Posted on June 12, 2009

Judge Rejects Racial Bias Rule

Tracey Tyler, The Toronto Star, June 12, 2009

An Ontario Superior Court judge says it is time to scrap the practice of routinely asking jurors in Toronto and the surrounding area if their ability to render an impartial verdict could be affected by the fact the accused is black.

“We live in the world of Spike Lee–not that portrayed by Harper Lee,” said Justice John Murray in refusing to permit such language, which singles out black people, while challenging jurors for bias at an assault trial of a man in Milton.

Murray argued the words seem a condescending throwback to the 1960s attitudes laid bare in Harper Lee’s novel To Kill a Mockingbird.

He suggested jurors be asked in more generic terms whether they would be able to judge the case “without regard to the race of the accused.”

Today, in jury trials in the Greater Toronto Area, an accused black person charged in a case involving a victim of another race has the right to ask would-be jurors whether their ability to judge the case impartially could be affected by the race of the accused and the interracial nature of the alleged crime.

If the victim isn’t of a different race, potential jurors can be asked as part of a “challenge for cause” whether a verdict could be affected by “the fact the accused is black.”

In 2009, however, those words feel “wrong in the pit of the stomach” and many in the justice system are uncomfortable with such questions, Murray said.

The questions suggest there is a recognition “embedded” in the justice system that society consists of “Us” (whites) and “Them” (black persons) and that one particular form of prejudice, anti-black racism, is more pervasive and pernicious than any other, he said in a written decision Wednesday.

The Ontario Court of Appeal opened the door to race-based challenges of prospective jurors nearly 16 years ago in a groundbreaking ruling known as the Parks decision, saying anti-black racism is a notorious fact that must be confronted.

In that case, the accused, Carlton Parks, a former drug dealer charged in connection with a 1988 stabbing death in Regent Park, was black. The victim was white.

But “in 2009 we live in a different time and in a different place than we did in 1993, when the Parks questions were approved by the Court of Appeal. Our communities have changed and continue to change,” Murray wrote in his decision.

The judge noted that in the 1960s, for example, To Kill a Mockingbird, served as a “consciousness-raiser” about racism, particularly in the American south, but last year one critic said its portrayal of blacks seemed condescending and off-balance.

“In the world of Spike Lee and Barack Obama, the Parks questions, too, feel condescending and off-balance,” Murray noted.

It is often “embarrassing and undignified” to put Parks-type questions to black prospective jurors, he noted. One might wonder why jurors are not also asked if they would be prepared to accept directions from a black judge, he added.

Instead of focusing on a particular form of prejudice, Murray said questions designed to weed out prejudice should be asked in a “generic” form.

He approved a more broadly worded question to be put to jurors at the trial of Ishmael Jahmar Sinclair in Milton.

After being advised a juror must judge the evidence without bias, prejudice or partiality, potential jury members will be asked whether they will “be able to judge the evidence in this manner without regard to the race of the accused.”

Murray also said any accused person should have the right to challenge jurors for cause based on concerns about any other form of discrimination prohibited under the Charter of Rights and Freedoms–for example, on the basis of sex or disability.

And in what appears to be a departure from previous rulings by the Supreme Court of Canada, as well as the Ontario Court of Appeal, Murray also suggested accused people who wish to put such questions to jurors should not be required to first prove there is a “realistic potential” these forms of discrimination exist in society.

They have been recognized as unlawful under the Charter, he said.

“Should a Muslim or a Jew be denied a right to challenge for cause because he/she is concerned about heightened potential for prejudice in the community because of possible reaction by some in this diverse community to recent events in Mumbai or in the Middle East?” Murray asked in his judgment.

“Should any accused have placed on him/her an onus to establish grounds for legitimate concern? In my view, the answer is no.”

Frank Addario, president of the Criminal Lawyers Association, called Murray’s ruling and remarks gutsy.

“The courts have an important role to play in making a litigant feel that they are going to get fair treatment, and here is a very courageous decision to confront the known prejudices in our community and to address them directly,” Addario said.

“What he has done,” he added, “is to start a conversation about how judges and juries understand racialism as a phenomenon that affects decision-making.”