Racial bias runs surprisingly deep

TheStar.com – Columnist – Racial bias runs surprisingly deep
June 27, 2009.   Rosie DiManno

In a Hamilton courtroom recently, a mistrial was declared – in large part – because too many potential jurors declared themselves to be intrinsically biased against the black defendants.

There were no blacks in the jury pool and only two individuals of a visible minority.

The question posed to them all, at the insistence of a defence lawyer, was this: “Would your ability to judge the evidence in this case without bias or prejudice be affected by the fact the accused persons are black men or non-white men?”

Out of a jury pool of 72, 25 were let go in one day because they answered “yes.” That left too few to proceed with jury selection.

“It was very disheartening,” says Selwyn Pieters, who represents one of the accused, Richard Steele – a black man, before the courts not for the first time, who also happens to be the son of prominent black activist Valarie Steele.

“I believe these people were being honest in their answers and not just trying to get out of jury duty,” Pieters says. “And I wouldn’t want them on a jury either, because of their views. But I was quite surprised because these are people from all walks of life who looked me straight in the eye and said, yes, they were biased against blacks.”

Pieters is also black.

“I’ve never heard of a mistrial before called for this reason.”

Among those who admitted to their bigotry: A pathologist, a physiotherapist, a chartered accountant and two company executives.

“Mostly they were middle-aged and older,” says Pieters. “Those who were open-minded and said they wouldn’t discriminate based on race were young people, students.”

If, in fact, it was merely a ploy to get out of jury duty, that still means these people would rather be known as bigots than do their duty. What does that say about us as a tolerant and multicultural society?

For starters, it indicates Ontario Superior Court Justice John Murray is way off the mark when he wrote in a decision a few weeks ago that it’s time to scrap the practice of asking jurors if the fact an accused is black could affect their ability to render an impartial verdict.

In ruling the specific black-based question would not be asked in his courtroom, he suggested the “challenge for cause” shouldn’t single out just one race but, rather, be applied more broadly.

The question – which has been permitted in Ontario courts since 1994 – was addressed by the Ontario Court of Appeal, which found that anti-black racism is a notorious fact that must be confronted.

Murray, however, wrote the black focus feels “wrong in the pit of the stomach” in 2009, embedding in the justice system the notion that one particular form of prejudice, anti-black racism, is more pervasive and pernicious than any other.

Sadly, that indeed still appears to be so.

“With respect to Justice Murray, this case shows why a direct challenge for cause is necessary when the accused is black – to screen out anti-black racism, because it still exists,” says Pieters.

In this particular case, there were four men of colour before the courts on various counts of possessing loaded firearms. Each had his own lawyer.

Justice B.H. Matheson, in declaring a mistrial, stated three reasons for doing so, two of them procedural, including a motion for severance on several counts, requiring the indictment to be rewritten.

But the core issue – and this may be unprecedented – was the shortage of potential jurors due to the challenge for cause contained in the race question. A challenge for cause relates to a particular issue, i.e. race bias. Each lawyer also had 12 peremptory charges, whereby a juror can be rejected without explanation. That meant 48 potential strikes for the collective defence and 48 for the Crown: 96 total.

“There are now 45 left and there is a potential for 96 challenges for cause,” Matheson observed. “So rather than proceed at this time, I am going to indicate … that a mistrial be declared.”

It is believed this was the first mistrial in Matheson’s long career. He is to retire shortly.

Pieters plans to seek a change of venue, away from Hamilton. That motion will be heard in August.

“My client doesn’t feel that he can have a fair trial in Hamilton, given that one in three jurors felt they couldn’t judge a black man fairly.”

Leave a Reply

Your email address will not be published. Required fields are marked *