Juries as the Great Democratic Hope of the Criminal Trial.

AuthorNormey, Rob
PositionFeature: Juries in Canada

The greatest lawyer of the ancient world, Cicero, proclaimed that where there is life, there is hope. It seems to me that one can adapt that saying to the inspiration for retaining the right to a jury trial in the modern world, despite all the potential hazards that individual juries might present to the accused in a serious criminal trial. Before turning to potential pitfalls of a trial before a judge and jury, we should trace the undeniable benefits to Canada's criminal law system that accrue through the use of juries.

Canadian criminal law has long made use of jury trials, but it was the advent of our Charter of Rights and Freedoms in 1982 that enshrined a "right" to a jury trial. I had the good fortune to appear as counsel in one of the leading cases on the right, a case which heard two consolidated challenges to Securities Act prosecutions on the basis that the accused were unable to avail themselves of a jury trial. The matter went all the way to the Supreme Court of Canada. My work on it allowed me to develop a keen appreciation for the relative merits of the jury trial and its significance for our legal system.

The right to a jury in serious criminal and quasi-criminal matters is found in s. 11 (f) of the Charter of Rights, which states: "any person charged with an offence has the right:... [except before military tribunals] to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment." Our securities cases involved the need to determine just what the framers of the Charter meant when they employed those words dealing with punishment. But in order to answer the question, we had to delve into the purpose of jury trials, and why it was that our Constitution contains such a clause.

In the Anglo-Canadian and Anglo-American legal systems, the role of juries emerged in a gradual and fitful fashion. One might be scandalized to consider that in the early days of English law, trials were determined by physical combat. The result of the fight determined the legal result. An important development was the calling of inquests throughout England over a number of years, leading to the regular use of a "jury" to provide reports of local crimes and suspects. These jurors had personal knowledge of the wrongdoing that the Crown gathered information about. Gradually, by the 13th century, trial by jury became a regular practice for serious criminal trials.

It is fascinating to...

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