Succeeding in Obtaining a Challenge for Cause
| Author | David M. Tanovich; David Paciocco; Steven Skurka |
| Pages | 95-150 |
SUCCEEDING
IN
OBTAINING
A
CHALLENGE
FOR
CAUSE
5.1 THE
THRESHOLD
TEST
5.1
(a)
The
Burden
Is Not a
Substantial
One
In
determining whether
one or
more jurors
may be
challenged
for
cause
there
is
"little,
if
any, burden
on the
challenger":
R. v.
535. "The threshold
for a
party
to
exercise
the
right
to
chal-
lenge
for
cause
is a
minimal
standard.":
R. v.
Pheasant
(1995),
47
C.R. (4th)
47
at 50
(Ont. Gen. Div.),
Hill
J.
5.1.(b)
The
"Air
of
Reality"
or
"Realistic
Potential"
Test
The
burden
is
simply
to
provide
sufficient
information
to
convince
the
judge
that there
is an
"air
of
reality"
to the
application
or "a
realistic
poten-
tial
for the
existence
of
partiality,
on a
ground
sufficiently
articulated
in the
application."
In
particular,
in R. v.
535-36,
L'Heureux-Dube
J.
said
for the
Court:
[W]hile
there must
be an
"air
of
reality"
to the
application,
it
need
not be an
"extreme"
case..
. .
The
threshold question
is not
whether
the
ground
of
alleged partiality
will
create such partiality
in a
juror,
but
rather whether
it
could create that
partiality
which would prevent
a
juror
from
being
indifferent
as to the
result.
95
CHAPTER 5
In the
end, there must exist
a
realistic
potential
for the
existence
of
partiality,
on a
ground
sufficiently
articulated
in the
application, before
the
challenger
should
be
allowed
to
proceed.
Decisions
following
Sherratt
have
described
the
threshold
test
variously
as
follows:
Was
there
a
realistic possibility that
one or
more prospective jurors would,
because
of...
[the relevant] prejudice, [opinion
or
belief,]
not be
impartial
as
between
the
Crown
and the
accused:
R. v.
Parks
(1993),
15
O.R. (3d)
324
at 337
(C.A.).
[T]he
question
...
is
whether there was,
on the
material before
the
learned
trial judge,
any
reason
to
doubt
that
the
impartiality
of any one of
the
prospective jurors might have been
affected
irretrievably:
R. v.
Keegstra
(1991),
114
A.R.
288 at 292
(C.A.).
[T]he
ground articulated
for the
alleged want
of
indifference
. . .
[must]
show
a
realistic
potential
for
partiality
on the
part
of the
prospective jurors
so
as to
entitle
defence
counsel
to ask
that question
of
each juror
as
part
of a
challenge
for
cause:
R. v.
Cameron
(1995),
22
O.R. (3d)
65 at 71
(C.A.).
In
Sherratt,
536,
the
Court
cited
with
approval,
in
the
context
of
publicity
cases,
the
following
test
articulated
in R. v.
Zundel:
"The real question
is
whether
the
particular publicity
and
notoriety
of the
accused could potentially have
the
effect
of
destroying
the
prospective
juror's
indifference between
the
Crown
and the
accused."
5.1
(c) The
Meaning
of
"Air
of
Reality"
The
"air
of
reality"
test
is the
lowest
burden
recognized
in the law of
evi-
dence.
In
describing
this
standard
of
proof
in the
context
of
accused
per-
sons
wishing
to
have
defences
placed
before
the
trier
of
fact,
CoryJ.
said:
The
term "air
of
reality" simply means that
the
trial judge must determine
if
the
evidence
put
forward
is
such that,
if
believed,
a
reasonable jury properly
charged could have acquitted.
If the
evidence meets that
test
then
the
defence
must
be put to the
jury.
This
is no
more than
an
example
of the
basic division
of
tasks between judge
and
jury:
R. v.
Osolin,
682.
There
are
parallels
in
both
terminology
and in the
function
of the
test
that
can be
drawn
to the
challenge
for
cause
context.
The
threshold
is
intended
in
each
case
to
determine
whether
the
issue
should
go to the
trier
of
fact.
For
this
reason
the
threshold
standard
is not a
high
one,
and
judges
should
be
cautious
not to
apply
a
strict
standard
that
would
usurp
the
function
of the
triers.
JURY
SELECTION
IN
CRIMINAL
TRIALS
96
Speaking
of the air of
reality
test
as it is
applied
in
determining
whether
defences
should
be
left
with
juries,
the
Supreme
Court
of
Canada held
in
R. v.
Park,
848, that
The
requirement
that
the
trial
judge
not
enter
into
an
assessment
of
credi-
bility
or
weighing
is an
important
factor
in the
application
of
this
test.
The
test
is the
means
by
which
a
judge
demarcates
the
limits
of the
jury's
fact-
finding
responsibilities.
. . .
This
underlying
rationale
must
be
kept
first and
foremost
in the
minds
of the
trial
judges
as
they
seek
to
apply
the
"air
of
reality"
test.
It is a
legal
threshold,
not a
factual
one.
See
also,
R. v.
L.,
790.
Applied
mutatis
mutandis
to
challenges
for
cause, this would mean
that
the
trial
judge must determine
if the
evidence
or
information
put
forward
is
such
that,
if it
were believed,
a
reasonable mini-jury
of the two
triers, properly
charged,
could
find
that
the
challenged juror
may not be
impartial
as
between
the
Queen
and the
accused.
Is
this
the
appropriate approach?
The
language,
the
"air
of
reality,"
is the
same, suggesting that
it is. In
cases where
the
factual
question being determined
by the
trial judge
and the two
triers
is
the
same one,
there
is
every
reason
for
courts
to
refrain
from
assessing
the
reliability
of the
evidence presented when deciding whether
to
allow
the
challenge
to be
conducted.
They
should
refrain
from
prejudging
the
reliabil-
ity
of the
evidence because
it is for the
triers
to
decide whether
the
challenge
is
probably true.
Thus,
where
the
challenge
for
cause relates
to the
status
of a
particular
juror, such
as
where
the
party seeking
the
challenge suggests that
the
juror
is an
alien,
or has
been convicted
of an
offence
for
which
he
received
a
sentence
of
greater than twelve months' imprisonment,
or has a
personal interest
in the
case,
the
trial judge should
not
assess
the
reliability
of
the
evidence presented
in
support
of the
challenge.
It is up to the two
triers
to
decide whether these assertions
are
probably true.
Is the
same practice appropriate where
the
application
to
conduct
a
chal-
lenge
for
cause
is
based upon generic
or
general
bias?
It
seems that
the
Ontario
Court
of
Appeal thinks not.
In R. v. Ly
(1997),
114
C.C.C.
(3d)
279
(Ont. C.A.),
and
R.v.Alli
(1996),
110
C.C.C.
(3d)
283
(Ont.
C.A.),
the
Court
has
expressed disapproval
of
efforts
by
defence
counsel
to
establish
the
factual
foundation
for a
challenge
for
cause
for the first time on
appeal,
in
part because
the
evidence
is
"untested"
and may
therefore
be
unreliable.
If
the
reliability
of the
evidence
is
irrelevant
at the
application stage, this prac-
tice
is
wrong.
On the
other hand, concern
for the
reliability
of the
founda-
tion
evidence
in a
general
or
generic bias challenge seems defensible.
In
such
cases
the
application
for
challenge
is
based
on the
claim that, generally,
Succeeding
in
Obtaining
a
Challenge
for
Cause
97
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