Introduction
Fundamental to the criminal justice system is the right to a fair trial by a jury of one’s peers[1] who, in law, are presumed to be impartial. Arguably, there exists a prevailing presumption that appropriate judicial instructions and other procedural safeguards will be able to cure most instances of partiality in a prospective juror.
Unsurprisingly, lawyers and legal critics continue to debate whether these presumptions may be misguided, especially in relation to partiality that is rooted in a complex, unconscious and insidious bias. One that is linked to immutable human characteristics such as race, sexual orientation and gender identity. Hence the necessity for robust mechanisms that can neutralize such biases. The modified challenge for cause provisions[2] in the Canadian Criminal Code were recently endorsed by the Supreme Court of Canada in R v Chouhan[3] as one such vigorous mechanism that is capable of counteracting even the most systemic and subconscious prejudices.
For those who may not be familiar with the Canadian Criminal Law, section 638(1)(b) of the Code entitles a prosecutor or an accused to challenge the selection of a juror on the ground that the juror is not impartial. A successful challenge for cause application permits the successful party to pose questions designed to screen out unconscious biases in potential jurors “that are capable of unfairly affecting the outcome of the case.”[4]
In Chouan, the Supreme Court noted the “growth in the collective knowledge and understanding about the ways in which unconscious bias can affect juror partiality.”[5] Significantly, the Supreme Court recognized that “a wide range of [human] characteristics can create a risk of prejudice and discrimination and are the proper subject of questioning on a challenge for cause”[6]. Key among the characteristics listed were sexual orientation and gender expression.
Recently, the Supreme Court's obiter comments in Chouhan were put to the test. The Ontario Superior Court in R v K.P.[7] granted an application to challenge prospective jurors for cause on the ground that they may be biased against transgender individuals in the community of Cornwall.
The Transgender community’s newest advocate and the consummate ally
The lawyer behind the compelling application was Ontario’s very own Neha Chugh. Chugh, who practises
criminal, family and child protection law in Eastern Ontario, is no stranger to the spotlight or commendation. In less than 10 years Chugh established and developed the largest barrister practice in Cornwall. Her sound grasp of the law and commitment to legal aid and advocating for those who reside on the margins of society have earned her a reputation as a tenacious, yet compassionate lawyer to be reckoned with at the bar table. Imagine, immediately after the gavel came down in favour of the K.P. application, Chugh, who is passionate about mentorship and fellowship, campaigned and won a seat on the bench of the Law Society of Ontario - “I am proud to serve a predominantly rural community. As a South Asian member of a relatively small and homogenous bar, I have always felt great affinity for my clients from marginalized and equity seeking communities. At times, it seems that we gravitate towards one another.”
R v K.P: the undisputed facts and law, in brief
The accused (Chugh’s client) identifies as a trans woman. She stands charged with sexual assault. Her accuser identifies as a cisgender woman. It is alleged that the assault involved group sexual activity between both cisgender[8] and transgender[9] individuals.
To succeed in the application Chugh, on behalf of the accused, had to establish that a widespread bias exists in the community of Cornwall against transgender people and that some jurors may be incapable of setting aside this bias to render an impartial decision, despite trial safeguards. Consequently, Chugh had to establish that transphobia was “sufficiently pervasive” in Cornwall to raise the possibility that one or more jurors could be transphobic.
The Evidence
One could contend that the accused in this instance need only rely on judicial notice given the current tempestuous climate for the transgender community both locally and globally. Our neighbour to the south is facing a fresh wave of anti-trans legislation in Republican states. During the pandemic, the fundamentalist Christian movement in Canada came together to rally against 2S LGBTQ rights.”[10]. In 2022 HALCO[11] in coalition with the Canadian Bar Association, and the TRANSforming JUSTICE: Trans Legal Needs Assessment Ontario Research Team released a report which noted that trans people continue to experience discrimination, harassment and violence in many aspects of their lives and that these issues are intensified for trans individuals living in rural locations. While Cornwall boasts that it is the largest city in Eastern Ontario, relatively speaking it is more appropriately considered rural given that its population is just shy of 50,000.
Additionally, the Superior Court judge, in a concise decision, noted that “the burden on the party seeking to challenge for cause is not an onerous one and, in most cases, expert evidence will not be necessary.” However, after reviewing the court's decision in R v Lopez[12] Chugh took no chances and tendered the evidence of Elizabeth Quenville, President of Diversity Cornwall, a non-profit organization in Cornwall that has been active since 2016. Ms. Quenville’s heartfelt testimony focused on her direct involvement with Cornwall community members, community events, her history with Diversity Cornwall and various examples of the every-day discrimination faced by members of the transgender community. Chugh shared that Quenville spoke from her own personal experience, growing up as a lesbian in Cornwall and parenting a transgender child in Cornwall
In Lopez, the Alberta Crown brought a challenge for cause application because their witness was a transgender person. The Court denied the application primarily for the lack of local evidence of transphobia. According to Chugh “the Crown had relied on judicial notice and dated journal articles that cited Ontario data. My goal was to depart from this approach and to provide local examples of bias towards trans people.” Chugh immediately telephoned Quenville, her friend and colleague - “The meetings with her were eye opening. She provided me with so many salient examples of bias towards trans people in Cornwall and the surrounding jurisdictions.”
Chugh did have concerns that the Crown would argue that Quenville’s evidence was hearsay. However, given the breadth of Quenville’s experience, knowledge, and contributions, the evidence was all tendered as part of her affidavit. Instead, the Crown in its cross-examination. focused on minimizing the experiences of the transgender community by attempting to brand them as novel issues for which the Cornwall community was doing its best to compensate.
The Arguments
Asserting that Chouhan speaks to an expanded role for challenges for cause[13] in the wake of the abolition of peremptory challenges, Chugh argued that Quenville’s evidence established widespread transphobia in Cornwall. She further contended that in sexual assault cases “the evidence will necessarily involve references to the genitalia of the accused, who is pre-operative, and that the accused’s sexual orientation and gender identity “will be front and centre” as well as “graphic details” of sexual activity between cisgender and transgender individuals. In light of these givens, Chugh submitted that jurors who are transphobic will be more apt to conclude that “the Applicant is more likely to have committed the alleged sexual offence” because she is transgender.
The Crown argued that the evidence of transphobia in Cornwall was anecdotal and consequently not adequately widespread. Interestingly, the application was heard a few days after the Trans Day of Remembrance 2022, a day that honours the lives lost to transphobia. “It is hard to accept that the experiences of the 2SLGBTQ+ community are simply “anecdotal.” How can something be anecdotal if it is replicated not just within the community, but online, provincially, nationwide, globally? How can there be an internationally recognized Trans Day of Remembrance for lives lost to transphobia… if the experiences are anecdotal?” says Chugh.
Conclusion
In granting the application, the Court found that transphobia is as complex and insidious as racial prejudice[14] and therefore “less susceptible to the cleansing sought to be achieved by judicial instructions and other trial safeguards.”[15] One of the major access to justice issues[16] facing transgender individuals is their perception that the justice system is biased against them. This decision could help to restore their faith and trust in the administration of justice. As Chugh rightfully noted, citing the Supreme Court in R v Find[17], “what constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process ... What the law demands is not perfect justice, but fundamentally fair justice.”
[1] “The right to be tried by a jury of one’s peers is one of the cornerstones of our criminal justice system and is enshrined in ss. 11(d) and 11(f) the Charter.” R. v. Chouhan, Per Abella J. (dissenting in part)
[2] See Section 638(1). In 2019, Parliament, via Bill C-75, An Act to Amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, abolished peremptory challenges and modified challenges for cause, and vested trial judges with the power to stand aside prospective jurors to maintain public confidence in the administration of justice. In Chouhan (supra), the Supreme Court considered the constitutionality of the abolition of peremptory challenges on the basis that it infringed his right to a fair and public hearing before an independent and impartial jury under s. 11(d) of the Charter and his right to the benefit of trial by jury guaranteed by s. 11(f) of the Charter. That discussion required the court to consider the efficacy of the Challenge for Cause provisions.
[3] 2021 SCC 26 (“Chouhan”)
[4] R v K.P., 2023 ONSC 57 (3) (K.P.) at para 30
[7] 2023 ONSC 57 (3) (“K.P.”)
[8] A person whose gender identity corresponds with what is socially expected based on their sex assigned at birth (e.g., a person who was assigned male at birth and identifies as a man)
[9] A person whose gender identity does not correspond with what is socially expected based on their sex assigned at birth. It can be used as an umbrella term to refer to a range of gender identities and experiences.
[11] HIV & AIDS Legal Clinic Ontario
[13] R. v. K.P. 2023 ONSC 57 (3 (“K.P.”) at para 6
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