Lawyer said challenging potential jurors was ‘playing the race card,’ appeal court orders new trial

The Ontario Court of Appeal has ordered a new trial in a sexual assault case where a Black accused’s trial counsel refused to challenge potential jurors for racial bias because he did not want to accuse them of racism.

In R. v. Blake, 2023 ONCA 220, Neville Lee Blake appealed convictions for sexual assault causing bodily harm, unlawful confinement, choking and uttering a death threat, arguing ineffective assistance of counsel. Justices Janet Simmons, Gary Trotter, and Jill Copeland ordered a new trial, primarily due to the “extremely prejudicial bad character evidence” that defence counsel had elicited from the complainant about the appellant.

The appellant also argued that his lawyer had not adequately advised him on his right to challenge prospective jurors for racial bias. Justice Copeland, who wrote the reasons, found the lawyer’s conduct in this respect was substandard in three areas.

Trial counsel refused to challenge any jurors for cause, following R. v. Parks, because he did not want to “accuse them of racism.” He also took the position that a challenge for cause was “playing the race card” and “offensive.”

But a Parks challenge for cause is not accusing potential jurors of racism; it is meant to “foster candid reflection about their ability to consider the evidence,” said Justice Copeland, quoting R. v. Chouhan, 2021 SCC 26. According to the Canadian Judicial Council’s “Model Jury Instructions,” the challenge for cause is “a tool used to select an impartial jury.” He said that trial counsel’s “basic misunderstanding of criminal procedure in jury trials” diminished his ability to provide meaningful advice on the issue.

The appellant’s lawyer had also believed that a Parks challenge would offend potential jurors. But at the time of trial, s. 640(2) of the Criminal Code allowed accused and Crown to exclude jurors and potential jurors from the courtroom during a challenge for cause.

The third aspect of the lawyer’s conduct the court found fell below the standard of competent counsel concerned his failure to consider the anti-Black stereotypes prevalent in sexual assault cases where a Black man is accused of assaulting a White woman.

Having ordered a new trial due to another aspect of the trial lawyer’s conduct, Justice Copeland said it was unnecessary to determine whether the appellant would have challenged prospective jurors if adequately advised. But he said it was “difficult to see” how the appellant could have “exercised meaningful choice” in that regard and added that, given the racial dynamic in the case, the concerns raised in Parks were relevant in the circumstances.

The takeaway on the challenge-for-cause aspect of the case is the importance of cultural competency, says Theresa Donkor, co-counsel for the appellant and an associate at Rudnicki & Company. The court clearly stated that trial counsel’s level of cultural competency fell below the reasonable standard for a competent counsel, she says.

“Trial counsel had said that the challenge-for-cause process amounts to ‘playing a race card’ and is ‘offensive,’ and we've seen from the Court of Appeal and the Supreme Court that almost 30 years of jurisprudence say otherwise,” says Donkor. “To even hold that view is impermissible, and it effectively took away the client's right to this challenge-for-cause process.”

“The importance of the challenge-for-cause process, I think, can't be understated because, right now, it's really the only safeguard that the accused has to screen jurors for racial bias,” she says.

The court’s finding that a lawyer must not only be legally competent but culturally competent is “precedent-setting,” says Chris Rudnicki, who also represented the appellant on appeal.

Rudnicki and Donkor asked the court to consider making it a mandatory instruction to the accused that it is up to them to decide whether to challenge a prospective juror for cause.

“Just like how an accused person is the one who gets to decide whether to plead guilty, or whether to have a jury trial, or whether to testify – all of those are decisions that a lawyer cannot make on behalf of the accused,” says Rudnicki.

“We wanted this court to say that the challenge for cause was a key decision that rests with the accused and not with the lawyer so that in every case, where the accused is Black, the lawyer had to seek and obey the client’s instructions on whether to bring a challenge for cause,” he says. “The court didn't go that far, but they didn't have to, in order to allow the appeal. Maybe in a future case, it's open for courts to consider.”

The legal test for ineffective assistance of counsel requires demonstrating three factors. The litigant must establish, on a balance of probabilities, the facts underpinning their claim. They must show that trial counsel’s representation fell outside “the wide range of reasonable professional assistance.” And the litigant must demonstrate that the ineffective representation caused a miscarriage of justice, either through an unfair trial or an unreliable verdict.

The third prong of the test for ineffective assistance – “the prejudice component” – rested on the appellant’s trial counsel eliciting bad-character evidence from the complainant during cross-examination. The lawyer said in his affidavit that his intention was to challenge the complainant’s credibility, but his questioning produced testimony that five other women had said the appellant also attacked them and that they had described his car, his face, and a similar experience to that of the complainant.

Trial counsel said he intended to show that the complainant would repeat unverified claims without first-hand knowledge. While the trial judge immediately intervened and told the jury to disregard anything said about what happened to other women, trial counsel pressed on. He had the complainant read aloud evidence from the preliminary inquiry covering the same details, which she adopted as true, and had the complainant confirm that she was “the last one in the chronology of the girls that got hurt” and that “every single girl that claimed that he hurt her said the same thing.”

Justice Copeland noted that trial counsel’s rationale for why he encouraged the complainant to accuse the appellant of five other sexual assaults during the trial was not credible. The judge noted that counsel did not refer to the theory that the complainant was willing to repeat unverified information in his closing submissions.

In her final instructions, the trial judge told the jury to “disregard completely” the allegations involving other sexual assaults. On appeal, Crown counsel argued the trial judge’s interventions were sufficient to prevent the appellant from fulfilling the prejudice component.

Despite the judge’s instructions, Justice Copeland found the prejudicial effect of the elicited bad character evidence enough to require a new trial.

The appeal court found trial counsel had also fallen below the standard of reasonably incompetent counsel by failing to request disclosure of the complainant’s arrest warrant and criminal record. Before the complainant’s cross-examination, counsel told the appellant he did not want to bring up the arrest warrant “if it wasn’t sure.” He had not attempted to make sure of it by asking the Crown for pre-trial disclosure of whether there was an outstanding arrest warrant for the complainant at the time of the alleged offence.

After the complainant’s testimony, trial counsel asked for the disclosure, and it confirmed that the complainant had a warrant for failing to appear. The lawyer told the trial judge that the Crown was required to lead the evidence on the warrant because the appellant had informed the police of it, and this statement was part of the Crown’s case. Whether the Crown should have disclosed the warrant does not absolve competent counsel from requesting it “where it was clearly relevant,” said Justice Copeland. Trial counsel’s failure to request the disclosure meant the defence lost the opportunity to use it in cross-examination to challenge the credibility of the complainant’s evidence, and the evidence, when eventually disclosed, was “saddled with a caution” because the complainant had not been questioned about it, he said.

The Crown had also not provided the complainant’s criminal record. Justice Copeland said “there can be no debate” that the Crown was required to, but this failure did not excuse trial counsel’s failure to request its disclosure. This also fell below the standard of reasonably competent counsel.