Is the jury out?
Northern legalists say system not flawed

by P.J. Harston
Northern News Services

NNSL (NOV 18/96) - Canada's jury system is not in trouble despite recent comments to the contrary, say members of the North's legal community.

However, some say they're not surprised that a system that pre-dates the birth of this nation is coming under fire, yet again.

One former senior member of the North's legal community -- speaking not for attribution -- suggested that debates on the merits of the jury system have been going on since it was invented.

He also suggested that Northern juries not only work well, he takes his hat off to them for making difficult choices under often difficult and stress-filled times.

But a senior Ontario judge has taken the system to task over what he believes are flaws that may be leading to miscarriages of justice.

His recent comments have sparked the well-worn debate and have led federal Justice Minister Allan Rock to consult with senior justice officials about the system.

Rock said earlier this month he will be meeting with Justice Department officials to discuss Ontario Court of Appeals Justice David Doherty's concerns that miscarriages of justice may be happening because juries frequently misunderstand judges' instructions.

"I'm a strong believer in the jury system," Rock said. "But if there are problems that are demonstrated by the evidence, then we should come to grips with it."

As a judge and former trial lawyer, Doherty "clearly knows what he's talking about," he said.

The 47-year-old Doherty told a conference Friday that the Criminal Code should be amended so researchers can question juries to determine whether they correctly apply a judge's instructions in arriving at verdicts.

Numerous U.S. studies have found they do not. Anyone who argues that Canadian juries are doing their jobs is relying on faith, not fact, Doherty says. "These people are believers."

But Justice John Sopinka of the Supreme Court of Canada said that while juries may have trouble grasping "the finer nuances" of some legal instructions, appeal courts might be "too picky" about the standard of clarity needed.

"Generally speaking, I think they (juries) get the message from the trial judge," he said. "I was always a believer in the jury system."

Others agree.

Robert Gorin, president of the NWT Criminal Defence Lawyers Association said he's been in front of juries in many Northern communities.

And while Gorin, who has been practising law in the North for seven years, doesn't always agree with the verdict, he doesn't find fault with the system.

"I am not about to say I know better than the collective wisdom of 12 citizens. That would be ridiculous," said Gorin.

He explained that in a jury trial, 12 men and women are judges of fact and the sitting justice is the judge of the law.

"I believe in almost all cases that the judge is able to make the jury understand what the law is," said Gorin."

NWT Supreme Court Justice John Vertes said he believes that no system is perfect, but Canada's jury system -- and justice system in general -- is among the best.

"Generally speaking, I think that judges have confidence that jurors are able to carry out their responsibilities given that judges and lawyers carry out their responsibilities," he said.

However, the 46-year-old judge and former Northern lawyer said that doesn't mean he doesn't agree with Doherty's point on the need to study the jury process.

"Generally speaking, the judges in Canada are in favor of studies so as to gain insight into the dynamics of jury decision making," said Vertes.

He suggested that most judges would be in favor of anything that would help to simplify the procedures and instructions under which juries have to work, such as using plain language, and keeping trials to a reasonable length.

The North has developed a strong tradition of jury trials in spite of the many perceived drawbacks of carrying them out across a sparsely populated jurisdiction that embraces eight official languages across its 1.3 million square miles.

In a 1977 decision, the practice of the NWT Supreme Court was described this way by Justice J. Tallis:

"Traditionally the Supreme Court of the Northwest Territories has held jury trials throughout the Northwest Territories in many small settlements regardless of whether or not adequate courtroom facilities are available.

"This practice evolved from the position taken by the first Judge of the Territorial Court, Mr. Justice Sissons, who stated as a general rule that the proper place for a trial is the place where the offence was committed.

"In other words, every effort was made to ensure that justice was brought to all the communities in the Northwest Territories."

But perhaps Vertes said it best in a 1994 decision to dismiss a Crown application to change the venue of a jury trial set for Arctic Bay, a community on north-west Baffin Island, with a population of about 550.

"Many of the communities in the North are grappling with deep social and economic problems. One of the ways they are trying to come to grips with these problems is by development of community justice measures.

"In this way they can take on greater self-responsibility in addressing community problems," he said.

"In my opinion the holding of jury trials in (Arctic Bay and other Northern communities) is one of the best ways of creating a sense of trust and 'ownership' in the justice system."

(With files from CP)