After Obama: post prejudice?

• Author: Mitchell, Teresa
• Position: Today's Trial

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...