R v Verinumbe, 2021 ABQB 726

Court of Queen’s Bench of Alberta Citation: R v Verinumbe, 2021 ABQB 726 Date: 20210910 Docket: 190743716Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Delahan Verinumbe Accused Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1) . Permission having been given to the jurors to separate, information regarding any portion of the trial at which the jury is not present shall not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file. It may be published after the jury retires to consider its verdict.

Editorial Notice: The restriction on publication ended 24 September 2021. _______________________________________________________ Endorsement (Challenge for Cause) of the Honourable Madam Justice L.M. Angotti

_______________________________________________________ [1] I issued an oral decision on September 7, 2021 with respect to the Accused’s Application for challenge for cause. I advisedthe parties that I would follow up with a written Endorsement reflecting that decision, in particular the instructions and questions thatwould be posed to the jurors on the challenge for cause on the basis of race. This is that Endorsement. [2] It is important to file an application for a challenge for cause in a timely manner, in accordance with Rule 15 of the Court ofQueen’s Bench of Alberta Criminal Procedure Rules, SI/2017-76. This allows the Court to

schedule the application in a timely mannerand

schedule the proper jury selection process. In this case, while the defence advised both the Court and the Crown of its intention toseek a challenge for cause, an application was not filed until September 3, 2021. However, the Court has been able to

schedule theapplication and the jury selection, so that the challenge for cause may proceed. I exercise my discretion to grant relief from the noticerequirement. [3] Canadian courts have recognized that there is systemic racism within the Canadian judicial system: R v Parks, (ON CA), 1993 CarswellOnt 119, R v Spence, 2005 SCC 71; R v Gladue, (SCC), [1999] 1 SCR 688; R v Ipeelee,2012 SCC 13; R v Chouhan, 2021 SCC 21. This requires a robust challenge for cause process, that must go beyond simply catching thegrossest forms of racial prejudice: Chouhan, para 66 and 121.

The Crown agreed that a challenge for cause was appropriate in this case.I exercise my discretion to grant the Accused’s Application for challenge for cause. [4] The parties did not agree on the appropriate questions to put to the potential jury members. The trial judge has a great deal ofdiscretion in setting the questions to be asked of the potential jury members: Chouhan, para 62.

In exercising that discretion, there mustbe a balancing of the Accused’s right to a fair trial by an impartial jury with the protection of the privacy interests of prospective jurors:Chouhan, para 66. [5] The defence proposed the following questions be asked: 1. Discrimination is not as bad as the media makes it out to be [with potential juror to express their level of agreement]. 2. Blacks and other minorities do not receive equal treatment as whites in the criminal justice system [with potential juror toexpress their level of agreement). 3.

Police in this country treat whites and blacks equally [with potential juror to express their level of agreement]. 4. The criminal justice system is biased against racial and ethnic minorities [with potential juror to express their level ofagreement]. 5. How favourable or unfavourable are you about Black Lives Matter [with potential juror to express their level ofagreement]? 6. Recent events concerning a certain cause Black Lives Matter were widespread, what did you feel? What was your reaction? 7. How does constant negative news influence your opinion on minorities? 8.

How culturally educated and welcoming are you towards black people? 9. Which race do you think is more susceptible to crime? And why this particular race? 10. Do you think that being a black male increases the likelihood of committing a sexual crime or any crime? Why or why not? 11. Do you think a black male would be more likely to commit a sexual assault on a white woman or would you be motivated tofind an accused person guilty because of his colour? Why or why not? 12. Do you think a black man would be more likely to lie under oath?

Why or why not? [6] Upon hearing the Crown’s submissions, the Defence agreed that questions 3, 4, 5, 6, and 7 should not be included. [7] With respect to the other questions, the Crown opposed wording questions to require something other than a yes or noresponse, due to the impact that would have on the length of jury selection. The Crown opposed question 8, as straying too far into ajuror’s privacy by asking about their personal background. Question 9 was seen as too general as it addressed biases towards other races,but would be an appropriate question if it was specific to black people only.

Otherwise, the Crown agreed with questions 1, 2, 10, 11(split into two questions), and 12, as the last three questions were modifications of questions the Crown had initially proposed to thedefence. [8] I deny the defence’s request to have questions that require something more than a yes or no response. Expediency in the juryselection process is a consideration, as a challenge for cause involving more than yes or no answers could result in a significantlengthening of the process.

However, a larger concern is the requirement in determining questions on a challenge for cause, to balancethe Accused’s right to a fair trial by an impartial jury, while also protecting the privacy interests of prospective jurors: Chouhan, para66. Asking specific details from an individual juror, such as “why or why not” would be an unnecessary intrusion into privacy. Still,there must be robust questions asked of the prospective jurors. [9] As Moldaver J stated in Chouhan, jury instructions can be used to direct jurors on their duty to be impartial.

Moreparticularly, at para 64, he noted that the trial judge should call to the attention of jurors the possibility of unconscious bias andimpartiality, prior to asking the juror’s questions on a challenge for cause. In R v Sassi, 2021 ABQB 431, there was a brief introduction.

In consideration of the Supreme Court’s direction, I would proceed with a somewhat more robust introduction. [ 10 ] I had concerns with question 2, as it was not directed at testing the bias or impartiality of an individual potential juror towards a black person and seeks an answer on an issue the Courts have already explicitly recognized.

As it is more appropriately included in the introduction to the challenge for cause questions set out below, it is not necessary to address it in a question to the potential juror. [ 11 ] I find the wording of question 8 to be unwieldy and required revision, although the ultimate issue of the attitude towards black people was relevant. Question 9 needs to be specific to black people. Question 11 needs to be divided into two questions.

As well, if the answer to any question is in the affirmative, then a question about the ability to set those biases aside in this case will be asked: Sassi , at para 16 . [ 12 ] Therefore, the challenge for cause introduction and questions shall be as follows: The judicial system recognizes that there is systemic racism within the justice system. Also, each juror brings a variety of beliefs, assumptions, and perceptions to the court room. Each juror may be aware of some their biases while also being unaware of others, including biases on the basis of race.

Jurors must identify and set aside prejudices or stereotypes when considering the evidence of any given witness and when reaching a verdict. They must approach the evidence with an open mind and apply the law as set out by the trial judge. In this case, the Accused, Mr. Delahan Verinumbe, is a black man. The allegation is sexual assault. The complainant is a white woman. It is important for jurors to be able to judge the evidence in this case without bias, prejudice or partiality. You will now be asked questions to explore your ability to be impartial. 1.

Do you agree or disagree that discrimination is not as bad as the media makes it out to be? 2. Based on your interaction with black people, or simply your upbringing, background or experiences, do you have a negative view, no matter how minor, of black people? 3. Do you think black people are more susceptible to commit crime? 4. Do you think that being a black male increases the likelihood of committing a sexual or violent crime? 5. Do you think a black male would be more likely to commit a sexual assault on a white woman? 6. Would you be more likely to find an accused person guilty because they are black? 7.

Do you think a black person would be more likely to lie under oath? [ 13 ] If an affirmative answer is received to any of the above questions: 1.

Despite your impressions of black people, would you be able to set aside your opinion, bias, or prejudice, and decide this case in a fair and impartial manner using only the evidence produced at trial and the law as described to you by the judge. [ 14 ] As the judge is the arbiter of the challenge for cause under Criminal Code s 640(1), the judge will be the one to put the challenge for cause questions to the prospective jury member: Chouhan , at para 67 . [ 15 ] The defence requested that the caution that precedes the challenge for cause questions be again read to the jury panel, once it is chosen.

The Crown took no position on that. Whether to do so is left to the discretion of the judge completing the jury selection, although I note that Chouhan supports doing so. Heard on the 7 th day of September, 2021. Dated at the City of Edmonton, Alberta this 10 th day of September, 2021. L.M. Angotti J.C.Q.B.A. Appearances: Meghan Rohatyn for the Crown

Rory Ziv of Ziv Law Group for the Accused