The idea behind jury trials is that of being judged by a panel of one’s peers. That said, jurors must remain objective throughout the trial, and when giving their decision.

Once someone charged with a criminal offence chooses to have a trial by judge and jury, a large number of potential jurors are initially contacted at random. These many prospective jurors are eventually whittled down to 12, through a process called jury selection. During jury selection, both defence counsel and the Crown Attorney ask questions of the jurors to assess whether that particular juror holds any bias that would prevent them from remaining objective. A simple example would be a case where the accused is charged with killing a young child, and one of the prospective jurors recently lost their own child, who is a similar age to the deceased. This prospective juror would understandably struggle to remain objective.

When the accused is Black, Indigenous or otherwise identifies as a person of colour, and the jurors are mainly white, racism is the source of bias to be on guard for.

The problem is that racism can, in many cases, be subconscious, and very hard to spot. For if they see a large black man in a doo rag and tracksuit driving a fancy vehicle, they may wonder if the vehicle was stolen (these prejudices were at play during the trial of Toronto Raptors player Dee Brown back in the early 2000s, after he was pulled over for being a large black man, in a doo rag, driving a nice car).

Until quite recently, defence counsel could only ask very limited, yes or no questions to the jurors about potential racial bias. They can only ask the following: Do you harbour any racial prejudices? If so, can you put them aside in your decision making? Judges were traditionally reluctant to allow too much probing, as they felt it took up valuable court time, and could become too invasive in terms of the questions asked.

Defence counsel have long taken issue with the limited yes or no question described above. And really, even if a juror does consider himself to be slightly racist, not all jurors are willing to openly admit this, in a courtroom, when asked directly.

The realization has become that a white person and person of colour, charged with the same crime, might get completely different results from the same jury.

This cannot continue, and a Superior Court of Justice judge recently agreed that questions posed to jurors about racial bias can consist of more than the two questions listed above. In R v. Johnson, 2020 ONSC 3673 (CanLII), Mr. Johnson, a black man, and the co-accused, a white man, where charged with attempted murder of a white victim, and second degree murder of a Latino deceased. Mr. Johnson’s counsel made an application to the court for permission to ask more questions of the jurors on any potential bias.

In his decision, Justice Barnes agreed with Mr. Johnson that asking “do you harbour any racial prejudices, and can you put them aside in your decision making” is far too simplistic, and suggests a politically-correct response (again, when individuals are now being fired for their racist comments on social media, one can imagine that they would be reluctant to openly admit to being racist in court).

While Justice Barnes was unwilling to permit defence to ask just any open-ended question, Justice Barnes did accept modified multiple-choice questions. While not perfect yet, this is still a large step forward for any person of color charged with a criminal offence. You can guess that defence lawyers will continue to fight to expand the questions that can be asked of prospective jurors.

If you or someone you know is a person of color who has been charged with a criminal offence, contact the team at DeMelo Law. We will use our expertise to fight for the fairest jury selection possible.

The modified questions approved by Justice Barnes, for Mr. Johnson’s case, are the following:

Question 1

Some people believe that members of certain racial or ethnic groups are more likely than others to commit certain types of crimes or violence.

Do you believe that black men are more likely than other men to commit certain types of violent crimes?

Which of the following answers most accurately reflects what you believe:

a) I strongly agree.

b) I agree, but not strongly.

c) I disagree, but not strongly.

d) I strongly disagree.

e) I don’t know.

Question 2

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?

Which answer most accurately reflects your answer to that question:

a) I would not be able to judge the case fairly.

b) I might be able to judge the case fairly.

c) I would be able to judge the case fairly.

d) I do not know if I would be able to judge the case fairly.