Local Code: Subsidiarity and the Canadian Criminal Jury.

• Author: Plaxton, Michael

Introduction

1. The Principle of Subsidiarity

2. Subsidiarity, the Canadian Constitution, and the Criminal Law Power

3. Juries and Subsidiarity

4. The Jury as Law-Finder

5. The Not-Quite-Liberal Jury

   Conclusion

   Introduction

   The jury is a curiosity. Understood as an institutional mechanism for finding facts and reaching verdicts according to law, (1) it has long struck observers as almost laughably ill-suited for the task--or at least less well-suited than professional judges. (2) More than a hundred years ago, James Fitzjames Stephen remarked: "[Jury verdicts] are just in the very great majority of instances, but . . . the exceptions are more numerous than in the case of trials by judges without juries." (3) Though he conceded that there may be advantages in having cases decided by groups rather than individuals, (4) Stephen complained that lay jurors often paid inadequate attention to the evidence and frequently lacked the capacity to weigh it. (5) He concluded: "[A] judge without a jury would be a stronger tribunal than a judge and an average common jury." (6) More recently, in his historical account of the jury in nineteenth-century British North America, R Blake Brown observed that juries were often regarded as biased and uneducated. (7)

   The strangeness of lay juries does not end there. Their role is ostensibly to find the facts and not the law, (8) and the Supreme Court of Canada has held that defendants may not invite juries to engage in "nullification". (9) But trial judges may not direct a verdict of guilty even if the defendant does not dispute that the essential elements of the offences have been satisfied. (10) Furthermore, juries do not provide reasons, and jurors are prohibited from discussing their deliberations except in extraordinary circumstances. (11) There is, therefore, nothing to stop juries from occasionally using their power to nullify the law: to acquit defendants in cases where the elements of the criminal offence in issue have been satisfied and no defence is available. It was for this reason that Ben Berger argued that the institution of trial by jury is in grave tension with the rule of law. (12) It also underpins proposals to reform jury empanelling procedures--to make them more diverse, and therefore more effective, fact-finders. (13)

   Yet perhaps this emphasis on the merits of the jury as a fact-finder and verdict-generator is misplaced to some extent. The jury, after all, does not serve merely as a procedural safeguard for the benefit of individual defendants. It serves broader societal interests. Stephen argued that it "interests large numbers of people in the administration of justice and makes them responsible for it". (14) The Law Reform Commission of Canada agreed. (15) The Supreme Court of Canada has cited these remarks with approval, albeit without suggesting that the societal interests served by the jury were protected by the Canadian Charter of Rights and Freedoms (the Charter). (16) Justice L'Heureux-Dube, in R v Sherratt, claimed that the jury "acts as the conscience of the community", "provides a means whereby the public increases its knowledge of the criminal justice system", and "increases, through the involvement of the public, societal trust in the system as a whole." (17) And in R v Stillman, the Supreme Court of Canada observed: "[A]t the societal level, [trial by jury] provides a vehicle for public education about the criminal justice system and lends the weight of community standards to trial verdicts." (18)

   If we shift our focus away from the jury as an aspect of procedural fairness and instead dwell on its contribution to the broader political community, some aspects of the institution that we tend to regard as "bugs" may turn out to be features. For example, the locality of the jury--the fact that juries are by and large drawn from the local communities in which the alleged offence took place--may take on new significance. Understood as an institution designed to yield consistent verdicts, in which the Criminal Code of Canada is applied uniformly across the country, the locality of the jury would appear hopeless. If, however, we view the jury as an institution intended to strengthen bonds of citizenship by giving recognition to local relationships, customs, practices, and attachments, then the locality of the jury begins to appear not just desirable but necessary. This is indeed what I argue here: that the jury, because of its local character, lends a degree of legitimacy to the criminal justice system, ensuring that local values are not swept aside by a remote federal legislature. Thus, I suggest that the jury may properly be understood through the lens of the "principle of subsidiarity".

   The roadmap is as follows. In Part I, I set out the principle of subsidiarity and its various justifications. Part II sets out the significance of subsidiarity as an unwritten constitutional principle in Canada. The Supreme Court of Canada has, in a number of cases, recognized the principle as an important interpretive aid in making sense of Canadian federalism. At the same time, the fact that the Constitution Act, 1867 allocates the criminal law power to the federal Parliament, and not the provincial legislatures, might give us pause: why view the criminal jury as a manifestation of the principle of subsidiarity if the Constitution treats the criminal law as a federal concern? I will suggest that any inconsistency is more apparent than real. Though the Constitution Act, 1867 gives exclusive power to the federal Parliament to legislate on matters of substantive criminal law and criminal procedure, it has always been understood that there is a heavy emphasis on local decision-making in the application of that legislation.

   In Part III, I consider why we might want to give local communities some control over whether and how to apply criminal legislation. The jury provides a degree of assurance that local customs, values, and ways of life will be protected from remote, central legislatures. If we understand the criminal trial as a forum in which we are accountable to one another as citizens rather than subjects, it makes sense to give decision-making authority to local people applying local norms. Admittedly, reimagining the criminal jury in this way means attributing a kind of law-finding function to it. But this would not be anything new. As I explain in Part IV, there is a long, if unofficial, history of thinking about the criminal jury as trier of both fact and law. Finally, in Part V, I observe that liberal concerns about the criminal jury, if anything, give us more reason to view the institution through the lens of the principle of subsidiarity.

1. The Principle of Subsidiarity

   According to Peter Hogg, "[s]ubsidiarity is a principle of social organization that prescribes that decisions affecting individuals should be taken as close to the individuals affected as is reasonably possible." (19) The principle "regulates authority within a political order, directing that powers or tasks should rest with the lower-level sub-units of that order unless allocating them to a higher-level[ (20]) central unit would ensure higher comparative efficiency or effectiveness in achieving them". (21) It is distinct from federalism because it may require the allocation of decision-making to units that are more local or intimate than the provincial level. (22) In fact, it may require some decisions to be made by the household or other associations in civil society that are, strictly speaking, non-public. (23) At the same time, there is some truth in the proposition that "[s]ubsidiarity is, in a very real sense, the soul of federalism." (24)

   In The Principles of Constitutionalism, Nick Barber offers a number of possible justifications for the principle of subsidiarity. First, and least satisfactorily, the principle may be based on the desirability of diffusing power across political subunits, and thereby ensuring that the central government cannot dominate subunits. (25) This is coherent as far as it goes, but it is inadequate without more. After all, the principle of subsidiarity does not stand for the proposition that central governments or legislatures should never override the decisions of subunits. (26) Nor does it stand for the proposition that decision-making should only be allocated to the most local units. Yet the diffusion-of-power rationale, taken on its own, says nothing about when central governments should intervene at the local level, nor how powers should be allocated. (27)

   A second, more plausible rationale takes its cues from European Union law, treating the principle of subsidiarity as a basis for structuring the democratic process. (28) On this view, subsidiarity demands that democratic institutions be designed in such a way that people who are most affected by certain decisions will be appropriately represented, and that democratic units are appropriately scaled and underpinned by social solidarity, (29) such that effective deliberation is possible. There is a great deal of merit in this way of thinking about the principle of subsidiarity, and it will hopefully be apparent from what follows that concerns about democratic legitimacy arguably ground the institution of trial by jury (as well as Canadian federalism more generally). Nonetheless, a third rationale is worth considering--if only to underscore the importance of subsidiarity for ordinary citizens.

   A more--Barber might say "too" (30)--ambitious justification for the principle would emphasize the distinct contributions that central governments, local governments, and small-scale associations respectively make to human flourishing, each exercising authority in different ways and over different spheres of life. (31) According to this rationale, local relationships, communities, associations, and institutions have presumptive or intrinsic significance to individuals' understanding of themselves and their...