SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 11444
DATE: 2014/10/07
RE: Her Majesty the Queen (Respondent)
- and -
Denzel Borden (Applicant)
BEFORE: Justice H. A. Rady
COUNSEL:
S. D. Monaghan and M. Gardiner, for the Respondent
C. A. Morrow, for the Applicant
heard: September 22, 2014
ENDORSEMENT
Overview
[1] The defence moved to challenge all proposed jurors for cause pursuant to s. 638(1)(b) of the Criminal Code. It seeks to ask jurors three questions. They are as follows:
Question 1
Some people believe that black men are more likely than others to commit certain types of crimes. Which of the following most accurately reflects your answer:
a) I strongly agree
b) I agree, but not strongly
c) I disagree, but not strongly
d) I strongly disagree
e) I do not know
Question 2
In deciding whether or not the prosecution has proven the charges against a person accused of a crime, a juror must judge the evidence presented at trial without bias, prejudice or partiality.
But for some people because of the attitudes they’ve grown up with or experiences they have had, this may be more difficult. Might you be even slightly hesitant in your ability to judge the case fairly given that the person charged is a black man and the victim is Asian?
Which of the following most accurately reflects your answer to this question:
a) I would not be able to judge this case fairly
b) I might not be able to judge this case fairly
c) I would be able to judge this case fairly
d) I do not know if I would be able to judge this case fairly
Question 3
Have you seen, heard or read anything about the accused Denzel Borden?
If you have, have you formed an opinion about him?
Would your opinion interfere with your ability to judge this case fairly, that is without bias, prejudice or partiality?
Which answer most accurately reflects your answer:
a) I would not be able to judge this case fairly
b) I might be able to judge this case fairly
c) I would be able to judge this case fairly
d) I do not know if I would be able to judge this case fairly
[2] The first two questions are variations or extensions of the kind of question permitted in R. v. Parks, 1993 3383 (ON CA), [1993] O.J. No. 2157 (C.A.). The third question has to do with pretrial publicity. It is not necessarily restricted to publicity in this particular case but rather with respect to this accused’s alleged involvement in another high profile case involving a shooting at a London bar. There is potentially prejudicial information available on the internet if the accused’s name were “googled”.
[3] The defence submits that the Parks question is not set in stone but rather the court simply proposed or approved a type of question. The format of the proposed questions with multiple suggested possible responses is said to be more likely to uncover subtle, unconscious beliefs, biases and prejudices than a simple yes or no answer would reveal.
[4] An expanded form of question has been approved for use on some occasions elsewhere in Ontario, including in Toronto and the central west region.
[5] The Crown agrees that a Parks like question is warranted because the accused is a black man and the victim an Asian man. It also agrees that the question respecting publicity is in order. It objects, however, to the use of the expanded multiple-choice answers.
[6] The Crown submits that the multiple choice answers may be confusing to both the triers and the potential juror being questioned. It submits further that the answers would not necessarily be helpful to the triers.
The Law
[7] Section 638(1)(b) of the Criminal Code of Canada provides that:
(a) a prosecutor or an accused is entitled to any number of challenges on the ground that…
(b) the juror is not indifferent between the Queen and the accused.
[8] In R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, the court examined the meaning of the statutory requirement that an applicant show that the juror was not indifferent between the Queen and the accused. It made the following comments:
In order to challenge for cause under s. 638(1)(b), one must show a “realistic potential” that the jury pool may contain people who are not impartial, in the sense that even upon proper instructions by the trial judge, they may not be able to set aside their prejudice and decide fairly between the Crown and the accused…
[9] As a practical matter, establishing a realistic potential for juror partiality, generally requires satisfying the court on two matters, namely:
that a widespread bias exists in the community; and
that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision.
[10] These two components of the test involve distinct inquiries. The first is concerned with the existence of a material bias, and the second with the potential effect of the bias on the trial process. However, the overarching consideration, in all cases, is whether there exists a realistic potential for partial juror behaviour. The two components of this test serve to ensure that all aspects of the issue are examined. They are guidelines for determining whether, on the record before the court, a realistic possibility exists that some jurors may decide the case on the basis of preconceived attitudes or beliefs, rather than the evidence placed before them.
[11] In the case of R. v. Parks, 1993 3383 (ON CA), [1993] O.J. No. 2157, the Court of Appeal took judicial notice of the systemic racism in Canadian society. The court was particularly concerned about the use of post jury selection safeguards to address the problem of racial prejudice. The court considered that judicial instruction alone may be ineffective to remove the potential that subconscious racial prejudice or stereotyping might influence a jury’s deliberations. One of the questions at issue in the case was framed in this way:
Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is a black Jamaican immigrant and the deceased is a white man?
[12] The other question was a more general one dealing with the involvement of cocaine and other drugs, which the court concluded was unmeritorious. However, the court held that the above noted question was permissible in all cases where an accused requests it.
[13] It is important to bear in mind that the court in Parks approved a type of question but not one particular question only. The trial judge has the discretion to vary the Parks question to suit the needs of the case in accordance with contemporary understanding of racial bias. Since Parks, there have been several cases which have approved modifications to the questions to be proposed. See, for example, R. v. Wilson (1996), 1996 376 (ON CA), 29 O.R. 97 (C.A.); R. v. Gayle, 2001 4447 (ON CA), [2001] O.J. No. 1559 (C.A.); R. v. Smith May 11, 1999 (unreported) (Ont. Ct. Gen. Div.); R. v. Kelly January 7, 1998 (unreported) (Ont. Ct. Gen. Div.).
[14] R. v. Douse, 2009 34990 (ON SC), [2009] O.J. No. 2874 (S.C.J.), Justice Durno approved the use of multiple-choice style answers. The questions approved by Justice Durno in the Douse case read as follows:
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 the case without bias, prejudice or partiality be affected by the fact that the person charged is a black man and the victim is a white woman? 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.
[15] Justice Durno made the following observations regarding the pernicious effect of unconscious racial bias:
There are potential jurors who harbour racist attitudes below their threshold of consciousness, deep in their psyche. Those beliefs may have been taught or otherwise acquired. Their anti-black bias is based on unstated and unchallenged assumptions learned over a lifetime… The holder may believe they are accurate or for other reasons that their views do not reflect prejudices. The holder may honestly believe they are not biased because they have not examined their beliefs to determine if they hold prejudicial views, perhaps they have never been required to do so.
[16] It is noteworthy that the defence sought the court’s approval of a 12-item questionnaire that it proposed to provide to the panel. The responses were to be scored and the results provided to the potential juror, the judge, Crown, defence counsel and the triers. Much of the court’s analysis focused on this aspect of the challenge rather than the form of the Parks question.
[17] In R. v. Valentine, [2009] O.J. No. 5961 (S.C.J.), Justice Pardu approved the use of a multiple-choice question, as well as the use of an additional question regarding publicity. During the course of her reasons, Justice Pardu made the following comment:
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.
[18] Expanded questions were also permitted in R. v. Lewis, 2011 ONSC 7631, [2011] O.J. No. 5927 (S.C.J.) and R. v. Patel, [2014] O.J. No. 2125 (S.C.J.).
[19] However, there is a body of case law that rejects the expanded multiple-choice answer format. For example, in R. v. Ahmad, 2010 ONSC 256, [2010] O.J. No. 3341 (S.C.J.), Justice Dawson refused to permit multiple-choice answers on the basis that they would lengthen the challenge process, would be more intrusive of individual privacy and could lead to a perverse result.
[20] On this latter point, the trial judge expressed concern “that the multiple-choice answer has the potential to lead to perverse results….I asked counsel what should be done in the event a juror who answered by selecting “b” or “d” was nonetheless found acceptable by the triers, in circumstances where all counsel had exhausted their peremptory challenges. Counsel were unable to come up with a satisfactory answer. It was suggested that I might intervene and found the juror unacceptable. Yet, that is not a procedure which the Criminal Code provides for”.
[21] In R. v. Johnson 2010 ONSC 5190, the defence sought to challenge prospective jurors for cause based on the fact that the accused was a black man. In addition to asking the standard Parks question, the defence sought to provide a list of four possible answers from which the prospective juror could choose in responding to the question. Justice Nordheimer concluded that the list of answers should not be used as part of the challenge for cause process.
[22] He noted that the defence submitted that the response to the Parks question with a simple yes or no did not assist the triers in determining whether a prospective juror was affected by unconscious racism. The defence said that by permitting prospective jurors to choose from a number of more nuanced answers, unconscious racism may become more apparent.
[23] In rejecting that argument, Justice Nordheimer concluded that the underlying premise was faulty. He noted as follows:
The defence position presumes that most, if not all prospective jurors, will answer the question with a “yes” or “no”. While I accept that the standard Parks question suggests that it can be answered in one word, my experience with the challenge for cause process (and I do not believe that I am unique in this experience) is that prospective jurors answer the questions in a wide variety of ways. Certainly some do simply say “yes” or “no” but many others respond “I am not sure”, “I would hope not”, “I do not believe so”, “I don’t know” or any number of variations on those forms of response. In other words, many prospective jurors respond to the standard question in a manner that is similar to the Douse responses and therefore achieve the same goal as the Douse responses attempt to do. I would also note in passing that any prospective juror who adopts either (a) or (c) from the Douse responses is essentially answering “yes” or “no” with no additional insight into their actual attitudes.
[24] Justice Nordheimer went on to point out that the Douse approach did not carry with it the advantage of having a prospective juror answer the questions spontaneously, and in his or her own words and manner but rather directed the juror to select a stock or prefixed response.
Analysis
[25] I have read the many cases cited to me and with respect, I prefer the analysis of Justices Nordheimer and Dawson. I share their concern that the multiple-choice format provides little additional information to the triers and has the potential to work a real mischief. In my view, the triers are better assisted by a prospective juror’s spontaneous response to the question rather than permitting a choice from a number of stock responses. I am also very concerned that if a prospective juror responded that they “might not be able to judge the case fairly” but they were not challenged, for whatever reason, what remedy exists? It seems to me that the accused would be obliged to use a peremptory challenge if any remained. Yet, the Parks question was clearly intended to provide an accused and the Crown with additional challenges to those otherwise permitted by the Code.
[26] Therefore, largely for the same reasons as those expressed by my colleagues in R. v. Johnson and R. v. Ahmad, I decline to permit the use of the multiple-choice answer format. Under separate cover, I have faxed to counsel the questions that I have ruled may be put to the proposed jurors. Largely, for the same reasons, I have declined to use the multiple-choice answer format with respect to the publicity question.
[27] I also will not permit the use of the first question proposed. There is an insufficient evidentiary basis on which to conclude the question has a basis in fact in this community. Furthermore, it is very vague – the “certain types” of crimes are not identified, for example. In my view, the answer to such a question is unlikely to be of assistance to the triers.
[28] I do favour the use of the proposed preamble to the second question because it provides the prospective juror with context for the question; it avoids or diminishes any perception of confrontation; and it invites introspection before responding.
[29] The permitted questions are therefore as follows:
Question 1
In deciding whether or not the prosecution has proven the charge against a person accused of a crime, a juror must judge the evidence presented at trial without bias, prejudice or partiality.
For some people because of the attitudes they have grown up with or experiences they have had, this may be more difficult. Might you be even slightly hesitant in your ability to judge this case fairly given that the person charged is a black man and the victim is Asian?
Question 2
Have you seen, heard or read anything about the accused Denzel Borden?
If you have, have you formed an opinion about him?
Would your opinion interfere with your ability to judge this case fairly, that is without bias, prejudice or partiality?
“Justice H. A. Rady”
Justice H. A. Rady
Date: October 7, 2014