Jury Notices, racism, bias and fair trial

A recent appellate decision, Kayhan v. Greve, addressed the issue of potential racism in juries.

A civil suit arose out of a motor vehicle accident. The defendant served a jury notice, (which is a document giving notice to the plaintiff that the defendant wanted a trial by jury; civil cases in Ontario are more normally heard by judges alone). The plaintiff, Muslim-Canadian woman of Afghani descent, brought a motion to strike the jury notice on the grounds that she would not receive fair trial because of current political climate. The trial judge granted that motion and struck the jury notice because, in his view:

"there is a strong risk, a reasonable apprehension that there could be bias on the part of the jury based on a system where there are no checks. Prescreening is not an adequate check and there is no - not like in a criminal case, there is no opportunity to challenge by way of cause in a civil case".

The defendant appealed the striking-out of the jury notice to the Divisional Court and that appellate court allowed the appeal. It was held that it is not enough for a judge to simply take judicial notice of inherent prejudice on part of potential jurors in case involving certain minorities. Such a conclusion without supporting evidence that potential civil jurors would be impossibly tainted, and that lack of impartiality would cause them to be unable to set aside their bias, was improper exercise of judicial discretion. The Divisional Court's view was that:

"Even if the trial judge had a basis for doing so, it is not enough to simply take `judicial notice' of inherent prejudices on the part of potential jurors in a case involving certain minorities. Arguably, minorities in Canada have suffered from intolerance and prejudice. Nevertheless, the trial process has prevailed. Needless to say, given the tragic events of September 11, 2001, and the subsequent terrorist attacks linked to radical Muslims, there may be a level of caution in Canada which may in some people have expanded to outright bias and prejudice. To conclude, however, that potential civil jurors would be impossibly tainted, without any supporting evidence, and that the lack of impartiality would cause them to be unable to set aside their bias, notwithstanding procedural safeguards, would be to improperly exercise judicial discretion."

The Divisional Court rested its decision on that of the Supreme Court of Canada in R. v. Find (a criminal law case):

"As a practical matter, establishing a realistic potential for juror partiality generally requires satisfying the court on two matters: (1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision… These two components of the challenge for cause test reflect, respectively, the attitudinal and behavioural components of partiality [...]"

CASE CITATION: Kayhan v. Greve, 2008 CarswellOnt 4039, 238 O.A.C. 257, 295 D.L.R. (4th) 756, 92 O.R. (3d) 139, 2008 CanLII 32832, (Div.Ct.)