Who are you calling racist

What would you say if someone asked you if you were racist? Even if you were aware of your racial prejudices, would you admit to them? What about in open court?

The questions we use to screen prospective jurors for racial partiality in trials involving racialized accused are equally blunt, unsophisticated, and unhelpful. Our examination, originating from the Ontario Court of Appeal’s groundbreaking decision in R v Parks in 1993, essentially consists of asking prospective jurors whether they harbour racial prejudices and if so, whether they can put them aside in their decision-making.

Mr. Parks, a Black man in Toronto, was accused of the second-degree murder of a white cocaine user in the course of selling him drugs. Relying on s. 638(b) of the Criminal Code which provides an accused or prosecutor the right to challenge on the ground that “a juror is not indifferent between the Queen and the accused”, Parks’ counsel sought to ask prospective jurors whether their “ability to judge the evidence in the case without bias, prejudice or partiality” would be affected by the fact that the accused was Black and the deceased was a white man.

Arguably the most noteworthy decision on racism in Canadian criminal justice of that decade, Parks not only recognized the right of Black accused to question prospective jurors about racial partiality; it also highlighted the pervasive and “grim reality” of anti-Black racism. Racism in its many manifestations, Justice Doherty concluded, is part of our “community’s psyche.”

Sadly, the decision also was inherently limited. The question that defence counsel submitted and which the court approved to assess juror partiality attracted little attention in the reasons for judgment even though it was fraught with misguided assumptions about the nature of racism that conflicted with the very premise of the decision. For example, Justice Doherty explored in considerable detail the dangers of subconscious racism, which he cautioned was especially difficult to detect and purge. Yet the simplistic investigation espoused in Parks would suggest that racism materializes primarily in conscious and explicit forms. Moreover, the Parks inquiry, which concerns itself not with prejudices (i.e. attitudes) but with partiality (i.e. behaviour), is predicated on wishful thinking that we can compartmentalize our racism (even when it is subconscious) and set it aside in our decision-making if instructed to do so by a judge. 

Following in the footsteps of Parks, the Supreme Court of Canada in R v Williams eloquently described the insidious racism against Aboriginals and institutionalized the right of Aboriginal accused to screen prospective jurors. Like Justice Doherty, Justice McLachlin (as she then was) warned of the dangers of systemic and subconscious racism and advised trial judges to “err on the side of caution” when determining challenge for cause requests. She also did not assess the adequacy of the proposed inquiry.

Despite its shortcomings, Parks initiated an important and overdue discussion on the perils of leaving racism unchecked in the criminal justice system. The twentieth anniversary of the decision offers an opportune moment to evaluate the progress that we have made in responding to systemic racism through jury selection. To what extent has our screening evolved to reflect more nuanced conceptions of racism and racial prejudices? Do we now pose more penetrating questions that better expose subconscious forms of racial partiality and not only interrogate overt expressions of racism?

My review of two decades of case law on challenges for cause suggests that the progress we have made in examining the racial prejudices of jurors has been negligible (Erring on the Side of Ignorance: Challenges for Cause Twenty Years After Parks). Judicial conceptions of racism have neglected to keep up with its more subtle, contemporary manifestations. Given that explicit racial prejudice is now socially stigmatized, racism is far more likely to assume systemic, subconscious, or covert forms. Despite attempts by some defence counsel to expand the scope of questioning to better capture racism’s adaptations, most judges have resisted efforts to move beyond the cursory investigation adopted in Parks and Williams. Among the troubling reasons cited to deny such requests are the privacy interests of jurors who would be required to disclose prejudicial beliefs in open court; the need for administrative efficiency; and a lack of empirical evidence to indicate that a modification to the inquiry in Parks (itself empirically untested) would clearly improve the screening process.

The resistance we see now is not new. Immediately following the Parks decision, many judges refused to apply Justice Doherty’s ruling outside of Toronto, arguing that anti-Black racism was unique to that city and that their own regions enjoyed racial harmony. Similarly, some courts, including the lowers courts in Williams, were reluctant to extend challenges for cause to members of other (non-Black) racialized communities. Appellate court interventions were required to correct both of these tendencies and to ensure that all racialized accused would benefit from this “minimal protection”, as Justice Finlayson referred to it in R v Koh.

So what would a deeper and more insightful inquiry look like? It could include less direct questions about racial bias, such as the views of prospective jurors on interracial relationships (rejected, for example, in R v Scott), or whether they believe Blacks are less capable compared to other racial groups or more prone to committing crimes (rejected in R v Oliver). Research from psychology and other disciplines offer a rich source of inspiration for crafting more illuminating investigations. More modestly, even providing multiple options for answering the traditional Parks question (e.g. “I might be able to judge the case fairly”), as some defence counsel have endeavoured with mixed success, would be somewhat of an improvement to the prevailing yes or no query that invites a socially acceptable response. Given the abundant possibilities for more effective screening, why are we still so wedded to an inquiry that many judges concede is flawed even as they reject more promising approaches?

In a criminal justice system that continues to criminalize, police, prosecute, and incarcerate Blacks and Aboriginals at alarming and vastly disproportionate rates, is it any surprise that racialized communities continue to distrust legal institutions they perceive as discriminatory? Challenges for cause cannot remedy all that is wrong with a system mired in racism, but they do have a crucial role to play. Our screening measures fail even symbolically if racialized accused are not permitted to ask relevant and probing questions of the jurors who will determine their fate as well as that of their communities.

Meaningful vetting is even more critical now that the Supreme Court of Canada has determined in R v Kokopenace that juries can be deemed fair even if they are drawn from unrepresentative jury rolls. How much faith would you have in a system that allowed you to be tried by a judge and jury that looked nothing like you, that shared none of your cultural or racial experiences, and whose prejudices against members of your racial group were not fully examinable?

If we truly aspire to dismantle systemic inequalities in criminal justice, our (predominantly white) judiciary needs to overcome its discomfort with issues of racism. Liberal colour-blind ideology, while tempting, perpetuates rather than alleviates racism. Recognizing and interrogating racism will not inject a “racial overtone” into an otherwise neutral process, as both prosecutors and judges often assert. Rather, racism is always at issue, whether or not we acknowledge it.

Judges are not the only ones who bear responsibility for advancing change in this context. Defense lawyers must reject convenient but empty gestures to address racial inequality and vigilantly defend thoughtful, informed, and comprehensive requests to challenge for cause and appeal unreasonable denials. Prosecutors, too, have an ethical responsibility to expose juror racism by not habitually opposing challenge for cause requests and even initiating their own. If we routinely cling to the limited examination in Parks, we will continue to fail the most vulnerable in a deeply flawed and discriminatory system. Instead, we should embrace the spirit of the Parks decision by accepting that the changing face of racism demands that our legal responses to it must shift as well.