R v G 1997-2

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Between
Her Majesty the Queen, and G
[1997] O.J. No. 5938
St. Catharines Registry No. 573/96
Ontario Court of Justice (General Division), St. Catharines, Ontario
Wallace J.
Oral judgment: March 25, 1997.
(5 pp.)

Criminal law — Procedure — Jury — Challenges for cause.

Determination of whether a challenge for cause was appropriate. The accused, a homosexual, was charged with sexually assaulting a 13-year-old boy. At issue was the evidence required to be adduced in order to allow the court to find that there was a basis for a challenge for cause.

HELD: A challenge for cause was required in these circumstances. No expert evidence or oral evidence was required to support a challenge for cause. The court had the discretion to determine whether there was a legitimate concern that an issue existed in a case that might be difficult for potential jury members to set aside. In its determination, the court could consider other cases which had addressed this issue and appropriate literature. It was also appropriate for the judge to take judicial notice of society's psyche and to consider the media's description of what went on in the community. Based on these sources, discrimination against homosexuals continued to exist and it was reasonable to consider that potential jurors might not be able to set aside their views about homosexuality.

Court Note: Charge: Section 271 Criminal Code of Canada - Sexual Assault

Counsel:
R. Pringle, for the Crown.
C. Fromstein, for the accused.
  1. WALLACE J. (orally):— My view is that there are grounds for a challenge of cause.  I believe that the Court of Appeal in Regina v. Alli (1996), 110 C.C.C. (3d) 283 is not saying that there must be witnesses testifying and evidence led in each case before a court can establish foundation for finding that there may be a partiality that jurors may have some difficulty in setting aside, or there may be a predisposition, against sexual offenders, or based on racism (or whatever the issue at hand might be).  I think the Court of Appeal is saying that the trial judge has a discretion to assess whether or not there is a legitimate concern that an issue exists in a case that may be difficult for potential jury members to set aside and that the court should exercise that discretion.  In the Alli case, the issue was not raised at trial and was only raised at the appellate level; the court was not prepared to effectively 'secondguess' the actions of the trial judge who had appropriately exercised his or her discretion.
  2. I am concerned that if the only way in which a foundation for a challenge for cause may be laid is by the calling of witnesses in each particular case, that the requiring of that kind of a foundation will provide different degrees of access to justice to accused and that is clearly inappropriate. It would put the administration of justice into a position where affordability of expert evidence would provide increased access to justice and that cannot happen in my view. So since I believe that it is not necessary in each particular case for expert evidence to be led or, in fact, any specific evidence to be led on the issue, it is appropriate for the court to consider other cases which have addressed this issue and some literature which may be of assistance to the court in exercising its discretion.
  3. I am indebted to both crown counsel and defence counsel, in this particular case for the briefs which they have provided and I am satisfied that the comparables, (if I may so describe them) that are included specifically in Ms. Fromstein's Brief of Authorities may be of assistance to me in determining whether or not a challenge for cause where there is a sexual assault is warranted.
  4. In addition to my reference to those materials, I also believe it is appropriate for me to take judicial notice of what has been described in one of the earlier cases as this 'society's psyche'.
  5. A judge does not exist in an ivory tower apart from the experiences that are ongoing in our community, and it is clear to me, clear to this community, and probably clear to this entire province, that there is an abhorrence against crimes that involve children, that there are examples of homophobia in practically every aspect of our day to day life.
  6. Crown counsel asked me not to rely upon the media's description of what is going on in our community, but the media to some extent is an eye into our community. It is not possible to read a newspaper any week without seeing that it is necessary for people who have a homosexual preference to be litigating or lobbying politically in order to achieve some equality in society and also to point out to our community that discrimination continues to exist. And when such a mindset is reflected through the media, through the political activities that we see in our community, and through the legal decisions that the court is called upon to make on a regular basis, it is reasonable for me to consider the possibility that potential jury members may not be able to set aside their views about homosexuality. When this possibility is coupled with an alleged incident that involves a child of 13 years, it is essential that the court recognize our society's context within which this trial must take place, and the court must do whatever is necessary to ensure that an impartial jury is found. I am satisfied that to do so requires a challenge for cause in these circumstances.
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