The Ontario courts temporarily closed last March while COVID-19 protocols were put into place. While people were searching for toilet paper and hand sanitizers, the wheels of justice were screeching to a halt.
The Department of Justice Canada released guidance to resume criminal jury trials. On July 2, 2020, they said, “this is one of the greatest challenges facing the criminal courts as a result of the pandemic.”
Innocent until proven guilty and the right to a fair trial by a jury are the cornerstones of the criminal justice system in Canada. The Charter of Rights and Freedoms guarantees the right to trial by jury.
But juries can’t be trusted to ignore the desire society has to punish someone, and in some cases anyone, for the most unthinkable crimes.
Adam Strong of Oshawa is facing first-degree murder charges in the deaths of two Oshawa teens dating back to 2008.
Strong requested a judge-only trial. The prosecutor, defense, and the Crown all agreed to a judge-only trial on the condition Strong will seek to have the two murders tried separately.
It is highly unusual to be tried by judge alone in a criminal case of this magnitude.
As a general rule, a criminal charge that carries a possible sentence of more than five years is heard in front of a jury. The defense believes the Crown Prosecutor will have a harder time convincing twelve jurors, beyond a shadow of a doubt, instead of just one judge.
It seems apparent Strong doesn’t believe he can get an unbiased jury, and juries can’t be trusted to make their decision based on facts alone.
A case like Strong’s has a lot of emotions running through the community, and it received a lot of media attention. Finding an unbiased jury becomes difficult if not impossible.
Because of this emotional attachment, the defense might stand a greater chance of winning the case if it is heard by judge alone: a judge is more likely to dismiss or overlook circumstantial evidence than a jury is.
This is what happened last year in New Brunswick when a judge re-tried a defendant who had previously been found guilty by jury.
In the judge-only retrial, the judge found the conviction by jury was made unjustly on circumstantial evidence, and a motive concocted by the prosecution. The judge said there was no real evidence tying the defendant to the murder. The judge then found the defendant not guilty.
In addition to biased juries, there’s the matter of money.
In Ontario, the average pay for a juror in a trial lasting three months, as expected in the Adam Strong case, is approximately $50 a day minus any expenses incurred by the juror. Not much of an incentive to put your life on hold and at risk during a pandemic.
Perhaps if courts paid jurors in toilet paper and hand sanitizers, jurors might be more inclined to fulfill their civic duty.
Jury trials are thought to be the fairest form of justice even the courts don’t trust jury’s verdicts. The Crown prosecutor may request the Crown consider a judge-only trial because the complexities of a case may be too difficult for a jury to fully understand, or they may fear for the safety of the jurors in the case.
Whether it’s jury intimidation, frustrated jurors eager to return to their lives or the inability to find an unbiased jury, there is no reason to believe jury verdicts can be trusted. In fact, no verdict can be trusted.
Our system of justice is not based solely on innocence or guilt, it’s based on what can be proven in a courtroom.
If Strong is acquitted of murder because the judge determines the police search of his home was illegal, or any other number of reasons why a judge can dismiss evidence, will justice have been served? Or can we just assume the body found in Strong’s freezer makes him guilty? A jury would.
I rest my case.