Pubdate: Tue, 15 Jul 2014
Source: Simcoe Reformer, The (CN ON)
Copyright: 2014 Sun Media
Author: Alan Shanoff
Page: A4
Referenced: Melanie Janelle Murchison's master's thesis, Law, 
Morality and Social Discourse: Jury Nullification in a Canadian 
Bookmark: (Krieger, Grant)


Judges can't force jurors to find people guilty under unfair laws

My column last Sunday advocating the abolition of civil jury trials 
caused some confusion.

To be clear, I am not advocating the abolition of juries for criminal trials.

The right to a jury trial is enshrined in the Canadian Charter of 
Rights and Freedoms for anyone charged with an offence - other than 
under military law - for which there is a potential sentence of five 
years or more.

More noteworthy is the fact a criminal jury can serve as society's conscience.

That's because criminal juries have the power to refuse to convict 
obviously guilty people.

Juries can do this by refusing to apply the law.

This power represents "the citizen's ultimate protection against 
oppressive laws and the oppressive enforcement of the law", according 
to a former chief justice of the Supreme Court of Canada.

In essence, jury nullification allows jurors to judge our laws as 
well as the accused who appear before them.

Judges have no power to order a jury to convict.

That's been the case since at least 1670, when two Quakers were 
prosecuted in England for unlawful assembly after publicly preaching 
their views.

The judge, incensed at the jury's refusal to convict, fined the jurors.

Four of the jurors were imprisoned after failing to pay the fines.

Ultimately, the four were released with an appellate judge overruling 
the trial judge and affirming the jury's independence.

There is a long, proud tradition of jury nullification based on 
English Common Law, with jurors refusing to convict all manner of 
people charged under unjust laws or laws prescribing unjust penalties.

A jury declared Joseph Howe not guilty of seditious libel in an 1835 
pre-Confederation Canadian prosecution.

Howe, a newspaper publisher, had been charged with seditious libel 
after publishing a letter accusing politicians of corruption.

He was clearly guilty and the trial judge told the jury they should 
find Howe guilty, but the jury came back with a not guilty verdict in 
under 10 minutes.

More recently, in the 1970s and 1980s, juries used this power to 
acquit Henry Morgantaler of criminal abortion charges of which he was 
clearly guilty.

At that time, legal abortions could only be performed in a hospital 
and only after approval by the hospital's therapeutic abortion committee.

Morgentaler, however, performed abortions outside hospitals and 
without any committee approvals, yet four juries refused to convict him.

The last significant Canadian case of jury nullification arose in the 
1999 prosecution of Grant Wayne Krieger of Alberta who had been 
charged with unlawfully producing marijuana.

Krieger, suffering from multiple sclerosis, used pot for medicinal purposes.

He also admitted to supplying the drug to other ill people.

The trial judge directed the jury "to retire to the jury room ... and 
then to return to the court with a verdict of guilty."

When some jurors balked, the judge said "(i)t is apparent that some 
of the members either didn't understand my direction this morning, 
that is that they were to return a verdict of guilty ... or they 
refused to do so."

The jury then came back with a guilty verdict but Krieger appealed.

The Supreme Court of Canada quashed the conviction, ruling the trial 
judge erred in forcing the jury to convict.

The judge had wrongly taken away the right of jury nullification.

There's no way of knowing how frequently juries exercise their 
nullification rights as our laws prohibit jurors from disclosing 
information about their deliberations, save in very limited circumstances.

Instances of jury nullification, however, are likely rare in Canada 
as our law doesn't permit either defence lawyers or judges to advise 
jurors of their nullification rights.

Clearly juries have performed a valuable role in the development and 
enforcement of our criminal law.

It's a pity, however, that juries aren't told of their rich history 
and their absolute power.

For more information on jury nullification, readers are encouraged to 
read Melanie Janelle Murchison's master's thesis, Law, Morality and 
Social Discourse: Jury Nullification in a Canadian Context, which is 
available online.
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