Court File and Parties
COURT FILE NO.: CR-22-30000046-0000 DATE: 2023-04-25
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – SHAMAR BAILEY, KWAMI GARWOOD Defendants
Counsel: Jonathan Smith, Leslie Zamojc, for the Crown Maurice Mattis, Monte MacGregor, for Shamar Bailey Jessica Zita, Victoria Strugurescu, for Kwami Garwood
HEARD: February 21, 2023
JUSTICE S. NAKATSURU (ORALLY)
RULING ON THE CHALLENGE FOR CAUSE
[1] Mr. Bailey and Mr. Garwood face a charge of first-degree murder. They apply for a challenge for cause based on racial and unconscious bias. While there is some common ground, the Crown originally opposed certain questions the defence seeks to propose.
[2] Unquestionably, in my view, the threshold for a challenge for cause based on racial bias and unconscious bias has been met. We now live in an era where it is no longer open for reasonable debate that jurors should be questioned about this during the jury selection process.
[3] More debatable are the questions that should be asked in order that the trial judge can properly conduct the challenge for cause; questions that meet the goals of the challenge for cause but are not unnecessarily intrusive or time-consuming. Ultimately, the resolution of this issue remains within the due exercise of discretion by the trial judge.
[4] I appreciate that the questions originally suggested by the defence track the questions that were permitted in R. v. Martin, 2021 ONSC 5333. However, I favour the reasoning in the cases of R. v. Bhogal, 2021 ONSC 4925 and R. v. Stanley, 2021 ONSC 6110. A point of disagreement between the Crown and the defence is a question directed to the attitudes held by the potential juror. For example, the defence proposes the following question should be asked:
Question 1. Do you have any bias, beliefs or pre-conceived notions about Black men?
(If yes), would you be able to set those beliefs aside and decide the case based solely on the evidence at trial and the instructions that I give?
[5] Commendably the Crown and the Defence have consulted and come to an agreement on the questions that should be posed. They track Justice Code’s questions in Stanley. With some minor editing, I agree with those questions.
[6] All jurors have biases, beliefs, or pre-conceived notions about many immutable characteristics held by an accused. This would include biases, beliefs, or pre-conceived notions about the race of the accused. In my opinion, asking the first part of the question suggested by the defence yields very little useful information. If the answer is “yes”, it may be that the juror displays a valuable awareness and insight into what is the unfortunately but perhaps an inevitable outcome of human nature and lived experience. Rather than disqualifying a juror because of bias from the get-go, the positive answer provides some assurance that the potential juror recognizes the failings in the way they, or indeed humans in general, perceive others. If the answer is “no”, that juror may not be as reflective or self-aware of their own biases, beliefs, or pre-conceived notions. On the other hand, their negative answer may be a result of a confidence in their abilities to treat persons of different races equally without resort to any stereotypes or unwarranted assumptions. Thus, their response is comforting. Of course, I do appreciate that for some jurors, the answer “yes” may reveal some biases, beliefs, or pre-conceived notions that might disqualify them from being jurors. Nonetheless, my point is simply that without more inquiry into those biases, beliefs, or pre-conceived notions and the way the jurors hold them, either a “yes” or a “no” response is not of much use to the trier of the challenge.
[7] Arguing against such a question is the potential embarrassment and confusion it can pose to a juror. A juror is being asked for a direct answer but has no ability to explain their answer or to put it into context. Moreover, they are being questioned in an intimidating and foreign environment, and, though under oath or affirmation, under a subtle pressure to answer it in the “correct” way. Even with some notice of the question, if it is to be answered truthfully, accurately, and completely, it would require a period of self-reflection and likely a “safe” environment to acknowledge their innermost feelings on this topic. Things that cannot readily be afforded in a courtroom during a jury selection process.
[8] The key to a fair and just jury selection process is the juror’s answer to second part of the question. Regardless of whether they hold such biases, beliefs, or pre-conceived notions about the race of the accused, their insight and intelligence about them, or the degree or force they are held, the fundamental question is whether they can set them aside to render a true and impartial verdict based solely on the evidence. A truthful answer to this question is what matters. Our jury system depends upon it. Moreover, our criminal justice system accepts that a potential juror can set them aside.
[9] This is not to say that the challenge for cause should not alert the juror and provide the juror the time to reflect upon their biases, beliefs, or pre-conceived notions. It should. Therefore, I have built this into the preamble to the question as well as the question itself.
[10] Finally, the question regarding unconscious bias. The defence proposed the following question:
If you find during the trial that you have an unconscious bias, will you take steps to put those beliefs aside and decide the case based solely on the evidence at trial and the instructions that I give you?
[11] Again, the Crown and Defence have come to an agreement about how unconscious bias should be dealt with. They propose that unconscious bias be a part of the other questions. In my opinion, it is best that this question be dealt with separately.
[12] Along with other trial judges, I have in the past permitted such a question to be posed on a challenge for cause. However, in doing so, I was always struck by the fact I was asking about an “unconscious” bias. In other words, a bias that a potential juror is not aware of. Bluntly, if a juror is not aware of it, how is the juror supposed to address it? How can a juror answer such a question truthfully? The proposed question does have the advantage of obtaining the juror’s agreement to do something about it if they become aware of such a bias during the trial. However, it begs the question of what happens if the juror never becomes aware of an unconscious bias during the trial. Which is likely given what an unconscious bias is by definition. What then?
[13] Of course, any questioning of a juror about unconscious bias has the advantage of sensitizing the juror while they are under oath or affirmation about the possibility of unconscious bias and its potential negative effect on adjudication. But to fulfill the objective for the challenge for cause, it really should do more than provide fair warning. If it is to weed out potential partial jurors on the basis of unconscious bias, the focus should be on whether the juror will be committed to do what it takes in order to combat the adverse effects of unconscious bias. If they are not, it may well be they cannot be an impartial juror. Thus, I have recast the question in the following way:
As I explained to the entire jury panel before, we all have unconscious biases. Are you willing and committed to take meaningful steps during this trial to be aware of those unconscious biases the best you can and to make sure they do not affect you in deciding the case solely on the evidence and the instructions I will give you?
[14] In my opinion, this question is a better one. Especially when viewed along with the opening instructions to the jury panel as well as the more explicit instructions I will give to the petit jury, once chosen, about what those meaningful steps can be. A response to this question will help in determining whether a juror has what it takes to render a true and impartial verdict because it reveals their commitment to impartiality in this context without trying to completely untangle the knotty problem of addressing biases that a potential juror may not even be fully aware of.
[15] Thus, I conclude the following to be the questions on the challenge for cause:
Preamble
You will recall when I addressed the jury panel about the need to identify and set aside biases, stereotypes, prejudices and other assumptions when deciding this case. Some of these may be unconscious; things that you are not even aware of as you go about your day-to-day life unless you think and reflect upon them. It is not about whether these biases, stereotypes, prejudices, and other assumptions are right or wrong, but the issue before us today is whether you can set them aside so that they do not affect your decision in this case. So, I will ask you some questions about that. Take as much time as you need to answer each question. We are not in a rush. If you don’t understand a question, please don’t hesitate to ask me to explain it better.
Questions
Take a moment and ask yourself whether you have any biases, beliefs, or preconceived notions about Black men. If you do, would you be able to set those aside and decide the case based solely on the evidence at trial and the instructions I will give you?
Take a moment and ask yourself whether you have any biases, beliefs or pre-conceived notions about whether Black men are more likely to engage in crimes of violence. If you do, would you be able to set those aside and decide the case based solely on the evidence at trial and the instructions I will give you?
Take a moment and ask yourself whether you have any biases, beliefs or pre-conceived notions about people who illegally possess firearms. If you do, would you be able to set those aside and decide the case based solely on the evidence at trial and the instructions I will give you?
As I explained to the entire jury panel before, we all have unconscious biases. Are you willing and committed to take meaningful steps during this trial to be aware of those unconscious biases the best you can and to make sure they do not affect you in deciding the case solely on the evidence and the instructions I will give you?
Justice S. Nakatsuru Released: April 25, 2023