Jury Nullification: The Unicorn in the Justice System

13 October 2021 

Introduction

Unicorns as mystical creatures symbolize grace and healing. Although never actually seen, the fantasy of this white horse-like creature endures. Jury nullification is the unicorn of the justice system: obscure, undeniable, and magical. Nullification describes the phenomenon where a jury acquits an accused in the face of seemingly uncontroversial evidence of guilt. A rare occurrence that can deliver mercy and invite change.

Part one of this paper outlines the basic tenets of jury nullification; part two provides a brief historical foundation of its development; part three discusses the moral foundations for its occurrence; and part four suggests opportunities for its refinement through various controls.

PART ONE: An Overview

The criminal law relies on the presumption of innocence. In Canada, only those found guilty beyond a reasonable doubt as exercised through a fair process can be convicted of a crime. In popular parlance this can mean that “…it is better that ten guilty persons escape than that one innocent suffer”.[1] Although there may be a chance that someone committed a crime, they may only be found guilty in accordance with law. This standard is high. There are many procedural safeguards to guard against “wrongful” convictions. Jury nullification is one.

Only conviction requires proof beyond a reasonable doubt. Acquittal does not. A finding of not-guilty may indicate that the jury was unconvinced that the Crown established their case to the standard of criminal liability. It is not a finding of innocence.

Trial by jury is a constitutionally protected right and includes the possibility of nullification.[2] Indeed, as Benjamin Berger outlines, the judicial system jealously guards jury nullification through the inability of the judge to compel a verdict of “guilty” from the jury[3] and the Crown is precluded from appealing on the sole basis of an “unreasonable verdict”.[4]

Accused persons who are charged with a serious crime have the option of having a trial by jury[5] and unless the Crown consents, trial by jury is required in the case of murder.[6] Jury nullification permits this collection of peers to acquit the accused despite no reasonable doubt of their guilt. Even where the Crown has proven their case beyond a reasonable doubt, the jury may still find the accused not-guilty. It has been described as “the citizen’s ultimate protection against oppressive laws and the oppressive enforcement of the law”.[7] It is conceptualized as a tool that is used exceptionally where jurors acquit based on mercy over reason. While jurors have the power to nullify a verdict, they may not be encouraged or even informed about this possibility.

As Travis Hreno points out, “[j]ury nullification is fundamentally about the manner in which a jury arrives at its verdict”.[8] Hreno asserts that decisions formed through unsanctioned and unapproved deliberative processes are necessary if the function of a jury is to remain intact. Because a jury may not relay reasons for their decision, the verdict could be the result of conscientious deliberations just as much as from conscientious objections.[9] Where a choice is not possible, such as in the situation of a directed verdict, the matter must be withdrawn from jury consideration.[10]

Hreno argues that it is simply not possible to eliminate jury nullification because of the difficulties involved with identifying and avoiding its occurrence. Except in cases of a finding of criminally responsible because of mental disorder,[11] a jury renders a general verdict of either guilt or non-guilt based on the facts.[12]  Because jury nullification is fundamental to the general verdict, justification is not required.[13] If reasons were required as they are for a special verdict, the risk of them conforming with the pre-determined “whims of a particular judge is…the antithesis of a fair trial”.[14] Even where jury nullification can be identified, legal redress including its criminalization and the consequence of a mistrial is simply not a practical possibility given the substantial evidence that would be required.[15] 

Clearly, to maintain Charter scrutiny and remain true to the presumption of innocence, jury nullification is essential to the Canadian criminal justice system.

PART TWO: Historical Foundations

Role of Jury

Equity

The harshness of the common law has contributed to injustice. As a counter-balance to this, equity interjects. Historically, the notion of equity as fairness was fundamental to the exercise of criminal justice. As King James declared in 1616, “There is no Kingdome but hath a Court of Equitie”.[16] A higher justice, beyond the letter of the law, was recognized and practiced. Appeals could be made to the Chancellor as agent of the King to administer equity. Berger suggests that as a version of constitutional sovereignty through democratic polity, it is the jurors who now assume the power to overrule law in the name of justice.

In the opinion of the Law Reform Commission, “[w]hile in the vast majority of cases a general rule of law, founded upon proper policy, will lead to the equitable resolution of individual disputes, it might not do so in all cases. Since all factual situations cannot be foreseen in formulating general rules of law, invariably cases will arise in which a rigid application of the law will lead to an inequitable result … in serious cases it is the jury who must retain the ultimate responsibility for dispensing equity”.[17] Nullification provides for fulsome fairness.

Independence

Independence to decide is a right of the jury. Historically, a form of jury control included the punishment of jurors for false verdicts. Jurors who acquitted against a judge’s opinion could be fined or even jailed. This changed in 1670 with Bushel’s Case[18] when jurors nullified despite threats and imprisonment from the bench. Chief Justice Vaughan clarified that the judge is responsible for determining the law and the jury has the power to determine the facts. The jury is justified in their decision whether their verdict derives from honest deliberation or to spite the law.

Despite this decision, judges continued to wield their influence over juries and their verdicts by providing opinions about the evidence and the merits of the case, instructing juries about how to decide, and even correcting verdicts submitted by the jury.[19] Judges could also request special verdicts from juries for offences such as seditious libel. This limited the role of juries to determining the facts with liability decided by the judge. In 1792, juries were given the power to render a general verdict for this offence and the ability to force a special verdict discontinued shortly thereafter. Eventually, with the onset of lawyers, the adversarial process shifted the role of judges from that of inquisitorial corrector to one focused on preventing jury error through the law of evidence and jury instruction.[20]

Jury independence is key to trial fairness. This requires the jury to be unencumbered by coercion and bias and that their verdict be effective and sustained.[21] As fact-finders, the jury must be free to assess the evidence and decide without influence or constraint. For choice to be viable, jurors must have the ability to decide free from the sway of inadmissible evidence[22] and outside pressure. Deliberations are secret[23] and may not be retroactively questioned. Known as Lord Mansfield’s rule, this is meant to encourage full and frank deliberations and “protect(s) jurors from harassment, censure and reprisals”.[24]

Sovereign will as the “ultimate guardian of the just”[25]  lives on through the availability of nullification. Jurors must “swear to… a true verdict give”.[26]  Directing jurors how to vote negates their obligations under this promise and removes the right to decide independently. Influence from a judge about their decision can deprive the accused of their Charter right to a trial by jury and bring the administration of justice into disrepute.[27]

The Court is precluded from knowing the facts on which a jury finds: “A man cannot see by another’s eye, nor hear by another’s ear, nor more can a man conclude or infer the thing to be resolved by another’s understanding or reasoning; and though the verdict be right the jury give, yet they being not assured it is so from their own understanding, are forsworn, at least in foro conscientiae.”[28]

Jury verdicts are final. They may only be reconsidered on appeal. Once the verdict is delivered, the job of a juror functus officio and over. Jurors are precluded from revealing details of the deliberation process including the reasons forming the basis for their verdict.[29] Where a verdict can be overturned through state oversight, jury independence is compromised. Despite the mechanisms protecting juror independence including secret deliberations and not having to provide reasons,  a conviction or a finding of not criminally responsible on account of mental disorder may be set aside on the ground that it is unreasonable or cannot be supported by the evidence.[30] This of course assumes a ludicrous stretch of logic that the appellate court is capable of assessing the thought-processes of a juror in light of the evidence.

Impartial and Unbiased

Fairness requires that decisions are made by an impartial jury. Jurors must decide on the evidence as admitted without preconceived ideas or biases. This is difficult to control. Bias runs the spectrum from unconscious influence to active prejudice. It is pervasive and destructive.

It is important to note that this paper is not about wrongful convictions. It is about acquittals. Acquittals made through the exercise of mercy as well as through deep-seated intentional prejudice. Evaluation of justice depends on which side of the interest line you fall: when a farmer killed his disabled daughter to end her pain, the division lay between rights of the disabled and consideration of motive;[31] when a Doctor performed abortions despite the law, the division lay between women’s rights and those of the unborn;[32] when multiple murders of women by the same accused was determined to be lacking in planning and intention warranting conviction only on the lesser offence of second-degree murder rather than first, the division lay between white male power and the rights of marginalized women;[33] when a young Indigenous man was intentionally shot and killed by a white man, the division lay between white and not.[34] Some popularly considered to be warranted while others serve as a stark reminder of the vile power of hate.

To remain true to the main objective of criminal law, convicting only those who have been proven to have committed the crime beyond a reasonable doubt, the law must err on the side of caution in order to avoid a wrongful conviction. Although some guilty will go free, it is less likely for someone to be convicted who is not guilty. Although bias cannot be eliminated, mechanisms to control its insidious reach are discussed below.

PART 3: Moral Foundations

Reason vs Conscience

The debate around jury nullification primarily oscillates between reason and conscience. Reason focuses on the rule of law while the conscience camp offers opportunity for equitable flexibility.

The reasoned approach suggests that a judge is required to “guard against jury nullification” and “take steps to ensure that the jury will apply the law properly”.[35]  In the words of Lord Mansfield, “[i]t is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.”[36] Not encouraging or even informing the jury of this power is not conclusive evidence of prejudice to the accused.[37]

The presumption of innocence requires that the Crown prove their case beyond a reasonable doubt. Even where there is no reasonable doubt, jury nullification allows for the possibility to “serve a higher calling than law: justice”.[38] So, while “[j]uries are not entitled as a matter of right to refuse to apply the law… they do have the power to do so when their consciences permit of no other course”.[39] The will must be free to overtake reason for the sake of mercy.

Justice extends beyond reason and proportionality as defined within the rule of law. The administration of justice insists that not only justice prevail but that it appears to prevail. To extinguish the possibility of nullification would be to disregard the place of mercy. The justice system is run by people and people make mistakes. It is much more humane for the process of conviction to offer the option of mercy than for it to appear impervious to the reality of its own fallibility. Conscience must prevail over reason.

Law Reform

Law, as a function of society, is forever in flux. To keep pace with change, law must evolve and adapt. Substantive law is reconsidered to better reflect the times and procedural law progresses along a continuum of refinement. The phenomenon of jury nullification can influence both.

Democratic theory is built on the principle of active participation. Jury nullification has been recognized as a form of direct citizen law reform.[40] To be effective, law reform must be “responsive, equally accessible, and just”.[41] Examples of this include the abortion provision in the Criminal Code being struck after the refusal of two juries to convict Dr. Morgentaler on abortion charges (substantive law)[42] and Bill-75[43] introducing changes to the jury selection process after Gerald Stanley was acquitted by an all-white jury of the murder of Colten Boushie, a young Cree man (procedural law).[44]

As the Law Reform Commission acknowledges, “the jury disperses and decentralizes authority”.[45] This allows the jury to function as a form of citizen protection while shaping the law to community values.[46] As “a bulwark of democracy”[47] jurors represent their community as they reach “fair and courageous verdicts”.[48] Premised on the notion that a jury preserves freedom and protects community values, nullification must remain a viable option.[49] Community oversight, as the function of a jury, is simply not possible without the option to oppose oppressive law.

PART 4: Controls

As Sanjeev Anand observes, “the history of the English criminal trial jury reveals that it has not been a static, inflexible institution but one that has undergone significant and profound reforms over hundreds of years”.[50] “Prophylaxis substitutes for cure”[51] and jury control in this sense flourishes through protections against the possibility of abuse of nullification. This is incrementally achieved through jury control. Although jury nullification is possible, defiance of the law must be reserved for only those rare occasions warranting law reform. Although juries cannot be entirely controlled to be independent and impartial decision makers, controls can be implemented to prevent the flagrant use of nullification for racist ends.

Jury Selection

Jury selection impacts trial fairness and the right to an impartial jury. Kent Roach suggests, “[j]ury nullification may be the ultimate protection against harsh laws, but it remains an inherently dangerous, inarticulate, and lawless mechanism that should not be encouraged. Safeguards can be taken at the jury-selection stage to respond to the danger that jury nullification may be fuelled by discriminatory stereotypes as opposed to the actual evidence heard in the case”.[52]

There is a sense of alienation from the criminal justice system by certain overrepresented groups within its clutches. These same groups are underrepresented on juries. Of particular concern is the overrepresentation of Indigenous people in the corrections system. This is widely seen as a product of colonialism.[53] Even though Aboriginal people comprise less than 5% of the total Canadian population, they represent over 30% of those in federal custody.[54] Greater representativeness on the jury may help appease this anomaly while supporting the goal of self-determination in Call to Action 42 from the Truth and Reconciliation report.[55] Over the long-term, this will require sustained and meaningful engagement where trust is key.

There is much opportunity for improvement. Drawing from a more representative pool such as one based on health card data rather than property taxes and relieving barriers to participation such as literacy, poverty may also help.[56]  Other substantial supports suggested by Roach may include public education about the jury system, enhanced financial support, abolition of the prohibition on those who have been imprisoned for more than two years,[57] allowing permanent residents to serve on juries, allowing translation services for Indigenous language-speaking jurors, using volunteer jurors from Indigenous communities, holding local juries, offering the possibility for mixed juries,[58] and meaningful consultation with minority groups who are overrepresented in the criminal justice system.[59]

Chief Justice Dickson in the Morgentaler case was adamant against encouraging the use of jury nullification for fear of race-based acquittals.[60] Roach suggests that rather than rely on such an “inarticulate and suspicious act”,[61] the need to resort to nullification could be avoided entirely by inquiring into biases at the jury selection stage. Although questioning of the jury about racial bias has been available in Canada for almost thirty years,[62] the ability to ask open-ended questions can help to better identify potential biases.[63] For example, in the Peter Khill and Jon Styres case, [64] potential jurors were only questioned about whether they could be impartial given that the victim was aboriginal. Subsequently, the accused were acquitted of both murder and manslaughter in the face of overwhelming contradictory evidence.

The Stanley trial is another case where jury selection is suspected as the source for a racially motivated acquittal.[65] The fact that the Crown was able to compile an all-white jury through the use of five peremptory challenges sparked public outrage and prompted change. Jury reforms focusing on increasing the representation of overrepresented groups in the criminal justice system were subsequently added to Bill C-75[66] shortly thereafter. In force as law as of June 2019, judges are now responsible for determining whether jurors are impartial and have the power to stand aside jurors in the interests of justice. Jury nullification helped change the law. After the Stanley case and on the recommendations of the Manitoba Aboriginal Justice Inquiry,[67] challenges without cause are now resigned to Canadian history. The abolishment of peremptory challenges has been found to be constitutionally sound.[68]

It is difficult to believe that only “reasonable efforts” required by the Crown to produce a representative jury[69] are enough to address the gross miscarriages of justice in Canada. As Roach suggests, this requires not just control over the jury selection process, but must extend to substantive results to ensure that the ends are satisfied by the means. For this to happen, section 629 of the Criminal Code must be expanded to allow for challenges to be based on results-oriented substantive equality grounds.[70] Currently, the Crown may only challenge a jury for “partiality, fraud or willful misconduct”.[71] Expanding this to include grounds of jury underrepresentation could help to address this problem as a control on nullification.[72]

Jury Instruction

Doherty J. A. clarified that “the common law rule allows the trial judge to comment on the evidence provided it is made clear to the jury  that they are not bound by the judge’s views, that the judge’s opinions are not stronger than the facts warrant, and that the opinions are not overstated to the point where it is likely that the jury  will be overawed by them. By setting the limit on judicial comment at the point where the comments might impermissibly erode or threaten the fact finding and ultimate arbiter role of the jury, the common law rule fosters rather than impedes the values underlying s. 11(f) of the Charter”.[73]

The problem with this approach is that judges are replete with their own unconscious biases. They cannot know what they do not know. Racism is real. So real that in fact systemic discrimination should be considered “when making credibility assessments”[74] and in sentencing.[75] In the words of Tulloch J. A.,  “[t]he current moment of reckoning with respect to systemic racism in Canada is long overdue”.[76]  With this in mind, continuing efforts to diversify the bench[77] and prioritizing bias training for judges may help in the long term. More immediately, requiring specific instructions to juries that warn about the risks of reliance on stereotypes may help encourage jurors to focus on the evidence rather than allow their biases to decide.[78] Additionally, ensuring that jury instructions related to all aspects of the evidence and trial may contribute to verdicts based on the particular facts.[79]

Trial Conditions

Jurors are the quintessential common man. They are not expected to have any particular abilities to do their job such as impeccable attention to long, and oftentimes, tedious testimony; they do not possess enhanced skills to unpack complex and contradictory scientific evidence; and they do not have specialized training to decipher credibility. They are presumed to be of average intelligence with average capabilities to evaluate a wide variety of issues and deliberate effectively. A farcical fiction! Through time, trials have increased in duration, complexity, and scope. Functioning as a group capable of effective deliberation is a learned skill that does not happen by chance. Statistics suggest that the average Canadian falls short of basic literacy and numeracy skills[80] making them less likely to be capable of processing scientific information let alone grapple with its inconsistencies.[81] In line with the objectives of access to justice that incorporates the plain language doctrine, better efforts to present evidence at a level that can be realistically grasped by actual jurors must be prioritized.

Reduced Reliance

Justice is an imperfect journey. Nullification is just one example. To reduce reliance on this last-resort type of check, efficiency and reliability must be enhanced in all areas of the criminal process including the investigative, pre-trial, and trial stages.

Although as a society we aim to strive towards the elimination of systemic discrimination, it is unlikely that unconscious bias can or will be completely removed from the process. There is always risk of errors at any stage of the criminal process. Investigations can be flawed,[82] prosecutorial discretion influenced,[83] and trials can be subject to prejudicial influences in various ways including the assessment of witnesses, the admission of evidence, and the comments and instructions made by the judge.[84] As Don Worme suggests, “there is nothing so unequal as the equal treatment of unequals”.[85]

To reduce reliance on jury nullification, specific criteria that accounts for marginalized characteristics should be considered at each stage of the process. Examples may include bias training for those involved in all stages of the investigative process;[86] mandatory public reporting of police stops that include race-based data;[87] specific consideration of Indigenous status in the exercise of prosecutorial discretion similar to that imposed by the Gladue principle[88] on sentencing of an Aboriginal offender;[89] and sentencing discretion including the elimination of mandatory minimums as discussed below.

Sentencing

Motive is largely irrelevant to criminal liability. This can appear to be a harsh reality for those who do bad things for good reasons. Someone who kills out of a sense of love will be just as guilty of murder as someone who kills out of hate. The matter of Robert Latimer, a man who killed his disabled daughter out of mercy to save her from constant pain, is a case in point. In the face of overwhelming evidence of guilt and with the defence of necessity unavailable, the jury in his second trial returned a finding of guilt only after the judge assured them of their potential to provide “input” with respect to sentencing. Whether erring on the side of caution or compassion, the trial judge granted a constitutional exemption from the mandatory minimum sentence for second degree murder and sentenced him instead to a much reduced one-year imprisonment and one-year probation.[90] This was reversed on appeal. Latimer was required to serve the ten-year minimum sentence, a consequence the jury was likely considering. Juries have been shown to be capable of providing input into penalty in other areas of law such as civil damages. If juries in criminal trials were afforded the same broad scope under the auspice of their powers of equity, there may be less risk of nullification where the penalty is perceived to be disproportionate to the harm.

Full & Informed

As the Latimer Court reaffirmed, “[a]s a matter of logic and principle, the law cannot encourage jury nullification”.[91] Respectfully, there is a marked difference between encouragement and education.

The job of a jury is to decide on the facts of the case. For the most part, they do not have to trouble themselves with knowing the law. However, it is ludicrous to think ignorance is an acceptable aspect of any legitimate decision-making process. Not only are the jury kept in the dark about having the power to nullify, it has been found to be permissible to leave them ill-informed about the consequences of their verdict. Full and informed consent is a material component in many areas of law. Decisions built on faulty or incomplete information are void. Yet, in the context of a trial for a serious crime where the accused may be subject to liberty restraints, it is considered procedurally fair to decide without benefit of knowing the law.

In order to support their function as community protectors, jurors must be fully informed about all relevant aspects of the law including the possibility of nullification. To have a power without the means of accessing that power makes it moot. To satisfy the constitutional right of being tried by a jury, this must necessarily include the right to explicitly and comprehensively appreciate the option to acquit. 

Conclusion

Like the unicorn, we can never conclusively say when nullification has occurred. But, sometimes we just know. Guided by pervasive principles like the presumption of innocence, the high threshold for criminal liability, and aspirational goals like independence and impartiality, the jury serves as the social pulse. The jury as a system “of the people, by the people, and for the people”[92] can drive social change. Acting as the “safety valve”[93] in the justice system, jury nullification counters the risk of a wrongful conviction. This makes all the difference. The power to do right in the face of such wrong is the definition of a just system. Ensuring that this power is contained to be used exceptionally and without the influence of bias can be encouraged through a broad range of controls. Although much has been changed in the name of progress, much more can still be done. Justice must continue to compel the law forward towards even greater justice.

And “[n]ow … [we] will believe that there are unicorns”[94] with the potential to invite healing, change, and hope for better times.


[1] William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765-1770).

[2] R v Krieger, [2006] 2 SCR 501 [Krieger].

[3] Krieger, supra note 2.

[4] R v Biniaris, [2000] 1 SCR 381 at para 32.

[5] Section 11(f), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c11 [Charter].

[6] Criminal Code, RSC, 1985, c C-46, s 473(1) [Criminal Code].

[7] R v Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30 [Morgentaler].

[8] Travis Hreno, “Necessity and Jury Nullification” (2007) Can JL & Juris 351 – 378 at para 4 [Hreno].

[9] Hreno, supra note 8 at para 5.

[10] R v Rowbotham; R v Roblin, 1994 CanLII 93 (SCC), [1994] 2 SCR 463 at para 24.

[11] Criminal Code, supra note 6, s 672.34.

[12] R v Tuckey, Baynham and Walsh, 1985 CanLII 3509 (ONCA) at 110 citing R v Solomon and Triumph (1984), 6 Criminal Appeal Reports (UK) 120 at pp 126-27.

[13] Hreno, supra note 8 at para 30 citing Clay Conrad, “Jury Nullification: The Evolution of a Doctrine” (Durham, NC: Carolina Academic Press, 1998) at 28 [Conrad] and Alan Scheflin & Jon Van-Dyke, “Jury Nullification: Contours of the Controversy” (1980) 43:4 Law & Contemporary Prob 51 at 71.

[14] Hreno, supra note 8 at para 31 referencing Conrad, supra note 13 at 128 – 29.

[15] Hreno, supra note 8 at para 33.

[16] Benjamin L Berger, “The Abiding Presence of Conscience: Criminal Justice Against the Law and the Modern Constitutional Imagination” (2011) 61 Univ of Toronto LJ 579 at 590 [Berger] citing Johann P Sommerville, ed, King James VI and I: Political Writings (Cambridge, UK: Cambridge University Press, 1994) at 216.

[17] Berger, supra note 16 at 602 citing Law Reform Commission of Canada, The Jury in Criminal Trials, Working Paper 27 (Ottawa: Minister of Supply and Services Canada, 1980) at 8 – 9.

[18] (1670), 124 ER 1006 (KB).

[19] Lisa Dufraimont, “Evidence Law and the Jury: A Reassessment” (2008) 53 McGill LJ 199 – 242 at para 36.

[20] Sanjeev Anand, “The Origins, Early History and Evolution of the English Criminal Trial Jury” (2005) 43 Alta L Rev 407 – 432 at para 71 [Anand].

[21] Hreno, supra note 8 at 47.

[22] R v Pan; R v Sawyer, 2001 SCC 42, [2001] 2 SCR 344 at para 80 [Pan].

[23] Criminal Code, supra note 6, s 649.

[24] Pan, supra note 22 at para 52.

[25] Berger, supra note 16 at 615.

[26] Peter Bowal, “I swear to – a true verdict give” (2000) 24.5 LawNow 27 – 30 at 27.

[27] Krieger, supra note 2.

[28] Bushel’s Case, 6 Howell’s State Trials 999 (1671) at 1012, Lord Chief Justice Vaughan.

[29] Pan, supra note 22 at para 77.

[30] Criminal Code, supra note 6, s 686(1)(a)(i).

[31] R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3 at 70 [Latimer 2001].

[32] Morgentaler, supra note 7.

[33] R v Picton, 1991 CanLII 7953 (SKCA).

[34] R v Stanley, 2018 SKQB 27 (CanLII) [Stanley].

[35] Latimer 2001, supra note 31 at 70.

[36] R v Shipley (1784), 99 ER 774 at 824.

[37] Latimer 2001, supra note 31 at 70.

[38] Berger, supra note 16 at 602 citing Paul Butler, “Racially Based Jury Nullification: Black Power in the Criminal Justice System” (1995) 105 Yale LJ 677 at 723.

[39] Krieger, supra note 2 at para 27.

[40] Roderick A MacDonald, “Special Issue: Symposium in Honour of John McCamus, Teaching and Scholarship Law Reform for Dummies (3rd Edition)” (2014) 51 Osgoode Hall LJ 859-888 at para 42 [MacDonald].

[41] MacDonald, supra note 40 at para 57.

[42] Morgentaler, supra note 7.

[43] Bill-75: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, SC 2019, c 25[Bill-75].

[44] Stanley, supra note 34.

[45] Law Reform Commission of Canada, The Jury in Criminal Trials Working Paper No. 27 (1980) at 17.

[46] Hreno, supra note 8 at para 57.

[47] R v G (R M), 110 CCC 26 (SCC, 1996) at para 15 [G(RM)].

[48] G(R M), supra note 47 at para 13.

[49] Hreno, supra note 8 at para 58.

[50] Anand, supra note 20 at para 4.

[51] Lisa Dufraimont, “Evidence Law and the Jury: A Reassessment” (2008) 53 McGill LJ 199-242 at para 37 citing John H. Langbein, “Historical Foundations of the Law of Evidence: A View from the Ryder Sources” (1996) 96 Colum L Rev 1168 at 1195.

[52] Kent Roach, “Crime and Punishment in the Latimer Case” (2001) 64 Sask L Rev 469 – 490 at para 15.

[53] Kent Roach, “Juries, Miscarriages of Justice and the Bill C-75 Reforms” (2020) 98 Can Bar Rev 315-357 at para 1 [Roach 2020] referencing Ontario, Ministry of the Attorney General, First Nations Representation on Ontario Juries (Toronto: Ministry of the Attorney General, 2013) (The Honourable Frank Iacobucci) at 26.

[54] Office of the Correctional Investigator, “Indigenous People in Federal Custody Surpasses 30% Correctional Investigator Issues Statement and Challenge” (21 Jan 2020) online: <https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx>.

[55] Truth and Reconciliation Commission of Canada: Calls to Action (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at no 42, online: <trc.ca/assets/pdf/Cal ls_to_Action_English2.pdf> [perma.cc/2BCN-VXVX].

[56] Roach 2020, supra note 53 at paras 7 – 8.

[57] Criminal Code, supra note 6, s 638(1)(c).

[58] See generally The Coroner’s Act, 1999, SS 1999, c C-38, s 29(3).

[59] Roach 2020, supra note 53 at section 2.

[60] Morgentaler, supra note 7 at para 77.

[61] Roach 2020, supra note 53 at para 13.

[62] R v Parks, (1993) 84 CCC (3d) 353 (ONCA); R v Williams, [1998] 1 SCR 1128, 159 DLR (4th) 493 at 3.

[63] Roach 2020, supra note 53 at para 12 referencing Regina Schuller, Veronica Kazoleas & Kerry Kawakami, “The Impact of Prejudice Screening Procedures on Racial Bias in the Courtroom” (2009) 33 Law & Hum Behav 320.

[64] R v Khill, 2020 ONCA 151 (CanLII).

[65] Roach 2020, supra note 53 at para 2.

[66] Bill-75, supra note 43.

[67] Manitoba Aboriginal Justice Inquiry, The Justice System and Aboriginal People (Winnipeg: Queens Printer, 1991) at 385.

[68] R v Chouhan, 2020 ONCA 40.

[69] R v Kokopenance, 2015 SCC 28 at para 50, Moldaver J.

[70] Roach 2020, supra note 53 at para 9.

[71] Criminal Code, supra note 6, s 629.

[72] Roach 2020, supra note 53 at para 28 citing Kent Roach, “Brief to the House of Commons Justice and Human Rights Committee” (2018).

[73] R v Lawes, [2006] J No 720, 80 OR (3d) 192 (ONCA) at para 37.

[74] R v Theriault, 2021 ONCA 517 (CanLII) at 146 [Theriault].

[75] Theriault, supra note 73 at para 216.

[76] Theriault, supra note 73 at para 212.

[77] Office of the Commissioner for Federal Judicial Affairs Canada, “Statistics regarding Judicial Applicants and Appointees: October 29, 2019 – October 28, 2020” (only 3.3% of judicial candidates appointed to the bench during this time self-identified as Indigenous) online: < https://www.fja.gc.ca/appointments-nominations/StatisticsCandidate-StatistiquesCandidat-2020-eng.html >.

[78] R v Barton, 2017 ABCA 216 at para 162.

[79] See Emma Cunliffe, “The Magic Gun: Settler Legality, Forensic Science, and the Stanley Trial” (2020) 98 Can Bar Rev 270 – 314 at para 51 (how unclear jury instructions about the fault element may have contributed to an acquittal in the Stanley case).

[80] Statistics Canada, “Skills in Canada: First Results from the Programme for the International Assessment of Adult Competencies (PIAAC)” (2013) Minister of Industry online: <https://www150.statcan.gc.ca/n1/pub/89-555-x/89-555-x2013001-eng.pdf>.

[81] See Cunliffe, supra note 79 (how faulty forensic evidence and confusion about reliability and admissibility of evidence may have impacted the defence of hang fire).

[82] See generally Cunliffe, supra note 79.

[83] Lance N Long & Ted Hamilton, “Case Comment – Washington v. Brockway: One Small Step Closer to Climate Necessity” (2017) 13:1 JSDLP 151 – 179 at para 16 referencing James Vorenberg, “Decent Restraint of Prosecutorial Power” (1981) 94 Harv L Rev 1521 (explaining the extent and nature of prosecutorial discretion).

[84] See Cunliffe, supra note 79.

[85] Roach 2020, supra note 53 at para 55 citing Don Worme, “First Nations Perspective on Self-Government” in Gosse, Youngblood Henderson and Carter, eds, Continuing Poundmaker’s and Riel’s Quest (Saskatoon: Purich Press, 1994).

[86] Cunliffe, supra note 79.

[87] Ontario Human Rights Commission, “Under Suspicion: Research and consultation report on racial profiling in Ontario” (2017) online: < http://www3.ohrc.on.ca/sites/default/files/Under%20suspicion_research%20and%20consultation%20report%20on%20racial%20profiling%20in%20Ontario_2017.pdf>.

[88] R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688 [Gladue].

[89] Criminal Code, supra note 6, s 718.2(e).

[90] R v Latimer, 1997 CanLII 11316 (SKQB).

[91] Latimer 2001, supra note 31 at para 68.

[92] Abraham Lincoln, “The Gettysburg Address” 19 Nov 1863.

[93] People v Gray, 150 Misc (2d), 852 at 866 (NY City Crim Ct 1991) at 866.

[94] William Shakespeare. The Tempest 3.1.21 (Edited from its original “Now I will believe that there are unicorns.”).