The Ontario Superior Court of Justice last month did not allow defence counsel to use a multiple-choice format to ask prospective jurors their views about race.
Sina Shabestary, a Toronto-based criminal defence lawyer and sole practitioner, was one of the lawyers who represented applicant Haiden Suarez-Noa in the Nov. 13 pretrial motion on challenge for cause, R. v. Suarez-Noa, 2018 ONSC 6749.
Shabestary and his senior counsel and sole practitioner, Charn Gill, proposed to ask prospective jurors if their ability to judge the evidence in the trial would be affected by the fact that the accused was of Latin American descent and the deceased was white. There were four multiple-choice answers provided: “I would not be able to judge the case fairly”, “I might be able to judge the case fairly”,” I would be able to judge the case fairly”, and “I do not know.”
Traditionally, jurors are questioned about race-based topics with a question known as the “Parks question” after a 1993 decision by Justice David Doherty, called R. v. Parks, 1993 CanLII 3383 (ON CA).
In R. v. Parks, 1993 CanLII 3383 (ON CA), one of the proposed questions was: “Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is a black Jamaican immigrant and the deceased is a white man?”
Shabestary says they selected the multiple-choice format instead of the status-quo Parks question because the usual format can sometimes lead to a “knee-jerk” “yes” or “no” reaction from potential jurors.
“What we do know is that our prejudice can be on a subconscious level,” Shabestary say. “What a multiple choice allows you to do is dissect what’s happening, and allows them time to think about it.”
But Justice Andrew Goodman didn’t allow the multiple-choice format, and said he could “invite the prospective panel members to respond as fully as necessary to the questions without limiting their responses” to the normal format of the Parks question.
“The applicant did not submit that there is reason to suppose that the Hamilton jury pool may contain people who are prejudiced,” Goodman wrote. “Moreover, I find that the multiple-choice proposal would unduly prolong the challenge process.”
On the evening of Nov. 22 the jury deliberations came to an end with a second-degree murder conviction for Suarez-Noa, a Cuban immigrant who was facing a jury for the third time. Deputy Crown Attorney Janet Booy, who worked on the motion, declined to comment, pending the sentencing which is still before the courts.
Suarez-Noa, who turned himself in to police, is accused of stabbing Tania Cowell, the mother of his child, to death in March 2013, according to a Nov. 21, 2018 decision in the case. During an argument, Cowell allegedly said "a denigrating taunt depicting Mr. Suarez-Noa, because he was an immigrant, as worthless and powerless to stop Ms. Cowell from doing whatever she wanted to do to him, including taking his son permanently out of his life,” wrote Doherty in a 2017 appeal decision, R. v. Suarez-Noa, 2017 ONCA 627 (CanLII).
Suarez-Noa’s case was declared a mistrial in 2015, after a prosecutor said the case was about “the difference between reasonable human beings and animals.”
Then, in November 2015, Suarez-Noa was acquitted on a charge of second-degree murder, and convicted of manslaughter, after he claimed he “did not have the intent required for murder, or alternatively that he acted under provocation,” according to the 2017 appeal. Doherty, joined on a panel of judges by Justices Sarah Pepall and Paul Rouleau, examined whether the insult about Suarez-Noa’s immigration status “was sufficient to deprive an ordinary person of the power of self-control.”
The Ontario Court of Appeal decided in 2017 to set aside the acquittal on the charge of second-degree murder and the conviction on the charge of manslaughter, and order a new trial after an appeal disputed one of the expert witnesses.
Shabestary says the precedent for the multiple-choice format comes from R. v. Douse, 2009 CanLII 34990 (ON SC), when a judge allowed a multiple-choice alternative to the Parks question, an approach that has been adopted unevenly in the courts.
The pretrial motion decision in R. v. Suarez-Noa shows how difficult it has been to move past the 25-year-old Parks question says Rakhi Ruparelia, associate professor at the University of Ottawa faculty of law.
“I really think we need appellate court intervention on the issue of what types of questions can and should be permitted in a challenge for cause based on racial prejudice,” says Ruparelia.