Within hours of the verdict in the Gerald Stanley trial, Minister of Justice Jody Wilson-Raybould sent a tweet in which she stated: “As a country we can and must do better – I am committed to working everyday to ensure justice for all Canadians.” Remarks by the Prime Minister were also understood by many to have taken issue with the verdict.
Both were widely criticized. The Canadian Council of Criminal Defence Lawyers sent a letter expressing “shock” at the comments, describing them as “unprecedented, inappropriate and quite frankly dangerous”. Other lawyers also condemned them (here and here). Former Justice Minister Peter MacKay described them as “inappropriate”, and several Conservative Members of Parliament have warned against “political interference” with the criminal process. John Ibbitson, writing in the Globe and Mail, found the remarks “disturbing”. An Angus Reid poll also suggests that a significant number of Canadians regarded the conduct of the Prime Minister and Minister of Justice as inappropriate, even if they agreed with the broad sentiments expressed.
One could, of course, argue that neither the Minister of Justice nor the Prime Minister was actually attacking the Stanley verdict. They themselves explained away the comments by suggesting that they were really talking about broader systemic issues in the criminal justice system. Without passing judgment on their sincerity, though, the very fact that they thought it necessary to ‘clarify’ their remarks is telling. It suggests some acceptance on their part that the government should not publicly criticize jury verdicts.
There are good reasons to take this view. At a fundamental level, it strikes me as deeply problematic for our elected representatives to take pot-shots at jury verdicts — wafting accusations of racism (at worst) or incompetence (at best) — when it is impossible for the jurors themselves to respond. It is a criminal offence for jurors to discuss the reasoning in which they engaged in the course of arriving at a verdict. (There are narrow exceptions, but none that apply here.) For government ministers to score political points by attacking the judgment of its own citizens, when they are prohibited by law from explaining themselves, strikes me as a par excellence example of ‘punching down’.
But there are deeper issues. Any suggestion that jurors should apply something other than their own judgment on the factual issues at trial, in light of the evidence and the trial judge’s instructions, compromises the integrity of the criminal justice system. They have heard the evidence — not politicians, academics and pundits — and (unsurprisingly) they may have a better appreciation of the actual dispute that they are responsible for resolving. The idea that jurors should defer in any way to the opinions of onlookers who had no opportunity to assess the witnesses, and who may assume that the trial will turn on altogether different legal or factual claims, makes nonsense of the entire process.
That is, to a large extent, precisely what happened in the Gerald Stanley case. From the very beginning, it was assumed that the case would turn on claims that the defendant shot the victim in defence of his property. That, however, did not turn out to be the dispute that the jury was ultimately called upon to resolve. Instead, it was asked to decide whether the fatal shot was the result of a ‘hangfire’ that occurred after the defendant checked his gun to ensure it was unloaded. Had the jury based its verdict on opinions circulating through the Twitterverse, it would effectively have decided a factual question that was not in issue at trial.
In making these observations, my point certainly isn’t that the Stanley jury decided the case properly. The hangfire evidence was weak. One could take issue with aspects of the jury charge. Indeed, there may have been legal errors warranting an appeal. But a jury has to decide the case it heard, and not the case that the rest of us might wish it heard. To do their job properly, jurors must deliberate without fear that they will be pilloried by public figures if they reach the ‘wrong’ conclusion.
Naturally, people will talk, and we cannot expect jury verdicts to be free from any and all public criticism. But ministers of government are expected to respect the separation of powers; to respect the fact that it falls to courts, and not elected officials, to adjudicate disputes. Sending a message to prospective jurors that, in the future, their verdicts will be assessed against an official view of what happened — depending on which party is in power and how much attention the case in question receives — meddles in the trial process. As Aaron Paquette wisely observed, “judicial, legislative and executive powers … are parallel systems that should, as far as possible, stay in their lanes.”
To some extent, separation-of-power concerns were articulated by those who expressed fears that the Minister of Justice’s comments would affect what the Court of Appeal would do in the event of an appeal. That was an overblown concern under the circumstances. The decision to launch an appeal fell to the Saskatchewan Attorney General, and nothing that the federal Minister of Justice said was so egregious that it would have necessitated a remedy for the defendant. My point is not that the remarks by the Prime Minister or Minister of Justice prejudiced Gerald Stanley’s case, but that it has a more diffuse and corrosive impact on jury trials generally — that, if tolerated, it would produce a kind of “constitutional rot”.
None of this precludes politicians from expressing support for grieving families, or vigorously arguing for procedural or substantive reforms to the criminal law. They may even point to particular cases by way of illustrating why a proposed reform is urgently needed. It only means that, when they speak in the aftermath of a verdict in a criminal trial, they must speak with a measure of care.
One could, for example, say that the Stanley trial (arguably) illustrates the need to abolish peremptory challenges, given the effect that their use had upon the public’s perception of the trial. Making such a claim in no way suggests that the jury that was actually empanelled acted on the basis of racist motives, caprice, or incompetence. Likewise, one could argue that the Stanley case illustrates the need for special rules governing the admissibility of hangfire evidence, without claiming that the jury acted inappropriately by relying on the evidence before it. I am not arguing for either reform here; only observing that referencing the Stanley case by way of making specific suggestions for procedural reforms does not imply that the jury deserves criticism for doing its duty as best it could, given the evidence it did hear and the procedure that was followed.
The Stanley case has inspired a great deal of reflection on the failings of the criminal justice system. That is all to the good. But juries, no less than judges, require a degree of independence from the political arena, to ensure that they can carry out their role as fact-finders. The remarks by the Minister of Justice and the Prime Minister were unusual. They should remain so.
Michael Plaxton is a Professor of Law at the University of Saskatchewan. He is the author of Implied Consent and Sexual Assault (McGill-Queen's, 2015) and Sovereignty, Restraint, and Guidance: Canadian Criminal Law in the 21st Century (Irwin, forthcoming). Follow him on Twitter: @MichaelPlaxton