Blue Line

Features Back of the Book
Time to rethink the jury system


May 4, 2021
By Morley Lymburner

Topics

Exceptional times require exceptional changes. One such change should be the elimination of jury trials under exceptional circumstances.

Years ago, a ruthless drug lord was convicted of the cold-blooded murder of six people in an apartment in Surrey, B.C. Huge capital expenses for his trial included the construction of a courtroom to assist with security. Similarly, high profile trials of organized criminals in Quebec required the construction of entire buildings. Even after conviction, however, the bricks and mortar cannot provide sufficient reassurance to jurists who must return to their homes.

Lawmakers must remember that the reach of these organizations go far beyond that of the individual incarcerated. Arguments in favour of the jury system point out that juries can find someone not guilty by virtue of bad law, even if they agree the person violated the law. An example of this doctrine was is the repeated not guilty verdicts in the Morgentaler trials. Morgentaler was tried three times in Montreal for defying the abortion law. Each jury determined the law did not fit when stacked against a woman’s right to determine what happens to her own body. The bad law doctrine, however, is not the issue in trying members of organized crime groups or terrorists.

In this day of mass media attention and interpersonal connectivity, exactly how easy is it to find an untainted jurist?

Advertisment

The legal system has become comfortable with the jury system and changing it would challenge many lawyers who have grown accustomed to presenting emotion-based defences, which taint facts or trivialize procedural mishaps, benefiting the accused. In short, the jury system is their bread and butter, and the preservation of the system is paramount. Ensuring that a sizeable number of lawyers populate political positions does help guarantee its secure future.

It’s time new laws were introduced to strip away jury trials under certain circumstances. Cases in which jurors, judges and witnesses could be exposed to a high level of anxiety or danger would include those accused of international, domestic or transnational terrorism. Other instances include crimes so complex and wide-ranging that the average juror would have a great deal of difficulty understanding the evidence, or in cases where the crimes are so horrendous it would be impossible to form an unbiased jury. In these cases, the trial venue must be moved to a jurisdiction where an untainted jury could be found. In this day of mass media attention and interpersonal connectivity, exactly how easy is it to find an untainted jurist?

There are no greater terrorists in contemporary society than organized criminal gangs. Their entire existence relies heavily on intimidating average citizens and authority figures alike. There is no way a jury should be put under the stress necessary to come to a verdict in a mega-trial of terrorists or gang members. The ruthless individuals who head these organizations possess almost unlimited resources to seek revenge. Their unseen (and untaxed) financial resources, in many cases, would exceed the GDP of many small to mid-size countries, let alone the judicial system hearing their case.

It’s time some aspiring politicians pick up the cause. At a preliminary hearing, the Crown should be permitted to apply to have a trial by judge(s) alone. The Italian justice system found that it is far easier to protect one judge for the rest of his/her life than thousands of average citizens plucked from a jury pool. It’s also easier to get psychological help for one judge than for thousands of jurors.

In 1215, when the Magna Carta first granted trial by jury, most people spent their entire life in one village. It made the jury trial process manageable and the middle class felt secure. Today’s society is much more complex. We are much more mobile, far more communicative and, of course, far deadlier than at any other time in history so, how can we assure that jury trials are free from intimidation and that jurors are not otherwise traumatized?

Jury trials can still work when dealing with individual criminals. The organizations that come part and parcel with some individual criminals, however, are far more problematic than the pawns they sacrifice. It is the organization that is the root of all fears. Long after an individual is squeezed between the pipes, the organization can busy itself by “taking care of business”. If they don’t hesitate to kill correctional officers on the street, they won’t hesitate to intimidate or eliminate a stock broker, store merchant, homemaker…or maybe even a cop or two.

This issue is deserving of political intervention. Society can no longer afford the
luxury of juries in complex terrorist or trauma trial situations. It is time to rethink the entire process, get back to basics and really think about how much we are willing to sacrifice to prop up an almost 800-year-old legal tradition.


Morley Lymburner, M.S.M., is the former creator and publisher of Blue Line magazine.