Speaking in my personal capacity as a lawyer who acted both as a prosecutor and as defence counsel, I am appalled at the brazen irresponsible conduct of those in positions of power and authority who are apparently shamelessly exploiting the verdict in the Stanley case to possibly further political agendas. The trial process in every murder case is a carefully nuanced balance of accumulated wisdom developed over years of experience, and the fairness of the trial's judge's charge to the jury in Stanley is absolutely clear in the instructions given to the jury. The trial judge is the sole judge of the law; the jury is the sole judge of the facts, free from judicial intimidation since Bushel's Case in 1670. The accused is presumed innocent until proven guilty beyond a reasonable doubt. The jury is legally forbidden to divulge what happens in their deliberations, and unlike American jurors, face serious consequences if confidentiality is violated.
Recent widespread public outrage suggests that justice was not done because the racial composition of the jury did not contain a sufficient component of visibly indigenous people, and suggest that therefore the jury in Gerald Stanley's case was presumably racist and incapable of rendering a true verdict of guilt, because the victim was indigenous. This assumes that the all-white jury of Mr. Stanley's peers was incapable of rendering a fair and impartial verdict upon the evidence, denying justice, and this mandates urgent legislative reform. But this kind of thinking is unfair speculation at best. These kinds of statements irresponsibly flame speculation that the Stanley jury was racist and that the entire criminal justice system in Canada is tainted by systemic racism. Comments, such as to "do better" cross the line, putting pressure on juries to decide a verdict by adding race as a factor, when considering all the admissible evidence. Political interference with jurors who are impartial judges must be soundly rebuked.
The legally muzzled jury members are unable to publicly voice their outrage at the insinuation that they are racist, that they refused to convict Mr. Stanley because he was white and that the jurors were prejudiced against Colten Boushie because he was indigenous. Consider this. What if Mr. Stanley was tried for murder by a single judge that was an indigenous person? What if the judge found him guilty? Would there be an outcry by Mr. Stanley's supporters, that the indigenous judge was prejudiced because a white man was found guilty? Would public denunciation by politicians suggesting that this judge was racist against white people put those critics at risk for contempt of court, a criminal offence?
What is at stake here is respect for the rule of law, the presumption of innocence, the burden of proof beyond a reasonable doubt and independence of the judiciary. There is no need to tinker or substantially make changes to a criminal trial process that is tested and true. Eliminating pre-emptory challenges is not the answer.
In R. v. Black, a young indigenous man, John Black, while pumping gas into his vehicle at a gas station in Kelowna, was confronted by an unarmed white man riding a bicycle, who was taunting and threatening him. Mr. Black, fearing for the safety of his wife and child in his car, calmly opened the trunk of his car, took out a tire iron, and struck a single blow to the head of the white man, shattering his skull and killing him. Mr. Black then drove to the police station and turned himself in. He was charged with second-degree murder. I was his defence lawyer. My indigenous client was judged by what appeared to be an all-white jury. My client was acquitted. The jury did their duty fairly and impartially. The judge correctly instructed the jury on the law. There was no appeal by the Crown. The members of the white victim's family were outraged at what they perceived was a grave injustice. Politicians and leaders in the indigenous community were silent in the wake of this case. There were no headlines suggesting racism when this 1994 white jury acquitted an indigenous man of killing a white man.
The point is that Canadians of every race need to reject cheap overtures from self-interested persons for reform when no reform is needed. The jury system works well.
On occasion, juries may ignore the instructions of judges and deliver a verdict that is perverse, contrary to the evidence. Jury nullification happens when the personal values of individual jurors reject what the prosecution is attempting to accomplish. The Supreme Court of Canada noted, in R. v. Morgentaler, that disclosing to jurors the existence of this legal right is not permitted, as public knowledge of this limitation on government power might lead to chaos and disturb the rule of law. This is particularly so in situations when racial prejudice is so strong that a juror might be unwilling to ever convict someone of the same race, or conversely, may vote to convict the accused because the victim is of the same race as the juror.
Playing the race card in the wake of the Stanley case does not lead to more justice but smacks of jury tampering by political intimidation, rendering an expectation that race is a factor in achieving a better or different verdict. This is a dangerous path that must be soundly rejected by people of principle and integrity. There are other ways to combat the evil of racism. This is not one of them.
William Penn's words to the Bushel court in 1670 are still relevant today, "My jury who are my judges, ought not to be menaced; that their verdict should be free, and not compelled... I do desire that justice may be done me, and that the arbitrary resolves of the bench may not be made the measure of my jury's verdict...." To which Justice Howel replied, "Stop that prating fellow's mouth, or put him out of court," and then ordered the jury to be deprived of food, drink, heat and toilet facilities until the desired verdict was reached, which the jury bravely refused to do. The jurors were imprisoned along with the acquitted Penn. Political intimidation is no less wrong than judicial intimidation in a free and democratic society governed by the rule of law.
Dr. Lugosi, J.D. LL.M. M.B.E. S.J.D. has had a long and varied career, including work in medical malpractice, labor law, criminal law, and constitutional law. He has also taught at law schools law schools in Florida, Michigan, Tennessee, and Canada. He currently lives and works in Victoria, British Columbia as a litigation attorney, in a variety of areas, reflecting his diverse background in the law.
Suggested citation: Dr. Charles I. M. Lugosi, Defending the Jury After Stanley, JURIST - Academic Commentary, Feb. 19, 2018, http://jurist.org/forum/2018/02/charles-lugosi-stanley-jury.php.
This article was prepared for publication by Kelly Cullen, a JURIST Section Editor. Please direct any questions or comments to him at email@example.com