R. v. Williams (V.D.), (1998) 226 N.R. 162 (SCC)

• Judge: Major, Bastarache and Binnie, JJ.
• Court: Supreme Court of Canada
• Case Date: June 04, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 226 N.R. 162 (SCC);226 NR 162;38 WCB (2d) 295;1998 CanLII 782 (SCC);15 CR (5th) 227;174 WAC 1;[1998] SCJ No 49 (QL);[1998] 3 CNLR 257;124 CCC (3d) 481;[1999] 4 WWR 711;159 DLR (4th) 493;56 BCLR (3d) 390;[1998] ACS no 49;52 CRR (2d) 189;JE 98-1315;[1998] 1 SCR 1128;107 BCAC 1

R. v. Williams (V.D.) (1998), 226 N.R. 162 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1998] N.R. TBEd. JN.006

Victor Daniel Williams (appellant) v. Her Majesty The Queen (respondent) and The Attorney General of Canada, The Attorney General for Ontario, Aboriginal Legal Services of Toronto Inc., The African Canadian Legal Clinic, The Urban Alliance on Race Relations (Justice) and The Criminal Lawyers' Association (Ontario) (intervenors)

(25375)

Indexed As: R. v. Williams (V.D.)

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé,

Gonthier, Cory, McLachlin, Iacobucci,

Major, Bastarache and Binnie, JJ.

June 4, 1998.

Summary:

The aboriginal accused was charged with robbery. He applied before trial to challenge each potential juror for cause to determine whether they possessed prejudice against aboriginals which might impair their im­partiality. The trial judge, in a decision reported in 90 C.C.C.(3d) 194, dismissed the application. The accused appealed.

The British Columbia Court of Appeal, in a judgment reported 75 B.C.A.C. 135; 123 W.A.C. 135, dismissed the appeal. The accused appealed.

The Supreme Court of Canada allowed the appeal and ordered a new trial. The accepted evidence of widespread racial prejudice against aboriginals created a realistic po­tential of partiality and the trial judge should have exercised his discretion to allow the challenges for cause.

Civil Rights - Topic 3146

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Jury selection - [See first Criminal Law - Topic 4316 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See first Criminal Law - Topic 4316 ].

Criminal Law - Topic 4312

Procedure - Jury - Impartiality - The Supreme Court of Canada stated that "four classes of potential juror prejudice have been identified - interest, specific, generic and conformity. ... Interest prejudice arises when jurors may have a direct stake in the trial due to their relationship to the de­fendant, the victim, witnesses or outcome. Specific prejudice involves attitudes and beliefs about the particular case that may render the juror incapable of deciding guilt or innocence with an impartial mind. These attitudes and beliefs may arise from personal knowledge of the case, publicity through mass media, or public discussion and rumour in the community. Generic prejudice ... arises from stereotypical atti­tudes about the defendant, victims, witnesses or the nature of the crime itself. Bias against a racial or ethnic group or against persons charged with sex abuse are examples of generic prejudice. Finally, conformity prejudice arises when the case is of significant interest to the community causing a juror to perceive that there is strong community feeling about a case coupled with an expectation as to the outcome." - See paragraph 9.

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - An aboriginal accused was charged with robbing a white person - Section 638(1)(b) of the Criminal Code permitted an accused to challenge potential jurors for cause on the ground of partiality - It was accepted that there was widespread bias against aboriginal people in the community - Jurors were also presumed to be impartial - The Supreme Court of Canada stated that widespread racial bias in the community created a "realistic potential or possibility" for partiality - You could not assume the judicial directions to act impartially would always counter racial prejudice - The court stated that "it is better to risk allowing what are in fact unnecessary challenges, than to risk prohibiting challenges which are necessary" - The court held that the trial judge erred in refusing to permit the accused to challenge potential jurors for cause.

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - The Supreme Court of Canada dis­tinguished between the two phases of the challenge for cause process - The first stage determined whether challenges should be permitted and the question was "whether there is reason to suppose that the jury pool may contain people who are prejudiced and whose prejudice might not be capable of being set aside on directions from the judge" - The second stage involved the actual questioning of prospec­tive jurors as to whether they had preju­dices which would prevent them from acting impartially - The court stated that "to demand, at the preliminary stage of determining whether a challenge for cause should be permitted, proof that the jurors in the jury pool will not be able to set aside any prejudices they may harbour and act impartially, is to ask the question more appropriate for the second stage" - See paragraphs 31 to 33.

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - The Supreme Court of Canada discussed what evidentiary standard was required for challenges for cause based on racial preju­dice - The court stated that "on the under­standing that the jury pool is representa­tive, one may safely insist that the accused demonstrate widespread or general preju­dice against his or her race in the com­munity as a condition of bringing a chal­lenge for cause. It is at this point that bigoted or prejudiced people have the capacity to affect the impartiality of the jury. ... To say that widespread racial prejudice in the community can suffice to establish the right to challenge for cause in many cases is not to rule out the possibility that prejudice less than widespread might in some circumstances meet the Sherratt test." - See paragraphs 41 to 42.

Cases Noticed:

R. v. Sherratt (SCC), [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161; 3 W.A.C. 161, appld. [para. 4].

R. v. Parks (C.) (1993), 65 O.A.C. 122; 84 C.C.C.(3d) 353 (C.A.), refd to. [para. 5].

R. v. Hubbert (1975), 29 C.C.C.(2d) 279 (Ont. C.A.), refd to. [para. 10].

R. v. Zundel (1987), 18 O.A.C. 161; 31 C.C.C.(3d) 97 (C.A.), refd to. [para. 13].

Aldridge v. United States (1931), 283 U.S. 308, refd to. [para. 21].

R. v. Betker (A.) (1997), 100 O.A.C. 81; 33 O.R.(3d) 321 (C.A.), disagreed with [para. 22].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 43].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d), sect. 15(1) [para. 7].

Criminal Code, R.S.C. 1985, c. C-46, sect. 638(1)(b), sect. 638(2) [para. 7].

Authors and Works Noticed:

British Columbia, Cariboo-Chilcotin Jus­tice Inquiry, Report on the Cariboo-Chilcotin Justice Inquiry (1993), p. 11 [para. 57].

Burton, William C., Legal Thesaurus (2nd Ed. 1992), p. 370 [para. 8].

Canada, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Crimi­nal Justice in Canada (1996), p. 33 [para. 57].

Canadian Bar Association, Locking up Natives in Canada: A Report of the Committee of the Canadian Bar As­sociation on Imprisonment and Release (1988), p. 5 [para. 57].

Johnson, Sheri Lynn, Black Innocence and the White Jury (1985), 83 Mich. L. Rev. 1611, generally [para. 10].

Nova Scotia, Royal Commission on the Donald Marshall Jr. Prosecution, Find­ings and Recommendations (1989), vol. 1, p. 162 [para. 57].

Pfeiffer, Jeffrey E., Reviewing the Empirical Evidence on Jury Racism: Findings of Discrimination or Discrimi­natory Findings? (1990), 69 Nebr. L. Rev. 230, generally [para. 34].

Roach, Kent, Challenges for Cause and Racial Discrimination (1995), 37 Crim. L.Q. 410, p. 421 [para. 27].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), pp. 976, 977 [para. 53].

Tanovich, David M., Paciocco, David M., and Skurka, Steven, Jury Selection in Criminal Trials (1997), p. 138 [para. 53].

Vidmar, Neil, Pretrial prejudice in Canada: a comparative perspective on the crimi­nal jury (1996), 79 Jud. 249, p. 252 [para. 9].

Counsel:

Joseph J. Blazina, for the appellant;

Dirk Ryneveld, Q.C., and George Ivanisko, for the respondent;

Graham Garton, Q.C., for the intervenor, Attorney General of Canada;

Ian R. Smith, for the intervenor, Attorney General for Ontario;

Kent Roach and Noelle Spotton, for the intervenor, Aboriginal Legal Services of Toronto Inc.;

Steven M. Hinkson and Julian K. Roy, for the intervenor, African Canadian Legal Clinic;

Julian N. Falconer and Richard Macklin, for the intervenor, Urban Alliance on Race Relations (Justice);

James Lockyer, for the intervenor, Crimi­nal Lawyers' Association (Ontario).

Solicitors of Record:

McCullough, Parsons, Victoria, B.C., for the appellant;

Attorney General of British Columbia, Victoria, B.C., for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;

Attorney General for Ontario, Toronto, Ontario, for the intervenor, Attorney General for Ontario;

Aboriginal Legal Services of Toronto Inc., Toronto, Ontario, for the intervenor, Aboriginal Legal Services of Toronto Inc.;

African Canadian Legal Clinic, Toronto, Ontario, for the intervenor, African Canadian Legal Clinic;

Falconer, Macklin, Toronto, Ontario, for the intervenor, Urban Alliance on Race Relations (Justice);

Pinkofsky, Lockyer, Toronto, Ontario, for the intervenor, Criminal Lawyers' As­sociation (Ontario).

This appeal was heard on February 24, 1998, before Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

On June 4, 1998, McLachlin, J., delivered the following judgment in both official languages for the Supreme Court of Canada.