IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140711

Docket: M093098

Registry:
Vancouver

Between:

Montana Yates, an
Infant, by her Litigation Guardian,

Briana Yates

Plaintiff

And

Wai Wong Toby Lee,
G.R. Auto Ltd., Shu-Hui Chiu,

Evan Yates and
Antonia Yates

Defendants

Before:
The Honourable Mr. Justice Pearlman

In Chambers

Oral Reasons for Judgment

Introduction

[1]            
The plaintiff, Montana Yates, applies for an order striking the jury
notice filed by the defendants on September 3, 2013, and for an order that the
trial of this action proceed by judge alone.

[2]            
Under Rule 12-6(5) of the Supreme Court Civil Rules, B.C. Reg.
168/2009, a party in a personal injury action may apply for an order that the
trial be heard without a jury on the following grounds:

(i) the issues require prolonged examination of documents or
accounts or scientific or local investigation that cannot be made conveniently
with a jury,

(ii) the issues are of an intricate or complex character, or

(iii) the extra time and cost
involved in requiring that the trial be heard by the court with a jury would be
disproportionate to the amount involved in the action.

Here, the
plaintiff does not rely upon Rule 12-6(5).  Rather, Ms. Montana invokes the
inherent jurisdiction of the court to ensure trial fairness. The plaintiff
contends that the Insurance Corporation of British Columbia (“ICBC”) by issuing
renewal notices to each of its policy holders that link the increase in basic
insurance rates to rising injury costs, has tainted the jury pool by creating a
real potential for bias against plaintiffs among jurors who are policy holders.

Issues

[3]            
The issues arising on this application are:

·      
Whether the inherent jurisdiction of the court to ensure trial
fairness empowers a chambers judge to strike a jury notice for juror
partiality, a ground not included in Rule 12-6(5);

·      
If so, whether the court should exercise that jurisdiction to
strike the jury notice in the circumstances of this case.

Facts

[4]            
In this action, the plaintiff claims damages for personal injuries she
suffered in a motor vehicle accident which occurred in November 1998, when she
was 6 years old.

[5]            
The action is set for trial on February 23, 2015.

[6]            
The defendants Wai Kwong Toby-Lee and G.R. Auto Ltd. have admitted liability
for the accident. The plaintiff has discontinued the action as against the
other defendants.

[7]            
The defendants Lee and G.R. Auto Body Ltd. are insured by ICBC.

[8]            
On September 3, 2013, the defendants filed a Notice Requiring Trial by Jury.

[9]            
On or about August 30, 2013, ICBC filed an application with the British
Columbia Utility Commission (“BCUC”) for an increase of 4.9% in its basic
insurance rates for universal compulsory automobile coverage.

[10]        
 When ICBC filed its application for the rate increase with BCUC, it
published a news release on its website.  ICBC stated that in addition to
seeking approval of a 4.9% increase to basic insurance rates, effective
November 1, 2013, it would also lower its optional rates by 4%, so as to lessen
the impact on customers.  ICBC estimated that for about 80% of its customers,
who purchase their entire personal vehicle insurance coverage from the
corporation, the average increase in premiums would be about $11.00 a year.

[11]        
Also on August 30, 2013, ICBC interim Chief Executive Officer Mark
Blucher published an open letter to customers on the corporation’s website to
explain why the corporation had applied to BCUC for a basic insurance rate
increase.  Mr. Blucher’s open letter included the following statements:

Our focus has long been on
offering our customers the best insurance coverage for the lowest possible cost
and over the past five years we’ve been able to put in place a number of
overall rate decreases. Things changed with the global economic downturn and a
sharp increase in our injury claims costs. As a result, in late 2011, we were
forced to apply for our first basic rate increase in five years.

Since then, our bodily injury
claims costs, which cover payouts for pain and suffering, future care and loss
of wages, continued on a worryingly sharp upward trend – totalling $1.9 billion
in 2012 alone, up by $165 million from the previous year and more than $400
million from just five years ago.

The rising number and cost of
injury claims is commonly the biggest single factor driving up rates for all
auto insurers across North America and beyond.

There are various factors
contributing to the increasing number of injury claims, including more crashes
as a result of drivers being distracted behind the wheel by their smartphones,
more pedestrians and cyclists on the road and more injury claims resulting from
small crashes.

There
are also various factors contributing to the increasing cost of injury claims
we pay out but one particular contributing factor here in B.C. is an increase
in lawyer-represented claims and resulting higher legal and medical costs.

[12]        
Shortly after November 1, 2013, ICBC began including in the insurance
renewal notices sent to each of its policy holders the following statement:

 ICBC Rate Changes:

Rising
injury costs mean we’re asking the British Columbia Utilities Commission (BCUC)
for 4.9% increase to Basic insurance rates. The BCUC has approved an interim
rate increase of 4.9% effective November 1, 2013 and will make a final decision
after a public hearing process. If a final approved rate differs from the
interim rate, your Basic premiums will be adjusted for the difference, subject
to the BCUC’s final Order. We are also able to reduce our optional rates to
lessen the impact on you.

[13]        
The renewal reminder also included a statement of the insured’s estimated
total premium for the year.

[14]        
On this application, the plaintiff relies solely on the renewal notices
sent to individual policy holders as constituting pre-trial misconduct on the
part of ICBC that would justify striking the jury notice. I have referred to
ICBC’s application to BCUC and the contemporaneous publications on its website only
to explain the context in which ICBC communicated with its individual policy holders
about the rate increase.

Positions of
the Parties

 The
Plaintiff

[15]        
The plaintiff argues that whether or not the information ICBC has
communicated to its policy holders about rising injury costs requiring an
increase in basic insurance rates is true, prospective jurors should not be encouraged
to believe that the damages they award may increase their own insurance
premiums.  The plaintiff asserts that by informing every policy holder at the
time they renew their insurance that rising injury costs are increasing the
premiums they pay, ICBC has created bias against the plaintiff among a
substantial majority of the pool of potential jurors in British Columbia who
are either insured by ICBC or share a household with someone who is insured by
ICBC.

[16]        
The plaintiff argues that if during a trial defence counsel told the
jury that their insurance rates would go up if they awarded substantial damages
for a plaintiff’s personal injuries, the plaintiff would have grounds for a
mistrial based on the defendants’ improper appeal to the jurors’
self-interest.  Counsel for the plaintiff submits that where ICBC has linked an
increase in premiums to rising injury costs through its pre-trial
communications with prospective jurors, the court should exercise its inherent
jurisdiction to ensure trial fairness by striking the jury notice before the
trial commences.

  The Defendants

[17]        
The defendants respond by submitting that they have a presumptive right
to a trial by jury and may only be deprived of that right before trial where a
judge is satisfied on the grounds set out in Rule 12-6(5) that the issues
cannot be fairly tried by a jury.

[18]        
The defendants also argue that the plaintiff has the right to challenge
potential jurors for cause under s. 20 of the Jury Act, R.S.B.C. 1996,
c. 242.  The defendants submit that any challenge for cause based on juror
partiality is properly brought at trial, under the statutory framework provided
by s. 20 of the Jury Act, and this court has no inherent jurisdiction to
strike a jury notice for potential juror partiality.

[19]        
Alternatively, if the court concludes this application is properly
before it, then the defendants say the court should exercise its discretion by
applying the same test as would apply on a challenge for cause under s. 20 of
the Jury Act. The defendants argue that the plaintiff bears the burden
of demonstrating a realistic potential that the jury pool may contain people
who are not impartial, in the sense that even after receiving proper
instructions from the trial judge they may not be able to set aside their bias
and decide the case fairly. The plaintiff must satisfy the court that
widespread bias exists in the community and that some jurors may be incapable, despite
trial safeguards, of setting aside their bias, and rendering an impartial
decision. The defendants say that the evidence filed by the plaintiff on this
application is insufficient to establish a realistic potential that some jurors
may not be able to function impartially.

[20]        
Accordingly, the defendants submit this application should be dismissed,
either on the basis that the court has no jurisdiction to hear it, or on the
ground that the plaintiff has failed to establish not only a realistic
potential for bias but also that the jurors would actually be biased if
challenged for cause.

DISCUSSION AND ANALYSIS

 Inherent Jurisdiction

[21]        
I will begin by considering the nature and limits of this Court’s
inherent jurisdiction.

[22]        
In Endean v. British Columbia, 2014 BCCA 61, the Court of Appeal,
in the course of determining that the Supreme Court’s inherent jurisdiction
does not permit the Court to conduct hearings outside British Columbia,
discussed the nature of inherent jurisdiction at paras. 58 and 59:

[58]  Canada’s provincial superior courts are the descendants
of the Royal Courts of Justice and inherited the powers and jurisdiction
exercised by superior, district or county courts at the time of Confederation: Ontario
v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, 363 D.L.R. (4th)
17 [Criminal Lawyers’ Association] at para. 17. In British Columbia,
Supreme Court judges “have all the powers, rights, incidents, privileges and
immunities of a judge of a superior court of record, and all other powers,
rights, incidents, privileges and immunities that on March 29, 1870, were
vested in the Chief Justice and the other justices of the court”: Supreme
Court Act, R.S.B.C. 1996, c. 443, s. 3(1). As noted above, those powers did
not give British Columbia judges the power to sit outside of their territorial
boundaries.

[59]  In Criminal Lawyers’ Association, Karakatsanis
J. described the nature of the court’s inherent jurisdiction at para. 19:

In MacMillan Bloedel, a majority of this Court
described the powers at the core of a superior court’s jurisdiction as
comprising “those powers which are essential to the administration of justice
and the maintenance of the rule of law” (para. 38), which define the court’s
“essential character” or “immanent attribute” (para. 30). The core is “a very
narrow one which includes only critically important jurisdictions which are
essential to the existence of a superior court of inherent jurisdiction and to
the preservation of its foundational role within our legal system” (Reference
re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186,
at para. 56, per Lamer C.J.).

[23]        
In Lines v. W&D Logging Co. Ltd., 2009 BCCA 107, the Court
provided the following summary of the scope of inherent jurisdiction at paras.
23 to 26:

[23] Inherent jurisdiction was described by
Chief Justice Freedman in Montreal Trust Co. v. Churchill Forest Industries
(Manitoba) Ltd. (1971), 21 D.L.R. (3d) 75 at 81, [1971] 4 W.W.R. 542
(Man. C.A.):

Inherent
jurisdiction is derived not from any statute or rule but from the very nature
of the court as a superior court of law: “The jurisdiction which is inherent in
a superior court of law is that which enables it to fulfil itself as a court of
law.” [I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Curr.
Legal Probs. 23 at 27] Inherent jurisdiction cannot, of course, be exercised so
as to conflict with a statute or rule. Moreover, because it is a special and
extraordinary power, it should be exercised only sparingly and in a clear case.

[24] The Manitoba Court of Appeal again
usefully added to the comment on inherent jurisdiction in Gillespie v.
Manitoba (Attorney General), 2000 MBCA 1, 185 D.L.R. (4th) 214:

[17] Although many
instances can be found in which the inherent jurisdiction of the Queen’s Bench
(or equivalent court in other jurisdictions) has been invoked to justify an
order, no satisfactory definition of inherent jurisdiction has been enunciated.
That is perhaps because inherent jurisdiction has never been conferred on a
court expressly, but exists as an auxiliary power to be invoked when necessary
for the court “to fulfil itself as a court of law” (to use the words of Master
I. H. Jacob, in his article “The Inherent Jurisdiction of the Court” (1970), 23
Curr. Legal Probs. 23 at p. 27).

[18] I have chosen
the word “auxiliary” to describe the power in order to emphasize the power’s
supportive role. “Auxiliary” is defined in Webster’s New World Dictionary,
Third College Edition, 1988, as “giving help or aid; assisting or
supporting” and as “acting in a subsidiary, or subordinate, capacity”. Inherent
power, as I understand it, is the power a judge may draw upon to assist or help
him or her in the exercise of the ordinary jurisdiction of the court. It does
not generally stand alone waiting to be exercised on the judge’s own initiative
without a suit or application or without parties.

[19] The auxiliary
nature of inherent jurisdiction is reflected in the words of Lord Morris of
Borth-y-Gest in Connelly v. Director of Public Prosecutions, [1964] A.C.
1254 (H.L.). In obiter comments, he said (at p. 1301):

There can be no
doubt that a court which is endowed with a particular jurisdiction has powers
which are necessary to enable it to act effectively within such jurisdiction. I
would regard them as powers which are inherent in its jurisdiction. A court
must enjoy such powers in order to enforce its rules of practice and to
suppress any abuses of its process and to defeat any attempted thwarting of its
process.

[25] I refer as well to Borkovic v.
Laurentian Bank of Canada, 2001 BCSC 337, wherein Mr. Justice Smith
endorsed this passage from Halsbury’s Laws of England at
para. 9:

[the Court] has an
inherent power to regulate its own procedure, save in so far as its procedure
has been laid down by the enacted law, and it cannot adopt a practice or
procedure inconsistent with rules laid down by statute or adopted by ancient
usage.

[26] In this
case there was, in my respectful view, no gap requiring invocation of inherent
jurisdiction. In January when the order was made it was open to Mr. Lines to
enter an order setting out the terms of the damages award as they were made
evident in December 2006, and then to seek to execute on that order. Had this
procedure been followed, the doors to appropriate responses would have opened,
such as an application under R. 42(21) for a stay or partial stay of
proceedings or an order for payment in instalments or, in the event an appeal
was filed of that order, an application for a stay of proceedings in this
Court. In following the procedure used in this case the trial judge
side-stepped the legislated process and relied instead upon an ad hoc solution
that was not necessary to achieve the result. This, in my respectful view, and
as seen in the passages referred to above, is not a proper exercise of inherent
jurisdiction.

[24]        
Finally, in Buchan v. Moss Management Inc., 2010 BCCA 393, the
Court, in the course of upholding the inherent jurisdiction of a trial judge to
determine special costs without a reference to the Registrar, addressed the
scope and limits of inherent jurisdiction at paras. 29 and 30:

[29] As can be seen from the cases above,
inherent jurisdiction is not a panacea for parties or the court. While it
presumptively exists to assist judges, it can be ousted by statute, or a judge
may refuse to exercise it when inappropriate. It is not appropriate to try to
define precisely either the scope or limitations of the court’s inherent
jurisdiction for all purposes, but with respect to the court’s inherent
jurisdiction to award costs, for that inherent jurisdiction to be ousted by
statute there must be “clear and precise statutory language”: R. v. Rose,
[1998] 3 S.C.R. 262 at para. 123; Ordon Estate v. Grail, [1998] 3 S.C.R.
437, at para. 44. Such language is normally employed where there is some clear
policy objective which would be done violence by the invocation of
jurisdiction. Some examples include the promotion of certainty in settlement
offers: Brown v. Lowe, 2002 BCCA 7, Cridge v. Harper Grey, 2005
BCCA 33; encouraging certainty and finality in custody matters: Perteet v.
British Columbia (Superintendent of Family and Child Service) (1988), 48
D.L.R. (4th) 469 (B.C.C.A) or protecting the privacy of personal information: Glover
v. Glover (No. 1) (1980), 113 D.L.R. (3d) 161. Rule 57(3) does not mandate
exclusive jurisdiction for a Registrar, nor can it be considered a complete
code, and, therefore it cannot oust the inherent jurisdiction of the court to
determine the amount of special costs.

[30] However,
even where inherent jurisdiction exists, it will be exercised sparingly,
particularly where concurrent authority has been provided to another decision
maker. Where a party has failed to avail itself of the proper procedures of the
court, a judge will not exercise inherent jurisdiction to skirt the rules. Such
was the case in Lines, where at para. 26 the court wrote: “when the
order [for damages] was made it was open to Mr. Lines to enter an order setting
out the terms of the damages award as they were made evident”. Instead, in
order for a court to invoke inherent jurisdiction, there must be some
extenuating circumstances which the Rules do not appear to contemplate.
Where no extenuating circumstances exist, inherent jurisdiction is not ousted –
there is simply no basis for a judge to employ the unusual power.

[25]        
From these decisions of the Court of Appeal, I take the following
principles concerning the scope and limits of this Court’s inherent
jurisdiction:

·      
Inherent jurisdiction is not a
panacea for parties or the court: Buchan at para. 29;

·      
Inherent jurisdiction is an
auxiliary power that a judge may draw upon to assist in the exercise of the
ordinary jurisdiction of the court: Lines at para. 24;

·      
While inherent jurisdiction
presumptively exists to assist judges, it can be ousted by statute, or a judge
may refuse to exercise it when inappropriate: Buchan at para. 29;

·      
A Judge of the Supreme Court
should not resort to inherent jurisdiction to grant orders where a party has
failed to avail him or herself of the Rules appropriate to their
situation: Buchan at para. 32, Lines at para. 26;

·      
Inherent jurisdiction is a special
and extraordinary power: Lines at para. 23;

·      
Even where inherent jurisdiction
exists, it should be exercised only sparingly and in a clear case, particularly
where concurrent authority has been provided to another decision-maker: Buchan
at para. 30; or where the exercise of inherent jurisdiction is contrary to
and inconsistent with the common law and ancient usage, and no authority has
been presented supporting a particular use: Endean at para. 61; and Lines at paras. 25, 27;

·      
For the Court to invoke its
inherent jurisdiction, there must be some extenuating circumstances which the Rules
do not appear to contemplate.  Where no extenuating circumstances exist, there
is no basis for a judge to employ the “unusual power” of inherent jurisdiction:
Buchan at para. 30.

[26]        
To these principles, I would add that inherent jurisdiction may also be
used, in addition to the powers conferred by the Rules of Court, to
prevent abuses of process and miscarriages of justice: see R & J Siever
Holdings Ltd. v. Moldenhauer, 2008 BCCA 59.

[27]        
In Oberreiter v. Akmali, 2009 BCCA 557, the Court of Appeal
discussed the inherent jurisdiction of the court to ensure trial fairness.  The
respondent had applied to the trial judge for a mistrial pursuant to the
court’s inherent jurisdiction to rectify an irregularity that went to the issue
of trial fairness.  After the jury had returned a verdict, and was discharged,
counsel for the respondent discovered that the jury had received a DVD
containing an additional 10 minutes of video surveillance of the plaintiff that
was not shown during the trial.

[28]        
The Court in Oberreiter at para. 24 held that a trial judge
retains the remedial jurisdiction to declare a mistrial on an issue that goes
to trial fairness after a jury verdict has been rendered and the jury has been discharged. 
A trial judge may exercise the court’s jurisdiction to ensure trial fairness
throughout the trial.

[29]        
Oberreiter is authority for the principle that a trial judge
retains remedial jurisdiction to declare a mistrial on an issue going to trial
fairness at any time before a judgment or order has been entered.  In my view, Oberreiter
provides no support for the plaintiff’s assertion that a chambers judge,
exercising the court’s inherent jurisdiction to ensure trial fairness, may
strike a jury notice before trial for juror partiality.

[30]        
The processes for striking a jury notice and for challenging jurors for
partiality are discrete.  Each is regulated by well-established procedures
under the court’s ordinary jurisdiction.  The source of that jurisdiction, in
the case of an application to strike a jury notice before trial, is Rule
12-6(5).  In the case of a challenge for bias or partiality, the source is s.
20 of the Jury Act.  In exercising that jurisdiction, this court is
required to apply the common law tests for juror partiality as stated by the
Supreme Court of Canada in R. v. Williams, [1998] 1 S.C.R. 1128, and R.
v. Find, [2001] 1 S.C.R. 863.

[31]        
Here, the plaintiff has not yet availed herself of the challenge for
cause process, and would prefer not to do so.  She invites the court to
exercise its inherent jurisdiction not to aid the exercise of its ordinary
powers, but rather to supplant the process for challenging for cause under s.
20 of the Jury Act. In the absence of extenuating circumstances not
contemplated by the court’s ordinary processes, there is no basis for a
chambers judge to employ the court’s extraordinary inherent power: Buchan
at para. 30.

  Striking a Jury Notice

[32]        
I turn now to the court’s jurisdiction to strike a jury notice.

[33]        
In a personal injury action, a jury trial is a presumptive right.  It is
only where the applicant has satisfied one or more of the exceptions set out in
Rule 12-6(5) [formerly Rule 39(27)] that the jury notice may be struck: Cochrane
v. Insurance Corp. of British Columbia, 2005 BCCA 399 at para. 22, citing Nichols
v. Gray (1978), 9 B.C.L.R. 5 (C.A.) at 10.

[34]        
In Cochrane, the Court analyzed the scope of a Chambers Judge’s
discretion to strike a jury notice under the former Rule 39(27) at para. 23:

[23] Rule 39(27) has been considered in a number of cases
including Nichols v. Gray, supra.  In that case, Craig J.A.
recounted some of the history of the subrule including the three grounds for
ordering a trial without a jury.  He held that under the subrule, a chambers
judge has a discretionary power to grant or refuse an order.  In the case
before the Court, he concluded there was no basis to interfere with the
discretionary decision that had been made.  In separate reasons concurring in
the result, Lambert J.A., in relation to the grounds for making an order that
the trial or part of it be heard without a jury, said (at 14):

On the basis of the evidence before him, the chambers judge
may find or decline to find:

1. That the
issues require prolonged examination of documents or accounts,

2.  That the
issues require a scientific or local investigation, or

3.  That the
issues are of an intricate or complex character.

When he makes those findings he
is not, at that stage, exercising a discretion, but, rather, making findings of
fact on the basis of evidence.  If, after considering the evidence, he does not
make one of those findings, then there is no ground for granting the order. 
However, if the evidence is such that one or more of those findings of fact is
made, or should be made, then the judge is required to exercise the
discretionary jurisdiction contemplated by the subrule.

[35]        
In MacPherson v. Czaban, 2002 BCCA 518 at paras. 11 and 20, the
Court held that the discretion of a chambers judge on an application to strike
a jury notice had been affirmed in Nichols v. Gray.  In order for a
chambers judge to strike a jury notice, he or she must exercise discretion on a
principled basis, pursuant to Rule 12-6(5), giving sufficient weight to the
relevant considerations: Wallman v. Gill, 2013 BCCA 409 at para. 7 and MacPherson
at para. 20.

[36]        
The plaintiff referred to Madzar v. Sullivan, 2013 BCSC 819,
where Madam Justice Fenlon, at paras. 90-92, in granting the defendant’s
application to strike the plaintiff’s jury notice under Rule 12-6(5) also
relied upon the court’s inherent jurisdiction to ensure a fair trial.  In doing
so, Fenlon J. took into consideration the risk that the plaintiff, who was
unrepresented, and had previously made intemperate remarks about the defendant
and his lawyers, might say things about the defendant or counsel that could
prejudice the jury.  The order striking the jury notice was affirmed by the
Court of Appeal in Madzar v. Sullivan, 2014 BCCA 139 at para. 19.  Madzar
is distinguishable from this case.  In Madzar, the Court, exercising
its ordinary jurisdiction under Rule 12-6(5) invoked its inherent jurisdiction
as an auxiliary power. Here, the plaintiff invites the Court to exercise its
inherent jurisdiction as a free-standing source of authority to strike a jury
notice on a ground unrelated to those enumerated in Rule 12-6(5).

[37]        
The court’s jurisdiction to strike a jury notice before trial is
prescribed by Rule 12-6(5).  In my view, the remedial jurisdiction to ensure
trial fairness does not endow a chambers judge with an inherent power to set
aside a jury notice for juror partiality.

[38]        
On this application, the plaintiff asserts there are no instructions a
trial judge could give that would correct the prejudice caused by ICBC’s
renewal notices.  In the absence of evidence of the impact of the renewal
notices on potential jurors, the plaintiff invites the court to find that the
notices, by linking an insurance rate increase to rising personal injury costs
have a realistic potential to prejudice prospective jurors, and to assume that
some of those jurors may not be able to set aside their prejudice, despite
appropriate instructions from the trial judge.

[39]        
As I will shortly discuss, for the court to make that assumption would
be contrary to the presumption on which our jury selection process is founded –
that properly instructed jurors are capable of setting their biases aside and
deciding cases impartially.

[40]        
The material filed by the plaintiff on this application does not
establish any extenuating circumstance or gap in the court’s ordinary processes
that would provide a basis for the court to invoke its inherent jurisdiction in
order to strike a jury notice for juror partiality.

 Challenging for
Juror Partiality

[41]        
Section 20 of the Jury Act provides the statutory framework for
challenges to the partiality of potential jurors by providing that each party
is entitled to challenge any of the jurors for cause.

[42]        
The Supreme Court of Canada stated the test for juror partiality in R.
v. Find, [2001] 1 S.C.R. 863.  In Find, the appellant, who was
charged with sexual assault of children, argued that the nature of the charges
against him gave rise to a realistic possibility that some prospective jurors
might be prejudiced against him.  Section 638(1)(b) of the Criminal Code,
R.S.C. 1985, c. C-46 permits challenges for cause where “a juror is not
indifferent between the Queen and the accused”.

[43]        
McLachlin C.J., writing for the Court, began her analysis at para. 26 by
observing that the Canadian system for selecting jurors starts from the
presumption that jurors are capable of setting aside their views and prejudices
and acting impartially between the prosecution and the accused upon proper
instruction by the trial judge on their duties.  As the Chief Justice
explained, that presumption is only displaced where potential bias is either
clear and obvious, which is addressed by judicial pre-screening, or where the
accused or prosecution shows reason to suspect that members of the jury array
may possess biases that cannot be set aside, which is addressed by the
challenge for cause process.

[44]        
In order to challenge for cause, the applicant must establish a
realistic potential that the jury pool may contain people who are not
impartial, in the sense that even upon proper instructions by the trial judge,
they may not be able to set aside their prejudice and decide the case fairly: Find
at para. 31.

[45]        
To establish a realistic potential for juror partiality, the applicant
must show (1) that a widespread bias exists in the community; and (2) that some
jurors may be incapable of setting aside this bias, despite trial safeguards,
to render an impartial decision: Find at para. 32.

[46]        
Bias must be determined in the context of the specific case.  The
applicant must show a bias that could, as a matter of logic and experience,
incline a juror to a certain party or conclusion in a manner that is unfair: Find
at para. 36.  The bias must also be “widespread”, which generally, will
require the applicant to establish that it is sufficiently pervasive in the
community to raise the possibility that it may be harboured by one or more
members of a representative jury pool: Find at para. 39.

[47]        
If widespread bias is shown, the applicant must still establish that
some jurors may be unable to set aside their bias despite the cleansing effect
of the judge’s instructions and the trial process: Find at para. 40.

[48]        
In Find, the appellant failed to establish that the offences with
which he was charged gave rise to a bias among perspective jurors that could
not be cleansed through trial safeguards.  His appeal was dismissed.

[49]        
In Moreland v. Sutherland, 1999 BCCA 586, the plaintiff appealed
the refusal of the trial judge to permit her to challenge jurors for cause
under s. 20 of the Jury Act, based on the public debate over no-fault
automobile insurance then underway.  ICBC had engaged in “an intense media
campaign” against “the high legal costs of the tort based system” and had
linked the increasing costs of insurance premiums to the size of damage awards.

[50]        
At trial, the plaintiff contended that jurors who were insured by ICBC
would find themselves in a conflict of interest as a result of ICBC’s public
relations campaign because they might believe that their participation in the
tort system would result in an increase in their own insurance premiums.

[51]        
The trial judge held that the material before him went no further than
to support that the proposition that there was a real possibility of bias amongst
the jury panel.  He held that if there was the widespread bias in the community
suggested by the plaintiff as a result of the publicity concerning no-fault
insurance, the evidence before him did not demonstrate a realistic possibility
that such bias would result in partiality of the jurors.  The trial judge
concluded that the suggestion that there was a realistic possibility of
partiality was outweighed by the presumption that the jurors would be true to
their oaths and other trial safeguards.

[52]        
After reviewing the leading authorities on challenge for cause,
including R. v. Sherratt, [1991] 1 S.C.R. 509, Donald J.A., in upholding
the decision of the trial judge, held at para. 38:

…I conclude on the authority of Sherratt
that it should be presumed, unless the contrary is shown, that any juror having
a bias against a motor vehicle accident claimant or her lawyers will be able to
put that bias aside, along with any self interest related to the jurors’
insurance costs and that the usual safeguards (the jurors’ oath, the judge’s
directions and jury deliberations) will have their desired effect.

[53]        
Here, at best, the material filed by the plaintiff goes no further than
establishing a possibility for bias on the part of some prospective jurors who
are  ICBC policyholders. In addition to relying on the renewal notice itself,
the plaintiff referred to Norsworthy v. Green, (30 May 2009), Victoria
Registry 06 2644 (B.C.S.C.).  There, Macaulay J. commented, obiter, that
every potential juror knows that ICBC funds damages awards, and that this
creates the risk that prospective jurors may believe the higher an award in a
given case, the greater the likelihood that their own insurance premiums may rise.
Macaulay J. observed that such thinking is improper, and would, if disclosed,
demonstrate bias. The plaintiff also filed newspaper and Internet articles
referring to Shariatamadari v. Ahmadi (4 May 2009), Vancouver Registry
S061583 (B.C.S.C.), where the trial judge’s investigation into complaints of
juror misconduct revealed that one of the jurors, during deliberations, had
expressed concern that a high damage award would drive up their own auto
insurance rates. This material falls well short of establishing that a real
potential exists in the circumstances of this case that some jurors may be
incapable of setting aside any prejudice they may have as a result of the
renewal notice, and deciding this case impartially, after receiving appropriate
instructions from the trial judge.

[54]        
Even if this court had the inherent jurisdiction to strike a jury notice
for juror partiality, I would decline to exercise that jurisdiction in the
circumstances of this case for the following reasons:

(a) the court is asked to find that
ICBC’s communication to its policy holders through the renewal notices
constitutes prejudicial pre-trial misconduct in the absence of an adequate
evidentiary foundation;

(b) to grant the relief sought
would skirt the challenge for cause process by having the court make a
determination of juror partiality without requiring the plaintiff to satisfy
both branches of the well-established test for juror partiality, and without
any inquiry to determine whether particular members of the juror pool selected
for this case could not serve impartially; and

(c) another decision-maker, the
trial judge, has all the powers necessary to ensure trial fairness.

[55]        
In Chester et al v. Everts, 2003 BCSC 1833, the plaintiffs
appealed from a decision of the Master dismissing their application to strike a
jury notice.  The plaintiffs contended that the existence of widespread racial bias
in the community either would yield, or raised a reasonable possibility of
yielding a racially biased jury. They also maintained that the cumulative
effect of their race and culture and the questions of causation and
pre-existing injuries raised issues of an “intricate or complex character” that
warranted striking the jury notice.

[56]        
The plaintiffs argued the Master erred when he held:

(a) Accepting, for the purposes of argument, that there is
widespread prejudice, that is not sufficient to support the motion to strike
the jury; and

(b) If the plaintiffs are correct
in their assertion of prejudice and resulting partiality on the part of the
prospective jurors, the trial judge, through the mechanism of the challenge for
cause, can ensure a fair trial by impartial jurors.

[57]        
In Chester, contrary to the plaintiffs’ assertion, there was no
evidence of widespread racial bias in the community.

[58]        
In dismissing the appeal from the Master, Wilson J. held, at paras.
10-14:

[10]  The plaintiffs’ arguments on the scope of review, and
their primary assignment of error to the Master, are both founded upon the
interpretation and application of R. v. Williams, on appeal from a trial
judge’s refusal to permit an aboriginal accused to challenge prospective jurors
for cause.

[11]  The plaintiffs have referred to a number of
observations in the opinion on the enduring problem of racial prejudice in the
administration of criminal justice.  What Williams decided was that if
an accused person establishes widespread racial prejudice in the community,
then the accused should be permitted to challenge prospective jurors for cause.

[12] Williams is not authority for the
proposition that widespread racial bias introduces a realistic possibility that
the jury will not be impartial. The presumption defined by the Supreme
Court of Canada in Williams is a presumption of impartiality.  That is clear
from paragraph 57:

 There is a presumption that a
jury pool is composed of persons who can serve impartially.  However, where the
accused establishes that there is a realistic potential for partiality, the
accused should be permitted to challenge prospective jurors for cause … 
Applying this rule to applications based on prejudice against persons of the
accused’s race, the judge should exercise his or her discretion to permit
challenges for cause if the accused establishes widespread racial prejudice in
the community.

[13] It follows, as a principle from Williams,
that the object of the challenge for cause procedure is to identify those
persons in the jury pool who cannot serve impartially.  That is how the
learned Master interpreted and applied the decision in Williams.

[14]  Two
conclusions follow.  First, the Master’s decision was interlocutory, on a
procedural matter only.  And, second, he did not err in law in his
interpretation and application of the Supreme Court of Canada decision in R.
v. Williams.

[Emphasis
added.]

[59]        
Chester provides further support for my conclusion that the
plaintiff’s assertion of juror partiality is a matter which, if pursued, must be
raised before the trial judge for determination through the challenge for cause
process, rather than before a chambers judge who has neither the inherent jurisdiction
to grant the relief sought, nor an adequate evidentiary foundation on which to
do so.

CONCLUSION

[60]        
The application of the plaintiff to strike the Notice Requiring Trial by
Jury filed by the defendants, and for an order that the trial of this action
proceed by judge alone, is dismissed.

“PEARLMAN J.”