A previous blog post discussed anti-Black racism and its impact on the criminal justice system (CJS). Juries play an important role in the CJS, but the use of juries can cause additional issues when dealing with racialized accused persons. The Courts have considered the role of racial bias and anti-Black racism in juries. In 1993 the Supreme Court of Canada released R v Parks, which recognized racism in Canada. They said: “[r]acism, and in particular anti-black racism, is a part of our community’s psyche….there can be no doubt that there existed a realistic possibility, that one or more potential jurors…would, consciously or subconsciously, come to court possessed of negative stereotypical attitudes toward black persons.” The court also recognized that racist attitudes have an impact on jury verdicts where the accused is a racialized member of the community.

Parks established the right to “challenge for cause” based on racial partiality. This gives an accused the right to ask the Judge to excuse a potential juror, by showing the juror cannot be impartial. It is ultimately up to the judge whether or not to allow the challenge and excuse the juror. A challenge for cause based on racial partiality gives the accused the opportunity to try to show the Judge a potential juror has racial bias that would prevent the juror from making a decision based on the evidence, and not the accused’s race. After the Parks decision, this was done by asking jurors what is known as the Parks question:

“As the Judge will tell you, in deciding whether the prosecution has proved the charge against an accused person, a juror must judge the evidence without bias, prejudice, or partiality. Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the person charged is Black?”

Since then, courts have expanded on these questions, in order to better address the possibility of racial bias on juries.

In R v Smith, a decision released this year, the judge asked two questions:

“Do you believe that you have any attitudes or beliefs about Black people that would interfere with your ability to judge the evidence fairly and objectively?”


“I mentioned earlier that sometimes people have unconscious biases about things like race and ethnicity without being fully aware of them. If you are chosen to be a member of the jury in this case, are you willing to remain mindful of the possibility that you might have such unconscious biases, and make efforts to set them aside to the best of your ability?”

In another decision released this year, R v Martin, defence counsel was allowed to ask the jury two questions on potential for racial bias:

1. Do you have any bias, beliefs or preconceived notions about Black men?

2. (If yes), would you be able to set those beliefs aside and decide the case based solely on the evidence at trial and the instructions of the trial judge?

These questions allow accused, and their counsel, to try to ensure jurors do not have a racial bias that would impact the verdict, and is one of many steps that should be taken to ensure racialized defendants are receiving fair trials.

Have you been charged with a criminal offence? Call DeMelo Law to explore your options.