R. v. Spence (S.A.) (2005), 206 O.A.C. 150 (SCC)

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Temp. Cite: [2005] O.A.C. TBEd. DE.102

Her Majesty The Queen (appellant) v. Sean Spence (respondent) and African Canadian Legal Clinic (intervenor)

(30642; 2005 SCC 71; 2005 CSC 71)

Indexed As: R. v. Spence (S.A.)

Supreme Court of Canada

Major, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

December 2, 2005.


The accused was convicted of robbery, using an imitation firearm and wearing a disguise, in connection with the robbery of a pizza delivery person. He was sentenced to five years’ imprisonment after receiving one year’s credit for pre-trial custody. The accused appealed his conviction and sentence.

The Ontario Court of Appeal, Laskin, J.A., dissenting, in a decision reported at 191 O.A.C. 285, allowed the conviction appeal and ordered a new trial. The Crown appealed.

The Supreme Court of Canada allowed the appeal, set aside the decision of the Ontario Court of Appeal and restored the conviction. The case was to be remitted to the Ontario Court of Appeal to deal with the accused’s sentence appeal.

Criminal Law – Topic 4312

Procedure – Jury – General – Impartiality – The Supreme Court of Canada stated that the courts had acknowledged that racial prejudice against visible minorities was so notorious and indisputable that its existence would be admitted without any need of evidence – Judges had simply taken “judicial notice” of racial prejudice as a social fact not capable of reasonable dispute – It was not apparent, however, as an accused argued, that “a potential juror, seeing a victim of his or her own race, there might be that sympathy, natural sympathy, or tendency to favour someone of your own race, [whether] minorities or majorities” – Such a proposition appeared to go beyond the legitimate sphere of judicial notice – There “might” be the “natural sympathy” suggested by the accused, but there might not be – See paragraph 5.

Criminal Law – Topic 4312

Procedure – Jury – General – Impartiality – The Supreme Court of Canada stated that “[p]art of the legitimacy of the jury as an institution lies, as stated, in the diversity of the background, attitudes and life experiences of its members. An accused may more readily identify with this group of people who represent a cross-section of the community, and be more accepting of its verdict, than would be the case with a judge alone. At the same time, the courts recognize that racist prejudices are ‘corrosive’ of the required indifference, and a juror’s inability to put aside such attitudes is not an acceptable element of the permitted diversity …. The challenge for cause procedure is about the only tool available to an accused to root out and expose such racism where there is a ‘realistic potential’ of its existence. The benefits of its exercise, where warranted, are at least threefold. The procedure eliminates from the panel potential jurors who cannot, in good conscience and under oath, give a negative answer to the question. It also brings home to the other jurors the potentially insidious effect of racial stereotyping, and thirdly it provides the accused (and members of visible minorities generally) palpable assurance that the law takes seriously the overriding objective of empanelling an impartial jury….” – See paragraph 25.

Criminal Law – Topic 4312

Procedure – Jury – General – Impartiality – A Black accused was convicted of robbing an East Indian man – The trial judge permitted the accused to challenge jurors for cause on the basis of potential bias against the accused – However, the trial judge refused to extend the challenge for cause to include the interracial nature of the crime – On appeal, an intervenor argued that judicial notice should be taken that jurors could have a “natural sympathy” for victims of the same race – The Supreme Court of Canada reviewed the permissible scope of judicial notice – The court held that, while courts had taken notice of the widespread existence of racism, and the likelihood that anti-black racism was aggravated when the alleged victim was white, there was no similar consensus that “everybody knows” a juror of a particular race was likely to favour a complainant or witness of the same race, despite the trial safeguards and the trial judge’s instruction to the contrary – To take judicial notice of such facts would be dispositive of the appeal, yet they were neither notorious nor easily verified by reference to works of “indisputable accuracy” – See paragraphs 48 to 69.

Criminal Law – Topic 4312

Procedure – Jury – General – Impartiality – The accused was convicted of, inter alia, robbery – He had asked to challenge the jury for cause, based on the fact that he was black and the victim was East Indian -The accused argued, inter alia, that potential members of the jury who were East Indian, might feel a “natural sympathy” or empathy for a victim of the same race – The trial judge allowed the jury members to be canvassed on the basis that the accused was black, but would not allow a question addressing the interracial nature of the crime – The Supreme Court of Canada held that it was within the trial judge’s discretion to decline a challenge for cause targeting the “interracial element” of the crime – While the fact that the accused was black justified a challenge for cause on that basis, the additional fact that the victim was of East Indian origin did not compound the prejudice and therefore did not need to be the subject of a separate inquiry to potential jurors – See paragraph 78.

Criminal Law – Topic 4316

Procedure – Jury – General – Challenges for cause – [See second and fourth
Criminal Law – Topic 4312

Evidence – Topic 2200

Special modes of proof – Judicial notice – General principles – General – [See third
Criminal Law – Topic 4312

Evidence – Topic 2300

Special modes of proof – Judicial notice – Particular matters – Racism – [See first, third and fourth
Criminal Law – Topic 4312

Cases Noticed:

R. v. Parks (C.) (1993), 65 O.A.C. 122; 84 C.C.C.(3d) 353 (C.A.), refd to. [para. 1].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, refd to. [para. 5].

R. v. Koh (S.T.) et al. (1998), 116 O.A.C. 244; 131 C.C.C.(3d) 257 (C.A.), refd to. [para. 17].

R. v. Campbell (D.) (1999), 127 O.A.C. 95; 139 C.C.C.(3d) 258 (C.A.), refd to. [para. 18].

R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 Q.A.C. 161, refd to. [para. 21].

R. v. Hubbert, [1977] 2 S.C.R. 267; 15 N.R. 139, refd to. [para. 21].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 21].

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161; 3 W.A.C. 161, refd to. [para. 23].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 24].

R. v. Wilson (R.) (1996), 90 O.A.C. 386; 107 C.C.C.(3d) 86 (C.A.), refd to. [para. 24].

Reference Re Alberta Statutes, [1938] S.C.R. 100, refd to. [para. 49].

Arcade Amusements Inc. v. Montreal (City), [1985] 1 S.C.R. 368; 58 N.R. 339, refd to. [para. 49].

Tolley v. Fry, [1930] 1 K.B. 467 (C.A.), refd to. [para. 50].

Whirlpool et al. v. Camco Inc. et al., [2000] 2 S.C.R. 1067; 263 N.R. 88; 2000 SCC 67, refd to. [para. 50].

R. v. Parnell (S.D.) (1995), 80 O.A.C. 297; 98 C.C.C.(3d) 83 (C.A.), refd to. [para. 51].

Campbell v. Royal Bank of Canada, [1964] S.C.R. 85, refd to. [para. 51].

Clinton v. Jones (1997), 520 U.S. 681 (U.S.S.C.), refd to. [para. 51].

R. v. Zundel (1987), 18 O.A.C. 161; 31 C.C.C.(3d) 97 (C.A.), refd to. [para. 55].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 57].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 57].

R. v. Wells (J.W.), [2000] 1 S.C.R. 207; 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273; 2000 SCC 10, refd to. [para. 57].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 57].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [1999] N.R. Uned. 167; [1999] 3 S.C.R. 845, refd to. [para. 58].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 59].

R. v. Advance Cutting & Coring Ltd. et al., [2001] 3 S.C.R. 209; 276 N.R. 1; 2001 SCC 70, refd to. [para. 63].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 64].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 64].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 150 C.C.C.(3d) 1; 2000 SCC 69, refd to. [para. 64].

Hays v. Weiland (1918), 43 D.L.R. 137 (Ont. C.A.), refd to. [para. 65].

Reid v. Telegram Publishing Co., [1961] O.R. 418 (S.C.), refd to. [para. 65].

Drabinsky v. Maclean-Hunter Ltd. (1980), 28 O.R.(2d) 23 (H.C.), refd to. [para. 65].

McInnis v. University Students’ Council of University of Western Ontario (1984), 14 D.L.R.(4th) 126 (Ont. H.C.), leave to appeal refused (1984), 14 D.L.R.(4th) 127 (Ont. Div. Ct.), refd to. [para. 65].

Moysa v. Labour Relations Board (Alta.), Alberta Food and Commercial Workers, Local 401 and Hudson Bay Co., [1989] 1 S.C.R. 1572; 96 N.R. 70; 97 A.R. 368, refd to. [para. 65].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 68].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 68].

Symes v. Minister of National Revenue, [1993] 4 S.C.R. 695; 161 N.R. 243, refd to. [para. 68].

Waldick et al. v. Malcolm et al., [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241, refd to. [para. 68].

Stoffman et al. v. Vancouver General Hospital et al., [1990] 3 S.C.R. 483; 118 N.R. 241, refd to. [para. 68].

R. v. Penno, [1990] 2 S.C.R. 865; 115 N.R. 249; 42 O.A.C. 271, refd to. [para. 68].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 68].

Authors and Works Noticed:

Bagby, R. Michael, and Rector, Neil A., Prejudicial Attitudes in a Simulated Legal Context (1991), 11 Health L. Can. 94, generally [para. 76].

British Columbia, Report on the Cariboo-Chilcotin Justice Inquiry (1993), p. 11 [para. 30].

Canada, Multiculturalism and Citizenship, Eliminating Racial Discrimination in Canada (1989), pp. 7, 10 [para. 32].

Canada, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1996), p. 33 [para. 30].

Davis, Kenneth Culp, Administrative Law Treatise (2nd Ed. 1980), vol. 3, p. 139 [para. 59].

Donald Marshall, Jr., Prosecution Report – see Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution Report, Findings and Recommendations (1989).

Johnson, Sheri Lynn, Black Innocence and the White Jury (1984-85), 83 Mich. L. Rev. 1611, pp. 1634 [para. 39]; 1635 [para. 76].

Lewis, Stephen, Stephen Lewis Report on Race Relations in Ontario (1992), p. 2 [para. 32].

L’Heureux-Dubé, Claire, Re-examining the Doctrine of Judicial Notice in the Family Law Context (1994), 26 Ottawa L. Rev. 551, p. 556 [para. 57].

McCormick, Charles Tilford, Judicial Notice (1951-52), 5 Vand. L. Rev. 296, pp. 316 [para. 61]; 322 [para. 55].

Morgan, Edmund M., Judicial Notice (1943-44), 57 Harv. L. Rev. 269, generally [para. 54].

Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution, Findings and Recommendations (1989), vol. 1, pp. 151 [para. 73]; 162 [para. 30]; 184 [para. 73].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (2nd Ed. 1999), pp. 285 [para. 54]; 286 [paras. 58, 61].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 1055 [para. 54].

Thayer, James B., Judicial Notice and the Law of Evidence (1889-90), 3 Harv. L. Rev. 285, pp. 273 [para. 55]; 287, 288 [para. 50]; 305 [para. 49].

Wigmore, John Henry, Evidence in Trials at Common Law (Chadbourn Rev. 1981), vol. 9, p. 732 [para. 49].


Jennifer Woollcombe and Deborah L. Krick, for the appellant;

Christopher Hicks and Catriona Verner, for the respondent;

Marie Chen and Margaret Parsons, for the intervener.

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellant;

Hicks, Block, Adams, Toronto, Ontario, for the respondent;

African Canadian Legal Clinic, Toronto, Ontario, for the intervener.

This appeal was heard on June 9, 2005, by Major, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. The following decision of the court was delivered by Binnie, J., on December 2, 2005.


R. v. Spence (S.A.)

[2005] 3 SCR 458

Supreme Court of Canada
Reading Time:
41 minutes
Abella, Binnie, Charron, Deschamps, Fish, LeBel, Major 

Binnie, J.
: The administration of justice has faced up to the fact that racial prejudice and discrimination are intractable features of our society and must be squarely addressed in the selection of jurors. In furtherance of the guarantee of a “fair” hearing before an “independent and impartial tribunal” provided by s. 11(d) of the
Canadian Charter of Rights and Freedoms
, and despite a presumption of juror impartiality, the courts have in recent years expanded the use of the challenge for cause. Under this procedure, a potential jury member may be asked as a preliminary matter whether, taking into account the race of the accused, that individual, if sworn as a juror, would be “indifferent between the Queen and the accused” (
Criminal Code
, R.S.C. 1985, c. C-46, s. 638). This has led to broad acceptance of the

“Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is … black … and the deceased is a white man?”

(Approved in
R. v. Parks (C.)
(1993), 65 O.A.C. 122; 84 C.C.C.(3d) 353 (C.A.), at p. 359 [C.C.C.], per Doherty, J.A.)

In this case, both the complainant and the person accused of robbing him were members of visible minorities, the accused being black and the complainant being East Indian. The courts acknowledge that East Indians along with other visible minorities have been subject to widespread racial prejudice in Canada. The trial judge permitted the defence to challenge for cause on the basis of potential bias against a black accused, but refused to extend the challenge to include the race of the complainant, as he regarded the “interracial” element on the facts of this case to be irrelevant. The defence says it ought to have been allowed to ask:

“Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the accused person is a black man
charged with robbing an East Indian person
?” (Emphasis added)

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