The Supreme Court of Canada has ruled that lawyers don't have the automatic right to ask potential jurors if their views may be biased by the fact that an accused person is of a different race from the complainant.It's up to defence counsel, ruled the unanimous court in R. v. Spence early this month, to show "an air of reality" to the assertion that the complainant's East Indian background has the realistic potential of aggravating jurors' prejudice against the black accused. That burden was not met in this case, wrote Justice Ian Binnie for seven-judge panel.
"I think the judiciary in general and the Supreme Court of Canada in particular are not going to give up their position that Canadian jurors are fit to sit in judgment of their fellow citizens," says counsel for Sean Spence, Christopher Hicks of Hicks Block Adams LLP.
"In contrast to the United States where the presumption is that you're not fit, here the presumption is that you are fit to judge your fellow citizens, and they won't let go of that unless there's good reason to do so."
In this case, Spence, a black man, was accused of two robberies in Toronto involving a white victim and an East Indian victim. At trial, the accused's counsel asked to make a challenge for cause to ask potential jurors if the interracial nature of the crimes would affect the way they would judge the evidence.
Counsel for the accused argued that jurors who are East Indian may feel a natural sympathy for a victim of the same race.
The trial judge allowed a challenge to potential jurors for cause regarding the race of the accused but refused to extend that challenge to include the race of the complainant. At trial, Spence was convicted.
On appeal, the majority of the court set aside the conviction, ruling that if an accused who is entitled to challenge the jury for cause wants to include the interracial nature of the crime in a question, he or she is entitled to have the question posed in that way.
Binnie ruled that in the Supreme Court's view, the appeal court pushed judicial notice beyond its proper limits.
"The respondent's argument proceeded on basis of questions to which neither evidence, nor judicial notice properly taken, supplied answers. The prior case law, read in context, does not support the need the need for broad entitlement in every case to challenges for cause based on racial sympathy as distinguished from potential racial hostility."
Marie Chen, counsel for intervenor the African Canadian Legal Clinic, says the ruling has not closed the door to the possibility of a potential for partiality to arise in cases where victims are racialized as well.
"The message is quite clear that the court is not prepared to take judicial notice but that it wants defence counsel to lead evidence on this issue. I think the court's decision is based primarily on the juror sympathy factor," she says.
"However, we had argued that and I think the defence counsel is still open to lead evidence to show how a potential of partiality can arise in other ways, particularly in the way that anti-black racism works in society, that the issues with respect to interracial offences where the victim is white are there as well, where the victim is racialized."
She says, however, what's important is that the court recognized that racism is not limited to the white community.
While some media reports state this case closes the door to U.S.-style jury selection, Univer-sity of Windsor law professor David M. Tanovich, who has researched racial profiling and systemic racism extensively, says that's a ridiculous comparison to make.
"At the end of the day, all that was being asked was adding a few words to a simple question," he says. "So little was being asked of the court and we should be taking as many steps as we can. The challenge for cause process is a very simplistic approach to a very complex problem. We should be thinking about expanding the scope of inquiry, not narrowing it even further.
"This idea that somehow it's opening the door to the American way, that's just ludicrous. In the U.S. there's hundreds of questions. In some cases, you literally have a book that jurors fill out that asks them about what the last five movies they saw were, what the last three books they read were, what they think of Oprah Winfrey. That's the American style of questioning," he says.
Louise Botham, president of the Criminal Lawyers' Association, says it's always within a trial judge's discretion to limit or expand challenge for cause.
"What they're saying is it's up to defence to show an air of reality to their assertion that the fact that you had either mixed races between an accused and a complainant or this specific mix of race had a realistic potential for bias.
"I don't see that anything's really changed. It seems to me they're saying you need to establish a realistic potential for juror partiality in order to ask certain questions. I would assume from that if you're able to establish that realistic potential for partiality, then you're going to be able to challenge for cause on various issues."
Hicks says part of the problem of establishing this realistic potential is that it requires a client with deep pockets to hire experts or conduct surveys to bring that proof to the table.
"You're going to need an ideal client, one charged with serious crime who's non-white who has money, and that gets to an extreme. It's going to be hard to marshal these resources on behalf of anybody to explore these issues," he says. "The Supreme Court of Canada has made it absolutely clear now, if you're going to raise these issues, you're going to have to substantiate them, otherwise you can't be successful.