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Published online by Cambridge University Press: 04 July 2014
This paper examines the use of juries in criminal cases in Canada and the United States. It is part of a larger study of the administration of criminal justice in Niagara County, Ontario and Niagara County, New York. The basic question examined is why persons accused of serious crimes in the United States usually select a jury, whereas persons in similar circumstances in Canada normally select trial by a judge alone. An investigation of this question will enable us to see some significant differences between the administration of criminal justice in the United States and Canada. It will also show how changes in specific procedural rules may affect other practices. There is a complex interplay between procedural rules. The paper concludes by showing that the widespread use of juries in the United States is consistent with the more populist grass-roots approach in American society which tends to distrust government, compared with the traditional respect for authority, including the authority of judges, in Canada.
Faculty of Law, University of Toronto. Michael Code was involved in the early stages of the project and has continued to contribute ideas from his wide experience in government and the practice of criminal law. Donald Waters, entering third year in the Faculty of Law, was an excellent summer research assistant. A number of knowledgeable persons commented on an earlier draft. We are grateful to Justice Vincent Doyle of New York and Justices Archie Campbell and Victor Paisley from Ontario; prosecutors Diane LaVallee from New York and Peter Griffiths from Ontario; defence counsel Mark Mahoney from Buffalo and Michelle Fuerst from Toronto; and political scientists Carl Baar and Peter Russell. We would also like to thank the Social Sciences and Humanities Research Council of Canada and the Canadian Institute for Advanced Research for their support. The paper was completed in December, 1996 and reflects the law and practice at that date.
1 A companion study on policing in the two Niagaras was published earlier: see Roach, Kent and Friedland, M.L., “Borderline Justice: A Comparison of Policing in the Two Niagaras,” (1996) 23 Am. J. of Crim. L. 241 Google Scholar. See also, Code, Michael A., Trial Within a Reasonable Time (Toronto: Carswell, 1992)Google Scholar; Code, , “American Cadillacs or Canadian Compacts: What is the Correct Criminal Procedure for S. 24 Applications under the Charter of Rights?” (1990–1991) 33 Crim. L. Q. 298 and 407 Google Scholar.
2 Criminal law and procedure is a federal responsibility in Canada, although its administration is a provincial responsibility: see the Constitution Act, 1867, ss. 91(27), 92(14) and (15), 30 & 31 Viet., c.3 (U.K.); R.S.C. 1970, App. II, No. 5. See generally, Friedland, M.L.,“Criminal Justice and the Constitutional Division of Power in Canada,” in A Century of Criminal Justice (Toronto: Carswell, 1984), chap. 2.Google Scholar In the United States, criminal law and procedure is mainly a state responsibility, although there is also a large measure of federal responsibility and, of course, the U.S. Supreme Court has imposed minimum constitutional standards in many areas of criminal procedure. See generally, Tribe, Laurence H., American Constitutional Law (New York: Foundation Press, 2nd ed., 1988)Google Scholar.
3 See Roach and Friedland, “Borderline Justice: A Comparison of Policing in the Two Niagaras”, supra n. 1. In New York, prosecutors and public defenders are subject to far less control from Albany than their counterparts in Ontario are from Toronto.
4 New York Criminal Procedure Law, Laws 1970, chapter 996, s.260.10: “Except as otherwise provided in section 320.10 [the waiver section], every trial of an indictment must be a jury trial”. Article VI, section 18(a) of the Constitution of the State of New York also requires that “crimes prosecuted by indictment shall be tried by a jury composed of twelve persons, unless a jury trial has been waived …”.
5 New York Penal Law, Laws 1965, chapter 1030, s. 10.00(5).
6 Criminal Procedure Law, s.340.40. See Preiser, Peter, “S.340.40, Practice Commentaries,” McKinney's Consolidated Laws of New York, Annotated, Criminal Procedure Law, 11A (St. Paul, Minn.: West, 1994), at pp. 119 et seq.Google Scholar
7 United States Constitution, Amendment VI, right to a jury trial, as applied to the states through the Fourteenth Amendment Due Process Clause: see Duncan v. Louisiana, 391 U.S. 145 (1968).
8 Baldwin v. New York, 399 U.S. 66 (1970); Blanton v. City of North Las Vegas, Nev., 489 U.S. 538 (1989).
9 Canadian Charter of Rights and Freedoms, s.ll(f), set out in Part I of the Constitution Act, 1982, as enacted by the Canada Act 1982 (U.K.), c.ll. The subsection relating to trial by jury was added during the deliberations of the Special Joint Committee of the Senate and the House of Commons in 1991: see the minutes of the Special Joint Committee, December 1 and 28, 1981.
10 Criminal Code, s.787(l), R.S.C. 1985, c. C-46, s. 787(1), as amended.
11 R. v. Smythe (1971), 3 C.C.C. (2d) 366 (S.C.C.).
12 The number of hybrid offences in the Criminal Code has been increasing. There were about 50 hybrid offences in the Criminal Code in 1970, 70 in 1986, and 80 in 1996. Moreover, in the current environment of fiscal constraint, the number of hybrid offences will continue to grow as the government tries to stream more cases away from the more costly superior court system, and therefore avoid preliminary inquiries and the possibility of jury trials. See Makin, Kirk, “Overhaul of Prosecution Planned: Provinces Could Get Right to Ticket Minor Criminals, Limit Preliminary Inquiries, Jury Trials,” Globe and Mail, June 1, 1996 Google Scholar. The use of preliminary inquiries is becoming less important in Canada because of the extensive disclosure required in all criminal cases by the Stinchcombe case: (1991) 68 C.C.C. (3d) 1 (S.C.C.). England has also moved to eliminate jury trials for certain offences: see S. Doran, J.D. Jackson, and Seigel, M.L., “Rethinking Adversariness in Non-jury Criminal Trials” (1995) 23 Am. J. of Crim. L. 1, at 6 Google Scholar.
13 Criminal Code, s. 271(1); see Stat. Can. 1980-81-82-83, c. 125, s. 19.
14 Criminal Code., s. 270; see Stat. Can. 1972, c. 13, s. 22.
15 Criminal Code, s. 271(l)(b); Stat. Can. 1994, c. 44, s. 19. A recently introduced Bill, the Human Reproductive and Genetic Technologies Act provides for four year's imprisonment for a summary conviction offence: see Toronto Globe and Mail, June 15, 1996.
16 Criminal Code, s. 553.
17 Stat. Can. 1994, c. 44, s. 57. The monetary limit for theft was fifty dollars in 1970, two hundred in 1976, and is five thousand dollars today. Fraud and mischief under five thousand dollars are on the list of offences in addition to theft. Counselling, attempt, conspiracy and accessory after the fact to all of the offences listed in s. 553 are also now within the absolute jurisdiction of the provincial court, rather than just attempted theft.
18 Criminal Code, s. 469; subject to s. 473 which permits trial without jury if both the accused and Attorney General consent to be tried by a superior court judge alone.
19 In 1970, for example, the list of offences within the exclusive jurisdiction of the superior courts (then s. 413) included bribery of officers (the present s. 120), death by criminal negligence (s. 220), manslaughter (s. 234) and attempted rape (now sexual assault, s. 271). These offences are no longer in section 469.
20 Criminal Code, s. 473(1): “Notwithstanding anything in this Act, an accused charged with an offence listed in section 469 may, with the consent of the accused and the Attorney General, be tried without a jury by a judge of a superior court of criminal jurisdiction”. Although the Supreme Court of Canada has held that there is no constitutional right to a non-jury trial (see Turpin and Siddiqui v. The Queen (1989) 48 C.C.C. (3d) 8), it has not yet dealt with the right of a Crown to object to a non-jury trial in these cases. The Ontario Court of Appeal has held in R. v. E (L.) (1994) 94 C.C.C. (3d) 228 at p. 241 per Finlayson J.A. that although the Crown does not have “an unfettered right to withhold consent… the court cannot review this exercise of statutory discretion relating to the mode of trial unless it has been demonstrated on the record that there has been an abuse of the court's process through oppressive proceedings on the part of the Crown … there would have to be some showing before the trial judge that the Crown had exercised its discretion arbitrarily, capriciously or for some improper motive so as to invite an examination as to whether there was an abuse of process under s. 7 of the Charter”. Other courts have adopted a less restrictive test. In R. v. Cardinal (1996) 107 C.C.C. (3d) 186 Jones J. of the Alberta Queen's Bench stated at p. 187 that “it seems appropriate that against the background of the spirit of the Charter, an accused should have the right to trial by judge alone in respect of an offence referred to in s. 469 of the Criminal Code unless the Crown has a reason of substance to justify refusing consent, where the accused's request is made timely”. And in R. v. Bird (1996) 107 C.C.C. (3d) 186 Berger J. of the Alberta Queen's Bench held that it was improper to refuse consent because of the identity of the trial judge who would hear the case, stating at p. 192: “Such a consideration constitutes, in all of the circumstances, an improperly motivated exercise of the Crown's discretion to withhold consent and an interference with the integrity of the process of the court”.
21 Criminal Code, s. 536(2): “Where an accused is before a justice charged with an offence, other than an offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553, the justice shall… put the accused to his election in the following words: You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to have a preliminary inquiry and to be tried by a judge without a jury; or you may elect to have a preliminary inquiry and to be tried by a court composed of a judge and jury. How do you elect to be tried?”
22 Criminal Procedure Law, s.320.10.
23 People v. Follette, 282 N.Y.S. 2d 729 (C.A., 1967); People v. Davis, 424 N.Y.S. 2d 372 (C.A., 1979); People v. Swan, 519 N.Y.S. 2d 581 (App. Div., 1987); People v. Diaz, 198 N.Y.S. 2d 27 (App. Div., 1960). See also: Preiser, Peter, “S.320.10, Practice Commentaries,” McKinney's Criminal Procedure Law, at 788–9Google Scholar. See also People v. Fossett 629 N.Y.S. 2d 21 (App. Div., 1995), where the waiver was subsequently set aside because it “was not knowing and voluntary, and was induced by the Trial Justice's statement implying that the case would be disposed of in defendant's favor if he waived a jury”.
24 Article I, Section 2.
25 See People v. Cosmos 205 N.Y. 91 (Ct. App., 1912); Preiser, “S. 320.10, Practice Commentaries”, McKinney's Criminal Procedure Law, at 788–9Google Scholar.
26 Federal Rules of Criminal Procedure, Rule 23(a) requires that the waiver receive “the approval of the court and the consent of the government”; see Singer v. United States, 380 U.S. 24 (1965). There is no constitutional “right” to have a bench trial in the federal courts of the United States. The same is true in Canada: see Turpin and Siddiqui v. The Queen (1989) 48 C.C.C. (3d) 8 (S.C.C.).
27 See Whitebread, C.H. and Slobogin, C., Criminal Procedure, (Westbury, New York: Foundation Press, 3rd ed., 1993) 670 Google Scholar.
28 New York statistics were generously provided by Chester Mount and Gail Miller, Office of Court Administration, New York City, and Harold J. Brand, Jr. and Carol Evans of the Office of the Administrative Judge of the Eighth Judicial District. Ontario statistics were supplied by Dorothy Gonsalves Singh of the Ontario Attorney General's Department, and by Grant Goldrich of the Office of the Chief Justice of the General Division.
29 The three city courts are Niagara Falls, Lockport and North Tonawanda. See Provine, Doris Marie, Judging Credentials: Nonlawyer Judges and the Politics of Professionalism, (Chicago: University of Chicago Press, 1986)Google Scholar. Professor Provine, a lawyer and former town justice, interviewed lay and lawyer judges in lower courts in New York State (see pp. 86-7) and states: “No one I interviewed liked jury trials: they require more time, trouble, and stress than any other means of disposing of cases. The time problem can be acute if the part-time judge has a law practice or other full-time occupation because the proceedings can easily consume a whole evening or most of a weekend” (at 94).
30 See Schulhofer, S.J., “Is Plea Bargaining Inevitable?” (1984) 97 Harvard L. R. 1037, at 1062 Google Scholar: “Defenders uniformly pointed to sentencing expectations as the overriding consideration in the decision to waive the right to a jury. In general, they believe that defendants convicted in jury trials receive sentences substantially more severe than those imposed in bench trials”.
31 Ostrom, B. & Kauder, N., Examining the Work of State Courts, 1994: A National Perspective from the Court Statistics Project, (National Center for State Courts, 1996) 56 Google Scholar. See also S. Doran, J. D. Jackson and M. L. Seigel, “Rethinking Adversariness in Non-jury Criminal Trials”, supra n. 12, at 9, who state that the percentage of bench trials for criminal cases in the U.S. federal courts in 1993 was also 14%.
32 See the Canadian Centre for Justice Statistics, Adult Criminal Court Statistics 1994, (Ottawa: Statistics Canada, 1996)Google Scholar, which contains breakdowns for 5 provinces and 2 territories for 1993 and 1994. Ontario is unfortunately not included. According to statistics in other provinces, however, indictable offences (consisting of indictable offences and hybrid offences that are tried by indictment) comprise on average about 40% of all Criminal Code charges. In 1995 there were about 250,000 persons charged with criminal offences in Ontario. Forty percent of that figure would be about 100,000 persons. We have somewhat arbitrarily reduced that figure by 20, 000 to take into account the absolute jurisdiction cases, where the accused cannot elect to be tried by a superior court.
33 Officials in the Attorney General's Department often use the ten percent figure in planning documents.
34 The figure for 1995 for all of Ontario for jury trials was 1105 and for nonjury superior court trials was 1282. For 1994, the figure was 1022 for jury trials and 1216 for nonjury trials. The number of people who initially elect trial by jury is much higher, but many of these eventually plead guilty or re-elect trial by superior court judge alone. There were 2354 re-elections from jury to judge in 1995, mostly for the purpose of pleading guilty. In Niagara South in 1995,105 person initially chose trial by jury, but as we saw above, only 24 jury trials actually took place.
35 See Stinchcombe (1991) 68 C.C.C. (3d) 1 (S.C.C.).
36 Kalven, Harry Jr., and Zeisel, Hans, The American Jury, (Toronto: Little, Brown and Co., 1966)Google Scholar.
37 Ibid., at 59.
38 Ibid., at 29.
39 Ibid.
40 Zander, Michael and Henderson, Paul, The Royal Commission on Criminal Justice: Crown Court Study, (Research Study No. 19), (London: HMSO, 1993)Google Scholar.
42 The Royal Commission on Criminal Justice: Report, (London: HMSO, 1993), at 86 Google Scholar, relying on Vennard, Julie, “The Outcome of Contested Trials,” in Moxon, David (ed.), Managing Criminal Justice, (London: HMSO, 1985), at 126 et seq. Google Scholar
43 Royal Commission on Criminal Justice: Report, at 86. See also Butler, Sid, “Acquittal Rates,” in Moxon, , Managing Criminal Justice, at 152–3Google Scholar: from 1976 to 1980 the acquittal rates for contested cases in the Crown Court was approximately 50% and only 25% in the magistrates courts. However, about one-half of the acquittals in the Crown Court are by direction of the judge. See the high acquittal rates cited in Brian P. Block, Claire Corbett and Peay, Jill, The Royal Commission on Criminal Justice: Ordered and Directed Acquittals in the Crown Court, (Research Study No. 15), (London: HMSO, 1993), at 11 et seq. Google Scholar Butler says (at 154) that the acquittal rate in the Crown Court is about one third after acquittals by order or direction of the judge are taken out. Magistrates courts include such cases and so the magistrates courts acquittal rate is lower than the 25% mentioned above.
44 Royal Commission on Criminal Justice, at 86, citing Hedderman, C. and Moxon, D., Magistrates' Court or Crown Court? Mode of Trial Decisions and Sentencing, (London: HMSO, 1992)Google Scholar. For the comparable encouragement of bench trials in the U.S., see S. Doran, J.D. Jackson, and M.L Seigel, “Rethinking Adversariness in Non-jury Criminal Trials”, supra n. 12, at 5.
45 Royal Commission on Criminal Justice, at 86.
46 Doran, Jackson and Seigel, “Rethinking Adversariness in Non-jury Criminal Trials”, supra n. 12, at 9.
47 McKinney's New York Criminal Law Pamphlet, 1991 (St. Paul: West Publishing Co., 1991), at 1241 et seq. Google Scholar; Penal Law, ss. 70.00-70.15, 70.30.
48 Material supplied by the State of New York, Office of Court Administration shows that for the year 1995, 61,821 out of 72,913 dispositions in the supreme and county courts were disposed of by plea.
49 Maguire, Kathleen, Pastore, Ann L. and Flanagan, Timothy J., eds., Sourcebook of Criminal Justice Statistics 1992, (U.S. Department of Justice, Bureau of Justice Statistics, Washington, D.C.: USGPO, 1993), at 528 Google Scholar, and 1994 volume containing 1992 statistics, at 486.
50 There were 38,540 pleas out of 46,451 dispositions in 1995 in New York City and 23,781 out of 26,462 dispositions outside New York City.
51 See Whitebread, C.H. and Slobogin, C., Criminal Procedure, (Westbury, New York: Foundation Press, 3rd ed., 1993) 669 Google Scholar. See also S.J. Schulhofer, “Is Plea Bargaining Inevitable?”, supra n. 30, at 1063 for other factors including the fact that “a defendant in custody may have to wait less time for a bench trial” and “a district attorney has less time to prepare for a bench trial, and the defender therefore may have a better chance to exploit inconsistencies in the complainant's testimony”.
52 See Smith v. The Queen (1987), 34 C.C.C. (3d) 97 (S.C.C.).
53 Fitzgerald, O.E., The Guilty Pleas and Summary Justice (Toronto: Carswell, 1990) 1 Google Scholar. See also the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Toronto: Queen's Printer for Ontario, 1993)Google Scholar, (Chair: G. Arthur Martin) at 15, note 6. In the early 1980s, the estimates were lower: See Brannigan, A. & Levy, J.C., “The Legal Framework of Plea Bargaining” (1983) 25 Can. J. Crim. 399, at 400 Google Scholar. At that time, there was considerable ambivalence about the legitimacy of plea bargaining. The change in attitude towards plea bargaining can be seen in the different approaches taken by the Law Reform Commission of Canada in two different Working Papers from 1975 and 1989. The earlier Working Paper, Criminal Procedure: Control of the Process: Working Paper 15 (Ottawa, Law Reform Commission, 1975)Google Scholar, states (at 46) that plea bargaining is “contrary to the entire notion of justice,” whereas the later one, Plea Discussions and Agreements: Working Paper 60, (Ottawa: Law Reform Commission, 1989)Google Scholar, concluded (at 8) that “it would be a mistake to dismiss plea negotiation as a distasteful practice”. The available Canadian statistics do not enable one to estimate the numbers accurately. The provincial statistics for the provincial court deal with counts rather than individuals. The General Division statistics show a much lower rate of guilty pleas — they comprised 34% of the cases in 1995 — because most persons who are going to plead guilty do not elect trial in the higher court. Carl Baar's figures on guilty pleas in the mid-1980s in the then County and District Courts in Ontario and British Columbia are also lower than what one would have found in all the courts. He found that the guilty plea rate ranged from a low of 45% in the Brampton, Ontario County Court to a high of 67% in the London, Ontario courts: Carl Baar, “Trial Rates and Plea Rates in Canadian Criminal Cases: Local Legal Culture, Gender Politics and the Comparative Study of Trial Courts,” presented at the Meeting of the Research Committee on Comparative Judicial Studies at the World Congress of the International Political Science Association, Buenos Aires, Argentina, July 22, 1991, at p. 3.
54 There were 651 acquittals out of a total of 1282 (50.78%) dispositions by the Ontario Court (General Division) for non-jury trials, and 527 acquittals out of a total of 1105 (47.69%) dispositions for jury trials. There was a total of 1178 acquittals out of a total of 2387 (49.35%) criminal dispositions by the court: Ontario Court (General Division): Caseload Statistics for 1995.
55 Caseload Statistics for 1995.
56 Nine acquittals out of 24 cases with a jury (37%) and seven cases out of 13 without a jury (54%).
57 Carl Baar, “Trial Rates and Plea Rates in Canadian Criminal Cases”, supra n. 53.
58 Ibid., at 16.
59 Counsel nevertheless think they may be better off with a jury in certain narcotics cases. One federal prosecutor in Canada told us that those prosecuted for importing narcotics at Pearson International Airport usually choose a jury who they think may be more sympathetic — or less cynical — than a judge to the defence that the accused did not know there were narcotics in the suitcase. The available statistics show that a significantly higher number of persons in that county who elect to be tried by a higher court choose trial by jury than the percentage in the province as a whole, but this is not broken down into offences.
60 See Stumpf, Harry P. and Culver, John H., The Politics of State Courts, (New York: Longman, 1992) 40 Google Scholar. See generally, “The Road to the Judiciary: Navigating the Judicial Selection Process” (1994) 57 Albany L. R. 973 Google Scholar.
61 Stumpf, and Culver, , The Politics of State Courts, at 22 Google Scholar.
62 Dershowitz, , Reasonable Doubts: The O.J. Simpson Case and the Criminal Justice System (New York: Simon and Schuster, 1996) 151 Google Scholar. See also at 47.
63 Ibid., at 151.
64 See generally, Friedland, Martin L., A Place Apart: Judicial Independence and Accountability in Canada, (Ottawa: Canadian Judicial Council, 1995)Google Scholar.
65 Ibid., chap. 3.
66 Ostrom, Brian J. and Kauder, Neal B., Examining the Work of State Courts, 1994: A National Perspective from the Court Statistics Project, (National Center for State Courts, 1996) 56, 65 Google Scholar. The method of selection is found in Ostrom and Kauder, at 16 and in Stumpf and Culver, The Politics of State Courts, supra n. 60, at 40.
67 For a discussion of the merit system, see Friedland, A Place Apart, supra n. 64, at 252-3.
68 See Federal Rules of Criminal Procedure, Rule 23(a); Singer v. United States, 380 U.S. 24 (1965); Preiser, Peter, “S.320.10, Practice Commentary,” McKinney's Criminal Procedure Law, at 788–9Google Scholar.
69 See Ostrom and Kauder, Examining the Work of State Courts, 1994, supra n. 66, at 56.
70 Ibid., at 65.
71 See Hans, Valerie P. and Vidmar, Neil, Judging the Jury, (New York: Plenum Press, 1986) 159–160 CrossRefGoogle Scholar; Horowitz, I.A., “The Effect of Jury Nullification Instruction on Verdicts and Jury Functioning in Criminal Trials” (1985) 9 Law and Human Behavior 25 CrossRefGoogle Scholar.
72 Morgentaler, Smoling and Scott v. The Queen (1988), 37 C.C.C. (3d) 449 (S.C.C.). See also R. v. Swietlinski (1994) 92 C.C.C. (3d) 449 at 460 (S.C.C.).
73 Morgentaler, at 481.
74 Ibid., at 483.
75 Canadian Criminal Code, s. 676(1).
76 People v. Croswell, 3 Johns. 337, 366-68 (N.Y. Sup. Ct., 1804); Duffy v. People, 26 N.Y. 588, 592 (1863).
77 See generally, U.S. v. Dougherty, 473 F. 2d 1113,1130 (C.A. Dist. Col, 1972); Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy, (New York: Basic Books, 1994), chap. 2.
78 Sparf and Hansen v. U.S., 156 U.S. 51 (1895).
79 People v. Mussenden, 127 N.E. 2d 551, 553 (Ct. App., 1955). Two states allow the jury to determine the law: Maryland and Indiana. See Chaya Weinberg-Brodt, “Jury Nullification and Jury-Control Procedures” (1990) 65 N.Y.U.L. R. 825, at 847; cf. J.J. Duane, “Jury Nullification: The Top Secret Constitutional Right” (1996) 22 Litigation 6, at 7.
80 People v. Goetz, 536 N.Y.S. 2d 45 (Ct. App., 1988).
81 Ibid., at 46.
82 People v. Weinberg, 609 N.Y.S. 2d 155 (Ct. App., 1994).
83 Ibid., at 158.
84 U.S. v. Dougherty, 473 F. 2d 1113 (C.A. Dist. Col., 1972).
85 Ibid., at 1142; See also, Brody, David C., “ Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of its Nullification Right” (1995) 38 Am. Crim. L. R. 89 Google Scholar; Weinberg-Brodt, “Jury Nullification and Jury-Control Procedures,” supra n. 79, at 825.
86 U.S. v. Dougherty, supra n. 84, at 1144. The majority, however, stated that jurors already knew about their power to acquit. “The jury,” the majority stated at 1135, “knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. The jury gets its understanding as to the arrangements in the legal system from more than one voice. … The totality of inputgenerally convey adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says”. Bazelon C.J. countered at 1141: “I simply do not understand the justification for relying on a haphazard process of informal communication whose effectiveness is likely to depend, to a large extent, on whether or not any of the jurors are so well-educated and astute that they are able to receive the message. If the jury should know of its power to disregard the law, then the power should be explicitly described by instruction of the court or argument of counsel”.
87 Rothwax, Harold J., Guilty: The Collapse of Criminal Justice, (New York: Random House, 1996) 218 Google Scholar. See also J.J. Duane, “Jury Nullification: The Top Secret Constitutional Right”, supra n. 79, at 14.
88 Lipset, Seymour Martin, Continental Divide: The Values and Institutions of the United States and Canada, (New York: Routledge, 1990)Google Scholar. Judges, according to a survey done for the Law Reform Commission of Canada, would prefer even greater deference. Only five percent of the judges surveyed would permit jury nullification, whereas 75 percent of lay persons would: Doob, A.N., in Studies on the Jury (Ottawa: Law Reform Commission of Canada, 1979), at 1 et seq.Google Scholar
89 See generally, Dickens, B.M., “The Morgentaler Case: Criminal Process and Abortion Law” (1976) 14 Osgoode Hall L. J. 229 Google Scholar.
90 See Kerans, R.P., “Two Nations Under Law” in Canada and the United States: Differences that Count (Peterborough: Broadview Press, 1993) 215, at 218 and 220 Google Scholar; Granger, C., Charron, L. and Chumak, P., Canadian Criminal Jury Trials (Toronto: Carswell, 1989) at 273 et seq.Google Scholar See the Ontario Court of Appeal case of R. v. Varcoe (1996) 104 C.C.C. (3d) 449 at p. 453, adopting an earlier Court of Appeal statement that “generally speaking, the trial judge has a duty to review the evidence so as to assist the jury in understanding the factual issues in dispute, the competing positions of the parties, and the evidence relied on by the parties in relation to the issues”.
91 See generally Friedland, M.L., Double Jeopardy (Oxford: Clarendon Press, 1969), at 281 et seq.Google Scholar
92 As set out in Dershowitz, Reasonable Doubts: The O.J. Simpson Case and the Criminal Justice System, supra n. 62, at 119.
93 Comments of Marcia Clark and Judge Ito on defense closing argument, 1995 WL 704342 (Cal. Super. Trans.) After the verdict, California Governor Pete Wilson is reported to have called for the State Judicial Council to devise restrictions on lawyers' closing arguments: Globe and Mail, October 5, 1995.
94 Municipal Elections Act, R.S.O. 1990, c. M.53, s. 21. The sheriff must also select names of eligible persons inhabiting Indian reserves in the same manner as employed in a municipality, though the sheriff may obtain the names of inhabitants from any records available: see Juries Act, R.S.O. 1990, c.J.3, s.6(8). See generally, C. Granger, L. Charron, and P. Chumak, Canadian Criminal Jury Trials, supra n. 90, at 120 et seq.
95 For voters lists in the United States, see The Jury Project: Report to the Chief Judge of the State of New York, March 31, 1994, at 4 Google Scholar. Although it is estimated that only 64 percent of eligible Americans register to vote, voters lists are the most commonly used source list for jury selection throughout the United States.
96 Ibid.
97 Ibid.
98 Ibid., at 5.
99 Ibid., at 6.; N.Y.S., Judiciary Law, s. 506. For a discussion of the New York Jury Project, see McMahon, C. and Kornblau, D.L., “Chief Judge Judith S. Kaye's Program of Jury Selection Reform in New York” (1995) 10 St. John's J. of Legal Commentary 263 Google Scholar. The Niagara County (New York) Jury Commission currently uses electoral lists, tax rolls, Department of Motor Vehicles records, Department of Labor records, and social services lists: information provided by the Niagara County Jury Commission. The jury pool is also no longer a permanent list as it was in the 1980s. At that time, the jury pool was only updated with eligible jurors as other persons were removed from the list due to ineligibility or death, or as demand dictated. As a result, people who were on the list could be called for jury duty several times while many potentially eligible jurors who were not yet on the list, could not even be called for jury duty regardless whether they were fully qualified. This procedure not only created a stagnant pool which was more demanding on some citizens, but also naturally excluded younger persons from the pool: The Jury Project, at 10-14. Now, the entire pool is randomly redrawn from the eligible returned questionnaires at frequent intervals. In addition, in 1996, New York completely eliminated its lengthy list of disqualifications (s. 511) and exemptions (s. 512) from jury service. See generally, Munsterman, G.T., “A Brief History of State Jury Reform Efforts” (1996) 79 Judicature 216 Google Scholar. Ontario continues to have several grounds for disqualification, including medical practitioners, veterinary surgeons, and persons engaged in the enforcement of law: Juries Act, R.S.O. 1990, c.J.3, s. 2-4. However, Ontario has narrowed the list of disqualification somewhat by eliminating the exclusion of spouses of disqualified persons: Stat. Ont. 1994, c. 27, s. 48(1) and (2).
100 As cited in the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen's Printer, 1995) at 253 Google Scholar; see also Petersen, Cynthia, “Institutionalized Racism, the Need for Reform of the Criminal Jury Selection Process” (1993) 38 McGill Law J. 147 Google Scholar.
101 See the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, at 252-253; Report of the Aboriginal Justice Inquiry of Manitoba (Province of Manitoba, 1991)Google Scholar; Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: a Report on Aboriginal People and Criminal Justice in Canada (Ottawa: 1996)Google Scholar; Pomerant, David, Minister's Reference: Jury Selection and Multicultural Issues, (January, 1992) at 16 et seq.Google Scholar Moreover, it is more difficult to challenge the entire jury panel in Canada than in New York. A challenge under s. 629 of the Criminal Code will only succeed if the applicant proves the existence of a deliberate plan by the sheriff to exclude a group or class of jurors: R. v. Chipesia (1991), 3 C.R. (4th) 169 (B.C.S.C). In New York, bad faith is not a requirement to challenge the panel: see Criminal Procedure Law, s. 270.10; People v. Guzman, 469 N.Y.S. 2d 916 (Ct. App., 1983); U.S. v. Garces, 849 F. Supp 852 (Dist. Ct., E.D. New York, 1994).
102 Juries Act, R.S.O. 1990, c.J.3, s. 6(8).
103 R. v. Hubbert (1975), 29 C.C.C. (2d) 279 at 293 (Ont. C.A.).
104 R. v. Hubbert (1977), 33 C.C.C. (2d) 207 (S.C.C.). See also R. v. Barrow (1987) 38 C.C.C. (3d) 193 (S.C.C.); R. v. Sherratt (1991) 63 C.C.C. (3d) 193 (S.C.C.).
105 Juries Act, R.S.O. 1990, c.J.3 s. 27.
106 R. v. Hubbert (1975), at 291 (Ont. C.A.). See generally, Vidmar, Neil, “Pretrial Prejudice in Canada: A Comparative Perspective on the Criminal Jury” (1996) 79 Judicature 249, at 253–4Google Scholar.
107 See, for example, R. v. Zundel (1987), 31 C.C.C. (3d) 97 (Ont. C.A.); R. v. Morgentaler, October 15, 1984 (unreported), cited in Zundel, at 133. See generally, F.L. Morton, Morgentaler v. Borowski: Abortion, the Charter and the Courts (Toronto: McClelland and Stewart, 1992), chap. 16.
108 Criminal Procedure Law, ss. 270.15, 270.20. A leading New York practitioners' text states: “a judge may still allow considerable leeway to counsel depending upon the nature of the case, the stature of the attorneys and their persistence”: Vinal, Robert W., ed., New York Criminal Practice Handbook, (New York State Bar Association, 1991) at 331 Google Scholar. It is often the judge that does the questioning in New York: The Jury Project, at 46.
109 In both New York (Criminal Procedure Law, ss. 270.15(2), 270.20, 270.25) and Ontario (Criminal Code, s. 634; see Stat. Can., 1992, c. 41, s. 2), a peremptory challenge can be made after a challenge for cause has failed.
110 Criminal Procedure Law, S.270.15U); The Jury Project, at 47-48.
111 See Pomerant, Jury Selection and Multicultural Issues, supra n. 101, at 48-9; Fukurai, H., Butler, E.W. and Krooth, R., Race and the Jury, (New York: Plenum Press, 1993), at 68 CrossRefGoogle Scholar; Hans, V.P. and Vidmar, N., Judging the Jury (New York: Plenum Press, 1986) at 67 CrossRefGoogle Scholar.
112 The Jury Project, at 60-62.
113 R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont.C.A.); R. v. Wilson (1996), 107 C.C.C. (3d) 86 (Ont. C.A.); cf. R. v. Williams (1994), 90 C.C.C. (3d) 194 (B.C.S.C.), affd. B.C.C.A. (1996) 106 C.C.C. (3d) 215; see generally, Kent Roach, “Challenges for Cause and Racial Discrimination” (1995) 37 Crim. L. Q. 410. The Supreme Court of Canada has granted leave to appeal in the Williams case: see Globe and Mail, October 7, 1996. The Ontario Court of Appeal decided in R. v. Alii not to extend the Parks case to other racial minorities or gay accused persons (Lawyers Weekly, October 11, 1996); cf. R. v. Musson (Lawyers Weekly, November 8, 1996).
114 Criminal Code, R.S.C. 1985, c. C-46, s. 634: “The prosecutor… may direct any number of jurors who are not challenged peremptorily by the accused to stand by until all the jurors have been called who are available for the purpose of trying the indictment”.
115 R. v. Bain (1992), 69 C.C.C. (3d) 481 (S.C.C.).
116 At 511. It should be noted, however, that the Court was divided 4 to 3.
117 Stat. Can. 1992, c. 41, s. 2, amending s, 634.
118 Criminal Procedure Law, s.270.25. It should also be noted that in Canada, with multiple defendants, each defendant still receives the same number of peremptories as if the accused were tried alone, but the Crown receives the same total number of peremptory challenges available to all the accused: Criminal Code, s. 634(4). This factor is particularly important in certain cases, since the Crown will always have complete discretion over its use of peremptories while the defendants may or may not have coinciding interests. However, in New York, both the prosecutor and defendants have the same number of peremptories, regardless of the number of defendants, although the trial judge can grant additional peremptories to the defendants in appropriate cases. The defendants in New York cannot exercise their peremptory challenges unless a majority of the defendants support the challenge: Criminal Procedure Law, s. 270.25. In addition, New York does not allow the prosecution to use its remaining peremptories once the defence have exhausted theirs: Criminal Procedure Law, s. 270.15(2).
119 The Jury Project, at 67. Only three peremptory challenges are granted for misdemeanors which may help further explain why so few misdemeanors are tried by jury: Criminal Procedure Law, s.360.30; Vinal, New York Criminal Practice Handbook, supra n. 108, at 338.
120 Canadian Criminal Code, s. 318.
121 Ibid., s. 233.
122 Ibid., s. 270.
123 Jury Project, at 66.
124 Ibid., at 67.
125 Batson v. Kentucky, 106 S.Ct. 1712 (1986).
126 People v. Jenkins, 555 N.Y.S. 2d 10 (Ct. App., 1990), People v. Scott, 522 N.Y.S. 2d 94 (Ct. App., 1987), People v. Boiling, 582 N.Y.S. 2d 950 (Ct. App., 1992), People v. Childress, 598 N.Y.S. 2d 146 (Ct. App., 1993), People v. Smith, 601 N.Y.S. 2d 142 (App. Div., 1993); People v. Allen 629 N.Y.S. 2d 1003 (Ct. App., 1995).
127 Georgia v. McCollum, 112 S. Ct. 2348 (1992).
128 People v. Blunt, 561 N.Y.S. 2d 90 (App. Div., 1990).
129 In Purkett v. Elem, 115 S. Ct. 1769 (1995), the U.S. Supreme Court held that long hair constituted a valid racially-neutral reason. Unless a court can conclude that the challenge was racially motivated, the peremptory challenge may be justified even if the basis given for the challenge may seem (see p. 1771) “silly or superstitious”. See also People v. Hernandez 553 N.Y.S. 2d 85 (Ct. App., 1990); People v. Miranda 631 N.Y.S. 2d 873 (App. Div., 1995); People v. Hewitt 633 N.Y.S. 2d 58 (App. Div., 1995); People v. Allen 629 N.Y.S. 2d 1003 (Ct. App., 1995), citing Purkett v. Elem, supra.
130 Holten, N. Gary and Lamar, Lawson L., The Criminal Courts: Structures, Personnel, and Processes (New York: McGraw-Hill, 1991), at 332–333 Google Scholar, citing Roberts, Sam, “State to Adopt One-Case, One-Judge System,” The New York Times, Oct. 12, 1985, pp. 1 and 30 Google Scholar.
131 Holten, and Lamar, , The Criminal Courts, at 332–333 Google Scholar; Solomon, Maureen and Somerlot, Douglas K., Caseflow Management in the Trial Court: Now and for the Future, (Chicago: American Bar Association, 1987), at 33–44 Google Scholar.
132 Holten and Lamar, The Criminal Courts, supra n. 130, at 333; Solomon and Somerlot, Caseflow Management in the Trial Court, supra n. 131, at pp.38-40.
133 Solomon, and Somerlot, , Caseflow Management in the Trial Courts, at 43–44 Google Scholar.
134 Ibid.
135 We obtained statistics on bench trials before 1986 for New York State, expecting to find that they were higher for 1984 and 1985 than for 1986 and 1987. In fact, the number of bench trials went up slightly in 1986 and 1987. Perhaps other factors played a role in those years.
136 Criminal Code, s. 625.1.
137 Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, (Toronto: Queen's Printer for Ontario, 1993), at 378 Google Scholar; Ontario Court of Justice Criminal Proceedings Rules, SI/92-99, 1992 Canada Gazette Part II, p. 2298, Rule 28 (specifically Rule 28.04).
138 In the General Division of the Ontario Court in 1995, there were 2354 (39.14%) re-elections from jury trial to nonjury trial. In Toronto, about 50% of all accused who selected trial by jury re-elected trial by judge alone. Out of about 6000 accused who originally selected trial by jury, less than 10% (578, 9.61%) actually had jury trials. In contrast, only 71 (1.48%) of the accused who had elected trial by judge alone re-elected jury trials and a somewhat higher percentage (13.19%) (631) of accused who originally opted for trial by judge alone did in fact go to trial: caseload statistics were provided by the Ontario Court, General Division.
139 See generally, S. Doran, J. D. Jackson and M. L. Seigel, “Rethinking Adversariness in Non-jury Criminal Trials”, supra n. 12, at 1.
140 R. v. Khan (1990), 59 C.C.C. (3d) 92 (S.C.C.); R. v. Smith (1992), 75 C.C.C. (3d) 257 (S.C.C.); R. v. B. (KG.) (1993), 79 C.C.C. (3d) 257 (S.C.C.).
141 Prince, Jerome, Richardson on Evidence (New York: Brooklyn Law School, 10th ed., 1973), at 176–186 Google Scholar.
142 Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136.
143 R. v. Comba (1938), 70 C.C.C. 205 (S.C.C.); Sopinka, John, Sidney N., Lederman, and Bryant, Alan W., The Law of Evidence in Canada, (Toronto: Butterworths, 1992), at 40 Google Scholar.
144 R. v. Cooper (1977) 34 C.C.C. (2d) 18 (S.C.C.).
145 People v. Barnes, 429 N.Y.S. 2d 178 (Ct. App., 1980); People v. Daddona, 1 599 N.Y.S. 2d 530 (Ct. App., 1993).
146 R. v. Vetrovec (1982), 67 C.C.C. (2d) 1 (S.C.C.). However, the corroboration rule was partially brought back in Bevan and Griffith v. The Queen (1993), 82 C.C.C. (3d) 310 (S.C.C.); see also Martin L. Friedland, The Death of Old Man Rice, (Toronto: University of Toronto Press, 1994), at 112, n. 4.
147 Section 4(6) of the Canada Evidence Act states: “The failure of the person charged, or of the wife or husband of such person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution:” R.S.C. 1985 c. C-5; see R. v. Vezeau (1976), 28 C.C.C. (2d) 81 (S.C.C.); cf. R. v. Naglik (1991), 65 C.C.C. (3d) 272 (Ont. C.A.).
148 R. v. Lepage (1995), 95 C.C.C. (3d) 385 (S.C.C.); R. v. Johnson (1993), 79 C.C.C. (3d) 42 (Ont. C.A.); R. v. Boss (1988), 46 C.C.C. (3d) 523 (Ont. C.A.).
149 See New York's Criminal Procedure Law, s. 300.10(2).
150 See Rothwax, Guilty: The Collapse of Criminal Justice, supra n. 87, at 193: Carter v. Kentucky 450 U.S. 288 (1981).
151 The U.S. Supreme Court held in Lakeside v. Oregon 435 U.S. 333 (1978) that the accused cannot constitutionally prevent such a charge. New York specifically deals with the issue in s. 300.10(2) of the Criminal Procedure Law.
152 See S. Doran, J.D. Jackson, and M.L. Seigel, “Rethinking Adversariness in Non-Jury Criminal Trials”, supra n. 12, at 31-3. As stated in one federal case cited in Doran et al., the trial judge “must be presumed to have exercised the proper discretion in distinguishing between the improper and proper evidence introduced at trial, and to have based his decision only on the latter, in the absence of a clear showing to the contrary by appellant”: U.S. v. Menk 406 F. 2d 124 at p. 127 (7th Cir., 1968).
153 Section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, states that “a witness may be questioned as to whether he has been convicted of any offence, …” Prior to R. v. Corbett (1988), 41 C.C.C. (3d) 385 (S.C.C.), the court did not have any discretion to exclude prejudicial evidence of prior convictions. The admissibility of prior convictions of a witness in New York state is governed by section 60.40 of the Criminal Procedure Law. See Preiser, Peter, “Section 60.40 Practice Commentaries” in McKinney's, Criminal Procedure Law, at 691 Google Scholar: “It does not add to or detract from common law principles as to when and to what extent such impeaching questions may be asked”.
154 Vinal, ed., New York Criminal Practice Handbook, supra n. 108, at 605.
155 The following cases outline the procedure for determining the admissibility of prior convictions in Ontario: R. v. Corbett, supra; R. v. Thompson (1992), 83 C.C.C. (3d) 273 (B.C.C.A.); R. v. Trudel (1994), 90 C.C.C. (3d) 318 (Quebec C.A.); R. v. Ramirez (1995), 97 C.C.C. (3d) 353 (B.C.C.A.). The procedure for determining the admissibility of accused's prior convictions in New York state is governed by the following cases: People v. Sandoval, 357 N.Y.S. 2d 849 (Ct. App., 1974); People v. Bennett, 573 N.Y.S. 2d 322 (App. Div., 1991); People v. Smith, 464 N.Y.S. 2d 399 (Ct. App., 1983); People v. Duffy, 367 N.Y.S. 2d 236 (Ct. App., 1975)
156 R. v. P.(G.F.) (1994), 89 C.C.C. (3d) 176 at 181 (Ont.C.A.).
157 People v. Sandoval, supra n. 155.
158 Ibid., at 854. On the general tendency of New York to employ more pretrial motions than Ontario, see Michael A. Code, “American Cadillacs or Canadian Compacts: What is the Correct Criminal Procedure for S. 24 Applications under the Charter of Rights?”, supra n. 1, at 407.
159 In People v. Miller 630 N.Y.S. 2d 99 (App. Div., 1995) the accused waived the jury after previous convictions were admitted by the trial judge in a Sandoval hearing. The Appellate Division rejected the accused's claim that “the Sandoval ruling unfairly coerced him into waiving his right to a jury trial and, thus, the waiver was not voluntarily made as constitutionally required”.
160 See the U.S. Fifth Amendment: no person shall be “subject for the same offence to be twice put in jeopardy of life and limb”; New York Bill of Rights, article 1, section 6: “No person shall be subject to be twice put in jeopardy for the same offence”. See also Kepner v. United States 195 U.S. 100 (1904); People v. Brown 386 N.Y.S. 2d 848 (Ct. App., 1976); cf. Palko v. Connecticut 302 U.S. 319 (1937). See generally, M.L. Friedland, Double Jeopardy, supra n. 91, at 281 et seq.; Preiser, Peter, “Section 450.20 Practice Commentaries”; McKinney's Consolidated Laws, vol. 11A (St. Paul, Minn.: West, 1994)Google Scholar. The limited right of appeal by the prosecutor is found in Criminal Procedures Law, section 450.20, 450.40, 450.50 and 450.55.
161 See Criminal Code, s. 676(l)(a): “The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal (a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone”. See also subsections (b) to (d). The Canadian position was held in Regina v. Morgentaler (1985) 22 C.C.C. (3d) 353 (Ont. C.A.) not to violate the Charter's provision against double jeopardy, s. ll(h), which provides: “Any person charged with an offence has the right … if finally acquitted of the offence, not to be tried for it again…” The Court held at pp. 409-10 that the insertion of the word “finally” was intended to preserve the right to appeal by the prosecution.
162 Alan Dershowitz, Reasonable Doubts, supra n. 62, at 188-9.
163 Harold J. Rothwax, Guilty: The Collapse of Criminal Justice, supra n. 87, at 182.
164 We have not discussed the effect of different systems of legal aid in the two jurisdictions, in part because the rules are changing in Ontario and in part because of uncertainty what impact the various schemes would have on the incentive to choose a trial by a judge or jury. Does the public defender system in Niagara County, New York result in proportionately more jury trials than the assigned counsel system for felonies in Erie County, New York with its relatively low hourly rates and its low cap on the total available unless there are “extraordinary circumstances”? See the New York Criminal Procedure Law, s. 180.10 and the County Law, s. 722 and the Ontario Legal Aid Act, R.S.O. 1990, chapter L. 9, as amended.
165 Friedland, M.L., “Gun Control in Canada: Politics and Impact” in Friedland, A Century of Criminal Justice: Perspectives in the Development of Canadian Law (Toronto: Carswell, 1984) 112, at 134–5Google Scholar.
166 See McNaught, K., “Political Trials and the Canadian Political Tradition” in Friedland, M.L., ed., Courts and Trials: A Multidisciplinary Approach (Toronto: U. of Toronto Press, 1975) at 142 Google Scholar.
167 United States v. Martin 704 F. 2d 267 (1983) at pp. 271-2 per Keith J.
168 See section 536(2) of the Criminal Code which simply states after setting out the various alternatives: “How do you elect to be tried?”
169 Section 469 of the Criminal Code. For a discussion of waiver in Canada see Ron Levi's LL.M. thesis, “Towards a General Standard of Waiver in the Criminal Process” (U. of Toronto, 1996)Google Scholar.
170 A Consultation Paper on the Use of Jury Trials in Civil Cases, produced by the Ontario Law Reform Commission in 1994, showed that there are well under one thousand civil jury cases in Ontario in any year, the majority of which are motor vehicle cases. Quebec abolished the civil jury in 1976 (p. 10 — S.Q. 1976, c. 9, s. 56). The Law Reform Commission recommended at p. 33 that “the current presumption in Ontario law favouring the availability of juries in civil cases should be reversed, and that juries should be available, upon judicial order, only where the predominant issues in the action concern the values, attitudes or priorities of the community and the ends of justice will be best served if the findings of fact or assessment of damages are made by a jury”. If the recommendation is adopted, there will, of course, be even fewer civil juries.