HIS MAJESTY THE KING - v. -, 2023 SKKB 101

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 101 Date: 2023 05 15 Docket: CRM-SA-00021-2021 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING - and - KYLE EDWARD NORMAN Counsel: Tyla R. Olenchuk for the Crown Aleida M. Oberholzer and Thomas P. Hynes for the accused ___________________________________________________________________________ RULING CURRIE J.

May 15, 2023 ___________________________________________________________________________ Introduction [1] Kyle Edward Norman is charged under s. 271 of the Criminal Code, RSC 1985, c C-46, with havingcommitted a sexual assault. Mr. Norman has elected to be tried by a judge and jury. [2] Here Mr. Norman applies under s. 638(1)(

b) of the Criminal Code for an order “permitting the challenge ofprospective jurors for cause, specifically impartiality on the basis of the Accused and the Complainant’s sexual orientation.” Both Mr.Norman and the complainant are homosexual men. [3] Mr. Norman argues that: (

a) There is a realistic potential for the existence of partiality on the part of prospective jurors, given the existence/evidence of biastowards 2SLGBTQ+ people in Saskatoon. (

b) During the early stages of jury selection, I should provide instruction to the prospective jurors about bias. (

c) Each potential juror who is selected from the panel by lot should be questioned by me individually, apart from the jury panel. Thatprocess would include my providing an additional anti-bias instruction, followed by my asking a question such as the following: Would you have difficulty judging this case solely on the evidence you hear in the case and on the trial judge’s instructions because youhold an opinion about homosexual men, that on careful reflection, you do not believe you can put aside? Law relating to s. 638(1)(b) [4] In s. 638(1)(

b) the Criminal Code provides: 638(1) A prosecutor or an accused is entitled to any number of challenges on the ground that … (

b) a juror is not impartial; … [5] In R v Williams, (SCC), [1998] 1 SCR 1128, Justice McLachlin (as she then was) said atparagraph 32: [32] … The first stage is the inquiry before the judge to determine whether challenges for cause should be permitted. The test at thisstage is whether there is a realistic potential or possibility for partiality. The question is whether there is reason to suppose that the jurypool may contain people who are prejudiced and whose prejudice might not be capable of being set aside on directions from the judge.The operative verbs at the first stage are “may” and “might”. … [Emphasis (underlining) added; emphasis (italics) in original]

[6] The Saskatchewan Court of Appeal has described further how an applicant may succeed on such anapplication. Justice Kalmakoff said in R v Theodore, 2020 SKCA 131, 399 CCC (3d) 125, at para 53: [53] … This standard may be met by demonstrating that a widespread bias of a particular type exists in the community and that,despite trial safeguards, some jurors may be incapable of setting aside this bias in order to render an impartial decision.

While this doesnot necessarily entail meeting an onerous evidentiary standard, the presumption of juror impartiality is not automatically rebutted by themere fact that matters of race are involved (Spence [2005 SCC 71, [2005] 3 SCR 458], at para 24).

In fact, in Williams [(SCC), [1998] 1 SCR 1128], the Supreme Court specifically rejected the notion that there is an automatic right to challenge for cause onthe basis that the accused is Indigenous or a member of another group that encounters discrimination (at para 41). [Emphasis(underlining) added; emphasis (italics) in original] [7] Further elaboration has been provided in R v Chouhan, 2021 SCC 26, where Justices Moldaver and Brownwrote at paragraph 62: [62] While widespread bias cannot be presumed in all cases, the parties do not face an onerous burden for raising a challenge forcause.

The accused person or the Crown must merely demonstrate a reasonable possibility that bias or prejudicial attitudes exist in thecommunity, with respect to relevant characteristics of the accused or victim, and could taint the impartiality of the jurors.

In most cases,expert evidence will not be necessary: challenges for cause must be available wherever the experience of the trial judge, in consultationwith counsel, dictates that, in the case before them, a realistic potential for partiality arises. … [Emphasis (underlining) added] Widespread discrimination in the community [8] The foundation for the requested ruling is that there exists widespread discrimination in the community againsthomosexual men. The onus is on the applicant, Mr. Norman, to establish that such widespread discrimination exists.

That is, he mustestablish not only that some discrimination against homosexual men exists in the community (which I expect would not be difficult toestablish), he must establish that the discrimination is widespread, giving rise to the reasonable apprehension of possible partiality amongprospective jurors. [9] Mr. Norman relies on the affidavit of Jessica Fisher. In her affidavit Ms. Fisher says: 1. That I am the Project Leader and Education Coordinator of the Gender Based Violence Project (“GBV”) of OUTSaskatoon. 2. That I grew up as a queer, Metis, White settler, and Two Spirit woman. 3.

That I joined the organization in 2017 and have been the GBV Education Coordinator and Project Leader since 2019. 4. That OUTSaskatoon began as Gay & Lesbian Heath [sic] Services (GLHS) in 1991. OUTSaskatoon is a non-profit organization inSaskatoon, Saskatchewan. OUTSaskatoon provides support for 2SLGBTQ people, particularly survivors of gender-based violence. 5. That OUTSaskatoon’s goal is to work toward increasing the acceptance and visibility of Saskatchewan’s 2SLGBTQ people,promote equality and wellness for 2SLGBTQ+ people in Saskatoon and surrounding areas through housing, workshops and advocacy. 6.

That OUTSaskatoon opened Canada’s first long-term group home for 2SLGBTQ+ youth in Saskatoon. Pride Home provides2SLGBTQ+ youth and victims of gender-based violence a safe place to live with access to non-profit services like youth programmingand counselling. DISCRIMINATION AND STIGMA 7. That I have experienced discrimination because of my gender, throughout my life. 8. That working as the GBV Project Leader, I see, and have experienced, the negative impacts of gender-based violence on ourcommunity. 9.

That I receive information from community members who are experiencing discrimination and gender-based violence because oftheir gender orientation, sexuality, gender expression, and sex. 10. That various examples of discrimination faced by 2SLGBTQ+ people in Saskatoon include the following: 11. Lack of respect and safety regarding a 2SLGBTQ person’s identity, such as personal pronouns, correct name, or gender identity; 12. Lack of accessibility to inclusive public spaces, such as change rooms or washrooms, which has resulted in harassment and violencefor 2SLGBTQ+ people; 13.

Lack of access to affirming, competent healthcare or mental health services resulting in re-traumatization and/or an increase inmental health challenges and chronic disease; 14. Lack of supports for intimate partner violence, homelessness, addictions, etc., due to a lack of awareness about 2SLGBTQexperiences, needs, and barriers. 15. That the 2SLGBTQ+ people in Saskatoon experiences [sic] disproportionate rates of violence and harassment. 16.

That there are still many individuals, organizations, institutions, systems, and religious groups that view 2SLGBTQ+ people asbeing confused, mentally ill, or as a threat to conventional binary identity norms, including gender, sexuality, and sex. 17. That as a survivor of gender-based violence, and from working as the GBV Project Lead for OUTSaskatoon’s Gender-Based

Violence Project, I am confident that 2SLGBTQ+ people in Saskatoon face widespread discrimination. 18. That I make this Affidavit in support of the Accused’s application pursuant to section 638(1) (

b) of the Criminal Code . [ 10 ] Ms. Fisher is not presented as an expert witness. She is presented as a witness who has personal knowledge of facts that are pertinent to the issues before me. Of the information that is set out in her affidavit, I consider only that personal knowledge. [ 11 ] Specifically, I do not consider Ms. Fisher’s reference to facts that are not within her personal knowledge, as no justification for considering such hearsay evidence is apparent. Nor do I consider Ms. Fisher’s opinion, as she has not been qualified as an expert witness to provide an opinion. [ 12 ] Ms.

Fisher has personal knowledge of the operations of the Gender-Based Violence Project of OUTSaskatoon. She has personal knowledge of being a queer, Métis, White settler and Two Spirit woman. She has personal knowledge of having experienced discrimination because of her gender. She has seen and has experienced negative impacts of gender-based violence, although she has not identified those impacts. [ 13 ] This personal knowledge of Ms. Fisher is set out in her affidavit up to and including paragraph 8.

In the paragraphs thereafter she expresses her opinion, along with reciting information that is not within her personal knowledge. As I have said, I disregard the opinion and the information that is not borne of Ms. Fisher’s personal knowledge. [ 14 ] Ms. Fisher does not have personal knowledge regarding discrimination that has been experienced by a homosexual man in Saskatoon. She is not a homosexual man. She has not described incidents, in which she was involved or that she witnessed, involving discrimination against a homosexual man.

Her evidence does not relate to the “relevant characteristics of the accused or victim” referred to in Chouhan . [ 15 ] Mr. Norman invites me to draw an inference, though, from Ms. Fisher having experienced discrimination because of her gender. He suggests that I may infer that homosexual men in Saskatoon likewise have experienced discrimination because they are homosexual men. That may be a justifiable inference (focusing more broadly on discrimination on the basis of sexual orientation), especially since I would expect that some discrimination against homosexual men exists in the community.

Even so, that inference would not lead me further, to the inference that such discrimination is widespread . [ 16 ] The evidence does not establish that there exists widespread discrimination in the community against homosexual men. For this reason the application is dismissed.

Partiality [ 17 ] If I were to conclude that the evidence establishes that there exists widespread discrimination in the community against homosexual men, the next question for consideration would be whether such discrimination possibly could “taint the impartiality of the jurors” ( Chouhan ). [ 18 ] In considering that question, I must consider how that discrimination against homosexual men could manifest itself, in this trial, in the form of partiality.

It could do so by way of a prospective juror being inclined against either the Crown or the defence – so that the juror was not impartial between the Crown and the defence, because of the involvement of a homosexual man. [ 19 ] In this case, however, a prospective juror will be presented with there being a homosexual man on both sides of the case. The accused person is a homosexual man, and the complainant is a homosexual man.

I look for the reasoning by which I may foresee that a prospective juror might be inclined, because of bias against homosexual men, against the accused person but not against the complainant. [ 20 ] No such reasoning is apparent. There is no reason to think that a prospective juror who is biased against homosexual men might be more biased against one homosexual man than against the other. [ 21 ] In short, there is no basis for concluding that there is a reasonable possibility of partiality on the basis of Mr. Norman and the complainant being homosexual men. [ 22 ] Mr.

Norman suggests, though, that many jurors are likely to be unfamiliar with and uncomfortable with details regarding homosexual sexual activities, which will form part of the evidence in this trial. He suggests that this circumstance provides a reason for the suggested challenges for cause. I am not persuaded by this argument. [ 23 ] This is not the only kind of case in which jurors are presented with evidence that is unfamiliar, upsetting or disturbing. Assault and murder trials come to mind as common examples.

In such trials jurors must examine in some detail weapons, descriptions and graphic photos of injured and dead persons. That circumstance often justifies a caution from the trial judge, to alert the jurors to what is coming, but it is not a basis for finding partiality or for challenging prospective jurors. [ 24 ] Therefore, for the reason also that possible partiality is not established, the application is dismissed.

Trial safeguards [ 25 ] If I had concluded that the suggested widespread discrimination exists, and that it reasonably could lead to partiality, it would have been necessary for me to consider whether “despite trial safeguards, some jurors may be incapable of setting aside this bias in order to render an impartial decision” ( Theodore ). [ 26 ] Trial safeguards are available, in the form of instructions that I may provide both to the jury panel in the course of jury selection and to the jurors before they begin their deliberations. Subject to the suggestions that I may receive from counsel, I am

likely in any event to caution the jury panel and the jurors about the need to disregard prejudices and biases in deciding the case. [27] In any event, if the determination of Mr. Norman’s application had reached this stage, I would refer to thefrequent expressions of confidence in juries that have been provided by the Supreme Court of Canada. For example, Chief JusticeMcLachlin said in R v Find, 2001 SCC 32, [2001] 1 SCR 863, at paragraphs 26 and 41-43: [26] The Canadian system of selecting jurors may be contrasted with procedures prevalent in the United States.

In both countries theaim is to select a jury that will decide the case impartially. The Canadian system, however, starts from the presumption that jurors arecapable of setting aside their views and prejudices and acting impartially between the prosecution and the accused upon properinstruction 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 maypossess biases that cannot be set aside (addressed by the challenge for cause process).

The American system, by contrast, treats allmembers of the jury pool as presumptively suspect, and hence includes a preliminary voir dire process, whereby prospective jurors arefrequently subjected to extensive questioning, often of a highly personal nature, to guide the respective parties in exercising theirperemptory challenges and challenges for cause. … [41] Trial procedure has evolved over the centuries to counter biases. The jurors swear to discharge their functions impartially. Theopening addresses of the judge and the lawyers impress upon jurors the gravity of their task, and enjoin them to be objective.

The rulesof process and evidence underline the fact that the verdict depends not on this or that person’s views, but on the evidence and the law. Atthe end of the day, the jurors are objectively instructed on the facts and the law by the judge, and sent out to deliberate in accordancewith those instructions. They are asked not to decide on the basis of their personal, individual views of the evidence and law, but to listento each other’s views and evaluate their own inclinations in light of those views and the trial judge’s instructions.

Finally, they are toldthat they must not convict unless they are satisfied of the accused’s guilt beyond a reasonable doubt and that they must be unanimous. [42] It is difficult to conceive stronger antidotes than these to emotion, preconception and prejudice.

It is against the backdrop ofthese safeguards that the law presumes that the trial process will cleanse the biases jurors may bring with them, and allows challenges forcause only where a realistic potential exists that some jurors may not be able to function impartially, despite the rigours of the trialprocess. [43] It follows from what has been said that “impartiality” is not the same as neutrality. Impartiality does not require that the juror’smind be a blank slate. Nor does it require jurors to jettison all opinions, beliefs, knowledge and other accumulations of life experience asthey step into the jury box.

Jurors are human beings, whose life experiences inform their deliberations. Diversity is essential to the jury’sfunctions as collective decision-maker and representative conscience of the community: Sherratt [ (SCC), [1991] 1 SCR509], at pp. 523-24.

As Doherty J.A. observed in Parks [(1993), (ON CA), 84 CCC (3d) 353], at p. 364, “[a] diversityof views and outlooks is part of the genius of the jury system and makes jury verdicts a reflection of the shared values of thecommunity”. [28] An example of the caution that I might provide to the jury in this case appears in the Model Jury Instructions ofthe Canadian Judicial Council.

The current version of the preliminary instructions to the jury panel includes the following atparagraph 1.1.1: [1] Every juror must be impartial, which means that every juror must approach the trial with an open mind and without preconceivedideas. [2] We all have beliefs and assumptions that affect our perception of the world. These perceptions can create a bias for or againstothers based on their personal characteristics [such as gender, race, ethnicity, sexual orientation, or employment status].

We may beaware of some of these biases, but unaware of others. [3] No matter how unbiased we think we are, we look at others and filter what they say through the lens of our own personalbackground and experiences. Unconscious biases may be based on stereotypes or feelings that one has about a particular group, namely,traits that one associates with that group.

All human beings experience unconscious biases, but these biases can be overcome throughself-reflection and introspection. [4] If you are selected as a juror, you will be asked to judge the evidence presented at trial fairly without bias, prejudice, sympathy orpartiality. [5] Jurors are judges of the facts and must approach the case with an open mind, one that is free from bias, prejudice, sympathy orpartiality. Impartiality requires active work. It requires that you be aware of your own personal beliefs and experiences, and that you beequally open to the views of others.

If you are selected as a juror, it will be your duty to identify and set aside any prejudices orstereotypes that might affect your decision in this case. [6] There are things that jurors can do to help identify and set aside unconscious bias. If you are chosen as a juror, you will beinstructed to: 1. Take the time you need to reflect carefully and thoughtfully about the evidence. 2. Think about why you are making the decision you are making and examine it for bias. Reconsider your first impressions of thepeople and the evidence in this case.

If the people involved in this case were from different backgrounds, for example, [richer or poorer,more or less educated, older or younger, or of different gender, gender identity, race, religion, or sexual orientation] would you still viewthem, and the evidence, the same way? 3. Listen to one another. You all have different backgrounds and will be viewing this case in light of your own insights, assumptions,

and biases. Listening to different perspectives may help you to better identify the possible effects of hidden biases. Help one another to identify and resist the effect of unconscious bias. 4. Resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, or stereotypes. [ 29 ] Bearing in mind Chief Justice McLachlin’s observations, I am inclined to expect that my providing such instruction to the jury panel, and later to the jury, will address sufficiently any concern about preconceived notions that may be borne by any of the prospective jurors. Conclusion [ 30 ] The application is dismissed. “G.M. Currie” J. G.M. CURRIE