ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-1703
DATE: 20130816
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ELIZABETH GAYLE and FEDRICK GAYLE
Applicants
C. Coughlin, for the Crown
D. McLeod, for the Defendant Elizabeth Gayle
S. Bernstein, for the Defendant Fedrick Gayle
PRETRIAL RULING # 4: THE CHALLENGE FOR CAUSE QUESTION
K. van Rensburg J.
[1] This is my decision on the challenge for cause question released orally on May 8, 2013. The accused are jointly charged with first degree murder. The defence seeks to challenge the jury for potential race-based bias, and the issue is the form and substance of the question to be put to the prospective jurors during the challenge for cause process.
[2] Counsel for Elizabeth Gayle requests that wording of the question that was accepted by Durno J. in the case of R. v. Douse, 2009 34990 (ON SC), [2009] O.J No. 2874 (S.C.J.). Counsel for Fedrick Gayle supports the application. Crown counsel asserts that there is no reason to depart from the standard Parks challenge, but suggests that it could be modified to the form used by Nordheimer J. in R. v. Johnson, 2010 ONSC 5190, [2010] O.J. No. 3970 (S.C.).
[3] Both are formulations of the Parks question. The standard Parks question permits the prospective juror to answer in his or her own words – although the formulation of the question may appear to call for a “yes” or “no” answer, it is my practice in my instructions respecting the challenge for cause process, to inform jurors that it is not necessary to answer the challenge for cause question with simply “yes” or “no” and that they may answer in as much or as little detail as they see fit, provided that they answer honestly. The Douse formulation invites the jurors to choose among four multiple choice responses.
[4] I do not intend to set out the arguments of counsel in any detail except to note that Mr. McLeod asserts that the Douse formulation may be more effective in uncovering unconscious racism on the part of a prospective juror. Mr. Bernstein supports the application, asserting that the evidentiary foundation for the application is found in the expert evidence in the Douse case.
[5] Crown counsel urged the court to follow the lead of cases such as Johnson and R. v. Ahmad, 2010 ONSC 256, [2010] O.J. No. 3341 (S.C.), where any presumed advantages of a multiple choice response were doubted, and the proposal to use the Douse formulation was rejected. Mr. Coughlin is also concerned that, should the question be put to the jurors in writing as proposed by the defence, this may be more difficult for a juror to follow, and unnecessarily delay the jury selection process.
[6] I am not persuaded that a departure from the usual Parks question, perhaps as modified in the Johnson case, if the defence prefers, would be justified. The challenge for cause process involves the prospective juror and the triers who determine, based on the response, whether the juror is acceptable or not acceptable. The focus is therefore on which formulation of the question is likely to assist the prospective jurors in answering truthfully, and the triers in assessing the answer. A question that calls for a response in the juror’s own words in my view is preferable to one that asks them to choose among four stock answers.
[7] The concern about the Parks formulation, expressed for example by Pardu J. in R. v. Valentine, [2009] O.J. No. 5961 (S.C.), is that it calls for a “yes” or “no” answer. Again, that is not my experience, and the risk that the question would be interpreted in that way can be attenuated by the instructions that are given during the explanation of the challenge for cause process.
[8] What is proposed by the defence, is a question with a four part multiple choice response to be given to the prospective jurors to read over in the witness box at the same time as they are read the question by defence counsel. In my view, proceeding in this way may well hamper the immediacy and spontaneity of the process. The triers would have less opportunity to gauge the prospective juror’s reaction to the question and his or her response, if that person is looking down and reading along with the question.
[9] Proceeding in this way would no doubt slow down the jury selection process (Mr. Bernstein estimated by up to a day). The delay would be justified if there were some corresponding benefit. I am not persuaded that this is the case.
[10] Accordingly, the application to challenge the prospective jurors for cause is allowed, however the formulation of the question will be the traditional Parks question, or the variation in the Johnson case, at the option of the defence. The question will not be provided in writing to the prospective jurors at the time they are asked the question in the witness box. At the option of defence counsel, each prospective juror will be given the question in writing to read over individually before he or she enters the court room during the jury selection process.
K. van Rensburg J.
Released: August 16, 2013
COURT FILE NO.: 12-1703
DATE: 20130816
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ELIZABETH GAYLE AND FEDRICK GAYLE
PRETRIAL Ruling # 4: The Challenge for Cause Question
K. van Rensburg J.
Released: August 16, 2013