Jury screening for racial bias urged to be broadened
Superior Court decision to allow more nuanced questions during recent trial called big step toward having a ‘more impartial jury’
How extensively can potential jurors be questioned to see if they harbour racist views?
A newly published Ontario court ruling is being hailed by some legal experts as a hopeful sign of things to come after the judge in a Toronto murder trial allowed lawyers wider latitude to probe for potential bias.
While lawyers have been allowed for almost three decades to screen jurors for racial prejudice, there’s been a tendency for judges to limit the scope of questioning to yes-or-no-style questions: Do you harbour any racial prejudices? If so, can you put them aside in your decision making?
But in a decision last year that was just published on the Canadian Legal Information Institute (CANLII) website, Ontario Superior Court Justice Kofi Barnes allowed for more nuanced questions along with multiple-choice answers at the start of a murder trial. Acknowledging that anti-Black bias is “entrenched in some individuals, societies and institutions,” Barnes wrote that the danger of unexplored subconscious racial bias was “too important to ignore.”
Rakhi Ruparelia, a University of Ottawa law professor who has been advocating for more robust screening of jurors, called the decision significant.
“Time will tell, but everything that is happening right now in terms of current events and awareness of racism in the criminal justice system, I think it’s going to be hard for judges to deny the level of discrimination and systemic discrimination,” she said.
“We need to move to a place where we can say, ‘What do we do about it?’ rather than, ‘Is there a problem?’ ”
The option to screen jurors for potential racial bias was allowed after a landmark 1993 Ontario Court of Appeal decision in R v Parks, a case involving a Black drug dealer in Toronto who was accused of second-degree murder in the death of a white drug user.
But since that decision, judges have generally been reluctant to expand the scope of questioning of jurors, citing a lack of empirical evidence it is needed and the concern it would take up too much court time and be too invasive, Ruparelia said. Sticking to the standard line of questioning is overly simplistic and not terribly helpful.
“Very few jurors will actually admit their bias openly and that’s assuming they’re aware of their bias,” she said.
“It really doesn’t take that much extra time to do it properly. If it did take a bit of extra time, if it meant that we have a better jury — a more impartial jury — isn’t that worth the investment?”
Ruparelia didn’t mince words in a 2018 column published in the Canadian Bar Association’s national magazine.
“If we truly aspire to dismantle systemic inequalities in criminal justice, our (predominantly white) judiciary needs to overcome its discomfort with issues of racism,” she wrote.
Barnes’ decision helps to move the needle, experts say.
His decision stems from a case involving two men, Trayon Johnson and Richard Ireland, who were accused of seconddegree murder in the stabbing death of Maxwell Chavez and the attempted murder of Jackson Merizzi at a Mississauga shopping plaza in 2017.
At the start of the trial last year, lawyers for Johnson, who is Black, applied to the court for an opportunity to question prospective jurors to suss out the existence of “racist, discriminatory or otherwise intolerant attitudes toward men of African ancestry.”
The first proposed question asked: “Do you believe that Black men are more likely than other men to commit certain types of violent crimes?”
That was followed by five possible answers: I strongly agree; I agree, but not strongly; I disagree, but not strongly; I strongly disagree; and I don’t know.
The second question asked: “As a result of attitudes that some people have grown up with, or experiences they have had, it may be more difficult for them to attempt to judge the evidence of the witnesses without bias, prejudice or partiality. Might you be even slightly hesitant in your ability to judge the case fairly given that one of the individuals charged is a Black man, one of the victims is white, and the other victim had a white mother and a Latino father?”
This was followed by four possible answers: I would not be able to judge the case fairly; I might be able to judge the case fairly; I would be able to judge the case fairly; and I do not know if I would be able to judge the case fairly.
In allowing these questions, Barnes said while the yes/no style of questioning allowed in the 1993 Parks decision was well suited to identify overt racist beliefs, it did not capture our contemporary understanding of racism, particularly subconscious racial bias.
Maureen Addie, one of Johnson’s lawyers, told the Star the more nuanced questioning was effective and that there were some people excluded from the jury who likely would not have been excluded under the standard line of questioning.
“It gives people who are being asked the questions an opportunity to be more reflective and honest with themselves and with everyone else. And it gives the triers more time and information to assess the person,” Addie said.
A jury ultimately acquitted
Johnson of both charges in June 2019, while his co-accused, Ireland, was found guilty. Ireland has appealed.
Kent Roach, a University of Toronto law professor, said he expects to see more judges follow Barnes’ example following the federal government’s adoption last year of jury selection reforms under Bill C-75.
Under the old system, the responsibility for weeding out biased jurors fell to a couple of everyday ci t i zens picked out of the jury pool, called “triers.” The Crown and defence lawyers could also exercise a limited number of peremptory challenges that allowed them to exclude prospective jurors without having to give a reason.
Under the new system, the responsibility for screening jurors shifts entirely to the judge.
“Hopefully this’ll break the dam. Now that judges are having to make this decision they’ll decide that it is worth spending a few more seconds,” Roach said.