COURT FILE NO.: CRIMJ(P)158/13

DATE: 2015-11-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Ann-Marie Calsavara and Andrea Esson, for the Crown

• and -

ELON BROOKS

Jennifer Penman and Ashley Audet, for the Defendant

HEARD: December 2, 2014

AMENDED REASONS FOR JUDGMENT

Barnes, J.

INTRODUCTION

[1] Mr. Elon Brooks is charged that on or about the 28 day of December, 2011, he murdered Kevin Pham in the City of Mississauga, Ontario, contrary to s. 235(1) of Criminal Code. It is the Crown’s theory that Elon Brooks and Mr. Pham had an ongoing dispute and as a result, Mr. Brooks stabbed Mr. Pham to death in the stairwell.

THE ISSUE

[2] Mr. Pham and Mr. Brooks are visible minorities. Mr. Pham is of Asian descent and Mr. Brooks is a black man. Mr. Brooks, seeks an order of the court allowing the following challenge for cause questions to be put to prospective jurors:

Question 1: some people believe that black men are more likely than other men to commit crimes of violence. Do you agree with that belief? Which of the following most accurately reflects your answer:

a) I strongly agree

b) I agree, but not strongly

c) I strongly disagree

d) I disagree, but not strongly

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 attitude they’ve grown up with or experiences they have had, this may be more difficult. Would you be able to judge the case fairly given that the person charged is a black man and the victim is of Asian descent?

Which of the following most accurately reflects your answer to this question:

a) I would not be able to judge the case fairly

b) I may not 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

LAW

[3] Section 638 of the Criminal Code sets out the statutory basis for the challenge for cause process. It states:

638. (1) A prosecutor or an accused is entitled to any number of challenges on the ground that

(b) a juror is not indifferent between the Queen and the accused;

(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).

[4] In R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at paras. 31-33, the Supreme Court of Canada explained the meaning of the statutory requirement that the applicant demonstrate that a prospective juror “is not indifferent between the Queen and the accused”:

In order to challenge for cause under section 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: Sherratt, supra; Williams, supra, at para. 14.

As a practical matter, establishing a realistic potential for juror partiality generally requires satisfying the court on two matters: (1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision. These two components of the challenge for cause test reflect, respectively, the attitudinal and behavioural components of partiality: Parks, supra, at pp. 364-65; R. v. Betker (1997), 1997 CanLII 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.), at pp. 435-36.

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 behavior. The two components of this test serve to ensure that all aspects of the issue are examined. They are not watertight compartments, but rather 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 and beliefs, rather than the evidence placed before them.

[5] Section 638(1) is intended to increase the probability that a selected juror is one who will put aside any prejudices they may have, such that they will be “in different between the Queen and the accused” and render a proper and just verdict based on the evidence. In other words, that the prospective juror will be impartial.

[6] The crux of the discussion is whether the standard Parks question is sufficient to satisfy the second Find criterion: “that some jurors may be incapable of setting aside their bias, despite trial safeguards, to render an impartial decision”.

[7] A study published in the U.K. journal Legal and Criminal Psychology, titled “Predicting verdicts using the pretrial attitudes the standard of proof”, found that there is a correlation between pretrial bias and the jurors’ understanding and application of the legal burden of proof “beyond a reasonable doubt”. The authors of the study found that jurors with attitudinal biases against an accused tended to have “less robust” understandings of the meaning of proof “beyond a reasonable doubt” when compared to jurors who did not harbor such biases.

[8] The study suggests that there is a direct correlation between bias and the ability of jurors to properly fulfill their duties to judge an individual fairly, impartially and in accordance with the law. The study also suggests that judicial instructions alone may be in adequate to cleanse jurors of these deeply ingrained prejudices: S. Lundrigan, M. K. Dhami, & K. Mueller-Johnson, “Predicting verdicts using pre-trial attitudes and standard of proof” (2013) Legal and Criminological Psychology.

[9] On the issue of biases due to race, the first Find criteria “that a widespread bias exists in the community” is now undisputed in Canadian jurisprudence. It is now recognized that there is systemic racism in Canadian society. There is no need for any special evidentiary basis to be put forth to prove this fact. This is a fact that courts have taken judicial notice of. It is a fact that does not depend on the nature of the case, the degree of publicity the case has garnered, the community or city in which the case is taking place or some other factor: R. v. Parks, 1993 CanLII 3383 (ON CA), [1993] O.J. No. 2157 (C.A.); R. v. Rollocks, 1994 CanLII 8728 (ON CA), [1994] O.J. No. 1458 (C.A.), at para. 49; R. v. Wilson, 1996 CanLII 376 (ON CA), [1996] O.J. No. 1689 (C.A.), at paras. 21-23.

[10] The inadequacy of post jury selection safe guards, alone, to address problems of systemic racism is aptly described by Doherty J. A. in Parks, at para. 59:

In deciding whether the post jury selection safeguards against partiality provide a real antidote to racial bias, the nature of that bias must be emphasized. For some people, anti-black biases rest on a stated and unchallenged assumptions learned over a lifetime. Those assumptions shaped the daily behavior of individuals, often without any conscious reference to them. In my opinion, attitudes which are ingrained in an individual’s subconscious, and reflected in both individual and institutional conduct within community, will prove more resistant to resistant to judicial cleansing than with opinions based on yesterday’s news and referable to a specific person or event.

[11] The Ontario Court of Appeal in Parks, at para. 16, held that it was appropriate to put the following question to the prospective jurors:

As the judge will tell you, in deciding whether or not the persecution has proven the charge against an accused a juror must judge the evidence of the witness 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 Jamaican immigrant and the deceased is a white man?

This is known as the Parks question.

[12] Justice Doherty, in Parks, at para. 92, explains the benefits of allowing a challenge for cause on the basis of potential racial prejudice:

There are at least three benefits to allowing the question. Some potential jurors who would discriminate against a black accused are eliminated. Prospective jurors who can arrive at an impartial verdict are sensitized from the outset of the proceedings to the need to confront potential racial bias and ensure that it does not impact on their verdict. In this regard, the challenge process will serve the same purposes as the trial judge’s directions to the jury concerning the basis on which they must approach their task and reach their verdict. Lastly, permitting the question enhances the appearance of fairness in the mind of the accused. As indicated earlier, many blacks perceive the criminal justice system as inherently racist. Refusal to allow a black accused to even raise the possibility of racial discrimination with prospective jurors can only enhance the perception. By allowing the question, the court acknowledges that the accused’s perception is worthy of consideration.

POSITION OF THE PARTIES

[13] The accused, Elon Brooks submits that he is a black man of Jamaican descent. The victim of the stabbing was of Asian descent. The allegations involve the use of significant violence. Appellate courts have acknowledged that the insidious nature of black racism is exacerbated in cases where the crime is interracial and violent. Therefore, questions aimed at identifying potential jurors who harbour racial bias with respect to black men are appropriate and the questions proposed in this case address that issue.

[14] Mr. Brooks argues that issues of subconscious racism are such that a challenge for cause framework designed to elicit genuine response from jurors should be adopted. It is submitted that the Questions 1 and 2, as proposed, will achieve that objective.

[15] The Crown submits that, in circumstances where there is no evidence that racial bias may be heightened because of the circumstances of the offense or widespread publicity, the court should not depart from the Parks question which requires a “yes” or “no” answer. The Crown submits that this is particularly applicable in this case since the applicant has called no evidence to support a departure from the standard Parks question.

ANALYSIS AND DISCUSSION

[16] Several courts have affirmed as “a sociological fact that racial stereotyping is usually the result of subtle unconscious beliefs, biases and prejudices”: Peel Law Assn. v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, at paras. 111-12; Parks, at para. 59; Find, at para. 32; R. v. Douse, 2009 CanLII 34990 (ON SC), [2009] O.J. No. 2874 (S.C.), at para. 281.

[17] While we are very familiar with clear and overt racial beliefs, which one would expect should be easy to detect under a “yes” or “no” Parks format, as long as the prospective jurors answer truthfully, insidious racism raises a different challenge. After hearing expert testimony, Durno J. aptly describes this phenomenon in Douse at para. 190:

There are potential jurors who harbor racist attitudes below the threshold of consciousness, deep in their psyche. Those beliefs may have been taught otherwise acquired. The anti-black bias is based on unstated and unchallenged assumptions learned over a lifetime, Parks, para. 58. The holder may believe they are accurate or for other reasons that their views did 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 because they have never been required to do so.

[18] In R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, at para. 22, McLachlin J. (as she then was) wrote:

Racial prejudice and its effects are as invasive and elusive as they are corrosive. We should not assume that instructions from the judge or other safeguards will eliminate biases that may be deeply ingrained in the subconscious psyches of jurors. Rather, we should acknowledge the destructive potential of subconscious racial prejudice by recognizing that the post jury selection safeguards may not suffice. Where doubts are raised, the better policy is to err on the side of caution and permit prejudices to be examined. Only then can we know with any certainty whether they exist and whether they can be set aside or not. It is better to risk allowing what are in fact unnecessary challenges, than to risk prohibiting challenges which are necessary: see Aldridge v. United States, 283 U.S. 308 (1931), at p. 314, and Parks, supra.

[19] Now that the insidious nature of racism has been accepted by the courts, the question is whether the Parks question as currently constituted with the “yes” or “no” options, together with the additional safeguards of the trial of the “cause” by the triers and judicial instructions on the indispensable role of impartiality, is sufficient to address the insidious nature of racism and its impacts on juror impartiality.

[20] In R. v. Griffis, [1993] O.J. No. 3314 (Gen. Div.), at paras. 12-15, Justice Macdonald accepted the testimony of expert witness, Dr. Francis Henry, as “credible, authoritative and persuasive”. Justice MacDonald referred to this excerpt from Dr. Henry’s testimony:

The person may say “No” because they genuinely believe they are not racist because they are not overly bigots, or they may say “No” because it is commonly accepted in a society that harbouring bias or prejudice is a value we do not regard, and therefore, it should not be admitted to even if one felt it privately. So I think there are constraining factors which may make a person say “No” and the evaluator then would have no sense of whether the “no” was an honest genuine “No” – “No”, I’m not biased and I will not be affected or whether the “No” reflected the social acceptable response, or whether the “No” indicates a lack of insight or consciousness of conscious awareness of racial bias.

[21] The Parks question as currently formatted suggests the politically correct answer with it “yes” or “no” format: see also R. v. Kelly (January 7, 1998), (unreported) (Ont. Gen. Div.) [Epstein J.].

[22] In my view, despite the ongoing development of the jurisprudence in this area, we have not settled on a better alternative. The best alternative in my view, is one that significantly reduces the probability that the prospective juror will feel compelled to provide the “politically correct” response and provide them with the best opportunity to answer as truthfully as possible. There have been different court decisions on whether variations on the Parks question can achieve this objective.

[23] The courts have routinely refused to depart from the standard, appellate approved, Parks question in the absence of an evidentiary basis to do so. The primary reasons for such reluctance have been concerns about creating a time consuming and invasive process in the absence of any evidence that the new questions will be an improvement over the Parks question: R. v. Barnes, 1999 CanLII 3782 (ON CA), [1999] OJ. No. 3296 (C.A.); R. v. Koh, 1998 CanLII 6117 (ON CA), [1998] O.J. No. 5425 (C.A.), at para. 45; R. v. Gayle, 2013 ONSC 5343; R. v. L.W., 2013 ONSC 5832; R. v. Barnes, 2012 ONSC 7184; R. v. Stewart, 2011 ONSC 1949; R. v. Ahmad, 2010 ONSC 256, at para. 34.

[24] Douse is a case where a black man was charged with murdering a white woman. In that case, Durno J. heard extensive evidence from defense experts to support the view that the “yes” or “no” format of the Parks question does not provide jurors with a sufficient range of options to fully express their answers in relation to the question asked.

[25] Justice Durno rejected the defence request for a questionnaire to be handed to the jurors, with the results subsequently tabulated and handed to the triers. However, he permitted jurors to be asked a multiple choice question instead of the standard Parks question.

[26] Even in cases where the threshold question of whether there is a need to conduct a challenge for the cause is met, unless it is apparent from the circumstances of the particular case, the issue of whether to utilize the standard Parks question or to utilize another format will require some evidentiary foundation. The evidentiary foundation must be sufficient to demonstrate that the format suggested is an improvement over the standard Parks question.

[27] The Applicant in this case suggested a multiple choice format very different from the format approved by the court in Douse. In addition, in Douse, there was no expert testimony of what questions should be asked in an effective multiple choice format, other than a questionnaire. By “effective”, I mean a format that is an improvement over the standard Parks question.

[28] R. v. Valentine, [2009] O.J. No. 5961 (S.C.), was a case of some notoriety. It involved the shooting death of Jane Creba in a crowed street in downtown Toronto. Both accused were black and there was extensive pre-trial publicity. Justice Pardu permitted a multiple choice format. She observed, 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 offense, and the widespread publicity.

[29] In the present case, the Applicant has proposed two multiple choice questions. Except for an argument stressing that the Parks question has limitations, there is no evidence before me that the multiple choice format proposed is an improvement over the Parks question.

[30] As Justice Strathy (as he then was) observed in R. v. Barnes, 2012 ONSC 7184, at para. 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.

[31] This is not an indictment of all multiple choice formats. Unless it is apparent from the circumstances of particular case, that a multiple choice format will be more effective, caution is required to ensure that we do not replace a question which suggests one politically correct response, and leaves open the possibility that a brave juror may expand on the “yes” or “no” answer, with a series of questions which include additional options of politically correct answers, without some evidence that the particular multiple choice format proposed will be more effective.

[32] I conclude that there is no evidentiary basis to support the applicant’s position that the multiple choice format, as proffered, is an improvement over the standard Parks question. Neither is it readily apparent from the facts of this case that such a change is necessary.

[33] The applicant’s application for a multiple choice format is dismissed. The primary limitation of the Parks question is that jurors may be unaware that they may provide other answers other than the standard “yes” or “no”. Therefore, jurors in this case shall be asked the standard Parks question but they shall also be instructed that they must answer the question honestly. They may provide as much detail as they see fit.

Barnes, J.

Released: November 20, 2015

CORRECTION NOTICE

Corrected decision: the text of the original judgment was corrected on December 7, 2015, and the description of the correction is appended:

Para 4 after the word requirement, “that” has been added; and the word “must” has been deleted.

Para 33 “they shall be told that” has been deleted.

COURT FILE NO.: CRIMJ(P)158/13

DATE: 2015-11-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

ELON BROOKS

AMENDED REASONS FOR JUDGMENT

Barnes, J.

Released: November 20, 2015