R. v. Smith

R. v. Smith

Given the pre-existing finding of an 'air of reality', the consent of defence counsel to the judge posing the questions, and the panel circumstances (remarks of apparent racial character), the trial judge was entitled to pose the agreed challenge-for-cause questions to the panel including a question on racial bias, provided the judge does so without usurping the statutory role of the two triers and subject to the parties' procedural rights.

Citation
2003 NSSC 125
Parties
Crown: Her Majesty the Queen; Accused: Neil William Smith; Accused: Wayne Alexander James
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
16 June 2003
Procedural Posture
Criminal Murder and Conspiracy / Jury Selection — Challenge for Cause Hearing
Outcome
Court allowed judge to pose the agreed questions to the jury panel and to include a question regarding racial bias; defence retains the right to advance challenges for cause and peremptory challenges.
Legal Topics
Challenge for Cause, Partiality, Pre Trial Publicity, Racial Bias in Jury Selection, Judicial Role in Juror Examination, Charter S.24 Exclusion Application
Source Language
English
Criminal Law Constitutional Law Jury Law Evidence Challenge for Cause Partiality Pre Trial Publicity Racial Bias in Jury Selection +2 more

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Parties

Her Majesty the Queen

Crown

Neil William Smith

Accused

Wayne Alexander James

Accused

Procedural Posture

Criminal Murder and Conspiracy / Jury Selection — Challenge for Cause Hearing

Legal Issues

  1. 1 Whether there is an 'air of reality' or realistic potential of partiality justifying challenges for cause including on basis of race
  2. 2 Whether the trial judge may personally pose agreed questions to the jury panel without usurping the statutory trier-of-partiality function
  3. 3 Distinction between offence-based bias and racial prejudice and their susceptibility to cleansing by trial safeguards

Ratio Decidendi

Given the pre-existing finding of an 'air of reality', the consent of defence counsel to the judge posing the questions, and the panel circumstances (remarks of apparent racial character), the trial judge was entitled to pose the agreed challenge-for-cause questions to the panel including a question on racial bias, provided the judge does so without usurping the statutory role of the two triers and subject to the parties' procedural rights.

Court Disposition

Court allowed judge to pose the agreed questions to the jury panel and to include a question regarding racial bias; defence retains the right to advance challenges for cause and peremptory challenges.

Orders

  • Trial judge will pose to panel members the previously agreed questions and an additional question on racial bias
  • Defence retains the right to challenge prospective jurors for cause and to exercise peremptory challenges thereafter