January 23rd, 2007
Jury nullification is the Canadian criminal justice system’s dirty little secret. In reality, the only thing that ever stands between any jury and the potential of nullifying a prosecution is the fidelity of jurors to their oath. Because of that oath, when the evidence furnishes incontrovertible proof establishing each element of the offence charged, a verdict of “guilty” is the only legally appropriate outcome. In such circumstances, it is said, the jury has no right to do otherwise.
Accordingly, our law strictly prohibits either the trial judge or the lawyers from telling jurors about the ultimate power that they always in fact possess to nullify a prosecution by simply returning a not guilty verdict. (See R v Latimer,  1 SCR 3 [Latimer], “saying that jury nullification may occur is distant from deliberately allowing the defence to argue it before a jury or letting a judge raise the possibility of nullification in his or her instructions to the jury” (para 68). See also R v Morgentaler,  1 SCR 30, 78-79.)
The Supreme Court of Canada’s recent judgment in R v Krieger, 2006 SCC 47, will no doubt be indexed as a case about jury nullification. More interesting, but less obvious, is what the case teaches us about the limitations inherent in the current Canadian approach to mens rea. A closer reading of the case, especially the questions posed by individual jurors as they resisted the trial judge’s blunt instructions to find Mr. Krieger guilty, provides a rare but fleeting glimpse of a conflict that is normally out of view. (Out of view, because section 649 of the Criminal Code, RSC 1985, c C-46, precludes jurors from disclosing anything about their deliberations, thereby making empirical jury research a virtual impossibility in Canada.) That is, the tension that exists between the invariably normative approach to culpability that lay jurors are bound to employ and the formal commitment of Canadian criminal law to an exclusively descriptive view of mens rea.
The Obvious: Jury Nullification
The accused, Mr. Krieger, testified and essentially admitted the charge, conceding that he grew marijuana for his own consumption and that he provided it to others for their use. By way of explanation, he told the jury that he suffers from a debilitating illness for which cannabis, in the form of marijuana, is a medically recognized palliative.
In light of the legal requirements for a claim of necessity (In Canada, the defence of necessity has three requirements that must be established by an accused. First, there is the requirement of imminent peril or danger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook. Third, there must be proportionality between the harm inflicted and the harm avoided. See Latimer, paras 28-31. See also Perka v The Queen,  2 SCR 232.), the trial judge refused to leave that defence with the jury. In an apparent effort to preempt nullification, the trial judge took the rather unprecedented step of telling the jury “to retire to the jury room to consider what I have said, appoint one of yourselves to be your foreperson, and then to return to the court with a verdict of guilty.”
Despite this, several jurors balked and the jury’s deliberations dragged on for some time. At points, the jury returned to court with some of the jurors expressing serious misgivings about finding Mr. Krieger guilty. Faced with the very clear potential that the jury might engage in an act of nullification, the trial judge instructed the jury in unequivocal terms that it was obligated to find Mr. Krieger guilty, period. The option of returning a not guilty verdict was effectively taken away from the jury. Ultimately, the jury capitulated and returned the verdict of “guilty” that the trial judge had essentially demanded.
The Supreme Court had little difficulty allowing Mr. Krieger’s appeal and overturning his conviction. Directed verdicts of acquittal, granted where the Crown’s proof is wanting, have a long history and are entirely justifiable. If no reasonable jury properly instructed could convict the accused, then the jury trying the accused should not be afforded a chance to do so. A case that deficient should be taken away from the jury and dismissed by the trial judge. To allow otherwise would unjustifiably prolong the ordeal of the accused and bring with it the potential for an unreasonable verdict. In Krieger, the Court made clear what was, rather surprisingly, not obvious to the trial judge: that the converse is never true.
A judge presiding over a jury trial can never direct a guilty verdict. No matter how overwhelming the Crown’s case, even where the accused’s own evidence is the functional equivalent of a guilty plea, after the accused is placed in the jury’s charge the verdict must truly be that of the jury. If the judge directs a guilty verdict, then in effect the jury’s function becomes ceremonial, a rubber stamp on a judgment that the trial judge has already decreed. In Krieger the Court explained that such a possibility runs head on into the longstanding Anglo-Canadian tradition of trial by jury and the express constitutional protection of that right that is found in section 11(f) of the Charter.
The Subtle and More Interesting: the Limits of Descriptive Mens Rea
In Canada, discussions about the “guilty mind” requirement for criminal culpability (mens rea), can seem deceptively straightforward. For more than a generation, the Canadian conception of mens rea, the one that has been repeatedly endorsed by the Supreme Court, turns on what is essentially a descriptive inquiry. Although the offence creating provision may modify what would otherwise be required, generally speaking, beyond finding that the accused committed the prohibited act (actus reus), the trier of fact must also be satisfied that the accused did so knowingly or intentionally.
Willful blindness, defined as a subjective awareness of a need for further inquiry, and a choice not to inquire because of a desire to insulate oneself from perfect knowledge, is equated with actual knowledge. Similarly, recklessness, an appreciation of the risk that the actus reus will be realized but proceeding indifferent to that possibility, is also generally treated the same. In short, intention, knowledge, willful blindness and recklessness (varying legal constructs of different but closely related mental conditions) all turn on the subjective mindset of the individual accused. Each is treated as generally satisfying the “guilty mind” requirement (mens rea) for liability under Canadian criminal law.
Generally speaking, treating subjective awareness as satisfying the “guilty mind” requirement is a relatively precise and efficient means for triers of fact to determine whether the necessary mens rea for criminal liability has been established. This descriptive inquiry, which tasks the trier of fact to assess whether the accused can be described as having intended, known, been willfully blind or reckless to the prohibited result, has, at least formally, long controlled how the “guilty mind” requirement is to be assessed in Canada. If you are familiar with Canadian criminal law, and have read up until this point, you will, I am sure, have no difficulty with anything I have said so far. What comes next, however, will for many be entirely new.
Our descriptive approach to mens rea, despite everything you may have heard on the topic until now, has not been forever dominant. There was a long period in our law, back when juries were arguably more common then they are today, when the criminal law required the trier of fact to engage in a far less sterile, much more normative inquiry into the blameworthiness of the accused’s conduct before deciding on his or her fate.
If one searches the English case law from the nineteenth century, the mens rea requirement for criminal liability was routinely described in morally laden terms that are conspicuously absent from contemporary Canadian accounts of the concept. So, for example, in describing the mens rea requirement, the old cases use terms like a “wicked mind” (R v Handley (1874), 18 Cox 79, 81), “a bad mind” (Lee v Danger, Grant & Co.,  2 QB 337, 347-9 (CA), per Lord Esher), “an evil mind” (See R v Spencer (1867), 10 Cox 525, 527), “conduct deserving of punishment” (R v Bateman (1925), 94 LJKB 791, 794) and “conduct that ought to be punished” (R v Doherty (1887), 16 Cox 306, 309).
Elsewhere, unconstrained by the space limitations that apply here, I have traced the history by which our criminal law went from a normative account of mens rea to the descriptive definition that dominates today. (See James Stribopoulos, “The Constitutionalization of Fault in Canada: A Normative Critique” (1999) 42 Crim LQ 227.) (In short, the work of descriptive theorists, like Glanville Williams figured prominently in this process.) I don’t intend to revisit the larger theoretical debate waged from time to time between proponents of the normative and descriptive accounts. My point here is far more practical and, necessarily, anecdotal.
In reality, because scholars are unable to conduct research to inquire of jurors how they approached the enterprise of judging, our law operates based on an assumption that juries understand the law as it is explained to them by trial judges and that they conscientiously and correctly apply it in arriving at their verdicts. With respect to mens rea, it is therefore assumed that jurors take their lead from the trial judge’s instruction, probing the accused words and actions for insight into his state of mind, in an effort to determine whether he did in fact possess the requisite subjective mindset at the time of the prohibited act.
Returning then to Krieger and how it sheds light on the limits inherent in our current descriptive conception of mens rea. The charge of producing a controlled substance that Mr. Krieger faced was straightforward. If the Crown could prove that Mr. Krieger cultivated, propagated or harvested cannabis (see Controlled Drugs and Substances Act, SC 1996, c 19, s. 2(1)) and that he knew the nature of the substance at the time (or was willfully blind or reckless about its true nature), then he was guilty of the offence charged. The difficulty in this case, however, was that despite the law’s insistence on a descriptive approach to mens rea, some members of the jury found it impossible to strip all normative content from the task of judging the accused.
Most telling are the discussions between the trial judge and two of the jurors who asked to be excused after deliberations had commenced. The following is an exchange between the trial judge and juror no. 12:
Q All right. Is that – it’s just that you don’t – you don’t feel that what he did was wrong, is that it?
A In some ways, yes. In another way, it was not wrong. [emphasis added]
Q All right. But you – you understood when I said to you that he has no defence to this?
Q That’s the only defence he raised?
Q You understood all that?
A Yes, I do.
Similarly, Juror No. 8 said the following to the trial judge, when asked to explain why his conscience prevented from making a decision:
When I look at this case and all the facts presented, I think I understand the legal parameters in which I must remain. I feel this man is not a guilty man, and I can’t say guilty, even though I understand your charge, and I’m struggling with this, and I can’t bring myself to say guilty.
* * *
I believe that I could not live with myself if I was part of a conviction of this man.
What these comments make plain is that despite the law’s effort to strip the “guilty mind” requirement of any normative content, lay jurors clearly find it impossibly difficult to judge a fellow human being without engaging in some moral assessment as to the wrongness of that individual’s actions.
Of course, in most cases, jurors will have little difficulty concluding that an accused who intended the criminal act is morally blameworthy and deserving of law’s condemnation.
Nevertheless, from time to time, there will be cases, like that of Mr. Krieger, in which the law demands that jurors act contrary to their conscience. This would seem to be the cost of the analytical precision that a descriptive approach to mens rea seems to provide. The alternative, telling juries that once satisfied the accused committed the prohibited act they should consider whether at the time he had an “evil mind” or whether the act was “wrong” seems to invite too much arbitrariness into the analysis.
It may very well be that the best solution to this conundrum is the residual authority of every jury to nullify a prosecution that it considers unjust. Thankfully, Krieger serves to keep that power alive. That said, it is truly a shame that this important check on unjustified applications of our criminal law remains largely hidden from the modern jury’s view.[filed: Constitutional Law Criminal Law]