R. v. Kokotailo

Parties

Procedural Posture

Criminal First Degree Murder Retrial / Pre Trial Conference on Application for Challenge for Cause Prior to Retrial

Legal Issues

1. 1 Whether publication of the accused's prior conviction creates a realistic potential for partiality in the jury pool
2. 2 Whether prospective jurors should be questioned individually and challenged for cause regarding awareness of the prior jury verdict
3. 3 Application of s. 638(1)(b) Criminal Code and related jurisprudence on the presumption of juror impartiality

Ratio Decidendi

Publication reporting the accused's prior conviction created a realistic potential for partiality that displaced the presumption of juror impartiality; accordingly the defence was entitled to have prospective jurors questioned and challenged for cause about their awareness of the prior verdict and its effect on their ability to be impartial.

Court Disposition

Defence application allowed.

Orders

• Permit prospective jurors to be challenged for cause by asking whether they are aware of the jury verdict in the first trial and, if so, whether that knowledge would affect their ability to be impartial and render a true verdict based solely on the evidence and law at the retrial