ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17/13
DATE: 2013-09-17
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
Emily Roda, for the Crown
James Miglin, for the Defendant
HEARD: September 16, 2013
REASONS FOR DECISION
DEFENCE PRETRIAL APPLICATION – CHALLENGE FOR CAUSE
CONLAN J.
Introduction
[1] L.W. is a black man who stands charged before a Judge and Jury in a multi-count Indictment alleging several sexual-related offences involving two alleged young victims.
[2] The Defence has brought an Application to challenge potential jurors for cause. The Crown consents to the Application but not to the form of the question proposed by the Defence.
[3] Relying largely on the decision of Durno J. in R. v. Douse, 2009 34990 (ON SC), [2009] O.J. No. 2874 (S.C.J.), the Defence suggests the following question:
As the Judge will tell you, in deciding whether or not the prosecution has proven the charge against an accused person, a juror must judge the evidence of the witnesses without bias, prejudice or partiality. 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 person charged, L.W., is black? Which answer most accurately reflects your answer to the 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.
[4] The Crown, on the other hand, proposes that the question be in the form allowed by Nordheimer J. in R. v. Johnson, 2010 ONSC 5190, [2010] O.J. No. 3970 (S.C.J.):
As the Judge will tell you, in deciding whether or not the prosecution has proven the charge against an accused person, a juror must judge the evidence of the witnesses without bias, prejudice or partiality. Would your ability to judge the evidence in this case fairly be affected by the fact that the person charged, L.W., is black?
[5] The wording of the question endorsed by the Court in Johnson, supra has been referred to as a modified version of the straight or standard Parks inquiry.
[6] Neither the Defence nor the Crown called any evidence on the Application.
Analysis
[7] In Douse, supra, Justice Durno agreed with the Defence argument that multiple-choice answers provide the triers with more and better information because the issues being addressed are complex and the beliefs of individuals cannot always be defined by a simple “yes” or “no” answer.
[8] There is no evidence before me that multiple-choice answers provide triers with better information. I cannot draw that conclusion without some evidentiary basis for it.
[9] In Johnson, supra, Justice Nordheimer disagreed with the assertion by the Defence that the standard Parks inquiry directs a potential juror to answer the question with a simple “yes” or “no”.
[10] Justice Nordheimer also found that the standard Parks inquiry is unduly repetitive and rather stilted in its use of the terms “without bias, prejudice or partiality”.
[11] On both of those points, I agree with Justice Nordheimer. The latter is self-explanatory. Fairness is what we expect and are entitled to receive. Thus, there is no need to repeat fancy and potentially confusing expressions like “without bias, prejudice or partiality”. It is simpler and preferable to substitute that language with the word “fairly”.
[12] On the former, although the standard Parks inquiry may result in the prospective juror answering in a simple affirmative or negative, there is no requirement or direction that the person do so. Further, any tendency for persons to answer simply “yes” or “no”, because of the wording of the question, can be readily addressed through a clear instruction by the Justice that the potential juror may answer the question however he or she chooses to do so.
[13] In addition or in the alternative, the Justice can specifically instruct the person answering the question that he or she need not answer with a simple “yes” or “no”: R. v. Gayle and Gayle, 2013 ONSC 5343 (S.C.J. – van Rensburg J.).
[14] Either or both of those clear instructions by the Justice may be given to the prospective juror before Defence counsel poses the question, after Defence counsel poses the question but before the potential juror replies, or both.
[15] This approach avoids any sense that the mere wording of the question amounts to an implicit direction for the prospective juror to reply with a simple affirmative or negative, while at the same time maintaining the beauty of allowing the potential juror to answer completely with his or her own words, without being strapped to choosing among four stock answers.
[16] Make no mistake; racism and prejudice exist in our society. We would be naïve to assume that none of the members of our Jury panels hold racist or prejudiced views.
[17] The ultimate goal is to weed out those persons from being selected as jurors. No system will be perfect. My opinion is that the form of the question endorsed by the Court in Johnson, supra, combined with a clear instruction from the Justice which directs that the prospective juror shall reply honestly and with whatever words he or she chooses, or alternatively that he or she is not required to answer simply “yes” or “no”, or both instructions, is the best way to achieve that goal.
Conclusion
[18] My ruling is that the question to be posed by Defence counsel to the potential jurors will be as follows:
As the Judge will tell you, in deciding whether or not the prosecution has proven the charge against an accused person, a juror must judge the evidence of the witnesses without bias, prejudice or partiality. Would your ability to judge the evidence in this case fairly be affected by the fact that the person charged, L.W., is black?
[19] Immediately prior to the question being posed by Defence counsel, I will instruct each prospective juror that he or she shall listen carefully to the question and then answer the question honestly and with whatever words he or she chooses.
Conlan J.
Released: September 17, 2013
COURT FILE NO.: 17/13
DATE: 2013-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
REASONS FOR DECISION
Conlan J.
Released: September 17, 2013