COURT FILE NO.: 83/20
DATE: 2021 09 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Colin Henderson and Theo Sarantis, for the Crown
- and -
JERMAINE SMITH
Daniel Brown and Lindsay Board, for the Defence
HEARD: September 13, 2021
REASONS FOR RULING ON CHALLENGE FOR CAUSE
PETERSEN J.
[1] Jermaine Smith is charged with second degree murder. His trial is scheduled to proceed before a judge and jury on September 20, 2021. He wishes to challenge prospective jurors on the ground that they would not be impartial as between him and the Crown, pursuant to s.638(1)(b) of the Criminal Code, R.S.C. 1986, c. C-46. The Crown does not oppose his request to invoke the challenge for cause process.
[2] Mr. Smith is Black. Anti-Black racism is a persistent reality in Canadian society. The following passage from the 1993 Ontario Court of Appeal decision in R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324, at para. 54 still holds true today:
Racism, and in particular anti-black racism, is a part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil.
[3] Permitting a race-based challenge for cause is therefore appropriate in the circumstances. Given the undeniable reality of pervasive anti-Black racism, there is a realistic potential that either conscious prejudice or unconscious racial bias could taint the impartiality of jurors: Parks, at paras. 39 and 55.
[4] As the trial judge, I have discretion to determine the procedure to be used to conduct the challenge for cause. In this case, I agree with the parties that prospective jurors should be questioned in the absence of the jury panel and that the questions should not be put to the jurors in advance: Criminal Code, s.640(2); R. v. Chouhan, 2021 SCC 26, at para. 67.
[5] The issues for me to decide in this Application are (1) the precise questions to be asked of each prospective juror, and (2) whether Defence counsel or the trial judge will ask the questions. Defence Counsel seeks to pose the questions to the prospective jurors. The Crown submits that I should ask the questions. Pursuant to the recent Bill C-75 amendments to the Criminal Code, regardless of who asks the questions, I will decide each challenge for cause: Criminal Code, s.640(1).
[6] There is minimal guidance in the jurisprudence on the issues before me. Although the Bill C-75 amendments came into force two years ago on September 19, 2019, relatively few jury trials have been conducted in the intervening period because of the COVID-19 pandemic. The recent Supreme Court of Canada decision in Chouhan is of some assistance, but the fractured nature of that judgment makes it difficult to derive practical guidance on some issues.
General Anti-Bias Instructions
[7] As part of his Application, Mr. Smith requested that I provide general anti-bias instructions to the jury panel before the challenge for cause procedure begins. The Crown did not take issue with this request. A clear majority of seven judges of the Supreme Court of Canada endorsed the use of anti-bias instructions in Chouhan, at paras. 49-59, 110, and 158.
[8] In my view, such preliminary instructions are essential, especially in cases where a challenge for cause will be conducted on the ground of potential partiality based on a personal characteristic of the accused. As Justice Pomerance explained in R. v. Bhogal, 2021 ONSC 4925, at para. 26:
The overarching goal is to ensure that the challenge for cause is a robust mechanism for screening out partiality, but the questions do not have to do all of the heavy lifting. The challenge for cause is made more meaningful by the anti-bias instructions that will precede the questioning. These instructions will sensitize jurors to the issues and explain, in some detail, what the questions are trying to get at. They will imbue the questions with a meaning that they may not have carried in the past. This is a holistic exercise. We are now telling prospective jurors about bias before asking them about bias. This is bound to make the challenge for cause a more effective tool.
[9] Because of the holistic nature of the exercise, it is important to frame the challenge-for-cause questions in the context of the overall instructions to the jury panel. It is therefore necessary for me to set out in this Ruling the preliminary anti-bias instructions that will be provided to the jury panel in Mr. Smith’s case. The following instructions were developed in consultation with counsel and after hearing both parties’ written and oral submissions:
Every prospective juror will be asked the same questions. In order to prepare for these questions, while you are waiting for your juror number to be called, I ask that you take the time to reflect upon what I am about to say about unconscious bias.
I have already mentioned to you that the proper administration of justice requires jurors to approach their task with an open mind. Jurors must judge the evidence presented at trial fairly, without bias, prejudice, sympathy, or partiality.
As members of a diverse society, each of us has different backgrounds and experiences. Each of us brings a variety of beliefs, assumptions, and perceptions to the courtroom. Those beliefs, assumptions and perceptions are often based on personal characteristics such as an individual’s gender, race, ethnicity, religion, or sexual orientation. They may make us biased against members of certain groups.
Our biases may include attitudes or feelings that we have about a particular group, or stereotypes, namely traits that we associate with a particular group. We may be conscious of some of our biases, but often we are not even aware that we have them.
Biases can impact our decision-making even if we are not fully aware of them. Unconscious biases, the preconceived attitudes and assumptions that we have about members of certain groups, can affect whether we believe or disbelieve things that we are told, or how we react to those things. It is therefore critical, if you are selected as a member of the jury, that you be willing to examine your feelings and beliefs and be willing and able to set aside any biased attitudes, assumptions, or stereotypes. Jurors must make an effort to resist, and to assist other jurors to resist, jumping to conclusions based on biases, whether consciously held or not.
If you are selected as a juror, you must approach your duties mindful of the possibility that you have biases that you are not consciously aware of. To be a member of the jury, you must resolve to not allow bias of any kind to affect any decision that you make in relation to the evidence and issues in the case.
You may be asking yourself, how can I set aside a bias if I am not even aware of it? If you are selected as a juror for this case, I will be providing you with additional instructions during the trial and at the end of the trial. Those instructions will include directions about things that you can do to help you examine your attitudes, assumptions, and beliefs, and identify and interrupt unconscious biases. It is critical that you be willing and able to make that effort to the best of your ability.
Let me be more specific about this case. The defendant, Mr. Smith, is Black. There is therefore a realistic possibility that racial or ethnic bias could affect a juror's ability to judge the evidence and decide the case fairly and objectively. In order to address this particular concern and ensure that a truly impartial jury is selected, we are going to explore this possibility with each prospective juror on an individual basis.
So, if you are not excused from jury duty or deferred, then you will be asked questions relating to this issue. You must answer the questions truthfully, in accordance with the solemn promise that you will have given.
[10] Defence counsel did not request that I give more specific anti-bias instructions to the jury panel pertaining to particular stereotypes about Black men, or to the facts of the offence with which Mr. Smith is charged (e.g. addressing the false stereotypes that Black men are likely to be involved in violent crime, or in gun-related offences and shootings). The need for such instructions to be made to the petit jury will be revisited with counsel after the jury is selected and again after the evidence at trial is completed: R. v. Barton, 2019 SCC 33, at para. 201; Chouhan at para. 50-51 and 58.
What Questions Should be Asked of Prospective Jurors?
[11] Defence counsel initially proposed that the following preamble and three questions be asked of each prospective juror:
In deciding whether the prosecution has proven that an accused person is guilty each member of the jury must judge the evidence fairly, without bias, prejudice, or partiality. As members of society, each one of us brings a variety of beliefs, assumptions, and perceptions to the court room. Sometimes, those beliefs, assumptions and perceptions may be based on characteristics such as race or ethnicity. It is possible that people are not even aware that they have biases of that kind. Those biases may be based on implicit attitudes, namely feelings that one has about a particular group, or stereotypes, namely traits that one associates with a particular group.
The particular concern that we are going to address with every prospective juror in this case is the potential for bias based on attitudes or stereotypes based the race or ethnic background of the defendant. We want you to think carefully about this matter.
Mr. Smith is Black. Do you believe that you have any attitudes or beliefs about Black people that would affect your ability to judge the evidence fairly and objectively?
Do you think that it is possible that people have biases based on race or ethnicity that they are not even aware of?
If you are chosen to be a member of the jury in this case, are you willing to remain mindful of the possibility that you might have such biases, and to set them aside so that you will judge the evidence presented at trial fairly and objectively?
[12] The Crown did not take issue with the proposed questions, but I had concerns. Firstly, the preamble struck me as long and unnecessarily repetitive of my anti-bias instructions. If it were to be repeated with each prospective juror, the selection process would be unduly protracted. While challenges for cause need to be rigorous and effective, they must also make efficient use of Court resources. I will therefore abbreviate the preamble.
[13] Secondly, with respect to the wording of the first proposed question, it is preferable to ask whether prospective jurors have attitudes or beliefs about Black people that would “interfere with” (rather than “affect”) their ability to judge the evidence fairly and objectively. This semantic change is not meaningless. A person can have conscious or unconscious racial biases that affect their perception of the evidence and their reasoning yet be willing to jettison those biases and still be able to judge the evidence fairly and objectively. The real question is whether they believe they are able to do that, or whether they think their attitudes and beliefs about Black people are so entrenched as to interfere with their ability to be impartial.
[14] Regarding the second proposed question, I have difficulty understanding how a prospective juror’s answer would assist me in deciding the issue raised by the challenge, namely whether that individual, if selected as a juror, would likely be partial as between the Crown and the accused. The vague and general formulation of the question (whether the prospective juror believes that “people” have unconscious biases) troubles me, because it does not pertain to the individual juror’s mindset.
[15] Defence counsel explained that they did not want to ask a prospective juror, “Do you believe it is possible that you have biases based on race or ethnicity that you are not even aware of.” I agree that such a question would not be appropriate because (among other reasons) jurors who were inclined to answer it affirmatively might be too embarrassed to do so, fearing that it would amount to an admission that they are racist. This could negatively impact the reliability of the evidence given.
[16] Defence counsel attempted to rephrase the question during the course of oral argument. A variety of formulations were canvassed, including “Do you think it is possible to have unconscious biases based on race or ethnicity?” Whatever the formulation, the question misses the point. The purpose of the inquiry is to ascertain whether a prospective juror is willing to make the effort to examine their own attitudes and assumptions about Black people, and commit to setting aside any racial stereotypes or biases that may be operating in their reasoning: Bhogal, at para. 34. As Justices Moldaver and Brown stated in Chouhan, at paras. 53-54, “Impartiality requires active and conscientious work” and jurors must “approach their weighty task with a heavy dose of self-consciousness and introspection.”
[17] Defence counsel argued that a juror who does not believe in the possibility of people having unconscious biases presumably could not or would not undertake the necessary self-reflection. However, when asked if they thought that a negative answer to the second question should disqualify an individual from service on the jury for this trial, Defence counsel said no. I agree. The mere fact that someone does not “believe in” the possibility of unconscious bias could simply reflect a lack of understanding of the concept. It may not be an indication of the kind of recalcitrance that Defence counsel is asking me to infer.
[18] It is unclear to me what relevant inferences could reasonably be drawn from a negative answer to the proposed second question. Moreover, a positive answer – that the prospective juror believes it is possible to have unconscious biases -- does nothing to assist me in deciding whether that person, if selected for the jury, would likely approach their task with an open mind. In short, the second question would not elicit evidence that is relevant to the task before me.
[19] The preferred approach is to ask the question directly, namely whether the prospective juror is willing to be mindful of the possibility that they may have unconscious racial biases and make efforts to set them aside, to the best of their ability. The answer to that question will assist the court in deciding the challenge for cause.
Who Should Ask the Questions?
[20] Although historically, counsel have been the questioners during a challenge for cause process, recent changes in the jury selection regime have prompted reconsideration of this procedure. In Chouhan, at para. 67, Justices Moldaver and Brown (Wagner C.J. concurring) stated:
Bill C-75 directs that the trial judge, rather than a layperson, will be the arbiter of the challenge for cause. As such, in our view, it would be appropriate for the trial judge – as an impartial person adjudicating impartiality – to put the challenge for cause questions to the prospective juror.
[21] Both parties submit that I have discretion to determine who will ask the questions. I agree that the above passage in Chouhan does not foreclose the possibility of Defence counsel doing so. I also agree with my colleagues in two recent decisions of this Court that trial judges have discretion to devise and adopt the approach that is best suited to the circumstances of the particular case: Bhogal, at paras. 46-49; R. v. Martin, 2021 ONSC 5333, at paras. 28-31, and 36. In Bhogal, Justice Pomerance decided that she would ask the questions. In Martin, Justice Goodman decided that Defence counsel should ask the questions.
[22] In this case, Defence counsel argue that they should do the questioning because it is the accused’s challenge for cause and it relates to his personal characteristics, namely his race and ethnicity. They argue that these facts distinguish this case from Bhogal, where the challenge for cause questions were designed to address the potential for bias against not only a racialized accused, but also Indigenous Crown witnesses.
[23] Defence counsel note that there is a long-standing practice of counsel asking the challenge for cause questions. The fact that counsel always asked the questions under the former regime (when lay triers decided the challenge for cause) is not in itself a compelling reason to keep doing it that way. With the enactment of Bill C-75, Parliament overhauled the jury selection process: Chouhan, at para. 157 (per Abella J.). As Justice Martin stated in Chouhan, at para. 107, “The reforms effected a significant and multi-pronged recalibration of the jury selection regime.” Under the new regime, trial judges should decide the appropriate procedure to be adopted based on the particular circumstances of each case.
[24] Defence counsel submit that the injection of the trial judge into the role of questioner will create potential problems that are best avoided. In support of this submission, they rely on the following reasons of Justice Goodman at para. 30 in Martin:
One should still bear in mind the dangers or risks inherent when (sic) the judge descending into the arena, assuming the role of inquisitor as well as trier. In my opinion, it is incumbent on the judge, as any trier, to be focused on the evidence and make a determination rather than being implicated in the elicitation of the evidence. In our adversarial system of justice, the trier generally is to stay out of the figurative arena where possible. The goal is to preserve as much as possible the appearance of objective neutrality, free from bias: R. v. Hamilton, 2011 ONCA 399. In my view, this can be addressed and likely eliminated with counsel posing the questions.
[25] Defence counsel argue that, if I ask the questions, it will be difficult for me observe the prospective juror’s reactions, examine their face and body language, and pick up on non-verbal cues that may be relevant to my assessment of their credibility and suitability as a juror. This is not a compelling argument. Judges routinely multi-task when witnesses are testifying, including taking notes. This does not distract us from the relevant evidence or impede our ability to make appropriate credibility assessments.
[26] In any event, a prospective juror’s body language and facial expressions during a challenge for cause will be of little assistance to the trial judge. Reliance on a juror’s (or any witness’s) demeanour to assess their credibility is fraught with many pitfalls, including the risk of the assessment being tainted by the very stereotypes and assumptions that the challenge for cause procedure seeks to avoid: R. v. Rhayel, 2015 ONCA 377, at para. 85.
[27] Regarding Defence counsel’s submission that a trial judge should not occupy the role of both inquisitor and trier, I pointed out that I would be deciding the questions to be asked even if Defence counsel posed the questions, such that I was already implicated in the manner in which the evidence would be elicited. Defence counsel responded that prospective jurors would not be aware that I had vetted the questions, so the appearance of objective neutrality would be preserved.
[28] With respect to the undesirability of the trial judge being seen to enter the figurative arena of the adversarial system, the judge’s active role in other aspects of the jury selection procedure is so extensive that questioning jurors on a challenge for cause would not, in my view, be materially different. Even under the previous regime, when lay triers decided challenges for cause, trial judges had an active role in vetting jury panels. Under the current regime, trial judges retain the power to excuse jurors for reasonable cause: Criminal Code, s.632.
[29] Judges who preside over jury selections routinely ask prospective jurors to disclose if they have an association with anyone involved the trial, or if they have had prior involvement in a similar offence either as a victim or an accused. When such a disclosure is made by a prospective juror, it is the trial judge’s responsibility to ask questions of that individual to elicit relevant information and determine whether the person should be excused from serving as a juror on the trial. To borrow Justice Goodman’s phrase in Martin, the trial judge acts as both inquisitor and trier.
[30] Trial judges also routinely question prospective jurors in relation to requests for excusals from (or deferrals of) jury service. This questioning can sometimes resemble a cross-examination when a prospective juror appears to be using a false pretext to avoid performing their civic duty. In contrast, the questions asked on a challenge for cause are far less “adversarial” in nature.
[31] Furthermore, as Crown counsel submitted, trial judges sometimes question jurors mid-trial, such as, for example, when there is an allegation of inappropriate conduct by a jury member.
[32] In this case, as per the usual practice, I will be vetting the jury panel and discussing with prospective jurors any concerns that they may have about their ability or suitability to serve on the jury. It is preferable for me to continue the questioning when we get to the challenge for cause, rather than assign that role to Defence counsel, because a change in the questioner could incorrectly signal that the realistic potential of racial bias against the accused is exclusively or primarily of concern to the Defence. Such messaging should be avoided. As Justice Pomerance stated in Bhogal, at para. 48:
When questions are posed by the trial judge, it is clear [to the prospective jurors] that partiality is not a partisan issue. It is not something that is merely desired by the defence, or by the Crown. It is an inherent requirement of the trial process. It is something desired by everyone, whatever their role may be.
[33] I asked Defence counsel how a trial judge asking the challenge for cause questions differs from the routine and unproblematic practice of trial judges questioning prospective jurors on other issues, including partiality concerns. The response was that it is different in this case because it involves a Defence Application.
[34] In my view, it is undesirable to underscore for members of the jury panel that the challenge for cause process has been invoked by the accused. I reach this conclusion in part because I am mindful of the common stereotype that Black men are prone to violence but when they come into conflict with the law, they shirk accountability by playing the so-called “race card”. Given the prevalence of this racial stereotype, if the challenge for cause questions are asked by Defence counsel, the process may be perceived and cynically dismissed by some prospective jurors as self-serving. Having the trial judge ask the questions avoids the risk that jurors may (consciously or unconsciously) speculate about the tactical nature of the process.
[35] Moreover, there is value in having the trial judge ask the questions because it communicates to prospective jurors the critical importance that the Court places on taking active steps to ensure that the accused has a fair trial with an impartial jury, given the prevalence of anti-Black racism in society.
Conclusions
[36] For the above reasons, I will be asking the challenge for cause questions in this case. I have drafted the script of the challenge for cause preamble and questions as follows:
As I explained earlier, the particular concern that we are exploring with every prospective juror in this case is the potential for bias, specifically attitudes or stereotypes based on the race or ethnic background of the defendant. The Defendant in this case, Mr. Smith, is Black.
Please listen carefully to the questions I am going to ask you. Take the time you need to reflect before answering. Do not feel rushed. We want you to think carefully about this matter.
If you do not understand a question, do not hesitate to ask me for a clarification or for the question to be repeated and it will be done.
My first question for you is:
Q1
Do you believe that you have any attitudes or beliefs about Black people that would interfere with your ability to judge the evidence fairly and objectively?
Q2
I mentioned earlier that sometimes people have unconscious biases about things like race and ethnicity without being fully aware of them. If you are chosen to be a member of the jury in this case, are you willing to remain mindful of the possibility that you might have such unconscious biases, and make efforts to set them aside to the best of your ability?
Petersen J.
Released: September 17, 2021
COURT FILE NO.: 83/20
DATE: 2021 09 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JERMAINE SMITH
REASONS FOR RULING ON CHALLENGE FOR CAUSE
Petersen J.
Released: September 17, 2021