Many jurists boast that the Canadian system of criminal justice is the best in the world because of the involvement of our citizens as jury members. We like the idea that our justice system reflects democratic values by giving a voice to the community.
It's a nice sentiment, but rather hollow in practice. Our democratic aspirations are undercut by the fact that many community members are reluctant to take the time to honour their civic duty to sit on a jury.
The seeds of jury discontent can be found in two unrelated cases that made headlines recently.
The first concerns the upcoming trial of Robert Pickton in British Columbia on 26 murder charges. It has been decided that the case will now be split into two parts, and that the first jury trial will only deal with six of the murders. The judge is concerned that the jury could be confused and overwhelmed if forced to deal with the entire case.
It is always stressful to sit in judgment of others, but there are lots of other reasons why jurors find the discharge of their civic duty onerous and troubling.
Jurors wait forever in a small, stuffy room while lawyers argue arcane points of law in their absence. They miss all the juicy stuff that is ruled inadmissible. They sit in uncomfortable chairs for many hours listening without ever asking a question. They become little more than passive receptacles for evidence.
After many days, weeks or even months of silently digesting the evidence, jurors are given a crash course in law by the judge and sent to a little room to argue with strangers.
At the end of the ordeal, the jury reports to court with a very limited choice of offerings: guilty or not guilty. No one will ask why and no one wants an explanation of the simple one- or two-word decree the jurors are forced to stick to. In fact, it is a criminal offence for jurors to disclose the nature and content of their deliberations.
When it's all over, the jurors get to go home with an insulting level of remuneration, no souvenirs and no plaque to honour their public service.
This ordeal would be worthwhile if we truly respected the intelligence and autonomy of the jury, but our courts seem to have little confidence in the jury's decision-making abilities. This condescending lack of faith found expression in last month's Supreme Court of Canada decision to order a new trial for Vuthy Kong, charged with murder in the stabbing death of Adam Miu. In February 2002 a late-night brawl broke out between Kong and his friends and Miu and his friends. The Kong group were armed with knives.
At the trial, many witnesses gave conflicting testimony about the exact nature of the altercation. The jury convicted Kong of the lesser offence of manslaughter. Perhaps they concluded that Kong lacked the requisite intent to kill, or perhaps they decided that Kong was provoked, and provocation can reduce murder to manslaughter. Ultimately, the Supreme Court ordered a new trial because the trial judge did not explicitly instruct the jury to consider the defence of self-defence. Even though jury simulation studies show that jurors often do not listen and only understand half of judge's legal instructions, a new trial may be ordered if the judge made a significant error in explaining the operation of the law.
Kong claimed he had acted in self-defence, and there is no reason for a trial judge to then screen the assertion to determine if the jury should be told to take this into consideration.
I have no doubt that the jury would have assessed this issue, notwithstanding the judge's silence. With its origins in 13th-century law, self-defence is one of the oldest defences, a simple concept easily understood by lay people.
If the claim of self-defence is groundless, the jury will be able to reach this conclusion without the judge acting as censor.
Ironically, if the Kong judge had actually instructed the jury to consider this obvious defence, chances are he would have lost them in a maze of legal sophistry. In the world of law, self-defence bears little relation to ordinary common sense.
The highly esteemed local jurist Mr. Justice David Watt has said that the defence is "highly technical, excessively detailed... and internally inconsistent. A summing up on the issue of self-defence is at best confusing, more likely to leave jurors in a dissociative or catatonic state. Instruction on self-defence is an oxymoron."
If we had more confidence in jurors, we wouldn't feel so compelled to come up with complicated rules and formulas to guide their deliberations. If we had more confidence in jurors, we'd also be more inclined to want them to provide some simple reasons for their decision. Shrouding the jury trial in mystery and complexity defeats the whole purpose of community participation. It also leaves the jury verdict open to senseless challenges having more to do with what the judge said to the jury than with what the jury actually did in dispensing justice.
No wonder many people start looking through their Rolodex of excuses when they're summoned to appear for jury duty.