SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-90000511-0000
DATE: 20121217

RE: Her Majesty the Queen

– and –

Andrew Barnes and Tryston Corcho

BEFORE: Justice G.R. Strathy

COUNSEL:
M. Nassar , for the Crown
P. Bacchus , for Andrew Barnes
J . Razaqpur , for Tryston Corcho

DATE HEARD: November 7, 2012

RULING: APPLICATION BY MR. CORCHO RE. PARKS QUESTION

[ 1 ] Andrew Barnes and Tryston Corcho stood jointly charged with trafficking in cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act. Mr. Corcho was also charged with possession of the proceeds of property obtained by crime, contrary to s. 354(1) (a) of the Criminal Code . Both bought pre-trial applications for leave to challenge prospective jurors pursuant to R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.). On November 8, 2011, I ruled that prospective jurors would be asked the “standard” Parks question, with reasons to follow. These are my reasons.

[ 2 ] Mr. Corcho is a black person. Counsel for Mr. Corcho proposed the following question, preceded by the standard preamble: [1]

Would your ability to judge the evidence in this case fairly, that is, without bias, prejudice, or partiality, be affected by the fact that the accused person is a black man?

Which answer most accurately reflects your answer to that question?:

A. I would not be able to judge the case fairly.

B. I might be able to judge the case fairly.

C. I would be able to judge the case fairly.

D. I do not know if I would be able to judge the case fairly.

[ 3 ] Although Mr. Barnes, initially proposed the standard Parks question, [2] modified to reflect the fact that he was a person of mixed race, he subsequently supported Mr. Corcho’s proposed question, assuming that it was amended to refer to the fact that one accused was black and the other was of mixed race.

[ 4 ] Mr. Corcho’s application is unsupported by any evidence to establish that the proposed multiple choice question is preferable to the standard Parks question. His counsel referred to the decision of Durno J. in R. v. Douse , 2009 ONSC 34990 , [2009] O.J. No. 2874 (S.C.J.) and asked me to take judicial notice of the evidence in that case. In that case, after hearing expert evidence, Durno J. approved a question in the same form as the one proposed by Mr. Corcho.

[ 5 ] The issue is clearly a matter of discretion, as counsel for Mr. Corcho acknowledged. There has been some support for the Douse approach in this jurisdiction. Other judges have declined to follow Douse .

[ 6 ] Douse was a case in which a black man was charged with murdering a white woman. Durno J. heard extensive, and conflicting, expert evidence concerning the adequacy of the Parks question in identifying subconscious racism or in indentifying jurors who had racial prejudices, but were unwilling to admit them. It appears to have been acknowledged by all the experts that the Parks question has its limitations. Although Justice Durno did not accept the proposal of the defence experts that prospective jurors should be required to complete a questionnaire, the results of which would be tabulated and provided to the triers, he did agree with the defence proposal that the proposed jurors be asked a multiple choice question, as opposed to the Parks question. He concluded that this question would give prospective jurors a wider range of answers than simply “yes” or “no”, a desirable feature in view of the complex nature of people’s racial prejudices and beliefs.

[ 7 ] Counsel for Mr. Corcho refers to two cases that have followed Douse . In R. v. Lewis , 2011 ONSC 7631 , [2011] O.J. No. 5927, the accused was facing trial for first degree murder. In that case, the Crown consented to the defence request for the use of a multiple choice question and the only issue was the form of the question. McCombs J. permitted the question to be asked on the same lines as Douse.

[ 8 ] In R. v. Valentine , [2009] O.J. No. 5961 (S.C.J.) , Pardu J. was dealing with a case of some notoriety, involving the death of a young woman, Jane Creba, after a gunfight on a crowded street in downtown Toronto. Both of the accused were black and there had been extensive pre-trial publicity. The defence proposed a question based on Douse and the Crown proposed the standard Parks question. Justice Pardu permitted the multiple choice question, observing at para. 11:

Both the Parks question and the Douse question invite introspection on the part of the potential juror. I am persuaded that a simple yes or no answer to the Parks question and the degree of hesitation before answering provide a scant basis for the triers to assess racial bias, particularly in a case such as this one, where concerns for racial bias may be heightened because of the circumstances of the offence, and the widespread publicity.

[ 9 ] Other judges have declined to adopt the Douse approach. In R. v. Johnson, 2010 ONSC 5190 , [2010] O.J. No. 3970, Nordheimer J. disagreed with the proposition that the Parks question is flawed because it only seeks a “yes” or “no” answer. He noted that in his experience, prospective jurors do not confine themselves to such responses and express themselves in a variety of ways, some of which are similar to the Douse choices. In the end, he permitted a modified Parks question, which removed the repetition of the words “without bias, prejudice or partiality” and substituted the word “fairly”. The question, in the result, was stated as follows at para. 16:

As His Honour will tell you, in deciding whether or not the prosecution has proven the charge against an accused, a juror must judge the evidence of the witnesses without bias, prejudice or partiality.

Would your ability to judge the evidence in this trial fairly be affected by the fact that the person charged is black?

[ 10 ] In R. v. Stewart , 2011 ONSC 1949 , [2011] O.J. No. 3354, at para. 9 , Kiteley J. agreed with the conclusions of Nordheimer J. and declined to expand the Parks question. In R. v. Ahmad, 2010 ONSC 256 , [2010] O.J. No. 3341, Dawson J. observed that in his experience in Brampton, in which a majority (70%) of jury selections involved a race-based challenge for cause, it was not unusual for prospective jurors to go beyond a simple “yes” or “no” answer to the Parks question. He noted, at para. 29, in relation to Douse :

It would seem that in Douse the arguments were focused primarily on the use of the survey and the division of the Parks question. Very little was said about the multiple choice answers in the judgment. Mr. James [one of the accused] agrees that the only reference to the issue appears at paragraph 173. In one sentence in that paragraph, Durno J. indicated that he accepted the evidence of one of the expert witnesses who testified that there are benefits to permitting multiple choice answers to the Parks question. While the judgment makes extensive reference to other aspects of the evidence given by each of the three experts, nothing else is said about the evidence concerning the multiple choice answers. Consequently, while Durno J.'s fulsome analysis in Douse is very enlightening on the other issues canvassed in that case, it proves to be of little assistance to me here, where I am faced solely with the issue of the multiple choice answer to the Parks question.

[ 11 ] Dawson J. was concerned that the use of the multiple choice question could lead to perverse results. He was also of the view that the Douse question was more intrusive on jurors’ privacy and could, in the circumstances before him, be more time-consuming.

[ 12 ] The use of two lay triers to determine the complex and important issue of a potential juror’s racial bias, based on his or her response to a single question, whether Parks or Douse , is a practical, but imperfect, solution to the goal of absolute trial fairness. The greatest benefit of the process may be its educational value in demonstrating to the panel, and to the jurors chosen, the importance of putting aside biases and prejudices, of all kinds, before entering the jury box to fulfill one’s duty as a juror in a free and democratic society. The public proclamation of the juror’s willingness to decide the case fairly will also remind the juror, throughout his or her deliberation, of the need to do so.

[ 13 ] The time may come when the Parks question and its variants will be regarded as a sad necessity of a once-flawed society. In the meantime, it may be desirable to revisit the entire challenge for cause process and the efficacy of the Parks question. I resolve the issue in this case by simply stating that there is no evidentiary basis before me that would permit me to conclude that the question proposed by the defence is any more efficacious than the standard Parks question, which has been in use in this province for almost 20 years. I might add that in my view, for the reasons expressed by Nordheimer J. in Johnson , the open-ended Parks question gives prospective jurors more scope for true self-reflection and assessment than the straight-jacketed multiple choice questions proposed in Douse .

[ 14 ] For these reasons, I directed that the proposed jurors be asked the standard Parks question.

[ 15 ] There was no application by the defence pursuant to s. 640(2.1) of the Criminal Code . Defence counsel requested that rotating triers be used, but that the jury panel be excluded from the courtroom during the selection process. They argued that permitting the panel to remain in the courtroom would “educate” the panel on how to excuse themselves from jury duty. I was not prepared to exclude the panel as I was not satisfied that this was likely to occur or that there was any risk that the panel might be “tainted” by any statements that might be made during the challenge for cause process. As matters transpired, there was no indication at all of an enhanced level of requests by prospective jurors to be excused from jury duty.

G.R. Strathy J.

DATE: December 17, 2012

[1] As the judge will tell you, in deciding whether or not the prosecution has proven the charge against an accused, a juror must judge the evidence of the witnesses without bias, prejudice or partiality.

[2] As the judge will tell you, in deciding whether or not the prosecution has proven the charge against an accused, a juror must judge the evidence of the witnesses without bias, prejudice, or partiality. Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the person charged is black?