COVER

JUDICIAL FALLOUT

Do jurors get get enough information to reach the best verdicts?

RAE CORELLI November 17 1997
COVER

JUDICIAL FALLOUT

Do jurors get get enough information to reach the best verdicts?

RAE CORELLI November 17 1997

JUDICIAL FALLOUT

COVER

RAE CORELLI

Do jurors get get enough information to reach the best verdicts?

Like earthquakes, major criminal trials create aftershocks—emotionally charged and usually shortlived. But in some headline cases, the consequences ignite a durable debate among judges, lawyers and politicians about the law itself. Abortionist Henry Morgentaler’s marathon battles against the state during the 1980s—when four consecutive juries refused to convict him—are one example. The manslaughter conviction in 1994 of Karla Homolka, wife and accomplice of schoolgirl killer Paul Bernardo, is another. And Saskatchewan farmer Robert Latimer’s conviction last week for the second-degree murder of his severely disabled daughter—he maintained he did it out of compassion—promises to be yet another. Homolka was sentenced to 12 years and is already eligible for parole; Latimer faces life imprisonment and would not be eligible for at least 10 years. “All sorts of people who commit terrible crimes will serve less time than Latimer’s sentence,” says University of Manitoba ethicist Arthur Schafer.

Latimer’s trial in Battleford, Sask., has revived two long-standing issues. One arises from a section of the Criminal Code that gives judges the power to decide how many years someone convicted of second-degree murder must serve before becoming eligible for parole. The minimum is 10 years; the maximum, 25. This week, defence lawyer Mark Brayford will argue before trial Judge Ted Noble that the section contravenes the Charter of Rights and Freedoms protection against “any cruel or unusual treatment or punishment.” It is an argument that Brayford has lost before.

“Our position is that when Parliament passed that section,

when they decided on such a severe penalty, they were thinking of murdering, evil cutthroats who bury little kids in shallow graves,” says Brayford. “By preventing the judge from exhibiting any compassion, Parliament just didn’t envisage that seconddegree murder charges would ever be laid against someone like Latimer.” At the same time, Brayford says, the Charter guarantees that if any of its rights or freedoms are denied or compromised, the defendant can ask a court to redress his grievance. Brayford is being opposed at the hearing by Crown counsel Eric Neufeld, who prosecuted Latimer, and Graeme Mitchell, head of the Saskatchewan justice department’s constitutional department.

The severity of the penalty for second-degree (meaning deliberate but not necessarily premeditated) murder has already stirred discussion of alternatives. Justice Minister Anne McLellan said she

will consider asking Parliament to amend the code to allow more lenient sentences in some instances. University of Toronto law professor Bernard Dickens says the Latimer case might be grounds for creating a new offence of third-degree murder. If Latimer’s case ever got there, says Dickens, the Supreme Court might rule that the existing minimum sen-

tence for second-degree murder amounted to cruel and unusual punishment. “The court,” he says, “might suspend the penalty to give the legislature time to come up with something such as third-

degree murder.” And University of British Columbia philosophy professor Earl Winkler says that mercy “should be an allowable defence in homicide cases.”

The drama surrounding the final day of Latimer’s trial may have played a role in the push for reform. Before reaching their verdict, the jurors asked Noble what the penalty was for second-degree murder and whether they were entitled to suggest what that penalty should be if they voted to convict. He declined to answer, telling them their responsibility was to weigh the facts of the case, not the penalty. Four hours later, they returned with a guilty verdict. When Noble then told the court that Latimer must be sentenced to life imprisonment with no possibility of parole for at least 10 years, four of the jurors gasped and two wept.

The jury retired again and, despite Noble’s directions, returned to recommend that Latimer be eligible for parole after just one year. The judge could bear that recommendation in mind when he considers Brayford’s application this week.

And that is the second legal issue to emerge from Latimer’s trial—the rights of jurors to be informed of the punishment at stake before considering their verdict. “It has been a long-standing unwritten law that there can be no comment on the penalty in front of a jury,” says Brayford. “I asked the judge to tell « them this time because they 5 wanted to know, but he said if ^ he did, an appeal would be inis evitable, and he’s probably ^ right. He said he would just I tell them the penalty was £ none of their business. My

point is that we trust juries to make the most important decisions in our country, and yet we won’t trust them to do it unless we put a bag over their heads.”

There is no clear consensus on that issue among leading criminal lawyers. In Halifax, Joel Pink says that while the Criminal Code is silent on the question, judges over the years have refused to tell juries the penalty because their job is to consider the facts of the case, and they must apply the facts to the law. The only exception, Pink says, has to do with mental disorder when, some courts have ruled, “the judge is allowed to tell the jury that if they find the defendant not criminally responsible, then he will not walk out of the courtroom but will be sent to a hospital for treatment.”

Clayton Ruby of Toronto says he is not sure, “strictly speaking, that juries are entitled to know the penalty. They’re often told by the

judge that the matter of sentence is not up to them and that’s true. I never tell a jury because I think, by and large, judges would jump on you for doing it. But it’s not written in stone as far as I’m concerned.” Says John Bascom of Calgary: “The idea is that the penalty shouldn’t be relevant to the jury’s deliberations,” says Bascom. “In a lot of cases you try to get that information before a jury but you have to be very careful to walk that fine line.” In any event, Bascom says, he was surprised that the jury did not understand the consequences of finding Latimer guilty. “I thought it was common knowledge that people convicted of murder get life imprisonment,” he says.

In spite of the rule, defence lawyers have not lacked ingenuity in trying to circumvent it. In murder cases, says Edward Greenspan of Toronto, lawyers will occasionally make suggestive comments to juries “like, you are trying the most serious offence in our law.” In drug cases, Greenspan says, there is a minimum seven-year sentence for importing narcotics. Lawyers could get that information across to the jury by putting their clients in the witness box to “say something like, There’s no way I’d do this because I knew there was a sevenyear minimum sentence.’ ”

The theory behind withholding sentencing information, says Greenspan, is that “you don’t want to create among the jurors an irrational compassion for an accused so that they acquit him, not because of the law but because of what they felt was an overly harsh penalty. But every judge who tries a case knows the penalty so why

shouldn’t the jury? If the judge knows in a judge-alone trial, why shouldn’t the jury know in a jury trial? What the hell’s the harm?”

In fact, juries have been known to defy the judge and find out what the criminal penalties are on their own. Brayford tells of a Saskatchewan colleague who was sitting in his office at lunchtime when a client called. “The client asked what the penalty was for manslaughter and the lawyer replied that in Saskatchewan the typical penalty was three to five years,” says Brayford. “The client thanked him and hung up. The lawyer later discovered that the client was on a jury that had been deliberating on a murder case in which they were empowered to consider manslaughter. The juror had pretended to go to the washroom but instead used a pay phone at a restaurant to call his lawyer. The juror went back and told the others, and they decided that what the defendant had done didn’t even warrant a conviction for manslaughter so they acquitted him.”

Brayford says a shift has been developing in the United States in the direction of judges telling jurors that if they believe the marriage of the law and the facts would result in injustice, then they can choose to ignore the law.

“I really believe that we should have that type of judicial instruction in Canada,” he says. “If juries are supposed to protect us from unfair laws or stupid laws that get passed either deliberately or negligently by unthinking politicians, then why the hell can’t we tell the jury that that’s their responsibility? Likewise, why can’t we tell them what the penalty is? To assume that juries will misuse information to pervert the course of justice is an idea that ought to be revisited.” As the heat of emotion surrounding Robert Latimer’s tortuous fight subsides, the justice system may have to review several issues—including the role and responsibilities of juries. □