Court File and Parties

COURT FILE NO.: CR-18-1164 DATE: 2020 06 11 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

TRAYON JOHNSON and RICHARD IRELAND Applicant M. Addie and J. Kopman, for the Applicant Trayon Johnson A. Perrin, for the Applicant Richard Ireland

- and -

HER MAJESTY THE QUEEN Respondent E. Taylor and C. Presswood, for the Respondent Crown

HEARD: April 29 to June 21, 2019

REASONS FOR DECISION ON CHALLENGE FOR CAUSE QUESTION

BARNES J.

Introduction

[1] Trayon Johnson and Richard Ireland are charged with second degree murder for the killing of Mark Chavez, and with the attempted murder of Jackson Merizzi.

[2] Trayon Johnson seeks an order under s. 638(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46, permitting him to challenge prospective jurors for cause. Mr. Johnson proposes that the traditional challenge for cause Parks questions be augmented with multiple-choice options. He describes the basis of his challenge as “the likely existence of racist, discriminatory or otherwise intolerant attitudes towards men of African ancestry”.

[3] Trayon Johnson is a black man, and Richard Ireland is white. The victim, Jackson Merizzi, is white, and the deceased, Mark Chavez, is Latino. The racial overtone of the offence and allegations is obvious. Mr. Ireland is not participating in this motion.

[4] The parties have agreed that each prospective juror shall be asked a series of multiple-choice questions. For reasons articulated below, I approved the proposed questions.

Analysis

[5] In R. v. Parks, [1993] O.J. No. 2157 (C.A.), at para. 16, the Court of Appeal for Ontario approved the following question, at para. 16:

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:

(2) 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?

[6] Mr. Johnson has proposed a variation of the traditional Parks question and requests that it be augmented with multiple-choice options.

[7] I take judicial notice that racial stereotypes and racial bias exist in society. These stereotypes can negatively and adversely impact a potential juror’s ability to be impartial. In the modern era, in cases with racial overtones, the use of an appropriately-worded challenge for cause is indispensable to the effort to ensure that prospective jurors are able and willing to set aside any racial biases and adjudicate trials impartially. In effect, there is no need to provide an evidentiary basis to support this proposition: R. v. Rollocks, [1994] O.J. No. 1458 (C.A.), at para. 49.

[8] Canadian jurisprudence has acknowledged that anti-black bias is entrenched in some individuals, societies and institutions. Such attitudes, conduct, and beliefs are so engrained in the subconscious that judicial cleansing alone is insufficient to ensure impartially: Parks, at para. 59. An approach that limits the effects of racial stereotypes to blacks, to the exclusion of other minorities, is one that is not in touch with the reality of the attributes and effects of racial discrimination. In R. v. Koh, [1998] O.J. No. 5425 (C.A.), at para. 30, Finlayson J.A. writing for a unanimous court concluded that “[t]he prejudice, where it occurs, is triggered by skin color. The same would apply to all visible non-Caucasian minorities”.

[9] Overt racist beliefs, attitudes, and conduct are easy to detect when expressed. When answered honestly and in the affirmative, the Parks question is well-suited to identify overt racist beliefs such that the adverse impact on the juror’s ability to be impartial is obvious. It has been acknowledged that the Parks question suggests a politically-correct response and is too simplistic. This is because it does not adequately capture the contemporary understanding of racism and racial bias in Canadian society: R. v. Wilson, [1996] O.J. No. 1689 (C.A.), at para. 21; R. v. Johnson, 2010 ONSC 5190, at para. 15.

[10] Contemporary understandings of racism and racial bias acknowledge and place appropriate weight on the effects of unconscious racial bias: R. v. Williams, [1998] 1 S.C.R. 1128, at paras. 20-21. In effect, the modern understanding of racism and racial bias acknowledges that “good” people can also have unconscious racial bias. This circumstance is aptly described by Durno J. in R. v. Douse, [2009] O.J. No. 2874 (S.C.), at para. 190 as follows:

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. Parks, para. 58. 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 prejudiced views, perhaps because they have never been required to do so.

[11] It is a sociological fact that “racial stereotyping will usually be the result of subtle unconscious belief, biases and prejudices”: Peel Law Assn. v. Pieters, 2013 ONCA 396, at para. 111.

[12] Canadian courts have acknowledged that appropriately-constructed multiple-choice challenge for cause questions are more probative and potentially better able to identify the vexing subconscious racism issue than the standard “yes/no” format of the Parks question: R. v. Valentine, [2009] O.J. No. 5961 (S.C.), at paras. 9-11; R. v. Smith, May 11, 1999 (unreported), at pp. 1-2 (Ont. Gen. Div.); R. v. Kelly, January 7, 1998 (unreported), at pp. 4-5 (Ont. Gen. Div.); Douse, at paras. 222-223; R. v. Lewis, 2011 ONSC 7631, at paras. 3-5.

[13] Courts have also refused to permit the use of multiple-choice questions on the basis of legitimate concerns over lengthening the challenge process, intruding on individual privacy, and the possibility of perverse results: R. v. Ahmad, 2010 ONSC 256, at paras. 24-34. Legitimate concerns have also been raised about whether multiple-choice questions are better than the Parks questions: Johnson, at paras. 3-13; R. v. Stewart, 2011 ONSC 1949, at paras. 8-9. I echoed the same concerns in R. v. Brooks, 2015 ONSC 6299, at para. 31.

[14] In Brooks, I concluded that the multiple-choice question simply replaced one suggested politically-correct question (the Parks question) with multiple politically-correct questions. I failed to see the utility of multiple-choice questions in Brooks. However, in this case, a detailed consideration of the prevalence and effects of subconscious racial bias and the multiple-choice questions proposed has led me to a different conclusion.

[15] The human phenomenon referred to as subconscious racial bias was aptly described by expert testimony and accepted in R. v. Griffis, [1993] O.J. No. 3314 (Gen. Div.), at para. 12, as follows:

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

[16] The danger that unexplored subconscious racial bias can adversely impact a prospective juror’s ability to be impartial and potentially lead to a wrongful conviction is too important to ignore. However, simply proffering a multiple-choice question does not automatically mean that the question is superior to the standard Parks questions. The questions as constructed must be more effective than the standard Parks question in unlocking the mental vault of subconscious racial bias. For example, the questions must stimulate the introspection and truthfulness necessary to enable the prospective juror and the trier of the challenge to determine whether the juror can set aside any overt or subconscious prejudices to render an impartial verdict. In other words, not all multiple-choice questions are created equal: Brooks, at para. 31.

[17] In this case, I am satisfied that the multiple-choice questions proposed by the parties would be more effective than the standard Parks question and would help determine whether the prospective juror “can judge the evidence of the witnesses without bias, prejudice or partiality”.

Conclusion

[18] For the reasons outlined above, the proposed multiple-choice questions are approved. Each prospective juror shall be read and asked the following:

The Crown alleges that the offences charged were committed by the two co-accused individuals. One of the defendants, Mr. Trayon Johnson, is a black man.

In deciding whether or not the prosecution has proven the charges against the defendant, a juror must attempt to judge the evidence of the witnesses without bias, prejudice, or partiality.

I am going to ask you two questions. After you hear each question, you will be asked to select an answer from a list of multiple-choice options.

Question 1

Some people believe that members of certain racial or ethnic groups are more likely than others to commit certain types of crimes or violence.

Do you believe that black men are more likely than other men to commit certain types of violent crimes?

Which of the following answers most accurately reflects what you believe:

a) I strongly agree. b) I agree, but not strongly. c) I disagree, but not strongly. d) I strongly disagree. e) I don't know.

Question 2

As a result of attitudes that some people have grown up with, or experiences they have had, it may be more difficult for them to attempt to judge the evidence of the witnesses without bias, prejudice or partiality.

Might you be even slightly hesitant in your ability to judge the case fairly given that one of the individuals charged is a black man, one of the victims is white, and the other victim had a white mother and a Latino father?

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.

“ Original signed by Justice Barnes ”

Justice K. Barnes

Released: June 11, 2020