Fundamental to the criminal justice system is the right to a fair trial by a jury of one’s peers who, in law, are presumed to be impartial. Arguably, there exists a prevailing presumption that appropriate judicial instructions and other procedural safeguards will be able to cure most instances of partiality in a prospective juror.
Unsurprisingly, lawyers and legal critics continue to debate whether these presumptions may be misguided, especially in relation to partiality that is rooted in a complex, unconscious and insidious bias. One that is linked to immutable human characteristics such as race, sexual orientation and gender identity. Hence the necessity for robust mechanisms that can neutralize such biases. The modified challenge for cause provisions in the Canadian Criminal Code were recently endorsed by the Supreme Court of Canada in R v Chouhan as one such vigorous mechanism that is capable of counteracting even the most systemic and subconscious prejudices.
For those who may not be familiar with the Canadian Criminal Law, section 638(1)(b) of the Code entitles a prosecutor or an accused to challenge the selection of a juror on the ground that the juror is not impartial. A successful challenge for cause application permits the successful party to pose questions designed to screen out unconscious biases in potential jurors “that are capable of unfairly affecting the outcome of the case.”
In Chouan, the Supreme Court noted the “growth in the collective knowledge and understanding about the ways in which unconscious bias can affect juror partiality.” Significantly, the Supreme Court recognized that “a wide range of [human] characteristics can create a risk of prejudice and discrimination and are the proper subject of questioning on a challenge for cause”. Key among the characteristics listed were sexual orientation and gender expression.
Recently, the Supreme Court's obiter comments in Chouhan were put to the test. The Ontario Superior Court in R v K.P. granted an application to challenge prospective jurors for cause on the ground that they may be biased against transgender individuals in the community of Cornwall.