The prosecution and the defence are entitled to challenge potential jurors for cause on the ground of partiality. Candidates for jury duty are presumed to be indifferent or impartial and this presumption must be displaced before they can be challenged and questioned. Usually the party seeking the challenge calls evidence substantiating the basis of the concern. Alternatively, where the basis of the concern is widely known and accepted, the law of evidence may permit a judge to take judicial notice of it. The judge has a wide discretion in controlling the challenge process and should permit challenges if there is a realistic possibility that the   jury pool may contain people whose racial prejudice might incline them to favour the Crown rather than the accused in deciding the matters that fall to them in the course of the trial.

      Judicial directions to act impartially cannot always be assumed to be effective in countering racial prejudice. Where doubts are raised, the better policy is to err on the side of caution and permit prejudice to be examined. A motion to challenge for cause therefore need not be dismissed if there was "no concrete evidence" that any of the prospective jurors could not set aside their biases. The expectation that jurors usually behave in accordance with their oaths does not obviate the need to permit challenges for cause where it is established that the community suffers from widespread prejudice against people of the accused's race sufficient to create a realistic potential for partiality.

      The contention that there need be some evidence of bias of a particular nature and extent against aboriginal persons, or even further, that racial prejudice in the community must be linked to specific aspects of the trial, is unduly restrictive. Evidence of widespread racial prejudice may, depending on the nature of the evidence and the circumstances of the case, lead to the conclusion that there is a realistic potential for partiality. The potential for partiality is irrefutable where the prejudice can be linked to specific aspects of the trial, like a widespread belief that people of the accused's race are more likely to commit the crime charged.

      The trial judge has the discretion to determine whether widespread racial prejudice in the community, absent specific "links" to the trial, is sufficient to give an "air of reality" to the challenge in the particular circumstances of each case. It is impossible to provide an exhaustive catalogue of those circumstances. Where specific "links" to the trial exist, the trial judge must allow the challenge to proceed.

      Section 638(2) of the Criminal Code requires two inquiries and entails two different decisions. The first stage is the inquiry before the judge to determine whether challenges for cause should be permitted. The test at this stage is whether there is a realistic potential or possibility for partiality. If the judge permits challenges for cause, a second inquiry occurs on the challenge itself. The defence may question potential jurors as to whether they harbour prejudices against people of the accused's race, and if so, whether they are able to set those prejudices aside and act as impartial jurors. At this stage, the question to be determined by the triers is whether the candidate in question will be able to act impartially.

      The appropriate evidentiary standard on applications to challenge for cause based on racial prejudice is a "realistic potential for partiality" (the rule in R. v. Sherratt [[1991], 1 S.C.R. 509]). Absent evidence to the contrary, where widespread prejudice against people of the accused's race is demonstrated at a national or provincial level, it will often be reasonable to infer that such prejudice is replicated at the community level. Prejudice less than widespread might in some circumstances meet this test.

      The ever-developing awareness of the nature and extent of racism, and in particular anti-black racism in Metropolitan Toronto suggests that the insights provided by the American material, and the conclusions of the Canadian Commentators have at least some application to juries selected from among the residents of Metropolitan Toronto. I am satisfied that in at least some cases involving a black accused there is a realistic possibility that one or more jurors will discriminate against that accused because of his or her colour. In my view, a trial judge, in the proper exercise of his or her discretion, could permit counsel to put the question posed in this case, in any trial held in Metropolitan Toronto involving a black accused. I would go further and hold that it would be the better course to permit that question in all such cases where the accused requests the inquiry.

The indices of discrimination towards people of full and partial aboriginal ancestry in Canada and Saskatchewan.

The existence of overt and systemic discrimination towards people of full and partial aboriginal ancestry in Canada and Saskatchewan

The public perception and attitude in Saskatchewan communities towards people of full and partial   aboriginal ancestry.

Introduction

      The justice system has failed Manitoba's Aboriginal people on a massive scale. It has been insensitive and inaccessible, and has arrested and imprisoned Aboriginal people in grossly disproportionate numbers...

      As we noted earlier, Aboriginal people constitute approximately 12% of the Manitoba population. Yet,   Aboriginal people account for over one-half of the 1,600 people incarcerated on any given day of the year in Manitoba's correctional institutions.

      This is a shocking fact. Why, in a society where justice is supposed to be blind, are the inmates of our prisons selected so overwhelmingly from a single ethnic group? Two answers suggest themselves immediately: either   Aboriginal people commit a disproportionate number of crimes, or they are the victims of a discriminatory justice system. We believe that both answers are correct, but not in the simplistic sense that some people might interpret them. We do not believe, for instance, that there is anything about Aboriginal people or their culture that predisposes them to criminal behaviour. Instead, we believe that the causes of Aboriginal criminal behaviour are rooted in a long history of discrimination and social inequality that has impoverished Aboriginal people and consigned them to the margins of Manitoban society.

      Since racism exists throughout Manitoban and Canadian society, we have found that overt racism also exists in the administration of Manitoba's justice system. As in society generally, overt racism must be confronted and condemned when discovered. There is no room in the administration of justice for those who are racist, because the power that rests in the justice system is enormous.

... We begin, however, by pointing out a number of the disproportionate and adverse impacts that characterize the dealings of Aboriginal people in the justice system.

More than half of the inmates of Manitoba's jails are Aboriginal.

  Aboriginal accused are more likely to be denied bail.

  Aboriginal people spend more time in pre-trial detention than do non-Aboriginal people.

  Aboriginal accused are more likely to be charged with multiple offences than are non-Aboriginal accused.

Lawyers spend less time with their Aboriginal clients than with non-Aboriginal clients.

  Aboriginal offenders are more than twice as likely as non-Aboriginal people to be incarcerated.

      The over-representation of Aboriginal people occurs at virtually every step of the judicial process, from the charging of individuals to their sentencing.

       Aboriginal peoples have experienced the most entrenched racial discrimination of any group in Canada. Discrimination against Aboriginal people has been a central policy of Canadian governments since Confederation.

Conclusion - p. 109

      Historically, the justice system has discriminated against Aboriginal people by providing legal sanction for their oppression. This oppression of previous generations forced Aboriginal people into their current state of social and economic distress. Now, a seemingly neutral justice system discriminates against current generations of Aboriginal people by applying laws which have an adverse impact on people of lower socio-economic status. This is no less racial discrimination; it is merely "laundered" racial discrimination. It is untenable to say that discrimination which builds upon the effects of racial discrimination is not racial discrimination itself. Past injustices cannot be ignored or built upon.

In a brief to this Commission, Robert Mitchell, who as attorney general and minister of justice of Saskatchewan has directed his mind to these issues as much as any minister has, underscored a conclusion that the evidence clearly compels:

The current criminal justice system has profoundly failed Aboriginal people. It has done so in failing to respect cultural differences, failing to address overt and systemic biases against Aboriginal people, and in denying Aboriginal people an effective voice in the development and delivery of services. This must end.

The fact that in some provinces the coercive intrusion of criminal laws into the lives of Aboriginal people and   Aboriginal communities is increasing, not receding, is reflected in the most recent figures from Saskatchewan, John Hylton, a human justice and public policy adviser who has kept a close watch on the situation in Saskatchewan, has broken down total and Aboriginal admissions to provincial correctional centres for the years 1976-77 and compared them to the figures for 1992-93. The breakdown reveals several startling findings:

Between 1976-77 and 1992-93, the number of admissions to Saskatchewan correctional centres increased from 4,712 to 6,889, a 46 per cent increase, during a time when the provincial population remained virtually unchanged. The rate of increase was 40.7 per cent for male admissions and 111 per cent for female admissions.

During the same period, the number of Aboriginals admitted to Saskatchewan correctional centres increased from 3,082 to 4,757, an increase of 54 per cent. Male   Aboriginal admissions increased by 48 per cent, while female   Aboriginal admissions increased by 107 per cent.

In terms of overall rates of admission, Aboriginals were 65.4 per cent in 1976-77 and 69.1 per cent in 1992-93.

Increases in Aboriginal admissions accounted for 77 per cent of the increase in total admissions between 1976-77 and 1992-93.

The available evidence confirms that crime rates are higher in Aboriginal communities than non-Aboriginal communities. Based on 1985 figures, the task force reports of the Indian Policing Policy Review concluded that:

crime rates for on-reserve Indians are significantly higher than for off-reserve Indians and than the overall national crime rate; ...

the rate of on-reserve violent crimes per 1,000 is six times the national average, for property crimes the rate is two times the national average, and for other criminal code offences the rate is four times the national average.

In urban areas, where more than 40 per cent of Aboriginal people live, the available data suggest that Aboriginal people commit more crime and disorder offences than similar groups of non-Aboriginal people but proportionately fewer violent offences than Indians living on-reserve.

. . .

Major Findings and Conclusions

The Canadian criminal justice system has failed the   Aboriginal peoples of Canada-First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural-in all territorial and governmental jurisdictions. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice.

  Aboriginal people are over-represented in the criminal justice system, most dramatically and significantly in provincial and territorial prisons and federal penitentiaries.

Over-representation of Aboriginal people in the criminal justice system is a product of both high levels of crime among Aboriginal people and systemic discrimination.

High levels of Aboriginal crime, like other symptoms of social disorder such as suicide and substance abuse, are linked to the historical and contemporary experience of colonialism, which has systematically undermined the social, cultural and economic foundations of Aboriginal peoples, including their distinctive forms of justice.

Responding to and redressing the historical and contemporary roots of Aboriginal crime and social disorder require the healing of relationships, both internally among Aboriginal people and externally between Aboriginal and non-Aboriginal people.

Pursuant to our terms of reference, we did not consider individual grievances against police. However, as noted in our Interim Report, we heard a number of concerns with respect to police conduct in their dealings with   aboriginal people. Concerns revolved around matters such as excessive use of force, disrespect for the rights of accused persons, selective enforcement practices, multiple charging, witness intimidation, the mistreatment of accused persons while in police custody, police harassment, and disrespect for aboriginal custom and tradition.

Tragically, and not without reason, few aboriginal people have faith in existing complaints investigation processes. By and large, they consider the mechanisms currently in place to entail little more than "police investigating police" and, as such, fundamentally incapable of conducting fair and impartial investigations of their complaints.

. . .

Social and Economic Indicators

Any discussion of Indian and Metis people and the criminal justice system must consider the marginalized social position that aboriginal people occupy in Saskatchewan society. In the view of many observers, this marginalization is the legacy of assimilationist policies which, however well or badly intentioned, have resulted in relations of dependency, a loss of control over virtually all aspects of life, and widespread social disorganization. Put another way, such policies have contributed to pervasive poverty, unemployment and dependence on social assistance; low levels of formal education; increasing rates of family breakdown; high levels of substance abuse, violence, illness and disease; and last, but hardly least, high levels of conflict with the law.

. . .

two-thirds of Aboriginal homes on reserves lacked central heating;

over three-fifths lacked a bathroom;

the unemployment rate among Aboriginal peoples was four times that of non-Aboriginals;

three of four registered Aboriginals on the reserves received social assistance;

the suicide rate on the reserves was three times that for the provincial population as a whole; and

an estimated 30 to 40% of the Aboriginal population is involved in alcohol abuse, as compared to an estimated 6% of the general population in the province.

Technically speaking, racism is a combination of stereotyping, prejudice and discrimination that makes some races believe they are superior to all other races. It's usually, but not exclusively, practiced by groups with social, economic or political power.

Specifically, a stereotype is an image or generalization that defines and characterizes a group solely on its behaviour or on the actions of certain members of the group....

Prejudice is an attitude or thought that's a pre-judgment. Often negative, prejudice is based on stereotypes formed with incomplete or inaccurate information....

Discrimination is the action we take against others in reaction to our prejudice. Discrimination usually humiliates, belittles or puts someone at a disadvantage.

... Moreover, it is not correct to assume that membership in an aboriginal or minority group always implies a realistic potential for partiality. The relevant community for purposes of the rule is the community from which the jury pool is drawn. That community may or may not harbour prejudices against aboriginals. It likely would not, for example, in a community where aboriginals are a majority position. That said, absent evidence to the contrary, where widespread prejudice against people of the accused's race is demonstrated at a national or provincial level, it will often be reasonable to infer that such prejudice is replicated at the community level.

There is an ever growing body of studies and reports documenting the extent of racist beliefs in contemporary society.

Widespread anti-aboriginal racism is a grim reality in Canada and in Saskatchewan. It exists openly and blatantly in attitudes and actions of individuals. It exists privately in the fears, in the prejudices and stereotypes held by many people and it exists in our institutions. Furthermore, examination of racism as it impacts specifically on aboriginal people suggests they are prime victims of racial prejudice.

[paragraph] 32   Section 638(2) requires two inquiries and entails two different decisions with two different tests. The first stage is the inquiry before the judge to determine whether challenges for cause should be permitted. The test at this stage is whether there is a realistic potential or possibility for partiality. The question is whether there is reason to suppose that the   jury pool may contain people who are prejudiced and whose prejudice might not be capable of being set aside on directions from the judge. The operative verbs at the first stage are "may" and "might". Since this is a preliminary inquiry which may affect the accused's   Charter rights (see below), a reasonably generous approach is appropriate.

[paragraph] 33   If the judge permits challenges for cause, a second inquiry occurs on the challenge itself. The defence may question potential jurors as to whether they harbour prejudices against people of the accused's race, and if so, whether they are able to set those prejudices aside and act as impartial jurors. The question at this stage is whether the candidate in question will be able to act impartially. To demand, at the preliminary stage of determining whether a challenge for cause should be permitted, proof that the jurors in the jury pool will not be able to set aside any prejudices they may harbour and act impartially, is to ask the question more appropriate for the second stage.

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 an Indian?

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 an Indian and the complainant is white?