In the first part of this discussion about juries,I explained some basic points: why we have jury trials and how we decide who should be on a jury. Now, I will discuss some of the more controversial aspects to juries, and will focus on three areas:
- the costs of (including delays associated with) jury trials and government efforts to limit their use as a result;
- controversies surrounding the selection process; and
- the “secret” power of juries to make any decision they want.
Compared to “judge alone” trials, jury trials are expensive. They usually take longer to conclude and require more court resources. They require the 12 persons selected as jurors to be away from work, school, and household and childcare duties, which can mean both personal financial hardship and a cost to employers. Sometimes jurors receive a small daily stipend to help alleviate hardship. Once deliberations begin jurors cannot separate, which means that, in addition to meals, they must also be provided with overnight hotel accommodations until a verdict is rendered. All of that costs the state money.
This little-known fact about jury trials is highly controversial, to the extent that lawyers cannot even mention this power in court.There is usually more delay involved with jury proceedings than those with a judge sitting alone. Since the summer of 2016, when the Supreme Court of Canada set out new rules to protect the rights of accused persons to “trial within a reasonable time”, governments and the courts have become extremely sensitive to anything which might cause undue delay in the proceedings. The Supreme Court said superior court matters – which includes jury trials – must be finished within 30 months of the laying of charges. Meeting this deadline is a significant challenge in many parts of the country due to the caseloads of the courts and judges. Where a prosecution takes longer than 30 months, a judge may enter stay (end) the proceedings without a final decision about the guilt of the accused.
For all of these reasons, governments always seem to be seeking ways by which they can limit the rights of Canadians to have a trial by jury. At this time, Parliament is considering removing the choice of a jury trial in many cases where this option has been available. Because our Constitution guarantees the right to a jury trial where the possible punishment is five years imprisonment or longer, the proposed law will increase the number of offences where the Crown prosecutor has the option of treating the charge as a less serious offence punishable by a term of less than five years. These trials will take place in a Provincial or Territorial Court with a judge alone. The option of a jury trial will continue only where the Crown decides to treat the offence as more serious – meaning the accused may be imprisoned for a longer period.
By making such changes the government hopes to be able to both save money, and have proceedings concluded more quickly, thus avoiding prosecutions being ended without a verdict due to delay. The result, however, will be to remove from many accused persons the right to be judged by lay persons representing the community in the form of a jury.
The way we select jurors has recently been the subject of controversy arising from the verdict in the Colton Boushie trial in Saskatchewan. Gerald Stanley – a white farmer – was charged with murder after he shot Colton Boushie – a young First-Nations man. During jury selection it appeared the defence was seeking an all-white jury by using its peremptory challenges to exclude any potential jurors who appeared to be Aboriginal. At the end of the trial the jury found Stanley not guilty.
Without peremptory challenges, if the first 12 persons called are uniformly “white” or of any other background than Aboriginal or Inuit, my client will have to accept that her jury will be composed entirely of persons whose backgrounds and life experiences are probably nowhere similar to her own. In the aftermath, there have been loud complaints about the use of peremptory challenges. Many who feel Colton Boushie’s killer was wrongfully allowed to go free see the defence challenges as being one of the causes of a serious miscarriage of justice. At the time of writing this article, the furor has led the government to propose abolishing this form of challenge to potential jurors.
As with most areas of political and legal development, making significant change in the midst – or as a result – of emotion and outrage is a very risky endeavour. If there is to be a change to the procedures by way we choose juries, it should come about only as the result of careful study and unemotional debate – and hopefully not by assessing the situation on the basis of a single “worst case”, emotionally-charged scenario.
As a criminal defence lawyer I suggest Aboriginal accused persons will actually stand to suffer more, in the longer term, if peremptory challenges are abolished.
Because of the random way in which persons are summonsed for jury duty, jury pools tend to be overwhelmingly of the majority, “white”, segment of the population. In every case where I have acted as defence counsel for an accused person, with the possible exception of efforts to pick a jury in a northern community which is 70% Aboriginal or Inuit, we would consider it lucky (and rare) to have as many as 10 or 15 percent of the panel who appear to be of First-Nations or Inuit ancestry.
That means that when I am defending an Aboriginal or Inuit client, our only hope of selecting even one or two Aboriginal or Inuit jurors is using our peremptory challenges of non-Aboriginal persons in the chance that eventually someone who appears to be of a similar background or ancestry as the accused is chosen. Without peremptory challenges, if the first 12 persons called are uniformly “white” or of any other background than Aboriginal or Inuit, my client will have to accept that her jury will be composed entirely of persons whose backgrounds and life experiences are probably nowhere similar to her own.
As with most areas of political and legal development, making significant change in the midst – or as a result – of emotion and outrage is a very risky endeavour. One possible result of abolishing peremptory challenges may be an increase in the situations where we “challenge for cause”. While not every non-Aboriginal person is biased, we know that racial prejudices against Aboriginal persons frequently occur in Canadian society. One way to try to “weed out” persons who hold such views is the “challenge for cause” process (described in my earlier article). If the defence loses the peremptory challenge as a way to get at least one or two Aboriginal or Inuit (or other non-white) jurors, the need to screen persons from the majority group to eliminate those with racial prejudices and biases will increase. Perhaps in anticipation of this development, in the same Bill, the government proposes replacing the challenge for cause process involving jurors themselves with a hearing before the trial judge alone who will make the decision about impartiality.
The “Secret Power”
The final area of jury controversy is an almost-secret one: it is the power of juries to ignore the law in making the decision they consider the proper outcome in the case. Sometimes called “jury nullification”, it is largely the result of the secrecy of jury deliberations, and the fact that juries give only one or two word verdicts: guilty or not guilty. Juries are prohibited by law from revealing anything about their deliberations, which means they are not allowed to explain or give reasons for their decisions. Thus, although they swear to make their decisions based only upon the evidence and the law the judge has explained, in the secrecy of the jury room jurors are actually free to decide a case in any way, and for whatever reasons, they alone see fit.
This little-known fact about jury trials is highly controversial, to the extent that lawyers cannot even mention this power in court. For a lawyer to tell a jury that they should ignore the law and make their decision based upon what they think is right would likely lead the judge to declare a mistrial. The lawyer could be punished for contempt of court and could also be punished by their Law Society for unethical behaviour, including disbarment from the legal profession.
Compared to “judge alone” trials, jury trials are expensive. They usually take longer to conclude and require more court resources. Yet this power of juries, despite its potential for legal mischief, remains an important “safety valve” for representatives of society to express their views by refusing to endorse outdated or objectionable laws. One of the most famous examples of this came in the 1980s, in the trial of Dr. Henry Morgentaler and his colleagues under the controversial sections of the Criminal Code which restricted (and often denied) abortions. In his closing argument the defence lawyer invited the jury to “send a message to Parliament” about their views of the law by refusing to apply it and acquitting the accused. The jury may have accepted this invitation because they found Dr. Morgentaler and the others not guilty. The case was appealed to the Supreme Court of Canada which, while restoring the acquittals (the Court of Appeal had overturned them), strongly condemned counsel’s comments. The Chief Justice noted that this power of a jury is the “ultimate protection against oppressive laws and the oppressive enforcement of the law” but also pointed out the dangers and injustices which might occur if juries routinely ignored the law and made decisions based only upon their own opinions. In extreme cases, he noted, juries could potentially make their decisions based upon their affiliations with, or biases against, the racial and ethnic roots of one or more of the parties.
The Supreme Court said superior court matters – which includes jury trials – must be finished within 30 months of the laying of charges.Other cases recognizing the possibility of jury nullification include the Robert Latimer prosecution for killing his severely disabled daughter, and Grant Krieger – an Alberta man prosecuted for growing marijuana which he provided to persons who used it to alleviate their suffering from terrible medical conditions. In these and other cases, the courts have reiterated the statement in the Morgentaler case: that although jury nullification may sometimes protect individuals from government oppression, its inherent risks are possibly even more significant to a legal system based upon consistency of application and enforcement of its laws.
We continue to place our faith in juries to listen to the evidence and apply the law explained to them by judges despite challenges and failures. As long as we continue to see the benefit of having the common sense and community wisdom of jurors, we must try to ensure that this unique form of courtroom proceeding is maintained and improved. If we receive a jury summons, all of us have a duty to contribute. Without the continuing good faith efforts of ordinary members of our communities, the jury system will wither and die, replaced by decisions made exclusively by lawyers and judges. We will lose the benefits of having the input of community representatives in very important legal matters.