Jury Trials

Jury trials require a different approach than trials before a judge alone.

Since juries are composed of people from everyday walks of life who are called upon to decide cases often involving complicated points of law it is important for the lawyer to gain the trust of the jury in order to convince them of the fundamental justice of the point of view being advocated. Even though the jury is legally bound to apply the law as set out by the judge to the facts they find, in practice it is necessary also to convince them of the basic fairness of the verdict requested of them.

Although many Criminal Code and related offences can be tried before a judge with a jury at the election of the defence it is usually the most serious offences which in practice are decided by juries. For example, until relatively recently murder cases could only be tried by a court composed of a judge and jury.

The fact that the right to a jury trial for offences carrying a maximum penalty of five years or more is enshrined in the Charter of Rights shows the historical importance of this protection against the power of the State to enforce unfair or unpopular laws. Probably the best known application of this safeguard was the unsuccessful prosecution of Henry Morgentaler under the anti-abortion provisions of the Criminal Code. Even though the highest court in the province held his conduct to be a criminal offence juries repeatedly refused to convict the doctor and the government eventually stopped accusing him. These prosecutions also resulted in the government abolishing the right of the Court of Appeal to substitute a guilty verdict for an acquittal by a jury.