STONED BY JURY

Regardless of Law, Jurors Aren't Likely to Jail Med Weed Users

The Supreme Court of Canada ordered a new trial for well-known
med-pot activist Grant Krieger last month. Krieger, who has multiple
sclerosis, was growing and distributing marijuana solely for medical purposes.

He had been convicted of producing by a jury largely because the
Alberta trial judge sternly directed the jury that they had no choice
but to convict.

During deliberations, two jurors asked to be discharged because they
could not in good conscience return a verdict of guilty. This is when
the judge decided to step in and tell the jurors how to do their jobs.

In the good old days, judges routinely bullied juries. Until the
mid-17th century, being sequestered meant confinement without food or
water until a headstrong jury would come back with the conviction
demanded by the judge.

In the modern era, judges exert enormous influence on juries by
vigorously expressing their opinions, by ruling evidence admissible
or not and by withholding defences from the jury. But it has been
fairly clear for a few hundred years that juries cannot be told they
have no choice other than to convict.

So the trial judge in the Krieger case was a bit too old-school for
the Supreme Court, and in a short unanimous decision it ordered a new trial.

Jury nullification (when a jury goes against the law or a judge's
instructions) is alive and well in Canada. With jury deliberations
shrouded in secrecy, a jury always has the implied power and ability
to ignore the law and decide a case in accordance with its moral intuition.

While the case law clearly states that jurors cannot be told that
they have the power to ignore the law, the Supreme Court's Krieger
decision effectively prevents judges from telling them they cannot do so.

For the legal profession, the case will be remembered as a modest
affirmation of jury autonomy, but this affirmation of autonomy is of
vital significance to compassion centres distributing marijuana to
thousands of medical patients across the country.

Having played a part in the establishment of compassion centres in
southwestern Ontario, I am often asked by students, police officers
and medical patients whether these centres are legal. There is no
simple answer to this question.

None of these centres have been authorized under Health Canada's
medical marijuana program, so it appears they are illegal; but the
technical illegality of supplying marijuana to seriously ill
Canadians is overshadowed by the sympathy we feel for those
struggling with illness.

For the most part, Canadians do not respect laws that stand in the
way of relieving pain and suffering. This is why the Krieger jury had
difficulty convicting in the face of clear technical guilt. So when I
am asked about the legal status of the centres, I usually mumble
something like "probably illegal but non-prosecutable."

This may not be a word, but it's the only way I can describe the
nebulous legal protection provided by juries that predictably refuse
to apply the letter of the law in matters of urgent medical need.

I have always believed that compassion centres have been able to fly
under the legal radar primarily because of the precedent set by Dr.
Henry Morgentaler. Throughout the 70s and 80s, numerous juries
refused to convict the doctor for performing illegal abortions.

The Criminal Code did provide a cumbersome process for obtaining a
legal abortion, but its obstacle-laden requirements compelled many
women to seek the unauthorized services of Morgentaler's abortion clinics.

The overwhelming presence of urgent medical need made it impossible
for any jury to reach a unanimous guilty verdict. There is little
doubt that this constant refrain of jury nullification in
Morgentaler's trials must have played some part in the Supreme Court
of Canada's 1988 decision to declare our criminal laws on abortion
unconstitutional.

Similarly, the Controlled Drugs And Substances Act outlines a
cumbersome process for obtaining authorization to use medical
marijuana, but its obstacle-laden requirements compel many patients
to seek the unauthorized services of compassion centres.

In fact, far more patients are using the centres than are enrolled in
the government's program and buying the government's pot. It may be
hard to convince a "rule of law" judge that the flaws and
shortcomings of the government's medical program provide the centres
with a legal justification for taking matters into their own hands.

But if the trial is in front of a jury, it may also be impossible for
a prosecutor to secure a conviction. If juries would not convict in
the context of the morally and politically divisive issue of
abortion, I cannot see them doing so in the context of medical pot
when opinion polls show that 80 to 90 per cent of Canadians support
the use of marijuana for medical purposes.

Although I was thrilled that the Supreme Court left the door open for
jury nullification in the medical marijuana context, it has to be
recognized that nullification is a double-edged sword.

The same inherent power that allows juries to acquit Morgentaler and
the compassion centres in the face of technical guilt can also lead
them to maliciously convict an unpopular but innocent defendant or
perversely acquit a police officer for a wrongful beating or shooting.

I don't think Rodney King is a big fan of jury nullification.
Sometimes acting upon the conscience of the community can be
downright nasty, but in some cases it can soften the rigidity and
harshness of the criminal law by adding an element of humanity and common sense.