- Richard Jochelson & Michelle Bertrand
Canada's Inscrutable Jury Research: Do Canadian Juries Understand Judicial Charges?
A recent study of US wrongful convictions seems to suggest, that despite over 1889 registered individual and group exonerations, United States juries seem to make correct decisions based on “what they are told”. Among the conclusions reached about US jurors in an article by MacKillop and Vidmar: jurors seem to “work hard, take their roles seriously, and apply a rational system in resolving cases by trying to form a complete narrative” (2015). Indeed, MacKillop and Vidmar argue that jurors do their best with the quality of evidence that is either admissible or inadmissible in a given trial (2015). The argument flies against conventional wisdom that, as laypersons, jurors will be more subject to bias and prejudice than legal actors.
Less clear is whether the same conclusions hold true in the Canadian criminal justice system where jury trials are less plentiful but still number in the thousands each year; in Canada, there are at least 45 registered wrongful convictions (Smith and Cutler 2013). The relative Canadian dearth of jury studies is largely due to section 649 of the Criminal Code of Canada which places significant restrictions on juror disclosure post-trial. The gap in Canadian research has been acknowledged in leading Canadian criminal law cases. For example, in R v Find (2001, para. 87), a unanimous Supreme Court of Canada acknowledged that:
"More comprehensive and scientific assessment…would be welcome. Should Parliament reconsider this prohibition, it may be that more helpful research into the Canadian experience would emerge."
The Law Reform Commission of Canada has also called for reform to allow for further social science study in the jury context (Quinlan 1993, p144; Doob 1979; LRC 1980, 1982; Comiskey 2010, para. 44). Furthermore, in light of wrongful convictions in Canada there have been calls for reform of the Code, specifically for the purposes of determining whether instructions to juries play a role in miscarriages of justice. In the wrongful convictions reports of David Milgaard and of Randy Dalton, Gregory Parsons and Randy Druken, calls for further reform are noted (Lamer Report 2005, MacCallum Report 2008). As Justice Lamer observed:
"It is possible to isolate a number of specific factors and to draw some general conclusions. However, the picture will always be incomplete without at least some insight into what happened in the jury room…That would be especially valuable where a serious injustice has occurred” (165-166).
In Canada, despite the proliferation of standard juror charges (often written standard charges such as CRIMJI, Watt and Canadian Judicial Council), few studies of the quality of standard juror charges exist (Comiskey 2010). Yet, due to the Code, jury studies can never be based on the work of “real” juries. Further, the social scientific study of juries in Canada has remained relatively unfunded by Tri-Council granting agencies and even law foundations, perhaps due to skepticism about funding the study of simulations or prospective jurors as opposed to actual juries (Comiskey 2010, Rose and Ogloff 2001).
Pragmatic voices have urged that Canadian scholars of wrongful conviction must move to begin participant pool-based research in order to unpack the mechanics of juror comprehension of judicial instructions in Canada (Rose and Ogloff 2001). Jury simulation studies face significant costs and time demands, and in the absence of a hospitable funding environment, participant pool-based studies may be the most effective way forward (Comsikey 2010, Rose and Ogloff 2001).
While difficulties inure in participant pool studies, using student participant pools at post-secondary institutions may provide advantages and progress in the study of juror comprehension. Students are eager and excited to participate in research. Students typically have higher literacy and comprehension skills than a standard jury pool. In the case of law students or students studying the justice disciplines, their knowledge of legal reasoning might far outstrip that of the average juror. This limitation, though, becomes a strength, when one considers that errors on the part of student participants who possess such advantages, may implicate even graver problems of comprehension in the wider juror pool.
Even still, the body of knowledge about juror comprehension develops at a glacial pace in Canada. Though some might think to simply look to the body of US-based literature for answers, the inconvenient reality is that the tradition of standard juror charges in Canada developed and crystallized in a fundamentally different manner than the charges of our neighbours to the south. Charges in Canada developed without legislative impetus and substantially later than the in the United States (Comiskey 2010). The diversity of pattern instructions in Canada is much more limited than the over 40 states that use pattern instructions, and the Canadian charges are typically more voluminous and complex (Comiskey 2010). It is simply inadequate to assert that Canadian assumptions about jury instructions can piggyback on the findings of researchers in the USA.
Wrongful convictions in Canada (and, indeed, all jurisdictions) remain a dark stain on the justice system, and numerous reports contain the empirical entrails of the contexts that inform our history of miscarriages of justice. New works, like the upcoming article by Bruce MacFarlane (in Volume 63, Criminal Law Quarterly 2016), seek to inject social science evidence into the analysis more acutely (in the context of prosecutorial missteps). Juror comprehension in Canada remains an underexplored facet of criminal justice decision-making, and it is disconcerting that more studies do not explicate the role of standard charge comprehension by jurors. Until funding agencies and Canadian scholars step up to take the lead, our less than fulsome knowledge of the role of Canadian juries in wrongful convictions will remain.
Comiskey, M. (2010). Initiating dialogue about jury comprehension of legal concepts: Can the "stagnant pool" be revitalized? Queen’s Law Journal, 35, 625 – 677
Doob, A. N. (1979). Canadian jurors' view of the criminal jury trial: A report to the law reform commission of Canada, published in Studies on the Jury, Law Reform Commission of Canada.
Ferguson, G.A., Dambrot, M.R & Bennett, E.A. (2005). Introduction to the First Edition in CRIMJI: Canadian Criminal Jury Instructions, 4th ed. (Vancouver: Continuing Legal Education Society of British Columbia)
Lamer Commission of Inquiry pertaining to the Cases of: Ronald Dalton, Gregory Parson and Randy Druken, Report and Annexes (2005), accessible at http://www.justice.gov.nl.ca/just/publications/lamerreport.pdf (Accessed Jul 2 2015)
Law Reform Commission of Canada (1980) The Jury in Criminal Trials, Working Paper 27 (Ottawa: Department of Justice, 1980)
Law Reform Commission of Canada (1982). Recommendation 37 in The Jury, Report 16 (Ottawa: Minister of Supply and Services Canada, 1982)
MacFarlane, Bruce. (2016). Wrongful Convictions: Drilling Down to Understand Distorted Decision-Making by Prosecutors. 63 Criminal Law Quarterly. 439–473
MacKillop, Kara & Vidmar, Neil. (2015). Decision-Making in the Dark: How Pre-Trial Errors Change the Narrative in Criminal Jury Trials. 90 Chi.-Kent. L. Rev. 957 Available at: http://scholarship.kentlaw.iit.edu/cklawreview/vol90/iss3/8
National Judicial Institute. Canadian Judicial Council Model Jury Instructions. https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/ (Accessed Jul 2 2015)
Quinlan, P. (1993)"Secrecy of Jury Deliberations -- Is the Cost Too High?" 22 C.R. (4th) 127
R v Find,  1 SCR 863, 2001 SCC 32 (CanLII)
Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard, The Honourable Mr. Justice Edward P. MacCallum, September 2008. www.milgaardinquiry.ca/DMfinal.shtml (Accessed Jul 2 2015)
Rose, G.V. & Ogloff, J. R. P. (2001). Evaluating the comprehensibility of jury instructions: A method and an example. Law & Human Behavior, 25. 409 – 431. doi:10.1023/A:1010659703309
Smith, A. M., & Cutler, B. L. (2013). Introduction: Identification procedures and conviction of the innocent. In B. L. Cutler (Ed.), Reform of eyewitness identification procedures. (pp. 3 – 21). Washington, DC: APA
Watt, D. (2005) Watt's Manual of Criminal Jury Instructions (Toronto: Thomson Carswell)