What's patronizing is the view – as suggested in a written decision handed down last week by an Ontario Superior Court judge – that anti-black racism is unfairly, or anachronistically, isolated from other pertinent factors in the screening of potential jurors.
Justice John Murray urged that the race-based challenge, which has been allowed in Ontario courts since the mid '90s, be framed in more generic terms, jurors asked instead whether they could judge a case "without regard to the race of the accused."
By way of substantiating his contention that race is but one of many issues that can shade a jurist's view of the accused, Murray referenced what he characterized as an outdated stereotype of prejudice as presented in Harper Lee's seminal novel from the '60s, To Kill A Mockingbird – still on the reading list at most high schools.
"We live in the world of Spike Lee – not that portrayed by Harper Lee," he wrote, which has a nice rhetorical ring to it while not necessarily standing up to intellectual scrutiny.
Murray's world perspective must be blinkered indeed if he truly believes that race fosters no more a distorting perspective than a whole slew of other identifying details, from religion to class to sexual orientation.
Race is glaringly visible. That's why non-whites are classified as visible minorities, whether they be black, brown, Asian or aboriginal. It is also a none-too-tacit subtext in aggressive urban policing that targets gangs and gun crimes, with blacks disproportionately represented on arrest sheets, in the defendant's box and within prison populations.
The Ontario Court of Appeal acknowledged that a specific, unsubtle problem existed with potentially biased jurors, requiring particular redress.
It has become fashionable, particularly among constituencies of the aggrieved, self-asserted, to cast a wider net, an equivalency of discrimination that has attempted to usurp the very real and very specific historical experience of blacks in North America and – notably – in our courts. This dilutes the exceptional, deep-rooted prejudice that is a core part of the black narrative.
The Ontario Court of Appeal acknowledged this was a particular issue with potentially biased jurors, requiring particular redress. This might feel wrong in the pit of Murray's stomach, as he put it, but that's not where the law and precedent is made, just as his ruling – refusing to permit such pre-emptively "black" challenges in his court – will no doubt be kicked up to appeal for review.
The intent of the original Court of Appeal judgment was to keep off juries those individuals incapable of fulfilling their duties impartially – with a black defendant in an interracial alleged crime. That is assuming a potential juror answers the question honestly. It further assumes – this, the clear implication – a white-on-black equation: a white, or non-black, juror being probed for bias.
In practice, however, there have been intriguing revelations.
When a black teen came to trial last year in the Yonge St. killing of Jane Creba, his legal team asked of prospective jurors: Would your ability to render a fair verdict be affected by the fact that the accused is a young black male and the deceased a young white female?
At least two of those who admitted to bred-in-the-bone bias were black. One, a middle-aged male, stated flatly: "I am prejudiced." Another, a woman with a heavy crucifix at her throat, answered: "Yes, sir."
It is a pity that these two individuals, summarily challenged for cause, were not questioned further. What will forever remain unclear is whether they were biased in favour of the defendant because he was black or against the victim because she was white. One is no more crippling a prejudice than the other.
If we want to know ourselves better as a society, that is a bias that needs to be explored, too.
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