A CRIMINAL MIND: JURIES CAN NULLIFY, JUST DON'T TELL THEM

The common law recognizes the jury's power not to convict when a law
is unfair, or when it would unfairly impact upon the accused. This is
known as jury nullification. The trilogy of Canadian cases from the
Supreme Court of Canada that have dealt with this are R. v.
Morgentaler (1988), R. v. Latimer (2001), and the recent case of R.
v. Krieger (2006).

Can a trial lawyer inform the jury of its power to nullify? Our law
grants jurors the power to nullify, but prohibits counsel from
telling them about it.

The law is clear that the defence cannot raise the issue before the
jury. Morgentaler dealt with a section of the Criminal Code that
restricts the availability of abortions. The defence advised jurors
that, if they did not like the law, they need not enforce it. The
court said that addressing the jury in this manner would disturb and
undermine the jury system.

While the Supreme Court recognized in Morgentaler that the power to
nullify exists, counsel cannot encourage it: "It is no doubt true
that juries have a de facto power to disregard the law as stated to
the jury by the judge. We cannot enter the jury room. The jury is
never called upon to explain the reasons which lie behind a verdict .
. . . But recognizing this reality is a far cry from suggesting that
counsel may encourage a jury to ignore a law they do not support or
to tell a jury that it has a right to do so."

In R. v. Latimer, the accused was on trial for killing his disabled
daughter. The Supreme Court of Canada specifically stated that the
right to a fair trial did not include the increased possibility of
jury nullification: "An accused is entitled to a fair trial,
including the presumption of innocence, the duty of the Crown to
prove guilt beyond a reasonable doubt, and the ability to make full
answer and defence. The accused is not entitled to a trial that
increases the possibility of jury nullification."

On the other hand, the judge has the delicate task of preventing jury
nullification without telling jurors that they must convict. This
happened recently in the case of R. v. Krieger, a marijuana
production case involving personal use for medical purposes and
sharing for palliative purposes. The judge directed jurors to
convict, and told them that they were bound to do so. However, the
Supreme Court of Canada ruled that, even when the evidence is
overwhelming, the judge cannot direct a verdict of guilty.

In our world it is hard to contain information. Net-surfing jurors
will easily find their way to the Canadian website www.juror.ca,
which extols jury nullification and exhorts them to engage in it, or
they may find their way to a recent blog by James Stribopoulos, which
describes jury nullification as our justice system's "dirty little
secret." He writes that it is a shame that this is largely hidden
from the modern jury's view.

In the United States the jury's power or right to nullify has greater
and more widespread recognition. It appears in some state
constitutions, which state that the jury shall be the judges of the
law as well as the facts.

Recently the State of New Hampshire ("Live free or die") passed House
Bill 906 requiring the judge in all criminal proceedings to instruct
the jury on its power of nullification, and further requiring the
judge to allow the defendant or his counsel to explain this right of
nullification to the jury. The new law takes effect on Jan. 1, 2008.

Arguably standard jury charges and addresses that advise the jury
that they are not judges of the law run contrary to the history of
the common law and to the Charter of Rights.

Is freedom of speech violated when the accused and his counsel cannot
advise jurors of their power to nullify? Is the right to fundamental
justice violated when the jury is not apprised of this historical and
very real power? And, finally, how does the accused have the
constitutionally guaranteed benefit of trial by jury when jurors are
not informed of their powers?

Rosalind Conway is the immediate past president of the Defence
Counsel Association of Ottawa.