Section 638(1)(b) states:

). CHALLENGE FOR CAUSE Section 638 of the Criminal Code of Canada, R.S.C., 1985 allows the accused and the Crown to challenge any number of prospective jurors for cause. 1 Section 638(1)(b) states: 638.(1) A prosecutor or an accused is entitled to any number of challenges on the ground that (a) the name of the juror does not appear on the panel (b) a juror is not indifferent between the Queen and the accused (c) (d) a convicted juror an alien juror (e) a juror who is physically unable to perform a juror's duties (f) language deficiency Since categories (a), (c), (d), (e) and (f) are almost selfevident, this paper will deal exclusively with s.638(1)(b) which is the area in which most counsel will find an opportunity to employ a challenge for cause. The Court may require that the challenge be in writing. 2 The determination of whether the challenge is true is made by the two jurors who were last sworn, or if no jurors have then been sworn, two persons present whom the court may appoint for that purpose. 3 They are the triers of the challenge. lthe onus of proof to establish that the challenge is valid rests with the challenger Regina v. Hubbert 29 C.C.C. (2d) 279 (Ont.C.A.) at page 294; Regina v. Richard 31 C.R. 240 (N.B.C.A.); R. v. Sherratt (1991) 63 C.C.C. (3d) 193 S.C.C. at page 211 2See s.639 of the Criminal Code. 3See s.640(2) of the Criminal Code.

2 If the triers determine the challenge is not true, the prospective juror challenged shall then be sworn unless the accused or the Crown uses one of its peremptory challenges or the Crown requires the prospective juror to stand aside. 4 If the triers determine the challenge to be true, the prospective juror is excused. In Regina v. Brigham 44 C.C.C. (3d) 379 (Que.C.A.), it was held that until two jurors are actually sworn, the two triers selected continue to act. Thus it is incorrect to replace one of the triers with the first juror sworn. If after a reasonable time, the two persons sworn to determine the challenge are unable to agree, the Court may discharge them and may direct that two other persons be sworn to try the challenge. 5 PURPOSE OF CHALLENGE FOR CAUSE: The purpose of the provisions in the Criminal Code allowing the accused or the Crown to challenge any number of jurors for cause is simply to eliminate from the jury those persons who come within the five categories listed in s.638(1). The challenge for cause is not to be used as an aid to counsel in deciding whether to exercise the 6 right of peremptory challenges. In Regina v. Sherratt, (1991) 63 C.C.C. (3d) 193 (S.C.C.), Madam Justice L'Heureux-Dube, at page 206 wrote: 4See s.640(3) of the Criminal Code: Regina v. Ward 8'C.C.C. (2d) 515 (Ont.C.A.); Regina v. Patomba 32 C.R.N.S. 31 (Que.C.A.); Regina v. Cloutier 48 C.C.C. (2d) 1 (S.C.C.); Regina v. Richard 31 C.R. 340 (N.B.C.A.); James v. The Queen [1969] 1 C.C.C. 278 (B.C.C.A.). 5See s.640(4) of the Criminal Code. 6Regina v. Hubbert 29 C.C.C. (2d) 279 (Ont.C.A.) at pages 289 90, affirmed [1977] 2 S.C.R. 267.

3...The questioning of the prospective juror must be relevant. This is another reason why the trial judge must be given an adequate explanation for the challenge outside of the mere words of the section. Questioning in this phase should not become a "fishing expedition". Based upon its comprehensive discussion, the court of Appeal dismissed the accused's appeal, holding that what counsel was attempting to do in that case came closer to securing a favourable jury than an impartial one. Further, prospective jurors' reactions to various pieces of evidence that may be elicited at trial are not the proper subject of the challenge for cause procedure. Impartiality is a state of mind to be tested at the time of the swearing in of each juror. At page 209: As to challenges for cause, they are properly used to rid the jury of prospective members who are not indifferent or who otherwise fall within s.567 (now s.638), of the Code, but they stray into illegitimacy if used merely, without more, to over- or under-represent a certain class in society or as a "fishing expedition" in order to obtain personal information about the juror... The Saskatchewan Court of Appeal recently considered the issue of challenging jurors for cause in the Queen v. Rosemary Kim Friebus (1991) 97 Sask. Reports at page 106. At the trial, Defence counsel had sought leave to challenge all prospective jurors for cause because of pre-trial publicity indicating the death of two preschool children belonging to the accused. Mr. Justice Hrabinsky of the Court of Queen's Bench considered Sherratt (supra), and declined the Defence application, holding that the publicity could not potentially have the effect of destroying the prospective juror's indifference because the accused had already achieved a change in venue, had never been charged in relation to the two previous deaths and the media reports had not speculated that she had anything to do with those deaths. The Saskatchewan Court of Appeal in denying this ground of appeal quoted from Sherratt at page 211 per L'Heureux-Dube J., who in turn was quoting from the Queen v. Zundel (1987) 31 C.C.C. (3d) 97 at page 132:

4 "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." The Saskatchewan Court of Appeal seems to apply this test with approval. The accused is entitled to an indifferent jury not a favorable one.' In R. v. Hubbert 29 CCC (2d) 279, the Ontario court of Appeal held at pages 295-6: It is not a ground of challenge for cause that a juror impartial when sworn may become affected by the nature of the evidence he will hear in the course of the trial. The jury system in this country operates on the fundamental assumption that a juror who is properly sworn is able to, and will, follow the direction of the Judge that he is to determine the guilt or innocence of the accused solely on the evidence that he has heard in Court free from extraneous considerations, and free from prejudice against, or favour for the accused. DETERMINING WHETHER THE JUROR IS NOT INDIFFERENT BETWEEN THE QUEEN AND THE ACCUSED (s.638(1)(b)): The meaning of this ground of challenge for cause has been considered by a number of courts. In Regina v. Lesso & Jackson, 23 C.R.N.S. 17 (Ont.H.C.J.), the court wrote at page 100: Gentlemen, I just want to explain to you very briefly what your duties are and what you have been sworn to do. Counsel for the defence has challenged the juror on the ground that he is not indifferent between the prisoners and the Queen; that is, that he is prejudiced one way or another and that he would not a true verdict give according to the evidence if he was sworn as a juror. 'Regina v. Makow, 20 C.C.C. (2d) 513 (B.C.C.A.), at p.518-19.

) 5 Judge I.A. Vannini in Challenges to a Jury, 23 C.R.N.S. 57, at page 67, suggests that the trial judge should direct the two triers as follows: The question you must determine upon the evidence you have heard is whether this juror stands indifferent, that is, whether or not he is impartial. In other words, will he or will he not enter upon the case with an open, unprejudiced mind to try the accused and a true verdict give according to the evidence. Almost everybody who has heard or read about this case has some opinion. This does not of itself disqualify him if you feel, from what you have heard, that he can give an honest verdict according to the evidence if he is sworn as a juror. In Regina v. Elliott, 12 C.C.C. (2d) 482 (Ont.H.C.J.), Mr. Justice Haines at page 493 recommended that the triers be directed by the trial judge in the following manner: On being sworn it is important for the Judge to explain to the triers exactly what they are to do. The word "indifferent" is not easily understood. It is preferable if the Judge explains that indifferent means impartial or neutral and that the proposed juror will bring in a true verdict on the evidence. Then at the conclusion of the evidence the JUdge may again address the triers, review the evidence, and then ask the triers to find whether the proposed juror is "satisfactory" or "not satisfactory". The triers can get very confused endeavouring to include the word, "indifferent" in their finding. In one of the above-mentioned unreported cases the triers found the juror "okay". Being pressed by the Judge to be a little more formal, their reply was: "We have come to an agreement that we feel he will be able to bring in a true verdict." Prior knowledge of a case does not In Regina v. Hubbert, 29 C.C.C. Appeal, at page 291 wrote: in itself make a juror partial. (2d) 279 the Ontario Court of

6 In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence. Again, we respectfully quote from Seaton, J.A., in R. v. Makow, supra, at pp.518-9 C.C.C., p.94 C.R.N.S.: In selecting jurors we do not guarantee that they will have any particular attributes. We take 12 people from the street, with their virtues and their blemishes. We do it with the justifiable expectation that the blemishes of one will be more than compensated for by the virtues of the others. By our present methods we obtain a jury of 12 independent, conscientious people of varying intelligence and capacity. Will we get better jurors if they are cross-examined to ensure that they have no views on the subject and have not heard the matter? I think not. The suggestion that a juror might have read about the case seems to me quite unimportant. If knowledge of a case is a step towards a finding of lack of indifference, it is a very short step indeed. The suggestion that a juror who knew of one of the parties or had heard of the case would thereby be incapacitated seems to me not to give sufficient recognition to the fact that day in and day out jurors are deciding cases fairly and impartially and with sophistication. There might have been a day when illiterate jurors could only be trusted if they were without outside knowledge and were directed meticulously respecting each halting step their limited reasoning power might allow. But that day is gone. Some rules that arose in that period will persist but there is no need to introduce new practices based on the premise that jurors are not to be trusted.

7 Today's jurors are intelligent people, well able to put from their minds something they heard elsewhere. While engaged in a tense jury trial they will not hark back to something heard elsewhere that they have been told to disregard. I have not heard it suggested that a trial Judge who has heard about a case is not competent to decide it and I do not think that his capacity to reject what he heard before is unique. Jurors, too, are able to decide upon the evidence. In Regina v. Bryant 54 C.C.C. (2d) 54 (Ont.H.C.), Mr. Justice Henry stressed the ability of the jurors to put aside extraneous considerations and try the case based on the evidence and the trial judge's directions. At page 60 he wrote: The strength of the jury system is the ability of jurors under proper instructions from the trial Judge to rise to the occasion and consciously to assume the role of Judges and to put aside their knowledge and prejudices, if any, and try the charge on the evidence presented to them at trial. I am confident that in this case a jury may be empanelled that will conduct themselves accordingly, given the usual safeguards of challenges in the process of their selection and the instructions of the trial Judge. These safeguards are supplemented by the rule of unanimity and the oath which is taken by each juror at the outset of trial. In this respect the author of the "Royal Commission Report on Inguiry into Civil Rights", the Honourable J. C. McRuer (Report No. I, Vol. 2 ) says at p.754: When jurors are selected they are required to take an oath "to give a true verdict according to the evidence". Judges in charging juries invariably caution them to put out of their mind anything they have learned about the case, except that which is revealed in the evidence. Nothing has been brought to the attention of this Commission to suggest that jurors do not take their oaths seriously. If jurors cannot be depended upon to adhere to their oaths as jurymen, the whole jury system loses its fundamental strength as a protection of the rights of the individual.

8 The requirement that the verdict of a jury must be unanimous constitutes a very real safeguard against bias or prejudice. There may be some risk that one or two jurors may allow their preconceived notions to deflect them from the requirements of their oaths as jurymen, but that twelve jurors will all be derelict to the sanctity of their oath is very remote. In United states of America v. Morales, 815 F 2d 725 (1987), the United States Court of Appeal adopted the same approach. At page 732 the Court wrote: The sixth amendment to the United States Constitution guarantees a criminal defendant the right to be tried "by a panel of impartial, 'indifferent' jurors." Irving v. Dowd, 366 U.S. 717,722, 81 S.Ct., 1639, 1642, 6 L.Ed. 2d 751 (1961). This standard, however, does not require that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. In Regina v. Keegstra, (1991) 63 C.C.C. (3d) 110, the Alberta Court of Appeal, at page 114 wrote: In our view, the learned trial judge correctly charged himself when he said this: From these cases, I extract the principles, first, the jurors will be presumed to act on their oath to give a true verdict, and, therefore, it should not be subjected unnecessarily to inquisitions on a simple speculation or a mere chance that they Inay be -- or, may not be indifferent. Secondly, that

QUESTIONING: 9 the modern juror will quite possibly have some preconceived ideas. I would add, quite likely will have some preconceived ideas because we live in a literate society. People read. They read newspapers. They watch television. So it's likely that they will have preconceived ideas about a particular accused's guilt or innocence. But given the sophistication, education, and intelligence of most Canadians, they will respond to the requirement of the law and directions of the Trial Judge, and obey their oath, notwithstanding any previously formed opinions. Third, the strength of the jury system is actually found in what many perceive to be its weakness. Namely, its diversity and the individual imperfections and qualities of its members. That is why we choose 12, rather than one or two jurors to try the case. The trial judge should screen the proposed questions to be asked the prospective jurors by counsel and may ask the prospective juror being challenged questions as well. 8 As indicated earlier the questioning of the prospective juror has a very limited purpose. In Regina v. Bryant, supra, the accused was a member of a notorious motorcycle gang charged with a criminal offence. The charge generated extensive publicity and the accused sought a change of venue based on: The real issue in the case before me is that it, in effect, raises the question of what is generally called "guilt by association". That is that his very membership in the motorcycle club will automatically place in the mind of prospective jurors a prejudice against him at his trial. In my opinion, that is a matter that ought properly to be left to the trial Judge to lay to rest by a firm instruction to the jury, and by the invoking of the safeguards available in a criminal trial to achieve to the extent possible the empanelling of an impartial jury. 8Regina v. Guerin & Pimpare 13 C.C.C. (3d) 331 (Que.C.A.) at page 245; Regina v. Elliot 12 C.C.C. (2d) 482 (Ont. H.C.J.).

10 The application for a change of venue was denied. However, the Court did allow the accused to challenge prospective jurors for cause and to put the following questions to them: \ 1. Have you read newspaper articles or heard radio or television items or reports about bikers or motorcycle groups such as the Satan's Choice? 2. Have you ever discussed with friends, associates or family how the police or the courts should deal with members of motorcycle gangs? 3. Do you hold any opinion as to how members of motorcycle gangs such as the Satan's Choice should be dealt with by the police or the courts? If so, what is that opinion? 4. If the accused is shown by the evidence to be a member of the Satan's Choice Motorcycle Club, do you still believe that he is entitled to as fair a trial as any citizen? 5. Would knowledge that the accused man is a member of the Satan's Choice Motorcycle Club affect your ability to give him a fair and impartial hearing and to give a true verdict on the evidence you will hear at trial? More recently the Ontario (Oct. 22/93) unreported, permitted to ask potential by racial bias. Court of Appeal in the Queen v. Parks held that a black accused should be jurors if their impartiality was tainted CONCLUSION: In summary, it would appear that counsel should be vigilant in considering these issues when electing a jury trial in a notorious case. Our courts seem to be amenable to putting questions to the jurors in the appropriate case as was recently done in The Queen v. Sterling et ai, a case presently before the Court of Queen's Bench in Saskatoon. However, overriding consideration remains as outlined by the Ontario Court of Appeal in R. v. Hubbert, supra at p. 295 296.

11 It is not a ground of challenge for cause that a juror impartial when sworn may become affected by the nature of the evidence he will hear in the course of the trial. The jury system in this country operates on the fundamental assumption that a juror who is properly sworn is able to, and will, follow the direction of the Judge that he is to determine the guilt or innocence of the accused solely on the evidence that he has heard in Court free from extraneous considerations, and free from prejudice against, or favour for the accused. ACKNOWLEDGEMENTS: The writer wishes to acknowledge the generous assistance of Bruce Bauer, Saskatoon Prosecutions Office, in the preparation of this paper.

BIBLIOGRAPHY 1. Regina v. Brigham 44 C.C.C. (3d) 379 (Que.C.A.). 2. Regina v. Sherratt, (1991) 63 C.C.C. (3d) 193 (S.C.C.). 3. Queen v. Rosemary Kim Friebus (1991) 97 Sask. Reports. 4. Queen v. Zundel (1987) 31 C.C.C. (3d) 97. 5. R. v. Hubbert 29 CCC (2d) 279. 6. Regina v. Lesso & Jackson, 23 C.R.N.S. 17 (Qnt.H.C.J.). 7. Challenge to a Jury, 23 C.R.N.S. 57. 8. Regina v. Elliott, 12 ~.C.C. (2d) 482 (Qnt. H.C.J.). 9. Regina v. Makow, 20 C.C.C. (2d) 513 (B.C.C.A.). 10. Regina v. Bryant 54 C.C.C. (2d) 54 (Qnt.H.C.). 11. United states of America v. Morales, 815 F 2d 725 (1987). 12. Regina v. Keegstra, (1991) 63 C.C.C. (3d) 110. 13. Queen v. Parks (Qct. 22/93) unreported. )