This week’s top three summaries: R v Sullivan, 2026 ABCA 140: #challenge for cause, R v Lekhraj, 2026 BCCA 175: accused #character, R v RN, 2026 ONCA 315: accused #fabrication

R v Sullivan, 2026 ABCA 140

[April 29, 2026] Jury Challenge for Cause: Attitudes towards Drug Addicts [Kevin Feehan, Alice Wooley, and Tamara Friesen JJ.A.]

AUTHOR’S NOTE: The standard for permitting a challenge for cause is low. In practice, however, courts often do not treat it that way unless there is already a recognized body of case law authorizing a particular line of questioning.

Here, the appellant sought to question prospective jurors about attitudes toward addiction because virtually all of the witnesses, as well as the accused, were living with addiction at the time of the alleged offence.

The governing test can be framed in either restrictive or expansive terms. On the restrictive side, there must be evidence of widespread bias within the community. On the expansive side, it need only be shown that “some jurors may be” incapable of setting aside those prejudicial attitudes despite the ordinary safeguards of the trial process. The standard is often described as requiring a “reasonable possibility of partiality” or “reasonable possibility of bias or prejudicial attitudes.”

Neither component of the test is precisely defined. “Widespread” does not refer to any measurable percentage of the population, and “some jurors” is similarly indeterminate. The inquiry is not intended to resemble a demographic survey. Nevertheless, trial judges frequently demand sociological or empirical evidence to support questions that could instead rest on common sense and judicial notice. This decision illustrates how ordinary human experience can suffice to establish the threshold.

The trial judge focused heavily on the absence of an immutable characteristic. The Court of Appeal rejected that limitation, emphasizing that the burden for establishing a realistic potential for juror partiality is “not onerous.” The Court confirmed that prejudice associated with drug use or addiction is capable of undermining juror impartiality and can therefore justify challenge-for-cause questioning.

Introduction

[1] On June 25, 2024, a jury found the appellant John Sullivan guilty of second degree murder. He appeals his conviction on the basis that the trial judge erred in principle by dismissing his application to challenge jurors for cause in relation to potential bias against drug users or addicts, and by failing to properly instruct the jury against biased or propensity reasoning.

[2] The appellant admitted killing the victim, Camille Houle, but claimed he did so in selfdefence after Mr. Houle attempted to inject him with a lethal dose of fentanyl. At the time of his death, Mr. Houle had significant levels of methamphetamine in his system. The appellant agreed he was “fairly sober” at the time he killed Mr. Houle, but testified he had consumed drugs earlier that day and was regularly using. He described himself as addicted to both fentanyl and methamphetamine at that time. The residence where the appellant killed Mr. Houle was occupied by people regularly consuming drugs, including heroin, methamphetamine and fentanyl.

[3] The appellant applied to challenge prospective jurors for cause in relation to potential bias against drug users or addicts, identifying the concern that jurors might believe “people aren’t as credible when they’re using drugs, and then they’re not as reliable … but also, that Mr. Sullivan would be more prone to violence because he is a drug user”. The trial judge refused the application in part because he held drug use is not an immutable personal characteristic. Even if it was, he reasoned, the evidence presented by the appellant did not establish “a widespread bias or antipathy against drug users”: R v Sullivan, 2024 ABKB 300 at paras 14-19 [Cause Decision].

[4] The trial judge advised he would give the jury “general anti-bias instructions”: Cause Decision at para 29 and Appendix “A”. Those instructions were provided during jury selection and at the outset of the trial. The anti-bias instructions did not mention either drug use or addiction.

[5] The trial judge did not repeat the anti-bias instructions in the final charge to the jury. Nor did he provide the jury with any specific guidance on permissible or impermissible uses of the drug use evidence. The final charge did not include any caution against propensity reasoning related to the appellant’s drug use – that is, against reasoning that the appellant was more likely to have committed murder because he was a drug user.

[6] The trial judge advised counsel prior to the final jury charge that he was going to “replicate” the anti-bias instructions he had earlier provided; however, those instructions were not included in any drafts or in the final jury charge.

[22] The jury convicted the appellant of second degree murder.

Analysis

[23] An assessment of whether a party ought to be permitted to challenge for cause focuses on juror impartiality: Criminal Code, RSC 1985, c C-46, s 638(1)(b). Partiality describes a predisposed state of mind inclining a juror prejudicially and unfairly toward a certain party or conclusion: Find at para 30. Potential juror prejudice may arise from a variety of causes. A juror may have “interest prejudice” arising from a “direct stake in the trial due to their relationship to the defendant, the victim, witnesses or outcome”. A juror may have “specific prejudice” arising from “attitudes and beliefs about the particular case” due to personal knowledge, pre-trial publicity or discussion. A juror may have “conformity prejudice” arising from “strong community feeling about a case coupled with an expectation as to the outcome”. And, importantly for this case, a juror may have “generic prejudice” arising from “stereotypical attitudes about the defendant, victims, witnesses or the nature of the crime itself”: Williams at para 10; see also R v Chouhan, 2021 SCC 26 at paras 36, 50 [Chouhan]; Find at para 37.[Emphasis by PJM]

[25] The focus in assessing an application to challenge prospective jurors for cause is on whether there is a realistic potential or possibility for partiality such that the presumption of juror impartiality is displaced: Williams at paras 13, 32. As a practical matter, establishing a realistic potential for juror partiality generally requires showing that a widespread bias exists in the community, and that some jurors may be incapable of setting aside that bias, despite trial safeguards, to render an impartial decision: Find at para 32. That the accused, the victim or other witnesses have particular immutable characteristics will inform that inquiry in appropriate cases, but the presence or absence of an immutable characteristic is not the point of the inquiry. A personal characteristic is not excluded from consideration just because it involves an element of personal choice or is otherwise not entirely beyond a person’s control: Whitehawk at para 75.[Emphasis by PJM]

[26] The trial judge thus erred in accepting the Crown’s submission that an immutable characteristic is a necessary precondition for permitting a challenge for cause, and in focusing the inquiry on that issue. The question that ought to have been considered was whether the circumstances, including the evidence provided by the appellant and the issues raised by the case, were such that, despite the presumption of impartiality and the safeguards of the trial process, there was a realistic possibility that some prospective jurors would not be impartial.

[28] The trial judge also erred in relying on a firm distinction between drug use and addiction in the circumstances. That distinction suggests methamphetamine, heroin and fentanyl are sometimes used casually and recreationally, which is doubtful in general and was not the case here: the appellant, victim and witnesses in this case used those drugs regularly and in conditions associated with addiction and social distress. Further, addiction explains the nature and extent of a person’s dependency on drugs, may be inferred from a person’s drug use, and may be apparent from other evidence in a trial record; however, it is not a behaviour that one person directly observes another engaging in. To the extent prejudice or bias exists in this context, it will ordinarily arise from a person’s observed behaviour – in this case, use of serious, illegal, life-disrupting drugs in conditions associated with a “drug lifestyle”. The fact of addiction may explain drug use, may be inferred from observations of the person engaging in drug use, and may also be a source of bias or prejudice. However, ordinarily speaking, a person’s biased or prejudicial attitudes will be triggered in the first instance by observing drug use and its effects.

[29] The trial judge also erred in his analysis of the appellant’s evidence. Parties do not face an “onerous burden” in raising a challenge for cause. They do not need to prove the existence of bias or prejudicial attitudes, but only “a reasonable possibility that bias or prejudicial attitudes exist in the community, with respect to relevant characteristics of the accused or victim, and could taint the impartiality of the jurors” [emphasis added]: Chouhan at para 62. In most cases expert evidence will not be necessary. Challenges for cause must be available where the experience of the trial judge, in consultation with counsel, dictates a realistic potential for partiality: Chouhan at para 62. While the decision to allow a challenge for cause cannot be based on speculation, and must be appropriately grounded in the record (Find at para 46; Whitehawk at para 53), a trial judge must consider the nature of the evidence that can realistically be expected. Public statements or reporting indicating bias within a community may be unavailable; prejudicial beliefs may be unconscious and may not be something a person is willing to admit to publicly.[Emphasis by PJM]

[31] The trial judge correctly observed that the articles provided by the appellant focused on social problems caused by drug use and the community reaction. The trial judge needed to consider, however, whether those social problems and the community reaction could result in prejudicial beliefs as well as legitimate concerns. The concern with those social problems may give rise to a reasonable possibility that members of the community have prejudicial attitudes with respect to drug users that taint the impartiality of the jury.

[32] In addition, while the trial judge correctly noted the need to approach social media with caution, and that comments on the Edmonton subreddit could not be accepted as proof that specific Edmontonians held the beliefs contained in those comments, that did not necessarily require the posts to be given no weight. Prejudicial beliefs can attract negative social consequences, such that individuals may be more comfortable expressing those beliefs anonymously. Online materials with indicia of reliability, such as official websites from well-known organizations, may well not reflect the bias that exists in a community: Cause Decision at para 24. A trial judge has discretion to accept or reject social media evidence in an application to challenge for cause but, in exercising that discretion, the trial judge needs to be mindful of the nature of the inquiry and standard or proof imposed on an applicant. The social media evidence here was not introduced to prove that bias exists in Edmonton, but only the “reasonable possibility that bias or prejudicial attitudes exist in the community….and could taint the impartiality of the jurors”: Chouhan at para 62. The trial judge here erred in his assessment of the applicant’s social media evidence because he did not assess whether it should be accepted in light of the purpose for which it was introduced.[Emphasis by PJM]

[33] The rejection of the appellant’s application to challenge for cause is fatally undermined by these errors in principle. A trial judge might have allowed the application to challenge for cause if not focussing exclusively on immutable characteristics, if properly identifying the bias alleged, if not drawing a fine line between drug use and drug addiction, and if assessing the evidence to see if it satisfied the “not… onerous burden” of establishing a realistic potential of juror partiality.[Emphasis by PJM]

[34] A trial judge approaching the application to challenge for cause properly could conceivably determine, as the trial judge did here (Cause Decision at paras 4, 29), that concerns over potential partiality could be sufficiently addressed through proper instructions: Chouhan at paras 49-50. Unfortunately, the anti-bias instructions the trial judge provided were not sufficient to address a prejudicial belief a juror might hold that drug users are necessarily dishonest or violent. They were general instructions. They did not “identify the characteristics… that give rise to the risk of unconscious bias” or “dispel common stereotypes”: Chouhan at para 51, 56-59. The instructions also did not warn against propensity reasoning.

[36] In sum, the trial judge needed to assess the appellant’s application to challenge for cause by considering whether the evidence established a realistic possibility that a juror would be prejudiced against drug users and whether potential prejudice could be addressed through the trial process. If addressing the prejudice through the trial process, the trial judge needed to ensure his instructions to the jury addressed that prejudice specifically, explaining how drug use may properly be part of the assessment of a witness’s credibility and reliability, and the ways in which it must not be. He did neither of these things. The consequence of these errors is that the appellant did not receive a fair trial.

[37] The appeal is allowed, the conviction is set aside, and a new trial is ordered. The matter is returned to the Court of King’s Bench appearance court to schedule the new trial.

R v Lekraj, 2026 BCCA 175

[April 29, 2026] Accused Bad Character is not a Makeweight [Reasons by Fenlon J.A. with Fleming and Gomery JJ.A. concurring] 

AUTHOR’S NOTE: In her reasons, the trial judge effectively treated the accused as a person of bad character — a misogynistic braggart whose conduct toward women reflected poorly on his moral worth. This conclusion arose from the accused’s evidence that he photographed consensual sexual encounters and shared those photographs with friends while describing the encounters in crude and unsavoury terms.

The difficulty is that the judge’s analysis moved beyond the conduct alleged in the offence itself and into a broader moral assessment of the accused’s behaviour toward other women. That reasoning became a makeweight in the rejection of his evidence.

This constituted impermissible propensity reasoning. The accused’s willingness to behave in a distasteful or misogynistic manner toward women generally could not legitimately support an inference that he was therefore more likely to have committed the sexual assault alleged in this case, nor that his evidence was less worthy of belief on that basis alone.

The reasons demonstrate how moral condemnation can subtly transform into prohibited character reasoning, particularly where evidence of unrelated but socially objectionable conduct is used to assess credibility or guilt.

[2] The events giving rise to the charges occurred in August 2020 when the appellant, then 52, engaged in sexual activity with the then 16-year-old complainant. There was no dispute that sexual activity occurred, or that the appellant took and saved on his phone photographs of the complainant, including one in which her breast was exposed. The main issues at trial were whether the sexual activity was consensual, and whether the appellant knew or was reckless as to the complainant’s age. The Crown invited an acquittal on counts four and five, conceding that the appellant did not send the photo in which the complainant’s breast was exposed to anyone but himself. The appellant was found guilty of counts one, two and three but count two was stayed in accordance with R. v. Kienapple, [1975] 1 S.C.R. 729, 1974 CanLII 14.

[4] The appellant’s and complainant’s accounts of what occurred in the early hours of August 23, 2020, bear little similarity….

[5] The complainant testified that she told the appellant she was in high school, and they discussed both having birthdays in December. She acknowledged that she did not tell him her age. The complainant testified that the appellant eventually took her to his bedroom and forced her face down on his bed. Despite her repeatedly saying “no”, he penetrated her vaginally, anally, and then orally. He ejaculated into her mouth and forced her to swallow it.

[6] In contrast, the appellant testified that, once they were in his car, the complainant asked him whether he had any alcohol, so he invited her to his apartment. They sat together in the living room, at which point he filmed a “selfie” video of the two of them and sent it to friends in a WhatsApp group chat. He became very tired, took a shower and went to bed, leaving the complainant in the other room on her phone. She came into the bedroom wearing only her undergarments, at which point he took some photos of her, including one with her breast exposed. The complainant initiated the sexual activity and was an enthusiastic participant. The encounter only lasted four to five minutes because he was “really, really tired”. However, the sexual activity was “great”, “everything … was perfect”, it was “really intense”, and they were both “super … into it”.

[7] The complainant spent the night at the appellant’s apartment. The next morning, the appellant drove her home, expecting to spend the day with her. While he waited outside, he sent photographs of the complainant standing in her underwear and in his bed to two group chats. Meanwhile, the complainant informed her father about what had happened. The complainant’s father called the police, and the appellant was arrested as he sat in his car outside the complainant’s home.

[9] An expert in the forensic examination of electronic devices testified regarding messages recovered from the appellant’s phone. The expert confirmed that the appellant sent the child pornography image only to himself, but that he had shared the other photographs in the two group chats. The photographs were accompanied by messages, including the following ones, sent by the appellant as he waited outside the complainant’s home:

11 :04 a.m. Met her at a bus stop in downtown at 1 am

11 :04 a.m. She’s so sweet great personality

11 :05 a.m. Vegetarian down for anything

11 :05 a.m. At her home in Richmond now we’re rolling Dien [sic]

11 :05 a.m. She took it like a champ every hole

[10] These messages were a central focus of the Crown’s cross-examination. When confronted with their offensive content, the appellant admitted to “showboating” and engaging in what he described as “locker room talk”. He also said that he did not send a nude photograph of the complainant to anyone but himself. He claimed he would not send an image of the complainant in which she was fully exposed. When Crown counsel challenged that assertion, noting that the appellant did not appear to respect the complainant’s privacy in the group chats, he responded by saying: “you’ve got my phone, you’ve got multiple pictures of other women in there, tons, that are half-naked or whatever it is”—implying that, if he had sent fully exposed images of women to his friends, they would be on the device and plainly visible.

[11] When pressed by Crown counsel in cross-examination to acknowledge that the complainant might have been intimidated by him as an older man, the appellant insisted that the interaction was mutual and said that the complainant could have left if she wanted to. He again referred to the contents of his phone, saying: “do you know how many women I’ve had there at my place? Lots. It is all on the phone, everything’s there”.

[12] When confronted with his text message that “she took it like a champ every hole” and pressed to acknowledge that it meant that she put up with what was happening, the following exchange occurred:

A Okay. She didn’t complain, it was like great, we’ve had great sex. If you want me to be blunt.

Q Yeah, she didn’t complain, and you never once asked her if she wanted to do what you were doing, if she wanted to progress to anal sex, if she wanted you to come in her mouth. You never once asked her.

A I never, and I’ve never done that before, I never will do that. It’s my right. It’s my — when I’m having sex with somebody, is that something I have to talk about?

(b) Impermissible propensity reasoning

[53] The remaining grounds of appeal concern the judge’s reasons for conviction. In my view, the first substantive ground of appeal concerning prejudicial reasoning is dispositive of the appeal.

[54] The appellant contends the text messages sent by the appellant to his friends in two group chats should not have been admitted into evidence and led the judge to engage in impermissible propensity reasoning.

[58] The appellant concedes he chose to rely on the photographs and the video, and that trial counsel did not object to their admissibility. But he says the judge was required to exercise her gatekeeping function to exclude the text messages because they were laden with degrading, inflammatory and misogynistic language that reflected negatively on his character. Statements such as “she took it like a champ every hole” and “not a vegetarian” were highly charged and risked provoking a visceral, moral reaction—a reaction evident in the judge’s reasons, which the appellant says “veered into overt condemnations of the accused’s character”. He notes the messages had such a lasting impact that the judge opened her reasons on the s. 11(b) application, some ten months later, with a reference to that same material, even though it was not the subject matter of any finding of guilt or otherwise relevant to the application: Delay Ruling at para. 1. In short, the appellant contends the text messages were of marginal relevance, highly prejudicial, and should not have been admitted on that basis alone.

[59] I would not accede to this argument. The problematic text messages concerned the charged incident and described the nature of the sexual activity that occurred that night. The appellant argues the fact of sexual activity was not in dispute—only consent was in issue. But consent in a he said/she said case requires the judge to assess closely the credibility of the appellant and the complainant. During his brief testimony in chief, the appellant made no mention of any of the specific sexual acts that took place, and he equivocated during cross-examination, stating he could not remember whether there was oral intercourse. The message in which the appellant referred to “every hole” confirmed the complainant’s evidence that the appellant had penetrated her anally, vaginally and orally.

[60] I agree with Crown counsel that, to the extent the trial judge ought to have held an admissibility voir dire with respect to the WhatsApp messages, the curative proviso should be applied. Had a voir dire been held, both the authenticity of the communications and their relevance would have been established and, in the context of this judge-alone trial, the evidence admitted: Parker at paras. 22–23; R. v. R.K.K., 2022 BCCA 17 at para. 65.

[61] In general, the risk of prejudicial reasoning when discreditable conduct evidence is admitted is not significant in a judge-alone trial, because the judge is expected to be alive to the limited use that can be made of such evidence: R. v. West, 2015 BCCA 379 at para. 78; R. v. Calnen, 2019 SCC 6 at para. 188, Martin J. dissenting in part. The inference of guilt from general disposition or propensity is a “forbidden chain of reasoning”: R. v. Handy, 2002 SCC 56 at para. 139.

[62] However, in my respectful view, the judge in this case fell into prejudicial reasoning. For ease of reference, I repeat some of the impugned passages from the judge’s reasons here:

[16] But the manner in which he speaks to his friends, “I have just met this young woman”, and then immediately sends it out to his friends, is indicative of his letting his friends know immediately of the “conquest” he had made in downtown Vancouver.

[22] In the morning, he took some more photographs of her and again sent them to his friends. The commentary is so completely indicative of a continuation of his having sent the video the night before, “Hey, guys, this is my conquest”, and then a description of what happened. “Vegetarian”, “Down for anything”, “She took it like a champ, every hole”. The misogyny that runs through the messages that Mr. Lekhraj sent to his friends is beyond offensive.

[28] It is impossible for his evidence to raise a reasonable doubt. But, more importantly, he convicted himself through his own words, bragging that he has done this countless times, has countless photographs of countless women he has brought home and had sexual relations with.

[29] He also referenced at one point in his cross-examination that, were he in a relationship with a woman, he would not take photographs of her and send them to his friends

[30] In trying to excuse the misogynistic commentary that he made of the complainant to his friends, he said, “Oh, it’s locker room talk”, but he misses the point about the using. The most infamous person who has used that expression was trying to say that he was falsely bragging about activity that he did not commit. Mr. Lekhraj missed the boat about that, because he was talking about sexual activity that he acknowledges took place.

[36] He took a photograph of her and asked her to move her hands where she was covering her breasts, so that they could photograph her nipple. It was clearly for the souvenirs he keeps of all of the women he has had sexual activity with on his phone that he has told us he does.

[63] It is evident from the passages above that the judge saw the appellant as a person of bad moral fibre—a misogynistic braggart. Her remarks go beyond deciding whether the appellant committed the offences charged. They engage with the appellant’s character and his conduct more generally, including his conduct towards other women, which does not form part of the alleged offences.

[66] I agree with the Crown that the appellant’s testimony was flawed, and that there was a clear pathway to conviction. However, the judge’s assessment of the appellant’s credibility, which was integral to her finding of guilt, referred to the offensive nature of the appellant’s messages and his testimony about sexual encounters with other women. In the end, the judge appears to have disbelieved the appellant, at least in part, based on his character and discreditable conduct unrelated to the offences charged.

[67] The judge’s use of the evidence in this manner constitutes an error of law that resulted in an unfair trial. In light of that conclusion, the curative proviso in s. 686(1)(b)(iii) of the Code has no application because it cannot be said that no substantial wrong or miscarriage of justice has occurred. I am accordingly compelled to set aside the convictions.

Disposition

[69] The convictions are set aside and a new trial ordered.