FROM JUNE/JULY 2021 ISSUE OF WEST END PHOENIX

Racial bias plays a role in jury deliberations and weighs heavily on trial outcomes. So why are the courts still reluctant to admit it?

In 2018, I was selected as a juror for a criminal trial, from a pool that skewed mostly white. I was the first Black juror chosen and, as it soon became clear, I would be the last.

This wasn’t so surprising. I hadn’t seen a lot of people who looked like me in the pool, and some of the few I did see had valid hardship reasons for being excused from the seven-week trial. Even more were gone after an abrupt peremptory challenge, a practice that gives legal teams a certain number of opportunities to strike a juror for any reason. So many people were challenged so often that I wondered if we’d run out of people in the 250-person pool before a jury could be formed.

In fact, it took warnings from the judge that the jury pool was running low, as were the number of challenges each side could make, before a jury of 12 was formed. Then the judge called the remaining 40 people into the courtroom to be excused.

In came a sea of brown-skinned people in varying shades. Shockingly, three-quarters of the excused jurors were Black. It was a fluke, an unintended result of random selection, but it was a costly consequence. I felt a heavy pit of dread in my stomach at the charged silence swelling in the small courtroom. Dozens of Black people were before us, potential jurors that were now about to be excused. These people weren’t listening to the judge apologize for their weeks of waiting.

They were staring intensely at the Black man in chains on trial and at the jury, which looked nothing like him – or themselves.

Beside the jury box, a disgruntled man was silently raging. He scanned our jury, looked back at the defendant, then at the large group of excused Black people around him. Then he shook his head, an unrestrained expression of disgust, fury, disappointment and grief. He looked at me with such directness that I immediately got the message: With each non-Black juror, a fair outcome for the accused grew more unlikely, because we all knew that bias would play a role in the jury’s deliberation. I was sandwiched between duty and injustice, with added pressure coming at me from every party in the room.

This is what it felt like to be the only Black juror, the person we put all our hopes and expectations on in CNN-televised trials – and who we blame when the outcome isn’t what we wanted. I was representing all these excused people, who were deeply familiar with what happens when a young Black man doesn’t have a jury of his peers. I knew then that I’d have more of a responsibility than anyone else to make sure bias didn’t hinder the trial. That immense burden, one not recognized by the courts, has stayed with me.

The power to choose

Defendants have the right to a representative jury, meaning the pool from which potential jurors are randomly selected should be reflective of society. However, as I explored in part one of this series, the outdated methods Ontario uses to procure a jury systemically make Black people ineligible. Until 2019, potential jurors were chosen randomly from property assessment rolls, and the large majority of those who own property and can afford to take time off to serve are wealthy and often white, leaving many Black defendants with a jury that looks nothing like them.

Peremptory challenges can help create a jury that is more racially representative when defence lawyers strike people they suspect might be racist. On the other hand, the practice has often backfired, causing a jury to be even less diverse.

In our case, I noted a vague pattern of those challenged by the defence (older, white or conservative) and the prosecution (racialized or lower income). It seemed like the way people spoke, their occupations, their clothing and their race all played a role in whether they’d be challenged. I also became a trier, one of the two most recently chosen jurors who, in addition to lawyers, could challenge potential jurors. We challenged people based on their answers, on their vibe, on any inclination that they would be biased, or not take the process seriously. While it felt uncomfortable to scrutinize, it seemed like a way to prevent the wrong kinds of people from getting on a jury. Even after the final two triers, we still saw more than a handful of Black people come into court, but those accepted by the triers were then struck by challenges or excused due to hardship. In the end, while more than half of our jury was white, we still had a decent group of non-Black people of colour.

After years of criticism, peremptory challenges were banned in Ontario in 2019 as part of Bill C-75’s aim at jury reform following the Gerald Stanley case. (Triers were eliminated at the same time.) Stanley was a white man in Saskatchewan who fatally shot Colten Boushie, a 22-year-old Cree man. Prospective jurors in the case claimed the prosecution had deliberately used peremptory challenges to remove all Indigenous jurors from the box to create an all-white jury, which acquitted Stanley. While it’s discriminatory to use peremptory challenges to remove jurors on the basis of race, decades of evidence have shown that lawyers, namely prosecutors, do tend to use them to strike Black, Indigenous and Latino jurors.

Banning peremptory challenges has divided lawyers and advocates

Kent Roach, a professor of Law at the University of Toronto and the author of Canadian Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case, is in favour of the ban. He believes it helps avoid situations like the Stanley trial, but also understands why others think it was the wrong decision. “Defence lawyers may have a point [for keeping challenges] in large cities where there’s a majority visible minority population, although even then I’m a bit dubious because there’s still underrepresentation of those people that actually show up for jury duty,” he says. He worries that peremptory challenges may be used in an antagonistic way. “The defence could [potentially] use peremptory challenges to remove all the white jurors, not assuming that the Crown might tit for tat and also start removing racialized jurors.”

But not everyone agrees. Last year, Pardeep Singh Chouhan, who was convicted of first-degree murder in 2019, was granted a new trial after his lawyers appealed, arguing the ban on peremptory challenges as part of Bill C-75 infringed on his right to a fair trial.

Sandra Lange, an associate at McCarthy Tétrault who was an intervener in the appeal, calls it a “shame” that the courts banned peremptory challenges, given that Black people are already systemically overrepresented as defendants and underrepresented as jurors. “Giving [Black defendants] peremptory challenges gives them at least one tool to participate and engage in the justice system,” she says, adding that they were a safeguard in addressing subconscious bias in actions, comments or gestures that a Black accused or their lawyer may see in potential jurors. “And now we have no tools to date in the courts to address implicit bias. The only tool [from] my perspective that existed to address it was peremptory challenges.”

As a former Crown, Lange notes that prosecutors can use peremptory challenges to strike racialized people from the jury, and that does present a power imbalance. “Judges take the Crown’s word for things because we’re seen [as] a neutral party,” she says. “So there’s a lot of power that Crowns have in this system. To me, peremptory challenges can help [level the] playing field a little bit for defendants.”

Asking jurors about racism

What exists in place of peremptory challenges is the challenge for cause, a practice that allows lawyers to ask questions about a juror’s racial bias.

Each potential juror in our trial was asked whether the defendant being a Black man would hinder their ability to be impartial. Nearly everyone answered no, except for a small group of people. However, that wasn’t enough to be immediately struck – you then had to answer whether those negative views could be put aside to render a fair verdict. Most couldn’t promise that, and even if they did, they were challenged by the defence anyway.

Challenge for cause based on racial prejudice was introduced in the 1993 case R. v. Parks, where a Black drug dealer was accused of the second-degree murder of a white cocaine user. In a groundbreaking appeal, Justice David Doherty used a number of studies to support the “grim reality” of anti-Black racism in Toronto, which by that point had been increasing for several years in lockstep with an influx of Jamaican immigrants. As a result, Doherty said, Black defendants should have the right to challenge the jury about whether their racial biases would affect their impartiality.

Doherty acknowledged that a significant number of Torontonians, as well as the justice system, held explicit anti-Black views, and that this was also subconscious. As a result, lawyers should be able to ask jurors questions about racism. However, many trial judges (who were overwhelmingly white) in smaller cities with white populations rejected the decision, believing that anti-Black racism was either nonexistent or not an issue in their region. In order to get these questions approved by the judge, the burden of proof of racism that lawyers need to show is impossibly high and doesn’t take into account subconscious and often subtle, racism.

The need to ask jurors about racial bias is urgent, especially at a moment of a renewed racial reckoning. Roach says it is “shocking and disturbing” that jurors weren’t challenged about their bias in the Stanley case, and adds that there’s still a gap in the court’s understanding of how racism functions and a reluctance to ask jurors these questions.

“One of the lessons with implicit bias is for us to be more aware of biases that we all have by virtue of living in an unequal world,” Roach says. “I think judges sometimes overestimate the ability of jurors to put things out of their mind.”

Can implicit bias affect a case?

In fact, despite the Doherty findings on subconscious racism, many judges believe jurors can put racial bias aside to fulfil their duty.

Akwasi Owusu-Bempah, assistant professor of sociology at U of T, says that assuming jurors can put aside racial bias presupposes that people have a real understanding of what their biases are. “The assumption that we would simply be able to set those aside because we’ve been told to negates how implicit bias works and operates. I think it’s a bit of a foolish assumption,” he says.

A Columbia University paper by Russell K. Robinson found many white people expect racism to be explicit, and believe most people are colour-blind. In comparison, many Black people perceive racism to be prevalent and primarily implicit.

While implicit bias is a newer field of study, extensive research has established that white and non-Black people often believe Black people are more prone to violence and crime, stereotypes that have persisted since slavery. This can have a subtle yet biasing influence on the way they perceive others, form judgments and react to situations.

A 1985 article by Sheri Lynn Johnson found that white jurors tend to convict Black defendants for crimes that white defendants are acquitted for, and that unconscious stereotypes about Black criminality may cause Black defendants to appear more guilty to white jurors. Mock trials have also found strong links between white juror perception of Black criminality and higher conviction rates.

The historical stereotype of Black criminality continues to be a factor in mass arrests, police brutality and employment discrimination, but it also plays a role in the alarming rates of wrongful conviction. According to the Innocence Project, Black people are seven times more likely to be wrongfully convicted of murder than white people, and three times more likely to be wrongfully convicted of sexual assault.

Owusu-Bempah says that the overrepresentation of Black or impoverished defendants and of white, affluent jurors violates the underlying principle of a representative jury.

“If it’s a largely white, privileged class who serve on juries for Black defendants, that defendant is not being tried by a ‘jury of their peers’ to make a determination of guilt or innocence,” he says. “The ways they hear the case and think about the defendant are going to be influenced by their own world views and experiences, so they may be less able to understand the perspective of the defendant and more likely to assume the defendant is guilty of the crime that they are being accused of.”

And high-profile trials with Black defendants and all-white juries are incredibly common. The most well-known example is that of Curtis Flowers, a Black man in Mississippi who was tried six times in the shooting deaths of four people before being released last year after 23 years of incarceration. Four of the trials involved juries that were made up of 11 or 12 white people, and these found him guilty. The fourth and fifth trial, which had five and three Black jurors respectively, ended in a mistrial. The prosecutor, Doug Evans, had a history of using peremptory challenges to exclude Black people from juries.

There’s a reason for that. An extensive study of jury composition in Florida felony trials from 2000 to 2010 found that all-white juries convict Black defendants 16 per cent more often than white defendants (81 per cent rate of conviction vs. 66 per cent), but when the jury includes at least one Black member, it becomes a 71 per cent conviction rate for Black defendants vs. 73 per cent for white defendants. This means that the presence of even one or two Black people on a jury significantly closes the conviction gap that an all-white jury creates.

“There’s a number of dangers in an all-white jury,” Roach says. “One would be applying direct stereotypes that may result in assumptions of guilt when there’s supposed to be proof of guilt beyond a reasonable doubt. There’s also some evidence that when everyone is the same race, there’s less consciousness and less discussion about different interpretations. So it’s always a good idea to have diversity on the jury.”

Studies have found that compared to an all-white mock jury, racially diverse mock juries had wider-ranging discussions, a greater willingness to discuss race-related issues and fewer errors in deliberations, which could suggest fairer trial outcomes, especially for racialized defendants.

While even one Black juror has been shown to make a difference, Roach is cautiously optimistic about the pressure put on that person, especially if their verdict is the opposite of the others. “It’s not always going to be someone who can hold out.”

But Lange, who is Black, says her experience being a lawyer and former Crown prosecutor has shown her that having more Black jurors or lawyers can help renew faith in the system. “I can see the difference when defendants have a Black lawyer or just even one Black person on the jury,” she says. “And for the accused person in criminal court you can tell that [with this diversity] there is some hope that there will be justice.”

Ways to address implicit bias on the jury

Roach says the courts need to put aside their reluctance to inquire about a juror’s racial bias and put deeper consideration into challenge-for-cause questions. “We need to ask more open-ended questions that invite the jurors to speak for themselves when it comes to areas freighted with racial stereotypes,” he says. “I think it will depend on the facts of the case, but four or five targeted questions would, in my view, be a good reform.”

The Derek Chauvin trial, in which a white police officer was found guilty of the death of unarmed Black man George Floyd, gave potential jurors a 16-page questionnaire about their feelings on the police, Black Lives Matter and racial injustice.

“In Canada we’re probably never going to get close to a questionnaire like in the [Chauvin] case, because our judges have always been very concerned both about the efficiency of the process and the privacy of prospective jurors,” Roach says. “But I do think that when it comes to something as important as racism, we need to more carefully vet jurors who are going to be exercising power in all of our names.”

Myrna Lashley, a psychologist and assistant professor in the department of psychiatry at McGill University, says questions about how jurors understand systemic racism and whether they’ve done any anti-bias training could also be effective. “You can’t just ask, ‘Are you racist?’ Of course, most people are going to say no. And sometimes you don’t even know you are racist,” she says. Lashley adds that more positive Black history education could help change perspectives. “If you’ve been brought up to believe that Black Canadians have never contributed anything and you don’t see them as important to the functioning of society as it is today, well, when you go into that courtroom, you’re not seeing them as an equal,” she says.

One way to mitigate implicit bias and wrongful convictions is by using mixed juries, Roach suggests, which began in 13th-century London, with the inclusion of citizens and non-citizens. Similar concepts have been applied around the world, including mixed francophone and anglophone juries used in Manitoba and Quebec in the 1970s.

“We know that when there is a homogenous jury, assumptions may be made and not questioned because people will not have the lived experience of the racialized defendant,” he says. “With a mixed [race] jury, it forces both sides to deal with the other side’s perceptions and implicit bias,” Roach says, pointing out that the Chauvin trial, where eight jurors were white, four were Black and two were mixed race, is a good example.

Roach went before Parliament to present amendments to Bill C-75, but they were rejected. One of them recommended that volunteer jurors from underrepresented groups be added to the jury to mitigate discriminatory jury selection. “For disadvantaged groups, jury service can be a real hardship,” Roach says. “So if there are people from those communities who want to be jurors and can be impartial, I see no problems.”

The jurors in my case all understood implicit bias and respected my perspective. But not every jury will have the willingness or awareness to discuss it. This leaves the fate of Black defendants at risk and leaves Black jurors like me with an impossible task. But refusing to understand just how pervasive implicit bias is – in jury selection, in the vetting process, in deliberations and in society – is the reason the Ontario criminal justice system cannot in good faith offer defendants a jury of their peers, which is their right.

And that’s the greatest injustice of all.

⇒ Read more stories in our series Black in the Jury Box