Accused charged with sexual assault. Defence application under s. 638(1)(b) to challenge potential jurors for cause on the basis of racial prejudice, as the accused was of East Indian descent.
Held: Leave granted to challenge potential jurors for cause.
In considering an application for challenge on the basis of racial prejudice, the first ‘attitudinal’ step assesses whether a widespread prejudice exists in the community. Spence, 2005 SCC 71 recognized prejudice against individuals of East Indian decent, and held that “racial prejudice against visible minorities is so notorious and indisputable that its existence will be admitted without any need for evidence”. On the second, behavioural stage, there was a risk that jurors might be unable to set aside their bias to give an impartial decision: “[d]espite the presumption of impartiality, in cases of racial bias, that impartiality has been refuted by previous case law from the Supreme Court of Canada.” Applicant established a realistic potential that jurors might not be impartial.
T. Roulston – Defence Counsel