The irresponsible conduct of those in positions of power and authority, who have shamelessly exploited the verdict in the Gerald Stanley case, is appalling. Trial procedure is a carefully nuanced balance of accumulated wisdom. The jury is the sole judge of the facts, free from judicial intimidation since Bushel’s Case in 1670.
Public figures have suggested that justice was not done because the Stanley jury did not contain any Indigenous people, and therefore they imply that the Stanley jury was racist and incapable of rendering a true verdict of guilt, because the victim, Colten Boushie, was Indigenous.
Prime Minister Justin Trudeau said, following the verdict: “I know Indigenous and non-Indigenous Canadians alike know that we have to do better.” Minister of Justice Jody Wilson-Raybould tweeted: “As a country we can and must do better — I am committed to working every day to ensure justice for all Canadians,” while Jane Philpott, minister of Indigenous services, tweeted: “We all have more to do to improve justice & fairness for Indigenous Canadians.”
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 defend themselves from the accusation that they are racist, so I will. What if Stanley were tried for murder by a single judge who was an Indigenous person? What if the judge found him guilty because he was a white man? Would not public denunciation of this judge by politicians put those critics at risk for contempt of court?
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. Political criticism of jurors to achieve a “better” result improperly intrudes upon these fundamental principles of justice.
In 1994, a young Indigenous man, John Black, while pumping gas into his car at a gas station in Kelowna, was confronted by an unarmed white man riding a bicycle, who was taunting and threatening him. Black, fearing for the safety of his wife and child in his car, calmly took out a tire iron, and struck the head of Dale Anfield. 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 white judge correctly instructed the jury on the law. The members of the victim’s family were outraged at the jury’s verdict. No one suggested racism after this verdict.
We need to reject cheap overtures from self-interested persons for reform when no reform is needed. The jury system works well.
On occasion, juries might 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.
Disclosing to jurors the existence of this legal right is not legally permitted, as there is fear 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 take the view that under no circumstances could that juror ever convict someone of the same race, or conversely, might vote to convict an accused person because the victim is of the same race as the juror.
Raising the issue of race in the wake of the Stanley case does not lead to more justice but smacks of jury tampering by political interference, rendering an expectation that race is a factor in achieving a better or desired verdict. This is a dangerous path that must be soundly rejected by people of principle and integrity. There are ways to combat the evil of racism. This is not one of them.
William Penn’s words to the 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.” 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, and were imprisoned along with the acquitted accused.
Political intimidation is no less wrong than judicial intimidation in a free and democratic society governed by the rule of law.
Charles I.M. Lugosi is a former law professor and is a lawyer with Crease Harman LLP in Victoria.