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| John L. Hill |
A six-day jury trial was held in Thunder Bay in 2018. Necan is Indigenous, but there was no challenge of jurors focusing on any a juror’s ability to judge evidence without bias, prejudice or partiality as set out in R. v. Parks, (1993) 15 O.R. (3d) 324 (C.A.), or R. v. Campbell, (1999) 139 C.C.C. (3d) 258 (C.XA.). The defence was simple: A drunken Necan could not form an intent to murder and should be found guilty of manslaughter.
During the trial, Necan said he had an opioid addiction and was using alcohol as a replacement at the time of Gerard’s death. Alcohol was cheaper, and he knew he could quit. Necan described waking up at his ex-spouse’s apartment, going to the LCBO, purchasing a 26-ounce bottle of Jack Daniel’s whiskey, a few tall cans of beer and stealing a small bottle of Fireball cinnamon whiskey. He met up with a man with whom he shared the alcohol, and the two returned to the apartment building where Gerard resided, but Necan had no memory of anything after that until waking up in a police cell. In his closing statement, the Thunder Bay Chronicle-Journal quoted Necan’s lawyer, Neil McCartney, as saying that Necan had no motive for the crime. He had never met Gerard before that day, and McCartney said there isn’t a hint of evidence as to what caused Necan to “flip out,” calling the act a “senseless, brainless, drunken freakout.” McCartney also argued that Necan had consumed the equivalent of at least 18 drinks between noon and 3 p.m. the day of the attack, and he didn’t have anything to eat.
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The Ontario Court of Appeal held that jury charges seldom reach perfection. The overarching question was whether the jury was adequately equipped to judge the facts of the case. To do this, an appellate court must adopt a functional approach and consider the jury charge as a whole against the backdrop of the entire trial record, the evidence called, and the positions taken by the parties (R. v. Abdullahi, 2023 SCC 19).
In analyzing the trial record, the appeal court found that the parties had reviewed the judge’s charge before delivery. It contained the usual warning against a verdict being swayed due to “sympathy, prejudice or fear.” But on appeal, the defence argued that such caution ought to be re-enforced by adding wording that “Nicholas Necan is a First Nations Man.” The trial judge had determined that it was obvious that Necan was Indigenous and the traditional warning would suffice.
The appeal court was asked to find that unless jurors were specifically reminded of his Indigenous status, there is a fear that they could unconsciously adopt the racist “firewater myth” that Indigenous people are incapable of drinking in moderation and become violent, aggressive and foolish when intoxicated. The Supreme Court of Canada has accepted that racial prejudice against the accused may be detrimental to an accused in a variety of ways. The link between prejudice and verdict is most apparent where there is an “interracial element” to the crime or a perceived link between the accused’s race and the particular crime. Racial prejudice may also play a role in other, less obvious ways, such as how jurors assess the credibility of the accused (R. v. Williams, [1998] 1 S.C.R. 1128).
This proposition is now more relevant since decisions in R. v. Barton, 2019 SCC 33, and R. v. Chouhan, 2021 SCC 26, were released after Necan’s trial. These cases emphasized the need to alert jurors of the potential to allow bias to affect their deliberations. Jurors should use “self-consciousness and introspection” to clear their minds of bias.
However, these decisions target conscious bias. The appeal court in Necan addressed this: “It is now recognized that even jurors without conscious biases may hold unconscious biases that can infect their deliberations. … The fact is that even well-meaning people can unwittingly carry biases, springing from conscious and unconscious beliefs, assumptions and perceptions about the traits associated with a particular group. Unconscious bias is particularly insidious because, by definition, it is concealed and can be directed at anything, including race, ethnicity, sexual orientation, religion, gender and much more.”
The presumption that jurors act as instructed prevailed. Although more could have been done, such as bringing a challenge for cause at the outset or having more direct instruction at the trial’s conclusion, the trial judge did not create reversible error. The appeal was dismissed.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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