The Supreme Court of Canada ordered a new trial for well-known med-pot activist Grant Krieger last month. Krieger, who has multiple sclerosis, was growing and distributing marijuana solely for medical purposes.
He had been convicted of producing by a jury largely because the Alberta trial judge sternly directed the jury that they had no choice but to convict.
During deliberations, two jurors asked to be discharged because they could not in good conscience return a verdict of guilty. This is when the judge decided to step in and tell the jurors how to do their jobs.
In the good old days, judges routinely bullied juries. Until the mid-17th century, being sequestered meant confinement without food or water until a headstrong jury would come back with the conviction demanded by the judge.
In the modern era, judges exert enormous influence on juries by vigorously expressing their opinions, by ruling evidence admissible or not and by withholding defences from the jury. But it has been fairly clear for a few hundred years that juries cannot be told they have no choice other than to convict.
So the trial judge in the Krieger case was a bit too old-school for the Supreme Court, and in a short unanimous decision it ordered a new trial.
Jury nullification (when a jury goes against the law or a judge's instructions) is alive and well in Canada. With jury deliberations shrouded in secrecy, a jury always has the implied power and ability to ignore the law and decide a case in accordance with its moral intuition.
While the case law clearly states that jurors cannot be told that they have the power to ignore the law, the Supreme Court's Krieger decision effectively prevents judges from telling them they cannot do so.
For the legal profession, the case will be remembered as a modest affirmation of jury autonomy, but this affirmation of autonomy is of vital significance to compassion centres distributing marijuana to thousands of medical patients across the country.
Having played a part in the establishment of compassion centres in southwestern Ontario, I am often asked by students, police officers and medical patients whether these centres are legal. There is no simple answer to this question.
None of these centres have been authorized under Health Canada's medical marijuana program, so it appears they are illegal; but the technical illegality of supplying marijuana to seriously ill Canadians is overshadowed by the sympathy we feel for those struggling with illness.
For the most part, Canadians do not respect laws that stand in the way of relieving pain and suffering. This is why the Krieger jury had difficulty convicting in the face of clear technical guilt. So when I am asked about the legal status of the centres, I usually mumble something like "probably illegal but non-prosecutable."
This may not be a word, but it's the only way I can describe the nebulous legal protection provided by juries that predictably refuse to apply the letter of the law in matters of urgent medical need.
I have always believed that compassion centres have been able to fly under the legal radar primarily because of the precedent set by Dr. Henry Morgentaler. Throughout the 70s and 80s, numerous juries refused to convict the doctor for performing illegal abortions.
The Criminal Code did provide a cumbersome process for obtaining a legal abortion, but its obstacle-laden requirements compelled many women to seek the unauthorized services of Morgentaler's abortion clinics.
The overwhelming presence of urgent medical need made it impossible for any jury to reach a unanimous guilty verdict. There is little doubt that this constant refrain of jury nullification in Morgentaler's trials must have played some part in the Supreme Court of Canada's 1988 decision to declare our criminal laws on abortion unconstitutional.
Similarly, the Controlled Drugs And Substances Act outlines a cumbersome process for obtaining authorization to use medical marijuana, but its obstacle-laden requirements compel many patients to seek the unauthorized services of compassion centres.
In fact, far more patients are using the centres than are enrolled in the government's program and buying the government's pot. It may be hard to convince a "rule of law" judge that the flaws and shortcomings of the government's medical program provide the centres with a legal justification for taking matters into their own hands.
But if the trial is in front of a jury, it may also be impossible for a prosecutor to secure a conviction. If juries would not convict in the context of the morally and politically divisive issue of abortion, I cannot see them doing so in the context of medical pot when opinion polls show that 80 to 90 per cent of Canadians support the use of marijuana for medical purposes.
Although I was thrilled that the Supreme Court left the door open for jury nullification in the medical marijuana context, it has to be recognized that nullification is a double-edged sword.
The same inherent power that allows juries to acquit Morgentaler and the compassion centres in the face of technical guilt can also lead them to maliciously convict an unpopular but innocent defendant or perversely acquit a police officer for a wrongful beating or shooting.
I don't think Rodney King is a big fan of jury nullification. Sometimes acting upon the conscience of the community can be downright nasty, but in some cases it can soften the rigidity and harshness of the criminal law by adding an element of humanity and common sense.