Perceived Partiality: R v Biddle and the Optics of Jury Representation

Geeta Mudhar
Dec 20
3 min read

In London, the Old Bailey courthouse peeks through city streets. Text reflects the title and author of the article.

At the heart of R v Biddle, a 1995 Supreme Court of Canada case, is the issue of impartiality in the process of jury selection.¹ In 1988, Eric Ralph Biddle was convicted of two separate attacks on women. He appealed the decision, arguing that the jury in his initial trial had a reasonable apprehension of bias which was insidiously created by the Crown.²

History of no-cause challenges for juries

Under the now-repealed s.634 provision of the Criminal Code, the Crown was afforded several no-cause challenges during the jury selection process and used them to craft an all-female jury.³ ⁴ The Biddle jurisprudence itself does not discuss why an all-female jury might create an unreasonable bias, but it appears Biddle believed the jurors’ gender would render them unable to fulfil their fact-finding role in the objective and impartial manner they were committed to.

In 1992, the SCC heard R v Bain, where they found the Crown’s jury-challenge power under s.634 was unconstitutional. They recognized that the provision could create situations where partial, biased juries could be crafted, thereby breaching an accused’s s.11(d) Charter right to a fair hearing by an impartial jury.⁵ ⁶

Three years later, during Biddle’s appeal, six out of nine of the Supreme Court judges who tried his case found it unnecessary to discuss whether the Crown abused its s.634 power in Biddle’s initial trial because the provision was now obsolete.⁷ While the Crown could never craft a jury in this manner again, McLachlin and L’Heureux-Dubé took Biddle as an opportunity to delve into the relationship between representation and impartiality.⁸

Supreme Court of Canada debates representation and impartiality

McLachlin raised that representation is not a necessary component of impartiality because it is impossible for a jury to comprehensively represent the Canadian population. The goal of jury selection, rather, is to craft a jury that a reasonable observer would perceive as impartial.

A representative jury, then, creates the perception of greater impartiality to the reasonable observer.⁹ To this extent, Biddle perceived the lack of male representation on the jury to impact the impartiality of the jury’s fact-finding ability. However, I argue that Biddle is not a reasonable observer, as per his attacks on women.

L’Heureux-Dubé agreed with McLachlin, stating that the all-female jury did not raise a reasonable apprehension of bias. Further, for anyone to find bias within the jury, they would have to “assume stereotypical reactions based on gender” which is “dangerous and contrary to [Canadian] concepts of equality and individuality.”¹⁰ This echoes McLachlin’s point and poses an important question: what could a reasonable person find to critique about an all-female jury that was otherwise fit to decide upon the issues raised?¹¹

Real or perceived impartiality?

If I were to find myself in front of a jury, I too would be comforted by seeing myself represented in the jury booth. However, I understand that someone who looks like me is not necessarily more likely to think like me or empathize with my position. For this reason, I ultimately agree with McLachlin that representation tilts the scales only towards a perceived impartiality, which, while fundamental to citizens’ confidence in the criminal justice system, does not equate to genuine impartiality.

Shared-life experiences between people with the same perceived characteristics can and will manifest in contradictory opinions and biases. Ultimately, revoking the Crown’s s.634 right was an essential measure to protect not only the Charter rights of the accused, but also to preserve the public’s faith in the administration of justice through the perception of impartiality.