How do we judge the jury (examination for racism).

• Author: Mitchell, Teresa

Trials by jury date back centuries in our jurisprudence. The Magna Carta, signed by a reluctant English King in 1215 guaranteed the right to trial by jury with these words "No free man shall be taken or imprisoned, or deseized, or outlawed or banished, or anyways destroyed; nor will we pass upon him, or commit him to prison, unless by the legal judgement of his peers, or by the law of the land."

Centuries of law and tradition doesn't mean that the law can't change to conform with contemporary realities. The Supreme Court of Canada at the end of the twentieth century reflected on the meaning of "the legal judgement of his peers".

Challenges to a potential juror on the basis of bias have been allowed in Canadian law for some time. Section 638(1) of the Criminal Code states that a prosecutor or the accused is entitled to any number of challenges on the ground that "a juror is not indifferent between the Queen and the accused". This is an oblique way of saying that a juror can be challenged for possible bias against the accused person. However, in Canada, prospective jurors were presumed to be impartial and this presumption had to be disproved before a challenge could be successful. Defence counsel could try to set aside the presumption by calling evidence substantiating the grounds for concern. Several Ontario cases in the mid-90s examined the possibility of white jurors being biased against black accuseds. The Ontario Court of Appeal decided in each case that there was a realistic potential for the existence of bias, given the documented extent and intensity of racist beliefs in Canada and in Metropolitan Toronto in particular. In both cases, the Supreme Court of Canada turned down leave to appeal. Then, in 1998, the Supreme Court had the chance to consider the question of bias on the part of jurors in the context of a BC Appeal Court decision. The decision said that the presumption that jurors will be impartial is not discharged by evidence of the existence of widespread bias against aboriginal people in the community. The accused person needed to show evidence of racist attitudes that would directly affect a criminal trial in order to upset the presumption that jurors are impartial.

The Supreme Court considered R. v. Williams. Victor Williams is an aboriginal man convicted in 1993 of robbing a Victoria pizza parlour. At his first trial, his lawyer asked prospective jurors if their judgment would be affected by the fact that Mr. Williams was...