Jun 5/98: Court acknowledges anti-native racism



Globe and Mail
June 5, 1998, p. A1
Kirk Martin

[S.I.S.I.S. note: The following mainstream news article may contain biased or distorted information and may be missing pertinent facts and/or context. It is provided for reference only.]

Prospective jurors may be questioned about their racial views to root out those whose prejudices could destroy the fairness of a criminal trial, the Supreme Court of Canada said yesterday. "Racial prejudice and its effects are as invasive and elusive as they are corrosive," the court said in a unanimous judgement. "Where doubts are raised, the better policy is to err on the side of caution and permit prejudices to be examined."

The ground-breaking ruling came in the case of a British Columbia aboriginal man, Victor Daniel Williams, who was charged with robbing a Victoria pizza parlour in late 1993. Before his first trial, Mr. Williams had laid out his concern in a simple, concise affidavit: "I hope that the 12 people that try me are not Indian-haters." The Supreme Court said that since a general bias that exists toward aboriginal people may have been exacerbated by local controversy over land claims and fishing rights in BC, Mr. Williams had a perfect right to be concerned.

"To suggest that all persons who possess racial prejudices will erase those prejudices from the mind when serving as jurors is to underestimate the insidious nature of racial prejudice and the stereotyping that underlies it," Madam Justice Beverly McLachlin wrote. "Buried deep in the human psyche, these preconeptions cannot be easily and effectively identified and set aside - even if one wishes to do so."

Julian Falconer, a lawyer who represented the Urban Alliance for Race Relations at the appeal, said it was heartening to see such a historic decision being made in the context of Canada's founding people. "But it is truly a vehicle to protect all minority people," he said in an interview. "This represents the most direct attack on racism by the Supreme Court in recent memory. It is also extremely rare nowadays to have the Supreme Court speaking unanimously. It underlies how important and, significant this judgement is." The court said the hurdle that had existed for lawyers wishing to question jurors - the lawyers had to show an actual link between community bias and their own client - was too high.

"To require evidence that some jurors will be unable to set their prejudices aside is to ask the impossible," the court said. "Widespread prejudice is not exceptional." As of now, the court said, to trigger the questioning process, a trial judge need only feel there is a "realistic potential" for bias against a minority group. It said the process will be virtually automatic in the case of groups who obviously suffer prejudice. "Jurors who are honest or transparent about their racist views will be removed," the court said. "All remaining jurors will be sensitized from the outset of the proceedings regarding the need to confront racial prejudice and will help ensure that it does not impact on the jury verdict."

James Lockyer, who intervened at the appeal on behalf of the Criminal Lawyers' Association, said he believes that the ruling will extend to minority groups such as gays or Jews. He also said it can be used by prosecutors to get rid of prospective jurors who might, for example, be biased against a black victim in a case where the defendant is white. "It is not a one-sided decision by any means, but it is certainly a good decision for the cause of justice," Mr. Lockyer said. Yesterday's decision represented something of a vindication for the Ontario Court of Appeal, which ruled two years ago that prospective jurors could be questioned for bias against blacks.

Its reasoning in the case of Regina V Parks was pointedly ignored by some other provincial appeal courts, a factor that set the stage for a final determination by the Supreme Court. Mr. Falconer and Mr. Lockyer said yesterday that prejudice is a very real concern in some trials. "It is an insidious and very commonplace reality." Mr. Falconer said. He said that although a prospective juror my even be unaware that he or she is biased, their choice of words or their gestures during questioning can be enough to betray it. Yesterday's decision means a third trial for Mr. Williams. His lawyer at his initial trial was permitted to question jurors about their racial attitudes, resulting in the rejection of 12 of 43 prospective jurors. However, the proceeding ended in a mistrial soon afterward.

The judge at Mr. William's second trial turned down a defence request to question prospective jurors. Mr. Williams was eventually convicted, the verdict that was overturned by yesterday's decision.

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