After Obama: post prejudice?

Recently, in a Toronto courtroom, the defence counsel for Ishmael Sinclair proposed to use the usual format question when challenging prospective jurors for his client's trial. The standard question stems from a 1993 decision, R. v. Parks. The question is: "In this case, does the fact that Mr. Sinclair is a black man affect your ability to judge the evidence you will hear without bias, prejudice, or partiality?" The trial judge, Mr. Justice John Murray of the Ontario Superior Court of Justice, stopped the lawyer and made a proposal.

Justice Murray suggested that the defence lawyer take some time and consider alternative wording to the standard question, which the Judge would then consider. The lawyer submitted a revised question: "Will you be able to judge the evidence in this matter without regard to the race of the accused?" Justice Murray approved the revised question, and promised written reasons for his unusual request.

Mr. Justice Murray's reasons are eloquent and memorable. He began by stating that, in his opinion, it was time to revisit the wording of the Parks question. He noted that it was regrettable that where a black person was accused of committing a crime against a white victim, a challenge for cause procedure in jury selection was warranted: "an acknowledgment of the pervasiveness of intolerance and prejudice against blacks in Ontario, and Canada", which could result in a racially driven verdict. Justice Murray then stated: "Notwithstanding that prejudice and intolerance still exist in Canadian society, it is timely to revisit and ask whether the Parks questions remain appropriate in challenge for cause proceedings involving a black accused."

Justice Murray then asked two questions of his own:

* If accused persons must meet a threshold evidentiary test of realistic potential for bias, could that preclude members of other racial minorities from having the ability to challenge potential jury members for cause?

* How does the Parks question sound when asked of potential jurors?

He quoted a scholar who suggests that the arbitrary division of groups in society into "Us" and "Them", or "Somebodies" and Nobodies" lies at the heart of discrimination and racism. He wrote: "Asking a black member of the jury panel one of the Parks questions is embarrassing and undignified. Asking either of the Parks questions causes discomfort to many people involved in the administration of justice and is not restricted to black jurors who are asked a Parks question or to black court officers who ask it. It is often embarrassing and undignified for the judge, for the questioner, and for the potential juror. In fact, one wonders, if all the assumptions on which the Parks questions are based are correct, why not ask potential jurors if they are prepared to accept direction from a black judge?

"When a Parks question is asked, the discomfort felt by many involved in the judicial process is palpable and is not restricted to men and women of a particular race. 'We' are discomfited by the form of the question. 'We' are discomfited by the sound of the question.

"Apart from how it sounds, the Parks question feels wrong in the pit of one's stomach. To Kill a Mockingbird, the famous American novel by Harper Lee, as a consciousness-raiser, is of and for the early 1960s. In 2008, as one critic has stated, its portrayal of blacks seems condescending and off-balance. As one teacher said, for every white student who is inspired by the book, one black student is demoralized. We live in the world of Spike Lee not that portrayed by Harper Lee. In the world of Spike Lee and Barak Obama, the Parks questions too feel condescending and off-balance.

"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. Our challenge for cause procedures must change too."

Justice Murray suggested that trial judges be permitted to approve more generic questions to prospective jurors. He maintained that this could eliminate the suggestion that racial prejudice, or a particular racial prejudice, (i.e. anti-black prejudice) is more pervasive and pernicious than other forms of prejudice. He stated that judges should have the ability to approve questions based on the unique characteristics of the accused if requested by counsel to do so. He concluded that more generic questions:

* avoid judicial recognition that racially identified categories of people require special procedures and special protection thus reinforcing institutional recognition of the pervasiveness of a particular bias;

* eliminate the Us and Them sound of the current questions;

* extend the protection of challenge for cause procedures to help ensure the absence of any prohibited motives in juror deliberations;

* treat all accused persons as equally entitled to the protections of s. 15 of the Charter in a jury trial; and

* recognize that any prejudice informed by a factor prohibited by s. 15 of the Charter is intolerable in the application of the criminal law--regardless of whether such prejudice is pervasive in the community.

R. v. Sinclair, 2009 CanLii 29912 (ON.S.C) R. v. Parks, 15 O.R. (3d) 324