ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11387
DATE: 2014/10/06
BETWEEN:
Her Majesty the Queen
Peter Rollings, & H. Palin, on behalf of the Crown
Respondent
- and -
Drai Anthony O’Hara-Salmon and Jemaine Anthony Phillips
C. Hicks & J. Tuttle for Mr. Ohara-Salmon, D. Bains, for Mr. Phillips
Applicants
HEARD: September 23, 2014
A. J. Goodman J.:
RULING ON PRETRIAL MOTIONS
Challenge for Cause- Race-Based Question
[1] The applicants seek an Order allowing a race-based challenge for cause and the question to be posed as framed in their Application.
[2] In separate oral reasons delivered to the parties, I granted the applicants’ request to challenge each potential juror on the basis of publicity in the form provided by counsel.
[3] The applicants propose the following question for the challenge for cause.
As you will be told, in deciding whether or not the prosecution has proven the charges against Jemaine Phillips and/or Drai O’Hara-Salmon beyond a reasonable doubt, 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 persons charged, Jemaine Phillips and Drai Ohara-Salmon are black or a visible minority? 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; or
d. I do not know if I would be able to judge the case fairly.
Background
[4] The Applicants are of Jamaican decent; black and/or are of a visible minority.
[5] The applicants allege that there is wide-spread anti-black (and visible minority) racism in Ontario, including London, Ontario and that due to the nature of this widespread prejudice, some jurors may be influenced by those prejudices in their deliberations.
[6] The applicants submit that there is reason to suppose that the jury pool may contain people who are prejudiced and whose prejudice might not be capable of being set aside on directions from this Court. In essence the applicants argue that there is a realistic potential of the existence of juror partiality in that some members may be biased in a way that may impact negatively on the applicants.
[7] Applicants’ counsel proposes a multiple-choice question as developed by Durno J. in R. v. Douse, 2009 34990 (ON SC), [2009] O.J. No. 2874 (S.C.). The applicants say that the form of question posed in this manner will alleviate concerns about systemic bias and will provide a better sampling of a representative jury with a greater opportunity to challenge and assess any bias–based beliefs.
[8] The Crown does not oppose the application for a race-based challenge for cause, merely the form of questioning being proposed. The Crown submits that the “standard” question usually posed to potential jurors is entirely appropriate in this case.
Discussion
[9] It is trite law that a challenge for cause cannot be used as a mechanism for identifying favourable jurors. The aim is not to secure favourable jurors, but impartial jurors. Ultimately, the decision to allow or deny an application to challenge for cause falls to the discretion of the trial judge. However, where partiality exists, the right to challenge must flow. Indeed, some of the jurisprudence suggests that if in doubt, the judge should permit such challenges. Generally, in order to establish a realistic potential for juror partiality, the applicant must satisfy the Court that there is some widespread bias in the community and that some jurors may be incapable of rendering an impartial decision and set aside this bias, despite instructions from the judge. Here, I have no hesitation in allowing the challenge to proceed, although the form of the question remains a live issue.
[10] In the seminal case of R. v. Parks, 1993 3383 (ON CA), [1993] O.J. No. 2157, the Court of Appeal took judicial notice that systemic racism exists, whether overt or subconsciously. In Parks, the court provided guidance to trial judges with the objective to address this important issue and reduce or alleviate any potential that racial prejudice might influence a potential juror’s deliberation. In this vein, the Court of Appeal fashioned an approach for trial judges to follow in what has been commonly referred to as the “Parks question”.
[11] In Parks, the Court of Appeal approved only one particular and specific question. Clearly, a trial judge has the discretion to vary the Parks question to suit the needs of each individual case.
[12] As mentioned, in support of their position, the applicants rely on Douse. Douse was a case in which a black man was charged with murdering a white woman. In a lengthy and detailed judgment, Durno J. analyzed the issue and considered expert evidence in addressing whether it was appropriate to advance a detailed questionnaire and multiple choice responses to the question of race.
[13] Justice Durno found that the three expert witnesses were highly qualified and were all impressive witnesses and knowledgeable within their fields of expertise. The court heard extensive, and conflicting, expert evidence concerning the adequacy of the Parks question in identifying subconscious racism or in identifying 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 some inherent limitations.
[14] In Douse, the applicants sought the court’s approval of a 12-item questionnaire that it proposed to provide to the panel in advance of the selection process. The responses were to be scored and the results provided to the potential juror, the trial judge, the Crown Attorney, defence counsel and the triers. It appeared that the applicants attempted to embark on an approach that has found some favour with the jury selection process conducted in various venues in the United States.
[15] In lengthy reasons, Durno J. rejected the written questionnaire proposal. As I read the learned judge’s reasons, it seems to me that much of his analysis focussed on the questionnaire issue. In any event, the trial judge concluded that giving the potential jurors several options for responding would allow them to more accurately provide their self-evaluation. It would give the triers a more accurate answer than the “yes” or “no”. While Durno J. opined that this variation would lengthen the challenge for cause procedure marginally, subject to a re-assessment after it was used in court, he did not see the increased time as a reason to maintain the one word answers.
[16] In R. v. Valentine, [2009] O.J. No. 5961 (S.C.J.) Pardu J., considered the multiple choice question in the course of jury selection related to the events surrounding the death of Jane Creba. The Jane Creba Boxing day murder case was highly publicized and notorious in Toronto and, for that matter, all around Ontario, if not the nation.
[17] Drawing on the principles espoused in Douse, Pardu J. (as she then was) allowed prospective jurors to be asked the multiple choice questions related to both pretrial publicity and race. In essence, there was a determination whether the potential juror could be impartial in light of the circumstances as they understand them surrounding the shooting. As I glean from her analysis, central to her determination appeared to be the notion that racial bias may be heightened because of the circumstances of the offence, and the ubiquitous and immense publicity and commentary on the events in question.
[18] In this case, applicants’ counsel argue that the standard Parks question directs a prospective juror to answer the question with a simple "yes" or "no" and that such a limited response does not assist the triers in determining whether the prospective juror is affected by unconscious racism. By directing the prospective jurors to more elaborate answers, the defence says that the presence of any conscious or unconscious racism may become more apparent and the triers would be in a better position to assess the suitability of each prospective juror during the challenge process.
[19] I am aware that other judges of this court have permitted the Douse approach to the challenge for cause to be used while others have not. For example, those courts adopting the Douse approach include Valentine and R. v. Lewis, 2011 ONSC 7631. The bulk of the jurisprudence however, adopts the standard or modified Parks question. Several cases have specifically dismissed the Douse formulation include, for example, R. v. Ahmad, 2010 ONSC 256, [2010] O.J. No. 3341 (S.C.). See also R. v. Johnson 2010 ONSC 5190, [2010] O.J. No. 3970 (S.C.) and R. v. Stewart, 2011 ONSC 1949 (S.C.).
[20] In Ahmad, a case in Brampton, Ontario where demographics of the community invite an abundant proportion of challenge for cause applications, Dawson J. refused to permit the multiple choice answers. He did so on the basis that, inter alia, the multiple choice answers would lengthen the challenge process, would be more intrusive on the individual's privacy and might lead to perverse results.
[21] As many of these cases demonstrate, reasonable persons can differ in terms of the wisdom of the best approach to deal with the challenge for cause question.
[22] The applicants presume that most, if not all, prospective jurors will answer the question with a "yes" or "no". While I accept that the standard Parks question may solicit that it can be answered in one word, my experience with the challenge for cause process is that prospective jurors answer the question in a variety of ways. Certainly some prospective jurors do simply say "yes" or "no", accompanied by facial expressions or other demonstrative actions, but many others respond "I am not sure", "I do not believe so", "I don't know" or other variations on those themes. There is nothing in the question that expressly precludes other answers apart from yes or no, and, through experience, many prospective jurors have shown that they do not feel so constrained and provide more details than the one-word response.
[23] In other words, from my experience and review of the jurisprudence, many prospective jurors tend to respond to the standard question as provided in Parks in a manner that is similar to the Douse objectives.
[24] Racism and prejudice exist in our society. We would be naïve to assume that none of the members of our jury panels hold some racist or prejudiced views against some group or class in our multicultural society.
[25] However, with respect, I believe that the underlying premise to the applicants’ argument is faulty. First, there is no evidence before me to substantiate the applicants’ assertions that there is wide-spread systemic anti-black and visible minority racism in London, Ontario, and due to the nature of this widespread prejudice, some jurors may be influenced by those prejudices in their deliberations. There is no substantiation to the assertion that there is reason to suppose that the jury pool may contain people who are prejudiced and whose prejudice might not be capable of being set aside on directions from this Court.
[26] I find Nordheimer J.’s reasoning in Johnson at para. 14 to be instructive.
It has been more than fifteen years since R. v. Parks was decided. Since then, thousands of cases have used the Parks question in the challenge for cause process. While I allow that this process, as with most others, can no doubt be improved, there should be a solid foundation made out for any change before we embark on lengthening or complicating or otherwise altering the established process. I am not satisfied that a foundation has been established for a conclusion that the Douse approach is a sufficient advance in the challenge for cause process that would warrant its adoption. Indeed, for the reasons that I have set out, I believe that it may be less effective in achieving the desired end result and less useful to the task of the triers than is the standard Parks question. Consequently, I decline to permit its use.
[27] I agree with this statement and prefer the approach adopted by Nordheimer J. in Johnson. In allowing the standard or modified open-ended Parks question to be posed in this case, it is my opinion that the potential juror would be free to express his or her opinion in whatever manner he or she many chose, whether with one or several words, perhaps accompanied by demeanour or expression, as the case may be.
[28] 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. Moreover, the multiple choice proposal would unduly prolong the challenge process, add a degree of confusion to a prospective juror, who is no doubt nervous or apprehensive by the very nature of the proceeding; while having to memorize or recite by rote one of the four catch phrases that best describes his or her views.
[29] The multiple-choice format provides little additional information to assist the triers. In my opinion, the triers are in a better position to assess a prospective juror’s spontaneous response to the question rather than permitting a choice from a number of categories without any further explanation. In this case, I am confident that the triers will be able to effectively and judiciously conduct their assessment in fulfilling their obligations and oath without resort to the multiple choice questions.
Conclusion
[30] The application is granted, in part. The applicants may pose a race-based challenge for cause question to each prospective juror but not in the manner proposed by applicants’ counsel. The standard Parks question is to be modified to substitute the word “fairly”, in lieu of bias, prejudice or partiality in the second sentence, in accordance with the Johnson formulation, as follows:
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 persons charged are black or a visible minority?
A.J. Goodman J.
October 6, 2014
COURT FILE NO.: 11387
DATE: 2014/10/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Applicant
- and -
Drai Anthony O’Hara-Salmon and Jemaine Anthony Phillips
Respondents
RULING ON PRETRIAL MOTIONS
Challenge for Cause Race-Based Question
A. J. Goodman J.
Released: October 6, 2014