There appears to be confusion about the role of the jury in the administration of justice in Canada, and also with regard to the December 1984 jury decision in the Morgentaler case in Ontario.

A recent article on the Opinion page of the Halifax Chronicle-Herald, by freelance writer, William C. Heine, is a case in point. Mr. Heine implies that it is not only appropriate, but, in fact, the right of a jury to reach a decision based not on the law but on the personal beliefs and values of the jury. This is not an accurate summary of the role of the jury in Canada.

The jury system had its inception at the time of Henry II in the twelfth century. Today the jury’s responsibility is to render a verdict based solely on the law and the evidence before it. It is the jury’s duty to determine the facts and then apply the law, as explained by the judge, to those facts. Any doubt on this point was removed by the Ontario Court of Appeal in its October 1 decision on the Morgentaler case.

Morgentaler’s defence counsel, Morris Manning, had encouraged the jury to proceed on the basis that it had the right to disregard the instructions of the trial judge as to the law, stating the jury could change the law and was a proper tribunal to do so. It also told the jury that it had the right to make its decision on its own perception of the social desirability of the present abortion law. In addition, Mr. Manning encouraged the jury to “send a message to politicians” on the alleged inadequacy of the present abortion law.

The Ontario Court of Appeal pointed out that Manning’s statements to the jury were a serious misstatement of the law. Indeed they were of such gravity as to place the whole trial in jeopardy.

The Appeal Court judges wrote that:

“The defence submission was a direct attack on the role and authority of the trial judge and a serious misstatement to the jury as to its duty and right in carrying out its oath.”

It went on to say that: “The jury has no right not to apply the law that the trial judge has instructed them to apply. Or, put another way, the jury has no right to do what they like according to their view of the law or what they think the law should be.”

The judgment concluded: “If it were otherwise, it would seriously weaken the system which our community relies upon for a true verdict…”

In short, the Ontario Court of Appeal made it abundantly clear that a jury cannot nullify a law passed by Parliament. Mr. Manning’s errors were so fundamental that the Court of Appeal ruled that there had been no trial, and, therefore, no acquittal.

Those who would argue that the jury should have the power to apply the law as it sees fit n order that it may serve as a check on government power, should be reminded that only a few years ago white juries in the Southern United States did just that when they, almost without exception habitually refused to convict a white man of murdering a black man. The law prohibiting murder was clear and unequivocal, yet the jury applied its own personal morality. It ignored the law with tragic results.

Random selection

In order for a jury to properly carry out its responsibilities, it is essential that it be randomly selected and representative of the whole community. The jury in the Morgentaler case did not comply with this requirement. It was selected so as to eliminate regular churchgoers, housewives, young people and older professionals, as well as anyone who had any long-term employment, or who had more than two children. This was done through the use of professional Jury Consultants, whom Manning brought in from Washington, D.C. These Consultants, professional psychologists, gave him a profile of prospective jurors who would be sympathetic to the accused. Thus the hallmark of a Canadian jury that it be representative of the population as a whole was not present in the Morgentaler case. (For details on jury selection, see the article: “The Jury System: Democracy on Trial, Interim, November 1984, and the editorial: “Churchgoers and Housewives, Please do not Apply,” Interim, January 1985.)

The jury selection process in the Morgentaler case differed markedly from that of another high-profile jury selection case in Toronto last year – that of Ernst Zundel. Zundel was charged with knowingly publishing false news against Jews. His defence counsel had requested that all Jews, or anyone with Jewish friends, relatives or employers be rejected as jurors. District Court Judge Hugh Locke refused this request, stating “Were I to permit any of the questions, I would, in effect, be disenfranchising members of this society from the right and duty of sitting on a jury. I do not intend to do that.”

It was not appropriate to disqualify or disenfranchise members of a group in the community in the Zundel case, why then was this permitted in the Morgentaler trial?

There is no question that a jury has a very important role in the administration of justice in Canada. In order for it to maintain its effectiveness, as well as its credibility, it is essential that it carry out its function as a randomly selected representative of the whole community, with the role of determining the facts and impartially applying the law to those facts. For a jury to do otherwise, is to undermine and destroy the jury system which has served us well over the centuries.