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[The Williams decision which Sen. Oliver describes below is available on the Supreme Court Web Site. I will also be pleased to forward it upon request. mp] Debates of the Senate, June 8, 1998 SENATORS' STATEMENTS 1. Human Rights 1.1 Elimination of Racism-Recent Decision of Supreme Court of Canada Hon. Donald H. Oliver: Honourable senators, I rise to bring to your attention a recent landmark decision of the Supreme Court of Canada in Williams v. The Queen, decided last Friday. This decision takes a major step toward the elimination of racism and a move toward equality among all citizens of Canada. The Williams case unanimously decided that if a juror enters a courtroom with a racial preconception, the court has the power to remove him or her from the jury pool. This effectively clears the way to limiting the possibility of racial prejudice being a factor in determining guilt or innocence. The accused in this case, an aboriginal from British Columbia, pleaded not guilty to a robbery charge and elected to be tried by a judge and jury. The jury found the accused guilty of robbery. That decision was overturned on appeal because the Supreme Court decided there was ample evidence that tensions between aboriginals and non-aboriginals have increased in recent years as a result of developments in such areas as land claims and fishing rights. The court found that these tensions increased the potential of racist jurors siding with the Crown as the perceived representative of the majority interest. Consequently the Supreme Court decided Williams did not have a fair trial and ordered a new trial. Under the Criminal Code section 638.1(b), a prosecutor or an accused is entitled to any number of challenges on the ground that a juror is not indifferent between the Queen and the accused. The accused must prove that there is a realistic potential for partiality. Lack of indifference or partiality refers to the possibility that a juror's knowledge, biases or beliefs may affect the manner in which he or she may decide the case. The Supreme Court now considers racial views of jurors a permissible challenge for cause to remove him or her from the jury pool. Madam Justice Beverly McLachlin who wrote the unanimous decision of the Supreme Court stated: Racial views are buried deep in the human psyche; these preconceptions cannot be easily and effectively identified and set aside - even if a person wishes to do so. It is extremely rare for the Supreme Court to decide unanimously, as it did in this case. This decision is the most direct attack on racism in recent history and most emphatically manifests that Canada wants to rid itself of all types of racism. Racial prejudices are as invasive and exclusive as they are corrosive. Instructions from the judge or other safeguards will not eliminate biases that may be deeply ingrained in the juror's mind. The Supreme Court has ruled in the best interests of all Canadians. Madam Justice Beverly McLachlin stated: In a case where doubts are raised as to the juror's racial bias, the better policy is to err on the side of caution and permit those prejudices to be examined so that a fair and impartial trial can be had. It is better for the court to allow some unnecessary challenges than to risk prohibiting necessary challenges. Under section 11(d) of the Charter of Rights and Freedoms, the Charter guarantees that all persons charged have the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal. This right is meaningless without the means to enforce it. This Supreme Court decision now allows this Charter right to be enforced because the accused may now challenge jurors whose prejudices could indicate unsuspected and/or unconscious impartiality. (2010) As stated by Madam Justice McLachlin: The accused's statutory right to challenge potential jurors for cause based on partiality is the only direct method that the accused has to secure an impartial trial. The Hon. the Speaker: I regret to interrupt the honourable senator, but your three-minute period is over. Honourable senators, is leave granted to allow Senator Oliver to complete his statement? Hon. Senators: Agreed. Senator Oliver: The importance of the challenge process must not be underestimated. The Supreme Court decision now gives a lawyer the power to ask the court to remove a juror based on his or her racial preconceptions. Another positive step has been taken by the Supreme Court of Canada toward eradication of racism and the guarantee of equality which is enshrined in the Charter of Rights and Freedoms.
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