Criminal Law

OCA rules in favour of Presser's client

The Ontario Court of Appeal (OCA) has quashed a conviction and ordered a new trial for Toronto criminal lawyer Jill Presser’s client after the panel found that a jury foreman’s “demeaning” comments about homosexuals to a radio show reflected a bias that would affect his ability to decide fairly. Lawyers Weekly

In the decision, R. v. Dowholis, released Monday, the majority of the court concluded that the conduct of the juror “created a reasonable apprehension of bias such that a new trial should be ordered.”

Presser, principal at Presser Barristers, is pleased with the outcome for her client, who was convicted of three counts of aggravated sexual assault and two counts of forcible confinement in 2013.

“I think the majority really has it right – these kinds of comments just aren’t OK in a system that is supposed to be fair,” she says.

“I think what is most important about this decision and what I’m most pleased with is that the majority has ruled that juror bias against LGBTQ Ontarians is just as wrongful as juror bias against Afro-Caribbean Canadians, Asian-Canadians or First Nations. The court is saying that homophobia is just as unacceptable as racism in the justice system and that’s a huge step forward.

"The court has elevated homophobia to the no-no list in the justice system and that is really significant."

The case grabbed headlines after a radio show broadcast in 2013 homographic comments about the sexual assault trial, which involved an accused who was a gay man. The jury foreman appeared twice on the Dean Blundell Show and discussed the case – once while the trial was underway and a second time when it had just finished.

The jury foreman, and the two hosts, made “derogatory comments about sexual activity between men,” derisive comments about the lifestyle of the participants in the trial, as well as discussions about the jury’s deliberations and the sentence likely to be imposed, says the court file.

Presser, who represented the appellant before the OCA, argued the juror’s conduct was homophobic, demonstrated actual bias and created a reasonable apprehension of bias so that a new trial was necessary.

The majority of the panel agreed, saying the tone and content of the on-air conversations reveal prejudicial attitudes towards the lifestyles of gay men.

“Juror #12, the foreperson, ignored the judge’s instructions not to discuss the case or the jury’s deliberations; he publicly demeaned and ridiculed the appellant and the complainants; he condemned their lifestyle and sexual practices – the events at the core of the appellant’s trial – he mocked the juror’s oath; and, in all, he demonstrated a lack respect for the participants and justice system,” wrote Justice Mary Lou Benotto for the majority.

Benotto described the juror’s comments as promoting – and risk normalizing – negative stereotyping.

“They are demeaning, malicious, hostile and encourage prejudice," she wrote.

In a dissenting opinion, Justice David H. Doherty allowed the appeal, but on different grounds. He did not agree that the conduct of the juror required the convictions be quashed, but said the trial judge’s instructions to the jury failed to adequately caution the jury against the use of evidence and factual findings relevant to the counts involving one complainant in its consideration of the counts involving the other three complainants.

Presser says she agrees with Justice Benotto's comments that such comments made by the juror have no place in a fair and impartial justice system.

“I think she's right. The focus shouldn't be on whether this particular juror actually was homophobic or what the entertainment value is for the radio broadcast," she says. "It's about the integrity of the justice system and the appearance of fairness in the justice system."

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