A jury of peers isn’t a bug, it’s a feature

EDMONTON • “Justice for Colten.” When Gerald Stanley was charged with murder for having mortally wounded 22-year-old Colten Boushie on his farm near Biggar, Sask., this became a popular slogan among protesters: it is no less so now, a few days after Stanley was acquitted by a jury of his peers.

I use that old-fashioned phrase with its overtones of British social class intentionally, because it is an important factor in the explosion of outrage and sadness that has followed Stanley’s legal exculpation. This is the skeleton of English common law leaping out of the skin of Canadian justice and making a hell of a racket. There can be little doubt that Stanley’s lawyers were able to arrange for a jury, not only of social equals, but of individuals situated pretty similar to him economically. And, I suppose, politically. And, for sure, ethnically.

The Stanley jury was drawn from among more or less local people in a place where there are few cities, and no big ones. The jury pool must have contained a lot of farmers — or people pottering around on acreages, which amounts to the same thing. Stanley’s defence surely did its best to make sure they were dominant on the jury itself. (Disclosure: the pool included one of my innumerable uncles. He wasn’t called, but he is a white farmer from northwest Saskatchewan whose general way of life is about like what Stanley’s seems to have been.)

This would unquestionably have worked to Stanley’s advantage. And that is pretty much the point. It is not some unpleasant sideeffect of the system, but a feature of its design. If a person is to be tried for a crime, he is to have some opportunity not to be tried by 12 sociology professors, or by 12 adherents of the ruling political party, or by 12 cousins of the richest man in town. To have farmers tried mostly by other farmers would, honestly, be a decent summary of the whole concept.

There is another feature of juries that is presenting a problem in the face of what most everyone seems to agree is a bad, wrong, lamentable verdict: juries can do just about whatever they like without much fear of revision or reprisal. The Crown can appeal a criminal jury verdict, but for the most part its hope lies in demonstrating some error in the judge’s instructions.

It is very hard for an appeal judge to second-guess a jury verdict and simply demand a do-over, because if it weren’t hard, well, what would be the point of the jury? If juries are to be regarded as a mere employment program, they have to be the crappiest ever devised. Juries are called upon to exercise a special power largely independent of the state, even in its judicial aspect.

Maybe there is no point in persisting with the traditional jury as an institution. The defence’s right to a limited number of peremptory challenges to jurors works out well for defendants who are in some sense in the social majority. (I believe the Criminal Code specifies up to 14 challenges in a trial for second-degree murder, but no one seems to be too sure how many were actually used in the Stanley trial.)

But prosecutors have the same right, and do we think they make no use of it? Do we think that, in 99 out of 100 trials, they do not do their best to engineer a jury that will feel well disposed toward the police, and less so toward accused criminals?

This trial was the 100th one, but that is just it: most criminal defendants are not people who have resisted a home invasion incompetently with a firearm. This is a circumstance that arises, what, once every five years in the whole of the Dominion? Once in every 10? Any reform we make to the criminal justice system because we dislike the outcome of an unusual case is likely to be horrible.

And it is sure to be most horrible for those who are most likely to be tried for a crime. Really now: is the most pressing problem with our criminal justice system that it is too hard to throw poor people in jail? That cops and prosecutors are outgunned by the devious, racist criminal defence bar?

For protesters who were close to the Boushie family, “Justice for Colten” is practically synonymous with a particular verdict. Justice for Colten equals Gerald Stanley going to jail, and he didn’t. I can imagine feeling anger in their place. And I understand why they do not feel that “justice” would mean “a procedurally fair trial for the person whose actions caused Colten’s death.”

But I doubt whether we can make law on any other basis. If a bad outcome in a difficult prosecution means disposing of criminal jury trials, we can dispense with the trials along with the juries. The Charter of Rights promises “the benefit of trial by jury” explicitly for criminal offences carrying serious penalties; the newly shocking idea that it is a “benefit” is there in black and white. The creators of the Charter must have had reasons for being so devoted to this tradition, but I suppose they lived so long ago that we cannot possibly understand their motives.