Out of a sense of compassion or a feeling that a law is antiquated, jurors have been occasionally loathe to convict people who’ve committed crimes.
In the past, they paid dearly for it. In 1670, jurors were jailed and fined because they refused to convict William Penn for illegally preaching a Quaker sermon in England.
They stood their ground and the high court eventually freed them, declaring that jurors ought to be free to judge their peers as they see fit.
Penn, if you’ll recall from your history lessons, later sailed across the Atlantic to freedom and founded Pennsylvania.
More than 300 years later, jurors still to balance their respect for the justice system with their gut feelings about whether a particular law is fair.
Such was the case with the jury sitting in on the trial of Calgary marijuana crusader Grant Krieger, who uses pot to ease the symptoms of multiple sclerosis.
The case was in front of the Supreme Court of Canada Thursday on a rare but significant issue – whether a judge can order a jury to render a particular verdict. (The court reserved its decision.)
During Krieger’s 2003 trial on a charge of possession for the purpose of trafficking, he argued the defence of necessity.
In 1999, when police seized 29 pot plants from his home, Health Canada had a program to allow people to possess marijuana for medical use. But there was no legal way for sick people to actually get the pot.
As a member of a local Compassion Club, Krieger grew pot and provided it to others for medical purposes.
Legally, it was an open-and-shut case, since Krieger clearly broke the law. But morally, the jury members didn’t view him as a criminal. In the middle of deliberations, two of the jurors pleaded to be released from the trial.
“I don’t feel this man is a guilty man,” one juror told the Court of Queen’s Bench judge.
Added the other reluctant juror: “It’s not in my heart (to convict.)”
Justice Paul Chrumka refused their request to be excused and essentially ordered the jury to convict Krieger, which it did after almost 10 hours of deliberations.
Ironically, after all that, the judge only sentenced Krieger to a day in jail, and he never spent any time in custody.
Now, the Supreme Court justices will be knitting their brows over how much power a jury should wield.
Cases of jury nullification – jurors ignoring the letter of the law and refusing to convict, or judges directing a jury to convict – are unusual.
The repeat jury acquittals of Dr. Henry Morgentaler for performing illegal abortions in the 1970s is the most famous example.
Robert Latimer’s killing of his 12-year-old disabled daughter is another. Jurors recommended a one-year sentence but the Supreme Court upheld the mandatory minimum 10-year sentence for second-degree murder.
University of Alberta law professor Sanjeev Anand says he hopes the Supreme Court rejects the notion that judges should be able to order juries to convict.
“Jurors have always had the ability to ignore the judge, ignore the law and acquit,” he says. “Jury nullification serves as an important check on government power.”
Historically, juries have injected common sense into trials, says Anand. If they thought a prosecution was oppressive, they could acquit to send a message that it’s inappropriate to criminalize certain behaviour, he adds.
“To further eviscerate trial by jury by giving judges this kind of power over juries would be very unfortunate.”
It would be a huge step backwards to allow judges to order juries to convict. Juries are the last bastion against laws that are completely out of step with the times – such as the criminalization of pot.
Take away a jury’s role and you gut the justice system.