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Judge, Jury, and…

The Jury is truly one of the most magnificent institutions of the criminal law procedure that an accused facing an indictable offence is entitled to.  The Jury is an embodiment of the value our society places on a true democracy. The right to be tried by a jury is enshrined in the Canadian Charter of Rights and Freedoms. We as Canadians hold it close to our hearts as a fundamental principle of justice in a free and democratic society.  To be judged by 12 of your peers, people randomly selected from the community. The Jurors show up on jury selection day and each accused is entitled to 12 preemptory challenges, that is without cause or reason.


There is no science to the Jury. The strategy behind running a Jury trial is a fine art that must be learned either directly through experience or indirectly through the experience of others.


There are pros and cons to the Jury.   The Jury is unpredictable. The Jury does not give reasons, which would of course leave us wondering, how did they come to their decision.


In my experience with the Jury, they take their oath and duty very seriously. They treat the matter as important and understand the significance of their function within the criminal process. I have great respect for these people who have taken time out of their lives to participate in the process of the justice system.


Our Canadian Charter of Rights and Freedoms has made the right to be tried by a Jury where a person has been charged with an indictable offence, constitutionally enshrined


  1. Any person charged with an offence has the right …

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;



The Judge decides issues of law. The Jury decides issues of fact. The Jury ultimately decides guilt based on the law that the Judge advised them of.


Not every case is a case that should be tried by Jury. This is a decision that needs to be made with knowledge of the facts, law, and a variety of other factors that experienced counsel are alive to.


There are also offences which an accused person may be charged with where it is mandatory they are tried by Jury unless the Prosecution consents to a trial by Judge alone.


Jury nullification is where a jury finds an accused person not guilty as charged, despite the fact they believe the accused is guilty of the committing the offence.   Jury nullification is done on the basis of how a jury feels rather than on the basis of the evidence before them.   Jury nullification is rare but occurs and the Supreme Court of Canada has addressed this issue in a few cases.

 R. v. Latimer was a euthanasia case and at paragraph 58 the Court stated:


58                              This Court has referred to the jury’s power to nullify as “the citizen’s ultimate protection against oppressive laws and the oppressive enforcement of the law” and it has characterized the jury nullification power as a “safety valve” for exceptional cases:  R. v. Morgentaler1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30 (“Morgentaler (1988)”), at pp. 78-79.  At the same time, however, Dickson C.J. warned that “recognizing this reality [that ajury may nullify] is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so” (emphasis in original).


The Morgentaler case referred to in the Latimer decision, referred to Henry Morgantaler whom was accused of performing abortions at a time when they were illegal.


Euthanasia and abortion are some of the types of emotionally charged issues in which jury nullification may occur.


Krieger was a case where the accused has a debilitating medical disorder and he was indicted for producing marijuana. The trial judge in that case had directed the Jury to return a verdict of guilty, essentially only performing the ceremonial function of announcing the verdict in court.


On Appeal the Supreme Court of Canada Court at paragraph 27 upheld the right of the Jury to refuse to apply the law:


It has since then been well established that under the system of justice we have inherited from England juries are not entitled as a matter of right to refuse to apply the law — but they do have the power to do so when their consciences permit of no other course.



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