EXPERTS QUESTION ADDRESS TO THE JURY IN WALKER TRIAL

As the lawyer for Kim Walker prepares to submit an appeal on the
Yorkton man's second-degree murder conviction, questions are being
raised about jury rights and powers.

On Friday, a Yorkton jury found the 50-year-old welder guilty of
fatally shooting 24-year-old James Hayward, a convicted drug dealer
who had been involved with Walker's then 16-yearold daughter.

But even as the jury deliberated, defence lawyer Morris Bodnar raised
concerns over the judge's instructions to the jury, in that the
instructions excluded the ability to find Walker not guilty.

In arguing for a mistrial, Bodnar referred to a recent Supreme Court
of Canada decision involving medicinal marijuana user Grant Krieger.

In that case, the country's highest court found an Alberta Court of
Queen's Bench judge had erred by taking the not-guilty option off the
table, thereby robbing the jury of its function.

Walker's case has garnered national attention and has Saskatoon lawyer
Mark Brayford watching carefully.

"One of the most important rights that we have as a democracy is the
right to a jury trial, and one of the most fundamental concepts in a
jury trial is their right to decide the case," said Brayford, who
represented Robert Latimer in an equally controversial case. Latimer
was found guilty of second-degree murder in the death of his daughter,
a quadriplegic with cerebral palsy.

"The judge can tell the jury what the law is, but if a jury trial is
supposed to protect our freedoms, the jury needs to have the ultimate
say as to what will happen, including the ability to fi nd the accused
not guilty," said Brayford.

University of Regina professor Jeffrey Pfeifer -- also chair in police
studies at the Law Foundation of Saskatchewan -- has researched jury
decision-making. He said research shows juries pay even closer
attention to a judge's instructions when it is a controversial and
morally involved case, such as with euthanasia or abortion.

"We're not sure why. We think it's because people can see themselves
in those situations," Pfeifer said.

He said a Saskatchewan study on the Latimer case found that when study
subjects were presented with case details and the judge's
instructions, they tended to follow those instructions to the letter
and convict. That changed when the "jurors" were made aware of
something called their nullification right -- their right to refuse to
apply the law to a particular case.

"When we ran that with the Latimer case, they didn't fi nd murder one,
they didn't follow the judge's instructions," Pfeifer said. "The irony
of all of this is you can't tell the jury that they have that right,
and so it's a real catch-22." Under Canadian common law, while jurors
have the right to essentially ignore law, judges and lawyers are not
allowed to tell them of that right during a trial. The jury is
required to come to that point on its own. That's something Brayford
would like to see changed.

"If the jury has this power to effectively not apply a law if they
think it will lead to an unfair result, I would prefer to see the law
that the jury can be told of that right in the courtroom," he said.

Pfeifer said there is a possibility outcomes of some cases might be
different if jurors were aware of that power.

"Our research certainly indicates that in these really controversial
cases -- and abortion, euthanasia and this (Walker) type of case are
the three major ones -- when you instruct the jury as to their actual
charter right of nullifi cation, they say, 'You know what, this is an
exceptional case, and we're going to go with what is correct here in
our minds,' " he said.