International Law

Divisional Court Reverses Order Striking Jury Notice Where Plaintiff A Muslim

In Kayhan v. Greve, the Divisional Court (Cunningham A.C.J., Stayshyn and Kiteley JJ.) considered whether the fact that the plaintiff in a personal injury action was a Muslim woman of Afghani descent was a sufficient basis to warrant striking the defendant’s jury notice. It concluded that the trial judge (Mr. Justice Nick Borkovich) had erred in making such an order. In the course of its reasons, the Court also commented on the notion of introducing jury challenges for cause in civil cases.

The plaintiff’s motion to strike the jury notice had been brought at the opening of trial. It was supported by the affidavit of an associate lawyer at the firm that was representing the plaintiff. Justice Borkovich had ruled that the affidavit was inadmissible (it evidently contained a good deal of legal argument and opinions of various people about interaction between Muslims and the Western world). Accordingly, as the Divisional Court observed, Justice Borkovich’s order had been made without any evidence.

Nevertheless, Justice Borkovich had held he would “have to be a pretty dumb citizen to not think that there is a considerable amount of animosity against Muslims and Arabs that?s alive because of the circumstances that are happening in the world” and on that basis, took judicial notice ”that there is a strong risk, a reasonable apprehension that there could be bias on the part of the jury based on a system where there are no checks”.

The Divisional Court ruled that the trial judge was not entitled to take judicial notice of the possibility of jurors’ prejudice against this particular plaintiff, in the absence of any evidence: “It is not possible to recognize the ‘facts’ that he did, as being so notorious as to be beyond the scope of reasonable debate.  Furthermore, the behavioural link between the existence of a lack of impartiality and the inability to set those biases aside was not established.  Accordingly, the appeal must be allowed and the matter remitted to a different trial judge.”

Although the improper exercise of judicial notice was sufficient to decide the appeal, the Court also discussed whether the time had come (as the trial judge believed) to allow challenges of jurors for cause in civil cases. Two of the three members of the panel (Cunningham A.C.J. and Stayshyn J.) were of the view that no such reform should be introduced in Ontario and that allowing parties to challenge jurors for cause would only add to the cost and delays that already exist in the system.

Justice Kiteley, on the other hand, disagreed. She pointed to the fact that other provinces do have such a procedure and said that ” it is clear that this is a matter which needs a legislative response it is clear that this is a matter which needs a legislative response”.

Full post as published by Cavanagh Williams on July 18, 2008 (boomark / email).