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Jury Nullification in the Canadian System

Jury Nullification in the Canadian System



            The legal system in a particular country is set to offer justice as a mean to settle disputes between the interested parties. In many contexts, all matters presented before the courts are based on the rule of law to make a determination regarding the issues presented before the court. Here, both the defendant and the respondent are given equal time to present their part in the case, so the jury is able to make an informed ruling. However, various court cases in the world have raised a lot of questions because of the jury determination of the cases. For example, in ‘R. v. Latimer, 2001 SCC’ case, the jury decision has raised a lot of questions about jury nullification. Here, jury nullification is a phenomenon whereby the judge exonerates a defendant regardless of the opinion of another jury who hold the position that the defendant is liable for a particular charge. In this particular case, there is a sharp disagreement among the jury on opinion about the law that has been used to charge the defendant. On the other hand, in rare occasions jury nullification may occur in an instance where a member or part of the bench believes that a specific law should not be applied in determining the charges leveled against a defendant. Further, jury nullification may lead to a situation whereby a defendant is convicted because of the disagreement of the jury on matters of legality involving the existing law unto which such an individual is charged regardless of whether or not such law was broken. 

            The ruling given by a jury, which is not consistent with the latter and main points of the supreme law, can only be applied to that particular case. On the other hand, repeated acquittals that develop as a result of a continuous prosecution of a statutory offense, have dire consequences for the application of that particular law. Here, it is possible for the general public to oppose any sign of a regular jury nullification pattern. It is imperative that a jury should sort to find facts about a certain case before a ruling is made.  As such, sympathy should not form the basis of a jury ruling under any circumstances. Consequently, supporters of jury nullification argue that a judge should be allowed to argue out a case based on his assessment. This paper sets to determine the suitability of jury nullification in the context of Canada.

Canadian law and jury nullification

            The Canadian Constitution provides that any individual implicated in a criminal case has a legal right in sorting for a single judge to hear the case or simply select a panel of jury. The Charter of Rights and Freedom indicates that “the benefit of trial by jury where the maximum punishment for the offense is imprisonment for five years or more a severe punishment”. This has created a larger area of dispute between members of the public and the bar, especially in instances where the jury have entered jury nullification. In one school of thought, jury nullification can be observed as a sign of sympathy to the defendant from the judge. However, the essence of a judicial process is to ensure that both parties involved in the case are given a fair hearing and determination based on the rule of law. Therefore, jury nullification in the context of the Canadian law does not offer the ideal optimism of the public. In addition, some juries have become adamant to convict defendants based on their observation of an injustice within the law as it is applied to that particular case. Interestingly, the opposers of jury nullification contend that it is sometimes based on individual prejudice that can be determined by a person’s race to give a verdict regarding the case being heard. Here, the basic fundamental principle of creating a justice system is greatly hampered towards achieving a fair trial and hearing for the defendants and respondents in a court case.

Jury nullification in Canada

            It is the expectation of any individual to get fair justice and trial when subjected to a court trial. However, this may not be the case because of the perceived jury nullification. In Canada, the case of Grant Krieger is a modest example of this problem within the nation’s judicial system. In this particular case, the Supreme Court argued that it was in order to enter jury nullification, but it cautioned that “reasonable steps” ought to be developed in formulating the basis of this legal process. Specifically, Judge Fish in that ruling indicated that juries “are not entitled as a matter of right to refuse to apply the law — but they do have the power to do so when their consciences permit of no other course”.  This statement by the judge indicates the doubt and vagueness of jury nullification within the Canadian legal system. This is because as far as jury nullification can be applied by a judge, the determination of the right degree of consciousness in determining whether not to apply the law in a particular case is suspect. This reaffirms the fact that jury nullification is a good thing, but more often than not it can be misused by the judges on the bench.

            Paul Butler offers another dimension in understanding jury nullification. He argues that justice for the accused can sometimes be based on the race of an individual so that through entering jury nullification, the judge is able to save the defendant from the law being applied based on which part is broken. Further her provides an example of “racially-based jury nullification” that is common in the US as a mere strategy to justify a legal system that is based on race. This indicates that Butler strictly reaffirms that jury nullification based on race is common in many parts of the world. He argues, "racially jury nullification is justified to provide equality in a particular justice system”. According to Butler, jury nullification is a threat to realizing equality in the judicial process. This is because the bar for determining the in-admission of a particular law is suspect, and it will certainly lead to unequal outcomes.

 Another dimension in understanding jury nullification in the Canadian context is the case of Leroy Reed from "Inside the Jury Room." Regarding this, the defendant is Reed, who is jailed for 11 years but opts to pursue a detective course. This leads him to buy a pistol for himself and attends a courtroom with his gun just to attest to the sincerity and level of the detectives. He is subsequently arrested and charged with being in possession of a gun. However, in the ruling, the district attorney clearly reads that law to sends Reed to jail for being found in possession of the gun. However, the judge moves to claim that other facts in presented to the court implying to Reed should not be the basis for sending him to jail. Here, it cannot be clearly be drawn the boundary line that the judge used to determine the second part of the case. As such, it clearly indicates sympathy as the main motivation towards the judge entering a jury nullification opinion in this matter.



Strengths of jury nullification

            The context of jury nullification provides a new dimension in understanding societal laws. For example, a jury may decide not to convict a defendant as it was the case of Reed without basing of the supreme law. This is because the determination of jury nullification is left to the jury to determine based on his opinion. As such, his decision provides an opportunity for the public to scrutinize and test the legality of the court rulings based on the societal perceptions. This is an important aspect of the society because it provides an opportunity for the public voice to be considered in the courtroom.  Another important advantage of jury nullification is that it provides a basis for the public to scrutinize the state and prosecution process. For instance, in a situation where the public observes that the law is becoming too rigid, they have the obligation to invalidate such legislations.  On the other hand, a discussion of the juries before a ‘jury nullification ‘ process  is a more consultative process that provides an important verdict about the matter.  Moreover, many justice systems have failed to live up to their dream because of corruption claims that have been leveled against the judges. However, in the context of jury nullification many juries are involved in the case, and this makes it difficult for influential people to corrupt the judges. Here, the process is likely to generate a fair and just ruling on the matter.

Weaknesses of jury nullification

            One of the major basis of opposition towards acts of jury nullification is the degree of determining when to stop considering the law. In Canada, the supreme law provides for the rights and privileges of judges to enter jury nullification, but this should not be a strategy to compromise the application of the law. Thus, it leaves the door wide open to what is the right point to enter jury nullification. As such, it is possible that this unfounded boundary provides an avenue to introduce politics and individual decisions on matter of law. In fact, it is expected that judges in the court room should only dwell on a fact-finding mission to determine the ruling. However, this is not the case because with the possibility of jury nullification it is possible that a jury may fail to strictly engage the defendant and the respondents in finding the facts.  Therefore, the main weakness of jury nullification is that it can lead to a situation of being misused by the jury or defendant. It is ignorance of the fundamental principle of a justice system. In some cases, jury nullification can be entered even where there is sufficient evidence to prove the guilt of a defendant. This does not serve to provide justice, but it offers an opportunity for individuals within a society to protest against the state and the prosecution process. 

            Another weakness in the process of jury nullification is based on the fact that it does not provide a good opportunity to challenge the possibility of implementing legislations that are contrary to the societal values and norm. For example, in the case of Reed, it was expected that the law would take its course, but this was not the case because the judge offered a dissenting opinion regarding the major expectation of the general public. Another weakness is that the juries may not be highly knowledgeable on matters of the law. Therefore, it is likely that they can err  in making their decision on a court case that is presented to them. This is a weakness that limits the possibility of obtaining a fair and just ruling on any matter.  Also, the major influence of the general public in the jury nullification process is a major weakness because it may fail to address issues that are presented in the law.


Law's formalism and law's commitment to "just outcomes"

            It is very difficult to develop the boundary for jury nullification and commitment to “just outcomes”. The judicial system is developed within a structure that will allow delivery of fair and just decision in the courtroom. However, jury nullification allows the juries to make decisions whether to convict or not or better still fail to apply the law. This creates room for unjust outcomes in rulings by the juries, as such; I support the position provided by Butler because juries do not have set parameters to determine their decision. In this regard, I support the ideology that judges ought to notify juries of any chance of nullification. This is important because once the intention of the jury to nullify is presented to the judge; it forces the jury to consider many parameters in setting his decision. Therefore, I consider jury nullification to proceed within the Canadian context because it provides an opportunity for the community to engage the state and prosecution processes. As such, Canadians will have the opportunity to check and balance their judicial system.



            Jury nullification is a process whereby a judge exonerates a defendant irrespective of a verdict provided by the jury demonstrating substantial evidence of law breaking.  The main problem with this process in the Canadian context is the failure to provide a bar that determines the extent of a judge determining when to enter jury nullification. Consequently, I conclude that this weakness in the process can be addressed deleting an obligation that compels judges to inform juries of their intent to enter jury nullification.  This will help cases to be resolved based on the matter of facts presented, which is the basic fundamental principle of a fair and just judicial system. Also, this will reduce instances of personal feelings being considered in the courtroom. Thus, jury nullification should remain in the Canadian legal system, but the power of juries should be expanded. This can be achieved through compelling judges to inform juries of their intention for nullification. Subsequently, the case of Reed demonstrates a model example of how jury nullification leads to unjust outcomes because the law was not applied in determining the ruling.


Canadian Charter of Rights and Freedoms. (1982). Part 1 of the Constitution Act, 1982 being ScheduleB to the Canada Act 1982 (U.K.), 1982 c.11, ss. 7, 11

Cucchiara, S. (2011).Towards a Revival of Law in Foucault.  Journal of Existential and Phenomenological Theory and Culture. 6(1), 1.

Dworkin, R. M. (2007).Taking rights seriously. Cambridge: Harvard University Press.

Lippert, J. R. & Park, G. (2010). Governance and Criminology in Criminology: Critical Canadian Perspectives. Toronto: Pearson

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