R. v. Stanley, 2020 ONSC 6876

COURT FILE NO.: CR-19-30000281

DATE: 20201110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TAUFIQ STANLEY

Donna Kellway and Tim Edwards, Counsel for the Crown

Dirk Derstine and Jordyn Cowley, Counsel for the Accused

HEARD: October 14 and November 4, 2020

M.A. CODE J.

REASONS FOR JUDGeMENT

A. OVERVIEW

1The accused Taufiq Stanley is awaiting trial on an Indictment alleging one count of first degree murder. Jury selection is scheduled to proceed in the week of November 16, 2020. The accused has brought a pre-trial motion seeking to challenge prospective jurors for cause pursuant to the statutory power set out in s. 638(1)(b) of the Criminal Code, namely, that “a juror is not impartial”.

2There are two bases for the alleged lack of impartiality: pre-trial publicity; and race. The Crown does not oppose either ground for the proposed challenges. After reviewing the materials filed at the initial hearing on October 14, 2020, I agreed that both grounds for the proposed challenges had merit. The only issue was the form and content of the proposed questions. Agreement was quickly reached as to the questions relating to pre-trial publicity. There was no agreement as to the questions relating to race. In addition, the accused wished to call certain social science evidence on that issue. Accordingly, the hearing of the motion was adjourned and other pre-trial motions proceeded in the interim.

3On November 4, 2020, the hearing of the motion resumed. The accused called Professor Scot Wortley, an acknowledged expert in the field of social science research methodology and systemic racism in the criminal justice system. In addition, further written materials were filed on the motion. After hearing oral argument, I reserved judgement. These are my Reasons for Judgement.

B. FACTS

(i) The facts relating to the pre-trial publicity issue

4The alleged murder occurred on April 15, 2017. The accused Stanley was arrested on June 29, 2017. These events attracted some publicity at the time. The April 15, 2017 homicide had been preceded by another shooting in the same residential neighbourhood on April 13, 2017 in which two individuals were struck by bullets. Stanley was charged with attempt murder in relation to the April 13, 2017 incident and with murder in relation to the April 15, 2017 incident. A number of other accused were charged in relation to one or both incidents but not all of the accused were arrested at the time of Stanley’s arrest. The facts relating to these two incidents are more fully set out in my Reasons for Judgement on the “Prior Discreditable Conduct” motion. See: R. v. Stanley, 2020 ONSC 6673.

5Given that the above events occurred some three and a half years ago, one would expect the publicity to have died down by the time of the present trial. Unfortunately, that did not happen due to two events which had the effect of reviving the pre-trial publicity. First, there were further arrests of two other accused in November 2018 and July 2020. Second, the accused Stanley brought a bail application in this Court which was heard in April 2020. Although the bail application was accompanied by the usual statutory publication ban, pursuant to ss. 522(5) and 517(1) of the Criminal Code, much of the media coverage appears to have violated that publication ban. This may, in part, have been due to the fact that the bail proceedings were conducted by telephone, due to the Covid-19 closure of the Court House. The inevitable informality of attending court proceedings by telephone may have been a contributing cause of this unfortunate breach of a court order.

6Without detailing all of the recent publicity generated by the above two events, it included the following: the fact that Stanley had been denied bail for the last three years; a very sympathetic portrayal of the deceased; a very unsympathetic portrayal of the “senseless” murder; the facts of the somewhat related but presumptively inadmissible earlier shooting that had resulted in attempt murder charges; some discussion of an alleged “neighbourhood rivalry” motive for the two shootings (although I am advised that no such evidence will be called at trial); and detailed coverage of Crown counsel’s successful submissions opposing bail, including the evidence relied on by the Crown in relation to the secondary ground such as the fact that a handgun had been found under the pillow of Stanley’s bed at the time of his arrest, inferring that he slept with a gun (once again, this is not evidence that will be tendered at trial).

7In light of the above record, it was agreed between both counsel and the Court that the following three questions could be asked on the challenge for cause:

Have you read, heard, or seen any information about this case on the Internet, television, radio, print, or from any other person or source?

As a result of such information, have you formed any opinions about the guilt or innocence of Taufiq Stanley?

(If applicable) Would you be able to set aside any such opinions and decide the case based only on the evidence you hear at trial and His Honour’s instructions on the law?

8I will have provided the prospective jurors with a broad summary of the facts of the case during my “Opening Instructions to the Panel”, such that they will know in general terms the nature of the case that is about to be tried.

(ii) The facts relating to the race issue

9I will review some of Professor Wortley’s evidence in further detail in the next section of these Reasons, when analysing the form and content of the questions that should be permitted on the challenge for cause relating to race. In brief summary, Professor Wortley is critical of the “standard” question that emerged over 25 years ago from the Court of Appeal’s decision in R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont. C.A.). That question, as framed by most judges of this Court, is as follows:

As the Judge will tell you, in deciding whether the prosecution has proved the charge against an accused person, a juror must judge the evidence without bias, prejudice, or partiality.

Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the person charged is Black?

10Professor Wortley’s two main criticisms of this “standard” Parks question are set out succinctly in his report, filed on the motion in this case:

To begin with, the question is too transparent. It is tantamount to asking someone: “Are you racist?” In today’s social climate, most people will automatically recoil from this question and immediately respond in the negative. Furthermore, research suggests that many people who state that they are “not racist” still harbour strong racial stereotypes, prejudices, and preferences.

11Professor Wortley testified that the social opprobrium that attaches to racist attitudes in present day Canadian society deters prospective jurors from self-identifying, when asked forcefully and directly about any such attitudes. In addition, some prospective jurors are simply unable to recognize their own racist attitudes. As a result, more subtle and complex questioning is required. Once again, Professor Wortley’s report helpfully summarized his views on this issue. He set out both ideal social science practises, as well as more succinct and practical methodologies that could be adapted to the court room:

… psychologists, sociologists and other social scientists have developed a number of complex strategies for measuring racial attitudes and prejudice. For example, in a recent review of the literature, Gamst et al. (2011) identify thirty-seven different scales or indexes that have been explicitly developed, over the past 20 years, to measure racism and prejudice within the general population. These racism scales include between ten and sixty multiple-choice questions that can be combined to produce a single racial bias measure. All of these scales have been tested and validated using large samples of respondents. They can all be scored with respect to the likelihood that a person harbours racist attitudes.

Research does suggest that more complex questioning is more effective at screening for possible bias than simple one or two question procedures (Schuller et al. 2015). A potential obstacle to the use of more advanced methodologies in challenge for cause proceedings is the time it would take for the court to administer in-depth questionnaires and analyze the data. A possible compromise would involve the administration of a small number of closed-ended and open-ended questions that would better identify how jurors view the relationship between race and crime. Below I present five items that, in my opinion, represent an improvement over the current Parks question.

12The five questions initially proposed by Professor Wortley, in place of the “standard” Parks question, were reduced to either three or four questions by Mr. Derstine, counsel for the accused (he preferred all four questions but was willing to drop the second question, if necessary). These questions were as follows:

1. Do you agree or disagree with the following statement: “Black people are more [likely to be] involved in criminal activity than people from other racial backgrounds.”

a) Strongly Agree

b) Agree

c) Neither agree nor disagree

d) Disagree

e) Strongly disagree

2. In your opinion, what proportion of the Black population do you think are involved in criminal activity? Would you say:

a) Only a few Black people – a small percentage of the population – are involved in crime

b) More than a few – but less than half – of the Black population are involved in crime

c) About half the Black population are involved in crime

d) More than half the Black population are involved in crime

e) Almost all Black people are involved in crime

3. In your opinion, why do you think Black people are more involved in crime than people from other racial backgrounds? What are the reasons?

4. How might your ability to judge the evidence in this case be affected by the fact that the defendant is Black?

13Professor Wortley testified that his first proposed question is a preliminary screening tool. It does not ask the prospective juror about bias but about a statistical relationship between crime and a particular ethnic or racial group. He acknowledged some complexity in the question because the term “criminal activity” is not defined. If the prospective juror understood the question as referring to “gun crime”, Professor Wortley testified that it would be accurate to reply “yes”, based on his own statistical research. He elaborated on this point in his report, as follows:

… if asked Question One, I would respond that I do believe that Black people are more involved in some types of crime (street crime and violence), but under-represented in other types of criminal behaviour (corporate and financial-sector crimes). I would base this answer on my knowledge of crime statistics and the criminological literature.

14Given the above reasoning, acknowledging that there is some correlation between race and crime is some circumstances, Professor Wortley testified that the first question does little on its own. It requires follow-up questions that inquire into the reason why the prospective juror believes there is a relationship between race and crime, in order to uncover any racist reasons for the juror’s belief in such a relationship.

15Professor Wortley testified that the second question begins to get at racist attitudes. If the prospective juror believes that a high proportion of the Black community are involved in crime, then that juror’s response suggests racist generalizations. As Professor Wortley put it in his report:

The second question documents the respondent’s perceptions about how widespread criminality is within the Black community. Criminologists know that serious criminal behaviour is quite rare among people from all racial backgrounds. Regardless of race, most people do not engage in crime. Thus, in my opinion, respondents who believe that half of the Black population, or more, are involved in crime likely harbour strong stereotypes about the relationship between race and crime and may not be able to judge a case involving a Black defendant in an impartial manner.

16The third question is the critically important one, according to Professor Wortley, because it gets at racial bias by asking “why”, in order to see if there is a racist reason for the juror’s belief in a particular correlation between crime and race. Professor Wortley testified that there are racist and non-racist reasons for believing that there is a relationship between race and high crime rates. For example, the effects of colonialism and socio-economic disadvantage are non-racist explanations for such a correlation. He testified that not everyone who believes there is a relationship between race and crime is racist. It is only when the prospective juror gives a racist reason for his/her belief in a correlation between race and crime that there should be concerns about partiality. Professor Wortley elaborated on this point in his report:

The third question is open-ended. It asks respondents to discuss why they think Black people are more involved in crime than others. I think it is crucially important for respondents to explain – in their own words – why they believe that there is a relationship between race and crime.

…in response to Question Three, I would clarify that the over-representation of Black people in street crime reflects a long history of colonialism and slavery. A history that has produced contemporary racial inequities with respect to education, employment, income and housing. In other words, I believe that racial differences in economic and social disadvantage cause racial differences in crime – not race.

Thus, it is not whether someone thinks that Black people are more involved in crime than others that is the issue. It is how they explain the perceived relationship between race and crime. If someone thinks that Black criminality is due to genetic or culture factors, rather than poverty or socio-economic inequality, evidence of racial bias is strong. In such cases the courts should seriously consider whether a person can judge cases involving Black defendants in a fair and impartial manner.

17Finally, Professor Wortley’s report explained both the form and function of his fourth proposed question:

Question Four is also open-ended. It allows the potential juror, in their own words, to explain why they think they can – or cannot – fairly judge a case involving a Black defendant. Questions One through Three have made the respondent think about the issue of race and racial bias. Question Four allows them to discus their objectivity. I do believe that this question is superior to the simple “Yes/No” responses elicited by the Parks question and will give counsel more information from which to identify potential biases (see evidence provided in Schuller et al 2009).

18It can be seen that Professor Wortley’s first and second proposed questions utilize “closed end” multiple choice formats. On the other hand, the third and fourth questions are both “open-ended” and they do not utilize multiple choice answers. One of Professor Wortley’s criticisms of the “standard” Parks question is that it is “closed-end” and it also invites a “yes or no” answer. He testified that the “closed end” multiple choice format is preferable because it helps to identify jurors who are ambivalent or ambiguous and gives them a better chance to elaborate, compared to the “standard” Parks question. In addition, the “open-ended” third and fourth questions are “more reflective” and invite “more nuanced” answers. The fourth question is taken from a “reflective format” question that was used in a York University “mock jury” study, published online in 2008. This study had a significant impact on Professor Wortley’s thinking and it is cited by him in the excerpts from his report set out above. See: Schuller et al, “The Impact of Prejudice Screening Procedures on Racial Bias in the Courtroom” (2009), 33 Law and Human Behaviour 320.

19Professor Wortley had testified before Durno J. over ten years ago in one of the leading post-Parks cases, R. v. Douse (2009), 2009 CanLII 34990 (ON SC), 246 C.C.C. (3d) 227 (Ont. S.C.J.). He provided Durno J. with some of the above summarized criticisms of the “standard” Parks question and Durno J. was persuaded to make some changes. Professor Wortley agreed that the proposed questions in the present case had not been put before the Court in Douse and that they are different from the question approved by Durno J. in Douse. He also agreed that the proposed questions in the present case were not used in the “mock jury” Schuller study at York University, except for the fourth question which was used and was found to be effective in that study. Professor Wortley was not aware of any other social science study where the proposed questions in the present case have been used and evaluated. Finally, he agreed that the first three proposed questions in the present case all require the trier of the challenge for cause (now the trial judge, as a result of the recent Criminal Code amendments) to draw inferences and evaluate the answers and then relate those inferences and evaluations to the s. 638(1)(b) issue of whether “a juror is not impartial.” In addition, he agreed that none of the four questions address the second or “behavioural component” of the Parks analysis, that is, whether a juror can set aside any bias or prejudice.

C. ANALYSIS

(i) The history of the present motion

20The present motion, seeking leave to challenge for cause on the basis of race, has evolved somewhat since it was first filed. The original Notice of Application was dated September 14, 2020 and it requested a challenge that utilized the “standard” Parks question. It was not opposed. At that time, the accused Stanley was still entitled to 20 peremptory challenges pursuant to s. 634(2)(b) of the Criminal Code, as a result of the Court of Appeal’s decision in R. v. Chouhan (2020), 2020 ONCA 40, 384 C.C.C. (3d) 215 at paras. 210-212 (Ont. C.A.), holding that recent amendments to the Criminal Code were prospective.

21However, on October 7, 2020 the Supreme Court of Canada allowed the Crown’s appeal in Chouhan and reversed the above decision of the Court of Appeal. The Supreme Court held that the 2019 Criminal Code amendments, repealing s. 634 and abolishing peremptory challenges, were retrospective. The legislative amendments came into force on September 19, 2019 and, therefore, applied to this case. The Supreme Court has not yet released its Reasons for Judgement. The 2019 legislative changes are found in Bill C-75, An Act to amend the Criminal Code, 1^st Sess. 42^nd Parl., 2019, c. 25, ss. 269 and 272.

22As a result of these developments, the accused Stanley no longer has peremptory challenges. On October 9, 2020, he filed an Amended Notice of Application and submitted that the loss of peremptory challenges now meant that “challenges for cause are the only means by which the accused person is able to participate in the selection process” and that “the challenge for cause, to assess and cure partiality in the jury, takes on an even greater importance”. Instead of the “standard” Parks question, Stanley now sought to ask two multiple choice questions which Barnes J. had permitted in R. v. Johnson and Ireland (2020), 164 W.C.B. (2d) 354 (Ont. S.C.J.). The two questions were as follows:

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

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? 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.

23It can be seen that the first question from Johnson and Ireland set out above is similar to the first question now proposed by Professor Wortley (see para. 12 above), but the second question from Johnson and Ireland differs from Professor Wortley’s second, third, and fourth proposed questions. This led to a further development in the present motion, once Professor Wortley was consulted. On October 30, 2020, a Revised Notice of Application was filed. Based on Professor Wortley’s advice, the accused Stanley now sought a two step challenge for cause. All prospective jurors would be asked to complete a 15 question survey that would “yield a numerical score”. The survey probed attitudes about “political correctness”, about acting in certain prejudicial ways, about dominance and advantages of certain groups in society, and about the level of “attention” given to Black people by the government. The results of the survey would be provided to the trier of the challenge for cause. The second step would be to ask two questions in open court (which bear some resemblance to Professor Wortley’s first and third proposed questions summarized above):

Do you believe that black men commit more violent crime than other groups?

(If applicable) Why do you think that is?

24The final development in the present motion was that counsel received Professor Wortley’s written report dated November 2, 2020 and was able to meet with him prior to the hearing of the motion on November 4, 2020. As a result of the report and the meeting, Mr. Derstine abandoned Professor Wortley’s first proposed step in the challenge (the 15 question survey), although Professor Wortley made it clear in his testimony on the motion that these “scored” questionnaires are the ideal social science tool for uncovering racist attitudes. In addition, Professor Wortley and Mr. Derstine now agreed on the four proposed questions, as already summarized above at para. 12.

(ii) The law relating to the statutory challenge for cause power

25I do not intend to embark on a lengthy discussion of the law relating to challenge for cause. The issue in the present case is a narrow one, namely, the appropriate form and content of questions in a Parks challenge. However, the general law concerning the statutory right to challenge for cause provides the broad context in which to evaluate the particular form and content of the Parks question or questions.

26In my view, four broad propositions emerge from the well-known leading authorities concerning challenge for cause. They are as follows:

• First, there is a presumption that jurors will carry out their duties with impartiality. This presumption is based on long experience with the practice of trial by jury. Unless the presumption is rebutted, challenge for cause is not permitted;

• Second, the presumption of impartiality can be rebutted upon a showing that there is a “realistic potential or possibility for partiality” in the circumstances of a particular case. Pre-trial publicity and race-based prejudices are the most common ways in which the presumption can be rebutted;

• Third, once the presumption has been rebutted and challenge for cause has been permitted, the trial judge has considerable discretion in determining the number and form of the questions. Relevant considerations, in this regard, are whether the proposed questions will “unnecessarily ... invade the privacy of the potential jurors, or unnecessarily ... prolong the trial”;

• Fourth, there are two relevant issues that a challenge for cause should inquire into, namely, whether a particular source of prejudice or lack of partiality exists in the prospective juror and whether the prospective juror can set it aside. These two avenues of inquiry are often referred to as the “attitudinal component” and the “behavioural component” of lack of partiality.

See: R. v. Spence (2005), 2005 SCC 71, 202 C.C.C. (3d) 1 (S.C.C.); R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97 (S.C.C.); R. v. Williams (1998), 1998 CanLII 782 (SCC), 124 C.C.C. (3d) 481 (S.C.C.); R. v. Parks, supra; and R. v. Sherratt (1991), 1991 CanLII 86 (SCC), 63 C.C.C. (3d) 193 (S.C.C.).

(iii) Whether the form and content of the “standard” Parks question is immutable or instructive.

27In my view, the exact form of the Parks question was not dictated by the Parks decision. In that case, the Court of Appeal approved the particular question proposed by counsel, without ever suggesting that it was somehow immutable. In addition, the law clearly gives trial judges a broad discretion to tailor challenge for cause questions to the needs of the particular case. Finally, trial judges have learned through their actual experience with the “standard” Parks question that certain variations can improve the clarity of the question. For example, in R. v. Johnson, 2010 ONSC 5190 at paras. 15-16, Nordheimer J. (as he then was) suggested one revision that has been widely adopted:

I do recognize, as have many other courts, that the Parks question is not perfect. For one thing, the use of the expression “without bias, prejudice or partiality” has, in my experience, proven to be confusing to many prospective jurors. In addition, there is nothing in the question that draws the prospective juror’s attention to the ultimate goal and that is to find jurors who will consider the evidence in the trial in a fair manner. Trial fairness is at the heart of the challenge for cause process but the question itself makes no reference to that concept.

Consequently, I suggested, and counsel for both the prosecution and the defence agreed, that it would be preferable if the standard Parks question was amended to read 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 person charged is black?

28Another variation, based on judicial experience with the “standard” Parks question, arises from the fact that prospective jurors are sometimes confused by the fact that the question requires a negative answer, if the prospective juror is unbiased and is able to try the case fairly. An arguably better formulation, which invites a positive answer from the unbiased prospective juror, is as follows:

As His Honour will tell you, in deciding whether or not the prosecution has proved the charge against an accused, a juror must judge the evidence without bias, prejudice or partiality.

Would you be able to judge the evidence in this case fairly, given that the person charged is black?

29Although the Court of Appeal did not dictate the exact form and content that the Parks question should take, Doherty J.A. did make a number of important and instructive points in that regard. In particular, he explained why the form and content of the question proposed by counsel (which has become the “standard” Parks question) was acceptable. He stated the following (R. v. Parks, supra at pp. 362 and 364-5):

The Criminal Code, R.S.C. 1985, c. C-46, provides for: the right to challenge for cause based on partiality (s. 638(1)(b)); the form in which the challenge may be presented (s. 639); and the way in which the validity of the challenge is to be determined (s. 640). The rest of the controlling law is judge-made. Under the prevailing jurisprudence, the trial judge must supervise and control the challenge process so that it remains within the bounds of a legitimate inquiry into the impartiality of potential jurors. In exercising this supervisory function, the trial judge does not decide the ultimate validity of any challenge for cause based on partiality, but only whether the challenge should proceed: R. v. Barrow (1987), 1987 CanLII 11 (SCC), 38 C.C.C. (3d) 193 at p. 209 (S.C.C.).

Trial judges often perform their supervisory function by vetting the questions counsel propose to ask prospective jurors. The questions must go to an issue which is relevant to the jurors' potential partiality, that is, the answers to the question or questions must provide a rational basis upon which the triers may assess partiality. It is not, however, enough that the questions be relevant. The party seeking to put the questions must go further and establish grounds for legitimate concern with respect to the basis for the alleged partiality put forward.

I turn now to the relevance of the question posed by counsel for the accused. To determine relevancy, one must define partiality in the context of the challenge-for-cause process. Partiality has both an attitudinal and behavioural component. It refers to one who has certain preconceived biases, and who will allow those biases to affect his or her verdict despite the trial safeguards designed to prevent reliance on those biases: J.E. Pfeifer, “Reviewing the Empirical Evidence on Jury Racism: Findings of Discrimination or Discriminatory Findings?” 69 Neb. L.R. 230 (1990). A partial juror is one who is biased and who will discriminate against one of the parties to the litigation based on that bias. To be relevant to partiality, a proposed line of questioning must address both attitudes and behaviour flowing from those attitudes.

Partiality cannot be equated with bias: S.L. Johnson, “Black Innocence and the White Jury”, 83 Mich. L.R. 1611 (1985), at pp. 1649-51; D.L. Suggs and B.D. Sales, “Juror Self-Disclosure in the Voir Dire: A Social Science Analysis”, 56 Ind. L.J. 245 (1981), at p. 248. Questions which seek to do no more than establish that a potential juror has beliefs, opinions or biases which may operate for or against a particular party cannot establish partiality. A diversity of views and outlooks is part of the genius of the jury system and makes jury verdicts a reflection of the shared values of the community. It is inevitable that with diversity come views which can be described as biases or prejudices for or against a party to the litigation. Those biases will take various forms and be of varying degrees. Some biases, such as the presumption of innocence, are crucial to the rendering of a true verdict. Others, by their very nature, will be irrelevant to the case in point. Those biases which can be set aside when a person assumes his or her role as juror are also irrelevant to the partiality of the juror. A juror's biases will only render him or her partial if they will impact on the decision reached by that juror in a manner which is immiscible with the duty to render a verdict based only on the evidence and an application of the law as provided by the trial judge.

In this case, the issue to be determined on a challenge for cause was not whether a particular potential juror was biased against blacks, but whether, if that prejudice existed, it would cause that juror to discriminate against the black accused in arriving at his or her verdict.

The question framed by counsel for the accused captured both components of the partiality requirement. It asked whether a prospective juror's ability to act in accordance with the trial judge's directions would be affected by the colour of the accused and the interracial nature of the violence alleged. Its relevance to a juror's partiality is obvious if one contemplates the position of a juror who answered "yes" to the question as framed by counsel for the accused. Surely the triers of impartiality would be virtually compelled to reject that juror. [Emphasis added].

30As I read these two passages from Parks, the form and content of the question must be such that it relates to and legitimately gets at the attitudinal and behavioural components of “partiality”, as defined in law. In other words, the question or questions must usefully and effectively inquire into the juror’s ability to follow instructions and decide the case fairly, in spite of any bias or prejudice. It can be seen that two of the most common variations on the “standard” Parks question, already set out above, both conform to this basic requirement.

31The above approach to the form and content of the Parks question involves a recognition that rigid adherence to one “standard” question is not required but that the form and content adopted must legitimately and effectively focus on the “partiality requirement”, as that requirement is explained in the case law. I agree with the statement of this approach set out in R. v. Daley, 2015 ONSC 7264 at paras. 23-28, where Fairburn J. (as she then was) stated:

I agree that there is no magic to the Parks formulation of the challenge questions. It is perhaps helpful to remember that in Parks, the court did not create the challenge question. What has become colloquially referred to as the Parks question actually reflects the question that had been proposed by trial counsel in the court below.

While this question framed the discussion on appeal, it was never proposed by the court as the only appropriate manner in which to proceed on a race-based challenge for cause. As such, there is no need for slavish adherence to the precise question posed in Parks. With that said, it is important to acknowledge that the question has withstood the test of time and, with some variations, continues in wide use today: R. v. Johnson, 2010 ONSC 5190, at paras. 15-16.

Determining how the challenge questions should be framed falls within the supervisory jurisdiction of the court. The key to structuring the question is to ensure that the challenge “remains within the bounds of a legitimate inquiry into the impartiality of potential jurors”: Parks, at paras. 29-30. Regardless of how the question is framed, it must capture the essence of the concern that justifies the challenge for cause under s. 638(1)(b).

The core concern for race-based challenges is not whether an individual has certain beliefs, opinions or biases. However repugnant racist beliefs, opinions or biases may be to right minded Canadians, the core concern on a race-based challenge is whether those beliefs, opinions or biases “would prevent the juror from being indifferent as to the result”: R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at pp. 535-36; Parks, at para. 31. Beliefs, opinions or biases that can be set aside when a person assumes the role of a juror cannot support a claim of partiality.

The challenge question must connect the concern at issue – race-based beliefs, opinions or biases – to whether the juror can fulfill his or her duties as a juror. For the juror to accurately answer whether her duties will be impacted by beliefs, opinions or biases, the juror must be provided with insight into what those duties will be. The juror’s duty is to render a verdict “based only on the evidence and application of the law as provided by the trial judge”: Parks, at para. 36. Jurors are told this at the beginning and end of trial: e.g., Watt, David, Watt’s Manual of Criminal Jury Instruction, 2^nd ed., Toronto: Carswell, at pp. 42, 231. Sometimes jurors are reminded of this duty throughout the trial.

There are innumerable ways that a challenge question can be drafted so as to achieve the goal of focussing the juror’s attention on whether her ability to perform her duties as a juror – a duty to judge the evidence – will be impacted by her beliefs, opinions or biases. I agree with Mr. Zaduk that the full Parks question need not be put. There is no need to repeat the phrase, “bias, prejudice and partiality”. I agree that it can be cumbersome and the redundancy is simply unnecessary: see Johnson, at paras. 15-16. At the same time, the words capture the essence of the core concern in a race-based challenge. I find that it is a simple, all-encompassing way in which to focus jurors’ minds on the issue of concern. [Emphasis added].

(iv) The various attempts in the case law to improve the Parks question

32The most important post-Parks decision, where a particularly experienced trial judge adopted one variation on the “standard” Parks question, is R. v Douse (2009), 2009 CanLII 34990 (ON SC), 246 C.C.C. (3d) 227 (Ont. S.C.J.). In that case, a significant body of sometimes conflicting social science evidence was tendered by both the Crown and the defence on the pre-trial motion before Durno J. The defence proposal, opposed by the Crown, was based on certain social science research. It resembled the two part procedure advanced by the accused Stanley at one point during the history of the present motion (see para. 23 above). At the initial stage, prospective jurors would complete a “scored” questionnaire, similar to the one initially proposed in the present case. That questionnaire or survey asked 12 purely attitudinal questions about various topics such as “political correctness”, acting in certain prejudicial ways, and the dominance or disadvantage of groups in society. At the second stage, two revised Parks questions would be asked in open court with multiple choice answers. The two questions were designed to separate the attitudinal and behavioural components of “partiality” and were as follows:

In your opinion, are you prejudiced or biased against black people? Would you say:

1. I am very prejudiced against black people

2. I am prejudiced against black people

3. I am a little bit prejudiced against black people

4. I do not think that I am prejudiced against black people

5. I know that I am not prejudiced against black people

6. I do not know

In your opinion, would the fact that the accused is black affect your ability to judge this case fairly?

1. I would not be able to judge the case fairly

2. I might be able to judge the case fairly

3. I would be able to judge the case fairly

4. I do not know if I could judge the case fairly

33In lengthy detailed reasons, Durno J. dismissed most of this new two-stage Parks challenge, disallowing the questionnaire, disallowing the separation of the Parks question into two questions, but permitting the multiple choice format. I need not summarize all of Durno J.’s analysis because the first stage “scored” questionnaire is no longer being proposed in the present case. In addition, the three or four questions that the accused Stanley seeks to ask in court differ in a number of ways from the two Douse questions. However, there were a number of points made by Durno J. that may be helpful in the present case.

34First, Durno J. accepted the evidence of Professor Wortley to the effect that multiple choice answers are preferable to the “yes or no” format of the “standard” Parks question because prospective jurors “might have variations in their views” (at paras. 114, 173, 195 and 222-3):

The applicant submits that multiple-choice answers provide the triers with more and better information because the issues being addressed are complex and individuals’ beliefs cannot always be defined by a ‘yes’ or ‘no’ answer. I agree.

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 this variation would lengthen the challenge for cause procedure marginally, subject to a re-assessment after it was used in court, I do not see the increased time as a reason to maintain the one word answers. I am also not persuaded at this time that this form will lead to applications to ask further questions to qualify the answers. [Emphasis added]

I will return later in these Reasons to the underlined qualification concerning an ex post facto “re-assessment”.

Second, Durno J. rejected the purely attitudinal questions set out in the proposed questionnaire and he refused to divide the Parks question into separate attitudinal and behavioural components. He based these decisions on the need to focus the questions on “partiality”, as defined in the case law. In this regard, Durno J. interpreted Doherty J.A.’s reasons in Parks in the same manner as I have already set out above (at paras. 29-31). Durno J.’s reasons on this point were as follows (at paras. 64, 176, 224, 238-242 and 267):

… the judge is required to supervise and control the challenge for cause process so that it remains within the bounds of a legitimate inquiry into the impartiality of the prospective jurors. Parks, p. 362. In exercising that supervisory function the trial judge determines if the proposed questions and method of challenging for cause are within those bounds. To be relevant to partiality, the proposed questions must address both attitudes and behaviour flowing from those attitudes. Parks, at para. 35.

A further concern about Professor Wortley’s evidence lay in regards to the Parks question and his rejection of the proposition that someone can suppress their prejudices or biases and honestly say they will decide the case on the evidence. While I accept that is the professor’s honestly held belief, that it was better to be safe than sorry and exclude anyone who said that they were prejudiced, that opinion is in direct conflict with the law in Canada as noted above in Parks at para. 37, Find at para. 26, and Williams at para. 23. There is a presumption that some, but not all jurors, who have biases could suppress them. Both Parks and Williams are binding on this court in the absence of evidence upon which those cases could be distinguished. I am not persuaded that the record in this case permits me to do so.

Whether the Parks question should be asked as one or two questions remains a matter within the trial judge’s discretion. Neither the evidence nor submissions on this application have persuaded me that there should be two questions. I reach this conclusion because breaking up the question has a realistic potential to have challenges for cause determined on the basis of prejudice and not partiality. The result would be the exclusion of persons who would be impartial. In addition, I accept that breaking the question into two parts is more intrusive than the “rolled-up” question.

The next issue is whether the 12 questions are within the bounds of legitimate inquiry into the impartiality of the prospective juror. I am not persuaded that they are.

First, while I accept that the questions have been used successfully to identify non-conscious racism in the United States and that the questions are appropriate for use in Canada for that purpose, they have never been used in a court setting anywhere.

That there is no courtroom “track record” is not determinative of the issue. However, it remains a legitimate concern. Some effort to determine the validity of the questions and the proposed procedure would have been of assistance.

Third, the focus of the questions fails in one significant area. In Parks, Doherty J.A. held that to be relevant to partiality, a proposed line of questioning must address both attitudes and behaviour flowing from those attitudes. The twelve questions address attitudes only.

Does the proposal stay within the bounds of legitimate inquiry into the impartiality of prospective jurors?

For the reasons indicated in the analysis of the proposal I am not persuaded that it stays within those bounds or that it is a legitimate inquiry into the impartiality of prospective jurors on this record. I am not persuaded that the proposal would provide better or more reliable information to the triers than what is currently provided. Indeed, I am persuaded that the information could detract the triers from the issue on the challenge, impartiality. In addition, there remains concern for the fairness of the proposal to the jury panel members. The applicant will not be permitted to ask the panel members the 12 questions outside of court. [Italics of Durno J. in the original; underlining added for emphasis].

Durno J.’s above conclusions about purely attitudinal questions are of considerable assistance in the present case, as will be discussed below.

35Third, Durno J. held that the two proposed questions to be asked in court were deficient because they did not include “the Parks preamble, an important element of the question.” He concluded (at para. 218) that “the preamble, reminding potential jurors that they must approach the case without bias, prejudice or partiality should be included.” As set out above, Fairburn J. (as she then was) arrived at the same conclusion in Daley, holding that the Parks preamble captures “the core concern in a race-based challenge”, namely, the need to follow judicial instructions and adjudicate in the case without bias, prejudice or partiality. I agree with these conclusions and will apply them below in the present case.

36In the result, Durno J. ruled in Douse that the “standard” Parks question could be re-formulated with multiple choice answers, as follows (at para. 281):

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 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.

37It can be seen that the decision in Douse is faithful to the core precept that emerged out of Parks, namely, that the content of the question “must stay within the bounds of legitimate inquiry” into the legal concept of “partiality”, which includes both attitudinal and behavioural components. However, Douse permitted a change in the form of the question. Based on the evidence from social science experts, Durno J. set out four multiple choice answers for the prospective jurors to choose from. It appears that Durno J. intended this change in form, requested by the defence and its experts, to be somewhat of an experiment. As emphasized above, he stated that this new format would be “subject to a re-assessment after it was used in court.” In subsequent case law it has been reported that there was no ex post facto “re-assessment” because the trial in Douse never proceeded. After Durno J.’s ruling on the pre-trial motion, the accused pleaded guilty.

38Durno J.’s provisional agreement to at least try a format that utilized multiple choice answers met with a mixed reception in this Court. Some judges agreed to use it, when asked by the defence, and other judges refused to use it. Each of these two groups of judges included senior members of the Court, some of whom now sit on the Court of Appeal. In the group who disagreed with Douse, which is the larger of the two groups, see: R. v. Johnson, supra per Nordheimer J. (as he then was); R. v. Barnes, [2012] O.J. No. 6014 per Strathy J. (as he then was); R. v. Ahmad, 2010 ONSC 256, [2010] O.J. No. 3341 per Dawson J.; R. v. Stewart, 2011 ONSC 1949, [2011] O.J. No. 3354 per Kiteley J.; R. v. Gayle, [2013] O.J. No. 3773 per Van Rensburg J. (as she then was); R. v. O’Hara-Salmon, [2014] O.J. No. 4741 per A. Goodman J.; R. v. Brooks, [2015] O.J. No. 6158 per Barnes J. In the smaller former group who followed Douse, see: R. v. Valentine et al (2009), 87 W.C.B. (2d) 379 (Ont. S.C.J.) per Pardhu J. (as she then was); R. v. Lewis (2011), 98 W.C.B. (2d) 712 (Ont. S.C.J.) per McCombs J.; R. v. Johnson and Ireland, supra per Barnes J.

39None of these decisions are binding. They reflect exercises of discretion in particular cases, often influenced by the experience of the individual judge in using the “standard” Parks question. The broad judicial preference for the “standard” Parks question was best expressed by Nordheimer J. (as he then was) in R. v. Johnson, supra at paras. 5-6:

With respect, I believe that the underlying premise to this argument [concerning “multiple choice” answers] is faulty. 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 question 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.

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.

Strathy J. (as he then was) succinctly summarized this view in R. v. Barnes, supra at para. 13, stating:

I might add that in my view, for the reasons expressed by Nordheimer J. in Johnson, the open-ended Parks question gives prospective jurors more scope for true self-reflection and assessment than the straight-jacketed multiple choice questions proposed in Douse.

40It should also be pointed out that the smaller group of cases, where Douse was followed, arguably involved unusual circumstances. In R. v. Lewis, supra, the Crown consented to the defence request to use multiple choice answers, and so McCombs J. did not engage in any real analysis of the issue. In R. v. Valentine et al, supra at para. 11, Pardhu J. (as she then was) made it clear that “the circumstances of the offence and the widespread publicity” in that case (the notorious Yonge Street gunfight on Boxing Day that led to the death of Jane Creba) were additional factors that influenced her exercise of discretion.

41Leaving aside the above line of post-Douse authority concerning the use of “multiple choice” answers, there is one other area where proposed changes to the “standard” Parks question have been addressed in the case law on a number of occasions. Instead of the “rolled-up” Parks question, which addresses both the attitudinal and behavioural components of “partiality” together, a number of cases have considered whether separate questions that focus solely on racist beliefs should be permitted. This is an issue in the present case. In some of these cases, trial judges were asked to permit broad questions as to whether prospective jurors believe that “some races are, by their nature, more violent than others”. In other cases, narrower but similar questions were proposed concerning whether the prospective juror believes that “Black people commit more crimes than people of other races.” Some of these proposed questions were based on expert opinion evidence from Dr. Frances Henry and Professor Richard Lalonde and in some of the cases the Crown called opposing opinion evidence from Professor Jonathan Freedman (who was also called by the Crown in Douse). These kinds of purely attitudinal questions have generally been refused in the leading authorities in this province. See: R. v. Griffis (1993), 1993 CanLII 5547 (ON SC), 20 C.R.R. (2d) 104 (Ont. S.C.J.); R. v. Barnes (1999), 1999 CanLII 3782 (ON CA), 138 C.C.C. (3d) 500 (Ont. C.A.); R. v. Oliver, [2001] O.J. No. 6214 (Ont. S.C.J.); R. v. Gayle (2001), 2001 CanLII 4447 (ON CA), 154 C.C.C. (3d) 221 (Ont. C.A.); R. v. McKenzie (2001), 2001 CanLII 28427 (ON SC), 49 C.R. (5^th) 123 (Ont. S.C.J.); R. v. Douse, supra; R. v. Johnson and Ireland, supra.

42A number of reasons have been given in the above line of authority for refusing to allow these kinds of purely attitudinal questions, including the following: they may involve a “prolonged” process; they are “very intrusive”; they “have not been pre-tested nor is there any empirical evidence on the effectiveness of this series of questions as opposed to a Parks-style question”; they omit any mention of the behavioural component of “partiality” and tend to lead to the exclusion of prospective jurors solely because of their beliefs; the questions involve “many possible and conflicting interpretations”, whereas the single Parks question is “straight forward”; and the leading social science experts disagree as to the appropriateness and effectiveness of these kinds of questions, with Professor Freedman favouring the single “rolled-up” Parks question. The one modern case where a purely attitudinal question was permitted – “Do you believe that black men are more likely than other men to commit certain types of violent crimes” – is R. v. Johnson and Ireland, supra. That judgement addresses the use of multiple choice answers (the form of the question) but it does not address the various substantive issues, summarized above, that emerge from the leading authorities concerning purely attitudinal questions.

(v) The three or four questions proposed in the present case

43Applying the principles that emerge from the authorities summarized above, there are a number of significant problems with the three or four questions proposed in the present case. Those questions are set out above at para. 12 and I will not repeat them.

44The first problem is that the Parks preamble has been omitted. I agree with Durno J. in R. v. Douse, supra at para. 218 and Fairburn J. (as she then was) in R. v. Daley, supra at paras. 27-9, that the Parks preamble is critically important. It focuses the prospective juror on the central issue at stake on the challenge for cause, namely, “partiality”. This deficiency can easily be remedied by inserting the preamble prior to Professor Wortley’s fourth question.

45The second problem is more fundamental. It relates only to the first three questions proposed by Professor Wortley. These questions are purely attitudinal. They make no reference to the behavioural component of “partiality”. Professor Wortley’s testimony before Durno J. in Douse, and before me in the present case, makes it clear that he is skeptical of the behavioural component of “partiality”. He acknowledges that this aspect of the legal meaning of “partiality” has been omitted from the first three questions. Like Durno J. in R. v. Douse, supra at paras. 176 and 242, I do not have the luxury of departing from binding authority which holds that relevance in challenge for cause questions depends on “a link with partial juror behaviour”. See: R. v. Find, supra at paras. 26 and 44; R. v. Williams, supra at para. 23; R. v. Parks, supra at paras. 35-37; R. v. Spence, supra at para. 26.

46The third problem also relates only to the first three questions. These purely attitudinal questions are similar to the questions that have generally been rejected in what I will call the Gayle line of authority, summarized and cited above at paras. 41-2. These authorities identify a number of problems with questions about crime rates, the correlation between crime rates and certain racial or ethnic groups, and whether this kind of questioning is an improvement over the single “rolled-up” Parks question. I agree with the views expressed by Ferguson J. in R. v. Oliver, supra and by Wein J. in R. v. McKenzie, supra and with the position taken by Watt J. (as he then was) in R. v. Gayle, supra. These kinds of questions engage prospective jurors in a complex and time-consuming process concerning contentious subjects, their efficacy has never been tested, and expert social science opinion is divided as to whether they are more effective than the “straight forward” Parks question. The decision of Watt J. (as he then was) at trial in R. v. Gayle, supra at paras. 10-34, disallowing these kinds of questions, was upheld on appeal on the basis that “there was a solid foundation in the evidence for the ruling he made.”

47The fourth problem also relates to the first three questions. These questions are overtly directed at discovering the “personality, beliefs, prejudices, likes or dislikes” of prospective jurors. The appellate courts have repeatedly held that this kind of questioning is to be avoided. In R. v. Find, supra at para. 44, McLachlin C.J.C. stated the following, speaking for the unanimous full Court:

To treat bias as permitting challenges for cause, in the absence of a link with partial juror behaviour, would exact a heavy price. It would erode the threshold for entitlement defined in Sherratt and Williams, and jeopardize the representativeness of the jury, excluding from jury service people who could bring valuable experience and insight to the process. Canadian law holds that “finding out what kind of juror the person called is likely to be – his personality, beliefs, prejudices, likes or dislikes” is not the purpose of challenges for cause: Hubbert, supra, at pp. 289-90. The aim is not favourable jurors, but impartial jurors. [Emphasis added].

In R. v. Parks, supra at pp. 360 and 364, Doherty J.A. stated the following (Krever and Abella JJ.A. concurring):

The question as posed was race-neutral and did not assume that only non-blacks would be subject to the challenge. The question also did not seek to challenge prospective jurors based only on their opinions, beliefs or prejudices. The question went beyond that and was directed to the jurors' ability to set aside certain beliefs, opinions or prejudices when performing their duty as a juror. The appellant does not challenge the proscription against challenges based on race, or the beliefs, opinions or prejudices of potential jurors set down in Hubbert, supra and reiterated in R. v. Zundel (1987), 1987 CanLII 121 (ON CA), 31 C.C.C. (3d) 97 at p. 133 (Ont. C.A.), leave to appeal to S.C.C. refused [1987] 1 S.C.R. (3d) xii.

Questions which seek to do no more than establish that a potential juror has beliefs, opinions or biases which may operate for or against a particular party cannot establish partiality. A diversity of views and outlooks is part of the genius of the jury system and makes jury verdicts a reflection of the shared values of the community. It is inevitable that with diversity come views which can be described as biases or prejudices for or against a party to the litigation. ... Those biases which can be set aside when a person assumes his or her role as juror are also irrelevant to the partiality of the juror. A juror's biases will only render him or her partial if they will impact on the decision reached by that juror in a manner which is immiscible with the duty to render a verdict based only on the evidence and an application of the law as provided by the trial judge. [Emphasis added].

Finally, in R. v. Gayle, supra at para. 22, Sharpe J.A. reiterated this point (Osborne A.C.J.O. and Doherty J.A. concurring):

There are, however, other relevant principles to be considered by the trial judge. The first is that under Canadian law, the starting point is that prospective jurors are presumed to be impartial and indifferent between the Crown and the accused: Williams at p. 489 C.C.C. A related principle is that, to the extent possible, inquiries that invade the privacy of prospective jurors and attempt to probe personal feelings, opinions, and beliefs are to be avoided: Parks at p. 360 C.C.C.; Williams at pp. 501, 503 C.C.C.; R. v. K. (A.) (1999) 1999 CanLII 3793 (ON CA), 137 C.C.C. (3d) 225 at p. 253 (Ont. C.A.). [Emphasis added].

Also see R. v. Douse, supra at para. 45.

48For all these reasons, the first three questions proposed by the accused Stanley and Professor Wortley are unacceptable. That leaves the fourth question. It will be recalled that the fourth question is derived from the Schuller “mock jury” study at York University, where it was found to be more effective than the “standard” Parks question. It is similar to the Parks question but it omits the kind of strong judgemental language that can deter self-reporting of bias, according to Professor Wortley. It is said to be a more “reflective” and more “open-ended” format than the “standard” Parks question. When the question is preceded by the Parks preamble, as I have ruled above at para. 44, it will incorporate the requisite behavioural component of “partiality”.

49It can be seen that the fourth question has many advantages over the first three questions: it has been tested and found to be effective; it includes the behavioural component of “partiality”, once the Parks preamble is included; it does not “attempt to probe personal feelings, opinions, and beliefs”; and it resembles the well-established Parks question, with some minor modifications that Professor Wortley has explained and justified.

50For all the above reasons, I am prepared to permit the fourth question proposed by the accused Stanley and Professor Wortley, with a few modifications as follows:

As the judge will tell you, in deciding whether or not the prosecution has proved the charge against an accused, a juror must judge the evidence of the witnesses without bias, prejudice, or partiality. Might your ability to judge the evidence in this case be affected by the fact that the person charged is Black?

51In addition to adding the Parks preamble, it can be seen that I have deleted the word “how” at the start of the question because it struck me as leading and accusatorial, the very qualities that Professor Wortley sought to avoid.

52There is one issue that still remains open. Professor Wortley and Mr. Derstine in oral argument, preferred question four in its present “open-ended” and more “reflective” format. Unlike proposed questions one and two, which I have rejected, question four does not utilize “closed-end” and “multiple choice” answers. Now that I have refused to permit the first three questions, due to their content and not because of their form, I will hear any further submissions as to whether the one question I have permitted should be framed with “multiple choice” answers.

D. CONCLUSION

53The motion seeking leave to challenge for cause pursuant to s. 638(1)(b) on grounds that “a juror is not impartial” is allowed. The challenge for cause can proceed on the basis of both pre-trial publicity and race. The form of the three questions permitted on grounds of publicity are set out above at para. 7. The form of the one question permitted on grounds of race is set out above at para. 50, subject to any further submission on the “multiple choice” format issue.

M.A. Code J.