) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 5343

CITATION: R. v. Gayle and Gayle, 2013 ONSC 5343 COURT FILE NO.: 12-1703 DATE: 20130816 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – ELIZABETH GAYLE and FEDRICKGAYLE Applicants ) ) ) ) )))))))) C. Coughlin, for the Crown D. McLeod, for the Defendant Elizabeth Gayle S. Bernstein, for the Defendant Fedrick Gayle ) PRETRIAL RULING # 4: THE CHALLENGE FOR CAUSE QUESTION K. van Rensburg J. [1] This is my decision on the challenge for cause question released orally on May 8, 2013. The accused are jointly charged withfirst degree murder.

The defence seeks to challenge the jury for potential race-based bias, and the issue is the form and substance of thequestion to be put to the prospective jurors during the challenge for cause process. [2] Counsel for Elizabeth Gayle requests that wording of the question that was accepted by Durno J. in the case of R. v. Douse, (ON SC), [2009] O.J No. 2874 (S.C.J.). Counsel for Fedrick Gayle supports the application. Crown counsel asserts thatthere is no reason to depart from the standard Parks challenge, but suggests that it could be modified to the form used by Nordheimer J.in R. v.

Johnson, 2010 ONSC 5190 , [2010] O.J. No. 3970 (S.C.). [3] Both are formulations of the Parks question. The standard Parks question permits the prospective juror to answer in his or herown words – although the formulation of the question may appear to call for a “yes” or “no” answer, it is my practice in my instructionsrespecting the challenge for cause process, to inform jurors that it is not necessary to answer the challenge for cause question with simply“yes” or “no” and that they may answer in as much or as little detail as they see fit, provided that they answer honestly.

The Douseformulation invites the jurors to choose among four multiple choice responses. [4] I do not intend to set out the arguments of counsel in any detail except to note that Mr. McLeod asserts that the Douseformulation may be more effective in uncovering unconscious racism on the part of a prospective juror. Mr. Bernstein supports theapplication, asserting that the evidentiary foundation for the application is found in the expert evidence in the Douse case. [5] Crown counsel urged the court to follow the lead of cases such as Johnson and R. v. Ahmad, 2010 ONSC 256 , [2010]O.J.

No. 3341 (S.C.), where any presumed advantages of a multiple choice response were doubted, and the proposal to use the Douseformulation was rejected. Mr. Coughlin is also concerned that, should the question be put to the jurors in writing as proposed by thedefence, this may be more difficult for a juror to follow, and unnecessarily delay the jury selection process. [6] I am not persuaded that a departure from the usual Parks question, perhaps as modified in the Johnson case, if the defenceprefers, would be justified.

The challenge for cause process involves the prospective juror and the triers who determine, based on theresponse, whether the juror is acceptable or not acceptable. The focus is therefore on which formulation of the question is likely to assistthe prospective jurors in answering truthfully, and the triers in assessing the answer. A question that calls for a response in the juror’sown words in my view is preferable to one that asks them to choose among four stock answers. [7] The concern about the Parks formulation, expressed for example by Pardu J. in R. v. Valentine, [2009] O.J.

No. 5961 (S.C.), isthat it calls for a “yes” or “no” answer. Again, that is not my experience, and the risk that the question would be interpreted in that waycan be attenuated by the instructions that are given during the explanation of the challenge for cause process. [8] What is proposed by the defence, is a question with a four part multiple choice response to be given to the prospective jurors toread over in the witness box at the same time as they are read the question by defence counsel. In my view, proceeding in this way may

well hamper the immediacy and spontaneity of the process. The triers would have less opportunity to gauge the prospective juror’s reaction to the question and his or her response, if that person is looking down and reading along with the question. [ 9 ] Proceeding in this way would no doubt slow down the jury selection process (Mr. Bernstein estimated by up to a day). The delay would be justified if there were some corresponding benefit.

I am not persuaded that this is the case. [ 10 ] Accordingly, the application to challenge the prospective jurors for cause is allowed, however the formulation of the question will be the traditional Parks question, or the variation in the Johnson case, at the option of the defence. The question will not be provided in writing to the prospective jurors at the time they are asked the question in the witness box. At the option of defence counsel, each prospective juror will be given the question in writing to read over individually before he or she enters the court room during the jury selection process.

K. van Rensburg J. Released: August 16, 2013 CITATION : R. v. Gayle and Gayle, 2013 ONSC 5343 COURT FILE NO.: 12-1703 DATE: 20130816 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ELIZABETH GAYLE AND FEDRICK GAYLE PRETRIAL Ruling # 4: The Challenge for Cause Question K. van Rensburg J.

Released: August 16, 2013