Trial by Jury has long been considered one of the cornerstones of law, certainly British based law. Many people date juries back to the time of the Magna Carta, but in truth it’s origins go back even farther than that. The right to a trial by jury is entrenched in Section 11 of the Canadian Charter of Rights and Freedoms.
They are an impediment to justice.
Now, I’m not someone who advocates change for change sake, but neither am I a person who feels we should keep something around because that’s how it’s always been done, or even that it is one of the core bases of an institution. Clearly trial by juries a problematic in the pursuit of justice.
The recent conviction of Robert Picton for six counts of second degree murder is an example. I suppose a primer of Canadian law concerning homicide is in order. (and I realize that this is a simplified explanation of a complex law). Essentially any death of a person at the hand of another is homicide, but the law further divides homicide into culpable and non-culpable homicide. An example of a non-culpable homicide could be, say a police officer shooting someone in a justified police shooting. Non-culpable equals non-criminal homicide. Culpable homicide is further divided into three categories, manslaughter, 2nd degree murder and 1st degree murder. Here is where things get a little muddier and sometime the distinctions can be hard to grasp.
Manslaughter, essentially, is homicide in which there was no intent to kill. An example would be where someone got in a fight with someone, pushed them, they fell and hit their head and died. Intent, essentially what is inside someone’s head, can often be difficult to determine. Sometimes crimes of passion fall into this category.
That leaves murder, and the distinction between 2nd and 1st can be rather nebulous. There are certain statutory types of first degree murder, the murder of a police officer or prison guard engaged in the lawful execution of their duties is one example of those. Killing someone during the course of committing another indictable act is another (or was anyway I’m not sure if it still is). The logic being that when you’ve planned and committed an armed robbery (for example) you have to know that someone might die during it as a logical extension of the crime.
But apart from the statutory examples the difference between 2nd and 1st degree murder is essentially one of planning. If, for instance, you come home and find someone in bed with your husband and you grab a shotgun and kill them (intending them to die) that is probably 2nd degree murder. But if you run out of the room and a week later start putting poison in your husbands food, or hire a hitman to kill them that would be first degree murder. Planning can sometimes be shown by what you do afterwards to hide your crime.
It is beyond me how participating in the murder of six women (remember the court could not consider the other twenty murders he is accused of, nor the others he is suspected of and rightly so), at six different times, and then going to elaborate means of disposing of their bodies and the evidence, can possibly be thought of as anything other than first degree murder.
We ask an incredible amount of our citizen’s chosen for jury duty (a task that I’ll, as a retired police officer, will never be asked to do). Trials are getting increasingly complex, as technology and case law progress. Trials can last for months now, the Picton trial lasted for 10 months and would have lasted much longer had the judge not severed the other 20 murder charges. Jurors, ordinary people such as you, have had to put much of their lives on hold during the trial, and are supposed to avoid all conversation and media reports of the crime so as to not taint their judgment. It is a lot to ask.
We ask even more of jurors in small isolated community, and it is here that trial by jury fails almost completely to serve justice. Imagine living in a community of 400 people and being asked to sit in judgement of someone else from that community. Chances are you are somehow related to either the accused or a victim and you most certainly know everyone involved. In one community I was in not a single jury trial ended in conviction. Now I know the arguement would be made that that is because all the accused were innocent, but you think the police would have the wherewithal to gather evidence against at least one person who did what he was accused of.
Tellingly every single accused charged with an indictable sexual offense in that community chose trial by jury, where in the south it is rarely chosen (which in itself speaks volumes about the problems with jury trials. It is not chosen because it is an emotional issue and accused persons don’t want their trials prejudiced by a jury upset about the nature of the crime). Several women who I interviewed regarding sexual assaults on them said to me words to the effect of "What is the point of doing this Clare, he’s just going to be acquitted." I would then give them all the arguments at my disposal about why it was important that they go through the process, all the while knowing that they were right. They would testify in court and relate this horrible, embarrassing, personal incident to all and sundry, and they would be right in their prediction.
It isn’t the juror’s fault. They are put in a horrible spot (yes I know, one of our responsibilities as citizens of the country. But we don’t ask people in Toronto to carry the same burden, they don’t know the people involved intimately, and if they do they are excused) In sitting through these trials you can feel the tension they are under. And then comes the charge to jury and the explanation of reasonable doubt and the relief is palpable. You can see it in them and feel it in the room, as they take "reasonable doubt" and turn it into "any doubt whatsoever". They may believe the accused is guilty but there is a chance he’s not and that lets them go from having to judge someone they know.
I could go on about how complex charges to the jury are, and how fine a line judges charging the jury walk to try and avoid the inevitable appeal based on their charge. But what is the point? It is a flawed system, long removed from it’s purpose to remove undue influence from the state in criminal trials. One can hardly argue that that separation doesn’t already exist these days of a professional judiciary, at least here in Canada. But really, Trial by Jury is such a sacred cow that we’ll never get rid of it, and unfortunately justice, for the innocently charged and for the victims of crime, will continue to be poorly served by it.
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6 responses
I found it very wierd to hear about Pickton being found guilty on SIX counts of second degree- that’s impossible! How can you kill six times without having at least an inkling that things are headed that way again? The first time, maybe, but after that, geez.
I’m with you on getting rid of juries, you can always tell who’s guilty by them choosing a jury, nothing to lose and everything to gain. For me, if I was innocent and accused of a crime, I’d go with a judge, wouldn’t want to risk a jury.
Agree on everything you’ve written. Also think the jury system doesn’t really work well anymore. Something I think I’d rather see would be some system where there were 2 or 3 judges appointed to deliberate over a verdict in major cases.
Interesting and well thought out argument Clare. I wonder, if there isn’t a way to reform Juries to bring them into the 21st century rather than completely abolishing them? I haven’t ever really considered it but, off the top of my head, I think of the fellows wrongly convicted of crimes that get off after the fact. I think juries act as something of a brake on the power of the state and need to be kept. Having written that, however, I would definitely consider upgrading/revitalizing them; say requiring a citizen to posses a minimum education level, requiring the state to bear the burden of lost wages so that jury duty wouldn’t be an economic hardship, etc. I’m just tossing out softballs here to engage in dialogue on the topic. I don’t have any hard and fast answers; for me trail by jury was a sacred cow. They protect citizens from the power of the court, similar to the way the courts protect the citizens from the power of the state.
Hi Nancy. I agree that six murders at different times should fall squarely into first degree murder, although Pickton was only my catalyst for the post. Some people have argued that it was better than no conviction, but I think that that is also illustrative of the part of the problem. Either he is guilty (in which case convict him of the proper offence) or there is reasonable doubt or you find he is innocent (in which case acquit). That isn’t to say that there are not times to find a person guilty of a different charge, second degree murder is the appropriate conviction in some instances when people have been charged with first, I just don’t think that is the case in Picton’s case.
But we disagree on only guilty people choose juries. Many times the choice of jury or judge alone is made on the recommendation of a lawyer, who is trying best to determine the best venue for his client. I have sat in on a Jury trial in which, after hearing the evidence before the court I had little doubt that the accused was innocent, and I even heard testimony that the jury wasn’t allowed to hear.
Bev, I agree. I think that in some cases it might be a better option to have multiple judges. It works for the Supreme Court.
Gary, I’m not sure that that would work. I don’t believe for a moment that juries protect us from the state anymore. I think a professional judiciary does a very good job of that. You mention the wrongly convicted, but I can’t think of one of them that wasn’t convicted by a Jury (not to get off on another tangent but I think we would have less of them, and the wrongfully acquitted, if we didn’t have an adversarial justice system where people care too much about winning and not enough about justice)
I think that putting restrictions, such as a minimum education, would just exasperate another of the problems of a jury, the prejudices that they bring. Not to mention create even bigger problems in small isolated communities. Arctic Bay has between 2 and 4 graduates a year, and only a very recent history of education (post 1969). So imagine how much less of a pool you’d have to draw from in a community of 700, and how much the demographics of the jury would change. You’d end up with many more southerners such as teachers etc, and not a lot of change from the early days of the arctic where juries solely made up of whites would be judging largely Inuit accused.
With regards to compensation, how do you end up with fair compensation? Easy to do perhaps with a wage earner, but what of say, an artist? Or a soul proprietor of a small business? Or a stay at home parent? Or a student who misses the better part of a school year?
I think that trying to tweak the system is just perpetuating a flawed system that is no longer relevant in today’s world.
I’m not sure trial by judge is necessarily a better option. My main concern is that an appeals court might be less likely to overturn a faulty verdict decided by a fellow judge than one decided by a non-professional jury.
Hi John,
All of my experience is with the Canadian Justice system of course and I have no idea how well things operate south of the border.
My limited experience up here with appeals up here has shown the Court of Appeal to not hesitate to overturn a bad decision of a lower court on matters of law. I could be mistaken but I don’t think appeals can be made on the finding of Facts (which is what the Jury is responsible for in a Jury trial) only on matters of Law, (which is what the Judge is responsible for in Jury Trials) in which case it is still looking at the decisions of a fellow Judge not the Jury.
That is why the charge to the Jury is so important, as it frequently is the subject of the appeals on rules of Law. And it is why Judges try to tread so carefully in their charge to the Jury.