ethics, euthanasia & Canadian law

an exploration of an unsettling topic
of relevance to all Canadians

www.ethics-euthanasia.ca | Apr 24, 2024

• • about this website
• consider case studies
  • Robert Latimer
  • Evelyn Martens
• discuss the issues
  • jury nullification
  • legislation of assisted suicide and euthanasia
  • mandatory minimum sentences

discuss the issues :
jury nullification

It is widely accepted, including by the Supreme Court of Canada (SCC), that juries have the power to make decisions free of intervention by government authorities. This fundamental principle of English and Canadian law goes back to the Magna Carta in 1215, which established that anyone charged with a criminal offence has the right to be judged by a jury of his or her peers, thereby protecting the people from arbitrary punitive actions by the state.

This principle, this basic civil liberty, is central to our understanding of how our justice system should work. It is obvious, then, that jury decisions cannot be directed by the bench — judges can guide juries and help them understand the law, but they cannot force decisions upon juries. Less obvious, but equally important, is the idea that jury decisions cannot be directed by legislators. Legislators set laws which constitute powerful guidelines for juries, but even laws cannot be absolute determinants for juries. Jury independence means that no form of state-imposed directive — not judicial urging, not laws — can take precedence over that independence.

Jury independence has two main purposes. First, as indicated above, it is an essential protection against the abuse of state authority. Second, it allows juries to intervene in instances where the law seems to come into conflict with justice. Such was the case in the trials of Henry Morgentaler, prosecuted four times for carrying out abortions in the 1970’s and 80’s, actions that were deemed at the time to be illegal. In each of those trials Morgentaler was declared not guilty by his juries, though he had clearly and admittedly guilty of actions thought o be illegal. Morgentaler’s juries exercised their right to disregard the law — a demonstration of jury independence that is called jury nullification.

While acknowledging that the possibility nullification cannot be prevented, according to our recognition of the need for jury independence, prosecutors and the judges are generally troubled by the prospect. Prosecutors do not like the idea that a potential conviction, based on strict adherence to the law, can be blocked by a jury sympathetic to the defendant. Judges similarly support decisions based upon the law. Most prosecutors and judges would probably prefer to tell juries that they must follow the letter of the law, but they cannot do so because such a statement would be in violation of the principle of jury independence. Instead (whenever it is relevant) they try very hard to suppress the idea of jury independence, and do whatever they can, short of outright violation of the principle of jury independence, to lead juries away from any inclination they might have to nullify. They do this by emphasizing the importance of the law, and by avoiding any suggestion that the jurors might consider a verdict that is not in accord with law.

There is a good reason for prosecutors and judges to take this position with juries. There are (for the most part) good reasons for our laws. Laws should not be casually ignored, and it is perfectly acceptable for this to be emphasized by judges. Perhaps it is right, too, that jury independence not be suggested by judges, because doing so might encourage wanton disregard of laws; it might suggest that judges do not take laws seriously and that juries can casually make up their own laws. Laws are important and it is the role of judges to ensure understanding of respect for those laws.

But how, then, are juries to learn about their independence? For surely, especially in cases where it might be relevant, they ought to know about it. Throughout most of Canadian history the answer to this question was a simple one. A defence lawyer could make a plea for jury sympathy, admitting guilt according to the law, but denying criminal intent and arguing that justice would be served only by a verdict of not guilty. That was what Henry Morgentaler’s lawyers did, telling his juries that “You and you alone have the right to make this decision.”

Morgentaler’s acts in defiance of the law were much in accord with public perceptions of what the law ought to be, and in making a final ruling on his case the Supreme Court of Canada (SCC) ruled, in essence, that in accord with community standards regarding the matter, as evidenced by the refusal of juries to convict, and in accord with the Canadian Charter of Rights and Freedoms, abortion had to be viewed as legal. This was a great triumph and validation of the idea of jury independence.

But there was one unfortunate consequence of the Morgentaler ruling. For some reason, the SCC took it upon itself to, in effect, prohibit future defences built on the idea of jury nullification. They could not prevent nullification itself, because that would violate the important principle of jury independence, but they felt they could prevent defence lawyers from talking about it. This odd ruling, discussed in detail in my book on the Robert Latimer case, has created the following, in my view untenable, situation in Canada:

1. Jury nullification is widely acknowledged, even by the SCC, as something that juries have the power to do.
2. Defence lawyers cannot allude to the possibility.
3. Defendants will have the possibility of jury nullification only if their juries happen to know that they have such power.

It is difficult to see how this situation in the administration of Canadian justice can be sustained. By issuing its edict on nullification the SCC has effectively suppressed jury independence, at least for those juries that do not know about their right to nullify, by eliminating the means by which juries can be informed of this right.

An important balance in our justice system, whereby nullification could remain a real possibility in most trials, has in effect been eliminated. This would seem to be a violation of the Canadian Charter of Rights and Freedoms, because it is arbitrary and discriminatory: only defendants lucky enough to have a jury that happens to know about its right to independence will have the possibility of nullification. It also represents a serious denial of the fundamental civil liberty of entitlement to the best possible defence. If authorities, judicial or legislative, can eliminate criminal defences that are not to their liking, how can we suppose that we will ultimately be left with any real protection against the abuse of state authority?

It is not as though many defence lawyers would be inclined to resort to a defence based on an appeal for nullification, even if they could do so. For one thing such a defence entails the dangerous admission that the defendant is indeed guilty of that of which he or she is accused. It would be a rare occurrence. But nullification ought to be an avenue of defence in those few cases where it is warranted.

Nullification did not come into play in the Evelyn Martens’ case, because the prosecution did not provide a persuasive case that she was indeed guilty. Martens had certainly attended the two suicides in question, but the presiding judge ruled that mere presence is not sufficient for one to be found guilty of assisted suicide. One must take some active role in the suicide, and that was not proven, so the jury simply made a straightforward finding of not guilty. Had it been proven that Martens did take an active role in the one or both suicides, then nullification might have been a consideration of the jury (if they knew of that possibility) because it appeared that there was some sympathy for Martens, at least from the one juror that did make a comment to me (see Chapter 5 in the linked text: The Trial of Evelyn Martens).

In Robert Latimer’s trial, however, the possibility of nullification was very real, and was a subtext throughout the trial, even though the jurors, uninformed about their rights, apparently had no idea that such a thing was sanctioned by the courts. They thought they were more or less obliged to find him guilty. But knowing that they jury was likely to be very sympathetic to Latimer, Justice Noble did what he could to steer them away from nullification, refusing (in spite of urging to the contrary by defence lawyer Brayford) even to let them know about the minimum ten-year sentence for murder, even after being queried on that topic by the jury. Had the jury known of the severity of the sentence they might simply have refused to find Latimer guilty, even without understanding their right of nullification. And defence lawyer Mark Brayford could say nothing about it, given the ruling of the SCC.

Thus a man who committed a crime of love and compassion was treated like one who acted out of malice, and was deprived of the only real defence he had. It is ironic that a man prosecuted for committing an act of mercy should be denied the right, himself, to make a plea for mercy.

Much is sometimes made of the idea that jury nullification can lead to bad consequences as well. It is often cited as a means for the expression of jury racism. Cases of this have occurred, though it is difficult to identify many of them. Cases have also occurred where nullification has been a tool against racism, as when northern juries in the US often refused to convict runaway slaves and those who helped them, even though the law of the day had been broken.

There are legal cases where nullification clearly ought to be in play, but there are also cases, such as when a jury is populated by racists, where we would wish it otherwise. But if knowledge of it is suppressed, it is likely that it will be so only for well-intentioned juries. If there is racism afoot, and twelve jurors are about to disregard the law for racial or other discriminatory reasons, then it is very likely they will fully understand their right to nullify, aided by others in a conspiracy to discriminate. Innocent juries, in the absence of such a malevolent conspiracy, will not likely know of their rights. Therefore, banning the right to argue for nullification will have little effect on ill-intentioned juries, and hurt only the well-intentioned, and those upon whom they must pronounce guilt or innocence.

If jury independence is a principle which can be abused (as can all legal principles) what is the alternative — juries that are not free to stand up against state authority, juries that are not empowered to correct legal injustices? It seems clear that nullification, though subject to abuse, must be allowed. And if it is allowed, it would seem that defence lawyers ought to be allowed to talk about it.