 1 S.C.R. 157, at para. 32; R. v. Leipert, [1997] 1 S.C.R. 281.
29 These are the considerations that must guide us in assessing whether the appellant in this case has established the right to challenge for cause. Challenges for cause that will serve no purpose but to increase delays and intrude on prospective jurors’ privacy are to be avoided. As the Ontario Court of Appeal cautioned in R. v. Hubbert (1975), 29 C.C.C. (2d) 279, at p. 291: “[t]rials should not be unnecessarily prolonged by speculative and sometimes suspect challenges for cause”. However, if there exists reason to believe that the jury pool may be so tainted by incorrigible prejudices that the trial may not be fair, then challenges for cause must be allowed.
B. The Test: When Should Challenges for Cause Be Granted Under Section 638(1)(b)?
1. The Test for Partiality
30 Section 638(1)(b) of the Code permits a party to challenge 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”. Both terms describe a predisposed state of mind inclining a juror prejudicially and unfairly toward a certain party or conclusion: see Williams, supra, at para. 9.
31 In order to challenge for cause under s. 638(1)(b), one must show a “realistic potential” that the jury pool may contain people who are not impartial, in the sense that even upon proper instructions by the trial judge they may not be able to set aside their prejudice and decide fairly between the Crown and the accused: Sherratt, supra; Williams, supra, at para. 14.
32 As a practical matter, establishing a realistic potential for juror partiality generally requires satisfying the court on two matters: (1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision. These two components of the challenge for cause test reflect, respectively, the attitudinal and behavioural components of partiality: Parks, supra, at pp. 364-65; R. v. Betker (1997), 115 C.C.C. (3d) 421 (Ont. C.A.), at pp. 435-36.
33 These two components of the test involve distinct inquiries. The first is concerned with the existence of a material bias, and the second with the potential effect of the bias on the trial process. However, the overarching consideration, in all cases, is whether there exists a realistic potential for partial juror behaviour. The two components of this test serve to ensure that all aspects of the issue are examined. They are not watertight compartments, but rather guidelines for determining whether, on the record before the court, a realistic possibility exists that some jurors may decide the case on the basis of preconceived attitudes or beliefs, rather than the evidence placed before them.
34 The test for partiality involves two key concepts: “bias” and “widespread”. It is important to understand how each term is used.
35 The New Oxford Dictionary of English (1998), at p. 169, defines “bias” as “prejudice in favour of or against one thing, person, or group compared with another, especially in a way considered to be unfair”. “Bias”, in the context of challenges for cause, refers to an attitude that could lead jurors to discharge their function in the case at hand in a prejudicial and unfair manner.
36 It is evident from the definition of bias that not every emotional or stereotypical attitude constitutes bias. Prejudice capable of unfairly affecting the outcome of the case is required. Bias is not determined at large, but in the context of the specific case. What must be shown is a bias that could, as a matter of logic and experience, incline a juror to a certain party or conclusion in a manner that is unfair. This is determined without regard to the cleansing effect of trial safeguards and the direction of the trial judge, which become relevant only at the second stage consideration of the behavioural effect of the bias.
37 Courts have recognized that “bias” may flow from a number of different attitudes, including: a personal interest in the matter to be tried (Hubbert, supra, at p. 295; Criminal Code, s. 632 ); prejudice arising from prior exposure to the case, as in the case of pre-trial publicity (Sherratt, supra, at p. 536); and prejudice against members of the accused’s social or racial group (Williams, supra, at para. 14).
38 In addition, some have suggested that bias may result from the nature and circumstances of the offence with which the accused is charged: R. v. L. (R.) (1996), 3 C.R. (5th) 70 (Ont. Ct. (Gen. Div.)); R. v. Mattingly (1994), 28 C.R. (4th) 262 (Ont. Ct. (Gen. Div.)); N. Vidmar, “Generic Prejudice and the Presumption of Guilt in Sex Abuse Trials” (1997), 21 Law & Hum. Behav. 5. In Williams, supra, at para. 10, this Court referred to Vidmar’s suggestion that bias might, in some cases, flow from the nature of the offence. However, the Court has not, prior to this case, directly considered this kind of bias.
39 The second concept, “widespread”, relates to the prevalence or incidence of the bias in question. Generally speaking, the alleged bias must be established as sufficiently pervasive in the community to raise the possibility that it may be harboured by one or more members of a representative jury pool (although, in exceptional circumstances, a less prevalent bias may suffice, provided it raises a realistic potential of juror partiality: Williams, supra, at para. 43). If only a few individuals in the community hold the alleged bias, the chances of this bias tainting the jury process are negligible. For this reason, a court must generally be satisfied that the alleged bias is widespread in the community before a right to challenge for cause may flow.
40 If widespread bias is shown, a second question arises: may some jurors be unable to set aside their bias despite the cleansing effect of the judge’s instructions and the trial process? This is the behavioural component of the test. The law accepts that jurors may enter the trial with biases. But the law presumes that jurors’ views and biases will be cleansed by the trial process. It therefore does not permit a party to challenge their right to sit on the jury because of the existence of widespread bias alone.
41 Tria