"REVIEWING OUR PEERS": EVALUATING THE LEGITIMACY OF THE CANADIAN JURY VERDICT IN CRIMINAL TRIALS.

• Author: Khakhar, Nik

INTRODUCTION

In the majority decision of R v Sherratt, the Honourable Justice L'Heureux-Dube emphasized the significance of one of the most fundamental protections afforded to an accused in a criminal trial:

"The jury, through its collective decision making, is an excellent fact finder; due to its representative character, it acts as the conscience of the community... the final bulwark against oppressive laws or their enforcement; it provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as a whole."(1) L'Heureux-Dube J's impassioned advocacy of the jury speaks to its enriching functions in the living tree of our jurisprudence. By bridging the 'human' and 'legal' elements together in the deliberation of the verdict, the jury ensures that the application of law accords with changing social realities. Additionally, L'Heureux-Dube J points to the crucial function of jurors as fact-finders in the criminal trial, based on their ability to engage in 'common-sense reasoning' as peers to the accused. These values have contributed to the jury panel being viewed as an essential feature of the common law, and its entrenchment in Commonwealth constitutions around the world.

Despite these benefits, the effectiveness of this fact-finding institution has fallen under suspicion given the ever-increasing complexity of contemporary criminal trials. In attempting to maintain the lay composition of the jury, numerous restrictions and constraints continue to limit the process of jury selection to the disadvantage of the accused. Of particular concern in Canada is the exclusion of legal professionals and students-at-law from jury participation. The result is a jury that is often unqualified to engage with complex legal questions. This poses significant risks to the fairness of an accused's trial.

Wrongful convictions research related to the unreliability of certain forms of evidence has revealed that these risks are far from insignificant.(2) In the absence of legal training, jurors are more likely to engage in inaccurate interpretations of evidence--namely, glossing over facts that raise reasonable doubt of the accused's guilt, and overemphasizing evidence that is unreliable. What is even more troubling is that common law rules of jury secrecy inhibit these risks from being addressed, since they render the contents of jury deliberations inadmissible, even when there are compelling reasons to question the legitimacy of a verdict.

In this article, I argue that these features result in a jury that lacks both legal competency as well as societal accountability, necessitating critical reforms.(3) As per section 11(f) of the Charter of Rights and Freedoms, all accused persons have a right to be tried by judge and jury in the adjudication of offences that result in a prison term of five or more years.(4) These cases tend to involve contentious evidence and immeasurable stakes for the accused. It is therefore necessary to critically evaluate the jury's effectiveness and legitimacy to ensure that the accused's access to justice remains protected in these high-stakes situations.

In Part I, I introduce my argument by contextualizing the lay jury with a special attention to its historical, legal, and theoretical roots. I then examine how jury exclusion statutes work to disqualify those with a legal background from jury participation in order to sustain the lay composition of the jury.

Parts II and III cover the article's two main arguments. In Part II, I examine the risks surrounding the reliability of lay jury verdicts, with a specific attention to wrongful convictions research that highlights the interactions between jurors and unreliable evidence.(5) I argue that the lack of training for jurors renders them more susceptible to misinterpreting such evidence, leading to a heightened risk of wrongful convictions. In Part III, I explain how the common law rules of jury secrecy--illustrated through the Supreme Court of Canada decision R v Pan; R v Sawyer--reduce the scope of accountability even further by precluding both the defendant and the courts from mitigating the risks of error.(6) Finally, Part IV proposes and evaluates three avenues for jury reform that address the above concerns: the right to a judge-alone trial, pre-trial jury instructions, and the disclosure of verdict reasons.

I CONTEXTUALIZING OUR PEERS

1. THE ORIGINS

   The criminal jury originated at the genesis of the common law in the years following the 1215 Magna Carta.(7) During this time, Pope Innocent III declared in the Fourth Lateran Council a blanket prohibition on earlier methods of proof, such as trials by ordeal and battle.(8) The jury was considered to be an appropriate innovation due to its reliance on "human knowledge, insight, and inquiry," rather than bloodshed, in the practice of judgment.(9) Jurors were chosen as witnesses from the communities in which criminal matters took place, based on their knowledge about the facts of the case.(10) As the common law became institutionalized over time, the role of jurors largely shifted from neighbourhood witnesses towards a more formal function as triers of fact, responsible for incorporating their personal knowledge in the deliberation of a verdict. In the early days of the jury trial, jurors were selected, rather than dismissed, if they had information that was relevant to the matter,(11) and "special juries"--who were tasked with trying matters related to their own occupational expertise--were encouraged in the adjudication of legal disputes.(12)

   While the legal respect for the fact-finding role of the jury has remained relatively constant over time, the next few centuries were characterized by the amplification of its lay character. As the inquisitorial system declined in favour of the adversarial process, the separation of power between judge and jury became even more salient. Although the judge "represented a valuable source of information... [through] listening to... many different cases,"(13) they could no longer guide jurors on the appropriate ways to interpret evidence--a restriction that increased following the famous English Bushel's case in 1670, after which judges were no longer permitted to punish jurors for arriving at a verdict that they did not agree with.(14) Jurors were increasingly viewed as the individuals most capable of engaging in common-sense determinations of the facts, since their positions in the community enabled them to draw on social and personal experiences to ensure a flexible application of law.

   The contemporary respect for the lay jury can additionally be traced to the political climate following the American Revolution. At the time of the Declaration of Independence, mistrust in state authority was high, and the jury took on a more political character as the "bulwark of liberty" against the risk of arbitrary governmental interference.(15) The verdict of the jury was increasingly seen as the "verdict of the people," who were viewed as the most effective interpreters of natural law.(16) Along with the rising faith in the power of the common people came a profound distrust in professional experts, who were seen as yet another unchecked form of authority that could arbitrarily sway the conscience of the community.(17) As a result, jurors were no longer chosen for their knowledge of case matters, and were instead expected to come into each trial with a blank slate. Largely, these expectations were based on the view that jurors must be, to a degree, removed from the formalities of the justice system and state power, and instead function as representatives of their communities in the trial process.

   These conceptions, which initially gained traction in England and the United States, have been upheld by modern Canadian provincial statutes through their emphasis on the value of "non-professional, group decision making."(18) Today, jurors in Canada are required to be drawn from a fair cross-section of society, and are expected to use a "diversity of experience[s] and opinion[s]" in their interpretation of the facts, while remaining guided by the judge in matters of law.(19) Consistent with early perceptions of the lay jury, the jury verdict in Canada continues to be seen as a reflection of changing community standards of fairness and justice.

   The profound respect the Canadian legal system holds for the lay jury can be observed in practice in the law governing the jury selection process, along with the system's fundamental distrust of 'professional' and 'expert' decision-making. In the following section, I discuss how these attitudes are conveyed through the application of jury exclusion statutes, which set out the occupations that are deemed ineligible for jury duty.

2. THE APPLICATION AND RATIONALE OF JURY EXCLUSIONS AGAINST LEGAL PROFESSIONALS

   The expectations underpinning the contemporary jury trial are premised on a fundamental recognition of its participatory, educational, and legitimizing functions in the legal system. The jury trial is participatory in that it invites diverse members of society to engage in the administration of justice, as 'peers' to the accused, responsible for the deliberation of a verdict. Participation on the jury panel is also an educational opportunity, as it is often the first time that members of society interact with the law and its institutions, as they observe trial procedure, listen to attorneys' arguments, and follow judicial instructions. The participation of community members in the deliberation of a verdict can also contribute to the public's view of the court's democratic legitimacy, since community-based verdicts allow the changing conscience of the community to influence the flexible application of law. Therefore, in order for the jury to serve as a microcosm of the norms, values, and attitudes that shape the law's...