Jury deliberation not an easy process; law professor

“In this case, it appears no Indigenous person got on this jury,” said Luther. “It is of great concern that we continue to have these trials that involve Aboriginal victims and white accused. There have been several of these over the decades. That is a concern. It doesn’t seem fair.

“It’s been suggested we need to think carefully about this particular process,” he added. “Just because we’ve always done it this way – is this the right way to do it? It’s a concern we don’t have enough Aboriginal people on the jury.”

While the eligible potential jury members were drawn from a large geographical area – in what’s known as a jury pool – covering the region, ultimately the Crown and Defence legal teams have the final say in who will sit on the jury, in what’s known as a peremptory challenge process. The lawyers can refuse an individual for a jury without stating why, in 14 instances.

“It’s always been the tradition in Canada, lawyers don’t have to give a reason for not giving, for not wanting that person,” Luther said.

In the Stanley case, because the Defence didn’t select any potential juror members who were Indigenous, there was a question the jury doesn’t reflect a proportional representation of the population for the area, according to Luther.

Luther also mentioned when the victim is Indigenous there should also be someone on the jury who is Indigenous as well. He pointed to the Truth and Reconciliation Commission of Canada report findings focusing on these issues in the criminal justice system.

The jury’s role

Luther explains in a murder trial a jury will often need to consider more than one possible charge, depending on what the judge determines.

The judge is responsible for “instructing” the jury on the charge and potential lesser charges the jury will need to decide on – such as: guilty of second degree murder or perhaps manslaughter as a lesser charge, or acquittal.

“When one is charged with a greater offence the procedure is you are also charged with any other offence that is lesser and included,” said Luther.

The professor said in the Stanley case the Crown will need to prove to the jury that Stanley is guilty of the charge of murder if the jury wants to convict him of this charge.

“If the jury, at the end of the day, decides they are not convinced beyond a reasonable doubt that Mr. Stanley intended to kill, or that Mr. Stanley intended to cause bodily harm that he knew was likely to cause death, the jury will be instructed probably that they can’t convict him of murder, that they then have to turn and decide whether he is guilty of manslaughter (an unlawful act causing death),” said Luther.

The jury’s decision

Luther said all 12 members in the jury will need to agree unanimously on a certain charge, or acquittal for the case to proceed.

Otherwise, it is considered a hung jury if they can’t reach a decision of guilty or not guilty, and then there will have to be a new trial.

“The judge will do everything he can to persuade them not to be a hung jury,” Luther said.

The accused cannot appeal the decision of the jury, but he or she can appeal the instructions the judge gave the jury.

“It’s really difficult to ever convince the Court of Appeal they should overturn what the jury says,” said Luther.

The jury in the Gerald Stanley case will return Thursday at 10 a.m. to hear the final arguments from the Defence and Crown. They may possibly also receive direction from the judge that afternoon.

The allegations in the case have not been proven in court.

angela.brown@jpbg.ca

On Twitter: @battlefordsnow

angela.brown@jpbg.ca

On Twitter: @battlefordsnow

by battlefordsNOW

Jury deliberation not an easy process; law professor

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