Thursday, October 26, 2006

R. v. Krieger -- Thumbs Up

The right to trial by jury is one of those things that Anglos can be insufferable about. The English developed it, and it became a bulwark against tyranny, so we like to bring it up when we are mocked about our spotty complexions.

One implication of a jury trial is that ordinary citizens can occasionally refuse to convict because they disapprove of the law the accused is charged with violating. In the seventies, Henry Morgentaler took advantage of this possibility and was acquitted of violating the provisions restricting abortion then in the Criminal Code, even though he was obviously violating them. The Supreme Court of Canada reversed the acquittal, and found Morgentaler guilty. In effect, the 70s-era Nine found him guilty, even though no jury of his peers would.

Interestingly, Trudeau reacted by abolishing the power of appellate courts to overturn acquittals, as opposed to order new trials. The right to a jury trial for matters where there could be a sentence in excess of five years was put in the Charter. Canada during that era reaffirmed the old English principle of trial-by-jury.

Fast forward to our current controversies. Grant Krieger grew his own marijuana for allegedly medicinal purposes. He was charged, and elected a jury trial. His defence, like Morgentaler's, was the murky common law defence of necessity.

Rather outrageously, at the end of the evidence, the judge told the jury that they had no choice but to find the man guilty. As the Supreme Court quotes the trial judge referring to some jury members asking to be excused:

It 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 [Emphasis in Supreme Court of Canada decision]

This is clearly inappropriate for a judge in a jury trial. Many long-winded speeches of dead English jurists could be cited on the subject, but it is unnecessary, since the Crown conceded as much.

The Alberta Court of Appeal -- rather oddly, I think -- thought matters were improved by the fact that the jury deliberated quite a while, notwithstanding the judge's clear instruction that they find a verdict of guilty. The Supremes couldn't see what that makes things any better -- it might make things worse, since it suggests the jury had a lot of doubts about what the judge ordered them to do.

A good day for an ancient right.

Case Comment of R. v. Krieger, 2006 SCC 47

Here are Alex's thoughts on the case. He discusses the jury nullification angle, which I might do something on sometime.

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