COURT FILE NO.: CRIMJ(P) 1987/16
DATE: 2018 04 05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
C. Coughlin and V. Aujla, Crown Counsel
RESPONDENT
- and -
PRABHJEET SINGH
L. Salloum, Counsel for Prabhjeet Singh
ABHIJEET NAGRA
R. Gadhia, Counsel for Abhijeet Nagra
DILSHER SINGH
N. Rozier and K. Perchenok, Counsel for Dilsher Singh
APPLICANTS
HEARD: January 29th, 2018
CORRECTED REASONS FOR DECISION- PRETRIAL MOTION #1
LEMAY J.
[1] The three accused in this case are each charged with one count of manslaughter. The charges arise out of an incident that took place on March 6th, 2015 at Fresh Line Foods.
[2] Early in the morning of March 6th, 2015, the three accused and the deceased, Gurinder Singh, were all working at Fresh Line as cleaners on the night shift. They were using water hoses and other tools to clean the machinery in the plant.
[3] There was an interaction between the three accused and the deceased, the details of which are not relevant to this motion. The result of the interaction was that the accused suffered internal injuries and died as a result of them.
[4] The three accused are all Sikh men, and one of the accused is visibly Sikh as he wears a turban. As a result, all parties (including the Crown) are agreed that there should be a challenge for cause question put to the jury panel and I agree that a challenge for cause is appropriate in this case. The parties cannot agree on the details of the question, and I am required to determine them.
The Proposed Questions
[5] Mr. Salloum, on behalf of Mr. Prabhjeet Singh, proposes the following question:
The accused in this matter are charged with Manslaughter. They are of Punjabi descent, have brown skin and of [sic] the Sikh faith.
As His Honour will instruct you, jurors must judge cases without bias, prejudice or partiality and based solely on the evidence.
Some people do have biases. They believe that brown people or Sikh people are more likely to commit crimes or be dishonest. Other people don’t. They believe that there is no connection between race, crime and truthfulness.
Thinking about what you believe, would you be able to put aside any bias and judge this case based only on the evidence?
[6] Ms. Gadhia, on behalf of Mr. Abhijeet Nagra, proposes the following question:
As His Honour will instruct you, jurors must judge cases without bias, prejudice, or partiality and based solely on the evidence. Some people do have biases. They believe that people from different cultures and races are more likely to commit crimes. Other people don’t. They believe that there is no connection between race and crime.
Thinking about what you believe, would you be able to put any bias assist and judge this case only on the evidence?
[7] Ms. Rozier, on behalf of Mr. Dilsher Singh, generally adopts the question proposed by Mr. Prabhjeet Singh. In the alternative, Mr. Dilsher Singh seeks some small changes to the wording of the question proposed by Mr. Prabhjeet Singh.
[8] The Crown Attorney acknowledges that a challenge for cause is appropriate in this case, but proposes a different question, 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 Defendants are of South Asian descent?
[9] These various questions raise three issues that need to be addressed, as follows:
a) What information should be in the preamble to the question?
b) Should the question include a reference to both religion and race?
c) Should the question be given to potential jurors in advance of it being asked in Court?
[10] I will address each of these issues in the sections that follow. In addressing these issues, I should note that these issues were argued entirely on the basis of the law, and that no factual record was provided to supplement the case-law that I reviewed.
[11] I also note that Mr. Salloum’s application stated that similar questions had been approved by both Dambrot J. and McMahon J. However, Mr. Salloum did not provide me with reasons from either of these judges, so it is impossible to know the factual basis supporting the questions allowed by Dambrot J. and McMahon J., or whether these questions were the subject of argument.
Issue #1- The Preamble
[12] In support of this preamble, Mr. Salloum argues that it is more specific and, therefore, more helpful to the triers of the challenge for cause (“the triers”) in assessing whether someone could serve on the jury impartially. Ms. Rozier essentially adopts this submission.
[13] Ms. Gadhia has some of the same elements in her preamble, but takes a more nuanced position. She is of the view that some of the elements in the preamble proposed by Mr. Salloum should be removed as they identify unsubstantiated assumptions. Ms. Gadhia is also concerned about raising issues that potential jurors have not thought of.
[14] Crown Counsel, Mr. Aujla, rejects these submissions. He argues that the questions have to be based on a realistic potential for partiality. The details that the defence seeks to include in this case do not have the necessary support in the case-law and should not be included.
[15] I am of the view that the detailed, specific preamble is unnecessary for two reasons. First, as I noted above, there was no evidence of any sort that would persuade me that a departure from the usual wording was either necessary or helpful in this case.
[16] Second, the purpose of the Parks inquiry is to ensure that the triers consider racial bias in determining whether someone is fit to serve on a jury. All that the detailed preamble proposed by Mr. Salloum accomplishes is to include a list of potential ways in which bias can manifest itself. It is unnecessary and has the potential to be misleading if a trier or a prospective juror believes that the listing of types of bias is complete. The general preamble is both clearer and more complete.
[17] As a result, the preamble proposed by Mr. Salloum and Ms. Rozier will not be used.
Issue #2- The Addition of the Sikh Religion to the Question
[18] Again, as I noted, there was no evidence before me on this issue. As a result of this, I am left to determine the outcome based on the submissions and the law.
[19] All of the accused are requesting that a specific reference to the fact that the accused are Sikh be included in the question. The Crown opposes this position based on the reasoning in R v. Koh ((1998) 1998 CanLII 6117 (ON CA), 42 O.R. (3d) 668 (C.A.)). In that case, the Court of Appeal found (at paragraph 30) that distinctions between the various ethnic groups that make up the Asian community were “unhelpful”, and that any prejudice would be triggered by skin colour.
[20] I am not prepared to adopt the Crown’s position for three reasons. First, as I have noted, at least one of the accused wears a turban. As a result, there is an outward manifestation of his religious beliefs, and prejudice may be triggered by this manifestation.
[21] Second, at the preliminary stage of a challenge for cause, the trial judge has a discretion as to whether he or she is going to permit a challenge for cause. However, as noted in R v. Williams (1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128), the exercise of that discretion should be done in a generous manner. In other words, where there are doubts, the Court should err on the side of allowing the challenge for cause.
[22] Finally, identifying the individuals as Punjabi Sikhs is not going to add any time to the Court proceeding and there is no other prejudice that I can see to the Crown in permitting this information being included in the challenge question. Indeed, this precise question has been used in other cases in Peel Region (see R v. Punia 2016 ONSC 475)
[23] As a result, the question will specifically identify the accused as Punjabi Sikhs.
Issue #3- When to Tell Jurors the Question?
[24] Mr. Salloum and Ms. Rozier both argue that the question should be given to each prospective juror in advance of it being asked in the witness box. They argue that this will allow the opportunity for the prospective juror to contemplate the question and reflect on it.
[25] In support of this position, they point to the decision of Durno J. in R v. Douse (2009 CanLII 34990 (ON SC), [2009] O.J. No. 2874, 246 C.C.C. (3d) 227) where it was stated (at paragraphs 225 and 226):
While not addressed at the hearing, the timing of the question has arisen in some judgments dealing with challenges for cause. Some judges tell the panel members the question(s) when providing the instructions. Others provide general instructions and the first time the potential juror hears the question is when he or she is called and sworn or affirmed. Some counsel do not want the potential juror to have time to consider their answer before being required to answer it. Others are content to have the potential jurors know the questions in advance. Oliver, para. 59. Again, the timing is an issue over which reasonable persons may differ.
Professor Freedman testified that the Parks question requires introspection by the potential juror. I agree. Subject to further input from counsel before jury selection, having regard to the result of his survey where it appeared potential jurors were rejected for thinking about the question, a view supported in Oliver, at para. 59, I am inclined to include the question in the instructions to the panel. We want juror to reflect on the evidence and arrive at a just verdict after careful deliberations. Asking a person the questions for the first time when they are in an unfamiliar setting, the witness box of a public courtroom in front of strangers, on this record appears to be unfair to the potential juror and raises the realistic potential that individuals who would be impartial are rejected because they reflect on their answer.
[26] Ms. Gadhia and Mr. Aujla both disagree, although Mr. Aujla acknowledged that he was not pressing the point strongly. The basis for their disagreement is the view that the spontaneous nature of asking the prospective juror the question for the first time in the witness box produced a more accurate and genuine answer. There was no time for the juror to think about what the “best” or “most appropriate” response would be. Asking the question spontaneously would produce answers that were more accurate.
[27] It is clear from the decision of Durno J. that judges adopt both approaches. There is no appellate case law that I am aware of that identifies one approach as being better than the other. In addition, I have no evidence before me as to which approach is better. As a result, it is left to my discretion.
[28] In exercising that discretion, I also have regard to the decision in R v. Johnson (2010 ONSC 3970) where Nordhemier J. (as he then was) stated:
- What the Douse approach does not provide for, however, is the advantage of having the prospective juror answer the question spontaneously and in his or her own words and manner. Rather, the Douse approach directs the prospective juror to select a stock or pre-fixed response. If the goal of the process is to attempt to get at the true attitude of the prospective juror when it comes to matters of racial bias or partiality, then it seems to me that the triers would gain a great deal more in that regard from the spontaneous response of the prospective juror than would be revealed by the person selecting from a list of answers framed in the words of others.
[29] In this case, I exercise my discretion against allowing the jurors to be made aware of the question in advance of being asked the question in the witness box. The question will not be provided to the panel members in advance.
Conclusion
[30] Based on the foregoing reasons, the question that will be put to each prospective juror is as follows:
a) As His Honour will tell you, in deciding whether or not the prosecution has proven the charge against the accused, a juror must judge the evidence of the witnesses without bias, prejudice or partiality.
b) Would your ability to judge the evidence in this trial fairly be affected by the fact that the people charged are Punjabi Sikhs?
[31] The question will not be given to the prospective jurors before they are asked the question in the presence of the triers.
LEMAY J
Released: April 5, 2018
COURT FILE NO.: CRIMJ(P) 1987/16
DATE: 2018 04 05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
RESPONDENT
- and -
PRABHJEET SINGH, ABHIJEET NAGRA and DILSHER SINGH
APPLICANTS
CORRECTED REASONS FOR DECISION- PRETRIAL MOTION #1
LEMAY J
Released: April 5, 2018