An Ethical Jury? Reflections on the Acquittal of Gerald Stanley for the Murder/Manslaughter of Colten Boushie

• Author: Alice Woolley
• Date: February 20, 2018

We understand the ethical duties of lawyers and judges in a criminal trial – what they ought to do, what their office requires of them. Sure, we argue about the details (e.g., me on prosecutors), but in general we know what defence lawyers, prosecutors and judges ought to do. Yet as shown by Gerald Stanley’s acquittal by a jury on charges of murder and manslaughter after his admitted killing of Colten Boushie, lawyers and judges are not the only people relevant to the functioning of a criminal trial. Juries also hear evidence and decide outcomes.

So what of jurors? Do they have ethical duties? What are they? Under what circumstances might we say that a juror acted “unethically”? And does our system do enough to ensure that jurors do what they ought?

Critics of Stanley’s acquittal make, I think, two central claims. First, they claim that the outcome in the case was simply not defensible given his admission that he killed Boushie, the weak evidence presented by the defence (National Post, February 14, 2018) and the relevant law, particularly in relation to manslaughter. Critics also note the all-white jury that tried Stanley, a jury resulting in part from defence counsel’s use of peremptory challenge to exclude indigenous jurors (National Post, February 9, 2018). This leads to the second claim – either implicit or explicit – that Stanley was acquitted for improper reasons, most obviously racial bias. Critics claim, in short, that Stanley’s acquittal was wrong in fact and law, and reached for improper reasons.

This arguably leads, though, to a third claim: that the Stanley jury acted wrongfully – that it did not act as a jury “ought to act”, that it was unethical. But assessing that claim requires answering the questions posed above – what duties did the Stanley jurors owe (if any), did they violate those duties and, if so, to what extent is there systemic responsibility for that failure?

Jurors obviously have ethical duties. They exercise a “civic duty” defined by law and discharge a public function within the legal system akin to that of lawyers and judges. We can reasonably claim that they have ethical obligations in relation to their job, and that they act wrongfully if they fail to satisfy those obligations.

But what are those obligations? What does it mean to be an “ethical juror”? This is a surprisingly hard question to answer. To a significant extent we understand the ethics of an actor in the legal system by virtue of understanding the role that actor plays in the legal system. Lawyers have a duty to clients bounded by legality because lawyers work at the intersection between the person and the system of laws. Lawyers help people access their rights and entitlements within the legal system. As a result, (1) helping clients (2) within the legal system constitutes the lawyer’s role as well as defining the lawyer’s two primary ethical obligations. Similarly, judges adjudicate claims, and their duties are those necessary for lawful and proper adjudication, most obviously independence, integrity, impartiality, diligence and respect for equality (Canadian Judicial Council’s Ethical Principles for Judges). What lawyers and judges ought to do follows in significant part from the role they play.

The problem with jurors, however, is that they play a strange role in the legal system. On the one hand, as set out by the judge in his charge in the Stanley trial, jurors are limited to assessing the evidence and applying the law as set out by the trial judge. A juror must not exercise independent judgment about what the law requires:

In this trial, I am the judge of the law. You are the judges of the facts. As a judge of the law, it is my duty to preside over this trial. I am the sole judge of the law and it is your duty to accept the law as I explain it to you. If I am wrong about the law my error can be corrected by the Court of Appeal because my instructions are recorded and will be available if there is an appeal. However, your deliberations are secret. If you wrongly apply the law there will be no record for the Court of Appeal to review. Therefore, it is important that you accept the law from me without question. You must not use your own ideas about what the law is or should be. It is your duty to decide whether the Crown has proved Gerald Stanley’s guilt beyond a reasonable doubt (Stanley trial, Charge to the Jury).

Courts “view jury nullification as a pernicious element in the criminal justice system… the jury’s official role in court proceedings is limited solely to judging the facts of the case and applying the law as given by the judge to those facts” (Travis Hreno, “Necessity and Jury Nullification” (2007) 20 CJLJ 351 at para. 2)

On the other hand, jurors have the power and even the responsibility to review and sometimes ignore what the law requires. They are the “conscience of the community” and the “bulwark against oppressive laws or their enforcement” (R v Sherratt [1991] 1 SCR 509). While courts do not acknowledge or encourage jury nullification, judges take “no steps…to prevent jurors from nullifying, jurors are not subject to legal sanction for nullifying, and verdicts that are the result of nullification are not subject to review” (Hreno, at para. 2)

In his 2013 Report on First Nations Representation on...