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Indexed as:
R. v. Glasgow

Between
Her Majesty the Queen, respondent, and
Morris Glasgow, appellant

[1996] O.J. No. 3026

93 O.A.C. 67

110 C.C.C. (3d) 57

32 W.C.B. (2d) 65

No. C18477

Ontario Court of Appeal

Toronto, Ontario

Doherty, Weiler and Austin JJ.A.

Heard: July 29, 1996.

Judgment: September 9, 1996.

(22 pp.)

[Ed. note: A Corrigendum was released by the Court September 13, 1996 and the correction has been made to the text.]

Criminal law -- Procedure -- Charge or directions to jury -- Directions regarding evidence of

witnesses -- Directions regarding prior inconsistent statements -- Jury -- Questioning of prospective
jurors -- Challenges for cause -- Racial prejudice.

Appeal from conviction and sentence. Glasgow was a young black male convicted of controlling
I.K., a teenaged white girl, so as to aid or compel her to engage in prostitution and of assaulting her
with a stun gun. Glasgow appealed the conviction and sentence of three years. In issue was whether
the trial judge erred in failing to give a Vetrovec warning, in limiting the prior inconsistent
statement instruction to statements made under oath involving inconsistencies on important matters
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and in refusing to allow challenge for cause based on potential racial bias of jurors.

HELD: Appeal allowed and a new trial ordered. The trial judge had discretion whether or not to
give a Vetrovec warning, and such instruction was not essential to a fair trial so as to remove the
discretion of the trial judge. There was also no error in the trial judge's instructions concerning prior
inconsistent statements made by two Crown witnesses. Glasgow was entitled to more than a
challenge for cause process which may have indirectly raised the possibility of anti-black bias. He
was entitled to a "Parks" challenge. The questions permitted did not afford an opportunity to
challenge for cause based on racism. He was therefore deprived of the full exercise of his statutory
right to challenge for cause which error required the quashing of the convictions.

Statutes, Regulations and Rules Cited:

Criminal Code, s. 638(1)(b).

Counsel:

Michelle Levy, for the appellant.

Scott C. Hutchinson, for the respondent.

Reasons for judgment were delivered by Doherty J.A., concurred in by Austin J.A. Separate
reasons for judgment were delivered by Weiler J.A.

DOHERTY J.A.:--
I.

1 The appellant was convicted by a jury of exercising control over I.K. in such a manner as to
show that he was aiding or compelling I.K. to engage in prostitution. He was also convicted of
assaulting I.K. with a stun gun. The jury acquitted the appellant on a third count which alleged that
he had attempted to obstruct justice. The appellant received a total sentence of 3 years, however,
that sentence was made concurrent to a much longer sentence imposed 10 days earlier on related
charges. The appellant appeals conviction and sentence.

II.

2 The appellant raises three grounds on the conviction appeal.

(i.) Did the trial judge err in failing to give a warning like that set out in R. v.
Vetrovec (1982), 67 C.C.C. (2d) 1 (S.C.C.) in respect of the two main
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Crown witnesses?
(ii.) Did the trial judge err in limiting the prior inconsistent statement
instruction to statements made under oath involving inconsistencies on
important matters?
(iii.) Did the trial judge err in refusing to allow a challenge for cause based on
potential racial prejudice?

III.

3 I will address the first and second grounds of appeal together. I.K. and T.E. were the main
Crown witnesses. Both were prostitutes and had given statements and prior testimony which were
inconsistent in some particulars with the testimony they gave at trial. The trial judge alerted the jury
to the importance of the assessment of the credibility of these two witnesses and spent some time
detailing the manner in which that assessment should be made. He was not asked to give, and did
not give a "Vetrovec" warning. It is well established that a trial judge has a discretion as to whether
to give a "Vetrovec" warning. An appellate court must show deference when reviewing the exercise
of that discretion. If a trial judge was not asked to give the warning, it is difficult to understand how
the trial judge can be said to have erred in the exercise of her or his discretion.

4 A full "Vetrovec" instruction, even as modified in R. v. Bevan (1993), 82 C.C.C. (3d) 310
(S.C.C.), can benefit both the Crown and the defence. Where counsel for the accused is satisfied
that issues pertaining to a witness's credibility have been fully and fairly put to the jury without
resort to a "Vetrovec" instruction, I would hold that the failure to give the "Vetrovec" warning
resulted in reversible error only if satisfied that the instruction was essential to a fair trial. In other
words, I would place the onus on the appellant to show that the circumstances at trial so compelled
a "Vetrovec" warning that the trial judge effectively had no discretion and was compelled to give
the "Vetrovec" warning. As I am not satisfied that this was such a case, I would not give effect to
this ground of appeal.

5 I also find no error in the trial judge's instructions concerning prior inconsistent statements
made by the two main Crown witnesses. He gave a proper instruction with respect to the relevance
of prior inconsistent statements to the assessment of the credibility of those witnesses. He then went
on to say:

... Before I leave this matter, just let me say that if you find that a witness's
material evidence - and I emphasize the word "material" as meaning important -
is in direct conflict with his or her evidence at the preliminary hearing, and that
that conflict or contradiction has not been explained to your satisfaction, then I
must caution you that it would be dangerous to accept that witness's evidence on
that point, or at all, without first scrutinizing it very carefully.
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6 I read this instruction as an addendum to the immediately preceding more general instruction
with respect to prior inconsistent statements. In this part of the instruction, the trial judge told the
jury that if a witness had lied under oath on an important matter and could not offer an adequate
explanation, it would be dangerous to accept the witness's testimony "on that point, or at all"
without first very carefully scrutinizing that evidence. In effect, the trial judge gave a "Vetrovec"
warning premised on a finding by the jury that a witness had lied under oath. This instruction
supplemented rather than derogated from the general instruction with respect to prior inconsistent
statements. I would reject this ground of appeal.

IV.

7 I turn now to the third ground of appeal. The appellant and his co-accused are young black
males. I.K. was a teenaged white girl. The charges involved allegations that the appellant and his
co-accused had forced the complainant and two other teenaged white girls to work as prostitutes.
The Crown contended that the appellant and co-accused were pimps who took all of the money
earned by the girls and kept them under their control through constant intimidation and actual acts
of violence.

8 Counsel for the appellant and his co-accused indicated that they proposed to challenge for
cause. They suggested seven questions. One of those questions referred to potential bias based on
racial prejudice. A written version of the proposed questions was filed at trial, however, that exhibit
has been lost. Counsel were unable to reproduce the exact wording of the question relating to racial
prejudice, but agree that the question was similar in substance to the question discussed in R. v.
Parks (1993), 84 C.C.C. (3d) 353 at 359 (Ont. C.A.), leave to appeal refused, [1994] 1 S.C.R. x. The
question in Parks as slightly modified by this court read:

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 and the
deceased is a white man?

9 Acting on counsel's agreement as to the substance of the question proposed here, I would frame
the question in these terms:

Would your ability to judge the evidence in the case without bias, prejudice or
partiality be affected by the fact that the persons charged are black and the
complainant is a teenaged white girl?

10 Mr. Hutchison for the Crown, properly concedes that given the judgment in Parks (released
after the trial judge's ruling), the appellant was entitled to challenge for cause based on potential
anti-black bias. Mr. Hutchison submits, however, that although the trial judge refused to permit the
specific question concerning racial bias, the questions he did allow considered along with his
direction to the panel, effectively served the purpose of the question allowed in Parks. He put it this
way in his factum:
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... The cumulative effect of this process was to identify the issue of race with the
trial of the appellant, to link it with possible bias or prejudice and more
particularly to link it to biases or prejudices about black men and pimping, and to
make it clear that such bias was inconsistent with the role of juror.

11 Crown counsel's position requires a more detailed analysis for the challenge for cause
proceedings at trial.

12 The charges which are the subject of this appeal arose out of an extensive police investigation.
The appellant and at least three other young black men were charged with many offences, most of
which related to their alleged activities as pimps. The police investigation and resulting charges
were the focal point of a lengthy article which appeared in the April 24, 1993 edition of the Globe
and Mail under the headline "Skirmishes in the Skin Trade". The article referred to a Canada wide
prostitution ring involving teenaged white girls who were controlled by black male pimps from a
certain part of Halifax. It noted that many arrests had been made and identified the appellant as one
of the persons arrested in Toronto on 22 prostitution related charges. The article went on to indicate
that 24 arrests had been made in Halifax and that 20 of the persons arrested were black. The column
continued:

That this has become a deeply charged racial issue was perhaps inevitable.

Black groups throughout the province [Nova Scotia] believe the police are
setting out to focus on black men ...

13 The article quoted investigators who denied any racial motivation behind the investigation.
The remainder of the article dealt with the causes of teenage prostitution, the abuse and harm done
to teenaged prostitutes by their pimps, the fear that teenaged prostitutes had of their pimps, and the
motivation of the pimps. The article also outlined various attempts to curb the incidence of teenage
prostitution.

14 The Crown elected to proceed to trial first before Hamilton J. and a jury on charges against the
appellant which involved two complainants other than I.K. These charges related to some of the
same events which formed the backdrop to the charges involving I.K. The trial before Hamilton J.
commenced in early May of 1993. During the trial, three articles appeared in Toronto daily
newspapers. All three identified the appellant and connected him with the prostitution related
charges. Two of the articles dealt in some detail with the evidence of the complainants. One carried
the headline "Hooker terrorized" (Toronto Sun, May 6, 1993), and the other "Teen hookers tell of
fear-filled days, nights" (Toronto Star, May 16, 1993). The May 16th article indicated that the
appellant had been convicted of the charges tried before Hamilton J. and that he faced further
charges. The column also stated that the appellant "... is considered by police to be a "kingpin" of
teenage prostitution with Halifax serving as a training ground in the sex trade for young girls." The
same article highlighted the difficulty the police had in convincing young prostitutes to testify
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against their pimps. It referred to two prostitutes who had been murdered while waiting to give
evidence. One of the deceased was identified, apparently incorrectly, as a person who was to testify
against the appellant's co-accused.

15 This trial commenced on May 26, 1993. Counsel for both the appellant and co-accused sought
to challenge for cause in three areas:

* bias based on pre-trial publicity;

* bias based on the nature of the offences alleged;
* bias based on racial prejudice.

16 In advancing the first ground, counsel relied primarily on the newspaper articles referred to
above. Counsel proposed to ask the same question that had been allowed by Justice Hamilton in the
earlier trial. It was:

Has anyone on the jury seen, heard or read anything to do with young prostitutes
being brought from outside Toronto for the purposes of prostitution?

17 If the prospective juror answered yes, he or she would then be asked whether that knowledge
would prevent the prospective juror from being impartial. The question as framed by counsel made
no reference to the race of either the accused or the complainant. Crown counsel did not oppose this
aspect of the proposed challenge.

18 As to the potential bias arising out of the nature of the offence, counsel suggested the
following question:

Do you have strong views on prostitution or prostitution related activities that

would make it difficult for you to be impartial?

19 Justice Hamilton had allowed this question on the challenge for cause at the first trial. Counsel
also sought to ask prospective jurors whether they had such strong views concerning activities
involving the exploitation of women and young persons that it would be difficult for them to be
impartial. In seeking to challenge for cause based on the nature of the offences, counsel relied on
the newspaper articles. Crown counsel opposed all questions based on the nature of the offences.

20 In submitting that he should be allowed to question potential jurors concerning racial

prejudice, counsel again relied on the newspaper articles. He submitted that the tenor of the articles
suggested the subjugation and degradation of young white girls at the hands of black pimps and
thereby, "raised the spectre of possible racism." At one point in his submissions, counsel did put his
case for questioning concerning racial bias on a somewhat broader basis. He said:

Finally, there's the aspect of black and white combination, which I think is one
we have to look at, and the issue of potential racism. That's a factual aspect of
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this case. I don't have to highlight the articles for you.

21 Counsel then referred to one authority suggesting challenges for cause based on racial
prejudice were appropriate even absent pre-trial publicity which raised racial issues.

22 Crown counsel submitted that questions aimed at determining the existence of a generic racial
bias were improper. In making these submissions, counsel did not have the benefit of Parks, supra.

23 The trial judge decided that three questions could be put to the jury during the challenge for
cause:

Question 1: Have you read any newspaper articles or viewed a television report
about a recent trial in Toronto involving black men accused of bringing young
white girls from Nova Scotia to Toronto for the purpose of forcing them to work
as prostitutes here?

Question 2: If you have, would that prevent you from giving Mr. Glasgow and
Mr. Horne a fair trial, having regard to the charges against them?

Question 3: Would any views you might have with respect to prostitution or
pimping prevent you from rendering an unbiased verdict at this trial?

24 The first question tracked that suggested by counsel except that it referred to "black men" and
"young white" girls. The third question was essentially the same question allowed by Justice
Hamilton at the earlier trial.

25 The challenge for cause proceeded within the limits allowed by the trial judge. Thirty-nine
prospective jurors were called forward before 12 were selected. Fifteen were aware of the pre-trial
publicity, and of those, five said they could not be impartial. Another seven potential jurors
indicated that their strong views concerning prostitution and related activities would prevent them
from being impartial. All twelve were found to be partial by the triers of the challenges.

V.

26 This ground of appeal is concerned only with the trial judge's refusal to allow a general
question concerning bias based on racial prejudice. I need not and do not comment on the other
aspects of his ruling. The question on appeal is a narrow one. Did the appellant, despite the refusal
to permit a specific question concerning racial prejudice, get an equivalent opportunity to challenge
based on racial prejudice as a result of the questions allowed and the instructions provided by the
trial judge?

27 As I read the trial judge's reasons, he did not disallow the question concerning racial prejudice
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because he was satisfied concerns about racial bias were adequately dealt with in the questions he
did allow. To the contrary, he appeared to reject the notion that a challenge for cause could be based
on a general claim of anti-black bias. The trial judge, not surprisingly given the arguments
addressed to him by counsel for the appellant, saw the question of racism as linked to the nature of
the pre-trial publicity and not as a separate basis for a challenge for cause. He said:

... I am not going to permit general questions with respect to racism. The allusion
in the Globe and Mail, in my view, is not sufficiently strong to support such a
general question.

28 The trial judge's decision to amend the pre-trial publicity question to include references to the
race of the pimps and their prostitutes provides further evidence that he connected the viability of
racial bias as a basis for a challenge for cause with pre-trial publicity raising the issue of race.

29 The trial judge's approach in rejecting the general question concerning anti-black bias cannot
survive the subsequent jurisprudence from this court: Parks, supra; R. v. Wilson (1995), 107 C.C.C.
(3d) 86 (Ont. C.A.) According to those cases, the threat to a fair trial posed by potential jurors who
have an anti-black bias is generic. There is no need to trace that danger to some specific source
particular to the accused or the case to be tried. In Parks at p. 371, the court stressed the difference
between anti-black bias and more fact-specific forms of bias:

... For some people, anti-black biases rest on unstated and unchallenged
assumptions learned over a lifetime. Those assumptions shape the daily
behaviour of individuals, often without any conscious reference to them. In my
opinion, attitudes which are engrained in an individual's subconscious and
reflected in both individual and institutional conduct within the community, will
prove more resistant to judicial cleansing than will opinions based on yesterday's
news and referable to a specific person or event. ...

30 The proposed question concerning racial bias should not have been rejected on the basis that
the pre-trial publicity was "not sufficiently strong to support" a general question concerning racial
bias. The justification for the question could be found in the race of the appellant and other features
of the case (e.g. the nature of the offence and the race of the victims), which together created a
realistic potential that one or more prospective jurors would, because of anti-black prejudice, not be
impartial as between the Crown and the appellant: R. v. Sherratt (1991), 63 C.C.C. (3d) 193 at
211-212 (S.C.C.).

31 My conclusion that the trial judge refused to permit the question concerning race based bias
because he regarded it as improper, and not because he considered it redundant does not necessarily
mean that Mr. Hutchison's argument must fail. It could be that despite the reason behind the refusal
to permit the question, that the questions allowed and the procedure followed adequately protected
the appellant against the risk that his jury would include one or more persons whose anti-black bias
rendered them partial. After careful consideration, I cannot find that the process permitted by the
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trial judge had that effect.

32 The first two questions permitted by the trial judge were directed to bias based on information
gleaned from pre-trial publicity. The first question sought to identify those who had been exposed to
the pre-trial publicity and the second question, the partiality of the group identified by the first
question. The reference to the colour in the first question served only to identify the media reports
referred to in question, but did not identify racial bias as a concern. In any event, even if the
references in the first question somehow raised the possibility of bias based on anti-black prejudice,
the second question which was aimed at determining partiality would be answered only by those
exposed to the pre-trial publicity. Twenty-four of the 39 jurors subjected to the challenge for cause
were unaware of any pre-trial publicity and consequently were never asked the second question. A
prospective juror who had not seen the pre-trial publicity could not possibly declare his or her
partiality in answer to the second question regardless of the racial views that the prospective juror
might hold.

33 The third question did not address racial prejudice at all, but was directed to prejudice based
on the nature of the offences alleged against the appellant. I am at a loss to understand how this
question could trigger a self-assessment by a prospective juror of his or her views towards blacks.
Nor do I interpret the question as having a racial context by reading it in conjunction with the
questions concerning pre-trial publicity. This question is about prejudice based on the nature of the
crime and not prejudice based on the colour of the accused.

34 I also find no assistance for the Crown's position on appeal in the trial judge's instructions to
the jury panel and his instructions to the first two triers of the challenge for cause. The instructions
to the panel did no more than explain the purpose behind a challenge for cause. In instructing the
first two triers of the challenge as to their function, the trial judge said:

The question then, gentlemen triers, that you have to determine, upon what you
have just heard, is whether this juror, this prospective juror, is unbiased or is
biased. In other words, is she going to enter upon this case with an open,
unprejudiced mind? [Emphasis added.]

35 Clearly, the trial judge told the triers that they were to base their conclusion on "what you
have just heard." The jurors had heard the answers to the three questions permitted by the trial judge
and nothing more. Those answers would not necessarily provide a basis upon which the triers could
come to any conclusion about a prospective juror's racial prejudices. The questions permitted by the
trial judge unduly restricted the scope of the challenge for cause inquiry by excluding an inquiry
into anti-black bias. The instructions to the triers did not restore that inquiry to its proper scope.

VI.

36 The appellant was entitled to more than a challenge for cause process which may have
indirectly raised the possibility of anti-black bias in the minds of some prospective jurors. The
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appellant was entitled to a "Parks" challenge. He did not get it. Nor did the questions permitted or
the instructions given by the trial judge afford an equivalent opportunity to challenge for cause
based on anti-black bias. The appellant was entitled to confront that potential bias head on in the
challenge for cause process. He was denied that opportunity.

37 The trial judge's ruling deprived the appellant of the full exercise of his statutory right to
challenge for cause. That error necessitates the quashing of the convictions even absent any
demonstration of actual prejudice: Parks, supra, at p. 380. I would allow the appeal, quash the
convictions and direct a new trial on the two counts on which the appellant was convicted at trial.

DOHERTY J.A.
AUSTIN J.A. -- I agree

38 WEILER J.A. (dissenting in the result):-- I have had the benefit of reading Doherty J.A.'s
reasons and I agree with his dismissal of the first two issues in this appeal.

39 The third issue concerns the questions asked pursuant to the challenge for cause under s. 638
(1)(b) of the Criminal Code on the basis that the prospective jurors were "not indifferent between
the Queen and the accused." Where an accused is not allowed to challenge jurors for cause when the
grounds are properly specified there is a denial of a fundamental right to a fair and proper trial: R. v.
Zundel (1987), 31 C.C.C. (3d) 97 at 134 (Ont. C.A.) leave to appeal to the S.C.C. refused (1987), 56
C.R. (3d) xxviii (S.C.C.). The exercise of the right is also essential to the appearance of fairness: R.
v. Parks (1994), 84 C.C.C. 353 at 380 (Ont. C.A.) leave to appeal to the S.C.C. refused (April 28,
1994), Doc. No. 23860 (S.C.C.). The test is the test for reasonable apprehension of bias expressed
by de Grandpre J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R.
369. As applied to this case, the test may be stated as: Would an informed person, viewing the
matter realistically and practically and having thought the matter through, have concluded that there
was a perception the decision-makers were not impartial? Impartiality refers to a state of mind or
attitude of the decision-maker in relation to the issues and the parties in a particular case. R. v.
Valente, [1985] 2 S.C.R. 673 at 684-85.

40 The trial judge did not allow a challenge for cause on the issue of racial bias per se. The issue
is not, however, whether a particular potential juror is racially biased. See Parks, supra, at p. 365
and also at p. 360 where Doherty J.A. noted the prescription against challenges based on race set
down in R. v. Hubbert (1975), 29 C.C.C. (2d) 279 at 289-90 (Ont. C.A.), aff'd. (1977), 33
C.C.C.(2d) 207n and reiterated in R. v. Zundel, supra, at p. 133. The issue is if a juror had an
anti-black bias, whether a reasonable person would conclude that the questions asked by the triers
enabled them to determine if that juror's prejudice would prevent him or her from being impartial in
arriving at his or her verdict.

41 Doherty J.A. has analyzed the individual questions asked by the triers of the prospective jurors
and has concluded, at p. 17 of his reasons, that "... the answers would not necessarily provide a basis
upon which the triers could come to any conclusion about a prospective juror's racial prejudices."
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Accordingly, he has concluded that the questions asked did not adequately protect the appellant
against the risk that his jury would include or appear to include one or more persons whose
anti-black bias rendered them partial. I respectfully disagree.

42 Challenge for cause is a process not a formula. The global effect of the trial judge's exercise of
discretion in allowing the questions to be put was to identify the issue of race and pre-trial publicity,
to ask whether these two factors would prevent the juror from giving the accused a fair trial, as well
as to ask whether the juror held any views about prostitution or pimping which would make it
difficult for him or her to be impartial in the trial of this accused. While the third question did not
refer to the accused being a black person, the jurors could see this for themselves. Seven persons
indicated that their views would prevent them from being impartial. The appellant has not
persuaded me that an informed and right-minded person would have perceived the decision makers
as being other than impartial. I would accordingly dismiss the appeal and affirm the conviction.

WEILER J.A.

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