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Ruling sends strong message on negative effect of juror bias

The Ontario Court of Appeal’s decision to order a retrial after a juror made disparaging remarks about the appellant’s sexuality reaffirms the long-standing principle that juror impartiality is crucial to the administration of justice, Toronto criminal lawyer Jill Presser tells Lawyers Weekly.

In a recent decision, a majority of the court ordered a retrial in R. v. Dowholis 2016 ONCA 801, after a juror, Derek Welsman, made inappropriate comments about the appellant, Joshua Dowholis, several of the complainants in the case and their homosexuality on a radio program while the trial was underway and soon after its conclusion. The appellant was convicted of three counts of aggravated sexual assault and two counts of forcible confinement in 2013, says the article. 

“The juror participated in public discussions that ridiculed the appellant and the complainants. He expressed disgust at their behaviour and lifestyles, particularly their sexual practices, drug use, and promiscuity,” wrote Justices Mary Lou Benotto and Michael Tulloch.

Presser, principal at Presser Barristers, counsel for Dowholis, tells Lawyers Weekly that the decision demonstrates that bias against members of the LGBTQ community is “just as wrongful” as bias toward any other minority group.

“I read the decision as saying that homophobia is just as unacceptable in the justice system as racism, and that’s a really important step forward,” says Presser.

“I think it’s a first in terms of a strong statement about how homophobia is not acceptable in the justice system.”

As Presser adds: “Where jurors appear to be partial or biased, we can’t have that; that has a negative effect on the integrity of the system and the… repute of the administration of justice generally.”

Although lawyers may challenge a juror for cause — and this mechanism was used to weed out potentially homophobic jurors in this case — Welsman passed the challenge, Presser tells Lawyers Weekly.

“The challenge for cause here didn’t do the trick,” she says.

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