Why I Love The Jury System
I have a high point in every jury trial. You are probably thinking that the high point of a jury trial for me is when I have had the experience of hearing the words “not guilty”. These are indeed, some of the best moments of my life, but the high point of every jury trial comes before.
After every jury trial, but before the jury goes out, I look at my client and say “I did everything I could.” When my client has looked at me and said “I know”, those are the best moments for me.
I wish I could, but I cannot control the outcome. All that I can control is to defend the case as best as I possibly can. If I can look at my client and say that I did that and the client recognizes it, it is one of the best feelings in the world.
There is a reason why it is such a good feeling. In my view, twelve members of the public is the best chance that an accused person has for a fair trial. I can never control the outcome of a case, I can only control the decisions I make and what I do to defend a case. But in jury trials, I am always amazed at how jurors pay attention and care about their role and often how long they take to make a decision. I have been in situations where juries have been out for days. The members of the Canadian public who do not try to get out of jury duty want to be there to do their civic duty and, in my view, care deeply about their role. That is the best chance that an accused person has for a fair trial.
There are exceptions obviously, but there is one component of a judge alone trial that I have always had a lot of difficulty with – so much of the case, more important than perhaps any factor other than the factual basis of the case (usually the facts are in dispute, but some baseline facts that form the scenario are usually not), is the judge that is assigned to your case. The judge and who he or she is, is a very important factor in any case and the defence lawyer has absolutely no control over it. It has always bothered me on some level that I can have the same case with the same factual scenario, and it is likely to be a guilty verdict with one judge that has a higher threshold of reasonable doubt and a not guilty verdict with another judge with a lower threshold of reasonable doubt. Charter issues also depend very heavily on the judge that is assigned to the case. There is something unsatisfying about the process of a judge alone trial from that point of view.
The process of members of the Canadian public that hear the evidence and then deliberate to reach a unanimous decision is the best system to ensure a fair trial. That is why the political conversation around the Gerald Stanley trial in Saskatchewan, where Gerald Stanley (who was white) was acquitted of the murder of Colten Boushie (who was Aboriginal) has hurt me so deeply. I suppose I cannot know what the situation in Saskatchewan is like, but I have seen many jurors in Ontario. I do not believe that jurors that swear an oath to do justice between the state and the accused and to render a verdict based on the evidence, then make their decision – all twelve of them – based on the ethnic group or race of the accused and the victim. The number of times that I have read or heard the phrase “all-white jury” since the Gerald Stanley verdict, conjuring up images of the trial of a black man in the southern United States in the 1960s, are truly offensive to me. Jurors, in my experience, take their responsibility and their oath very seriously. It is seeing juries in action and, by and large, the sense of responsibility and diligence with which they approach their role that has led me to believe that a jury is the best chance an accused person has for a fair trial.
