|Thursday, November 16, 2006
Stoned by jury
Regardless of law, jurors arenšt likely to jail med weed users
By ALAN YOUNG
NOW Magazine (Toronto)
Recent court ruling on pot prevents judges from ordering jurors to uphold
The Supreme Court of
Canada ordered a new trial for well-known med-pot
activist Grant Krieger last month. Krieger, who has multiple sclerosis,
growing and distributing marijuana solely for medical purposes.
He had been convicted of producing by a jury largely because the Alberta
trial judge sternly directed the jury that they had no choice but to
During deliberations, two jurors asked to be discharged because they could
not in good conscience return a verdict of guilty. This is when the judge
decided to step in and tell the jurors how to do their jobs.
In the good old days, judges routinely bullied juries. Until the mid-17th
century, being sequestered meant confinement without food or water until a
headstrong jury would come back with the conviction demanded by the judge.
In the modern era, judges exert enormous influence on juries by vigorously
expressing their opinions, by ruling evidence admissible or not and by
withholding defences from the jury. But it has been fairly clear for a few
hundred years that juries cannot be told they have no choice other than to
So the trial judge in the Krieger case was a bit too old-school for the
Supreme Court, and in a short unanimous decision it ordered a new trial.
Jury nullification (when a jury goes against the law or a judge's
instructions) is alive and well in
Canada. With jury deliberations shrouded
in secrecy, a jury always has the implied power and ability to ignore the
law and decide a case in accordance with its moral intuition.
While the case law clearly states that jurors cannot be told that they
the power to ignore the law, the Supreme Court's Krieger decision
effectively prevents judges from telling them they cannot do so.
For the legal profession, the case will be remembered as a modest
affirmation of jury autonomy, but this affirmation of autonomy is of vital
significance to compassion centres distributing marijuana to thousands of
medical patients across the country.
Having played a part in the establishment of compassion centres in
Ontario, I am often asked by students, police officers and
medical patients whether these centres are legal. There is no simple
to this question.
None of these centres have been authorized under Health Canada's medical
marijuana program, so it appears they are illegal; but the technical
illegality of supplying marijuana to seriously ill Canadians is
by the sympathy we feel for those struggling with illness.
For the most part, Canadians do not respect laws that stand in the way of
relieving pain and suffering. This is why the Krieger jury had difficulty
convicting in the face of clear technical guilt. So when I am asked about
the legal status of the centres, I usually mumble something like "probably
illegal but non-prosecutable. "
This may not be a word, but it's the only way I can describe the nebulous
legal protection provided by juries that predictably refuse to apply the
letter of the law in matters of urgent medical need.
I have always believed that compassion centres have been able to fly under
the legal radar primarily because of the precedent set by Dr. Henry
Morgentaler. Throughout the 70s and 80s, numerous juries refused to
the doctor for performing illegal abortions.
The Criminal Code did provide a cumbersome process for obtaining a legal
abortion, but its obstacle-laden requirements compelled many women to seek
the unauthorized services of Morgentaler' s abortion clinics.
The overwhelming presence of urgent medical need made it impossible for
jury to reach a unanimous guilty verdict. There is little doubt that this
constant refrain of jury nullification in Morgentaler' s trials must have
played some part in the Supreme Court of Canada's 1988 decision to declare
our criminal laws on abortion unconstitutional.
Similarly, the Controlled Drugs And Substances Act outlines a cumbersome
process for obtaining authorization to use medical marijuana, but its
obstacle-laden requirements compel many patients to seek the unauthorized
services of compassion centres.
In fact, far more patients are using the centres than are enrolled in the
government's program and buying the government's pot. It may be hard to
convince a "rule of law" judge that the flaws and shortcomings of the
government's medical program provide the centres with a legal
for taking matters into their own hands.
But if the trial is in front of a jury, it may also be impossible for a
prosecutor to secure a conviction. If juries would not convict in the
context of the morally and politically divisive issue of abortion, I
see them doing so in the context of medical pot when opinion polls show
80 to 90 per cent of Canadians support the use of marijuana for medical
Although I was thrilled that the Supreme Court left the door open for jury
nullification in the medical marijuana context, it has to be recognized
nullification is a double-edged sword.
The same inherent power that allows juries to acquit Morgentaler and the
compassion centres in the face of technical guilt can also lead them to
maliciously convict an unpopular but innocent defendant or perversely
a police officer for a wrongful beating or shooting.
I don't think Rodney King is a big fan of jury nullification. Sometimes
acting upon the conscience of the community can be downright nasty, but in
some cases it can soften the rigidity and harshness of the criminal law by
adding an element of humanity and common sense.