Accused charged with sexual assault. Defence application under s. 638(1)(b) to challenge potential jurors for cause on the basis of racial prejudice, as the accused was of East Indian descent.

Held: Leave granted to challenge potential jurors for cause.

In considering an application for challenge on the basis of racial prejudice, the first ‘attitudinal’ step assesses whether a widespread prejudice exists in the community. Spence, 2005 SCC 71 recognized prejudice against individuals of East Indian decent, and held that “racial prejudice against visible minorities is so notorious and indisputable that its existence will be admitted without any need for evidence”. On the second, behavioural stage, there was a risk that jurors might be unable to set aside their bias to give an impartial decision: “[d]espite the presumption of impartiality, in cases of racial bias, that impartiality has been refuted by previous case law from the Supreme Court of Canada.” Applicant established a realistic potential that jurors might not be impartial.

T. Roulston – Defence Counsel

Impaired driving trial for charges under ss. 253(1)(a) and (b) CC. Readings of 110mg% and 100mg% were noted on the Certificate of Analysis, but investigating officer testified that the technician advised, and he recorded in his notes, readings of 120mg% and 100mg%.

Held: Acquittal.

“The evidence in the present case shows that the instrument may not have been operated properly, in the sense that the readings were not properly recorded. This is obviously a vital part of the operation of the unit, and of the overall testing process.” Crown thus lost the benefit of the presumptions under s. 258 CC: per St-Onge Lamoureux, 2012 SCC 57, “once an accused has shown that the breath readings may be inaccurate, it is not necessary for him to also show that he was in fact under the legal limit. It falls on the Crown to adduce the necessary evidence ‘to counter the attempt to rebut the presumption of accuracy.’” Technician not called, thus Crown did not establish beyond a reasonable doubt that the blood alcohol content exceeded the limit.

T. Dunlap – Defence Counsel