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Criminal Law - Appeals - Grounds - Bias

Thursday, November 17, 2016 @ 7:00 PM  

Appeal by the accused from convictions of three counts of aggravated sexual assault and two counts of forcible confinement. The accused was an HIV-positive man with an undetectable viral load. He met the four male complainants at a bathhouse in Toronto. They smoked crystal meth together and returned to the accused’s home. The accused engaged in consensual sexual activity with two of the complainants and attempted sexual activity with the other two complainants, whom he admitted restraining until they asked to be released. Trial counsel requested and was granted the right to challenge prospective jurors for cause on the basis of potential bias against homosexuals. Although told that members of the jury could not discuss the case, the jury foreperson twice appeared on a radio show and discussed the case, once during trial and once after the trial had concluded. All of the participants in the radio show made derogatory comments about sexual activity between men and laughed and mocked the juror’s oath. The accused sought to appeal his convictions on the grounds that the trial judge should not have allowed the admission of evidence from his doctor and erred in not providing the jury with instructions on similar fact reasoning, discreditable conduct evidence, or a Vetrovec warning, and that trial fairness or the appearance of fairness was undermined by the conduct of the jury foreperson, who participated in radio broadcasts discussing the trial.

HELD: Appeal allowed. The tone and the content of the jury foreperson’s conversations with the radio hosts revealed prejudicial attitudes towards the lifestyles of some gay men. The issue of prejudice against men was a concern from the outset of trial. The juror’s words showed that many of the trial safeguards were not effective. The challenge for cause process, the oath and the trial judge’s explicit instructions were ignored. The impression created by the juror’s conduct went beyond a bias against gay men. A reasonable observer would have the impression that the juror lacked respect for the justice system, which went directly to the perception of trial fairness.