Star Chamber, Westminster, London
The greatest lawyer of the ancient world, Cicero, proclaimed that where there is life, there is hope. It seems to me that one can adapt that saying to the inspiration for retaining the right to a jury trial in the modern world, despite all the potential hazards that individual juries might present to the accused in a serious criminal trial. Before turning to potential pitfalls of a trial before a judge and jury, we should trace the undeniable benefits to Canada’s criminal law system that accrue through the use of juries.
The right to a jury trial is ultimately an important hallmark of our democratic society.Canadian criminal law has long made use of jury trials, but it was the advent of our Charter of Rights and Freedoms in 1982 that enshrined a “right” to a jury trial. I had the good fortune to appear as counsel in one of the leading cases on the right, a case which heard two consolidated challenges to Securities Act prosecutions on the basis that the accused were unable to avail themselves of a jury trial. The matter went all the way to the Supreme Court of Canada. My work on it allowed me to develop a keen appreciation for the relative merits of the jury trial and its significance for our legal system.
The right to a jury in serious criminal and quasi-criminal matters is found in s. 11 (f) of the Charter of Rights, which states: “any person charged with an offence has the right: … [except before military tribunals] to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.” Our securities cases involved the need to determine just what the framers of the Charter meant when they employed those words dealing with punishment. But in order to answer the question, we had to delve into the purpose of jury trials, and why it was that our Constitution contains such a clause.
Returning to a consideration of the role of juries in serious criminal trials, it is more important than ever to affirm the value of the function that they perform.In the Anglo-Canadian and Anglo-American legal systems, the role of juries emerged in a gradual and fitful fashion. One might be scandalized to consider that in the early days of English law, trials were determined by physical combat. The result of the fight determined the legal result. An important development was the calling of inquests throughout England over a number of years, leading to the regular use of a “jury” to provide reports of local crimes and suspects. These jurors had personal knowledge of the wrongdoing that the Crown gathered information about. Gradually, by the 13th century, trial by jury became a regular practice for serious criminal trials.
It is fascinating to consider that in the early days of trial by jury, the scales were weighed heavily in favour of the prosecution. It was often convenient to use the same individuals who brought accusations against accused persons as the jurors who would decide guilt or innocence. Of course, the practice had to undergo a series of further modifications before it could become the type of jury system we know today. One important breakthrough worth noting is that which occurred as a result of the famous Bushell’s Case of 1670. This landmark decision ended the practice of punishing jurors who rendered the “wrong verdict”, that is, they acquitted the accused in political trials, particularly those conducted by the notorious Star Chamber.
That decision was one of several innovations and recognitions of the need for fairness which led to the sovereign role now laid out for juries. They and no one else – not legal specialists, not judges who may have become jaded or prejudiced as a result of their role in conducting cases over many years, are the ultimate arbiters of the fate of the accused. They are a body of lay people, traditionally 12 in number (still the number in Canada), chosen at random from a wide cross-section of the general public. The jury is the trier of fact in the criminal trial. But it decides more than that – it makes the crucial determination on the guilt or innocence of the accused. Traditionally, the verdict must be a unanimous one and involves a clear democratic participation by citizens in a system that might otherwise be prone to the dangers of professionalized “production-line” and obsessively rule-oriented justice. The idealists and optimists who favour jury trials value this ability of jurors to act as the “conscience of the community”, bringing a fresh and hopefully common sense quality to the decision-making process. The potential is certainly there for jurors to act as better fact-finders than judges, and to reach decisions on a more equitable basis, while receiving the guidance of the trial judge’s directions on the law.
One might be scandalized to consider that in the early days of English law, trials were determined by physical combat. The result of the fight determined the legal result. The Law Reform Commission of Canada in its outstanding 1980 Report on Juries, emphasizes that the jury tackles each case afresh, thereby avoiding the biases and predispositions which judges must surely acquire after hearing hundreds of similar cases, and that they are removed from the court when applications for the exclusion of evidence are made, returning to discharge their duty untainted by evidence that has been excluded. It concludes that juries serve to disperse and decentralize authority.
In my arguments before various courts on the meaning of s. 11(f) of the Charter, I also emphasized the conclusions of the Law Reform Commission that, because the jury involves the public in the central task of the criminal justice system, it provides a means whereby the public can learn about, and critically examine the system. Jurors are well placed to exemplify community standards when engaging in fact finding and deliberations to reach a verdict. The act of serving on a jury is indeed likely to be one of the most important democratic services one will perform in our society. Finally, the literature reveals the indisputable fact that in times of stress and possible pressure on the judiciary, the jury can act as a bulwark in the protection of civil liberties and can reach “just” and “fair-minded” decisions by avoiding undue deference to unfair laws or the unfair application of a law in unique circumstances.
The matter went all the way to the Supreme Court of Canada. My work on it allowed me to develop a keen appreciation for the relative merits of the jury trial and its significance for our legal system. This analysis leads me to believe that the right to a jury is a vital aspect of criminal trials where the liberty of the accused is at stake in a significant fashion. By adopting a “purposive” approach to the meaning of the words found in s. 11(f) of the Charter, the framers of this right intended that the right to a jury should be exercised by those who face imprisonment for a maximum period of five years or more, as well as those who face other forms of physical punishment. These might include corporal punishment, banishment from the community, forced labour, or revocation of citizenship in certain circumstances where deportation to a place of danger might result.
In the now leading case on the extent of the right under this section of the Charter – R v Peers, a 2015 decision of the Alberta Court of Appeal, these arguments were largely accepted by the majority of the Court. It rejected the arguments of my learned friends that the phrase “a more severe punishment “ should not include fines, even large fines totalling millions of dollars. Such fines can be meted out in the highly regulated securities industry to traders who might commit acts of fraud or deceit. The Supreme Court of Canada heard argument on this vital issue and rejected the arguments advanced on behalf of the accused in the securities prosecution. In 2017, the Court affirmed the result and the reasoning of the Court of Appeal.
The act of serving on a jury is indeed likely to be one of the most important democratic services one will perform in our society.Returning to a consideration of the role of juries in serious criminal trials, it is more important than ever to affirm the value of the function that they perform. Studies show that most jurors do a reasonably good job of adhering to the legal expectations that are imposed on them. Yet, at the same time, they do not have to follow court directions when they perceive these to be unfair or lacking in a sense of reality. In short, they inject into the trial process the ability to reach a decision on the basis of the spirit rather than the letter of the law.
One way of assessing the value of providing for a more flexible and non-technical means of deciding guilt or innocence is to read cases such as the 2004 United States Supreme Court judgment of Blakely v. Washington. This ruling emphasized that it was indeed preferable to allow juries more discretionary power when various harsher sentences might potentially be imposed. I suggest these sentences may well have been established on the basis of an unyielding “law and order” agenda. In any event, the right to a jury under the U. S. Constitution has been interpreted to mean that mandatory sentence practices do not override the role of the jury.
The right to a jury trial is ultimately an important hallmark of our democratic society. It is vital at the same time to remember that the role of jurors is one that comes with both rights and responsibilities. In high profile Canadian cases, we sometimes perceive decisions that could be said to be motivated by prejudice, including racial and sexual prejudice. Where this might possibly be the case, the dramatic denouement of the trial may result in an urgent call to strive to better educate citizens and foster policies designed to affirm equality and a robust commitment to substantive justice. The trial of Gerald Stanley following the shooting of 22 year old Colten Boushie, a Cree member of the Red Pheasant First Nation, is a recent controversial example of such a case.
About Rob Normey
