R v Mguni, 2023 ABKB 479

Court of King’s Bench of Alberta Citation: R v Mguni, 2023 ABKB 479 Date: 20230822 Docket: 211155536Q1 Registry: Wetaskiwin Between: His Majesty the King Crown - and - Mqondisi Mguni Accused _______________________________________________________ Ruling on Voir Dire for Challenge for Cause of Honourable Mr. Justice D.A. Labrenz _______________________________________________________ Introduction and Background [ 1 ] Mr.

Mguni [“the Applicant”] is an African male who stands charged with sexually assaulting the named complainant on November 23, 2021, at or near Beaumont, Alberta. [ 2 ] The Applicant applies under s. 638(1) of the Criminal Code for leave to challenge prospective jurors on the basis that they may be partial. The Applicant argues that some members of the summoned jury panel will be unwilling or unable to impartially consider

the evidence because of bias or prejudice emanating from his African appearance. [3] As is now commonplace when considering race-based challenge for causes, the Crown concedes that the Applicant has methis onus to demonstrate that there is a reasonable possibility that prospective jurors will be partial because of widespread bias orprejudice against African males in the community. The Crown does not suggest that judicial cleansing efforts alone would be sufficientto ameliorate the partiality concerns raised by such bias or prejudice.

As the Supreme Court of Canada recently stated in R v Chouhan,2021 SCC 26 at para 158, “anti-bias instructions will continue to be important, but they are not a panacea”. The Supreme Court withinthat paragraph also adopted McLachlin J’s caution from R v Williams, (SCC), [1998] 1 SCR 1128 at para 22 whereinshe stated, “[w]e should not assume that instructions from the judge or other safeguards will eliminate biases that may be deeplyingrained in the subconscious psyches of jurors”. [4] For the reasons I provided in R v Santiago, 2020 ABQB 446 at paras 5-9, I agree that it is necessary to grant Mr.

Mgunileave under s. 638(1)(

b) of the Criminal Code for a race-based challenge for cause. As I observed in Santiago, there is a plethora ofconsistent jurisprudence from the Supreme Court of Canada and the various appellate courts recognizing the prevalence of racially basedprejudice against visible minorities in a variety of criminal justice contexts.

Such race-based prejudices are of sufficient notoriety so as tobe beyond dispute and, as such, I take judicial notice of this social reality without the need for expert evidence. [5] As I also noted in Santiago, at para 9 (referring to R v Koh, (1998), (ON CA), 42 OR (3d) 668 (ONCA),a court’s resort to judicial notice is most often made necessary because of the insurmountable difficulties faced by visible minorities whoface the difficult task of marshalling evidence to meet the threshold test for a successful challenge for cause application.

The OntarioCourt of Appeal in Koh, at para 41, described this threshold test as demeaning as far as it effectively obligates a member of a visibleminority to seek judicial recognition of the fact that they are victims of racial prejudice. Issues [6] The Crown and the Applicant agree upon two multiple choice questions fashioned upon the questions that I approved inSantiago. The Applicant proposes a third question that the Crown does not agree with as follows: Some people do not approve of interracial sexual relationships.

Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the person chargedis black and the complainant white?

a) I would not be able to judge the case fairly.

b) I might be able to judge the case fairly.

c) I would be able to judge the case fairly.

d) I do not know if I would be able to judge the case fairly. [7] The Crown objects on the basis that question 3 is redundant and will only prolong or confuse the proceedings. The Crownagrees to the first two questions as proposed by Applicant. Those questions are reproduced as follows: Some people believe that members of certain racial or ethnic groups are more likely to commit sexual assault than other men. Do you believe that African men are more likely than other men to engage in sexually assaultive behaviour? Which of the followingmost accurately reflects what you believe:

a) I strongly agree.

b) I agree, but not strongly.

c) I disagree, but not strongly.

d) I strongly disagree.

e) I don’t know. Because of attitudes that some people have grown up with, or experiences they have had, or for any other reason, it may be more difficultfor [you] to judge the evidence in this case without bias, prejudice or partiality, knowing that the accused person is an African man. What answer most accurately reflects your ability to judge the evidence in this case without bias, prejudice or partiality, knowing that theaccused person is an African man?

a) I would not be able to judge the case fairly.

b) I might be able to judge the case fairly.

c) I would be able to judge the case fairly.

d) I do not know if I would be able to judge the case fairly.

Analysis [ 8 ] I agree with the Crown that the third question proposed by the Applicant should not be permitted. This is because the general bias concerns raised by the third question have been aptly canvassed by the other two questions, and the third question therefore admits of some redundancy. In addition, the interracial relationship concerns raised by the third question will not arise on the expected trial evidence. [ 9 ] I say this because both parties agree that the jury will not hear any evidence suggesting that the Applicant and the Complainant were, or ever had been, in a relationship.

Consequently, the proposed third question will needlessly prolong the jury selection process and likely cause confusion and embarrassment. [ 10 ] During this hearing, I proposed to the parties some modifications to the first two questions based upon the experience of the Court in relation to the multiple-choice questions that I had approved in Santiago .

While the questions approved in Santiago were designed to discover the subtler forms of prejudice arising from subconscious racial bias; judicial experience with those questions has been one of confusion for prospective jurors as they attempt in the moment to answer the multi-pronged multiple-choice questions. This has resulted in the attendant and needless prolongation of the jury selection process. [ 11 ] Instead of the Santiago multi-pronged multiple-choice questions, I approve four simpler questions along with a form of general anti-bias instruction given for the benefit of the entire array.

These four questions are tasked with identifying and rooting out the hidden forms of subconscious racism. I say this because the present questions avoid the yes/no two-pronged inquiry of the questions suggested by R v Parks,

(1993) OR (3d) 324 (ONCA), by permitting a prospective jury to select a third option. This third option allows a prospective juror to answer, “I don’t know”, which importantly gives licence to a prospective juror to express a degree of uncertainty. This third option is therefore more likely to promote an honest answer because it is unlikely that a prospective juror who harbours racially biased or prejudicial views will answer “yes” in response to the Parks questions because of the need for social conformity.

It is for this reason that the traditional Parks questions deter honesty because the “yes/no” format limits a prospective juror to a socially acceptable or unacceptable response. By providing prospective jurors with this third option, a prospective juror may now flag a potential bias concern in a manner that might be regarded as less socially unacceptable. [ 12 ] At the same time, the jury selection process does not as was stated in Chouhan at para 48 , demand that jurors be devoid of any opinions.

Instead, a prospective juror must be able to approach the deliberations with an open mind that is free from bias, prejudice, or sympathy. In this regard, the Supreme Court quoted from R v Find, 2001 SCC 32 at para 43 as follows: Impartiality does not require that the juror’s mind be a blank slate. Nor does it require jurors to jettison all opinions, beliefs, knowledge and other accumulations of life experience as they step into the jury box.

Jurors are human beings, whose life experiences inform their deliberations. [ 13 ] The revised questions, as opposed to the challenge questions permitted by Santiago , do not so easily jettison those jurors who have predetermined opinions or beliefs - but who can nonetheless approach the trial evidence with an open mind that is free from bias, prejudice, or sympathy.

In this regard, Santiago’s challenge questions likely overreached by excluding those prospective jurors who expressed some uncertainty regarding their biases, but who with introspection and instruction could have been trusted to approach the trial evidence impartially. [ 14 ] My comments here do not suggest that the selection judge determining the challenge should not be attuned to the dangers posed by racial bias or prejudice – either conscious or subconscious.

Instead, a general anti-bias instruction along with the challenge questions approved here will serve to promote the self-reflection and awareness that a prospective juror must possess to self-discover unconscious racial biases and to militate against the harm that those biases cause. [ 15 ] For present purposes, I propose that the following general anti-bias instruction be provided to the entire array: The most important qualification for every juror is that she or he must be impartial. This means that every juror must approach the trial with an open mind and without preconceived ideas.

We all have beliefs and assumptions that affect our perception of the world. These perceptions can create a bias for or against others based upon their personal characteristics, such as: o Gender, o Race, o Ethnicity, o Sexual orientation, or o Employment status These are just some of the perceptions that can create a bias for or against others. It is obviously not a closed list. We may be aware of some of these biases, but be quite unaware of others. A bias that we are aware of is often called a conscious bias and one that we are unaware of is sometimes called an unconscious bias.

Unconscious biases may be based on stereotypes or feelings that one has about a particular group; namely, traits that one associates with that group. To identify unconscious biases, you will need to carefully reflect upon your own personal beliefs, assumptions, and experiences. These unconscious biases can be overcome through self reflection and introspection. If you are selected as a juror, you will be asked to judge the evidence presented at trial fairly and without bias, prejudice, sympathy, or partiality. Impartiality requires active work.

It requires that you be aware of your own personal beliefs, assumptions, and experiences. It also requires that you be open to considering the views of others. If you are selected as a juror, it will be your duty to

identify and set aside any prejudices or stereotypes that might affect your decision in this case. For the purpose of this challenge for cause, I approve the following questions: The Accused in this case, Mr. Mguni is an African male. As a prospective juror, you bring with you experiences and beliefs, and opinions, some of which may be unconscious and based upon stereotypes or feelings about a particular group. The issue before us today is not whether these beliefs are correct or proper, but whether you can set them aside and judge the evidence at trial fairly without bias, prejudice, or impartiality.

I will now ask you some questions about this issue. Think carefully before answering. Questions: 1. Do you have any beliefs or preconceived notions about whether African men are less honest than other persons? You may answer: • Yes • No • I don’t know If the answer is “yes” or “I don’t know” Will you be able to set aside any such actual or potential beliefs or preconceived notions and decide the case fairly and without bias based solely on the evidence at trial and the Judge’s instructions as to the law? 2.

Do you have any beliefs or preconceived notions about whether African men are more likely to commit sexual assaults? • Yes • No • I don’t know If the answer is “yes” or “I don’t know” Will you be able to set aside any actual or potential beliefs or preconceived notions and decide the case fairly and without bias based solely on the evidence at trial and the Judge’s instructions as to the law? 3.

Do you have any beliefs or preconceived notions that would make it more difficult for you to judge the evidence in this case without bias, prejudice, or partiality, knowing that the accused person is an African man? • Yes • No • I don’t know If the answer is “yes” or “I don’t know” Will you be able to set aside any actual or potential beliefs or preconceived notions and decide the case fairly and without bias based solely on the evidence at trial and the Judge’s instructions as to the law? 4.

I have instructed you about unconscious bias, perceptions, attitudes or feelings you may not now be aware that you hold but may arise during the trial. This may include the unconscious biases I have mentioned: race, ethnicity, and gender. If chosen as a juror, do you promise to examine whether you are being influenced by unconscious bias and try to set aside such bias to the best of your ability? • Yes • No • I don’t know I am satisfied/not satisfied, based on the responses.

Please take your place in the jury box. [ 16 ] To summarize, the challenge for cause questions approved by Santiago have proven to be confusing to prospective jurors and to have needlessly resulted in longer jury selections. The questions approved here are simpler, less confusing, but are tasked to detect racially based bias. The general anti-bias instructions provide a necessary and important adjunct. Heard on the 25 th day of July, 2023.

Dated at the City of Wetaskiwin, Alberta this 22 nd day of August, 2023. D.A. Labrenz J.C.K.B.A Appearances: Christine Tays Alberta Crown Prosecution Service for the Crown Idowu Ohioze Andrew Law for the Accused